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E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 111 CONGRESS, FIRST SESSION

Vol. 155 WASHINGTON, WEDNESDAY, DECEMBER 23, 2009 No. 200 House of Representatives The House met at noon and was PRAYER Bless this Congress with the heav- called to order by the Speaker pro tem- The Reverend Gene Hemrick, Wash- enly wisdom that is needed to be pru- pore (Mr. MORAN of Virginia). ington Theological Union, Washington, dent stewards of Your ecological sys- D.C., offered the following prayer: tems. Endow it with Your divine coun- f In the Old Testament, the Canticle of sel and understanding as it seeks the the prophet Daniel rings with the exal- most efficient and effective means for DESIGNATION OF THE SPEAKER tation of God’s Mother Nature: preserving their God-given order and PRO TEMPORE Cold and Chill bless the Lord balance. Amen. The SPEAKER pro tempore laid be- Ice and Snow bless the Lord Nights and Days bless the Lord f fore the House the following commu- Light and Darkness bless the Lord nication from the Speaker: Lightning and Clouds bless the Lord THE JOURNAL WASHINGTON, DC. O Lord, the recent snowstorm in our The SPEAKER pro tempore. The December 23, 2009. Nation’s capital reminds us of this can- Chair has examined the Journal of the I hereby appoint the Honorable JAMES P. MORAN to act as Speaker pro tempore on this ticle and of the wise means You employ last day’s proceedings and announces day. in maintaining the order and rhythms to the House his approval thereof. NANCY PELOSI, of nature with which You blessed this Pursuant to clause 1, rule I, the Jour- Speaker of the House of Representatives. world. nal stands approved.

NOTICE If the 111th Congress, 1st Session, adjourns sine die on or before December 26, 2009, a final issue of the Congres- sional Record for the 111th Congress, 1st Session, will be published on Thursday, December 31, 2009, to permit Members to insert statements. All material for insertion must be signed by the Member and delivered to the respective offices of the Official Reporters of Debates (Room HT–59 or S–123 of the Capitol), Monday through Friday, between the hours of 10:00 a.m. and 3:00 p.m. through Wednesday, December 30. The final issue will be dated Thursday, December 31, 2009, and will be delivered on Monday, January 4, 2010. None of the material printed in the final issue of the Congressional Record may contain subject matter, or relate to any event, that occurred after the sine die date. Senators’ statements should also be formatted according to the instructions at http://webster/secretary/conglrecord.pdf, and submitted electronically, either on a disk to accompany the signed statement, or by e-mail to the Official Reporters of Debates at ‘‘[email protected]’’. Members of the House of Representatives’ statements may also be submitted electronically by e-mail, to accompany the signed statement, and formatted according to the instructions for the Extensions of Remarks template at http:// clerk.house.gov/forms. The Official Reporters will transmit to GPO the template formatted electronic file only after receipt of, and authentication with, the hard copy, and signed manuscript. Deliver statements to the Official Reporters in Room HT–59. Members of Congress desiring to purchase reprints of material submitted for inclusion in the Congressional Record may do so by contacting the Office of Congressional Publishing Services, at the Government Printing Office, on 512–0224, between the hours of 8:00 a.m. and 4:00 p.m. daily. By order of the Joint Committee on Printing. CHARLES E. SCHUMER, Chairman.

b This symbol represents the time of day during the House proceedings, e.g., b 1407 is 2:07 p.m. Matter set in this typeface indicates words inserted or appended, rather than spoken, by a Member of the House on the floor.

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VerDate Nov 24 2008 03:54 Dec 24, 2009 Jkt 089060 PO 00000 Frm 00001 Fmt 7634 Sfmt 8633 E:\CR\FM\A23DE7.000 H23DEPT2 tjames on DSK5CLS3C1PROD with HOUSE H15512 CONGRESSIONAL RECORD — HOUSE December 23, 2009 PLEDGE OF ALLEGIANCE tion to the Committee on Small Business has pursuant to 5 U.S.C. 801(a)(1)(A); to the Com- The SPEAKER pro tempore. The been automatically vacated pursuant to mittee on Financial Services. clause 5(b) of rule X effective today. Chair will lead the House in the Pledge 5192. A letter from the Chief Counsel, De- NANCY PELOSI, partment of Homeland Security, transmit- of Allegiance. Speaker of the House. The SPEAKER pro tempore led the ting the Department’s final rule — Final Pledge of Allegiance as follows: f Flood Elevation Determinations [Docket ID: FEMA-2008-0020] received December 1, 2009, I pledge allegiance to the Flag of the COMMUNICATION FROM THE pursuant to 5 U.S.C. 801(a)(1)(A); to the Com- United States of America, and to the Repub- SPEAKER mittee on Financial Services. lic for which it stands, one nation under God, indivisible, with liberty and justice for all. The SPEAKER pro tempore laid be- 5193. A letter from the Chief Counsel, De- fore the House the following commu- partment of Homeland Security, transmit- f nication from the Speaker: ting the Department’s final rule — Final Flood Elevation Determinations [Docket ID: COMMUNICATION FROM THE HON. HOUSE OF REPRESENTATIVES, FEMA-2008-0020] received December 1, 2009, JOHN B. LARSON, CHAIRMAN, December 23, 2009. pursuant to 5 U.S.C. 801(a)(1)(A); to the Com- DEMOCRATIC CAUCUS Hon. BART GORDON, mittee on Financial Services. The SPEAKER pro tempore laid be- Chairman, Committee on Science and Tech- fore the House the following commu- nology, Rayburn House Office Building, 5194. A letter from the Acting Director, Of- Washington, DC. fice of Sustainable Fisheries, NMFS, Na- nication from the Honorable JOHN B. DEAR MR. CHAIR: This is to advise you that tional Oceanic and Atmospheric Administra- LARSON, Chairman, Democratic Cau- Representative Parker Griffith’s election to tion, transmitting the Administration’s final cus: the Committee on Science and Technology rule — Fisheries of the Caribbean, Gulf of DEMOCRATIC CAUCUS, has been automatically vacated pursuant to Mexico, and South Atlantic; Reef Fish Fish- HOUSE OF REPRESENTATIVES, clause 5(b) of rule X effective today. ery of the Gulf of Mexico; Closure of the 2009 Washington, DC, December 23, 2009. Best regards, Commercial Harvest of Gulf of Mexico Great- Hon. NANCY PELOSI, NANCY PELOSI, er Amberjack [Docket No.: 040205043-4043-01] Speaker of the House, U.S. Capitol, Washington Speaker of the House. (RIN: 0648-XP56) received December 8, 2009, DC. pursuant to 5 U.S.C. 801(a)(1)(A); to the Com- f DEAR MADAM SPEAKER: This is to notify mittee on Natural Resources. you that the Honorable Parker Griffith of ADJOURNMENT 5195. A letter from the Deputy Assistant Alabama has resigned as a Member of the Administrator For Regulatory Programs, Democratic Caucus. The SPEAKER pro tempore. Pursu- ant to section 11(b) of House Resolu- NMFS, National Oceanic and Atmospheric Sincerely, Administration, transmitting the Adminis- JOHN B. LARSON, tion 976, the House shall stand ad- tration’s final rule — Pacific Halibut Fish- Chairman. journed until 10 a.m. on Saturday, De- eries; Subsistence Fishing [Docket No.: f cember 26, 2009, unless the conditions 0812191631-91238-03] (RIN: 0648-AX53) received COMMUNICATION FROM THE specified in section 11(c) of that resolu- December 1, 2009, pursuant to 5 U.S.C. 801(a)(1)(A); to the Committee on Natural SPEAKER tion have been met, in which case the House shall stand adjourned sine die Resources. The SPEAKER pro tempore laid be- pursuant to House Concurrent Resolu- 5196. A letter from the Acting Assistant fore the House the following commu- tion 223. Administrator for Fisheries, NMFS, National nication from the Speaker: Accordingly (at 12 o’clock and 4 min- Oceanic and Atmospheric Administration, HOUSE OF REPRESENTATIVES, utes p.m.), the House adjourned. transmitting the Administration’s final rule December 23, 2009. — Fisheries of the Exclusive Economic Zone Hon. JAMES L. OBERSTAR, f Off Alaska; Central Gulf of Alaska Rockfish Chairman, Committee on Transportation and EXECUTIVE COMMUNICATIONS, Program; Amendment 85 [Docket No.: 0811201490-91372-03] (RIN: 0648-AX42) received Infrastructure, Rayburn House Office ETC. Building, Washington, DC. December 1, 2009, pursuant to 5 U.S.C. DEAR MR. CHAIR: This is to advise you that Under clause 2 of rule XXIV, execu- 801(a)(1)(A); to the Committee on Natural Representative Parker Griffith’s election to tive communications were taken from Resources. the Committee on Transportation and Infra- the Speaker’s table and referred as fol- 5197. A letter from the Acting Director, Of- structure has been automatically vacated lows: fice of Sustainable Fisheries, NMFS, Na- pursuant to clause 5(b) of rule X effective 5189. A letter from the Assistant to the tional Oceanic and Atmospheric Administra- today. tion, transmitting the Administration’s final Best regards, Board, Board of Governors of the Federal Re- serve System, transmitting the System’s rule — Fisheries of the Exclusive Economic NANCY PELOSI, Zone Off Alaska; Reallocation of Pacific cod Speaker of the House. final rule — Truth in Lending [Regulation Z; Docket No. R1378] received December 1, 2009, in the Bering Sea and Aleutian Islands Man- f pursuant to 5 U.S.C. 801(a)(1)(A); to the Com- agement Area [Docket No.: 0801041351-9087-02] COMMUNICATION FROM THE mittee on Financial Services. (RIN: 0648-XS69) received December 1, 2009, pursuant to 5 U.S.C. 801(a)(1)(A); to the Com- SPEAKER 5190. A letter from the Chief Counsel, De- partment of Homeland Security, transmit- mittee on Natural Resources. The SPEAKER pro tempore laid be- ting the Department’s final rule — Final 5198. A letter from the Deputy Assistant fore the House the following commu- Flood Elevation Determinations [Docket ID: Administrator For Regulatory Programs, nication from the Speaker: FEMA-2008-0020] received December 1, 2009, NMFS, National Oceanic and Atmospheric HOUSE OF REPRESENTATIVES, pursuant to 5 U.S.C. 801(a)(1)(A); to the Com- Administration, transmitting the Adminis- December 23, 2009. mittee on Financial Services. tration’s final rule — Fisheries of the United Hon. NYDIA M. VELA´ ZQUES, 5191. A letter from the Chief Counsel, De- States Exclusive Economic Zone Off Alaska; Chairman, Committee on Small Business, Ray- partment of Homeland Security, transmit- Fisheries of the Arctic Management Area; burn House Office Building, Washington, ting the Department’s final rule — Changes Bering Sea Subarea [Docket No.: 090218204- DC. in Flood Elevation Determinations [Docket 91211-04] (RIN: 0648-AX71) received December DEAR MADAM CHAIR: This is to advise you ID: FEMA-2008-0020; Internal Agency Docket 1, 2009, pursuant to 5 U.S.C. 801(a)(1)(A); to that Representative Parker Griffith’s elec- No. FEMA-B-1063] received December 1, 2009, the Committee on Natural Resources.

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Vol. 155 WASHINGTON, WEDNESDAY, DECEMBER 23, 2009 No. 200 Senate The Senate met at 9:45 a.m. and was bring them to a place of abundance. I pledge allegiance to the Flag of the called to order by the Honorable TOM May they face waiting tasks and chal- United States of America, and to the Repub- UDALL, a Senator from the State of lenges with Your gifts of under- lic for which it stands, one nation under God, New Mexico. standing, kindness, civility, and self- indivisible, with liberty and justice for all. control. Lord, astound them with new PRAYER insight and fresh vision they could not f The Chaplain, Dr. Barry C. Black, of- conceive without Your blessings. Give fered the following prayer: them the faith to believe that if they APPOINTMENT OF ACTING Let us pray. listen to You, You will give them an- PRESIDENT PRO TEMPORE Eternal God, the source of peace on swers they cannot find by themselves. Earth, good will toward humanity, we We pray in Your powerful Name. The PRESIDING OFFICER. The feel delight because You are sovereign, Amen. clerk will please read a communication causing all things to work together for to the Senate from the President pro good to those who love You, who are f called according to Your purpose. tempore (Mr. BYRD). Help our lawmakers to see that each PLEDGE OF ALLEGIANCE The assistant legislative clerk read difficulty is an opportunity to see You The Honorable TOM UDALL led the the following letter: work and that in Your time You will Pledge of Allegiance, as follows:

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

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VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00001 Fmt 0624 Sfmt 8633 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13796 CONGRESSIONAL RECORD — SENATE December 23, 2009 U.S. SENATE, A bill (H.R. 3590) to amend the Internal Senator GREGG, the former chairman PRESIDENT PRO TEMPORE, Revenue Code of 1986 to modify the first-time of the Budget Committee and ranking Washington, DC, December 23, 2009. homebuyers credit in the case of members of Republican on that committee, pro- the Armed Forces and certain other Federal To the Senate: posed an amendment that said any sav- Under the provisions of rule I, paragraph 3, employees, and for other purposes. ings in Medicare stay in Medicare, and of the Standing Rules of the Senate, I hereby Pending: our colleague who voted it down—Sen- appoint the Honorable TOM UDALL, a Senator Reid amendment No. 2786, in the nature of from the State of New Mexico, to perform a substitute. ator HARKIN said: You have to vote it the duties of the Chair. REID (for CARDIN) amendment No. 2878 (to down—to our colleagues in his speech ROBERT C. BYRD, amendment No. 2786), to provide for the es- on the floor—you have to vote it down President pro tempore. tablishment of Offices of Minority Health. because it will kill the bill. Why would Mr. UDALL of New Mexico thereupon Reid amendment No. 3292 (to amendment it kill the bill? Because they are plan- assumed the chair as Acting President No. 2878), to change the effective date. ning to use the money both ways, and pro tempore. The ACTING PRESIDENT pro tem- it cannot be done and ought not to be pore. Under the previous order, the f done. time until 10 a.m. will be equally di- This is very much consistent, en- RECOGNITION OF THE MAJORITY vided between the two leaders. tirely consistent with the communica- LEADER The Senator from Alabama is recog- tion from the Chief Actuary, Richard The ACTING PRESIDENT pro tem- nized. S. Foster, of the Center for Medicare Mr. SESSIONS. Mr. President, I just pore. The majority leader is recog- and Medicaid Services. Mr. Foster laid received this morning—and I am sure it nized. it out. We should have seen this back is on the CBO Web site, the Congres- on December 10. It is really what f sional Budget Office Web site—an anal- piqued my interest in this whole mat- SCHEDULE ysis of the health care bill we are con- ter because I was wondering how this sidering today. That analysis is crys- Mr. REID. Mr. President, following could be done. It didn’t make sense to tal-clear and confirms what CMS has leader remarks, the Senate will resume me. And I read his letter, and he says told us; that is, the proponents of the consideration of the health reform leg- this: legislation before us have been double- islation. The time until 10 a.m. is The combination of lower Part A costs— equally divided between the two lead- counting—double-counting—the sav- And that is Part A of Medicare, the ers or their designees. From 9 a.m. ings from Medicare, and as a result, it hospital part— until 2 p.m. today, there will be 1-hour cannot be said that this bill is going to alternating blocks of time, with the create a surplus in the Treasury but, in and higher tax revenues results in a lower Federal deficit based on budget accounting majority controlling the first hour. fact, will put us in a deficit. I think every Member of this body rules. The time between 2 p.m. and 2:13 p.m. needs to read this communication be- will be equally divided and controlled He goes on to say: fore they cast their vote. I know a lot between the two leaders, with the ma- However, trust fund accounting considers of Members of the Senate who voted for jority leader controlling the final half. the same lower expenditures and additional the bill did so under the belief that it revenues as extending the exhaustion date of The Senate will then proceed to a se- would be deficit neutral. They have the Part A trust fund. ries of five or six rollcall votes in rela- said so publicly. The President has re- They are running out of money, and tion to the health care bill. peatedly stated—and he did to the if you cut the cost to Part A, you I note the absence of a quorum. Joint Session of Congress—that not would extend, according to the trust The ACTING PRESIDENT pro tem- one dime will be added to the national fund accounting, the lifetime of the pore. The clerk will call the roll. debt, and that is not so. trust fund before it goes broke. The assistant legislative clerk pro- I will reveal what we were told by He adds: ceeded to call the roll. CBO this morning in their report. This Mr. REID. Mr. President, I ask unan- In practice, the improved Part A financing is what the CBO said to us, and it is cannot be simultaneously used to finance imous consent that the order for the very simple. It is actually stunning other Federal outlays. quorum call be rescinded. that we have been confused about this Then he put in parentheses: The ACTING PRESIDENT pro tem- issue when we are talking about hun- pore. Without objection, it is so or- such as the covered expansions under the dreds of billions of dollars. It is abso- PPACA— dered. lutely an amazing event that the U.S. Which is the health care bill— Mr. REID. Mr. President, I note the Congress can’t get its act together absence of a quorum. No one is here. when we are talking about hundreds of and to extend the trust fund, despite the ap- The ACTING PRESIDENT pro tem- billions of dollars. pearance of this result from the respective accounting conventions. pore. The clerk will call the roll. They say this: The assistant legislative clerk pro- The key point is that the savings to the HI So there are two different account- ceeded to call the roll. trust fund— ings. The one from CMS says one thing. Mr. SESSIONS. Mr. President, I ask Talking about Medicare— The one from CBO, which is a unified unanimous consent that the order for under the PPACA— accounting, a different process of accounting for Federal expenditures— the quorum call be rescinded. That is the health care bill we are both say good things. But both can’t be The ACTING PRESIDENT pro tem- considering— accurate. Both Members say, CBO says pore. Without objection, it is so or- would be received by the government only dered. once, so they cannot be set aside to pay for you can’t count it twice, and CMS also f future Medicare spending and, at the same says that. time, pay for current spending on other parts The ACTING PRESIDENT pro tem- RESERVATION OF LEADER TIME of the legislation or on other programs. pore. The Senator’s time has expired. The ACTING PRESIDENT pro tem- That is exactly what this bill pro- Mr. SESSIONS. I thank the Chair pore. Under the previous order, the poses to do. and urge my colleagues to access this leadership time is reserved. Just 2 days ago at this press con- information on the CBO Web site and f ference, the President said: mine if they would like. Medicare will be stronger and its solvency The ACTING PRESIDENT pro tem- SERVICE MEMBERS HOME extended by nearly a decade. pore. Under the previous order, the OWNERSHIP TAX ACT OF 2009 Then he goes on to say this: time until 2 p.m. will be controlled in The ACTING PRESIDENT pro tem- The Congressional Budget Office now re- alternating 1-hour blocks of time, with pore. Under the previous order, the ports that this bill will reduce our deficit by the majority controlling the first hour. Senate will resume consideration of $132 billion over the first decade. The Senator from Montana is recog- H.R. 3590, which the clerk will report. That is counting the money twice. It nized. The assistant legislative clerk read cannot be done. That is wrong, and it Mr. BAUCUS. Mr. President, it has as follows: must not be allowed to occur. been nearly 5 weeks since the majority

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00002 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13797 leader moved to proceed to the health It will not be long now until con- keeper. They are not partisan. Every- care reform bill before us today. And it sumers will be able to shop for quality body agrees to that. has been more than 2 months since the insurance in new Internet Web sites, The CBO tells us that for the under- Finance Committee reported its bill, a where insurance companies will com- 65 group we are going to increase the great deal of which is reflected in the pete for their business. number of insured from 83 percent to 94 bill before us today. It will not be too long now until mil- percent. For all Americans, we are It has been 3 months since the Fi- lions of uninsured Americans will be going to have 98 percent covered by nance Committee publicly posted the able to buy insurance on new ex- health insurance. That is universal. We 564 amendments that Senators filed for changes with tax credits to help make are going to have a framework so that consideration in the committee. it affordable. at long last America joins every other It has been 7 months since the Fi- It will not be too long now until the industrialized nation in the world with nance Committee convened three bi- law will prohibit insurance companies a health care system where everyone is partisan roundtable discussions on from discriminating against women in included. each of the three major areas of re- setting premiums. To me, this is a moral issue. It is an form: delivery system reform, insur- It will not be too long now until the issue of whether health care is a privi- ance coverage, and options for financ- law will limit insurance companies in lege or a right. I believe the values of ing reform. how much more they can charge when America teach us that health care It has been 7 months since the Fi- people get older. should be a right for all Americans. nance Committee issued three bipar- It will not be too long now until The bill we will be voting on will tisan policy papers detailing the op- more than 30 million Americans who take us very much in the direction of tions from which the committee chose otherwise would not have health care achieving that goal. Today in America to craft its bill. coverage will finally get that peace of too many people fall through the It has been 18 months since the Fi- mind. cracks. Too many families are literally nance Committee convened a bipar- It will not be too long now until destroyed because they cannot afford tisan, day-long health care summit at more than 30 million Americans will access to health care. Therefore, they the Library of Congress. have a better chance to live longer, don’t get the tests they need, and per- It has been 19 months since the Fi- healthier, less pain-ridden lives. haps a disease that could have been nance Committee began holding open It will not be too long now until caught early or prevented is lost, and a hearings to prepare for the bill before more than 30 million Americans will be person has to go through tremendous us today. able to share their family Christmas health care treatment; perhaps even It has been more than 15 long years free of the fears of medical bankruptcy. losing their life. since the last time that the Senate Mr. President, it will not be long We have seen too many families go took on this fight to enact comprehen- now. It has been a long time coming. through bankruptcy because they can- sive health care reform. I thank God that I have lived to see not afford the health care they need. It has been 38 years since our late this day. I thank God for sustaining us We see too many literally cutting their Colleague, Ted Kennedy, proposed a and for enabling us to reach this time. prescription pills in half in the hopes of plan to extend health insurance cov- Let us now, at long last, pass this his- being able to keep their medicine for a erage to all. toric legislation. longer period of time because they can- It has been 44 years since Congress Mr. President, I yield 20 minutes to not afford it, knowing full well they created Medicare, providing health the Senator from Maryland. are compromising their health. care for America’s seniors, and Med- The ACTING PRESIDENT pro tem- I have mentioned the case of icaid, providing health care for the pore. The Senator from Maryland is Deamonte Driver which, to me, is rep- poorest among us. recognized. resentative of so many tragedies in our It has been 64 years since President Mr. CARDIN. Mr. President, first, it community that could be avoided. Harry Truman asked the Congress to will not be long now until we achieve Deamonte Driver, a 12-year-old in enact a national insurance program universal health care coverage afford- Prince George’s County, MD, very close ‘‘to assure the right to adequate med- able care for all Americans. I thank to here, had a tooth ache. His mom ical care and protection from the eco- Senator BAUCUS for making this mo- tried to get him to a dentist, but he nomic fears of sickness.’’ ment possible. I know how hard he has had no insurance, and they couldn’t It has been 97 years since President worked for so many weeks, so many find a dentist. They went to a social Theodore Roosevelt ran on a platform months, so that we could bring very worker and made dozens of calls and that called for ‘‘the protection of home different views together but all focused still couldn’t find a dentist. Deamonte life against the hazards of sickness . . . on the goal of achieving affordable was complaining of severe headaches. through the adoption of a system of so- health care for every American. After weeks of not being able to get to cial insurance adapted to American Senator BAUCUS never lost sight of a dentist, he went to the emergency use.’’ that goal. As a result, we are now just room—the only option that was still And it is now only hours until this hours away from the last procedural available. They found out the tooth Senate will pass meaningful health hurdle until we will have a chance in had become abscessed, which went into care reform. the Senate to vote on a bill that for the his brain. He had emergency surgery. It will not be long now until the law 23 years I have been in Congress I have He lost his life because our health care will prohibit insurance companies from told the people of the Third Congres- system didn’t provide access to afford- cancelling insurance policies when peo- sional District and the people of Mary- able, quality care for all Americans. ple get sick. land that I am going to fight to change Mr. President, that is about to It will not be long now until people our health care system so that every change. I am proud to be a part of it. I with preexisting conditions will have American has access to affordable, have been asked by many in recent access to health care. quality health care. days as to what is in it for the people It will not be long now until the law We are going to take a giant step for- of Maryland. The people of Maryland will prohibit insurance companies from ward to reaching that goal in the legis- are going to get a national health care imposing lifetime or annual limits on lation we have before us today. system that makes a lot more sense, a benefits. Through the Chair, I thank Senator rational system for care in America. It will not be long now until parents BAUCUS very much for his extraor- With the current system, too many will be able to include their children up dinary patience and leadership to bring people are being left out. Small em- to age 26 on their insurance policies. us to this moment. ployers have a hard time finding af- It will not be long now until the law Mr. President, there is a lot of dis- fordable products. will require insurance companies to re- cussion on both sides as to what the I have gotten many letters from con- port on the share of premium dollars facts of the bill are. I am going to use stituents that I have read. I must tell that goes to pay medical care, and the the CBO because that is what we you about the letter I received from a share that doesn’t. agreed to. That is the objective score- small business owner in Montgomery

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00003 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13798 CONGRESSIONAL RECORD — SENATE December 23, 2009 County. She and her husband had to today. We know that we can use a card long-term impact. The Congressional take out two separate policies to cover to go anywhere in the world, and they Budget Office, the objective score- their family of four. The private insur- can track our financial records. But for keepers, tell us it will reduce the def- ance companies discriminated and said health care, that is not true today. icit by one-half of 1 percent of the GDP each has preexisting conditions, and By investing in health information or about $1.3 trillion. It is quite an ac- the only way to have full coverage is to technology, we can reduce a significant complishment to get everybody cov- have two policies with two separate amount of administrative costs in ered and reduce the deficit and have deductibles—which the family cannot health care and better manage each of that confirmed by the Congressional afford—two separate premiums that our own health care needs. That is Budget Office. That helps the people of the family cannot afford. what this bill does. Maryland, and that is why the people There is not competition to provide This bill will cover 31 million more of Maryland benefit from this bill, as coverage to small businesses in Amer- Americans. That is not what I am say- do the citizens of every State in the ica. Small businesses in Maryland want ing as a Democratic Senator from Nation. to have the opportunity to cover their Maryland; that is what the CBO is say- I wish to talk about protecting con- employees, and they know competition ing this bill will achieve—31 million sumers. Senator BAUCUS talked about will work, and this bill provides for a more Americans that will not have to this. I wish to make sure people under- lot more competition. go to an emergency room to get their stand what is involved. Senator BAU- This bill will help those who are los- primary care needs met. CUS mentioned a lot of the provisions ing coverage today. Many people in Think about how much it costs each that are in the bill about preexisting Maryland are losing their health care one of us when that person whose only conditions and pediatrics for children coverage every day. Hundreds lose option is to go to an emergency room, take effect immediately, the caps we their health insurance in my State how much that costs us. You see, many bring in, the lifetime caps we deal with every day. We live in the wealthiest of those individuals cannot afford those covering children under the age of 26, Nation in the world, and Maryland is hospital charges, so it becomes uncom- the reinsurance program for 55- to 64- the wealthiest State, and we are still pensated care. It is added to the rates year-olds, the loss ratios that were losing health coverage today. at the hospital that you and I pay— added to the bill by the managers’ Our Medicare beneficiaries are find- those of us who have health insurance. amendment to make sure insurance ing their program under attack. They The people in Maryland who have companies are using your premium dol- want to have the stability of knowing health insurance have a hidden tax of lar to pay for benefits, the independent Medicare will be there not just this $1,100 every year. It is not only a waste review of a decision made by an insur- year but for decades to come. This bill of money that we have to pay, it is an ance company whether to cover a starts to reform Medicare by reforming efficient way to work the system. charge. health care so we can sustain it and fill There should be facilities available so But I wish to talk about the Pa- in the prescription drug doughnut hole that everybody can get care in a much tients’ Bill of Rights because I think under which so many seniors are find- more cost-effective way. This bill the people of this Nation would be suring it very difficult to afford their moves us toward those goals. It pro- prised to find out we have not yet enacted the Patients’ Bill of Rights. medicine. vides competition so we can bring down It was 1997 when we started talking For the people of Maryland, this bill the cost of health insurance through about a Patients’ Bill of Rights, about will provide a rational way in which the local exchanges. enacting it so we had national protec- they can maintain their existing cov- Another provision in the bill that I tion against the arbitrary practices of erage, find it more affordable, and cer- am very excited about is that we can private insurance companies. In 1998, tainly sustain coverage for our Medi- cross State lines for competition, so if President Clinton, by Executive order, care population and provide competi- you are an employer in Maryland and applied the Patients’ Bill of Rights to tion for small business owners to find you hire workers in Maryland and Vir- the government insurance programs. affordable health care. It ought to ginia and Pennsylvania, you are able to But today there is still no protection bring down health care costs. Mary- get the regional and national competi- against private insurance companies landers are very interested in that. tion so you have more choice on the with a Patients’ Bill of Rights. Again, let me use the CBO, the objec- health insurance companies. That will I am very pleased the managers’ tive scorekeeper. They say for the also bring down costs but also increase amendment has added four very impor- overwhelming majority of Americans, quality, which is what we are trying to tant provisions I authored by an their health premiums will go down be- do. amendment, that I have been working cause health care costs are coming For Marylanders, this bill is impor- with Democrats and Republicans over down. This legislation invests in pre- tant. This bill will help reduce the Fed- the last decade to get into Federal law. vention and wellness. We know preven- eral deficit. How many of us have Access to emergency care—let me tion and wellness works. We know if talked about that? I know that people talk about that for a moment because you can detect a disease early, you who watch us say: Gee, I hear a Repub- today there are people who live in New cannot only save lives, but you can lican Senator and then a Democratic Mexico and live in Montana and live in save health care costs because the pre- Senator; is this the same bill they are Maryland who go to their emergency ventive services only cost a couple talking about? rooms. They read the fine print of their hundred dollars, and an operation you Let’s talk about the Congressional insurance plan. It says: Before you go can avoid is tens of thousands of dol- Budget Office, the objective score- to an emergency room, you have to call lars. Screening and early detection keeper. The Congressional Budget Of- for preauthorization or you need to go works. Management of diseases works. fice says this bill will reduce the Fed- to the emergency room that is in net- Most of our health care costs in eral deficit by $132 billion—billion, work or we may second-guess whether America are spent on the leading dis- that is a B, billion. That is quite an ac- you needed to go to that emergency eases such as cardiac care and diabetes. complishment when you realize that to room, if, in fact, your final diagnosis We know we spend a lot of money, but get everyone covered, the Federal Gov- was you did not have an emergency we can manage those diseases more ef- ernment is providing subsidies which need or condition. You may have fectively, and this bill takes us down will cost us some additional invest- sweating, the traditional chest pains, that path. We can save money by in- ments. To make sure small businesses the traditional symptoms for a heart vesting in health information tech- can afford it, we provide tax credits. attack. You did exactly what a prudent nology. Think about that—about how That costs revenues—people insured, layperson would do: get to that emer- much paper we receive every year from they have tax preferences. Yet the Con- gency room as quickly as possible. our health care system. Think about gressional Budget Office has confirmed Then you find out it was not a heart our own medical records and how that that this bill brings down the deficit by attack. Today the insurance companies could be used to help us each manage $132 billion in the first 10 years. can second-guess your coverage. our own health care and take more re- Let’s look at the second 10 years be- Thanks to the managers’ amendment sponsibility. We are not doing that cause a lot of us want to look at the Senator BAUCUS helped us put together,

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00004 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13799 we now are going to cover access to to deal with their special needs. Unless primary care doctors, which is a very emergency care as a requirement for you have a focus within the Depart- valuable part of this bill. I applaud all every private insurance company. Pru- ment of Health and Human Services, those. dent layperson standards, no unless you have a focus within NIH and Let me point out this bill will help preauthorizations, get to the closest the other agencies, you will not deal families in America. The choice is emergency room as quickly as you with it as effectively as we should. I, whether we pass this bill which sets up can—those are important protections again, thank Senator BAUCUS, Senator the framework for America to finally to get into Federal law. DODD, Senator REID, and the rest who become a nation that provides uni- Then there is the ability to choose understood this and put it into the versal coverage or we maintain the sta- your primary care doctor. Your pri- managers’ package because we can tus quo. Let me tell you what happens mary care doctor is the person you then develop a national strategy to if we maintain the status quo. These have to have confidence in. If you are a help deal with the issues of the minori- are the numbers. Right now, the aver- woman, if you want it to be OB/GYN, ties. age cost for a family for health insur- you should have that right. Many in- I also will mention heart disease. Af- ance is $13,244. If we do not take action, surance companies deny you that rican Americans have a 33-percent by 2016—that is not too many years today. If you are a parent and you want higher death rate due to heart disease. away—it is going to be $24,291. a pediatrician for your child, you The list goes on and on. That is why The ACTING PRESIDENT pro tem- should be able to have a pediatrician as this bill codifies the Office of Minority pore. The Senator has consumed the 20 a primary physician for your child. It Health in the Office of the Secretary of minutes he was yielded. is not guaranteed to today. Many in- Health and Human Services, estab- Mr. CARDIN. May I have 2 more min- surance plans deny it. This will make lishes individual Offices of Minority utes, if that is possible? sure it is in law. Health at the Centers for Disease Con- Mr. BAUCUS. I yield the Senator 2 I am pleased, and I know the people trol and Prevention, Health Resources more minutes. of Maryland will be glad to know, at and Services Administration, Sub- Mr. CARDIN. Mr. President, if people long last, we get the Patients’ Bill of stance Abuse and Mental Health Serv- are going to be able to maintain their Rights protected. ices Administration, Agency for Health existing coverage, we have to act, and There are a lot of groups that sup- Care Research and Quality, Food and this bill will allow us to act. That is ported this over the years. I wish to ac- Drug Administration, the Centers for why the American Medical Association knowledge the long list of people, the Medicare & Medicaid Services, and it supports the bill. This bill will help our long list of groups, bipartisan groups, elevates the current Center on Minor- Medicare population because it that have worked on this issue, from ity Health and Health Disparities at strengthens Medicare, as I pointed out AARP to the Consumers Union to the NIH into an institute. That is good before. That is why the AARP supports NAACP to the SEIU, YMCA—the list news for this Nation in dealing with it. We will be able to provide preven- goes on and on of groups that have sup- this issue. tive services, such as annual physicals, ported the Patients’ Bill of Rights I, again, thank those who helped me for our seniors. This bill is important against private insurance companies. get this into the managers’ package— for small business owners who no At long last, we have the ability, with and it is now in the bill—that we will longer will be discriminated against by the passage of this bill on the Senate be taking up for a vote tomorrow. paying 20 percent more than com- floor, to move it one step closer to pas- I also compliment Senator SAND- parable large companies pay for the sage and to be the law of the land. ERS—I have done this before—on the same type of insurance product. I wish to talk about minority health. community health centers. I mention This bill is good for Marylanders. It The reasons I wish to talk about mi- that because as we deal with the dis- is good for every American. It moves us nority health are twofold. First, I parities in health care in America, we toward universal coverage. The bill is know my colleagues are interested to deal with minority health care issues, not perfect. I am disappointed with know that the amendment that is cur- yes, we have to get people health insur- some of the things in the bill and some rently pending that the leader filed, ance, we have to get people the finan- of the things that did not make it into technically on my behalf, which estab- cial wherewithal to provide health the bill. But this bill establishes the lishes the minority health protections care, but you also have to have the fa- framework for universal, affordable, within the different Federal agencies— cilities in place if you are going to deal quality care for every American. It I wish to assure my colleagues that it with health care needs. It is one thing speaks to the values of our Nation. is in the underlying bill. It is in the to say we will cover the costs, it is an- I am proud to support this legisla- package. It is in the managers’ package other thing to say we will have the tion, and I know we will look back at which has been adopted. doctors available. this day as being one of the bright mo- I am going to suggest to the body I met with one of the leaders at ments for America, where we said to that we withdraw the amendment be- Johns Hopkins University, which is lo- the people of our Nation that, indeed, cause we do not need it to pass; it is al- cated in the urban part of Baltimore we will provide affordable, quality ready in the underlying bill. This was city. He said: We need help. We need health care for every American. the original amendment I submitted. I more community health centers. We I yield the floor. wished to explain that because the need more primary care doctors. We The ACTING PRESIDENT pro tem- amendment I filed to establish the Mi- need more nurses. We need help with pore. The Senator from Montana is rec- nority Health Office at the Department more people seeking care through tra- ognized. of Health and Human Services and also ditional channels rather than using Mr. BAUCUS. I yield 15 minutes to within NIH will be in the underlying emergency rooms. That is great news. the Senator from Delaware, Mr. KAUF- bill because of the managers’ package. With them being able to afford insur- MAN. This is an important moment be- ance, that is great news, but let us The ACTING PRESIDENT pro tem- cause there are huge disparities in our have the facilities. pore. The Senator from Delaware is health care delivery systems in Amer- There are many underserved in Mary- recognized. ica, bringing about huge disparities land and around the Nation who just Mr. KAUFMAN. Mr. President, I among different ethnic communities. need facilities. Thanks to the Sanders thank the manager not just for this but The life expectancy of African Ameri- amendment, of which I am proud to be for the many things he has done to cans, for example, is 5.3 years lower a cosponsor and worked with him, that make this bill a possibility. It is truly than Whites. When we look at diabetes is in this bill. We are going to see $10 historic, transformational. To a large in America, the incidence of diabetes is billion to expand community health degree, it is because of his hard work. two times greater among minorities centers and 25 million more Americans I appreciate that. than the general population. That will be able to get access to care Also, I yield him 30 minutes of my means we need to have a strategy to through our community health cen- postcloture time. deal with it. We need to know how can ters. That is good news and that will The ACTING PRESIDENT pro tem- we reach out to minority communities help and we invest in creating more pore. The time will be so yielded.

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00005 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13800 CONGRESSIONAL RECORD — SENATE December 23, 2009 Mr. KAUFMAN. Mr. President, I rise, upward. In 1979, we spent approxi- talked about this on the Senate floor— once again, to express my support for mately $220 billion as a nation on I have received letters from women this historic health care legislation be- health care. In 1992, we spent close to who have been turned down for cov- fore us. After more than a year of de- $850 billion. In 2009, we will spend $2.5 erage because their pregnancy was con- bate and months and months of nego- trillion on health care. Listen to this: sidered a preexisting condition. Preg- tiations, I welcome the extraordinary $220 billion in 1979, $850 billion in 1992, nancy a preexisting condition? That is opportunity finally to enact meaning- and $2.5 trillion in 2009. How can any- simply intolerable. Even worse, how- ful health care reform. Yes, I mean one argue it is not time to deal with ever—if that is possible—is the practice years and months, since this reform ef- health care reform and that the need is of rescission, where insurance compa- fort has been a long and deliberative urgent? The trajectory of our national nies drop coverage for individuals the process, not the rush job opponents of health care expenditures is out of con- moment they get sick and need their this effort have been claiming. trol. insurance the most. Being denied cov- I must admit, however, there were In addition, one of the biggest—if not erage after you have already paid your times during this debate when I was the biggest—forces behind our Federal premiums is just plain cruel. not sure if we were ever going to reach deficit, which we hear so much about For all those reasons and more, we this point. In fact, I was convinced we on this floor, are the skyrocketing must reform the present health care were not. But I found in my life that costs of Medicare and Medicaid. In 1996, system. Thankfully, we now have the when you think things are never going Medicare and Medicaid accounted for opportunity to bring about meaningful to happen, as with every important only 1 percent of all government ex- health care reform through the Patient thing I have ever done, you reach a penditures; they now account for 20 Protection and Affordable Care Act, point when you say this is never going percent. If we do nothing to start bend- and I would like to take just a couple to happen, and this is another example. ing the cost curve down for Medicare more minutes to discuss why this legis- There are many times I never thought and Medicaid, we will eventually spend lation has earned my support. this would happen. more on these two programs than on First off, it is fiscally responsible. From the bogus charge of death pan- all other Federal programs combined. President Obama laid down a marker els—which was just named We must slow the level of growth in that any health care reform legislation politifact.com’s ‘‘Lie of the Year’’—to the Medicare and Medicaid Programs if that landed on his desk could not add the tension over whether the bill will we are to ever get our budget situation to our Nation’s debt. I am happy to say contain a public option, which I sup- under control. this legislation passes this test. According to the Congressional Budg- ported, there were some long days In addition to the fiscal pressures et Office, the Patient Protection and where it was hard to see how we were crushing our Federal and State govern- Affordable Care Act will reduce the going to get to the end point. ments, the present health care system But thanks to the hard work of the is also crushing families and workers. deficit by $132 billion over the first 10 years. This bill is fully paid for. majority leader, as well as Senators Just look at the rise in the insurance Second, the bill helps stabilize Medi- BAUCUS, DODD and HARKIN and their premiums in my home State of Dela- care and Medicare Programs. In the ab- staffs, we are finally here. ware. In 2000, the average premium for sence of this legislation, the Medicare As many of you know, I have worked family health coverage was just over trust fund is expected to go bankrupt in and around the Congress for more $7,500. That is $7,500. By 2008, the num- in 2017. According to the head actuary than 36 years. I have learned quite a bit ber had jumped to $14,900—that is at the Centers for Medicare and Med- about how things operate in the Sen- $14,900—almost doubling in just 8 icaid Services, passing this bill would ate. years. If we fail to enact the pending extend the solvency of the trust fund The Senate is commonly referred to health care reform legislation, the for an additional 9 years—9 years. as the most deliberative body in the same premium for family coverage is Medicare is a sacred trust with Ameri- world. But such deliberations are not expected in Delaware to reach $29,000 in cans, and this bill ensures this trust is always pretty. Sometimes tempers 2016. preserved. flare, sometimes debate does not reach Let me repeat that: $29,000 for family In addition to reducing the deficit the level we aspire to or the American coverage in Delaware in 2016 if we don’t and shoring up the Medicare Program, people deserve. Sometimes the most pass health care reform now. this bill contains numerous provisions important legislation actually fails to States around the country will see that will help Americans afford their get the votes necessary to pass. similar increases, which are simply premiums and prevent them from filing We all know what happened to health unaffordable. Too many people are for bankruptcy protection. Starting care reform the last time we attempted going bankrupt paying for their med- next year, insurers will no longer be a major overhaul 15 years ago when ical care. Today, the inability to pay able to place lifetime caps on health President Clinton tried to pass his for skyrocketing medical bills ac- care benefits. For the next several version of health care reform. The de- counts for more than 60 percent of U.S. years, insurers will also be restricted bate was just as passionate with personal bankruptcies, a rate of 11⁄2 in the annual limits they can place on charges and countercharges on both times what it was just 6 years ago. benefits, and then these will be elimi- sides of the aisle. Because of the Keep this in mind: More than 75 per- nated altogether in 2014. coarseness of that debate, because of cent of families entering bankruptcy These are huge changes for people the seemingly intractable opposition due to health care costs actually have with debilitating diseases and those to health care reform, Congress has health insurance. who experience unexpected cata- been wary in the intervening 15 years Let me repeat this because it is a strophic events costing millions of dol- to take up this cause again, and it is critical point: Three-quarters of all lars in treatment. understandable. Americans filing for bankruptcy be- In addition, premium subsidies for But over the past 15 years, our health cause of medical bills already have in- families with incomes under 400 per- care system has gotten more expensive. surance. We also need reform to stop cent of the poverty level—or $88,000 for Rising medical costs, skyrocketing the worst abuses in the health insur- a family of four—will be available to premiums, increasing numbers of the ance industry. In my year as serving as help them afford their premiums once uninsured and the strain on both busi- the Senator from Delaware, I have the new insurance exchange is up and ness and providers have brought the heard from far too many constituents running. There will also be annual lim- critical need for health reform back to who have been refused an insurance its on out-of-pocket costs for individ- the Senate this year. policy because they have a preexisting uals, and dependents will be able to be Make no mistake, we need health condition. covered under their parents’ insurance care reform now. The status quo—what I have heard from fathers who were policies until the age of 26. I call the present health care system— denied family insurance coverage be- All of these are meaningful reforms is simply unsustainable. cause they were told their children had that will dramatically lower the rate of Medical costs account for one-sixth preexisting conditions too expensive to bankruptcies associated with medical of domestic spending and are headed cover. Much to my shock—and I have costs.

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00006 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13801 The bill also contains some other dated laws and punishments insuffi- CUS, REID, DODD, HARKIN, as well as great consumer protections that don’t cient to provide effective deterrence their staffs—especially their staffs—be- currently exist in our present health hamper prosecutors and agents. This cause the staff has done incredible care system. I have already highlighted may seem incredible, but many crimi- work on this piece of legislation. They the problems in the current system nals have told law enforcement officers have enabled us to reach this historic with insurers denying coverage for peo- that they switched to health care fraud legislative moment. ple with preexisting conditions and re- from the drug trade because the re- I have ended many speeches by not- scinding coverage when people get ward-to-risk ratio is so much higher. ing that it is time to gather our collec- sick. Under this bill, Americans will fi- Can you imagine that? There is actu- tive will and do the right thing to join nally be freed from the shackles of pre- ally an incentive for crooks in the this historic opportunity by passing existing clauses that have kept so present health care system to commit health care reform. I think we may many from obtaining much needed health care fraud. have finally reached that goal. We cer- health insurance. This antifraud amendment can begin tainly can’t afford to wait any longer. Starting next year, insurers will no to reverse this trend. Significantly re- We need to act now. We can do no less. longer be able to deny coverage to chil- ducing costs attributable to fraud will The American people deserve no less. dren with preexisting medical condi- go a long way toward bending the cost Mr. President, I yield the floor. tions. This ban on not covering pre- curve down. What this bill does is it in- The PRESIDING OFFICER (Mr. existing conditions will be extended to creases the sentencing requirements KIRK). The Senator from Montana is all Americans in 2014. for people who commit health care recognized. The bill also forbids insurers from re- fraud to make it much less attractive Mr. BAUCUS. Mr. President, I yield scinding health insurance after Ameri- for them to get into the health care the remainder of the time we have in cans have already paid their premiums. fraud business. It gives us the prosecu- our hour to the Senator from North Americans will no longer lose their tors and the agents we need—just like Dakota, Mr. CONRAD. coverage when they get sick and need we did in the financial regulatory re- Mr. CONRAD. Mr. President, I rise it most. form—to go after these folks and catch this morning not to talk about health In addition, the bill dramatically ex- them, then put them in jail. With these care but to talk about the other crit- pands coverage of prevention and new sentencing guidelines, we can put ical matter that faces this body before wellness services. It provides incen- them there for a longer time, discour- we leave this session for the holidays tives for employers to implement aging people from getting into the and that is the matter of extending the wellness programs and offers a new an- health care fraud business to begin debt limit of the United States. Let me nual wellness checkup for seniors en- with. start by saying it is imperative that we rolled in Medicare. In addition, the package of amend- extend the debt limit. If we do not, the These are all good, positive reforms ments I cosponsored with my fellow United States would default on its to our health care system. debt. The consequences for this coun- Now that we are close to finishing freshman Democrats will also improve this debate, the media has focused its the bill and benefit all Americans. try and the global economy would be attention on particular deals that ben- I am lucky to be a member of a dy- nothing short of catastrophic. If you think about the problems cre- efit certain Senators and specific namic freshman class, including the ated in world markets by the fact that States, but I want to point out that all Presiding Officer, and I have enjoyed the benefits I have talked about—all of teaming up with them in our morning Dubai defaulted on $40 billion of debt, them—are available to every American speeches and colloquies to push the think of what it would mean to global in every State. health care reform effort forward. I am markets if the United States were to Most every Senator has brought pleased that our amendment package default on $12 trillion of debt. something to this debate and to this was accepted by the bill’s managers For those who say this is Obama’s bill. I am very pleased that the man- and that it provides commonsense, fault—no. This is not Obama’s fault. He agers’ package includes the health care practical solutions that help further has been in office 11 months. I remind fraud enforcement amendment, which I contain costs, improve value, and in- everyone that he walked into the big- introduced, along with Senators crease quality. gest mess in 70 years—deficits and debt LEAHY, SPECTER, KLOBUCHAR, and For example, it quickens the imple- exploding, joblessness skyrocketing, SCHUMER as cosponsors. Again, this mentation of uniform administrative economic growth plummeting. All that benefits all Americans not just Dela- standards, allowing for more efficient was happening before Barack Obama wareans. exchange of information among pa- became President of the United States. The National Health Care Anti-Fraud tients, doctors, and insurers. It pro- He did not create the economic mess, Association conservatively estimates vides more flexibility in establishing he inherited it. He did not create the that 3 percent of all health care spend- accountable care organizations that re- fiscal mess, he inherited it. Those are ing—some $72 billion—is lost to health align financial incentives and help en- things he had to take on as the new care fraud in both public and private sure that Americans receive high-qual- President. health care plans. That is $72 billion ity care. It provides greater incentives There were record deficits and a dou- lost in health care fraud in both public to insurers in the exchange to reduce bling of the national debt, there was and private health care plans. Other es- health care disparities affecting under- the worst recession since the Great De- timates place the figure as high as 10 served minority communities. pression, financial market and housing percent over $220 billion. For all the reasons listed above, from crises, ongoing wars in Iraq and Af- Fraud hits every one of us in every the original text to the additions added ghanistan, and an unsustainable long- corner of our Nation where we can to the managers’ package, this bill term budget outlook with everything least afford it—our health care pre- should and must be passed. It brings going in the wrong direction. miums—while simultaneously driving quality, affordable health care within This is what was happening to defi- down the quality of, and our trust in, the reach of all Americans, including cits before President Obama took of- the health care system. This amend- more than 30 million Americans who fice. The deficits were skyrocketing. In ment increases funding for fighting are currently uninsured. It strengthens fact, we have never held Presidents re- fraud in public programs. the Medicare Program, extending its sponsible for the fiscal affairs during It improves screening of providers insolvency for 9 years. It helps restore the first year of their term of office be- and suppliers and requires implementa- fiscal order by reducing the deficit by cause everybody here knows they in- tion of meaningful compliance pro- approximately $132 billion over 10 years herit a budget from the previous Presi- grams. This section tightens require- and more than $1 trillion over 20 years. dent for the first year. That is not ments for claims submissions and pro- It offers much needed consumer protec- Barack Obama’s responsibility, that is vides new tools to deter fraud and tions that provide stable coverage at the responsibility of the previous ad- abuse in the private insurance market. an affordable cost. ministration. It also strengthens criminal inves- In closing, I again want to acknowl- For those who say President Obama tigations and prosecution. Today, out- edge the hard work of Senators BAU- made things worse—no, he didn’t make

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00007 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13802 CONGRESSIONAL RECORD — SENATE December 23, 2009 things worse, he made things better. the will to take on the burgeoning shore, tax free, on income received in Yes, he added short term to the deficit, debt? this country, income on which taxes about $300 billion in 2009 because of the This is what the National Journal are owed in this country but not paid. economic recovery package, but I re- wrote on November 7 of this year: That is the kind of thing that has to be mind people the difference the eco- The debt problem is worse than you think. stopped. nomic recovery package has made. We Simply put, even alarmists may be under- Mr. President, how much time do I have gone from private-sector job estimating the size of the (debt) problem, have remaining? losses of 749,000 jobs a month when he how quickly it will become unbearable and The PRESIDING OFFICER. The Sen- how poorly prepared our political system is 1 came in—this is January of 2009, the ator has 5 ⁄2 minutes. month he came in. Job losses had to deal with it. Mr. CONRAD. Let me talk for a mounted to 749,000 jobs a month. Look The reality we confront tomorrow minute about what Senator GREGG and at the trend. Because of the recovery morning is whether we will extend the I have proposed: a bipartisan task force package and other measures that were debt limit of the United States. We to deal with this long-term debt threat. put in place, the changes in private have no choice. If we fail to pay the Our proposal has 35 cosponsors now. nonfarm payrolls have improved dra- debts we have already accrued, the The idea is to give a group of our col- matically, from losses of over 700,000 a United States and other markets leagues and members of the adminis- month in January to losses of 18,000 around the world would collapse. That tration the responsibility to come up last month. We now believe that, in the is just the fact. We cannot permit that with a plan to reduce the deficits and first quarter of next year, those job to happen. debt. If a plan enjoyed a supermajority losses will have become job gains. How we got to this point is very clear among the group of 18 who would be The same thing happened on eco- to me. The previous administration put given the responsibility to come up nomic growth. Economic growth was forward a fiscal policy that doubled the with such a plan—if 14 of the 18 could sharply negative when President debt of the United States and put us on agree on a plan—it would have to come Obama came into office. In the last track to continue doubling it every 8 here for a vote. It would come here for quarter, we now know the economy ac- years. The current administration has a vote. Every Senator would retain tually grew at a rate of 2.2 percent. taken action to get the economy mov- their rights to vote up or down. Every That is a dramatic change. The fact is ing and growing again. Had they not Senator would retain their rights. And President Obama made things better. taken those steps, which add to the it would require 60 votes in the Senate He inherited a disaster and he went to deficit in the short term, the long-term to pass, it would require 60 percent of work to get America back on track. debt outlook would be even worse. the House to pass and the President Let’s look for a moment at the debt. That does not take away from the fact would be able to veto it if he didn’t like This is what happened under the pre- that we have to deal with the reality it. vious administration. The gross debt of that confronts us now. That reality is I think it is clear that we have a real the United States skyrocketed, more we are on a trendline that is absolutely challenge facing our country and it is than doubling under the previous ad- unsustainable. going to take some special process to ministration. So this is what the cur- To those who say if you deal with the deal with it. What we have outlined rent President inherited. He did not debt, you are going to have to do some- would put everything on the table with create it. He wasn’t the architect of it. thing about Social Security and Medi- 18 Members, 10 Democrats, 2 from the He didn’t produce these deficits and care and revenue—I say yes. That is administration, and 8 Republicans. All debt. He inherited them. true. We are going to have to do some- task force Members would need to be It is true we are still on a course for thing about all of those. To those who currently serving in Congress or the long-term debt that is unsustainable. say dealing with the debt means facing administration. If 14 of the 18 could This was the cover of Newsweek on De- up to the hard reality that confronts agree, that report would have to come cember 7, Pearl Harbor day. The News- this country and the fact that we are to the Congress for a vote. The report week cover said this: ‘‘How great pow- on a course that is unsustainable—I would be submitted after the 2010 elec- ers fall; steep debt, slow growth, and say yes. That is true. We are going to tion and there would be fast-track con- high spending kill empires—and Amer- have to make changes in the entitle- sideration in the Senate and the House. ica could be next.’’ ment programs. We are going to have There would be a final vote before the When you went inside to the story, it to make changes in the revenue sys- 111th Congress adjourned. said this: tem. To those who say that is going to This is how empires decline. It begins with When I say that, I don’t mean by that shred Social Security and Medicare—I a debt explosion. It ends with an inexorable the first thing we do is raise taxes. The say no. What threatens Social Security reduction in the resources available for the first thing we ought to do is collect the and Medicare is our doing nothing. Army, Navy, and the Air Force . . . If the taxes that are already owed but are not Both of those programs are already United States doesn’t come up soon with a credible plan to restore the Federal budget being paid because of these offshore tax cash negative. The trustees of Medicare to balance over the next 5 to 10 years, the havens and abusive tax shelters and all tell us the program will be insolvent by danger is very real that a debt crisis could the rest. We can get more revenue. We 2017 if we do nothing. The answer can lead to a major weakening of American do not need to raise taxes to get more not be to do nothing. I believe this is a power. revenue. We need to collect the rev- challenge that requires us to come to- I don’t know what could be more enue that is currently owed and we gether now, Republicans and Demo- clear than that. Here is what has hap- need to get it from the people who are crats, House, Senate, the administra- pened since 2001. Again, most of this is cheating all the rest of us by engaging tion, as we came together to deal with on the shoulders, the responsibility of in these tax schemes—offshore tax ha- fiscal crises in the past. The Social Se- the previous administration, because vens, abusive tax shelters. We even curity Commission in the 1980s, the An- the debt absolutely skyrocketed under have companies now that are leasing drews Air Force Base Summit in the their watch. But it is continuing to sewer systems, buying them from Eu- 1990s—those were special procedures to grow and we must face up to that. ropean cities in order to depreciate deal with a special challenge and that What is even more alarming is the them on the books in the United States is what is required now. We are on a longer term outlook. On the trend we to reduce their taxes here, then leasing course that is absolutely and utterly are on, the debt, which will reach over those same sewer systems back to the unsustainable. 100 percent of the gross domestic prod- European cities that built them in the Let me go back to the vote tomor- uct by 2019, is projected to hit 400 per- first place. That is happening right row, because a group of us have said we cent of gross domestic product by 2050. now. are not going to vote for any long-term That is the trendline we are on. That is If you doubt we are losing money to extension of the debt without consider- the trendline we have been on since offshore tax havens, Google ‘‘offshore ation of a special process to deal with 2001, a trendline of massively growing tax havens’’ and see how many hits you the debt, but we are also prepared to debt. The question is, can we face up to get. You get over a million. Those sites extend the debt on a short-term basis. it? Do we have the strength, do we have describe a life of luxury, living off- That is absolutely essential. That is

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13803 the responsible thing to do. A failure to moneys, from an insolvent program, that we could not pass legislation out extend the debt tomorrow would send a were used to fund a new entitlement. of this body, out of Congress, that message to markets around the globe CBO has come out this morning placed an unfunded mandate on States, that the United States is not going to clearly stating what we have been say- on cities, and caused them to have to pay its debt. The United States cannot ing for over 6 months. The fact is, tak- do things that raised expenses by laws renege on its commitment to pay the ing Medicare savings and using them to we created without sending the money $12 trillion of debt that has already create another entitlement does not themselves. been run up. Those are not future debts work. It takes away from the solvency Our Governor of Tennessee is a Dem- but debts that have already been in- of Medicare itself. It is kind of late, but ocrat. He is on the other side of the curred. Those are debts that are due I am glad CBO has actually come out aisle. We have worked closely on a now and will be due in the weeks to and said today, finally, after months of number of economic development come. debate, what we have been saying from issues. I have talked with him all the The United States has never de- day one, that you could not take Medi- way through this process. He actually faulted on its debt and it never can care savings and use them to create a had hoped to work with this adminis- without grave consequences to our new entitlement without challenging tration on health care and on health economy and to the world economy. the solvency of Medicare itself. care legislation. He has been involved Let me say again as clearly as I can: I will never understand why that in health care all of his life. He has for those who want to blame President building block, a flawed building block, managed our State well. He has dealt Obama, that won’t wash. He has been was used to create this bill. Everybody with many challenging health care in office only 11 months. He walked knows it was that use of inappropriate issues. Much has been documented into the biggest mess in over 70 years— funding that began this whole partisan about the travails our State has had as deficits and debt exploding, job losses divide. My guess is, we might have it relates to Medicaid and our desire to skyrocketing, economic growth plum- ended up with a bill that would stand try to fix that. He has called this bill, meting. President Obama didn’t create the test of time had we not utilized which appears to be ready to pass this that economic mess, he inherited it. He that basic flawed building block in the body, the mother of unfunded man- did not create the fiscal mess, he inher- bill. dates. He has talked about the more ited it. There has been one, though, that I than $750 million in cost this bill is Tomorrow will be a key vote for this have found equally problematic; that going to cause the State of Tennessee country. Those of us who are concerned is, the whole issue of creating an un- to deal with at a time when they are about the growing debt and are willing funded mandate for the State of Ten- hoping their State’s revenues will be at to take it on must also be responsible nessee and for States across the coun- 2008 levels by the year 2014. about making certain that the United try. The challenge to people’s personal Again, I will never understand why States does not default on its already integrity has been centered more we have raided an insolvent entitle- accrued debts. To do otherwise would around this issue than anything else, ment to create a new entitlement, be disastrous for this country. as various Senators trying to protect weakening Medicare. I will never un- How much time do I have remaining? their States from an unfunded mandate derstand why we have done that to cre- The PRESIDING OFFICER. The Sen- have been challenged in that regard. ate this bill. I will never understand ator has 10 seconds. Many people who serve in this body why this body chose to create such a Mr. CONRAD. Perfect. Merry Christ- used to be mayors, they used to be large unfunded mandate for States mas. Governors, people who had to deal with through the provisions we have put in I yield the floor. budgets in their own States. Years ago, place as it relates to Medicaid, telling The PRESIDING OFFICER. The Sen- in a bipartisan effort, a bill was passed States they have to raise the levels at ator from Tennessee. to ensure that we in Washington didn’t which they insure citizens across their Mr. CORKER. Mr. President, I would pass laws that increased costs for cit- State to 133 percent of federal poverty. inquire how much time is allotted to ies. I was a mayor of a city. I was com- There is no question this bill violates me? missioner of finance for a State. In the law put in place in 1995. The PRESIDING OFFICER. The mi- those capacities, there was nothing The PRESIDING OFFICER. The Sen- nority has 60 minutes. that was more offensive than for the ator has 2 minutes remaining. Mr. CORKER. I have 10 minutes. I Federal Government to pass a law and Mr. CORKER. I thank the Chair. wonder if the Presiding Officer might send down a mandate to a city or a I talked about the fact that it is a let me know when I have 2 minutes re- State that costs money and yet not privilege to serve in this body. Gen- maining. send the money that went with it. erally speaking, people try to live up to The PRESIDING OFFICER. The There was nothing more infuriating. the standards this body has set for all Chair will do so. We had to actually balance our budg- of us and that citizens across the coun- Mr. CORKER. I thank the Chair. ets. We didn’t have the ability to bor- try expect us to live up to. For that Mr. President, I have watched this row money from overseas and to con- reason, I am going to raise a budget body over the last period we have been tinue to operate in the red. point of order. There is no question, discussing health care. The body itself, Back in 1995, a law was passed called per what CBO has said, the fact that the integrity of this body has been the Unfunded Mandates Reform Act. It this bill is going to cause cities and challenged. I have watched as individ- was done to do away with the arro- States to pay more for the health in- uals have challenged each other’s in- gance that existed up until that time— surance of their employees—CBO has tegrity as it relates to this bill. I and unfortunately, continues to exist— stated that clearly. There is no ques- choose not to do that today. where the Federal Government would tion this bill is going to cause States I wish to say, as I do constantly in create laws that would increase costs to have to utilize dollars that other- my State, that I consider it a privilege on cities and States. It was passed in a wise might be used for education or to wake up each day and come to work bipartisan way. As a matter of fact, 15 public safety. in this body. Obviously, things don’t Members from the other side of the I raise a point of order. Section always go as one might expect, but I do aisle supported this law, voted for this 425(a)(2) of the Congressional Budget consider it a privilege. I thank the law, and put this law in place. Many of Act of 1974 makes it out of order to folks back home for allowing me to the people who made this bill, created consider any legislation that contains serve and to deal with these important this bill participated. The chairman of an unfunded intergovernmental man- issues. the Finance Committee voted for this date in excess of the statutory limit I don’t think I will ever quite under- law. The majority leader voted for this unless the bill provides new direct stand why this bill was put together law. The distinguished chairman of the spending authority or includes an au- the way it was. I certainly understand Budget Committee voted for this law. thorization for appropriations in an there are differences of opinion and dif- The chairman of the HELP Committee amount equal to or exceeding the di- ferences of interest, but I don’t think I who drafted a big part of this bill voted rect cost of such mandate in the Sen- will ever understand why Medicare for this law. What this law said was ate.

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13804 CONGRESSIONAL RECORD — SENATE December 23, 2009 The pending bill includes an un- CONGRESSIONAL RESEARCH SERVICE, sonal office. It consists of an administrative funded intergovernmental mandate in Washington, DC, Dec. 2, 2009. and clerical assistance allowance, a legisla- MEMORANDUM tive assistance allowance, and an official of- excess of the annual statutory limit of fice expense allowance. The funds may be $69 million within the next 5 years. To: Senate Finance Committee. Attention: Andrew McKechnie. interchanged by the Senator, subject to limi- Therefore, I raise a point of order From: Ida Brudnick, Analyst on the Con- tations on official mail. The FY2010 legisla- against the substitute amendment pur- gress, Government and Finance Division; tive branch appropriations act provided $422 suant to section 425(a)(2) of the Con- Todd B. Tatelman, Legislative Attorney, million. The Senate portion of the bill includes the gressional Budget Act of 1974. American Law Division. Subject: Potential Statutory Interpretation following additional headings: Expense Al- The PRESIDING OFFICER. The Sen- of 1312(d)(2)(D)(ii)(II) of H.R. 3590, The lowances and Representation; Salaries, Offi- ator from Montana. Patient Protection and Affordable Care cers, and Employees; Office of Legislative Act. Counsel; Office of Legal Counsel; Expense Al- Mr. BAUCUS. Mr. President, I move This memorandum responds to your re- lowances for Secretary of Senate, Sergeant to waive the point of order for consid- quest for a review and potential statutory at Arms and Doorkeeper of the Senate, and eration of the pending legislation and interpretation of 1312(d)(2)(D)(ii)(II) of H.R. Secretaries for the Majority and Minority of the Senate; and Contingent Expenses. The ask for the yeas and nays. 3590, The Patient Protection and Affordable Care Act.1 Specifically, you have asked ‘‘Contingent Expenses’’ account includes The PRESIDING OFFICER. Is there a whether the definition of the term ‘‘congres- funding for Inquiries and Investigations; Ex- sufficient second? sional staff’’ could be interpreted to exclude penses of the United States Senate Caucus committee staff, leadership staff, or other on International Narcotics Control; Sec- There appears to be. employees of the Congress. The definition retary of the Senate; Sergeant at Arms and The yeas and nays are ordered. used by the bill covers ‘‘all full-time and Doorkeeper of the Senate; Miscellaneous part-time employees employed by the offi- Items; and, Official Mail Costs. The Senator from Iowa. cial office of a Member of Congress, whether Staff in personal offices in the House of Mr. GRASSLEY. Mr. President, I ask in Washington, DC or outside of Washington, Representatives are paid through funding DC.’’ 2 In addition, you have asked CRS to re- provided for Members’ Representational Al- my friend from Montana, Senator BAU- view the language used by S. 1796, America’s lowances (MRA). The MRA, which was pre- CUS, to be alert because I want to raise Healthy Future Act of 2009, which was re- ceded by multiple allowances for each Mem- a similar request to set aside. But be- ported from the Senate Finance Committee.3 ber covering different categories of spending, fore I do that, I want to explain why I S. 1796 used the term ‘‘congressional em- was first established in 1996.6 The FY2010 leg- am doing this. I worked for 6 years to ployee,’’ which it defined as ‘‘an employee islative branch appropriations act provided whose pay is disbursed by the Secretary of $660.0 million for MRAs. pass the Congressional Accountability the Senate or the Clerk of the House of Rep- The House ‘‘Salaries and Expenses’’ ac- Act, which was signed into law by resentatives.’’ 4 Finally, you have requested count provides funding under the following President Clinton in 1995. I worked so that CRS examine what, if any, other Legis- additional headings: House Leadership Of- hard because I strongly believed there lative Branch employees might be covered fices; Committee Employees; Salaries, Offi- should only be one set of laws in this should language similar to that in S. 1796 ul- cers And Employees; And Allowances And timately be adopted. Expenses. Many of these categories include country. Based on our review of the financial prac- multiple line items. In FY2010, the ‘‘House Prior to 1995, there were two sets of tices of the Congress with respect to pay- Leadership Offices’’ heading provided fund- laws—one for Capitol Hill and one for ment of employees, the bill language, and ing for the: Office of the Speaker; Office of applicable canons of statutory construction, the Majority Floor Leader; Office of the Mi- the rest of the country because Con- it appears possible to argue that the defini- nority Floor Leader; Office of the Majority gress exempted itself. That is why, fol- tion of ‘‘congressional staff’ used by Whip; Office of the Minority Whip; Speaker’s lowing on that practice of 1995, I of- 1312(d)(2)(D)(ii)(II) excludes any staff not di- Office for Legislative Floor Activities; Re- fered an amendment during the Fi- rectly affiliated with a Member’s individual publican Steering Committee; Republican or personal office. Should this interpretation nance Committee markup to require Conference Committee; Democratic Steering be adopted by an implementing body or a and Policy Committee; Democratic Caucus; that Members of Congress and congres- court, it would appear that it would exclude Nine Minority employees; training and pro- sional staff get their employer-based professional committee staff, joint com- gram development—majority; training and health insurance through the same ex- mittee staff, some shared staff, as well as po- program development—minority; Cloakroom changes as our constituents. That is tentially those staff employed by leadership Personnel—majority; and Cloakroom Per- offices including, but not limited to, the something for which I also heard com- sonnel—minority. ‘‘Committee Employees’’ Speaker of the House, Majority Leader of the provides funding in separate headings for plaints from the grassroots of Iowa Senate, Minority Leader of the House, Mi- ‘‘Standing Committees, Special And Select,’’ during my town meetings. I did offer nority Leader of the Senate, as well as the and ‘‘Committee on Appropriations.’’ Fund- that amendment, and it was adopted Whip offices in both the House and Senate. ing for ‘‘Salaries, Officers And Employees’’ is without objection. Moreover, this interpretation would argu- divided among various financial, administra- ably exclude other congressional employees, tive, legal, ceremonial, and security offices, But then after careful consideration for example, those employed by the Office of including, for example, the offices of the and examination of the bill Senator the House Clerk, House Parliamentarian, Clerk of the House, Chief Administrative Of- House Historian, Secretary of the Senate, REID put together—and this was done fice, Sergeant at Arms, Inspector General, Senate Legal Counsel, House and Senate and General Counsel. by the Congressional Research Serv- Legislative Counsel offices. POTENTIAL STATUTORY INTERPRETATION ice—it was revealed that my amend- LEGISLATIVE BRANCH APPROPRIATIONS When interpreting the meaning of legisla- ment was changed under this closed- ACCOUNTS tive language, courts will often use methods door merger process. Something cute The legislative branch appropriations acts of statutory construction commonly referred funds the: Senate; House of Representatives; happened. Under the bill we now have to as ‘‘canons,’’ or general principles for Joint Items; 5 Capitol Police; Office of Com- before us, this requirement would not drawing inferences about language. Perhaps pliance; Congressional Budget Office; Archi- the most common ‘‘canon of construction’’ is apply to staff for committees of the tect of the Capitol, including the Capitol the plain meaning rule, which assumes that Congress or leadership offices, it would Visitor Center; Library of Congress, includ- the legislative body meant what it said when ing the Congressional Research Service; Gov- apply to Members and their personal it adopted the language in the statute. ernment Printing Office; Government Ac- staff but not leadership. That is a real Phrased another way, if the meaning of the countability Office; and Open World Leader- cute thing, to give exemptions for some statutory language is ‘‘plain,’’ the court will ship Program. people on Capitol Hill but not for oth- Both the House and Senate portions of the simply apply that meaning and end its in- 7 ers. annual legislative branch appropriations quiry. As the United States Supreme Court stated in Connecticut National Bank v. Ger- I ask unanimous consent to have bills contain one line item that provides for salaries and expenses within Member offices. main: printed in the RECORD an analysis from The House and Senate sections contain addi- [I]n interpreting a statute a court should the Congressional Research Service. tional line items for employees of leadership always turn first to one, cardinal canon be- offices, committees, and officers. fore all others. We have stated time and There being no objection, the mate- In the Senate, the Senators’ Official Per- again that courts must presume that a legis- rial was ordered to be printed in the sonnel and Office Expense Account provides lature says in a statute what it means and RECORD, as follows: each Senator with funds to administer a per- means in a statute what it says there ....

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13805 When the words of a statute are unambig- through the appropriations, ‘‘Senators’ Offi- and Secretary also have disbursing authority uous, then, this first canon is also the last: cial Personnel and Office Expense Account’’ for a number of House and Senate revolving judicial inquiry is complete.8 (Senators’ personal staff), and ‘‘Salaries, Of- funds.14 Thus, it appears possible to argue Applying the plain meaning canon to the ficers, and Employees’’. that, should the language of H.R. 3590 be in- language in H.R. 3590, it appears possible to The House Member’s Handbook, as com- terpreted as suggested above, these employ- argue that the phrase ‘‘official office of a piled by the Committee on House Adminis- ees would be excluded from coverage. Con- Member of Congress’’ most naturally refers tration, states the following about shared versely, should the language from S. 1793 be to Member’s personal offices and, therefore, employees: 11 utilized, it would appear that employees of excludes other employees that a Member The term shared employee means an em- these committees would be covered as they may utilize for other purposes. For example, ployee who is paid by more than one employ- are paid by the CAO or Secretary of the Sen- Members who serve as committee chairman ing authority of the House of Representa- ate. Finally, there is the issue of what, if any, or ranking members may have staff affili- tives. ated with their service on a given com- other entities or employees of the Legisla- Two or more employing authorities of the tive Branch the CAO and/or Secretary of the mittee. While the Member may have control House may employ an individual. over hiring, promotion, and even termi- Senate may serve as the disbursing officers. nation, those staff are paid by the committee Such shared employees must work out of Our research indicates that although the and not the Member. Moreover, the Mem- the office of an employing authority, but are CAO and Secretary of the Senate served as ber’s position on the committee is not com- not required to work in the office of each the disbursing officers for the U.S. Capitol monly considered their ‘‘official office,’’ as employing authority. The pay from each em- Police (USCP) prior to 2003, the Chief of the committee assignments may change during a ploying authority shall reflect the duties ac- Capitol Police currently serves as the dis- Congress and are determined by the chamber tually performed for each employing author- bursing officer for the USCP.15 Moreover, it caucuses. Furthermore, it is worth noting ity. The name, title, and pay of such an indi- appears that other Legislative Branch agen- that CRS has been unable to locate any pre- vidual will appear on each employing cies such as the Architect of the Capitol and vious use of the phrase ‘‘official office of a authority’s Payroll Certification. Such em- the Congressional Budget Office each have Member of Congress’’ in statute or appro- ployees may not receive pay totaling more their own disbursing agents and do not use priations laws. than the highest rate of basic pay in the either the CAO or the Secretary of the Sen- Alternatively, applying the plain meaning Speaker’s Pay Order applicable to the posi- ate. In addition, it appears that the CAO and/ canon to the language used in S. 1796, it ap- tions they occupy. or Secretary of the Senate may serve as the pears possible to argue that this language in- Employees may not be shared between a disbursing agent for some, but not all, concludes committee staff, leadership staff and Member or Committee office and the office gressional commissions. Thus, some employ- most other congressional employees. The of an Officer of the House if the employee, in ees of such commissions may be covered by language, unlike that in H.R. 3590, turns on the course of duties for an Officer, has access the language used in S. 1793, however, none who the disbursing agent of the funds is, to the financial information, payroll infor- would appear to be covered by the language rather than who the employer is. As a result, mation, equipment account information, or used in H.R. 3590. the language in S. 1796 appears to be much information systems of either Member, Com- ENDNOTES broader, as most ‘‘congressional employees’’ mittee, or Leadership offices. 1 Patient Protection and Affordable Care have their pay disbursed from either the Sec- Applying the interpretation of H.R. 3590 Act, H.R. 3590, § 1312(d)(2)(D)(ii)(II), 111th retary of the Senate or the Chief Adminis- suggested above, it is possible that certain Cong. (2009). trative Office (CAO) of the House, regardless shared staff could be covered by the provi- 2 See id. 3 of whether they are employed in a Member’s sion, while other shared staff, even in the America’s Healthy Future Act of 2009, S. personal office, by a committee, leadership same office, would not be covered. 1796, § 2231(3)(C), 111th Cong. (2009). 4 official, or in another capacity by the Con- Because the bill does not propose a stand- Id. 5 In the FY2010 legislative branch appro- gress. Moreover, unlike the language in H.R. ard for determining coverage, it is poten- priations act, these included the: Joint Eco- 3590, similar text to that in S. 1796 has been tially left to the implementing authority to nomic Committee, Joint Committee on Tax- used previously to categorize congressional establish such a standard. The implementing ation, Office of the Attending Physician, Of- staff for salary and benefits purposes.9 authority would appear to arguably have fice of Congressional Accessibility Services. OTHER POTENTIAL ISSUES wide discretion in setting such a standard. 6 Committee Order No. 41, effective Sep- The language in H.R. 3590 raises additional As a result, it is not unreasonable to assume tember 1, 1995, in notes to 2 U.S.C. § 57; P.L. possible concerns in light of the way that the that an implementing authority could use a 104–53, 109 Stat. 519 (Nov. 19, 1995); U.S. Con- House and Senate conduct business. For ex- majority time or similar standard in making gress, House Committee on Appropriations, ample, one potential issue with proposing coverage determinations. In other words, Legislative Branch Appropriations Bill, 1996, different standards for employees in Member shared employees would need to declare report to accompany H.R. 1854, 104th Cong., office accounts and employees paid through whom they spent a majority of time working 1st sess., H. Rept. 104–141 (Washington: GPO, other House and Senate accounts arises from for. If the staffer’s declaration was the Mem- 1995), p. 10; P.L. 104–186, 110 Stat. 1719 (Aug. the use of shared staff. Although the House ber’s official office, they could arguably be 20, 1996); 2 U.S.C. § 57b; P.L. 106–57, 113 Stat. and Senate have different rules regarding covered. On the other hand, if the majority 415 (Sept. 29, 1999). shared staff, both chambers allow types of of a staffer’s time was spent on committee or 7 See Hartford Underwriters Insurance Co. shared staffing arrangements that could re- leadership work, they may arguably not be v. Union Planters Bank, N.A., 530 U.S. 1 sult in an employee being both on the pay- covered. It is important to note that this is (2000); see also Robinson v. Shell Oil Co., 519 roll of a Member office and another type of but one possible standard and that unless U.S. 337 (1997); Connecticut National Bank v. office. otherwise stated in the bill, it will up to the Germain, 503 U.S. 249 (1992); Mallard v. In the Senate, 2 U.S.C. 61–la authorizes implementing authority to determine the United States District Court for the South- limited sharing of staff: standard. ern District of Iowa, 490 U.S. 296, 300 (1989). The language of S. 1793 arguably avoids 8 Notwithstanding any other provision of Connecticut National Bank, 503 U.S. at this problem as it appears to encompass all law, appropriated funds are available for 253–54 (citations and quotation marks omit- shared employees because they all receive payment to an individual of pay from more ted). salaries through either the CAO or Secretary 9 than one position, each of which is either in See, e.g., 2 U.S.C. § 60a–1 (2006); 2 U.S.C. of the Senate. the office of a Senator and the pay of which § 60j (2006); 2 U.S.C. § 130b (2006); 2 U.S.C. § 1301 Another potential issue is the scope of the is disbursed by the Secretary of the Senate (2006); 2 U.S.C. § 1977 (2006); 5 U.S.C. § 5306 disbursing authority of the CAO of the House or is in another office and the pay of which (2006); 5 U.S.C. § 5515 (2006); 18 U.S.C. § 207 and the Secretary of the Senate. The CAO is disbursed by the Secretary of the Senate (2006). has served as the disbursing officer for the 10 U.S. Senate, Committee on Rules and Ad- out of an appropriation under the heading House of Representatives since 1995. The Sec- ministration, Senate Handbook, version of ‘‘Salaries, Officers, and Employees’’, if the retary of the Senate serves as the disbursing Nov. 2006, 1V–31. aggregate gross pay from those positions officer for the Senate. Both of these officers 11 U.S. House of Representatives, Member’s does not exceed the maximum rate specified are required to publish reports on disburse- Handbook, available at, http://cha.house.gov/ in section 61–1(d)(2) of this title. ment.12 Pursuant to the FY2010 legislative staff.aspx. The Senate Handbook summarizes these branch appropriations act, the Secretary and 12 2 U.S.C. §§ 104a and 104b. laws, stating:10 CAO are each responsible for the disburse- 13 P.L. 111–68, 123 Stat. 2030, Oct. 1, 2009. 14 An employee may be on the payroll of ments for two accounts included as ‘‘joint For additional information, see: CRS Re- more than one Senator’s office or on the pay- items.’’ Additional disbursements by the port R40939, Legislative Branch Revolving roll of a Senator’s office and a leadership or Secretary include salaries and expenses of Funds, by Ida A. Brudnick and Jacob R. administrative office, providing the aggre- the Joint Economic Committee and Office of Straus. 15 gate pay received does not exceed the max- Congressional Accessibility Services.13 The P.L. 108–7, Feb. 20, 2003, 117 Stat. 366; 2 imum annual salary for a Senator’s office (2 CAO serves as the disbursing officer for the U.S.C. 1907. U.S.C. 61–1a). An employee can only be Joint Committee on Taxation and the Office Mr. GRASSLEY. This carve-out cre- shared between offices which are funded of Attending Physician. In addition, the CAO ates a double standard and is totally

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00011 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13806 CONGRESSIONAL RECORD — SENATE December 23, 2009 unacceptable. This amendment goes Government, and there are 1,697 delega- the other side. But, as one who knows beyond just going where my original tions of authority to the Secretary of a system of the universal coverage our amendment went to cover all people on HHS to do things beyond authorities friends on the other side seek, he is Capitol Hill. The amendment I am ask- specifically given in this legislation. sober about the consequences. ing consent for would also include the The excesses of this bill appear will- I ask unanimous consent that a copy President, Vice President, political ap- fully ignorant of what is going on in of Mr. Crook’s article entitled ‘‘The pointees, and senior-level staff of the the rest of the economy outside of Honest Case for a Bungled Health Care executive branch. It is only fair that if health care. These excesses make it far Reform,’’ be printed in the RECORD. this bill becomes law, these leaders worse than doing nothing. There being no objection, the mate- should themselves be subject to the re- At this point in our Nation’s history, rial was ordered to be printed in the forms that make our constituents go we are facing very challenging eco- RECORD, as follows: through the exchange. nomic times. We have seen the auto in- [From the Financial Times, Dec. 20, 2009] I ask unanimous consent to set aside dustry go into bankruptcy. We have THE HONEST CASE FOR A BUNGLED the pending amendment in order to seen banks shutter their doors. The HEALTHCARE REFORM offer amendment No. 3178 which is at chart behind me shows how the Federal (By Clive Crook) the desk. debt has increased by $1.4 trillion since The US system of government has a lot in The PRESIDING OFFICER. Is there inauguration. The chart also shows the its favour, in my view, but if you wanted to objection? growing amount of debt the Federal argue the opposite, the fiasco of healthcare Mr. BAUCUS. I object. Government is taking on. The amount reform has it all. The measure being fought over in the Sen- The PRESIDING OFFICER. Objec- of increased debt added just since inauguration puts $11,000 more of debt on ate—if a bill gets passed, ordeal by House- tion is heard. Senate conference comes next—is detested Mr. GRASSLEY. Mr. President, each household, and that total debt with equal passion by left and right. A ma- Democratic leadership and the White now exceeds $12 trillion for the first jority of the public is now opposed as well. House have spent months talking time in history. Even its supporters do not like it all that about accountability. With this objec- At the beginning of this debate, one much. Yet if the system fails to spit this tion, the majority will not even con- of the key promises of health care re- thing up for the president’s signature, the sider an amendment to make sure the form was that it would bring down country will be deemed ungovernable and the White House and all Members em- health care costs. This needs to be done Obama administration will be pronounced dead. Expect the rending of garments either ployed on Capitol Hill, not just those before health spending sinks the Fed- eral budget and saddles taxpayers. I way. in our personal offices, live under the It does not matter that conservatives op- same new health care system the rest have a chart that illustrates the up- pose this reform. Of course they do. Conserv- of the country lives under. That sure ward expenditures of health care costs atives are unmoved by the plight of the unin- doesn’t sound like accountability to by $160 billion over the next decade, sured, want to block this administration’s me. and that comes from this bill. The red domestic initiatives regardless, and are in- There is widespread agreement that area on this chart is the net additional capable of uniting behind an alternative pro- the health care system in this country Federal health spending according to posal. They have nothing to offer on the not this Senator but the Congressional issue. has serious problems. Costs are rising It does not matter that the loony left of at three times the rate of inflation. Budget Office. Americans have rightly lost faith the Democratic party opposes this reform ei- Many Americans are uninsured. Mil- ther. In fact, that is a plus. Progressives who lions more fear losing their insurance when, in the face of the current eco- want to kill the most far-reaching US social in a weak economy or because of pre- nomic crisis, Congress thinks this $2.5 reform in decades because it would send existing conditions. Doctors are ready trillion restructuring of the health more customers, public subsidy in hand, to care system is a good idea. From ra- private insurance companies are as stone- to close their doors over high mal- tioning care to infringing on the doc- hearted on this matter—and as far from un- practice costs and lower government tor-patient relationship, this govern- derstanding the concerns of most voters—as reimbursements, and we do not do any- ment-run system will guarantee U.S. their hard-right enemies. Their opposition is thing in this bill about high mal- taxpayers a staggering tax burden for an endorsement. practice costs. What matters is the failure to rally the generations to come. Something has to be done, everyone country behind an initiative that, at the out- When the debate began last year, in- seems to agree. But tomorrow the Sen- set, voters strongly supported. A telling interested legislators of both parties set stance of the administration’s ineffective- ate will vote on a bill that makes a bad forth benchmarks that were at the situation worse. It is unfortunate that ness as a spokesman for its own project came time no-brainers and still are. But this just last week. Howard Dean, speaking for we are voting on a bill that a signifi- bill does not conform. Health care re- the progressive wing of the Democratic cant majority—61 percent—of Ameri- form should lower the cost of pre- party, said the reform would do more harm cans oppose. The American people, pro- miums. It should reduce the deficit. than good—that this was the policy the in- viders, advocacy groups as well, are Now, this bill does over the 10-year surance companies had dreamed of. White simply reacting to the fact that this House spokesmen rushed to explain that, on window, but if you look at when the the contrary, the insurance companies hate bill slid rapidly down the slippery slope program really starts, 4 years from to more and more government control the bill. now, and look ahead 10 years at that Think about that. At the beginning Barack of health care. time, you will find it does not. It Obama promised people that if they liked It contains the biggest expansion of should bend the cost curve of health their existing insurance arrangements— Medicaid since 1965. It creates a long- care the right way, but it does not do which are mostly private, of course—nothing term care insurance program called the that. The Reid bill does not do any of would change. This entire effort is based on CLASS Act that the CMS Actuary says these things we set out to do at the be- preserving, by popular demand, a mostly private model of insurance. And here is the ad- runs a significant risk of being ginning of the debate. unsustainable, and one of the most sig- ministration endorsing the progressives’ As we end this debate, I urge my col- view that private insurers are evil, and cit- nificant Members of this body referred leagues to listen to the American peo- to it as a Ponzi scheme similar to what ing the companies’ opposition to the reform ple. The Reid bill is the wrong direc- as an argument in its favour. Madoff did. It imposes an unprece- tion. The White House cannot have it both ways. dented Federal mandate for coverage Mr. President, with widespread If progressives are right about the wicked- backed by the enforcement authority agreement that our health care system ness of private insurance, they are right that of the Internal Revenue Service. It in- has serious problems, why do we have a the whole reform is misconceived. The ad- creases the size of government by $2.5 partisan debate? ministration cannot appease leftist opinion trillion when fully implemented. It cre- There is a column from the Financial and also make the strongest possible case for ates dozens of new Federal bureauc- this reform to the middle of the electorate. Times by a commentator, Clive Crook, Since it cannot appease leftist opinion in racies and programs to increase the that sheds some light on the cause of any case, why even try? Make a virtue of op- scope of the Federal role in health the partisanship. position from that quarter. Mr Obama’s re- care. That is a lot of power over peo- Mr. Crook, a Brit, is sympathetic to luctance to cross that line has hobbled his ple’s lives concentrated in the Federal the goals and methods of my friends on administration from the start.

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13807 Be that as it may, the healthcare bill in its It is unfortunate that we are voting And yet, despite these cold hard current form is a mess—and an unpopular on a bill that a significant majority—61 facts, our Democratic friends continue mess to boot. Popular fears that the bill will percent—of Americans oppose. to quest for the Holy Grail of expanded drive up insurance premiums and add to pub- The American people, providers, and coverage. Mr. Cook captures that senti- lic borrowing are probably justified. The measure is timid about changing incentives advocacy groups are simply reacting to ment: to promote efficiency: it proposes lots of ex- the fact that this bill slid rapidly down In the end, I think, everything depends on periments, but little compulsion. the slippery slope to more and more the weight one attaches to achieving secu- Adverse selection is likely to be a bigger government control of health care. rity of coverage as quickly as possible. In my problem than the reformers say: new rules Mr. Crook states: view, this is the overriding consideration. would stop insurance companies denying Popular fears that the bill will drive up in- Abandoning the effort now might postpone coverage to the sick, and the quid pro quo of surance premiums and add to public bor- that goal for another decade or more. The mandatory insurance may be insufficient to rowing are probably justified. The measure is country should regard this as unacceptable. offset this. If the insurers’ risk pools deterio- timid about changing incentives to promote Does anyone doubt this is where our rate, premiums will rise. Deep cuts in Medi- efficiency: it proposes lots of experiments, Members on the other side are coming care, the public insurance programme for the but little compulsion. from? Some are explicit about it, like elderly, are needed to balance the books, but All through this process, it is as if my friend, the majority whip. I recog- are unlikely to materialise in full. Higher Republicans and Democrats have been nize that transparency. But to them taxes as well as higher premiums are the likely result of this reform. living in parallel universes. Repub- the price—for everyone else, the in- Would it therefore be better to abandon licans have focused on the elements of sured, businesses, Federal and State the effort altogether and start again? One the policy and asked tough questions taxpayers, and Medicare patients—is can think of simpler, better blueprints, but about the cost of the change. secondary. the politics that led the country here would Mr. Clive captures that sobering re- Go back and look at the many pages still be the same—and so would the economic ality: in the RECORD and you will see two constraints. It is delusional to suppose that Adverse selection is likely to be a bigger themes prove my point. One is the you can significantly widen access to problem than reformers say: new rules would Democratic theme. Most of the debate healthcare at no net public cost. You cannot stop insurance companies denying coverage from those on the other side has been both transform a system and leave its basic to the sick, and the quid pro quo of manda- about what they want this bill to do. structure unaltered. Trying to squirm tory insurance may be insufficient to offset around these unavoidable realities has They want it to expand the role of the this. If the insurers’ risk pools deteriorate, Federal Government in health care. brought the effort to its current pass. Why premiums will rise. . . . Higher taxes as well expect things to be different next time? as higher premiums are the likely result of Hence, the prideful references to past In the end, I think, everything depends on this reform. efforts, successful and unsuccessful, in the weight one attaches to achieving secu- that regard. They want it to solve all rity of coverage as quickly as possible. In my Members on this side of the aisle, at each stage of the process, have focused problems the uninsured face. They review, this is the overriding consideration. cite case after case of uninsured and Abandoning the effort now might postpone on this reality. While recognizing the that goal for another decade or more. The worthy goal of expanding coverage, we underinsured. The stories they tell are country should regard this as unacceptable. have been concerned about the effect compelling. On our side, we see the Once the reform is law, though, the real on the currently insured. point the other side is making. work begins. Getting a grip on costs will be This bill contains the biggest expan- Go look at all those pages of debate even more urgent than it is already—espe- sion of Medicaid since it was created in again. You will see another theme. It is cially when you recall the broader fiscal ca- 1965. the Republican theme. That theme is lamity that awaits the country during the not about what we want the bill to do next decade. It cuts Medicare by a staggering half a trillion dollars over the next decade. for the uninsured. It is about under- The honest case for reform along the lines standing and explaining what the costs of the Senate bill is not that it fixes US It creates a long-term care insurance healthcare; still less that, as the White program called the CLASS Act that and benefits of this bill are to all House blithely maintains, it alleviates the the CMS Actuary says runs a signifi- Americans: Insured and uninsured, country’s fiscal distress. The truth is, it will cant risk of being unsustainable. young, middle-aged, and elderly, subur- create more problems than it solves. But the It imposes an unprecedented Federal ban, and rural. In this regard, Repub- one big thing it gets right—the assurance of mandate for coverage backed by the licans reflect where the vast majority affordable health insurance for all Ameri- enforcement authority of the Internal of Americans are right now. cans—is of surpassing importance. Revenue Service. Mr. Crook, again, firmly where our Enacting this reform is not the end of the It increases the size of the govern- friends on the other side are, captures healthcare argument, but the beginning. If it the polarity of the debate: does pass, it may well be looked back on as ment by $2.5 trillion when fully imple- a mistake once its financial implications mented. Once the reform is law . . . the real work sink in. Yet the principle of universal cov- It creates dozens of new Federal bu- begins. Getting a grip on costs will be even erage will have been accepted, and with luck reaucracies and programs to increase more urgent than it is already—especially there will be no going back. The price will be the scope of the Federal role in health when you recall the broader fiscal calamity high, but is worth it. that awaits the country during the next dec- care. ade. That is a lot of power over people’s Mr. GRASSLEY. I am going to try Mr. Crook is correct. At this point in lives concentrated in the Federal Gov- and break through the partisan wall our Nation’s history, we are a Nation ernment. and connect with my friends on the facing very challenging economic And the excesses of this bill appear other side. times. We have seen the auto industry willfully ignorant of what is going on Costs are rising at three times the go into bankruptcy. We have seen in the rest of the economy outside of rate of inflation. banks shutter their doors. health care. Many Americans are uninsured, mil- The Federal debt has increased by The cost of these excesses make this lions more fear losing their insurance $1.4 trillion since inauguration. This in a weak economy or because of pre- bill far worse than doing nothing. This summer, official scorekeepers chart shows the growing amount of existing conditions. debt that the Federal Government is Doctors are ready to close their doors fleshed out the size of this cost of achieving the other side’s noble, but taking on. Just the amount of in- over high malpractice costs and low creased debt added just since the inau- government reimbursement rates. costly goal of expanded coverage. As on who agrees with the goal of universal guration is $11,535 per household. Something has to be done. Everyone It now exceeds $12 trillion for the coverage, Mr. Crook acknowledges it: agrees on that much. first time in history. But tomorrow, the Senate will vote It is delusional to suppose that you can In these perilous times, Mr. Crook on a bill that makes a bad situation significantly widen access to healthcare at notes the public is extremely sensitive no net public cost. You cannot both trans- worse. Mr. Crook describes the state of form a system and leave its basic structure to the fiscal consequences of the bill play well: unaltered. Trying to squirm around these before the Senate. And that is where [t]he health care bill in its current state is unavoidable realities has brought the effort Republicans have focused all along. Mr. a mess—and an unpopular mess to boot. to its current pass. Crook describes the tension between

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On one side of that it trump the tax burden it brings with vent, not to make Medicare stronger so tension are the answers to Republican higher Federal and State taxes? it does not have a huge unfunded liabil- inquiries: Does it trump the financial burden it ity, it is being spent to create this The honest case for reform along the lines places on small businesses and other brandnew entitlement—an entitlement of the Senate bill is not that it fixes U.S. employers? Does it trump the financial that is massively going to expand the healthcare; still less that, as the White burden related premium cost increases size of government by $2.3 trillion. House blithely maintains, it alleviates the will bring? Does it trump the negative The American people understand this country’s fiscal distress. The truth is, it will impact it will have on the Medicare does not work. Common sense kicks in create more problems than it solves. Program that our seniors count on? with the American people. They On the other side of that tension is For those of us, on this side, expand- know—they know—from common sense the goal Democratic Members seek. ing coverage is a worthy goal. But it is that you cannot possibly cut Medicare Their goal of trying to achieve ‘‘uni- not an absolute goal. We prefer to ex- by $3 trillion, spend it on a new entitle- versal coverage’’ overrides all other pand coverage through better access ment, and have fiscal responsibility considerations. As Crook puts it ‘‘of and affordability. But that goal of ex- around here and claim Medicare is bet- surpassing importance.’’ panded coverage must be balanced with ter off for it. And they do not have to And, if the other side prevails, what other goals. know it through common sense; all does it mean for the future. From Mr. We view it as relative to those other they have to do now is listen to the Crook, who shares my Democratic goals. It is relative to whether the re- CBO, which has now written us a let- friends’ goals, I quote: lated Federal and State tax burden is ter. Let me quote from this letter be- Enacting this reform is not the end of the bearable. It is relative to realistic cost cause it is a devastating letter. I just healthcare argument, but the beginning. If it containment reforms. It is relative to wish this bill was going to be on the does pass, it may well be looked back on as whether the cost burden on employers, floor long enough for it to actually be a mistake once its financial implications especially small businesses, is bear- sink in. Yet the principle of universal cov- open to public view and have some sun- erage will have been accepted, and with luck able. It is relative to whether the im- shine on it. It is being rushed through there will be no going back, The price will be pact on Medicare services and solvency here just before Christmas so nobody high, but is it worth it? is bearable. can see what is actually in it. But here What is that price, Mr. President? To The American people have tuned into is what CBO says: a certain extent, what we do know is this debate. They don’t like the par- The key point is that the savings to the HI that it is high for everyone, but the un- tisanship. They agree with all of us trust fund— insured population. To the extent we that reform is needed. They have been That is the Medicare trust fund— telling us that expanding coverage is don’t and cannot know, it is likely to under the [bill]— important, but not absolute. be higher. They use the acronym for it— From rationing care to infringing on I urge the other side to make the honest case for reform to the American would be received by the government only the doctor-patient relationship, this once, so they cannot be set aside to pay for government-run system will guarantee people. That will lead to a bipartisan response, process, and product. Ameri- future Medicare spending and, at the same U.S. taxpayers a staggering tax burden time, pay for current spending on other parts for generations to come. cans don’t want bungled health care re- of the legislation or on other programs. When the debate began last year, in- form. I yield the floor. Exactly what this bill does: It spends terested legislators of both parties set the Medicare money on other pro- forth benchmarks that were no- The PRESIDING OFFICER. The Sen- ator from New Hampshire. grams. brainers. Health care reform should They go on to say—and this is CBO lower the cost of premiums. It should Mr. GREGG. Mr. President, I want to associate myself with the comments of speaking, not me: reduce the deficit. It should bend the To describe the full amount of the [Medi- growth curve in health care the right the Senator from Iowa. In fact, I would like to incorporate them by reference care] trust fund— way. Again, they use ‘‘HI trust fund’’— How does the Reid bill measure up? in my comments because they were so CBO tells us premiums rise. on point on the issue of substance as to savings as both improving the government’s ability to pay future Medicare benefits and What about health spending? As this what this bill does not do and what it does do. In both instances, he is abso- financing new spending outside of Medicare chart here illustrates, this bill bends would essentially double-count— the Federal spending curve further up- lutely right. The bill does not accom- I repeat: ‘‘double count’’— ward by $160 billion over the next dec- plish what we set out to do, which was ade. The red area on this chart is that cover all Americans, which was to bend a large share of those savings and thus over- health care costs down, which was to state the improvement in the government’s net additional Federal health spending fiscal position. according to the Congressional Budget let you keep your insurance if you had Office. it and not have your premiums go up. The simple fact is, what is happening How about deficit reduction? Ameri- It does just the opposite. here is a scam, a pure and simple scam cans have rightly lost faith when in the It is a $2.3 trillion increase in health on the American people and especially face of the current economic crisis, care spending—$2.3 trillion. That is on the seniors in this country because Congress thinks this $2.5 trillion re- how much it grows the government. Medicare is being cut by billions of dol- structuring of the health care system Health care costs go up by over $230 lars in order to create a new entitle- is a good idea. billion in the first 10 years. We know ment, and it is going to have a mas- The Reid bill doesn’t measure up on premiums are going up. sively negative effect on the fiscal any of those things. Now we have this interesting issue health of this Nation because we know The unfortunate state of this par- involving Medicare. We have heard a that new entitlement will not be fully tisan floor debate goes to the tension lot of talk from the other side of the funded and we know Medicare has $35 Mr. Crook identified: aisle about how Medicare is not being trillion of unfunded liability out there. I was raised by FDR Democrats. From a cut, and if it is being cut, it is just If you are going to cut Medicare by $3 lifetime of public service, I know a little bit being used to help a new entitlement, trillion, as the other side of the aisle is about my Democratic friends’ political DNA. and therefore it should be counted as proposing, if you are going to eliminate A big part of that political DNA is one prin- part of the basic effort to bring fiscal Medicare Advantage for a large number ciple. It is this. Expanding health insurance responsibility to this bill. Well, that is of seniors—except those who live in trumps everything else. hokum, just pure unadulterated southern Florida—then that money I respect and understand that view. hokum. Medicare is being cut by $500 ought to be used to reduce the debt so Where we, on our side, differ, is billion the next 10 years, $1 trillion that the Medicare system becomes whether it is an absolute or relative over the first 10 years of full implemen- more solvent. It is that simple in the

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13809 long run. It is not being done here. CBO is closer to the single-party state sys- know Presidents campaign for office has pulled the curtain back from this tem we see in Europe—or have seen in saying they are going to change Wash- game and made it very clear that it is Europe. The minority is ignored, and ington, but the truth is the hardest not going to be done. Of course, nobody there are no checks in this process on fight is to keep Washington from is going to learn this because they are the autocratic rule of the majority. changing you. Unfortunately, it seems going to pass this bill through here be- The irony, of course, is that the bill as though that is what has happened fore anybody can figure that out and never went through the public’s consid- here. even listen to CBO. eration, never went through com- Rather than listening to the Amer- It is just an outrage the way this bill mittee, and was drafted behind closed ican people, the creators of this health was put together. We all know that. doors and has been on the floor for less care bill started with the special inter- Dark of night, back rooms, deals every- than 72 hours. As a result, we are deliv- ests first. That is where the meetings where, only a few people in the room; ered a health care bill that has been behind closed doors started—with the those people who really drafted the corrupted by special interests, espe- pharmaceutical industry, to cut a deal bill, very small crowd. Nobody else was cially on the issue of policy, that is ex- with them; with the insurance indus- allowed in. No cameras, no information traordinarily expensive and has a mas- try, to cut a deal with them. The insur- about what was going on. And then you sive expansion in the Federal bureauc- ance industry will get $476 billion would bring in a Senator here and a racy, to which, if you applied the word worth of tax credits from this bill Senator there and say: What do you ‘‘reform,’’ you would have to call Ber- alone, and the hospital industry, and need from me to get your vote, and nie Madoff ‘‘honest.’’ The terms just the list goes on and on. something would appear in the bill, I simply do not apply here. Colleagues will stand up and tout the guess. Then the bill arrived here. Unfortunately, this bill in its present endorsement of organizations such as form, I believe, will lead to funda- It is not unusual around here to have AARP that has backed nearly $1⁄2 tril- earmarks in bills. If they were within mental harm to the fiscal health of lion in cuts out of Medicare because, as this Nation. There is no question in my the budget and the budget was reason- it turns out, they are in the insurance mind but that if we load $2.3 trillion of able, I would even ask for earmarks. business and they can sell more cost onto our government, expand our But this goes way beyond the concept Medigap policies when they cut Medi- government in this manner, our chil- of earmarks—this bill. This bill fun- care Advantage, as this bill does. dren are going to be passed a nation damentally changes policy—that has In order to get the 60 votes for clo- where they have less opportunity than never happened around here—for one ture on the motion to proceed, we part of the country versus another part our generation had. Further, I do not think it is going to help the Nation’s didn’t hear high-minded and idealistic of the country. In other words, all of debates about what is the right policy America—all American seniors—will people, our people relative to their health care. I think it will lead to a for this country when it comes to re- have to live by massive cuts in Medi- forming our health care system. If this care Advantage. That is a pretty good significant contraction of the quality of health care, especially for seniors bill could have passed or mustered 60 health insurance program for a lot of but for all Americans, as we lose the votes because it was such great policy seniors; I think there are 11 million innovation, the energy for innovation, and the American people were embrac- seniors on that program. All of Amer- and the resources for innovation. As a ing it, you wouldn’t need to make all ica has to live by that policy except for result, this bill, in my opinion, should the sweetheart deals that were made three counties in southern Florida. All be sent back to the drawing boards and behind closed doors to induce recal- of America has to live by an insurance should be reconsidered. citrant Senators to vote for cloture, situation where insurance companies Mr. President, I yield the floor. not because they think it is the right are taxed at a certain rate, except in- The PRESIDING OFFICER (Mr. policy but because their State got a surance companies in Nebraska. All of KAUFMAN). The Senator from Texas. special deal. America has to live by Medicaid reim- Mr. CORNYN. Mr. President, over the We know well about what happened bursement rates, which are going to last few days, as we have dug into this in Louisiana and now in Nebraska, but cost the States billions of dollars—New bill and the process by which it was of course there were special deals for Hampshire, $120 million over 10 years— written behind closed doors, we have Vermont that included $600 million in except for Vermont and Massachusetts. discovered the bill is chock-full of the managers’ package. We know that And then there is a special exemption sweetheart deals. in California, the so-called ‘‘Botax’’ has in here for New York and a couple of When Americans voted to change been replaced now by another tax on other States—Louisiana, $300 million. Washington last year, they did not tanning beds at the insistence of one of That is a total corruption of the con- think it would be politics as usual the businesses named Allergan out in cept of policy. Policy in America is here, but unfortunately it has sunk to California which led the lobbying cam- supposed to cover everyone. When the a whole new level. It is painful for me paign to defeat the cosmetic surgery Federal Government acts, it is sup- to read the editorials in hometown tax. posed to be a policy that affects every- newspapers back in Texas and else- We have heard this is all about keep- one equally. You are not supposed to where around the country to see what ing insurance companies honest, but have little cadres of exceptions for editorial opinion and other opinion the fact is there were special deals here those policies. leaders are saying about the process by for insurance companies in Nebraska— This bill has been called historic— which this bill was written, but let me what has been coined the ‘‘Omaha historic—by my colleagues on the read a couple of lines from the Fort Prime Cuts,’’ the carve-out from new other side of the aisle. Well, the most Worth Star-Telegram: fees for Mutual of Omaha and other in- historic thing about this bill is the fun- The tawdry use of earmarks to bury the surance companies doing business in damental damage it has done to the doubts of recalcitrant moderate Democrats Nebraska that no other insurance com- concept of open, thorough, and public was a cynical display of ends-justifies-the- pany in the Nation is going to benefit debate that was at the heart of the means horse-trading that President Barack Obama campaigned against as a Senator and from. thought process of Adams and Madison, a candidate. Then there is the so-called ‘‘Gator our Founding Fathers, when they cre- This was an administration that was elect- Aid’’ special deal for insurance compa- ated the checks and balances system, ed on the campaign slogan: ‘‘Change You Can nies in Florida. with the Senate at the center. The Sen- Believe In.’’ There is a $100 million hospital deal ate was supposed to be the place where But when David Axelrod, one of the in Connecticut—something called ‘‘U bills come to the floor, they are open masterminds of the campaign, one of Con.’’ to debate, there are amendments, and the advisers to the President, was And, of course, there were deals for you have a process where things get asked about that, he said: Montana that were slipped in the bill. aired and there is sunshine. No sun- Well, this is just the way it is. This is the Although, you know what, no one actu- shine here—no, not at all. This is not way Washington works. ally had the courage to mention the majority rule, as conceived by our I, for one, want to stand up and say name of the State. You had to start to Founding Fathers in Philadelphia. This this is not the way it should work. I dig into it, like the Louisiana deal. At

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13810 CONGRESSIONAL RECORD — SENATE December 23, 2009 least the Senator from Nebraska was Rules, and we found that the majority The Senator from Missouri is recog- brazen enough to actually have Ne- leader has so far not complied with nized. braska listed by name. The rest of these public disclosure rules that he Mr. BOND. Mr. President, last week I them you have to dig out by trying to himself championed. Since my friends had a little fun with an old holiday figure out: Who benefits from this deal on the other side of the aisle don’t classic: Clemente Clark Moore’s ‘‘The and who doesn’t? seem to care a lot about this, we have Night Before Christmas’’ which you I want to ask: What about the other to insist that this provision be com- can still find on YouTube, by the way. States? My State, under this unfunded plied with. In a moment I will raise a While I meant this parody to bring mandate in this legislation, will have point of order about this violation of some much needed levity to the proc- to pay the State taxpayers $21 billion the Senate rules. We need to force the ess, the points I made are very serious. in unfunded Medicaid liabilities over Members of this body to be honest For the American people, there is noth- the next 10 years. We didn’t make a about who has required special favors ing more serious than the reform bill sweetheart deal to vote for bad policy and earmarks, tax treatments and ben- we are considering today. because my State could get some extra efits in this bill. The majority’s so-called reform money, because I think that is unprin- I have a parliamentary inquiry. package will restructure one-sixth of cipled. I wouldn’t do it. But what about According to rule XLIV, paragraph our struggling economy, drive health the other States that voted for the bill 4(a) of the Standing Rules of the Sen- care costs higher, force millions off without getting the sweetheart money, ate states: their current plan, put health care de- such as Arkansas, which faces an un- If during the consideration of a bill or joint cisions in the hands of bureaucrats, cut funded Medicaid mandate of $335 mil- resolution, a Senator proposes an amend- seniors’ Medicare, raise taxes, and hurt lion; Colorado, $624 million; California, ment containing a congressionally directed small businesses and cost jobs. $3.5 billion—a State that is already spending item, limited tax benefit, or lim- There is nothing funny about this nearly bankrupt. This is going to make ited tariff benefit which was not included in health care bill. Americans faced with their situation enormously worse, as the bill or joint resolution as placed on the rising premiums asked for bipartisan calendar or as reported by any committee, in reform to make health care costs af- Governor Schwarzenegger has acknowl- a committee report on such bill or joint reso- edged. lution, or a committee report of the Senate fordable. But the Democratic bill fails I am not saying other States should on a companion measure, then as soon as to give the American people what they somehow get the sweetheart deals that practicable, the Senator shall ensure that a want, which is why Senator REID has were negotiated for these other votes, list of such items (and the name of any Sen- written bill after bill behind closed but I am saying this entire bill is a bad ator who submitted a request to the Senate doors with no Republicans. The major- deal and we need to kill it and start for each respective item included in the list) ity party doesn’t want Americans to over, strip out all the earmarks, and is printed in the CONGRESSIONAL RECORD. know they are getting a lump of coal bring the kind of transparency the I would simply inquire of the Chair: for Christmas until it is too late. President campaigned on and that I Is the Chair aware whether this list of But Leader REID has outdone himself think the American people have a right congressionally directed spending on the latest deal he cut. His is Chi- to expect. items and their Senate sponsors has cago-style politics at its worst: a 2,700- These sweetheart deals are egregious been printed in the CONGRESSIONAL page backroom deal written behind in and of themselves. What is worse— RECORD? closed doors, full of political payoffs, and I have been on the telephone talk- The PRESIDING OFFICER. The vampire votes in the dead of night, all ing to constituents back in Texas— Chair is not aware if such a disclosure to pass a health care bill before Christ- there are some people who paint with has been made. mas that the American people don’t such a broad brush, they say, Well, we Mr. CORNYN. Mr. President, under want, that will increase health care think all of you are corrupt, because those circumstances, I raise a point of costs, raise taxes, and cut Medicare for this verifies some of the most cynical order that the amendment is not in seniors, operating under an arbitrary suspicions that people have about gov- order since it violates the provisions of deadline which seems designed to mini- ernment. I, for one, resent it. We have Senate rule XLIV, paragraph 4(a). mize transparency, understanding, and many honest and honorable people who The PRESIDING OFFICER. Para- public involvement. serve in public life, and this taints us graph 4(a) of rule XLIV requires that But I want the American people to all with a broad brush and, simply stat- the Senator who proposes an amend- know what they are getting from the ed, makes me furious. I resent it. I re- ment containing any congressionally majority this holiday season. I don’t sent those who brought us to this posi- directed spending item ensure as soon want my good friend from Nevada to be tion, because I think it sullies the rep- as practicable that the list of such known as Hurry-up-and-Reid, so let’s utation of the Senate. items be printed in the CONGRESSIONAL talk about what is in this bill. In a moment I am going to offer a RECORD. The provision is not enforce- Under the majority’s latest back- point of order, but let me first note able and no point of order lies. room deal, Americans are getting more that one of Senator REID’s first acts as Mr. CORNYN. Mr. President, I appeal taxes. This deal imposes about $500 bil- majority leader was to pass the Honest the ruling of the Chair and I ask for lion in fees and taxes on individuals, Leadership and Open Government Act. the yeas and nays. families, and businesses. Let me tell my colleagues the name of The PRESIDING OFFICER. Is there a Under the majority’s latest back- that again. It is called the Honest sufficient second? room deal, Americans who own small Leadership and Open Government Act. There appears to be. businesses—the backbone of our econ- In 2007, President Obama, then Sen- The yeas and nays were ordered. omy—are getting more taxes and cost- ator, said: The PRESIDING OFFICER. The Sen- ly regulation. For small businesses who To earn back the trust to show people that ator from Montana. employ a large number of those cur- we are working for them and looking out for Mr. BAUCUS. Mr. President, I move rently uninsured, this bill does nothing their interests, we have to start acting like to table the appeal of the ruling of the to help make insurance more afford- it. Chair and I ask that the vote occur able or accessible. Unfortunately, for the American peo- upon the expiration of all postcloture The bill contains a costly employer ple, Washington has not yet started to time. mandate which destroys job creation act like it. The PRESIDING OFFICER. Is there opportunities for employers. It doesn’t This landmark ethics reform legisla- objection? take a rocket scientist or an economist tion required Senators to publicly dis- Without objection, it is so ordered. to figure out that the multiple pen- close earmarks and who requested Mr. BAUCUS. I ask for the yeas and alties small businesses will pay for them. Senator GRASSLEY and I have nays on the motion to table. full-time workers will result in these both made parliamentary inquiries The PRESIDING OFFICER. Is there a companies forcing workers from full about whether this provision has been sufficient second? time to part time and discouraging new complied with, which is now contained There appears to be. hiring. Companies are going to have to in rule LXIV of the Senate Standing The yeas and nays are ordered. think twice before hiring new full-time

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13811 workers if it is going to cost them a ing homes, home health agencies, and more for health care or being unable to pretty penny, at a time when the com- hospices. get it or losing their jobs. But under panies are trying to pinch pennies. When government forced through the majority’s latest backroom deal, There is also a paperwork mandate massive cuts to home health in the late that is the future. which is a new administrative burden 1990s, the unintended consequences Next Christmas, we don’t want to see on small business which, according to were costly and tragic in Missouri. A small businesses that still cannot af- the National Federation of Independent significant number of agencies closed, ford to offer health insurance to em- Business, will impose a direct $17 bil- forcing patients into more expensive ployees or, worse, small businesses lion burden on businesses. care. struggling to keep their doors open be- Unfortunately for small businesses, One example is in one county in Mis- cause of the costly new burdens in this unlike larger businesses or unions, the souri, the county’s only home health bill. Under the majority’s latest back- news gets even worse. Unlike large agency closed. The provider had 40 pa- room deal, that is the future. A year businesses, most small businesses can tients they served in homes at a cost of from now we don’t want to hear that only find and purchase health insur- $400,000 a year. When those patients seniors have lost access to services and ance in the private insurance market- were cut off, 30 were forced into hos- care. Unfortunately, that is the Christ- place. That means to insure their em- pitals or nursing homes. The cost sky- mas future we face if the bill passes. ployees, small businesses have to go to rocketed for these patients to a stag- Christmas future—several years from the big insurance companies on which gering $1.4 million on the government now—could look even worse. the Reid bill is placing hefty new fees. tab or a $1 million larger hit to tax- That is why in my ‘‘The Night Before Most folks don’t have a problem with payers. We don’t even know what hap- Christmas’’ parody it was not funny as putting more fees on insurance compa- pened to the other 10 patients who lost much as it was scary and true when I nies. It seems to be politically popular, this critical care. said: but it is economics 101 that these in- This is not the kind of reform Ameri- But I could not catch the holiday spirit cans can afford. Under the majority’s myself; how far away from common sense surance companies are not going to we’ve been led, our kids and our grandkids suck it up and swallow all of these new latest backroom deal, States are also getting hit hard. For example, the ma- have their futures to dread. fees themselves. CBO has stated so ex- In the last year, my colleagues on plicitly. Instead, they will pass the fees jority’s big plan is to expand Medicaid, but their big plan for paying for it is to this side of the aisle watched with dis- on to small businesses that will have may as the wheels have come off Fed- no choice but to purchase their serv- put the burden on the States; that is, unless you were able to cut a backroom eral spending; a trillion dollars of tax- ices. payer money here and a trillion dollars One of the gimmicks the majority is deal like Nebraska, which leaves other States holding the bag for their costs. there. Got a problem? Throw money at using to hide the cost of the bill is a it. Will historians look back and say weak tax credit that is supposed to That brings me to my next point. Under the majority’s latest backroom the 111th Congress is where the decline help small businesses in purchasing of American economic power began in health insurance. deal, Americans are forced to fund a number of political payoffs. There are earnest? I don’t want that on my The hitch is that small businesses watch. We can reform health care with- will only receive the full tax benefits if such a large number of political payoffs, which is why this bill is starting out spending trillions of our children’s they have less than 10 employees. If and grandchildren’s money. they hire that 11th employee, the tax to be dubbed ‘‘cash for cloture.’’ There is a carve-out for the insurance If the majority were to bring up a bill credit is reduced. At 25 employees the industry in Michigan and Nebraska. that made health insurance more af- tax credit is no longer available. There is an extra $300 million in Med- fordable for small business owners to In addition, a small business can only purchase for their employees, that get full credit if it pays its employees icaid funding for Louisiana, now known as the ‘‘Louisiana purchase.’’ What was eliminated frivolous lawsuits, that em- an average of $25,000 a year or less. So the mysterious $100 million for a phasized wellness and prevention pro- no salary increase, no wage increases. grams, they could go a long way to ‘‘health care facility’’ turns out to be a In other words, in what is already a solving the problems of the uninsured horrible economic situation, where hospital in Connecticut. Sadly, this isn’t even the entire list and underinsured, and they could prob- businesses are shuttering their doors ably get 80 or 90 truly bipartisan votes. of sweetheart deals in REID’s latest and workers are being laid off, we are backroom deal. That is not the kind of Instead, what they want, apparently, is actually going to punish small busi- reform Americans want. to take over health care, at a tremen- nesses for hiring new employees and With Chicago politics and backroom dous cost to individuals, families, and paying workers more. deals such as this, it is no surprise that businesses, and to increase the depend- This tax credit is also a case of bait poll after poll makes clear the Amer- ency on the Federal Government. That and switch. If your small business hap- ican people are saying no to the Demo- is not a Christmas present I want, and pens to fit in the narrow qualifications, I don’t want to give it to the American crats’ proposals. it is only temporary—after 6 years the The latest poll released by people. credit goes away—but the mandates I yield the floor. Quinnipiac University found that The PRESIDING OFFICER. The Sen- and burdens on small businesses stay. American voters ‘‘mostly disapprove’’ That is why the National Federation ator from Wyoming is recognized. of the plan—53 to 36 percent. Mr. ENZI. I thank the Senator from of Independent Businesses, in their A recent Washington Post/ABC News strong opposition to the majority’s Missouri for his comments. He has been poll, detailed in a Post article, found chairman of the Small Business Com- plan, stated that it: the American public generally fearful will not only fail to reduce and control the mittee. Small business plays a huge that a revamped system would bring role, the biggest role, in the economy constantly climbing healthcare costs small higher costs while worsening the qual- business owners face, but it will result in of the United States. new and greater costs on their businesses. ity of their care. We could have, and we should have, Reform that was supposed to be all about The American public is absolutely spent the last 4 weeks talking about small business has turned out to be more right. Americans don’t want this bill. what needed to be done with small about big business and other late-night In the classic tale called ‘‘The Christ- business. It is a big issue and it is im- dealmakers, all at the expense of our na- mas Carol,’’ Scrooge is given the oppor- portant. I appreciate the emphasis the tion’s job creators. tunity to see the ghosts of Christmas Senator from Missouri has put on it That is not the kind of reform small past, present, and future. While the through the years. businesses can afford. Democrats are trying to paint the GOP I want to talk about the whole bill Under the majority’s latest back- as ‘‘Scrooge,’’ they would do well to today, because a quote I ran into was room deal, Americans are getting hun- look at what the Christmas future that ‘‘absolute power corrupts—abso- dreds of millions of dollars in cuts to would look like if their bill were to lutely.’’ critical health care programs, such as pass. The Democrats have absolute power $118 billion in cuts to Medicare Advan- We don’t want to wake up next right now. Under the biggest require- tage, as well as cuts to hospitals, nurs- Christmas and have Americans paying ment for votes, it only takes 60 in the

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13812 CONGRESSIONAL RECORD — SENATE December 23, 2009 Senate. The Democrats have 60 votes. and in the area and not expect major and need money forever, even after In the House, they have a clear major- flaws. The American people even recog- Medicare is broke. They even recognize ity of the votes, and that is all that is nize the flaws—already. Of course, ev- the problem and form a commission to required to pass a bill there. They are erybody has some knowledge of health tell us where to cut Medicare. That is under the impression that they won the care, since it affects us all. When those so they can shift the blame to a com- election, so they get to write the bills. flaws develop, and they will, in an ava- mission. But the difficulty is they have Never before has that happened on a lanche, everybody will point to one made special deals that take away the major piece of legislation. party, the Democratic party, and say commission’s ability to make cuts—ex- Everyone in this country should be why did you have to prove your power? cept to the benefits of seniors. They upset when the majority refers to bills Why didn’t you work to get it right? are the only ones left standing. There like ending slavery and civil rights and Why did you have to polarize the issue will have to be cuts—real cuts. Medicare and welfare reform and paint to show you were the only ones con- They made a deal. I saw a letter from the Republicans as the opposition. Sub- cerned about people? those who said they support the bill. stantial numbers on both sides of the Of course, the Republicans will be For a while, they had a whole year’s aisle made those bills possible. I am compelled to pull out the proof that we worth of change in their pay. Now they pretty sure people remember that it warned about the flaws but were ig- have 2 months where they will be paid was Lincoln, a Republican, who led the nored, because the Democrats are fo- what they think is less than adequate fight to abolish slavery. Leader Mans- cused on proving that they won the but OK to stay in business. Evidently, field gives Everett Dirksen, a Repub- election. Normally, there is plenty of they think that even though the Sen- lican from Illinois, credit for the lead- blame to go around, but not on this ate turned it down, because they ership that made the civil rights bill one. couldn’t afford to pay for it, $250 bil- possible. In every instance, until now, The Republicans were thrown over- lion in adjustments to what they get Republicans have had a leadership role board. That only left the 60 votes need- paid because it wasn’t paid for, and we and both sides have substantially par- ed to pass the bill. Well, you cannot get are going to come back and do that ticipated in making and voting for 60 people to agree on 100 percent of without it being paid for. It could have those laws. In politics, that is how it anything. You could not get 60 people been paid for out of the Medicare has to work for our country to be suc- to agree on a place to eat dinner. But money if they were using it for Medi- cessful. all 60 had to agree. That is where you care only. Only one party, and especially one have to move away from legislating I ask unanimous consent to have person, ‘‘gains’’ from this so-called and into dealmaking. That is when you printed in the RECORD the Effects of health care reform bill. The President have to start playing games like ‘‘Let’s the Patient Protection and Affordable will be able to show how he was able to Make a Deal’’ or ‘‘The Price is Right.’’ Care Act on the Federal Budget and accomplish something against all odds. I don’t want to downplay how master- the Balance in the Hospital Insurance Why against all odds? Because the ful the leader was. Everyone has to be Trust Fund. Democrats of the Senate wrote off the in awe of his ability to give much to a There being no objection, the mate- 40 votes of the Republicans. That is few and none to many and get 100 per- rial was ordered to be printed in the right, we were written off from the cent to stay on what they can see from RECORD, as follows: start. Oh, yes, we were allowed to par- the polls is a sinking ship. How can a CBO has been asked for additional informa- ticipate to see if we couldn’t be per- person discriminate between Members, tion about the projected effects of the Pa- suaded to take what the Democrats between States? Usually, we do ear- tient Protection and Affordable Care Act wanted to write and foist on America. marks in appropriations bills. Now we (PPACA), incorporating the manager’s Anything short of buying the whole are starting to do them in policy bills. amendment, on the Federal budget and on Democratic plan and we could be and Why? To buy votes. The leader is buy- the balance in the Hospital Insurance (HI) would be thrown overboard because our ing votes with taxpayer money for trust fund, from which Medicare Part A ben- votes aren’t needed. We were thrown efits are paid. Specifically, CBO has been things the majority of the taxpayers asked whether the reductions in projected overboard with the excuse of phony will never benefit from. Part A outlays and increases in projected HI time deadlines, when it was needing to I don’t have time to go into the way revenues under the legislation can provide do just the Democratic ideas. the groups have made hidden deals for additional resources to pay future Medicare Senator Kennedy and I were able to this bill, such as the American Medical benefits while simultaneously providing re- work through an incredible number of Association and big pharmaceuticals. sources to pay for new programs outside of bills because we recognized that both I don’t have time to talk about how Medicare. sides had good ideas and both sides had taxes will go up and premiums will be HOW THE HI TRUST FUND WORKS bad ideas. The trick was to take as up. As an accountant in the Senate, The HI trust fund, like other Federal trust many of the good ideas as possible and you are going to be shocked by the funds, is essentially an accounting mecha- have the courage to tell some on both numbers—but not until it is too late. I nism. In a given year, the sum of specified HI sides that their idea wasn’t ready for don’t have time to explain to you how receipts and the interest that is credited on prime time. With evenhandedness and the Democrats are planning to spend the previous trust fund balance, less spending for Medicare Part A benefits, represents both leaders promoting the surviving the same money twice. That is a pretty the surplus (or deficit, if the latter is great- ideas, many of the bills were unani- neat trick, too. er) in the trust fund for that year. Any cash mous on both ends of the building. I don’t have time to explain how the generated when there is an excess of receipts Were there flaws in some of the bills? government will tell you what the min- over spending is not retained by the trust Yes. No bill is perfect. On the simplest imum amount of insurance is. It is fund; rather, it is turned over to the Treas- solutions, nobody, particularly those more insurance than most Americans ury, which provides government bonds to the who have never been involved in that have right now. If you don’t find a way trust fund in exchange and uses the cash to business or that area, can comprehend to buy this better package, there will finance the government’s ongoing activities. This same description applies to the Social all of the unintended consequences. be fines for you to pay. If the govern- Security trust funds; those funds have run But when it is both parties acting in ment can force you to buy insurance cash surpluses for many years, and those sur- concert, when problems come up, solu- and force you to buy what Washington pluses have reduced the government’s need tions are sought. When bills are done thinks is the best, what is next? Will to borrow to fund other federal activities. by one party—and no all-encompassing they be able to tell you what kind of The HI trust fund is not currently running bill has been done this way ever be- car to buy? Remember, the government an annual surplus. fore—when the bills are done by one now owns a car company. The HI trust fund is part of the Federal party, those inevitable flaws result in I hope I have time to remind you we government, so transactions between the all agree that Medicare is going broke. trust fund and the Treasury are justified finger pointing. intragovernmental and leave no imprint on You can’t change such a basic part of But this bill takes almost $500 billion the unified budget. From a unified budget the economy—something that affects of Medicare money and uses it to do perspective, any increase in revenues or de- every single person—by ignoring many new programs—new programs outside crease in outlays in the HI trust fund rep- who have experience in the business of Medicare—that will go on forever resents cash that can be used to finance

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13813 other government activities without requir- ernment later in redeeming the bonds held a critique of Reid’s 383-page Manager’s ing new government borrowing from the pub- by the trust fund. Unified budget accounting Amendment, ‘‘Everyone enrolled in these lic. Similarly, any increase in outlays or de- shows that the majority of the HI trust fund (health) plans must pay a monthly abortion crease in revenues in the HI trust fund in savings would be used to pay for other spend- premium and these funds will be used to pay some future year represents a draw on the ing under the PPACA and would not enhance for the elective abortion services. The Reid government’s cash in that year. Thus, the re- the ability of the government to redeem the amendment directs insurance companies to sources to redeem government bonds in the bonds credited to the trust fund to pay for assess the cost of elective abortion coverage HI trust fund and thereby pay for Medicare future Medicare benefits. To describe the full and charge a minimum of $1 per enrollee benefits in some future year will have to be amount of HI trust fund savings as both im- every month.’’ generated from taxes, other government in- proving the government’s ability to pay fu- Some defenders of this deal argue that fed- come, or government borrowing in that year. ture Medicare benefits and financing new eral money will be magically segregated Reports on HI trust fund balances from the spending outside of Medicare would essen- when it comes to abortion and that money Medicare trustees and others show the ex- tially double-count a large share of those going to abortion providers will be for other tent of prefunding of benefits that theoreti- savings and thus overstate the improvement ‘‘services.’’ Even if this were true—and there cally is occurring in the trust fund. However, in the government’s fiscal position. is little truth coming out of Washington because the government has used the cash Mr. ENZI. Mr. President, I ask unani- these days—that is like saying the govern- from the trust fund surpluses to finance mous consent to have printed in the ment won’t pay for the actual procedure, but other current activities rather than saving it will subsidize other costs, such as the elec- the cash by running unified budget sur- CONGRESSIONAL RECORD a December 22 tric bill and the rent on the clinic’s office pluses, the government as a whole has not article from the Casper Star Tribune, space. been truly prefunding Medicare benefits. The by nationally syndicated columnist Cal Republicans have done a good job high- nature of trust fund accounting within a uni- Thomas. lighting the multiple flaws in the Senate bill fied budget framework implies that trust There being no objection, the mate- (and the similarly long House bill). Most im- fund balances convey little information rial was ordered to be printed in the portantly for seniors, the Senate bill slashes hundreds of billions of dollars from Medicare about the extent to which the Federal gov- RECORD, as follows: ernment has prepared for future financial to pay for a new-government program. It in- burdens, and therefore that trust funds have [From the Casper Star Tribune, Dec. 22, 2009] cludes massive tax increases on individuals important legal meaning but little economic SNOW JOBS businesses, which means businesses are un- meaning. (By Cal Thomas) likely to hire workers at a time of double- THE IMPACT OF THE PPACA ON THE HI TRUST There were two snow jobs in Washington digit unemployment. It includes a massive FUND AND ON THE BUDGET AS A WHOLE over the weekend. One came from the sky as new entitlement program—the CLASS Act (short for Community Living Assistance and Several weeks ago CBO analyzed the effect a record December snowfall blanketed the Support Services)—which Budget Committee of the PPACA as originally proposed on the city. The other came from Capitol Hill where Chairman Kent Conrad has described as ‘‘a HI trust fund (http://www.cbo.gov/ftpdocs/ the Senate labored to cover up the real ef- Ponzi scheme of the first order’’ and which 107xx/doc10731/EstimatedlEffectslof fects of its massive ‘‘health care reform’’ was recently opposed by a bipartisan major- PPACAlonlHIlTF.pdf). CBO and the staff bill. ity, including 11 Democrats. of the Joint Committee on Taxation (JCT) All you need to know about this mon- To their credit, Republicans have stood to- estimated that the act would reduce Part A strosity is contained in a paragraph from gether in opposition to this health care fi- outlays by $246 billion and increase HI reve- page four of the Congressional Budget Of- asco. Their pledge to voters in the November nues by $69 billion during the 2010–2019 pe- fice’s 21-page letter to Senate Majority Lead- 2010, election should be to repeal the meas- riod. Those changes would increase the trust er Harry Reid: ‘‘According to CBO and (the ure and to offer real insurance and health fund’s balances sufficiently to postpone ex- Joint Committee on Taxation’s) assessment, care reform that will not include an abortion haustion for several years beyond 2017, when enacting the Patient Protection and Afford- provision, new taxes, more entitlements and the fund’s balance would have fallen to zero able Care Act with the manager’s amend- a bigger bureaucracy. under the assumptions used for CBO’s March ment would result in a net reduction in fed- Yes, it can be done. 2009 baseline projections. eral budget deficits of $132 billion over the The improvement in Medicare’s finances 2010–2019 period. In the subsequent decade, He says: would not be matched by a corresponding the collective effect of its provisions would There were two snow jobs in Washington improvement in the Federal government’s probably be continued reductions in federal over the weekend. One came from the sky as overall finances. CBO and JCT estimated budget deficits if all of the provisions contin- a record December snowfall blanketed the that the PPACA as originally proposed ued to be fully implemented. Those esti- city. The other came from Capitol Hill where would add more than $300 billion ($246 billion mates are subject to substantial uncer- the Senate labored to cover up the real ef- + $69 billion + interest) to the balance of the tainty.’’ fects of its massive ‘‘health care reform’’ HI trust fund by 2019, while reducing Federal So uncertain are they that the CBO later bill. budget deficits by a total of $130 billion by noticed an error in its calculations and a day The PRESIDING OFFICER. The Sen- 2019. Thus, the trust fund would be recording later on Sunday, Dec. 20 delivered another ator’s time has expired. letter to Senate leaders that said: ‘‘Cor- additional saving of more than $300 billion Mr. ENZI. Mr. President, I ask unani- during the next 10 years, but the government recting that error has no impact on the esti- as a whole would be doing much less addi- mated effects of the legislation during the mous consent to have printed in the tional saving. 2010–2019 period. However, the correction re- RECORD a Wall Street Journal article CBO has not undertaken a comparable duces the degree to which the legislation called ‘‘ObamaCare’s Longshoremen quantitative analysis for the PPACA incor- would lower federal deficits in the decade Rules.’’ porating the manager’s amendment, but the after 2019.’’ There being no objection, the mate- results would be qualitatively similar. The The public is being asked to swallow a bill rial was ordered to be printed in the that most senators haven’t read, contains reductions in projected Part A outlays and RECORD, as follows: increases in projected HI revenues would sig- cost projections that are substantially un- nificantly raise balances in the HI trust fund certain, and touts outcomes that can be rea- [From the Wall Street Journal] and create the appearance that significant sonably predicted to be nothing that resem- OBAMACARE’S LONGSHOREMEN RULES additional resources had been set aside to bles what Democrats are promising. President Obama praised the Senate yes- pay for future Medicare benefits. However, Senator Ben Nelson, Nebraska Democrat terday for clearing a 60–40 procedural vote on the additional savings by the government as and a supposedly staunch pro-lifer, agreed to his health plan in the dead of night and a whole—which represent the true increase vote for the bill after, as the Washington ‘‘standing up to the special interests who’ve in the ability to pay for future Medicare ben- Post put it, he got ‘‘abortion language’’ he prevented reform for decades and who are fu- efits or other programs—would be a good wanted and ‘‘also secured other favors for his riously lobbying against it now.’’ They’re fu- deal smaller. home state.’’ That’s what it’s ultimately riously lobbying all right—not against The key point is that the savings to the HI about: getting favors for your home state so ObamaCare but for the sundry preferences in trust fund under the PPACA would be re- you can be re-elected. Re-election trumps the Senate bill. ceived by the government only once, so they the Constitution and the will of the people, Start with the special tax carve-outs in- cannot be set aside to pay for future Medi- most of whom oppose the Senate and House cluded in the ‘‘manager’s amendment’’ that care spending and, at the same time, pay for health care ‘‘reform’’ bills. Harry Reid dropped Saturday morning. current spending on other parts of the legis- Even one’s stand on a moral issue like White House budget director Peter Orszag lation or on other programs. Trust fund ac- abortion can be compromised for the right has claimed that the bill’s 40% excise tax on counting shows the magnitude of the savings deal. Inserting language that supposedly re- high-cost insurance plans is key to reducing within the trust fund, and those savings in- stricts federal funding of abortion in order to health costs. Yet the Senate Majority Lead- deed improve the solvency of that fund; how- provide political cover to Sen. Nelson turns er’s new version specifically exempts ‘‘indi- ever, that accounting ignores the burden out to be a sham. According to House Minor- viduals whose primary work is longshore that would be faced by the rest of the gov- ity Leader John Boehner, whose office wrote work.’’ That would be the longshoremen’s

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13814 CONGRESSIONAL RECORD — SENATE December 23, 2009 union, which has negotiated very costly in- which excludes the construction industry There being no objection, the mate- surance benefits. The well-connected dock from the small business exemption contained rial was ordered to be printed in the workers join other union interests such as in the bill. We regret that this is our first op- RECORD, as follows: miners, electrical linemen, EMTs, construc- portunity to address this issue, though the tion workers, some farmers, fishermen, for- fact that the Manager’s Amendment was [From The Wall Street Journal, Dec. 22, esters, early retirees and others who are ab- made public less than two days before the 2009]. solved from this tax. first vote on the matter has increased the SENATE HEALTH BILL UNFAIR TO In other words, controlling insurance costs difficulty of playing a constructive role in CONSTRUCTION INDUSTRY—NAHB is enormously important, unless your very the legislative process. ‘‘In their rush to pass massive health care costly insurance is provided by an important In recognition of the negative impact that reform before Christmas, Senate Democrats Democratic constituency. a mandate to provide health insurance will included a last-minute provision overtly tar- The Reid bill also gives a pass on the ex- have on employers, H.R. 3590 exempts em- geting the construction industry, including cise tax to the 17 states with the highest ployers with fewer than 50 employees from home builders,’’ the National Association of health costs. This provision applied to only the fines levied on those who cannot afford Home Builders said in an e-mail alert to its 10 states in a prior version, but other Sen- to provide their employees with the federal 200,000 members Monday. ‘‘In order to find ators made a fuss. So controlling health minimum standard of health insurance. How- the 60 votes needed to pass health-care re- costs is enormously important, except in the ever, the Manager’s Amendment singles out form, a provision was slipped into the places where health costs need the most con- the construction industry by altering the ex- health-care bill to exclude the construction trol. emption so that it applies to only those Naturally, the Secretary of Health and industry from the small business health-care firms with fewer than 5 employees. exemption contained in the bill.’’ Human Services will decide how to measure This narrowly focused provision is an un- ‘‘costs’’ and therefore which 17 states qual- Employers with more than 50 employees precedented assault on our industry, and the would be required to offer insurance or pay a ify. (Prediction: Swing states that voted for men and women who every day make the Mr. Obama in 2008 or have powerful Demo- fine of up to $750 per employee if any em- bold decision to strike out on their own by ployee obtains federal subsidies for coverage. cratic Senators.) starting a business. Our members’ benefit These 11th-hour indulgences make a hash But the builder group says the bill singles packages reflect the reality of their business out the construction industry by ‘‘only giv- of Mr. Orszag’s cost-control theories and Mr. models, and they proudly offer the best Obama’s cost-control claims. Their spin has ing construction firms an exemption from health insurance coverage that they can af- the bill’s employer mandates if a firm em- been that wise men would convene and make ford. It is unreasonable to presume that benevolent decisions about everyone’s health ploys less than five people. Every other in- small business owners can bear the increased dustry is granted an exemption if they have care based only on evidence and the public cost of these new benefits simply because good. But as the Reid bill shows, politics will fewer than 50 employees.’’ Congress mandates that they do so. Many home builders are small, private or- always dominate when Washington is direct- In the real world, where the rhetoric suring a U.S. health industry that is larger than ganizations working to survive the worst rounding this legislation will meet the stark downturn in decades. More than half of the the economy of France. reality of the employer struggling to make Or take a separate $6.7 billion annual ‘‘fee’’ NAHB’s members have fewer than five em- payroll, this special interest carve out is ployees. ‘‘You might as well take an indus- on insurance companies that is supposed to simply another bill to pay in an industry be divvied up by market share. This beaut try that has been a cornerstone of the econ- that, with an unemployment rate exceeding omy and kick it while it’s down,’’ said Jerry doesn’t claim to be anything more than a 18% and more than $200 billion in economic revenue grab, but at the behest of Michigan Howard, the Washington-based group’s chief activity lost in the past year, already is executive. ‘‘It makes no sense . . . and it’s Senator CARL LEVIN Democrats chose to struggling to survive. apply it to some insurers and not others. Se- really bad public policy.’’ And, we would be remiss if we failed to The NAHB is urging its members to quick- lect companies incorporated as nonprofits question the justification for singling out will be exempt, even though nonprofits typi- ly contact their senators to derail the meas- the construction industry to bear such a bur- ure. The Senate, however, is marching to- cally have net income exceeding for-profit den. We are unaware of any data or evidence companies because they pay no taxes. ward a Christmas Eve vote. The Senate that suggests that the needs and struggles of version needs to be reconciled with a House- Since this new tax will merely be passed a construction contractor with fewer than 50 through as higher premiums, the carve-outs passed bill, but is likely to form the core of employees are so different from those of any final legislation presented to President mean that cost increases will be even higher small business owners in other industries, for workers whose employer contracts with a Barack Obama for his signature. and absent such convincing evidence, we are If the Senate bill passes and goes to a con- nonfavored insurer. These gyrations to tax left to assume that this specific provision is law are so complex that it still isn’t clear ference committee with the House, as ex- merely a political payoff to satisfy the de- pected, the House is likely to do most of the which nonprofits would qualify, but the pro- sires of a small constituency. tections are sure to apply to certain insurers reconciling. That’s because Senate Majority As Congress moves forward in the legisla- Leader Harry Reid—after battling for weeks in Michigan, Illinois and California. The tive process for H.R. 3590, we strongly en- poor saps stuck with higher premiums every- to get the minimum number of votes needed courage you to address this onerous provi- to avert a Republican filibuster—has little where else can thank Mr. Levin and Senators sion that needlessly single out small con- Debbie Stabenow, Dick Durbin, Barbara room to maneuver. The House passed its struction industry employers. version on Nov. 7 on a 220–215 vote. Boxer and Dianne Feinstein. Sincerely, The press corps is passing this favoritism President Obama hopes to sign a final bill Air Conditioning Contractors of Amer- off as sausage-making necessary to ‘‘make before his State of the Union address after ica, American Institute of Architects, history,’’ but that’s an insult to sausages. the first of the year so he can turn to other Associated Builders and Contractors, What this special-interest discrimination il- issues, in particular the economy and jobs. Associated Equipment Distributors, lustrates in how all health-care choices will Associated General Contractors, Asso- Mr. ENZI. Mr. President, the Depart- soon be made as Washington expands its po- ciation of Equipment Manufacturers, ment of Labor recently reported that litical control over one-seventh of the U.S. Independent Electrical Contractors, our Nation’s unemployment rate is 10 economy. National Association of Home Builders, percent. In States such as Michigan, Mr. ENZI. It points out how there National Federation of Independent California, Rhode Island, and Nevada, will be an excise tax in 17 States with Business, National Lumber and Build- the average rate is over 12 percent. the highest costs, but yet we made an ing Material Dealers Association, Na- Millions of Americans have lost their exception for a number of unions, par- tional Ready-Mixed Concrete Associa- tion, National Roofing Contractors As- jobs and millions more go to work ticularly the longshoremen’s union not every day worried about keeping the being subject to some of the taxes in sociation, National Utility Contractors Association, Plumbing-Heating-Cool- job they have. Businesses of all sizes the bill. ing Contractors—National Association, are struggling to keep their doors open Mr. President, I ask unanimous con- Small Business & Entrepreneurship and are finding it harder and harder to sent to have printed in the RECORD a Council U.S. Chamber of Commerce. make ends meet. letter from a number of contractors. Mr. ENZI. It points out how most Unfortunately, the policies in the There being no objection, the mate- businesses have an exclusion of 50 em- Reid health care reform bill will only rial was ordered to be printed in the ployees or less, but they have singled make matters worse for America’s RECORD, as follows: out the construction industry with an businesses and the workers they em- DECEMBER 21, 2009. exemption of 5 employees. ploy. U.S. SENATE, Washington, DC. Mr. President, I ask unanimous con- When I am home in Wyoming, which DEAR SENATOR: We are writing to express sent to have printed in the RECORD a is nearly every weekend, my constitu- our strong opposition to language contained Wall Street Journal article that covers ents ask me: What does health care rein the Manager’s Amendment to H.R. 3590, that same topic. form mean for me? Unfortunately I

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13815 have to tell them that if the Reid bill job killing taxes in this bill fall dis- forced to cut their pills in half to make is passed, their jobs and their pay- proportionately on the people who them last twice as long; people who checks will be in danger. struggle the most—putting the jobs pay their premiums and like their doc- The bill being pushed through the they have at risk and making it even tors, but when they get sick they find Senate imposes $28 billion of new taxes more difficult to find a new one. out that some of the most personal on businesses that will eliminate jobs At a time when Americans across choices in their lives are being made by and reduce wages. this country are looking for signs of an their insurance companies. Many business owners cannot provide economic recovery, the Senate should These are the real people who need health insurance. They cannot afford be debating a bill that helps the situa- real health insurance reform. Most insurance for their workers or for their tion, rather than a bill that makes it Americans seem to fall into one of own families. They have looked at worse. those categories. their bottom lines and understand that The job killing tax in the Reid bill Over the past few months, I have they cannot afford to buy insurance will also discourage employers from tried to ensure that the struggles of and continue to stay in business— hiring new workers and growing their people in my home State are rep- health insurance simply costs too business. Any small business that cur- resented in this debate. I told my col- much. rently has 50 or fewer employees will leagues the stories that I have received Rather than addressing the issue and do everything they can to avoid hiring in over 10,000 letters and e-mails and at enacting reforms that would lower that 51st employee in order to avoid roundtables and on the phone, stories health insurance costs, the majority’s these new taxes. told to me too often by men and health care bill instead increase the I filed an amendment to the Reid bill women with tears in their eyes or a taxes that these businesses will have to that would protect businesses and their quiver in their voice, people who are pay. workers from the worst effects of the not looking for a handout or a free ride These are the same businesses that job killing tax. My amendment would but who are pleading for a fair sys- are already barely making it. These are simply suspend the employer mandate tem—a system that works for families the same businesses that are laying off any time the unemployment rate goes or businesses like theirs. workers to try to survive. above 6 percent. I shared the story of Janet from Se- We know what the new employer Between 1999 and 2008, the unemploy- attle. She lost her job, lost her insur- taxes in the Reid bill will do, and who ment rate was about 5 percent. But ance, and succumbed to cancer after will ultimately have to pay the price when our economy began to struggle, being forced to wait 6 weeks to see a for this misguided policy. These taxes we saw the unemployment rate rise to specialist after her throat began to will eliminate jobs and be paid for on a point that now we are seeing more hurt. Janet’s story is why we need to the backs of American workers. than 10 percent unemployment. reform the health insurance system. The Congressional Budget Office has It seems only logical to me that if I told my colleagues the story of Jo- told us that the new job killing taxes our economy is struggling and people seph and his wife who was denied an in the Reid bill will lower wages across are losing their jobs, we would want to MRI after complaining of pain in her this country by $28 billion. protect workers from having their chest, and only after 3 years of fighting We have shed 3.5 million jobs since wages cut and even losing their jobs be- her insurance company were they able January of this year and the average cause of the job killing tax in the Reid to determine she had breast cancer and workweek is now down to 33 hours for bill. begin the treatment she desperately the American worker. Yet the bill be- I thank the Chair and yield the floor. needed. Their story is why we need real fore us today will actually make that The PRESIDING OFFICER. The Sen- health insurance reform. situation worse. ator from Montana. I told the story of Mark Peters from The workers who will be the hardest Mr. BAUCUS. Mr. President, I now Port Townsend who owns a small tech- hit by the job killing tax in the Reid yield to Senator MURRAY from Wash- nology company. He told me he is bill are those already making the low- ington—I suggest she be recognized to being crushed by skyrocketing pre- est wages and with the fewest job op- speak for 7 minutes. miums. He offers health insurance to portunities. According to the Congres- The PRESIDING OFFICER. The Sen- his employees. He does the right thing. sional Budget Office, employer man- ator from Washington. But he told me he just got a letter dates like those included in the Reid Mrs. MURRAY. Mr. President, the from his insurance company raising his bill would quote ‘‘reduce the hiring of health insurance system in our country rates by 25 percent. Mark told me his low-wage workers.’’ has been broken for a very long time. small business cannot sustain increases Low-income workers are already hit For far too long, families and busi- such as that; no business can. But in hard by the current economic condi- nesses across my home State of Wash- our current health insurance system, tions. These low-income workers typi- ington have been forced to make some small businesses are often at the mercy cally have less formal education and tough decisions, spending nights strug- of the insurance companies. This com- find it even more difficult to find work. gling or whispering after their kids go pany’s story is why we need to reform Workers without a high school diploma to bed about how to pay the bills and the health insurance system. have a 50 percent higher unemploy- praying they do not get sick. I told the story of Patricia Jackson ment rate than workers with higher I am proud to say that is about to from Woodinville who has private in- education levels. change. Over the course of months of surance but cannot keep up with the Harvard Professor Kate Baicker re- work on this issue, I have noticed it is rising premiums. To provide care for ported that an employer mandate, like very easy for this debate to tip into the her family of four, Patricia told me she the one in this bill, will mean that realm of abstractions, to focus on num- paid $840 a month in 2007. The next ‘‘workers who would lose their jobs are bers and charts—to devolve into petty year it was $900 a month, and then disproportionately likely to be high partisanship or ideological inflexi- $1,186 a month, and again her rates school dropouts, minority and women’’. bility. Too often real people get left were raised recently to a hike of $1,400 This is in part due to the fact that out of this conversation—mothers and a month. That is an increase of over 66 many of these workers are only mak- fathers who are scared they are going percent in just 3 years. Patricia and ing minimum wage. Their employers to lose their jobs; families scared they her family’s story is why we need to re- cannot reduce their wages, so con- are going to lose their insurance; peo- form the health insurance system. sequently they will either have to re- ple with preexisting conditions who I told my colleagues the story of duce the number of hours these em- cannot get coverage and who know Marcelas Owens. Marcelas Owens is a ployees work or simply get rid of them they are one hospital visit away from young man I have thought about every to make up for the costs of the next bankruptcy; small business owners who single day since I actually met him tax. cannot afford another premium in- back in June. Marcelas is only 10 years Employer mandates and the job kill- crease and who want to cover their em- old. He has two younger siblings whom ing taxes that go with them are paid on ployees but they cannot keep up with you can see in the photo with him. the backs of low-income workers. The the rising costs; senior citizens who are This is his grandmother. He and his

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13816 CONGRESSIONAL RECORD — SENATE December 23, 2009 siblings have been through a lot. Two taken. This place has become an um- cans, and it is working. A recent study years ago, their mother Tifanny lost brage factory. I even took umbrage found that more than half of respond- her life because she was uninsured. She once, and I feel badly about that. My ents to health care polls say they do was 27 years old. Tifanny was a single colleagues across the aisle have taken not know enough about the bill to give mom who worked as an assistant man- great umbrage because we have ac- a hard opinion. Then opponents use the ager in a fast food restaurant. She had cused them of using scare tactics. fact that people are confused as a rea- health care coverage through her job. May I point out that the title of the son to draw out this process. But in September of 2006, Marcelas told op-ed of my friend from Oklahoma in The American people are confused me that she got sick, she lost her job, last Wednesday’s Wall Street Journal and opponents of this bill want more she lost her insurance, and ultimately is ‘‘The Health Bill Is Scary.’’ Exhibit time to confuse them even more. she lost her life. Marcelas and his sis- A in our case that the other side has, I have heard a colleague on this floor ters lost their mom. indeed, used scare tactics—the op-ed say this bill would not add one day—he Health insurance reform is coming entitled ‘‘The Health Bill Is Scary.’’ said ‘‘not one day’’—to the solvency of too late for Tifanny. But her story and Seriously, when you are talking Medicare. That is simply not what the the story Marcelas tells me why we about people’s health, there is more nonpartisan Chief Medicare Actuary need to reform health insurance. than enough fear to go around. Instead found. This is the same Actuary who is Real people, real stories, real needs— of scaring people, we should be debat- often cited by opponents of the bill. He that is why we are here now and that is ing the merits of the proposal in front has determined that it keeps Medicare why we have to get this done. When we of us. We have heard a lot of stories. solvent for an extra 9 years. pass this bill, Americans will be able to We all know our health care system is Colleagues on my side are often mak- shop for coverage that meets their screwed up. We can all agree on that. ing statements that might come under needs. For the first time, insurance The most important things to know the heading of overselling, saying that companies will have to compete for our about the bill are what is actually in it for most people premiums will go business, for the business of the Amer- and will it help. down. It is true for many Americans, ican people. You see, this bill is too important for the out-of-pocket costs for better, more When we pass this bill, we will end us to hide it from our bosses, the secure health insurance will go down. discrimination based on preexisting American people. We have a duty to let But it is also true that most health conditions and make it illegal to drop the American people know exactly care premiums will continue to go up. people when they get sick. what we are doing on their behalf. That It is just that they will go up at a slow- When we pass this bill, we are going is why I have been so disappointed er rate than they would have if this bill to give tax credits to small businesses when my friends and colleagues have were not adopted. That is a really good and help the self-employed afford care. said—and I actually agree with them— thing. When we pass this bill, we are going that Americans are confused about This bill is going to pass. So we want to make preventive services free, end what is in this bill. They would not be people to understand what is hap- lifetime coverage limits, and cap out- so confused if everyone was being hon- pening. We are slowing the growth and of-pocket fees. We are going to extend est and forthright about what is in the the cost of health care. I want to be the life of Medicare without cutting bill. crystal clear because I do not want to guaranteed benefits while shrinking I have heard a lot of misinformation confuse people either. So today I am the doughnut hole gap in drug coverage over the last several weeks: some on going to try to cut through all this for our seniors. the airwaves and, unfortunately, some rhetoric and tell you about what is ac- When we pass this bill, people such as right here on the Senate floor. Very tually in the bill and how it will affect Mark and Patricia and Joseph and his early Monday morning, I heard a col- you. wife will be helped. The memories of league on the floor say this bill is When I first spoke on this floor on people such as Janet and Tifanny will going to add $2.5 trillion to our deficit. health reform, I related three questions be honored. That is why we need to re- That is simply made up. The non- that I hear from most Minnesotans. I form the health insurance system. partisan Congressional Budget Office, heard them when I was at the State I thank the more than 10,000 people the official scorekeeper of Congress, fair, when I spoke with tea-partyers. I in my home State of Washington who said the bill reduces the debt by $132 heard them in Minneapolis and St. sent me their personal health care sto- billion in the next 10 years. They esti- Paul. I heard them in Willmar—all ries. Their input has helped guide me mate the bill lowers the debt by at across the State—and on the Iron as I worked on this bill and served as a least five times that amount in the fol- Range. constant and welcome reminder about lowing decade. First, they say health care costs too who I am here to represent. CBO is like a referee, and we all much; what are we going to do about I urge my colleagues to stand with agree to let the referee make the call that. these families and with the families of about what things will cost. It is com- Second, they ask: What am I going to the small business owners in their pletely possible we will disagree on dif- do if I get sick or my spouse or one of States and across the country who des- ferent calls the referee makes during my kids get sick and then someone in perately need this reform. the game. I do not always agree with my family has a preexisting condition Health insurance reform has been a CBO. For example, I do not think they and then I lose my job? How am I going long time coming. But today we stand score prevention as saving enough. I to get health insurance then? closer than ever to making it a reality. may be wrong or I may be right, but I Third, they ask: If something bad I yield the floor. accept the CBO score because the CBO happens to me, am I going to lose ev- Mr. BAUCUS. Mr. President, I yield is the ref. We would not walk away erything; am I going to go bankrupt? 18 minutes to the Senator from Min- from a basketball game saying we won Well, now that we are about to pass nesota, Mr. FRANKEN. if the other team scored more points this bill, let me take each question and The PRESIDING OFFICER. The Sen- and just say: It is bad refereeing, we tell you how this will affect you; what ator from Minnesota. really won. this bill will do and what it will not do. Mr. FRANKEN. Mr. President, we So we may not like how CBO scores Remember, this legislation is an im- have been working on this bill for a certain provisions, but it is all we can portant first step but not the final long time, and I am proud of what we go by. These are the rules of the games word. are doing here. Every Senator has had to which we agreed. So if you are talk- First, what does this bill do about his or her chance to speak up and help ing on the Senate floor, you cannot health care costing so much? Let’s make this a better bill or to make just say this bill will add $2.5 trillion take a look at a point Dr. Atul their case against the bill. to the debt when it is not at all what Gawande, a Harvard physician, makes. Unfortunately, it has been a bit ran- the CBO says. He points out that almost half this bill corous, and I think that is too bad. No wonder people are confused. Peo- comprises programs to try out dif- There have been accusations flying ple who are trying to kill health re- ferent ways to lower costs and improve back and forth. Umbrage has been form are deliberately confusing Ameri- quality. Some have criticized this as a

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13817 weakness in the bill, but I think it is a Diabetes prevention, minimum med- this bill will give small businesses tax strength. Gawande makes the point ical loss ratio, incentivizing value over credits to pay up to 35 percent of their that when a system is as complex as volume—these are just a few of the in- employees’ premiums. ours, there is no one-time fix. There is novative ways this bill will bring down More small businesses will be able to not one simple solution. As much as I costs. All the basic ingredients for suc- cover more employees more affordably. wish it were true, the whole country cess are here. Dr. John Gruber, pro- Then, in 2014, once the exchanges are probably can’t be like the Mayo Clinic fessor of economics at MIT, agrees. He up and running, small businesses can or HealthPartners or other insurance says this about our bill: choose to go into the exchange so they companies in my State or Inter- It’s really hard to figure out how to bend can pool their risk with other small Mountain in Utah or Geisinger in the cost curve, but I can’t think of a thing to businesses. Pennsylvania. So one size may not fit try that they didn’t try. They really make These reforms will bring coverage to all. the best effort anyone has ever made. Every- an additional 295,000 Minnesotans by But these projects and pilots will thing is in here. I can’t think of anything I’d 2019. There should be no confusion. generate solutions to fix the biggest do that they are not doing in the bill. This is real reform. problems in health care, such as paying So when two of my colleagues said 2 Lastly, Minnesotans ask me: Will I doctors fee for service, which rewards days ago: There is no health care re- go bankrupt from health care costs? I volume and not value. For example, form in this bill, well, that is con- hear from a lot of Minnesotans who thanks to the efforts of MARIA CANT- fusing. have maxed out their health insurance WELL and my colleague, AMY The next question I hear from Min- or who are getting uncomfortably close KLOBUCHAR, and others, for the first nesotans is: What if I get sick and lose to their annual or lifetime limits. time ever we will include what is called my job, what will I do? These arbitrary limits let insurance the value index in the Medicare pay- This bill reforms the insurance mar- companies off the hook and leave you ment structure. Doctors and States kets, guaranteeing that having health holding the bill when you are sick and that provide high-quality care at a rea- insurance equals security. Some of need help the most. sonable cost will no longer be punished these reforms will kick in when the bill Fifty percent of personal bank- for that. Instead, they will be rewarded passes, others will kick in 4 years from ruptcies in this country are due to a for being effective partners in their pa- now. health care crisis. The good news is, tients’ care. I wish we could do everything at within 6 months of passing this bill, The bill also calls for all health in- once, but we are making a complex set new plans will not have lifetime limits surance companies to use a single uni- of reforms and it will take time to im- on benefits and will stop companies form standard for claims, as we do in plement them and generate the cost from imposing annual limits on needed Minnesota now, which will save our savings necessary to pay for the bene- care. When the exchanges are oper- State $60 million just this year. There fits you will receive. ational, the use of annual limits will be are lots of ideas, and we don’t know For the Minnesotans who can’t afford banned entirely. which ones yet will work the best. But the coverage they have because they I would like to ban all limits on all the point is, all the key elements are in are sick or have a preexisting condi- plans, new and existing, right away. this bill. tion, what will this bill do for them? One program in the bill I am particu- But this is an example of how we have Well, 6 months after this bill is larly proud of is the Diabetes Preven- had to compromise in order to keep the passed, we will get rid of all preexisting tion Program at CDC. I worked on cost of the bill down so we are being condition exclusions for kids, and these provisions with my Republican fiscally responsible and not adding to young adults will be able to stay on the debt. I wish to be very clear on colleague, DICK LUGAR from Indiana, their parents’ insurance until they who is a hero of mine. The Diabetes that. When this bill is fully imple- turn 27. That is big. Prevention Program is based on what mented, it will give Americans access Within 90 days, families who get we have learned in Minnesota and in to affordable health care so they can turned down because of preexisting Indiana—prediabetics can avoid becom- avoid going bankrupt when they get conditions will have access to non- ing diabetic if they get access to com- very sick. That is very good. profit insurance coverage designed to munity services such as nutritional There is more. We will start closing counseling and gym memberships. cover people who can’t pay for insur- the Medicare prescription doughnut These are proven to cut the risk of de- ance on their own. These are called hole in 2010. We will invest in home vis- veloping diabetes in half, so people can high-risk pools, and many States, as its for new mothers, more loan forgive- live healthier lives and their health well as Minnesota, have these plans in ness for primary care providers and for care costs less. We will replicate this some form. The good thing is, this bill doctors who practice in rural areas, the program across the country. will invest $5 billion to help people af- Public Health Investment Fund, We will also guarantee routine ford premiums in the high-risk pools. stronger antifraud laws, support for checkups and recommended preventive In 2014, anybody who doesn’t have an people with disabilities to stay out of care, such as colonoscopies and mam- affordable plan through work or has nursing homes, and funding for com- mograms, are covered by all insurance been denied coverage will be able to go munity health centers. plans at no cost. No copays for preven- to a Web site and purchase coverage I said at the beginning of this debate tive care. through a new insurance marketplace there would be amendments that make I am also happy the bill requires a called the exchange. No one will be it an even better bill and there would minimum medical loss ratio, some- turned away or charged more because be amendments that make it less to thing I have been fighting for with Sen- of their health status or because they my liking and, therefore, a less good ator ROCKEFELLER. This is going to happen to be a woman. It will let you bill from my point of view. But I also make health insurance companies put compare plans and prices. What you said I would only support a bill if it at least 85 percent of their premiums pay will be based on your income. No makes quality health care available to toward actual health services, not ad- one will pay more than 10.2 percent of tens of thousands of additional Min- ministrative costs, marketing cam- their income toward premiums in the nesotans and tens of millions more paigns or profits or bloated CEO sala- exchange. Lower income families will Americans. We have all compromised ries. Advocates have been trying to get pay significantly less. If the coverage on many fronts, but the bill we have these profit restrictions in place in you are offered through your employer before us is real reform and deserves many States, but it is usually too hard costs you more than 8 percent of your our support. to fight these companies on a local income, you can go to the exchange. The bill deserves our support because level. So while I am disappointed we There are millions of people who Minnesotans and Americans can’t wait don’t have the public option, the min- have insurance and are worried about any longer. As Martin Luther King, Jr., imum medical loss ratio is a potent losing what they have; for instance, once said: ‘‘Of all the forms of inequal- measure that will limit insurers’ prof- Minnesotans who work for small busi- ity, injustice in health care is the most its and put the brakes on skyrocketing nesses that are squeezed by growing shocking and inhumane.’’ We have the premiums. health care costs. Beginning in 2010, opportunity to express our humanity

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13818 CONGRESSIONAL RECORD — SENATE December 23, 2009 today, to make our country healthier largest physician organization in this crease in cost in health care. That is and more secure for generations to country; endorsed by the American our first responsibility, and this bill come. Hospital Association, the largest orga- does it. The second thing it does is ex- I would like to conclude by sharing a nization representing our hospitals; it tend the reach of health insurance pro- letter I received from John Goldfine in has been endorsed by the American As- tection. Duluth, MN. John operates a business sociation of Retired Persons, the larg- As I stand here, one out of every six on the shores of Lake Superior and est senior citizens organization, which Americans has no health insurance. wrote to share the requests he had re- focuses intensely on the future of Medi- These are not lazy, shiftless people. ceived to donate money to fellow com- care; and today we have received the These are people who can’t afford it, munity members facing financial crises endorsement of what is regarded by who work at a place that doesn’t offer because of health care costs. most as the most highly respected it, or happen to be unemployed. At the John was asked to donate to a cancer medical organization in America. If end of the day, 60 percent of those peo- benefit for a woman who has mela- you ask most Americans whom do you ple, 30 million, will have the protection noma. respect the most, it is the nurses. You of health insurance. That is critically The PRESIDING OFFICER. The Sen- know why. Because when you are in a important. ator’s time has expired. hospital with someone you love or in This bill provides protections needed Mr. FRANKEN. I ask unanimous con- the care of a doctor, it is the nurse who by the people who have health insur- sent for 2 more minutes. is with you in those moments that ance. How many times have you heard The PRESIDING OFFICER. Without make a lifetime. The nurses today have about a friend or a family member who objection, it is so ordered. issued their formal endorsement of this has to fight an insurance company for Mr. FRANKEN. John was asked to health care reform bill. the payment for critical care that the donate to a cancer benefit for a woman The nurses today have Rose Gon- doctor has ordered, or over a prescrip- who has melanoma, to attend a spa- zalez, director of government affairs tion which the doctor believes will ghetti dinner for an 11-year-old with for the American Nurses Association, keep a person healthy or make that brain cancer, a bake sale for a woman who writes: person well? Those battles are now in need of a new kidney, and a pancake Nurses across this country have waited going to tip to the side of the con- breakfast for a burn survivor. This is decades for this historic moment and the sumers of America. Health insurance what John says: time is at hand. companies will not be able to discrimi- Once again, the need for fundamental re- As a business owner in Duluth, these are form of the U.S. health care system is crit- nate based on preexisting conditions or just a few of the requests that we have re- ical. ANA and nurses around the country are put caps on lifetime policies or tell ceived these last few years. We have given a ready to work with you toward enactment of kids that at age 24 they can no longer donation towards these fundraisers to help the strongest possible health care reform be covered by the family health care people pay for their medical expenses. As I legislation. travel the country and go into grocery plans. All of those things are changed stores, restaurants and convenience stores, I For all of our critics from the other in this bill, giving consumers across always take a minute to look at what is side of the aisle, the simple fact is this: America a fighting chance when it going on in the area. Rare is the time that I The people who are on the front line of comes to health insurance. do not see a fundraiser to help someone with health care, the people to whom we Last night I met with several of my their health care bills and expenses. I know turn every day for critical care and colleagues. We talked over dinner you know how wrong this is, but I am left critical treatment of the people we about how America is going to react to wondering what some of your fellow Con- love, endorse this measure. They have this. It is hard enough to digest the gressmen and Senators are thinking. Maybe contents of this bill, to expect the av- they need to go home and look at some of come out foursquare for it. I would these community bulletin boards. Every rather have their endorsement than erage American who has so many other time I look at one of these I want to cry. I any political endorsement we might concerns to digest it may be too much know how hard this battle is. I know there find. to ask. But I asked my staff to give me will be more compromises, but please do not Now let me tell you how this is sig- a list of the things that most Ameri- leave empty handed. There are so many peo- nificant. This bill will change many cans can expect to see, the changes ple out there that really need some help. things. Some on the other side have they can expect to see on a timely I am proud I am voting for this bill criticized the bill because it is too big; basis—not the long-term changes to provide help for the people who need they want a small bill. I want a bill where 94 percent of people have health it. that is large enough to treat the prob- insurance or would have a better stand- I thank the Presiding Officer for the lem. It is like saying to a doctor: You ing to fight health insurance compa- extra time, and I yield the floor. can give me a prescription but only nies when they complain, but what will The PRESIDING OFFICER. The dep- give me one; I can only take one pre- we be able to see. My staff came up uty majority leader is recognized. scription at a time. with a convenient top 10 list which Mr. DURBIN. Mr. President, I wish to In this bill we address problems ex- most of us are familiar with from late thank my colleague. That letter from isting in our health care system that night television shows. his constituent is heartfelt and should go to the heart of the challenge that Within 6 months or a year after this be an inspiration to all of us to get this faces our Nation. We have great doc- bill is enacted into law, here are the job done. We have sacrificed. This is tors and hospitals and nurses. But we top 10 things Americans will notice the 24th day debating this bill. Some of spend more than twice as much as any changing when they buy a new health these sessions have been early in the other nation on Earth per person for plan: No. 1, if you own a small business morning and late at night, but I think health care in some areas. Many coun- you will start receiving within 6 the time has been well spent. People tries spend a fraction of what we spend months tax credits to help your busi- have come to the floor and spoken at and get much better results. ness pay for health insurance for your great length but no one more elo- We know the cost of health care is employees beginning with tax year quently than your constituent who getting beyond us. We know a family of 2010. Mr. President, 144,000 small busi- sent you that letter. four with a health insurance plan now nesses in my State of Illinois will be el- Come tomorrow morning, we will through their employer pays, on aver- igible for the small business tax credit have the official vote—very early in age, $12,000 a year for premiums. Ten so that small businesses can afford to the morning. I would like to say to my years ago it was $6,000. It is projected offer health insurance for the owners of colleagues from West Virginia and to double again in just 8 years. People the business and for their employees. Minnesota that we have a piece of would be working to earn $2,000 a That is No. 1—and this is all within 90 news. A lot of what has been said on month just to pay for health insurance. days of enactment. the floor has been said by others and That is before you take the first penny No. 2, we are going to create imme- said before, but this is a piece of news home for your family. That is diate options for people who can’t get worth reporting. Our bill—the health unsustainable. health insurance today. We estimate care reform bill—has been endorsed by The first thing we do is address af- that 8 percent of the people in my the American Medical Association, the fordability, start bringing down the in- State have diabetes; 28 percent have

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13819 high blood pressure, and all of them counts in the purchase of name-brand that we know will prevent illness or could be denied coverage because of prescription drugs under Medicare Part will make them well; a country that al- this so-called preexisting condition. We D beginning July 1, 2010. Roughly lows people, especially low-income peo- are going to put in place high-risk 314,000 Medicare beneficiaries in Illi- ple, but not only low-income people, pools so these people who can’t buy nois hit the so-called doughnut hole, however, to suffer or watch a beloved health insurance today because of the gap in coverage. They are going to family member suffer alone and out- these preexisting conditions, have an have protection. It is going to be pro- side the health care system—all at option, a place to turn to, to buy vided by this bill. great cost to our national economy and health insurance. That is No. 2. No. 10, seniors across America will be our national productivity and our na- No. 3, and this is good news for every eligible for one free wellness visit each tional sense of self-esteem but, even family and every parent: Within 6 year without charge. Think about that: more importantly, to our national months after the enactment of this the peace of mind which it brings to soul, to our moral compass, to our con- bill, the parents of loved ones—3.6 mil- you and to your family to know that science. lion kids in my State—will sleep better you have had a checkup, and the doctor Now in the final days of 2009 we have knowing that whatever health insur- said you are doing fine and takes care a profound opportunity to deliver on ance they have will be required to of a problem before it becomes major. years and years of unmet promises and cover their child regardless of any pre- Those are the top 10 things to expect to begin a new decade by building a existing condition. Any child under the in the first 6 months or a year, and strong, new foundation for the Amer- age of 18 with a diagnosis of diabetes or more to follow. This is a bill worth vot- ican people, for all of them; to wit, a a history of cancer or asthma or what- ing for. This is a bill which finally puts more secure and reliable health care ever it may be cannot be denied cov- us on record as a Nation that health system that works for virtually all erage under the family plan, within 6 care is not just the privilege of the Americans, where those who are unin- months of this bill being enacted. lucky and the wealthy. It is a privilege sured finally have some place to go for No. 4, you will no longer need to fear of living in this great Nation. It is a health care; where those with insur- an insurance company dropping you right that comes to all of us. If we ance know that the coverage they from coverage once you get sick. It is truly want to enshrine that guarantee count on and pay for will be there when called rescission, and it means as soon of life, let’s enshrine in this bill guar- they need it—they will know that—and as you need the health insurance, the anteed access to quality health care. where a profit-driven health insurance health insurance companies run away We have had a long debate. Those on industry does not play mercilessly with and say: We are not covering you any- the other side have been critical of this people’s lives or steal their hope so more. Hire a lawyer and fight us if you bill. They have never offered an alter- that the health insurance company can don’t like that. That comes to an end native—not one substitute comprehen- have a very prosperous future, a very within 6 months after this bill passes. sive alternative. They just can’t do it, gloomy chapter in our Nation’s busi- No. 5, you will no longer need to and they won’t. But we know we have ness history. worry if you get sick or get in an acci- the responsibility to do it. Each of us brings to this moment dent because you are out of town and With votes this afternoon, in just a shared stories about the tragic and try- out of the network of hospitals and couple of hours and again tomorrow ing personal experiences of our friends doctors your insurance policy provides. morning, we are going to make this bill and neighbors back home. We are all This bill ensures access to emergency a bill that is passed by the Senate, on motivated by this bill. We are all care in-network and out-of-network its way to conference with the House, moved by this bill. I know that West without additional cost sharing begin- and by the first of this new coming Virginia’s struggles with the health ning 6 months after the date of enact- year, we will be able to offer that care system are not unique in America, ment. promise of quality care which the but they are unique to me because I No. 6, you will have the freedom to American people are asking for. represent them. They are what drive choose your doctor, the person you Madam President, I yield the floor. me to work so hard to make things bet- think is right for you and your family. The PRESIDING OFFICER (Mrs. ter. That never changes. This bill protects your choice by allow- HAGEN). The Senator from West Vir- I talked about the Bord family. The ing plan members to pick any partici- ginia. Bords are two dedicated schoolteachers pating primary care provider and pro- Mr. ROCKEFELLER. Madam Presi- with health insurance through their hibit insurers from requiring prior au- dent, I thank you. I rise today to join employer whose son Samuel had leu- thorization before a woman, for exam- with my colleagues, in fact, to stand kemia and needed treatment well be- ple, goes in for a gynecological exam- very proudly with my colleagues, in yond the onerous annual insurance ination. support of the Senate passage of limits imposed upon him, without his No. 7, you will no longer fear losing groundbreaking comprehensive health knowledge, and, therefore, his health your home or going bankrupt because care reform. I have wanted to say that insurance stopped producing any care of a bad car accident or a serious ill- for decades. It has taken not just the for him at all at 8 years old. What was ness such as cancer. This bill, when it better part of a year but, in fact, the he to know? becomes law, will bar insurance compa- better part of a generation. Samuel’s parents were desperate, and nies from limiting lifetime benefits and The story of health care reform over they feared for the worst. When he hit severely restricting annual benefits the last 50 years has been one of narrow his $1 million cap on annual insurance, under health insurance policy. incremental change, some quite mean- my office helped his parents to find No. 8, this bill will require providing ingful—the Children’s Health Insurance some more resources, but those ran out preventive services and immunizations Program, for example—but none truly too. So the Bords were left with two without copay. Mr. President, 41 per- comprehensive in the way the Ameri- gut-wrenching suggestions: consider cent of the people in my State have not cans want to have their health care. getting a divorce so that Samuel would had a colorectal cancer screening; 22 It is a history of big ideas left unreal- qualify for Medicaid, or stop taking percent of women in Illinois over the ized for lack of political will, for lack their other two children to the doctor age of 50 have not had a mammogram of time—whatever—of leaders and law- and giving them health care so they in the past 2 years. Health insurance makers and the medical profession all could spend the money that they had reform will ensure that people can ac- trying boldly yet all failing badly; fail- been spending in part on Samuel—take cess preventive services for free ing fundamentally to take away the it all away from the other two children through the health care plans. It fear of so many, the terror of living to help with Samuel as best they could. makes sense. It is an ounce of preven- and getting sick in America today; the When people are desperate, they try tion and built into the law 6 months terror of becoming sick in a country anything. The choices are all cruel. after it passes. that holds itself out as a beacon of So you get a device or you choose one No. 9, senior citizens are going to no- hope, a beacon of fairness, yet denies child’s health care needs over an- tice the difference within 6 months. men, women, and children access to other’s—that is not what parents want They will have access to dramatic dis- doctors and nurses, tests and medicines to be like. Those are the choices our

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13820 CONGRESSIONAL RECORD — SENATE December 23, 2009 Nation offered to these caring, hard- patients are either under Medicaid or things away. People do not know where working parents with a sick child. How Medicare. As my colleagues on the Fi- to go to complain, and they just get re- can that be? How can we allow that to nance Committee heard me say often, ferred somewhere else. This will be the be? The answer is, of course, that we 50 percent of all babies born in West very first time they are held account- cannot. Virginia are born under Medicaid. That able—and they will be held account- They did everything in their power, is the way it is there for the people I able. They will be held accountable by but this fall Samuel passed away. represent. Yes, of course I am dis- the law, by congressional oversight, by There are no words. It breaks my heart appointed that we do not have more, a ferocity of attention on what health to think of what his parents went but I still believe those are among the insurance has done to hurt so many through, not only the pain of watching best and right solutions in this bill for people and how, now, they are going to their son fight a terrible disease but our health care system. They are the behave in a very different manner also the uncertainty of paying for his best we can do at this particular time, whether they like it or whether they treatment as best as they could and and it is a great deal that we are doing. don’t. then have the coverage they counted It is an unavoidable fact that this bill Passing health care reform will mean on and paid for suddenly cease to exist. does not do everything I had hoped for family coverage must include depend- I say to my colleagues, when do we but, again, that would not justify turn- ent children up to the age of 26. That is say collectively that enough is enough? ing my back on what the bill does exciting. It is also immediate. But it is When do we finally step in and try to achieve. exciting because young people don’t solve such an enormous set of prob- Why is it that we always seek out the tend to get health insurance because lems? So much is at stake, so many negative and avoid the positive? It is they think nothing will happen to people’s needs and expectations are so because the negative is easier to talk them. It actually doesn’t work out like high, and so are mine and so are yours, about. It is easier to criticize than to that, and when they get hurt, some- I say to the Presiding Officer. I know do, than to collect people together body else has to pay. They should have all too well that reform is not about under an umbrella. their own health insurance, and so shying away from the tough issues or The ultimate question cannot be they are going to get it. They will not the tough decisions. Reform is not what the bill does not do. It cannot end be outside the health care system; they about reaching perfect agreements on a there because in so many ways what will be inside the health care system. perfect piece of legislation. Reform is this bill does do is make good on the Passing health care reform will mean making things better for people, as powerful promise of meaningful reform protecting the Children’s Health Insur- much as you can for as long as you can, that millions of people have dreamt of, ance Program, or CHIP, which John with as much money as you can pos- have prayed for, have fought for, for so Chafee and I wrote back in the mid- sibly collect to pay for it. long. 1990s and Ted Kennedy and ORRIN There are real and serious differences Passing health care reform will mean HATCH first established through the of opinion among us, among our es- 31 million previously uninsured Ameri- HELP Committee in 1997 in a show of teemed colleagues in the House of Rep- cans will now get health care coverage. bipartisanship—which, frankly, I am resentatives as well—the Senate, the Excuse me, 31 million people—extraor- nostalgic for these days—which will House, there are differences. Within dinary. It is in the bill. cover more than 14 million children by the Senate—one side of the aisle, the Passing health care reform will ex- the year 2013. Today, CHIP covers 7 other side—there are differences. With- tend Medicaid so that vulnerable popu- million, but you see it has run out of in the Democratic Party, there are dif- lations can get the health care they its 10 years, so it has to be reauthor- ferences. We have struggled to find so- need. ized. Then we add on 2 more years, and lutions that will make a difference, Passing health care reform will close, the program will keep going on and on, that we can afford. We have had to ne- almost, the doughnut hole that hurts and children will have health insurance gotiate and compromise. 3.4 million seniors enrolled in the forever. Now we vote in a few short hours. It Medicare prescription drug program. is an extraordinary moment in history. Mr. President, 3.4 million seniors is a Passing health care reform will mean There is nothing like it that I have lot. So we close at least half the dough- guaranteed prevention and wellness ever seen. We vote, I believe, to im- nut hole, and then we give people a benefits for seniors so they can get the prove access to affordable and mean- bonus for this coming year. But by regular checkups that are so impor- ingful coverage; to control runaway closing half, we are signaling that we tant. It is a big deal. Somebody told me costs—we have to do that so the Medi- are going to close it all. Health care once that there are about 9 million care trust fund doesn’t run out; and to now will be done each year, every year, American seniors who live alone. In rein in the health insurance industry’s to make things better. West Virginia, it might be on the tops rapacious and, to me, lugubrious prac- Passing health care reform will mean of hills or it might be on some dusty tices. I don’t like them, and they don’t the elimination of preexisting condi- plain, but they are basically alone, by like taking care of us, and they don’t. tion exclusions right away for our chil- themselves. They are aged, they have Am I disappointed that this legisla- dren. As soon as the exchanges are up problems. Does anybody check in on tion does not include a strong public and running, that will also apply to them? Does anybody call them? Do option, like the one I first introduced, adults. they have a telephone? Have you eaten to keep private companies honest? Am Passing health care reform will mean your food today? Do you have food? Are I disappointed it does not include a it is illegal for insurance companies to you OK? Did you fall down? Did you sensible Medicare buy-in provision that impose arbitrary limits, as they did an- break your hip? Is there somebody to should be a right for millions of Ameri- nually on Samuel, or lifetime benefits, check? We have to do a lot better than cans? Of course I am. Does that mean I such as the Bord family faced so coura- that. Through this bill, we will. turn my back and walk away from all geously. Passing health care reform will mean of this because I didn’t get everything Passing health care reform will mean we finally begin to get politics and lob- I wanted? Of course not. I am a public insurance companies are required to byists out of the business of deciding official. I represent people, I represent spend more of their money—which Medicare payments. That is very im- their interests, even as they, maybe in comes from premiums we give them— portant for me because we can create the majority, oppose what we are doing on medical care, not fancy offices and new hope—perhaps our only hope—for here because they know not yet en- executive salaries. They will be re- keeping Medicare stable and solvent tirely what is in this bill. But when quired to achieve a medical loss ratio for the long term. they do, they will feel differently. Am of 85 to 90 percent. We shall see. They The list goes on and on—real, mean- I disappointed that we were unable to will have to prove it. We already have ingful, life-changing and in some cases expand Medicaid even more for our the numbers. We know where to go to lifesaving new laws and new policies most vulnerable Americans? Yes, of get the numbers. Nobody has done it. that will become law. Not since the course I am. I live in a State where, in So they can play in their shifty dark- creation of Medicare and Medicaid the average hospital, 85 percent of all ness and deprive people of things, take nearly 45 years ago has this body or the

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13821 other body attempted to make a com- The PRESIDING OFFICER. Without regulatory oversight during the last 60 mitment as fundamental to our future objection, it is so ordered. years. Yet usurping the role of the in health care as we are doing here. The Senator from Texas. States in regulating health insurance Fortunately, this commitment will Mrs. HUTCHISON. Madam President, is precisely what the substitute that not end with the passage of this legis- I ask the distinguished Senator from has been put forward will do. lation. We will not have to wait an- Montana if, following the postcloture Creating a big role for the Federal other 15 to 20 years to take up the time, my point of order will be put in Government in health care will also cause of reform. Because of the inten- the queue for the votes if I ask for the usurp States, rights that have been in sity of the experience, the passion of yeas and nays? place for over 60 years. Consider, for a the experience, the depth of the feeling Mr. BAUCUS. That is my under- moment, that the commerce clause is in discussing the experience as we have standing. being suggested to allow Congress to talked back and forth with each other, Mrs. HUTCHISON. Madam President, not only regulate a channel of com- this now becomes an annual commit- we truly are in uncharted waters. This merce that historically has been ad- ment. We will be doing health care bill has been written by the majority dressed by States but for Congress to every single year until we get it ex- under a veil of secrecy. We are ex- actually direct the American people to actly right. We have not gotten here by pected to vote on its final passage less purchase a specific product or service. accident or by chance, and we will not than 2 days before families across the Everyone within the sound of my voice get all the way across the finish line country will be sitting down for holi- should be alarmed that Members of without more hard work and, hope- day celebrations. Over the last weeks, Congress actually believe our Constitu- fully, good will. my colleagues and I have spoken about tion, which enumerates and protects To those on the left who are dis- some of the things we know to be prob- our liberties and choices, can be per- appointed in what this bill does not lematic, ranging from unsustainable verted to require Americans to pur- do—and in some cases, those folks are cuts to Medicare that will result in chase something they may not want even calling for its demise—I implore catastrophic reductions in care—make and may feel they do not need. Such a you to reconsider, to be a part of this no mistake about that—to oppressive view is totally at odds with our Con- solution even as we keep working on new taxes on individuals, medical de- stitution. I believe strongly the indi- others, which I promise you I will do, vices, prescription drugs, and insurance vidual insurance mandates in this bill and I think you know that I mean what companies that will clearly raise costs are unconstitutional. I say when I say it. To those on the to consumers and stifle innovation, to The person who has raised the point right who in all these years somehow taxes on small businesses at a time of order is also on the floor with me, have not seen fit to accept any of the when we know our economy is on the Senator ENSIGN from Nevada. He is various options and ideas that are put brink. We are in a recession. We are going to cover that area. It is essential on tables for comprehensive reform, I asking businesses to hire people. Yet we address it. ask you to seek the facts, find the we are forcing burdens on them, taxes I wish to raise another area where I truth, follow the facts, follow the on them that would have the opposite think we also have transgressed over truth. There are legitimate disagree- effect. It would cause them not to take the Constitution. That is the trampling ments between us about how best to a chance to hire someone who will have of the rights of our States under the solve the problems plaguing our health the result of new mandates that go be- 10th amendment. I taught constitu- care system and hurting our people. yond all the expenses of an employee tional law. I have studied the back- But the status quo is unacceptable. today. We have talked about that for ground of the Constitution. I have Claims that we are rushing this process the last 3 weeks. looked at many facets of it. I can’t say or have operated in secret are absurd. Today I wish to talk about the con- I am a constitutional scholar. I am a Claims that we will hurt seniors, close cerns we have been able to have about lawyer. I have taught this subject. hospitals, take away people’s choices 3 days to find on the constitutionality I wish to read the very clear and sim- are reckless and disingenuous. of parts of this bill. We have not had ple 10th amendment. The 10th amend- Our work in this institution affects too much time to consider this. Cer- ment has made clear the following: people’s lives every single day in all tainly, constitutional issues will take The powers not delegated to the United the work we do for good or for ill. In much thought. But we do believe some States by the Constitution, nor prohibited public life, really, there is nothing neu- of the bill’s provisions do violence to by it to the States, are reserved to the tral: you either do something that our constitutional protections. Mem- States respectively or to the people. helps or you do something that hurts. bers, staff, and legal experts are scram- That is it. The beauty of our Con- We have a solemn responsibility to bling by the majority’s decision to stitution is, it is a very limiting docu- help our people in their hour of need, draft a bill that we didn’t have a ment. That is why it is short. Every- and that is the reason we are here. It is chance to look at in detail because it thing not specifically given to the Fed- the only reason we are here—to achieve only was released on Saturday, and we eral Government in the Constitution is meaningful reform, not just in health haven’t had very much debate time on reserved to the States or to the people. care but in all other needs. these legal issues. That is the beauty of our Constitution. As somebody who has been involved I commend many of my colleagues The reason it is short is because the in this debate from the very beginning for identifying one of my biggest con- powers were meant to be limited. What and fought for strong reforms in the cerns. The majority claims the com- was reserved to the Federal Govern- Senate Finance Committee, I know merce clause of the Constitution gives ment was meant to be limited because how far we have come to get here. And Congress the authority to adopt much our Founders knew the government I, for one, am not going to allow this of what it is we are looking at in this closest to the people and the people moment and its great promise to end in substitute before us. What I disagree should be responsible for most of the failure. The progress will be real. The with and what I don’t think has been laws of the country. greatly improved quality of life for mentioned is, the power to regulate Today, in the bill we have before us, millions of Americans will be its meas- interstate commerce has not been the we have a State, such as my State of ure. basis for a robust role in insurance reg- Texas and many States across the I yield the floor. ulation. Our States have the experi- country, which have taken full respon- The PRESIDING OFFICER. The Sen- ence, the infrastructure in place to sibility for creating, maintaining, and ator from Montana. carry out this important regulatory providing oversight for a health insur- Mr. BAUCUS. Madam President, I role. In comparison, the Federal role in ance plan and will now have to justify ask unanimous consent that after Sen- regulating private insurance has been changes to the terms of the insurance ator HUTCHISON raises a point of order limited. In fact, following the decision plan to the Federal bureaucrats. that the Reid substitute amendment by Congress to exclude Federal agen- My State of Texas has created a fully No. 2786 is a violation of the Constitu- cies from any antitrust role in the in- self-insured plan for State employees tion, the point of order be set aside surance market, it is our States that and for our teachers so creation, ad- until after all postcloture time expires. have been charged with providing this ministration, and oversight will be

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13822 CONGRESSIONAL RECORD — SENATE December 23, 2009 within the realm of the State. I believe plan for its employees without the per- amendment takings clause of the Con- it is very important, when we look at mission of the Federal Government, stitution. the bill before us, to see that the and I feel-duty bound to question the I see the senior Senator from Utah is States now are going to be required, constitutionality of this bill on 10th in the Chamber. He is going to talk similar to every insurance provider, to amendment grounds. about several other problematic provi- justify with the Federal Government Therefore, Madam President, I make sions in the bill that is before us today. changes in premiums. The States are a constitutional point of order against This is the Constitution of the going to have to now put forward all the substitute amendment on the United States, which I hold in my the background, what they are doing in grounds that it violates the 10th hand. There are several other docu- their self-insured plans, and justify it amendment of the Constitution, and I ments in here, but that is how short before the States, apparently, will be ask for the yeas and nays. the Constitution of the United States able to go forward. The PRESIDING OFFICER. Under is—this short, concise document that Of course, there is going to be a book the precedents and practices of the limits the powers of the Federal Gov- written on the meaning of ‘‘justify.’’ I Senate, the Chair has no power or au- ernment. Our Founders were afraid of a can see it coming. What exactly does thority to pass on such a point of powerful central government, so they justify mean? I don’t think we have to order. The Chair, therefore, under the put down on paper the powers they go that far to write the book on what precedents of the Senate, submits the granted to this body, the House of Rep- justify means because this is an en- question to the Senate. Is the point of resentatives, and the rest of the Fed- croachment on the rights of the States order well taken? eral Government. guaranteed by the 10th amendment. The yeas and nays have been re- When each one of us comes to this Not only does it walk away from the quested. floor, after we are elected, we raise our words themselves of the 10th amend- Is there a sufficient second? right hand, put our hand on the Bible, ment but walks away from what the There appears to be a sufficient sec- and take an oath to defend and protect Founding Fathers intended; that is, ond. the Constitution of the United States. that it is the prerogative of the States The yeas and nays were ordered. We do not take an oath to reform to make the laws that affect the peo- The PRESIDING OFFICER. Under health care or to do anything else that ple. Even Congress, for the last 60 the previous order, the vote on this we may think is good to do. Anything years, has kept the Federal Govern- question will occur after all on health care or any other good provi- ment restrained pretty much—not postcloture time expires. sion we want to enact has to fit within completely but pretty much—from Mrs. HUTCHISON. Thank you, the limited powers that are listed with- mandates and regulation of insurance Madam President. That is my under- in the Constitution of the United plans. There are some, but it has large- standing. I very much appreciate the States. That is the oath, the solemn oath, ly been left to the States. The States opportunity to bring this forward. each and every Senator takes. That is have provided the infrastructure for I think now that we are finally begin- what each and every one of us needs to what can be offered in a State. But ning to digest this bill, we are seeing think about when we are voting on this here we go. In what is supposed to be several areas where points of order have been raised, and I hope some of constitutional point of order. the reform of our health care system, I wish to make a couple points very these will send this bill back to the we are taking away the rights, the pre- briefly in one area where I think, on drawing board, where it belongs, to rogatives of the States, and also the the individual mandate, this bill vio- have health care reform that will do expertise the States have come to have lates the U.S. Constitution. Nowhere, what we intended to do when we start- put together and formed through the at no time, has this government, this years. The big Federal Government ed; that is, bring down the cost of Federal Government, ever passed a law takeover is going to begin. health care, make more affordable that requires people who do nothing to Let me mention a 1992 case by the health care possible for more people in engage in economic activity. In other Supreme Court, which stated, in New this country. If we could do that, on a words, if this bill passes and then you York v. United States: bipartisan basis, I think the people of choose not to buy health insurance, The Framers explicitly chose a Constitu- America, as they sit down for their hol- this bill requires you to purchase tion that confers upon Congress the power to iday celebrations with their families, health insurance. If you do not do that, regulate individuals, not States. would have been well served. it charges you up to 2 percent of your I have asked the attorney general of I implore my colleagues to look at income. So this bill is telling you, just Texas to use every resource at his dis- the points of order that will be voted because you exist as a citizen of the posal to investigate the provisions in on postcloture today and think about United States, you must do something. this legislation and to challenge any the consequences of passing this mon- The United States has never, in its unconstitutional attempt to limit the strous piece of legislation that is going history, ever passed something such as authority of Texas to carry out its reg- to alter the quality of life for every in- this. This will dramatically expand the ulatory responsibilities in the insur- dividual, every family, every small powers of the Federal Government, if ance market or to provide for the in- business in this country. this bill is passed, and if, God forbid, surance needs of its employees and the Let’s start again and do it right. the Supreme Court upholds this piece teachers of Texas through the State Doing it fast should not be the goal. of legislation. health insurance plans. The attorney Doing it right is what we should pur- I have read a lot of articles—and I general of Texas has already said he is sue. I hope my colleagues, before we submitted several of them yesterday— going to challenge the constitu- finish this process, will come back with by constitutional scholars, who believe tionality of treating one State dif- something we can all be proud of and this bill is unconstitutional. Even folks ferently from all the other 49 and the not something that is going to pass on who believe it is constitutional, some taxation of our residents in Texas be- a strictly partisan vote. folks on the left, concede that there cause of the exemption of the State of I yield the floor. are legitimate arguments against the Nebraska from the Medicaid respon- The PRESIDING OFFICER. The Sen- bill’s constitutionality. They also rec- sibilities that every other State is ator from Nevada. ognize that there is potential that it is going to have. Of course, every other Mr. ENSIGN. Madam President, I unconstitutional. So this is not some State will pick up the tab for this Ne- wish to first compliment the Senator wild-eyed radical debate. This is a le- braska exemption. The attorney gen- from Texas on her raising a different gitimate debate about what this docu- eral of Texas is on it, just like the at- constitutional point of order. There are ment, this Constitution of the United torney general of South Carolina and several ways in which this bill violates States, actually means. probably many more by the time we the Constitution. I have raised a con- I am not a lawyer similar to a lot of will end this day. stitutional point of order, where I be- the other Members of the Senate, but I It is important we also stand on 10th lieve this bill violates the enumerated understand the importance of a pretty amendment grounds for the States to powers under article I, section 8 of the plain reading of the Constitution’s be able to put forward a self-insurance Constitution, as well as the fifth text.

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13823 Within the enumerated powers, and will win the day. I choose the Constitu- When President Franklin D. Roo- within the fifth amendment, there are tion and will vote to support the point sevelt chose Frances Perkins as his limitations on what this Congress can of order. Secretary of Labor, they discussed so- do. The Supreme Court has held that America’s founders gave us a written cial policy legislation including health the interstate commerce clause, for in- Constitution that delegates certain insurance. As Secretary Perkins later stance—gives this body certain power powers to the Federal Government, described it, they agreed that such leg- to regulate commercial activity. Even separates those powers among three islation would pose ‘‘very severe con- activity of an individual that is intra- branches, and enumerates the powers stitutional problems,’’ including fun- state in nature can be regulated if it given to Congress. They did all of that damentally altering Federal-State re- has the potential to somehow substan- writing, delegating, separating, and lationships. That is why the Social Se- tially affect interstate commerce. enumerating for one overriding reason, curity Act uses the payroll tax. Even Unfortunately, this bill goes beyond to set limits on Federal Government the Roosevelt administration, which even regulating any kind of commer- power because liberty cannot survive oversaw the most dramatic expansion cial activity. It goes to regulating non- without such limits. As Justice Sandra of federal power in our Nation’s his- economic inactivity. It says: If you Day O’Connor reaffirmed in 1991 when tory, would not go as far as the legisla- choose not to do something, we are writing the Supreme Court’s opinion in tion before us today would go. Even going to regulate you and we are going Gregory v. Ashcroft, our system of fed- they knew that the Constitution put to tax you if you do not behave. This is eralism and the separation of powers certain means off limits. a very dangerous precedent for the ‘‘was adopted by the Framers to ensure The goal of raising the percentage of Congress to set. I made the point yes- the protection of our fundamental lib- Americans with health insurance could terday; others have made this point—if erties.’ ’’ Liberty requires limits on be achieved by constitutionally per- we could just require citizens to pur- government power, it always has and it missible means. My friends on the chase certain things, why did we need a always will. The question for us today other side of the aisle know as well as cash-for-clunkers bill? The reality is is whether liberty is still more impor- I do, however, that those means are po- we lack the power to just tell people: tant than power. litically impossible. And so they have Go out and buy a car. The Members of this body have our chosen politics over the Constitution, The government is allowed to provide own, independent responsibility to en- and that is why I will support the con- certain incentives for people to do ac- sure that the actions we take are constitutional point of order. tivity that maybe they were not going sistent with the Constitution we have In 1995, the Supreme Court re- to do. But Congress does not have the sworn to support and defend. We can- affirmed that there are indeed limits power to actually tell citizens what to not simply assume that the Constitu- on the means Congress may use to do, in that case, to regulate inactivity. tion necessarily allows us to do what- achieve its goals. The Court rejected a There are all kinds of things this ever we may want to do. And we cannot version of the power to regulate inter- government could tell people what to ignore this question by simply punting state commerce that would make it do if something such as this precedent it to the courts. Litigation is likely, to hard to imagine any activity by indi- is upheld today. This is incredibly dan- be sure, which means that the courts viduals that Congress could not regu- gerous, and the people of America need will be asked to decide certain legal late. The legislation before us would to wake up and the people who are vot- questions, including whether this legis- not only regulate economic trans- ing for this bill need to analyze the un- lation is constitutional. Judges also actions in which individuals choose to intended consequences and the massive take an oath to support and defend the engage, it would require that they en- expansion of power this bill will pro- Constitution and must exercise the gage in those transactions. This is the vide for, if this bill passes, and if the powers it grants to them. Speculating first time that Congress has ever or- Supreme Court does not strike it down. about how courts may decide a hypo- dered Americans to use their own I am going to yield because I have thetical case in the future, however, is money to purchase a particular good or listened to the senior Senator from no substitute for Senators making a service. Crossing that line would do ex- Utah talk eloquently about the provi- decision about an actual piece of legis- actly what the Supreme Court said we sions that are unconstitutional. He is lation today. may not do, and would virtually elimi- much more of a constitutional scholar The Constitution cannot limit gov- nate whatever limits remain on federal than I would ever dream to be. I hope ernment if government controls the government power. That would deprive everybody pays close attention to what Constitution. If the Constitution the Constitution not only of its mean- he is saying and thinks about that oath means whatever we want it to mean, ing, but of its function as a guardian of each one of us made when we raised our then we might as well take an oath to liberty. I urge my colleagues to put the right hand to defend and uphold the support and defend ourselves. Frankly, Constitution ahead of politics and sup- Constitution. Are we doing that if we that is what it seems like we do some- port this point of order. vote for this bill? times. But we cannot take the power There is a lot of talk from the major- I yield the floor. the Constitution provides without the ity about why passing this bill is the The PRESIDING OFFICER. The Sen- limits the Constitution sets. right thing to do for the American peo- ator from Utah. Turning to the legislation before us, ple. It is a decision of conscience for Mr. HATCH. Madam President, I we all want to see a higher percentage them. Well, let us take a closer look at thank my gracious colleague, and I am of Americans covered by health insur- these decisions of conscience. grateful for his kind words. ance. That is a desirable goal, but my After weeks of closed-door, clandes- Each Member of this body has taken friends on the other side of the aisle tine negotiations, Senator REID finally an oath to support and defend the Con- would achieve that goal with a very emerged with a 383-page Christmas list. stitution of the United States. Not any blunt instrument, an order that Ameri- This bill is a dark example of every- Constitution, not their own personal cans purchase health insurance. That thing that is wrong with Washington Constitution, not a fake or pretend is a means that the Constitution does today. Despite all the promises of ac- Constitution, but the real Constitution not permit. While the Constitution countability and transparency, this bill of the United States. That means that gives Congress power to regulate inter- is a grab bag of Chicago-style, back- there will come times when politics state commerce, that power does not room buyoffs. It is nothing more than says yes, but the Constitution says no. mean anything and everything we want a private game of ‘‘Let’s Make A Deal’’ There will come times when the grand to mean. Those words are not infinitely with the special interest groups fi- plans and good intentions of politicians malleable. I agree with the 75 percent nanced by American taxpayers. meet the limits of the Constitution. I of Americans who say that this man- So who won and who lost in this submit that this is one of those times, date to purchase health insurance is game? Well, let’s take a closer look. and the constitutional point of order unconstitutional because Congress’s The AARP issued a strong statement of raised by the Senator from Nevada pre- power to regulate interstate commerce support for this bill. The Reid bill sents each of us with the choice of does not include telling Americans slashes Medicare by almost a $1⁄2 tril- whether politics or the Constitution what they must buy. lion to finance additional government

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The answer is simple: AARP takes in more than half its $1.1 very liberal blog Firedoglake, said the Every other State in the Union will billion budget in royalty fees from following in a recent posting: pay for these special deals, including health insurers and other vendors. The Having to pay 2 percent of their income in my home State of Utah. All of these sale of supplementary Medicare poli- annual fines for refusing to comply with the States that are collectively facing $200 cies, called Medigap plans, make up a IRS acting as the collection agency just billion in deficits and are cutting jobs might wind up being the most widely hated and educational services to survive will major share of this $1.1 billion royalty legislation of the decade. Barack Obama just revenue. AARP has a direct interest in might achieve the bipartisan unity on health now pay to support these special deals. selling more Medigap plans. However, care he always wanted—Democrats and Re- According to the Congressional Budg- there is a strong competitor to publicans are coming together to say ‘‘kill et Office, the Medicaid expansion in Medigap policies, and that happens to this bill.’’ the Reid bill creates a $26 billion un- be the Medicare Advantage plans. Now that we clearly understand the funded mandate on our cash-strapped These private plans provide com- huge windfalls the Reid bill provides States. prehensive coverage, including vision AARP and insurance companies, let me Coincidentally, only one State avoids and dental care, at lower premiums for take a moment to talk about the win- this unfunded mandate; that is, the nearly 11 million seniors across the ners and losers in the so-called abor- State of Nebraska. country. Seniors enrolled in Medicare tion compromise. Of course, let’s not forget about the Advantage do not need Medigap poli- The language to prevent taxpayer biggest loser in this bill: the hard- cies. So what happens when the Reid dollars from being used to fund abor- working American taxpayer. This bill bill slashes this program by almost $120 tions is completely unacceptable. The imposes over $1⁄2 trillion worth of new billion? That is with a ‘‘b.’’ new abortion provisions are signifi- taxes, fees, and penalties on individ- Look at the Washington Post front- cantly weaker than the amendment I uals, families, and businesses. The new page story from October 27, ques- introduced with Senator BEN NELSON fees begin in 2010, while the major cov- tioning whether AARP has a conflict of to ensure that the Hyde amendment, erage provisions do not start until 2014. interest. I quote: which prohibits use of Federal dollars Almost $57 billion in new taxes are col- for elective abortions, applies to any Democratic proposals to slash reimburse- lected before any American sees the ments for . . . Medicare Advantage are wide- new Federal health programs created major benefits of this bill, which are ly expected to drive up demand for private in this bill. The Hyde amendment has largely delayed until 2014, assuming Medigap policies like the ones offered by been public law since 1976. they are benefits at all. AARP, according to health-care experts, leg- The so-called abortion compromise It is also no coincidence that through islative aides and documents. does not stop there. The Reid bill cre- the use of these budget gimmicks, the One of the most disturbing develop- ates a State opt-out charade. However, majority can claim this bill reduces ments in the Reid bill has been the per- this provision does nothing about one our national deficit when we all know petuation and even the doubling of the State’s tax dollars paying for abortions these reductions will never, ever be re- unconstitutional mandate tax from $8 in other States. Tax dollars from Ne- alized. billion to $15 billion. You heard me braska can pay for abortions in Cali- Based on data from the Joint Com- right. This unconstitutional mandate fornia or New York. mittee on Taxation, the nonpartisan tax actually doubled behind closed This bill also creates a new public op- congressional scorekeeper, this bill doors. I have long argued that forcing tion run by the Office of Personnel would break another one of President Americans to either buy a Washington- Management that will, for the first Obama’s campaign promises by in- defined level of coverage or face a tax time, create a federally funded and creasing taxes on 42 million individuals penalty collected through the Internal managed plan that will cover elective and families making less than $250,000 Revenue Service is highly unconstitu- abortions. a year. At a time when we are strug- When you have Senator BOXER, the tional. gling to fight a double-digit unemploy- distinguished Senator from California, We hear a lot of rhetoric from the ment rate, the Reid bill not only in- and Speaker PELOSI, the distinguished other side about Republicans defending creases payroll taxes by nearly $87 bil- Speaker of the House of Representa- the big, evil insurance companies while lion but also imposes $28 billion in new tives—two of the largest pro-abortion they are the defenders of American taxes on employers that do not provide advocates in the Congress—supporting families. The insurance mandate is a government-approved health plans. this sham so-called compromise and clear example of this partisan hypoc- everyone from the U.S. Conference of These new taxes will ultimately be risy. Let me ask one simple question. Catholic Bishops to the National Right paid by American workers in the form Who would benefit the most from this to Life Committee and the Family Re- of reduced wages and lost jobs. However, it is hard to say we didn’t unprecedented, unconstitutional man- search Council opposing it, there is date to purchase insurance or face a only one clear loser, and that is the see these new taxes coming. For years stiff penalty enforced by our friends at majority of Americans who believe in now, many of us have warned that the the Internal Revenue Service? the sanctity of life and oppose the use out-of-control spending in Washington The answer is pretty simple. There of Federal dollars for elective abor- would eventually have to be repaid on are two clear winners under this draco- tions. the backs of American families. In this nian policy—and neither is the Amer- Last, but not least, I wish to spend a bill, the repayment comes in the form ican family. The first winner is the couple of minutes talking about the of stifled economic growth, lost jobs, Federal Government, which could eas- numerous special deals conferred on and new and increasing taxes—and ily use this authority to increase the States in this $2.5 trillion spending bill. they are just the first installment of penalty—or impose similar ones—to How hefty are the price tags for deci- what will be a long and painful extor- create new streams of revenue to fund sions of conscience? Here are some tion of taxpayers if Congress doesn’t more out-of-control spending. highlights: $300 million for Louisiana, stand up and stop these terrible bills. Second, the insurance companies are $600 million for Vermont, $500 million According to a recent study of similar the most direct winners under this infor Massachusetts, $100 million for Ne- proposals by the Heritage Foundation, dividual insurance mandate because it braska, and that is just the beginning. these new job-killing taxes will place would force millions of Americans who At a recent news conference, when approximately 5.2 million low-income would not otherwise do so to become the authors of this legislation were workers at risk of losing their jobs or their customers. I cannot think of a asked about the Nebraska earmark for having their hours reduced and an ad- bigger giveaway for insurance compa- Medicaid funding, the majority leader ditional 10.2 million workers would see nies than the Federal Government or- simply replied: lower wages and reduced benefits.

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13825 Poll after poll tells us about the the American people. Don’t foreclose Mr. ENSIGN. Madam President, I growing opposition against this tax- on their futures. Don’t stick them with wish to make a couple of points regard- and-spend health care bill. The latest even more government spending and ing the constitutional point of order I Rasmussen poll shows that 55 percent more government intrusion. raised on the individual mandate. of Americans are now opposed to this We can fix health care. Many of us Some folks have said that States bill. The CNN poll is an even higher 61 have been working to do just that for mandate car insurance, that is require percent. Among senior citizens, the many years. A truly bipartisan bill people who drive to carry car insur- group most likely to use the health that would garner 75 to 80 votes, which ance; therefore, the Federal Govern- care system, only 33 percent are in has always been the case in the past on ment can mandate the purchasing of favor while 60 percent are opposed. these major pieces of legislation in the health insurance to individuals. Well, I Independent voters are also opposed 2 Senate, would be fiscally sound and think that should be pretty obvious to 1. Opposition in certain State polls provide the American people with the that States can do things that the Fed- such as Nebraska is even higher at 67 fixes they are asking for in the health eral Government cannot. The Constitu- percent. care marketplace, and it would be eas- tion limits the Federal Government as So what is the majority doing to ad- ily achievable if we would just open our to what it can do and it reserves the dress these concerns? Nothing. In fact, hearts and work together. Many of us power for the States and/or the people. despite the efforts by many of us here are standing at the ready, and have Senator HUTCHISON raised this exact on this side of the aisle to express our been for months, to step forward and point in her constitutional point of substantive policy disagreements for pass meaningful health care reform order relating to the 10th amendment. months, one Senator recently said the that truly would help American fami- So this mandate of buying car insur- following: lies and please American taxpayers. To ance—comparing it to the mandate to They are desperate to break this President. date, we have been rebuffed by an un- buy health insurance from the Federal They have ardent supporters who are nearly failing determination by a few to pur- Government is a false comparison. The hysterical at the very election of President sue a nearly Socialist agenda. Federal Government cannot mandate Barack Obama. The birthers, the fanatics, I would ask my colleagues on the you to buy car insurance, nor can it the people running around in right-wing mi- other side of the aisle who do not be- mandate you to buy health insurance. litia and Aryan support groups, it is unbear- lieve in the Europeanization of Amer- It is not within the enumerated powers able to them that President Barack Obama ica, who believe in doing truly bipar- given to this body and to this Federal should exist. tisan work here in the Senate, to step Government in the Constitution. That statement is outrageous. It was forward and vote against advancing This bill is a real threat to liberty made by a very dear friend of mine, and this bill and work with those of us on because of the precedent it sets on the I know he probably didn’t mean it the this side of the aisle who are com- Federal Government being able to tell way it comes out, but it is outrageous. mitted to making a difference to craft individuals what to do. Instead of listening to the policy con- a health care reform bill they can be I wish to quote from a couple of arti- cerns of a majority of Americans, the proud to support. cles that have been written. This one other side is simply dismissing them as Having said that, I do praise my col- was written by David Rivkin and Lee rants from the far right. If the major- league and friend from Montana, Sen- Casey. I am quoting: ity refuses to listen to what Americans ator BAUCUS, who literally did try for But Congress cannot so simply avoid the are telling them now, I am sure they months in many meetings with first constitutional limits on its power. Taxation are going to have a rude wake-up call the Gang of 7—I was in that and then can favor one industry or course of action later. It should come as no surprise finally decided I could not support over another, but a ‘‘tax’’ that falls exclu- that this kind of arrogance and power what they were going to come up with sively on anyone who is uninsured is a penalty beyond Congress’s authority. If the rule has led to congressional approval rat- and expressed to my colleagues that I ings rivaling the most hated institu- were otherwise, Congress could evade all would have to in good conscience leave constitutional limits by ‘‘taxing’’ anyone tions on the planet at a dismal 22 per- the negotiations. He tried, but he was who doesn’t follow an order of any kind— cent and falling. too restricted in what he really could whether to obtain health-care insurance [in One of the biggest tragedies of let- do, so that in the end no Republican this case] . . . or even to eat your vegetables. ting this bill move forward is that it supported what was done. We had a to- It literally sets the precedent to dra- will do nothing to address the funda- tally Democratic bill in the HELP matically expand the powers of the mental issue of rising health care costs Committee, a totally Democratic bill Federal Government far beyond any- in this country. According to the Con- with the Pelosi bill in the House, and thing our Founders wrote and limited gressional Budget Office, CBO, this bill the Reid bill has been done in back this Congress to doing in the Constitu- will actually raise our national health rooms here with the White House, with tion. care costs by $200 billion. The adminis- very few even Democrats involved, and I see the Republican whip here, and I tration’s own Actuary at the Centers many of the things some of my friends wish to yield to him because of his ex- for Medicare and Medicaid Services, worked so hard to get in the bill were pertise on the Constitution. CMS, agrees with this assessment. no longer in it. I want to make a real quick point When this bill fails to work, Ameri- Let me just say there are good people reading from another article. I com- cans will no longer have anything in in this body on both sides of the floor, mend this article to our colleagues by Congress to effectively address the but I have suggested in times past and Randy Barnett and Nathaniel Stewart issue of health care reform. The oppor- I suggest it again: If you can’t get 75 or and Todd Gaziano. It said: tunity to save Medicare and Medicaid 80 votes for a bill that affects every Never in the nation’s history has the com- from their impending financial collapse American, that is one-sixth of the merce power been used to require a person will be lost for another generation. American economy, then you know who does nothing to engage in economic ac- The historic blizzard in Washington that bill is a lousy bill. tivity. earlier this month was the perfect sym- There are many on our side of the There are constitutional experts out bol of the anger and frustration brew- aisle who have stood ready, willing, there telling us this bill is doing some- ing in the hearts of the American peo- and able to try to do something in a bi- thing the Federal Government has ple against this bill. I urge the major- partisan way. I have spent 33 years never done in its history. So I go back ity once again to listen to the voices of here, and I have participated in a bi- to this United States Constitution. the American people. Every vote for partisan way to help bring both sides When we take an oath to defend the this bill is the 60th vote. Let me repeat together on all kinds of health care Constitution, we better take that as a that again. Every vote for this bill is bills that work. This one would work, solemn oath and think about whether the 60th vote. My Republican col- too, if we would just work in a bipar- we are violating that oath we swore to leagues and I are united with the tisan way. uphold and defend when we are voting American people in our fight against I yield the floor. on this bill. this $2.5 trillion tax-and-spend bill. I The PRESIDING OFFICER. The Sen- You must uphold this constitutional implore my colleagues not to do this to ator from Nevada. point of order. It is not just up to the

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You cannot passing something here. That is the So if that money is spent on the new use it to extend the life of Medicare on reason we have this authority to bring entitlement, for example, it cannot ex- one hand and buy new entitlements a constitutional point of order, so that tend the life of Medicare. It cannot and show a budget surplus on the this body considers whether it is con- show a budget surplus of $130 billion. other. stitutional. That is why we must con- In effect, they are saying you can’t sider the consequences of greatly ex- sell the same pony twice. Here is ex- This is what happens when you try to panding the powers of the Federal Gov- actly what the Congressional Budget rush a bill through like this too quick- ernment in this bill, which are so dra- Office had to say about it this morning. ly. Many colleagues on the other side matic that the threat to liberty is very Incidentally, we were tipped off to this of the aisle have said: I will not vote real. by a comment that was in the body of for a bill that is not budget neutral or I yield the floor to the Republican a letter from the CMS Actuary last creates a budget deficit. Then they whip so he can make some comments. week, or December 10, and as we read cannot vote for this legislation now The PRESIDING OFFICER. The Sen- through it and tried to analyze the new that CBO has said what it has said. ator from Arizona. amendment that was just filed, it be- Some of them won’t realize that. That Mr. KYL. Madam President, I com- came clear that, in effect, that is pre- is why I came to the floor. pliment my colleague who has raised a cisely what is being done by the other I compliment Senator SESSIONS for most important constitutional point. side. talking to the Director of the Budget It is true, as Senators, we have an obli- I am not suggesting duplicity. What I Office last night and confirming this, gation not just to throw questions to am suggesting is that they, too, have asking him if he would put it in writ- the Supreme Court but to use our best been misled by the arcane accounting ing, which he did. judgment as to whether we would be language, and until it became crystal I think this is a game changer, my violating the Constitution by adopting clear with the language today, I can friends. If, now that you have this them. understand why there would be confu- knowledge, you still go forward and I think the point of order he raises sion—but no longer. You cannot vote vote for the legislation, those of you with respect to the 10th amendment is for this bill this afternoon and claim who have made the pledge not to do so a very important question and should not to have known that it both buys an will be violating that pledge. You can’t be carefully considered by our col- extension of the trust fund for Medi- use the same pot of money to do two leagues. I think you can only come to care and claims to buy a surplus of $130 separate things, as the CBO said. They one conclusion. I support what he is billion. describe it this way: You can’t do both trying to do. Here is what the CBO says today, De- of these things. You would essentially I also want to make another point, cember 23, which is posted on their Web double-count a large share of that sav- which is that around the country peo- site: ings and thus overstate the situation. ple are calling in and raising questions The key point is that the savings to the HI about other aspects of the bill, also trust fund under this bill would be received Mr. SESSIONS. Will the Senator raising similar questions—the imposi- by the government only once, so they cannot yield for a question? tion of a supermajority rule, for exam- be set aside to pay for future Medicare Mr. KYL. Yes. ple. Can one Congress bind another in spending and at the same time pay for cur- Mr. SESSIONS. The earlier state- that regard? We are only now learning rent spending on other parts of the legislation. ment from CBO was that the legisla- of all of these things, and our constitution would result in reducing the def- ents are only learning of them because In other words, the new entitlements icit by $132 billion, which was cited the most recent amendment was filed that are allegedly paid for under the several times. Well, that was obviously just a few days ago. bill. Here is the last sentence: As we read through it and begin to To describe the full amount of the HI trust before the statement that was issued realize its implications, a lot of ques- fund savings as both improving the govern- today. In boiling it down—and the Sen- tions are being raised. The question I ment’s ability to pay future Medicare bene- ator is an accomplished lawyer— fits and financing new spending outside of want to raise today goes right to the doesn’t this say there is a Medicare would essentially double-count a misimpression created by that previous heart of the claim that supporters have large share of those savings and thus over- made for this legislation; that is, that statement and that this statement state the improvement in the government’s today clarifies it, making absolutely it reduces the Federal budget deficit. fiscal position. clear that it is not creating a surplus Many colleagues on the other side of It would essentially double-count the the aisle have said: I could not vote for or reducing the debt but, in fact, in- money. That is the point Senator creasing the debt? this bill if it did not reduce the Federal GREGG and Senator SESSIONS and I budget deficit, or at least if it were not tried to make earlier this morning. Mr. KYL. Madam President, that is deficit neutral. This is new information, I grant you. exactly right. The title of the docu- It turns out that from information But it is an illustration of why we ment is ‘‘Effects of the Patient Protec- received today from the CBO, it is not should not try to force this bill to a tion and Affordable Care Act on the deficit neutral. In fact, it adds at least vote before Christmas, when we Federal Budget and the Balance in the $170 billion to the deficit, which, of haven’t tried to figure out what this all Hospital Insurance Trust Fund.’’ He course, is very important since tomor- means and the American people starts out by saying CBO has been—— row we are going to be asked to in- haven’t had an opportunity to react to Mr. BAUCUS. Will the Senator yield crease the temporary debt ceiling. This it. for a question? legislation will add to our Federal I quoted to you from the CBO, the debt, not make the situation better, as Mr. KYL. Madam President, I will be nonpartisan office that tells us what happy to in a moment. I ask unani- many of our colleagues have claimed. the fiscal impact is. Here is what I will describe why that is so. I heard mous consent that the CMS report, tipped us off: Richard Foster, the CMS dated December 10, be printed in the another colleague on the other side on Chief Actuary, had sent a letter. This a talk show this morning say that we RECORD following the colloquy so that phrase caught our attention. He said: people can follow what we have done. are going to extend the fiscal life of In practice, the improved part A financing Medicare by 9 years. That is a claim cannot be simultaneously used to finance There being no objection, the mate- that directly conflicts with the claim other Federal outlays, such as the coverage rial was ordered to be printed in the that the bill is budget neutral. expansion under this bill and to extend the RECORD, as follows:

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DEPARTMENT OF HEALTH & HUMAN crease, reflecting higher overall Part B costs At other times, that line is crossed by a SERVICES, CENTERS FOR MEDICARE under the PPACA in 2010 as a result of the speeding, honking tractor-trailer, with out- & MEDICAID SERVICES, provision to postpone the 21.3-percent reduc- lines of shapely women on mud flaps bounc- Security Boulevard, Baltimore, MD. tion in physician payment rates that would ing as it rumbles past. OFFICE OF THE ACTUARY be required for 2010 under current law. Such was the case in the final hours of Thereafter, there would be steadily increas- Senate Majority Leader Harry Reid’s suc- Date: December 10, 2009. ing savings to Part B and associated reduc- cessful attempt to get cloture on health-care From: Richard S. Foster, F.S.A., Chief Actu- tions in the Part B premium and coinsurance reform. Sen. Ben Nelson of Nebraska, the ary. averages. Similarly, the Part A savings last Democratic holdout, was offered and ac- Subject: Estimated Effects of the ‘‘Patient under the PPACA would result in lower ben- cepted a permanent exemption from his Protection and Affordable Care Act’’ on eficiary coinsurance payments for inpatient state’s share of Medicaid expansion, amount- the Year of Exhaustion for the Part A hospital and skilled nursing care. As before, ing to $100 million over 10 years. Trust Fund, Part B Premiums, and Part all of these results are conditional on the Afterward, Reid was unapologetic. ‘‘You’ll A and Part B Coinsurance Amounts. continued application of the productivity ad- find,’’ he said, ‘‘a number of states that are In addition to proposals to expand health justments to the Medicare ‘‘market basket’’ treated differently than other states. That’s insurance coverage, the ‘‘Patient Protection payment updates. what legislating is all about.’’ and Affordable Care Act of 2009’’ (PPACA) in- Expenditure reductions under Part B But legislating, presumably, is also about cludes numerous provisions that would re- translate directly to lower financing require- giving public reasons for the expenditure of duce Medicare costs and one that would in- ments from general revenues and beneficiary public funds. Are Cornhuskers particularly crease the Hospital Insurance payroll tax premiums, since financing is re-established sickly and fragile? Is there a malaria out- rate for high-income individuals and fami- annually to match program costs. Thus, in break in Grand Island? Ebola detected in lies. This memorandum describes the esti- the case of Part B, the savings under the Lincoln? mated impacts of the PPACA, as proposed by PPACA are not needed to help pay for future Reid didn’t even attempt to offer a reason Senate Majority Leader Harry Reid on No- Part B benefit costs, and the full reduction why Medicaid in Nebraska should be treated vember 18, 2009, on the date of exhaustion for in Federal general revenues attributable to differently from, say, Medicaid across the the Medicare Hospital Insurance (Part A) such savings can be used to offset other Fed- Missouri River in Iowa. The majority leader trust fund, on Part B beneficiary premiums, eral costs, such as those arising under the bought a vote with someone else’s money. and on the average level of Part A and Part PPACA coverage expansions. Does this conclusion sound harsh? Listen to Sen. Lindsey Graham of South Carolina, who B beneficiary coinsurance. Mr. KYL. I am now happy to yield. We estimate that the aggregate net sav- accused the Senate leadership and the ad- Mr. BAUCUS. I ask my good friend ministration of ‘‘backroom deals that ings to the Part A trust fund under the from Arizona, is it not true that the PPACA would postpone the exhaustion of amount to bribes’’ and ‘‘seedy Chicago poli- trust fund assets by 9 years—that is, from last statement from CBO, on the degree tics’’ that ‘‘personifies the worst of Wash- 2017 under current law to 2026 under the pro- to which the underlying legislation ington.’’ posed legislation. does or does not reduce the deficit, This special deal for Nebraska raises an The combination of lower Part A costs and stated that the legislation reduces the immediate question: Why doesn’t every higher tax revenues results in a lower Fed- deficit by $132 billion—that is the last Democratic senator demand the same treatment for his or her state? Eventually, they eral deficit based on budget accounting statement after addressing the def- rules. However, trust fund accounting con- will. After the Nelson deal was announced, icit—and also stating that at the end of Sen. Tom Harkin of Iowa enthused, ‘‘When siders the same lower expenditures and addi- the decade, the deficit will be reduced tional revenues as extending the exhaustion you look at it, I thought well, God, good, it date of the Part A trust fund. In practice, between $630 billion and $1.3 trillion? is going to be the impetus for all the states the improved Part A financing cannot be si- Isn’t that the last statement from CBO to stay at 100 percent (coverage by the fed- multaneously used to finance other Federal addressing the question on whether eral government). So he might have done all outlays (such as the coverage expansions this legislation reduces or increases of us a favor.’’ In a single concession, Reid under the PPACA) and to extend the trust the deficit. Isn’t that true? undermined the theory of Medicaid—de- fund, despite the appearance of this result Mr. KYL. Madam President, I don’t signed as a shared burden between states and the federal government—and added to future from the respective accounting conventions. know the document that my friend is The estimated postponement of asset ex- federal deficits. referring to as ‘‘the last document.’’ I Unless this little sweetener is stripped haustion for the Part A trust fund does not think that document, dated December from the final bill by a House-Senate con- reflect the relatively small impact on HI ference committee in January, which would payroll taxes due to economic effects of the 23, today, is the last document. leave Nelson with a choice. He could enrage legislation or the small increase in adminis- Mr. BAUCUS. This is from a day or his party by blocking health reform for the trative expenses under the legislation. As two ago. It is the CBO letter com- sake of $100 million—making the narrowness noted in our December 10, 2009 memorandum menting on the modification. of his interests clear to everyone. Or he on the estimated financial and other effects Mr. KYL. I don’t know. I am not could give in—looking not only venal but of the PPACA, reductions in Medicare pay- aware of that. My point is this: The also foolish. ment updates to Part A providers, based on document released today, in order to How did Nelson gain such leverage in the economy-wide productivity gains, are un- clarify the situation again, said the legislative process in the first place? Because likely to be sustainable on a permanent an- key point is that you can’t do both. many assumed that his objections to abor- nual basis. If such reductions were to prove The government only gets the money tion coverage in the health bill were seri- unworkable within the period 2010–2026, then ous—not a cover, but a conviction. Even the actual HI savings from these provisions once. Therefore, they say, to describe the full amount as both providing a though Nelson, a rare pro-life Democrat, would be less than estimated, and the post- joked in an interview that he might be con- ponement in the trust fund exhaustion date savings to Medicare and providing a sidered a ‘‘cheap date,’’ Republican leader- would be reduced. surplus essentially double-counts the ship staffers in the Senate thought he might The Medicare expenditure reductions money and thus overstates the im- insist on language in the health-care bill pre- under the PPACA would also affect the level provement in the government’s posi- venting public funds from going to insurance of Part B premiums paid by enrollees and the tion. plans that cover abortion on demand, as Part A and Part B beneficiary coinsurance Mr. BAUCUS. Will the Senator fur- Democratic Rep. Bart Stupak had done in amounts. The following table presents these the House. estimated impacts: ther yield? Mr. KYL. I will not yield now. I have Instead, Nelson caved. The ‘‘compromise’’ he accepted allows states to prohibit the cov- Coinsurance Im- a unanimous consent request. erage of elective abortions in their insurance Part B Premium pact (change in I ask unanimous consent that a Impact (change in yearly per capita exchanges. Which means that Nebraska tax- CY monthly premium amount) Washington Post op-ed by Michael payers may not be forced to subsidize insur- amount) Gerson, dated December 23, be printed ance plans that cover abortions in Nebraska. Part A Part B in the RECORD. But they will certainly be required to sub- 2010 ...... $0.00 $0 $90 There being no objection, the mate- sidize such plans in California, New York and 2011 ...... 1.80 ¥1 22 many other states. 2012 ...... ¥3.10 ¥4 ¥37 rial was ordered to be printed in the 2013 ...... ¥4.60 ¥8 ¥55 RECORD, as follows: In the end, Nelson not only surrendered his 2014 ...... ¥5.30 ¥13 ¥64 beliefs, he also betrayed the principle of the [From the Washington Post, Dec. 23, 2009] 2015 ...... ¥7.20 ¥18 ¥86 Hyde Amendment, which since 1976 has pre- 2016 ...... ¥9.00 ¥23 ¥108 FOR SALE: ONE SENATOR (D–NEB.); NO 2017 ...... ¥10.80 ¥28 ¥129 vented the coverage of elective abortion in 2018 ...... ¥12.50 ¥34 ¥151 PRINCIPLES, LOW PRICE federally funded insurance. Nelson not only (By Michael Gerson) violated his pro-life convictions, he also may As indicated, Part B premiums and average Sometimes there is a fine ethical line be- force millions of Americans to violate theirs coinsurance payments would initially in- tween legislative maneuvering and bribery. as well.

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13828 CONGRESSIONAL RECORD — SENATE December 23, 2009 I can respect those who are pro-life out of joint session of Congress, did he not, can do this is by sending an IOU back conviction and those who are pro-choice out and said this legislation would not add to the Social Security trust fund, but, of conviction. It is more difficult to respect one dime or one dollar to the debt of of course, the IOU comes out of the politicians willing to use their deepest be- the United States? pocket of the taxpayers where we have liefs—and the deepest beliefs of others—as bargaining chips. Mr. KYL. Mr. President, it is my to borrow it and it is still an obligation In a single evening, Nelson managed to un- recollection that is pretty close to even though it shows up on accounting dermine the logic of Medicaid, abandon three what the President said. I guess maybe books as obligation satisfied. decades of protections under the Hyde this would not be such a big deal unless Mr. BAUCUS. Will the Senator yield Amendment and increase the public stock of you are trying to do two things with for a simple question? cynicism. For what? For the sake of legisla- the same pot of money. As long as the Mr. KYL. Sure. tion that greatly expands a health entitle- other side is also claiming we are actu- Mr. BAUCUS. I wonder if the Senator ment without reforming the health system; is aware that CBO this morning at 9:57 that siphons hundreds of billions of dollars ally extending the life of Medicare, out of Medicare instead of using that money which I heard one of my colleagues do sent an e-mail to all relevant staff that to reform Medicare; that imposes seven taxes on television this morning, then you its estimates with regard to budget def- on Americans making less than $250,000 a cannot make this other claim. You can icit reduction still stand, still hold. year, in direct violation of a presidential claim one or the other but you cannot CBO still estimates this legislation re- pledge; that employs Enron-style accounting claim both. That is precisely what the sults in a $132 billion deficit reduction. methods to inflate future cost savings; that head of CBO said: That was an e-mail sent today. Is the pretends to tame the insurance companies To describe the full amount of HI trust Senator aware of that e-mail? while making insurance companies the larg- fund savings as both improving the govern- Mr. KYL. I did not see that e-mail. I est beneficiaries of reform. And, yes, for $100 million. It is the cheap ment’s ability to pay future Medicare bene- assume that is the same communique date equivalent of Taco Bell. fits and financing new spending outside of about which the Senator from Alabama Medicare would essentially double-count a is talking. It shows you exactly why Mr. SESSIONS. The leader’s time is large share of those savings and thus over- up at 6 minutes after the hour; is that this is so confusing and why I am a lit- state the improvement in the government’s tle bit concerned about the correct? fiscal position. The PRESIDING OFFICER. The Re- politicization of the CBO. Mr. SESSIONS. To follow up on that, Last night and again this morning, publican leader has 61⁄2 minutes re- is it not true—and President Obama we have a memo that says you cannot served. Monday flatly stated in one press con- Mr. SESSIONS. I ask Senator KYL pay twice. If after that he says I still ference that it would reduce our deficit show that as a surplus, then what he this: The CBO report this morning es- over 10 years by $130 billion and extend sentially says you cannot count the has to also be saying is, and therefore the Medicare Program by 9 years, it does not extend the life of the Social same money twice; correct? which is patently false, it would ap- Mr. KYL. Madam President, it Security trust fund. As I said, you can pear. I am not sure he understood the doesn’t say you cannot. It just says do one or the other, or roughly half of complexities of all this accounting, that is what would happen if you at- each, but you cannot do both. If he is but, in fact, I think he misspoke at tempted to apply the money both to choosing to say it is applied to one, that point. Would the Senator from Ar- the trust fund and to the additional then our colleagues cannot continue to izona not agree? spending. It says it ‘‘would essentially say that it applies to the other. Mr. KYL. Mr. President, I obviously double count and thus overstate.’’ Mr. President, Americans’ biggest What I am saying is that it doesn’t cannot get into the President’s mind, complaint about the current say you can’t do it, but they are saying but I must say that all of us had missed healthcare system is the increasing you only have one pot of money to pay this point. I said before I ascribe no ill cost of health insurance premiums. for two things and, obviously, you can- will to anybody on the other side. This President Obama promised that his not do that and be honest about the ac- is hard to understand. Accounting can healthcare reform bill would address counting. That is my interpretation of be arcane. That is why this statement this problem. As he said during his what it says. from the CMS was a little troubling to campaign, ‘‘I have made a solemn Mr. SESSIONS. I think that is cor- us when we first read it. They said: pledge that I will sign a universal rect. The Senator may not know this. I Despite the appearance of this result from healthcare bill into law . . . that will understand that at the request of our the respective accounting conventions— . . . cut the cost of a typical family’s Democratic colleagues, they have re- Which is a fancy way of saying ac- premium by up to $2,500 a year.’’ turned to CBO and gotten another countants have their way of showing By the President’s own yardstick, statement this morning, perhaps so things and that might have confused this bill is a failure, since it actually they can continue to make the argu- you— increases premiums for many Ameri- ment that somehow this creates a sur- in practice, improved party financing cannot cans and fails to restrain growths for plus. But staff having examined that, I be simultaneously used to finance other Fed- the rest.’’ am informed that it in no way refutes eral outlays. Recently, the nonpartisan Congres- this morning’s statement that this You cannot use the same pot of sional Budget Office (CBO) concluded cannot simultaneously fund a new pro- money of $10 to buy two different $10 that, under this bill, those in the indi- gram and strengthen Medicare at the benefits. You can buy one or the other vidual market—that is, those without same time. or half of each, but you cannot buy employer-sponsored insurance—will I think it is a matter, will Senator both. As the old saying goes, you can- face premium increases between 10 and KYL not agree—I am not afraid to talk not sell the same pony twice. 13 percent. That’s approximately $2,100 about it—if we need to slow down be- Mr. SESSIONS. It said, did it not, in per family by 2016. fore we vote, so be it. First of all, is the that CMS letter that was a fact ‘‘de- A second study, from the actuarial Senator convinced, as Senator GREGG spite the appearance of this result from firm Oliver Wyman, also concluded pre- indicated this morning and CBO does, the respective accounting conven- miums will rise under this legislation, that we are, in fact, passing a bill that tions’’? Were they not warning us that thanks to burdensome new Federal would, if it passes, add to the debt ap- it might appear this way but it cannot mandates and requirements and several proximately $170 billion, as staff has be that way? new taxes. calculated based on this letter, and Mr. KYL. Mr. President, our col- In the individual market, this study would not reduce the debt by $132 bil- league Senator GREGG, a respected predicts, premiums will rise by $3,300 lion? member of the Budget Committee, per year for family coverage and $1,500 Mr. KYL. Mr. President, I am abso- pointed out this morning why that is for individuals. In my home State of lutely convinced of that, yes. so, and my colleague from Alabama Arizona premiums could rise by as Mr. SESSIONS. I do not think there can do that as well. much as 72 percent in the individual is any dispute about it. I think that is There are two different systems of market. the fact. It has been exposed. The accounting by two different parts of This study also tells us that the President looked us in the eye in a the government. The only way they small group market would see premium

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13829 increases. Small employers purchasing of Convenience Stores; the National I submit that small business owners new policies in the reformed market Automobile Dealers Association; Print- and their representatives have the would experience premiums up to 20 ing Industries of America; the Society most intimate knowledge of which percent higher in 2019 than they would of American Florists. The list goes on policies will benefit them and which under current law. and on. stand to hurt them. They are telling us Oliver Wyman also estimates that, if These businesses wrote a letter to this bill will hurt them. this bill is enacted, 2.9 million fewer Congress expressing disapproval of the Finally, I would like to point out Americans would have insurance bill’s huge costs and failure to bring that this bill does not even guarantee through small-employer policies. down premiums, among other provi- that all Americans have insurance. So what this bill does is raise the sions that hurt small businesses. They This bill leaves 24 million Americans cost of insurance for many Americans believe that increased premiums have a uninsured. and then force everyone to buy a pol- domino effect, hurting both the em- We are going to spend $2.5 trillion to icy—and not just any policy, one that ployer and the employee, resulting in raise the price of insurance for millions is been approved by Washington! fewer jobs, depressed wages, and fewer of Americans and keep affordable in- Our friends on the other side of the choices. surance out of reach for millions more. aisle argue that many families will re- I will share some excerpts from their There are much better ways to give ceive government subsidies to help letter, with regard to increased pre- access to affordable healthcare to all with the increased cost of insurance miums and costs: Americans. brought on by new mandates, taxes, They write: We should start with serious medical and Federal requirements. The bill does little to make insurance liability reform, which has been proven There are a few problems with this more affordable and the [small business] tax in Texas, Arizona, and Missouri to argument. credit is so limited, few will be able to ob- bring down costs for patients and doc- First, not every family will qualify tain affordable insurance. tors. for such subsidies. Indeed, 14 million They go on: We need to allow Americans to buy Americans who buy their own coverage The impact on non-group premiums is . . . insurance across State lines. This is would earn too much to get a subsidy, devastating, as they are expected to increase one of the most commonsense reforms according to the Congressional Budget an average of 10–13 percent per person. Those out there. Why should Americans be Office. estimates, in addition to the financing provi- denied access to lower-cost policies So 14 million Americans will be re- sions in the bill, slam the ‘‘savings’’ door just because they are being sold in quired, by Washington, to purchase un- shut. other states? subsidized insurance that is more ex- Another organization, the National We should also allow small busi- pensive than they could get under cur- Federation of Independent Business, nesses to band together to pool their rent law. And this is being called re- has also raised major objections to this risk and purchase insurance at the form? bill with regard to increased premiums. same rates large corporations get. Second, those who do receive a sub- Here is a telling excerpt from a letter Enacting these simple reforms would sidy may find the subsidy does not they wrote to the two Senate party cost little, if anything, and would be begin to cover the total cost of the in- leaders: sure to bring down costs. That is the crease. So, those families, too, will ac- H.R. 3590 fails the small business test, and, kind of reform Americans would be tually be worse off. therefore, fails small business. The most re- sure to support. And, finally, the heart of this debate cent CBO study detailing the effect [this bill] The ACTING PRESIDENT pro tem- is a basic question: What is the point of will have on insurance premiums reinforces pore. The Senator’s time has expired. raising the price of insurance and then that, despite claims by its supporters, the The majority leader is recognized. bill will not deliver the widely-promised help subsidizing a portion of the increase? to the small business community. Mr. REID. Mr. President, I ask unan- You are still raising premiums and imous consent that the Baucus motion Bruce Josten of the U.S. Chamber of someone has to pay for subsidies. to waive be set aside. Americans have asked us to lower Commerce concurs. He recently said: The ACTING PRESIDENT pro tem- healthcare costs, not raise them and The fundamental failure of the Senate bill pore. Without objection, it is so or- then provide subsidies to those who is its failure to address cost containment. We dered. have a bill that raises taxes on pretty much qualify. And they certainly don’t want everything that moves in the healthcare Mr. REID. Mr. President, I want to to pay more in taxes to subsidize their space. And successful cost containment prac- take a moment to talk about the mo- own insurance—but that is what the tices that are in the marketplace, like tion to table the appeal by Senator Democrats’ bill would have them do. health savings accounts or flexible spending CORNYN and the ruling of the Chair As the Wall Street Journal recently accounts, are dramatically weakened in this that no point of order lies under rule editorialized, ‘‘The [Reid] bill will in- . . . Healthcare cost increases are going to XLIV. crease costs, but it will then disguise crowd out the compensation pool. Senator CORNYN’s appeal is not about those costs by transferring them to The majority leader recently dis- transparency and certainly not about taxpayers from individuals:’’ agreed with the notion that this bill in- disclosure. It is about delay and ob- Not surprisingly, small business asso- creases costs, citing a prediction by the struction. That is what the whole tenor ciations, whose members would be President’s Council of Economic Advis- of all the Republican statements has overwhelmingly impacted by this legis- ers that the bill before us would bring been regarding this legislation. lation, are disappointed. down costs. The vote is whether we create a The Small Business Coalition for Af- This is the same council that told us whole new point of order even though fordable Healthcare, for one, opposes unemployment would peak at 8 percent Senate rules at this stage do not allow this bill. if only Congress would pass the stim- a point of order. They want to rewrite Their name says it all. This organiza- ulus. As Americans know, Congress the rules at a whim, not for purpose of tion believes, as all of us do here in the passed the stimulus, and we are now at disclosure and transparency but for the Senate, that the status quo is not ac- 10 percent unemployment. purpose of delay and obstruction. ceptable and not sustainable. But they Moreover, if the Council of Economic The legislative history of the Honest disapprove of this legislation because, Advisors is supposed to be the Bible of Leadership and Government Act spe- as they wrote in a letter to Congress, economic analysis and administration cifically addresses the issue of whether ‘‘it costs too much and delivers too lit- officials know best, why is it that on a point of order lies in this instance: tle.’’ the same day the President’s top eco- If rule XLIV does not expressly provide for Here are just a few of the dozens of nomic advisor Larry Summers declared a point of order with respect to a provision, businesses represented by this organi- on This Week, ‘‘the recession is over,’’ then no point of order shall lie under the zation: The Americans Hotel and Lodg- the Council’s chair, Christina Romer, provision. ing Association; American Bakers As- told Meet the Press viewers that ‘‘of We open a Pandora’s box if we re- sociation; the Independent Electrical course’’ the recession is not over? So, verse the ruling of the Chair on appeal. Contractors; the National Association who should we believe on costs? What would be the new rule? How

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13830 CONGRESSIONAL RECORD — SENATE December 23, 2009 would the new rules be implemented? Mr. REID. I yield back that time and time in the history of the United What happens to the health care bill? ask the vote start earlier. States this bill will do something the Who decides the answers to these ques- I withdraw that request. Federal Government has never done be- tions? I ask unanimous consent that prior fore. This bill would do something that Moreover, if we overrule the Chair, to each vote today there be 2 minutes is beyond Congress’s powers to author- we would be setting a dangerous prece- of debate equally divided and con- ize. This bill is unconstitutional and I dent that points of order lie even if not trolled in the usual form. urge all Members to vote in support of provided for in Senate rules, standing The ACTING PRESIDENT pro tem- the constitutional point of order. orders, or procedures. pore. Without objection, it is so or- The ACTING PRESIDENT pro tem- It is clear the purpose of this is to ob- dered. pore. The Senator’s time has expired. struct and delay. I urge my colleagues There is now 2 minutes equally di- The Senator from Montana. to vote to table the Cornyn appeal of vided. Mr. BAUCUS. Mr. President, our the ruling of the Chair when that The majority leader. committee and the HELP Committee comes. Mr. REID. Mr. President, stop the 2 have given a lot of thought to the pro- Mr. CORNYN. Will the Senator yield minutes from running. I do want to ex- visions in this legislation. We also gave for a question? plain. We will shortly have a series of a lot of thought to the constitu- Mr. REID. No, I will not. The health up to seven votes. As we noted in the tionality of the provisions—how they care votes we have held this week have last few days, if Members remain at work and the interrelationship between been procedural in nature. Each has their desks, the votes can be concluded the power of Congress and the States been a party-line vote and much of this much earlier. and what States will be doing, particu- debate is focused on politics. But ENSIGN POINT OF ORDER larly under the commerce clause and health reform is not about procedure or The ACTING PRESIDENT pro tem- the tax-and-spending powers of the partisanship or politics. It is about pore. There is now 2 minutes of debate Constitution. people—people like the thousands who equally divided prior to a vote on the It is very strongly our considered write us every day. constitutional point of order offered by judgment, and that of many constitu- At my desk, we have a few of the let- the Senator from Nevada, Mr. ENSIGN. tional scholars who have looked at ters we have picked up in the last day Who yields time? these provisions—and many articles or so. Sorry, staff has had to lift that The majority leader. have been put in the Record—that and I didn’t. This is a few we have got- Mr. REID. Mr. President, the vote se- clearly these provisions are constitu- ten. Look at this. They are all basi- quence will be as follows: Ensign con- tional. The commerce clause is con- cally the same. Each of these letters stitutional point of order; Corker un- stitutional, the tax-and-spending right here represents a story, a trag- funded mandates point of order; Baucus clause, and the provisions clearly are edy, a life, a death, but most of all, a motion to table the Cornyn appeal rul- constitutional. person—a person, people who wake up ing of the Chair; Hutchison constitu- I yield back my time. every morning and struggle to get tional point of order. I have been ad- The ACTING PRESIDENT pro tem- health care or struggle to hold on to vised that a Republican Member will pore. The question is on agreeing to what they have, people who lie awake move to suspend the rules so he can the constitutional point of order made every night second-guessing the ago- offer his amendment under rule XXII. by the Senator from Nevada, Mr. EN- nizing decisions they have to make He is going to be allowed 10 minutes. SIGN, that the amendment violates ar- about what to sacrifice just to stay This will require 67 votes because it is ticle I, section 8 of the Constitution, healthy. an effort to change the rules. Fol- and the fifth amendment. Here is a letter that was written to lowing that we will have adoption of The question is, Is the point of order Senator BOB CASEY of Pennsylvania. the substitute amendment and cloture well taken? Listen to what this woman said: on H.R. 3590. So there is a series of The yeas and nays have been ordered. Dear Senator CASEY. In a country like the seven votes. United States, we shouldn’t need a tip jar in The clerk will call the roll. The ACTING PRESIDENT pro tem- The bill clerk called the roll. an ice cream shop to raise money for a kid pore. Who yields time? with leukemia. Jennifer Wood. Mr. KYL. The following Senator is The Senator from Nevada is recog- necessarily absent: the Senator from Here is another one of those letters. nized. This one is from a father in North Las Kentucky (Mr. BUNNING). Mr. ENSIGN. Mr. President, I raise a Further, if present and voting, the Vegas, NV: constitutional point of order because I Can you imagine what it is like to have a Senator from Kentucky (Mr. BUNNING) am concerned that the health reform would have voted ‘‘yea.’’ doctor look you in your eye when you hold bill violate’s Congress’s enumerated your 1-year-old child and be told that you The ACTING PRESIDENT pro tem- will likely outlive your son? powers under article I, section 8 and pore. Are there any other Senators in the fifth amendment takings clause of He goes on to say: the Chamber desiring to vote? the Constitution. The yeas and nays resulted—yeas 39, I am certain my story is not unique, but it Each one of us takes an oath to de- is real. Stop forcing Americans to use the nays 60, as follows: fend the Constitution of the United most expensive point of service, the emer- [Rollcall Vote No. 389 Leg.] gency room, to get what the system won’t States. We do not take an oath to re- YEAS—39 give them. Let’s make all Americans equal form health care. We do not take an in the eyes of health care, please. oath to do anything else here but to de- Alexander DeMint Lugar Barrasso Ensign McCain This legislation is not about the fend the Constitution of these United Bennett Enzi McConnell number of pages of this bill. It is about States. Bond Graham Murkowski the number of people—people such as Health care reform needs to fit with- Brownback Grassley Risch in the Constitution. The Constitution Burr Gregg Roberts the man whose letter I just read who Chambliss Hatch Sessions was told by a doctor that he would limits the powers we have. The Con- Coburn Hutchison Shelby likely outlive his son. It is about the gress, the U.S. Government has never Cochran Inhofe Snowe number of people whom this bill will enacted anything that would regulate Collins Isakson Thune Corker Johanns Vitter help. That is what this is all about. It someone’s inactivity in the way the in- Cornyn Kyl Voinovich is about fairness. So when people are dividual mandate in this health care Crapo LeMieux Wicker bill would. Anything we have ever hurt or sick, they can go see somebody NAYS—60 who can help them and not lie awake done, somebody actually had to have Akaka Burris Dorgan at night wondering if they will outlive an action before we could tax or regu- Baucus Byrd Durbin their 1-year-old son. late it. In this case, if you choose to Bayh Cantwell Feingold Mr. President, how much time re- not do something—in other words, if Begich Cardin Feinstein you do not choose health insurance— Bennet Carper Franken mains? Bingaman Casey Gillibrand The ACTING PRESIDENT pro tem- this bill will actually tax you. It will Boxer Conrad Hagan pore. There is 11⁄2 minutes remaining. act as an onerous tax. So for the first Brown Dodd Harkin

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13831 Inouye Lincoln Sanders to the motion to waive the Budget Act eling to the Midwest are going to face Johnson McCaskill Schumer Kaufman Menendez Shaheen point of order raised under section horrendous problems, that we could Kerry Merkley Specter 425(a)(2). have that vote this evening? It will not Kirk Mikulski Stabenow The yeas and nays were previously affect the Senator from Vermont one Klobuchar Murray Tester ordered. way or the other, but it will affect a lot Kohl Nelson (NE) Udall (CO) Landrieu Nelson (FL) Udall (NM) The clerk will call the roll. of Senators, Republicans and Demo- Lautenberg Pryor Warner Mr. KYL. The following Senator is crats alike, who have to fly through Leahy Reed Webb necessarily absent: the Senator from the Midwest to get where they are Levin Reid Whitehouse Kentucky (Mr. BUNNING). going. Lieberman Rockefeller Wyden Further, if present and voting, the Mr. MCCONNELL. Regular order. NOT VOTING—1 Senator from Kentucky (Mr. BUNNING) CORNYN APPEAL OF THE RULING OF THE CHAIR Bunning would have voted ‘‘nay.’’ The PRESIDING OFFICER. Regular The ACTING PRESIDENT pro tem- The PRESIDING OFFICER. Are there order has been called for. pore. The point of order is not well- any other Senators in the Chamber de- There is now 2 minutes equally di- taken. siring to vote? vided prior to a vote on the motion to CORKER POINT OF ORDER The result was announced—yeas 55, table the appeal of the ruling of the The ACTING PRESIDENT pro tem- nays 44, as follows: Chair. The Senator from Texas. pore. There is now 2 minutes equally [Rollcall Vote No. 390 Leg.] YEAS—55 Mr. CORNYN. Mr. President, upon divided prior to the vote on the motion passage of the Honest Leadership and Akaka Franken Merkley to waive the point of order raised by Open Government Act, the majority the Senator from Tennessee, Mr. CORK- Baucus Gillibrand Mikulski Begich Hagan Murray leader said: ER. Bennet Harkin Nelson (FL) I believe last November Americans . . . Who yields time? Bingaman Inouye Pryor asked us to make Government honest. We The Senator from Tennessee is recog- Boxer Johnson Reed Brown Kaufman have done that . . . This is the toughest re- nized. Reid form bill in the history of this body as it re- Burris Kerry Rockefeller Mr. CORKER. Mr. President, thank Byrd Kirk lates to ethics and lawmaking. Sanders you so much. Cantwell Klobuchar Schumer This is an appeal to the ruling of the Cardin Kohl There is almost nothing held in lower Specter Chair that that provision of rule XLIV esteem than for the Senate to pass Carper Landrieu Casey Lautenberg Stabenow is unenforceable. Why would anybody laws in this body that cause mayors Conrad Leahy Tester who voted overwhelmingly to make and Governors to have budgetary prob- Dodd Levin Udall (CO) this the toughest reform bill in the his- lems because we create unfunded man- Dorgan Lieberman Udall (NM) Durbin Lincoln Whitehouse tory of the body render this rule tooth- dates. Feingold McCaskill Wyden less by agreeing with the attempt to Many of you have been mayors and Feinstein Menendez set this aside and to waive its effect? Governors, and for that reason, in 1995, NAYS—44 I ask my colleagues to make sure we in a bipartisan way, a law was cre- vote for transparency, for honesty, for ated—15 Senators on the other side of Alexander Ensign Murkowski Barrasso Enzi Nelson (NE) open government. Vote no on this mo- the aisle who are now serving sup- Bayh Graham Risch tion to waive. ported this law—to keep us from pass- Bennett Grassley Roberts The PRESIDING OFFICER. The Sen- ing unfunded mandates. CBO has stated Bond Gregg Sessions ator from Montana. Brownback Hatch without a doubt that this bill violates Shaheen Mr. BAUCUS. Mr. President, the Burr Hutchison Shelby that. Chambliss Inhofe Snowe plain text of the language in rule XLIV Coburn Isakson I urge Members to vote against this Thune provides that no point of order lies Cochran Johanns motion to waive that. It is important. Vitter against amendments. That is the way Collins Kyl Voinovich It says everything about the way we do Corker LeMieux the draftees intended it. That is the business here in Washington. Please, Cornyn Lugar Warner way they wrote rule XLIV. That is why Crapo McCain Webb let’s not pass another huge unfunded Wicker the Presiding Officer ruled that way on mandate to the States at a time when DeMint McConnell the advice of the Parliamentarian. We they all are having budgetary prob- NOT VOTING—1 should support the Chair and the Par- lems. This speaks to the essence of who Bunning liamentarian and vote for the motion we are and the arrogance many people The PRESIDING OFFICER. The mo- to table the appeal of the ruling of the perceive us to have here in Wash- tion to waive section 425(a)(2)requiring Chair. ington. a simple majority is agreed to. I yield back the remainder of my The ACTING PRESIDENT pro tem- The point of order falls. time. pore. The Senator from Montana is rec- The majority leader is recognized. Mr. CORNYN. Do I have time remain- ognized. Mr. REID. Mr. President, I have spo- ing? Mr. BAUCUS. This point of order ken to the Republican leader. Senators The PRESIDING OFFICER. One second. calls for legislation to impose an obli- on both sides feel that it would be to Mr. CORNYN. I ask my colleagues to gation on States to extend their cov- their advantage if we had the vote on erage on Medicaid. Under existing law, vote no on the motion to waive. Christmas Eve at 7 a.m. rather than 8 The PRESIDING OFFICER. The on average, the Federal Government a.m. That being the case, I ask unani- question is on agreeing to the motion pays about 57 cents on the dollar for mous consent that the vote start at 7 to table the appeal of the ruling of the every dollar spent under Medicaid. a.m. on Christmas Eve. Chair that there is no point of order Under this legislation, the Federal The PRESIDING OFFICER. Without under rule XLIV, paragraph 4(a). Government will pay 100 percent of objection, it is so ordered. The yeas and nays were previously that obligation for newly enrolled Mr. LEAHY. May I address a question ordered. beneficiaries up through the year 2016. to the distinguished majority leader. The clerk will call the roll. Afterward, the Federal Government The PRESIDING OFFICER. The Sen- The assistant legislative clerk called will pay on average 90 percent of the ator from Vermont. the roll. cost of new enrollees. Therefore, I Mr. LEAHY. Mr. President, it will Mr. KYL. The following Senator is think this is a very fair deal for States, not affect my travel plans because I necessarily absent: the Senator from and I urge my colleagues to waive the long ago decided—— Kentucky (Mr. BUNNING). point of order. Mr. REID. If I could interrupt my Further, if present and voting, the Mr. President, I also ask consent friend, quit while you are ahead. Senator from Kentucky (Mr. BUNNING) that this vote and all subsequent votes Mr. LEAHY. You have your agree- would have voted ‘‘nay.’’ in this sequence be 10-minute votes. ment on this. But is there any possi- The PRESIDING OFFICER. Are there The PRESIDING OFFICER (Mr. bility that our friends on the other any other Senators in the Chamber de- SANDERS). The question is on agreeing side, knowing that those who are trav- siring to vote?

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00037 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13832 CONGRESSIONAL RECORD — SENATE December 23, 2009 The result was announced—yeas 57, ercise of the commerce clause. We fur- The PRESIDING OFFICER. The Sen- nays 42, as follows: ther believe Congress has power to ator has that right. [Rollcall Vote No. 391 Leg.] enact this legislation pursuant to the The Senator from South Carolina. YEAS—57 taxing and spending powers. This bill DEMINT MOTION TO SUSPEND Akaka Gillibrand Murray does not violate the 10th amendment Mr. DEMINT. Mr. President, in just a Baucus Hagan Nelson (NE) because it is an appropriate exercise of moment I will move to suspend the Begich Harkin Nelson (FL) powers delegated to the United States, rules for the purpose of offering an Bingaman Inouye Pryor Boxer Johnson Reed and because our bill fundamentally amendment that would ban the prac- Brown Kaufman Reid gives States the choice to participate tice of trading earmarks for votes. Burris Kerry Rockefeller in the exchanges themselves or, if they While I want to be careful not to sug- Byrd Kirk Sanders do not choose to do so, to allow the gest wrongdoing by any Member, there Cantwell Klobuchar Schumer Cardin Kohl Shaheen Federal Government to set up the ex- has been growing public concern that Carper Landrieu Specter changes fully within the provisions as earmarks were used to buy votes for Casey Lautenberg Stabenow interpreted by the Supreme Court of this legislation. It has been argued by Conrad Leahy Tester Dodd Levin Udall (CO) the 10th amendment. some that this practice is acceptable Dorgan Lieberman Udall (NM) I urge my colleagues to vote against because it is necessary to get things Durbin Lincoln Warner the point of order. done in the Senate. I reject that argu- Feingold Menendez Webb The PRESIDING OFFICER. The ment, and I urge my colleagues to put Feinstein Merkley Whitehouse Franken Mikulski Wyden question is on the constitutional point an end to business as usual here in the of order made by the Senator from Senate. NAYS—42 Texas, Mrs. HUTCHISON, that the The House of Representatives has a Alexander Crapo Lugar amendment violates the 10th amend- rule prohibiting the use of earmarks to Barrasso DeMint McCain Bayh Ensign McCaskill ment. buy votes for legislation. If we were in Bennet Enzi McConnell The question is, Is the point of order the House considering this bill, vote Bennett Graham Murkowski well taken? trading would be a direct violation of Bond Grassley Risch The yeas and nays have been ordered. Brownback Gregg Roberts the ethics rules. Unfortunately, a vote- Burr Hatch Sessions The clerk will call the roll. trading rule does not exist in the Sen- Chambliss Hutchison Shelby The legislative clerk called the roll. ate. Coburn Inhofe Snowe Mr. KYL. The following Senator is During the debate on the lobbying Cochran Isakson Thune necessarily absent: the Senator from Collins Johanns Vitter and ethics reform bill in the 110th Con- Kentucky (Mr. BUNNING). Corker Kyl Voinovich gress, the senior Senator from Illinois, Further, if present and voting, the Cornyn LeMieux Wicker Mr. DURBIN, and I offered an earmark Senator from Kentucky (Mr. BUNNING) NOT VOTING—1 reform amendment which contained would have voted ‘‘yea.’’ the following language: Bunning The PRESIDING OFFICER. Are there The motion was agreed to. any other Senators in the Chamber de- A Member may not condition the inclusion of language to provide funding for a congres- Mr. REID. I move to reconsider the siring to vote? vote. sional earmark . . . on any vote cast by an- The result was announced—yeas 39, other Member. Mr. DURBIN. I move to lay that mo- nays 60, as follows: The Durbin-DeMint amendment was tion on the table. [Rollcall Vote No. 392 Leg.] written to mirror Speaker PELOSI’s The motion to lay on the table was YEAS—39 agreed to. earmark reforms in the House. The Alexander DeMint Lugar Durbin-DeMint amendment passed the HUTCHISON POINT OF ORDER Barrasso Ensign McCain The PRESIDING OFFICER. There is Bennett Enzi McConnell Senate by a vote of 98 to 0 and was in- now 2 minutes, equally divided, prior Bond Graham Murkowski cluded in S. 1, the Honest Leadership to a vote on the constitutional point of Brownback Grassley Risch and Open Government Act, which Burr Gregg Roberts passed the Senate by a vote of 96 to 2. order made by the Senator from Texas, Chambliss Hatch Sessions Mrs. HUTCHISON. Coburn Hutchison Shelby The rule against trading votes for The Senator from Texas. Cochran Inhofe Snowe earmarks was in the bill when it left Collins Isakson Thune the Senate, but then the bill moved to Mrs. HUTCHISON. Mr. President, the Corker Johanns Vitter 10th amendment says: Cornyn Kyl Voinovich a closed-door negotiation. Somehow, at The powers not delegated to the United Crapo LeMieux Wicker some point in those closed-door nego- States by the Constitution . . . are reserved NAYS—60 tiations, someone dropped the ear- to the States. . . . mark-for-vote language. I have no idea Akaka Franken Mikulski In this bill, a State such as Texas and Baucus Gillibrand Murray who it was, and we may never know. many other States that have taken full Bayh Hagan Nelson (NE) Remember, this bill was called the responsibility for insurance plans for Begich Harkin Nelson (FL) Honest Leadership and Open Govern- Bennet Inouye Pryor their employees and teachers will have Bingaman Johnson Reed ment Act. In any case, the vote-trading to justify any change in those terms to Boxer Kaufman Reid rule was dropped from the bill, which the Federal Government. Brown Kerry Rockefeller then passed the Senate and was signed The majority claims the commerce Burris Kirk Sanders by the President. Byrd Klobuchar Schumer clause gives them the power to do what Cantwell Kohl Shaheen Just to confirm all of this, I wish to is in this bill. But what they fail to Cardin Landrieu Specter make a parliamentary inquiry to the mention is the power to regulate inter- Carper Lautenberg Stabenow Chair. Is the Chair aware of any prohi- Casey Leahy Tester bition in the Standing Rules of the state commerce has not been the basis Conrad Levin Udall (CO) for a robust role in insurance regula- Dodd Lieberman Udall (NM) Senate such as the previously ref- tion. Dorgan Lincoln Warner erenced rule contained in the Durbin- This is an encroachment of the Fed- Durbin McCaskill Webb DeMint amendment or in the Rules of Feingold Menendez Whitehouse eral Government into a role left to the Feinstein Merkley Wyden the House of Representatives? States in the Constitution. The 10th The PRESIDING OFFICER. No such amendment is being eroded by an ac- NOT VOTING—1 rule exists in the Senate. tivist Congress, and it is time to stop it Bunning Mr. DEMINT. No such rule exists. now. The PRESIDING OFFICER. The I have an amendment which would I urge a vote to uphold this point of point of order is not agreed to. correct this error. It mirrors the Dur- order. The Senator from South Carolina. bin-DeMint language which passed the The PRESIDING OFFICER. The Sen- Mr. DEMINT. Mr. President, since I Senate 98 to 0, and I will read the rel- ator from Montana. have not used or yielded 10 minutes, I evant parts. I quote: Mr. BAUCUS. Mr. President, the bill ask to be recognized for up to 10 min- It shall not be in order in the Senate to before us is clearly an appropriate ex- utes under rule XXII, paragraph 2. consider a congressionally directed spending

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13833 item . . . if a Senator . . . has conditioned for a Senator’s vote or the intent be- Cantwell Kaufman Pryor the inclusion of the language . . . on any hind inclusion of a provision. How Cardin Kerry Reed vote cast by any Senator. Carper Kirk Reid would the Chair be able to rule on such Casey Klobuchar Rockefeller This language had unanimous bipar- a point of order? Would the Parliamen- Conrad Kohl Sanders tisan support in 2007, and it should be tarian have to question the chairman Dodd Landrieu Schumer Dorgan Lautenberg part of the rules today. This rule would of a committee or a Senator who offers Shaheen Durbin Leahy Specter provide needed accountability and Feinstein Levin the amendment, under oath? Would the Stabenow Franken Lieberman allow any Senator to raise a point of Parliamentarian have to question Tester Gillibrand Lincoln order to strike any earmark that has Udall (CO) every Senator who requested a directed Hagan Menendez been used to buy votes. This point of spending item, under oath, to ensure Harkin Mikulski Udall (NM) order could be waived and the ruling of they did not condition their support on Inouye Murray Whitehouse Wyden the Chair could be appealed with the inclusion of the item? Johnson Nelson (FL) support of two-thirds of Senators The rule may sound good in theory, NAYS—46 present and voting. but it is totally unworkable as a prac- Alexander Enzi Merkley Before I make this motion and we tical matter. Barrasso Feingold Murkowski vote on this amendment, I wish to I move to table the DeMint motion Bayh Graham Nelson (NE) make a few things absolutely clear. Bennett Grassley Risch and ask for the yeas and nays. Bond Gregg Roberts First, this rule already won a unani- The PRESIDING OFFICER. There is Brownback Hatch Sessions mous vote in the Senate in 2007, so it is 1 minute left for those who favor the Burr Hutchison Shelby not controversial. Second, this rule Chambliss Inhofe Snowe motion. Who yields time? Coburn Isakson Thune only applies to earmarks used to buy Cochran Johanns The Senator from South Carolina, 1 Vitter votes in the future. It will not, unfor- Collins Kyl minute. Voinovich tunately, apply to the earmarks in this Corker LeMieux Mr. DEMINT. Mr. President, I would Cornyn Lugar Warner bill. Third, this vote is not a trick. The answer the questions of the Senator by Crapo McCain Webb Wicker amendment is written as a ‘‘standing suggesting that Senator DURBIN, who DeMint McCaskill order,’’ so it will not increase the num- wrote the amendment, perhaps may Ensign McConnell ber of votes required to pass this legis- wish to make a couple of comments NOT VOTING—1 lation. It will not slow down the health about it because this is the mirror— Bunning care bill in any way. Mr. DURBIN. Are you yielding time? The only reason for Senators to op- The motion was agreed to. Mr. DEMINT. Yes, I sure will. Mr. REID. I move to reconsider the pose this amendment is if they want to Mr. DURBIN. I don’t understand how vote, and I move to lay that motion on use earmarks to buy votes for legisla- this amendment would work. If the the table. tion. It is that simple. If you support Senator happens to have a hurricane in The motion to table was agreed to. business as usual, then oppose this mo- his State and needs disaster aid and we tion. But if you want to start to clean AMENDMENT NO. 2878 WITHDRAWN put money in the bill, then would we this place up and bring some integrity Mr. REID. Mr. President, I ask unan- have to question the Senator’s motive back to the legislative process, then imous consent that amendment No. for voting for the bill? I think it goes please support the motion. 2878 be withdrawn. entirely too far, and I support this ef- Mr. President, I move to suspend the The PRESIDING OFFICER. Without fort to table. provisions of rule XXII, including ger- objection, it is so ordered. Mr. DEMINT. This a DeMint-Durbin maneness requirements, for the pur- AMENDMENT NO. 2786, AS AMENDED amendment. It is mirrored after Speak- pose of proposing and considering my Mr. REID. Mr. President, what then er PELOSI’s bill. They have this rule in amendment No. 3297, and I ask for the is the pending business? the House. They can make it workable. yeas and nays. The PRESIDING OFFICER. There is The PRESIDING OFFICER. Is there a Certainly, the integrity of this body is now 2 minutes of debate prior to a vote sufficient second? worth considering. on amendment No. 2786, as amended. It appears there is a sufficient sec- I would encourage my colleagues, at The Senator from Montana. ond. this point, when the public is looking Mr. BAUCUS. Mr. President, this is a The yeas and nays were ordered. at us, asking for some trust and integ- vote to adopt the substitute. This is The Senator from Montana is recog- rity, we can make this bill work. I ask another vote on whether we wish to re- nized. my colleagues to support my amend- form health care. Mr. BAUCUS. Mr. President, this ment and oppose the tabling motion. I urge my colleagues to vote aye and proposed new point of order may sound Mr. BAUCUS. I move to table the move this process forward. I yield back my the time. good in theory, but it has many flaws, motion and ask for the yeas and nays. Mr. REID. I ask for the yeas and in fact, when you stop and think about The PRESIDING OFFICER. Is there a sufficient second? nays. it. If you think the Senate is tied up in The PRESIDING OFFICER. The yeas knots now, if this were in effect, the There appears to be a sufficient second. and nays have been ordered. current situation would pale in com- Who yields time in opposition? The question is on agreeing to the parison to what the effect of this Mr. REID. I yield back the time on motion to table the motion to suspend amendment would be. behalf of my Republican colleague. The amendment is written in a way the rules. The PRESIDING OFFICER. Without to become an endless source of delay. The clerk will call the roll. objection, it is so ordered. Senators could make one point of order The PRESIDING OFFICER (Mr. The question is on agreeing to after another under this provision, AKAKA). Are there any other Senators amendment No. 2786, as amended. pointing to different provisions or in- in the Chamber desiring to vote? The yeas and nays have been ordered. dicting the integrity of different Sen- Mr. KYL. The following Senator is The clerk will call the roll. ators. necessarily absent: the Senator from The legislative clerk called the roll. The amendment provides no way for Kentucky (Mr. BUNNING). Mr. KYL. The following Senator is determining how to rule on a point of Further, if present and voting, the necessarily absent: the Senator from order raised under it. A point of order Senator from Kentucky (Mr. BUNNING) Kentucky (Mr. BUNNING). cannot be decided without solid guid- would have voted ‘‘nay.’’ Further, if present and voting, the ance. Points of order make the most The result was announced—yeas 53, Senator from Kentucky (Mr. BUNNING) sense when they are based on objective nays 46, as follows: would have voted ‘‘no.’’ criteria. [Rollcall Vote No. 393 Leg.] The PRESIDING OFFICER. Are there The proposed amendment to rule YEAS—53 any other Senators in the Chamber de- XXII would ask the Chair and the Par- siring to vote? Akaka Bennet Brown liamentarian to sort through purely Baucus Bingaman Burris The result was announced—yeas 60, subjective concepts such as the basis Begich Boxer Byrd nays 39, as follows:

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13834 CONGRESSIONAL RECORD — SENATE December 23, 2009 [Rollcall Vote No. 394 Leg.] The PRESIDING OFFICER. Are there So, it is simply not right and not fair YEAS—60 any other Senators in the Chamber de- to attack the Parliamentarians for Akaka Franken Mikulski siring to vote? doing their job. This is especially so Baucus Gillibrand Murray The yeas and nays resulted—yeas 60, when the issue is not a close call. Our Bayh Hagan Nelson (NE) nays 39, as follows: colleague from South Carolina at- Begich Harkin Nelson (FL) Bennet Inouye Pryor [Rollcall Vote No. 395 Leg.] tacked the Parliamentarian over a rul- Bingaman Johnson Reed YEAS—60 ing relating to the difference between Boxer Kaufman Reid amendments to the Standing Rules of Brown Kerry Rockefeller Akaka Franken Mikulski Burris Kirk Sanders Baucus Gillibrand Murray the Senate and procedural changes Byrd Klobuchar Schumer Bayh Hagan Nelson (NE) adopted in less formal ways. The Cantwell Kohl Shaheen Begich Harkin Nelson (FL) former requires a 2/3rds vote to achieve Bennet Inouye Pryor Cardin Landrieu Specter cloture; the latter is treated like any Carper Lautenberg Stabenow Bingaman Johnson Reed Casey Leahy Tester Boxer Kaufman Reid other piece of legislation. The distinc- Conrad Levin Udall (CO) Brown Kerry Rockefeller tion is an interesting quirk of Senate Dodd Lieberman Udall (NM) Burris Kirk Sanders rules. But it is a venerable and well-es- Dorgan Lincoln Warner Byrd Klobuchar Schumer Durbin McCaskill Webb Cantwell Kohl Shaheen tablished distinction. The Senate Man- Feingold Menendez Whitehouse Cardin Landrieu Specter ual includes 70 pages of Standing Or- Feinstein Merkley Wyden Carper Lautenberg Stabenow ders. The Budget Act process—which Casey Leahy Tester NAYS—39 Conrad Levin Udall (CO) the minority used to make a point of Alexander DeMint Lugar Dodd Lieberman Udall (NM) order just today—is almost entirely de- Barrasso Ensign McCain Dorgan Lincoln Warner pendent on procedures that are not Bennett Enzi McConnell Durbin McCaskill Webb part of the Standing Rules of the Sen- Bond Graham Murkowski Feingold Menendez Whitehouse Brownback Grassley Risch Feinstein Merkley Wyden ate. In fact, in the last two Congresses, Burr Gregg Roberts NAYS—39 the Senator from South Carolina has Chambliss Hatch Sessions authored or co-sponsored at least 17 Coburn Hutchison Shelby Alexander DeMint Lugar bills or amendments that implicate the Cochran Inhofe Snowe Barrasso Ensign McCain Collins Isakson Thune Bennett Enzi McConnell distinction. For the Parliamentarian Corker Johanns Vitter Bond Graham Murkowski to be accused of ‘‘redefin[ing] words,’’ Cornyn Kyl Voinovich Brownback Grassley Risch ‘‘ignoring a rule’’ of the Senate, and a Crapo LeMieux Wicker Burr Gregg Roberts Chambliss Hatch Sessions ‘‘truly historic’’ and unconstitutional NOT VOTING—1 Coburn Hutchison Shelby ‘‘subvert[sion of] the principle we have Bunning Cochran Inhofe Snowe operated under’’ for re-stating this Collins Isakson Thune The amendment (No. 2786), as amend- Corker Johanns Vitter longstanding distinction is completely ed, was agreed to. Cornyn Kyl Voinovich unwarranted. Mr. REID. Mr. President, I move to Crapo LeMieux Wicker As I noted, tensions are running high reconsider the vote, and I move to lay NOT VOTING—1 and Senators are tired and, according that motion on the table. Bunning to one recent article, cranky. But I The motion to lay on the table was hope that the body will do its best to The PRESIDING OFFICER. On this agreed to. ensure proper decorum as we proceed vote, the yeas are 60, the nays are 39. CLOTURE MOTION for the remainder of the year and the Three-fifths of the Senators duly cho- The PRESIDING OFFICER. Under remainder of the Congress. We need to sen and sworn having voted in the af- the previous order and pursuant to rule treat each other with respect. And we firmative, the motion to invoke clo- XXII, the Chair lays before the Senate certainly need to treat the institution ture on the underlying bill is agreed to. the pending cloture motion, which the of the Senate and its hard-working em- Mr. REID. Mr. President, I think we clerk will report. ployees with respect. all recognize that things have gotten The legislative clerk read as follows: Mr. President, I ask unanimous con- pretty tense around the Senate as we CLOTURE MOTION sent there now be alternating blocks of have worked three weekends in a row, time as follows: The first hour under We, the undersigned Senators, in accord- long hours, and approach the Christ- ance with the provisions of rule XXII of the the control of the Republicans; further, Standing Rules of the Senate, hereby move mas holiday. Sometimes the tension that after the first 2 hours, then there to bring to a close debate on H.R. 3590, the has boiled over into what has been said be alternating blocks of 30 minutes, Service Members Home Ownership Tax Act on and off the floor, and the way we with the Republicans controlling the of 2009. treat each other, and that is very re- first 30 minutes. Christopher Dodd, Richard Durbin, Mark grettable. The PRESIDING OFFICER. Without Begich, Paul G. Kirk, Sheldon Two nights ago there was an unfortu- objection, it is so ordered. Whitehouse, Roland W. Burris, Max nate incident that deserves special Mr. HARKIN. Mr. President, there Baucus, Sherrod Brown, Claire mention, though. One of our col- McCaskill, Jon Tester, Barbara A. Mi- have been a lot of conversations on this kulski, Bill Nelson, Maria Cantwell, leagues, the Senator from South Caro- floor in the last couple hours. There Mark Udall, Arlen Specter, Kirsten E. lina, attacked the office of the Senate are a lot of people who are facing tough Gillibrand, and Ron Wyden. Parliamentarian. We all know that the timetables tomorrow. I know of one The PRESIDING OFFICER. By unan- Senate Parliamentarian is a non-par- Senator—— imous consent, the mandatory quorum tisan referee. The Office of the Parlia- Mr. VITTER. Mr. President, regular call has been waived. mentarian does their best to enforce order. Regular order, Mr. President. The question is, Is it the sense of the the rules and procedures of the Senate Mr. HARKIN. Mr. President, I ask Senate that debate on H.R. 3590, the in an impartial manner. consent I be given 2 minutes. Service Members Home Ownership Tax We have all come across situations The PRESIDING OFFICER. Is there Act of 2009, shall be brought to a close? when we were frustrated by the Parlia- objection? The yeas and nays are mandatory mentarian’s ruling because we were Mr. VITTER. Mr. President, reserv- under the rule. hoping that a given amendment was or ing the right to object. I would be The clerk will call the roll. was not germane, or that a given point happy for those 2 minutes to come out The assistant legislative clerk called of order was or was not well taken. of the Democrats’ 1 hour without ask- the roll. But, we have all taken comfort in the ing for regular order. Mr. KYL. The following Senator is fact that whatever the ruling in the in- Mr. HARKIN. That is fine. necessarily absent: the Senator from stant case, the Parliamentarian was The PRESIDING OFFICER. Without Kentucky (Mr. BUNNING). calling it straight and the same ruling objection. Further, if present and voting, the would apply to similar amendments by Mr. HARKIN. Mr. President, I know Senator from Kentucky (Mr. BUNNING) other Senators and similar facts in the one Senator whose family is with their would have voted ‘‘nay.’’ future. in-laws. The husband is from England

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13835 and the kids are over there and cannot issue but also to talk about another vi- So this answers the Senator’s com- make it for Christmas dinner tomorrow tally important issue directly con- ments directly. You can’t have it both night. I know another person who has nected, which is spending and debt be- ways. You can’t say we have a bill that to get out to the West and there are a cause we will also have an enormously is paid for and also a bill that strength- lot of storms out there. If they can get important vote tomorrow morning on ens Medicare and extends solvency for that early flight, they can make two increasing the debt limit. It is already additional years. That is double count- legs and get home. If they have to go over $12 trillion, but the proposal is to ing. That is exactly what the CBO is later in the day, they have to do three increase it further. saying. The American people, in a legs and they may not make it. There In starting, let me refer back to a much more basic, commonsense way, are a lot of people around here who are couple comments and parts of the de- know better. They know this bill isn’t having a lot of problems that we are all bate yesterday because I think it will paid for. They know this bill is going here. There is no reason to hold over provide a good segue into this impor- to expand the deficit and put us on an the vote so I am going to ask unani- tant debate. First, yesterday, as we even worse fiscal road. They know that mous consent that the vote on the pas- were debating health care, my col- in their gut. They know that with their sage of the bill and the vote on the league from Louisiana, the distin- common sense. Of course, that gets us debt limit bill occur at 6 p.m. this guished senior Senator, Ms. LANDRIEU, to the other big vote tomorrow extend- evening. was on C–SPAN’s ‘‘Washington Jour- ing the debt limit, yet again, well be- The PRESIDING OFFICER. Is there nal.’’ In discussing the health care bill, yond $12 trillion. objection? my participation came up. She said: These issues are connected. They are Mr. VITTER. Addressed the Chair. ‘‘Senator VITTER has not lifted a finger connected in the technical way I just The PRESIDING OFFICER. The Sen- to pass this bill.’’ suggested, and these issues are cer- ator from Louisiana. I wish to say that is a very kind and tainly connected in the hearts and Mr. VITTER. Mr. President, that re- positive and generous comment of the minds of the American people. The quest has not been cleared on this side. Senator and I take it as a nice Christ- American people have responded to mas overture and I accept it in that On behalf of my colleagues, I object. If this debate because health care is so vi- vein. I wish her all the best this Christ- the Senator would like to talk to all tally important and the health care mas season as well. It is obviously very his colleagues about it, that would be issue is so personal. true, and I take it as a very positive fine, but in the meantime, I would ob- There is even an overarching, larger comment. reason the American people have reject. I would go further. I fought hard Mr. HARKIN. Mr. President, then I sponded so much to this debate. It is against this bill. I fought hard for al- because they are connecting the dots. would further ask unanimous consent ternative reforms, focused reforms, re- that the votes that are going to occur They are putting this as part of a larg- forms focused like a laser beam on real er pattern, and they are connecting the at 7 a.m. tomorrow occur at 12:15 a.m., solutions in health care to real prob- dots between bailing out and taking in the morning. lems such as preexisting conditions. I over insurance companies and financial The PRESIDING OFFICER. Is there would simply add, I don’t think this companies and car companies, hiring objection? fight is over by a long shot. I will con- and firing the CEO from the Oval Office Mr. VITTER. Mr. President, my re- tinue fighting and I will continue offer- to potentially one-sixth of the U.S. sponse would be the same and I would ing those alternatives. object in the same vein. With regard to the bill and this enor- economy in health care. They are con- The PRESIDING OFFICER. The ob- mously important issue of spending necting those dots in terms of spending jection is heard. and debt, as I was leaving the floor to and debt, as well, because that has Mr. HARKIN. I want Members to go to meetings in my office after been the dominant trend over the last know who is keeping us here. speaking yesterday, Senator BAUCUS 12 months at least. Mr. RISCH. Mr. President? took issue, apparently, with some of We have a debt limit today. It is over The PRESIDING OFFICER. The Sen- my comments—specifically, my com- $12 trillion. The motion tomorrow sug- ator from Idaho. ments about Medicare. I had suggested gests that is not enough. We need to go Mr. RISCH. Mr. President, I ask that this bill cuts Medicare by $467 bil- higher. The American people are con- unanimous consent that the vote re- necting the dots, particularly in the lion, almost $1⁄2 trillion. Although I ferred to by Senator HARKIN take place needed to go to meetings, I think Sen- last year, and they are scared to death about where it leads. How did we get at 2 p.m. on January 20, 2010, when we ator BAUCUS took issue with that and return. characterized that as actually extend- this way? How did we come to this $12 The PRESIDING OFFICER. Is there ing the life of Medicare. trillion-plus point? Well, in July, 2008, objection? The Congressional Budget Office an- Fannie Mae and Freddie Mac were Mr. HARKIN. I object. swered that debate far better than I given an unlimited line of credit from The PRESIDING OFFICER. There could have. They answered that debate the Treasury that, so far, has been $400 are objections. in the last 24 hours with their report. billion, and that bill increased the debt The Senator from Louisiana is recog- They outline very clearly and we have limit from $9.8 trillion to $10.6 trillion. nized. been talking about it earlier today But that wasn’t enough. Only 3 months Mr. VITTER. Mr. President, I ask that, in fact, Medicare money and later, in October, 2008, came the Wall unanimous consent that this first other pools of money are double count- Street bailouts, the $700 billion TARP block of time on the minority side be ed in this analysis about the health that will raise the debt limit. That did divided equally between the following care bill. ‘‘The key point is that the raise the debt limit even further, to Senators: myself, Senators COBURN, savings to the HI trust fund under the $11.3 trillion, but we weren’t done yet. THUNE, SESSIONS, KYL, and ENSIGN. health care bill would be received by Only a few months after that, in Feb- The PRESIDING OFFICER. Without the government only once so they can- ruary of this year, we passed the so- objection, it is so ordered. not be set aside to pay for future Medi- called stimulus bill. That will cost over Mr. VITTER. I thank the Chair. Mr. care spending and, at the same time, $1 trillion before it is all over, and then President, I ask for order on the floor. pay for current spending on other parts the debt limit was raised to $12.1 tril- The PRESIDING OFFICER. The Sen- of the legislation or on other pro- lion. Then we passed an omnibus spend- ate will be in order. grams.’’ ing bill earlier this year that increased Mr. VITTER. Mr. President, I ask The same Congressional Budget Of- spending about 8 percent over the pre- that time not be counted against me fice report says ‘‘to describe the full vious fiscal year. until the floor is in order. amount of HI trust fund savings and This month, we passed another omni- The PRESIDING OFFICER. The Sen- both improving the Government’s abil- bus spending bill that increased spend- ator will not be charged. The Senator ity to pay future Medicare benefits and ing another 12 percent on top of that. from Louisiana is recognized. financing new spending outside of That is what is leading to tomorrow’s Mr. VITTER. Mr. President, I rise to Medicare would essentially double debt limit vote. That is what is leading talk about this important health care count a large share of those savings.’’ to the statement that our debt limit is

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13836 CONGRESSIONAL RECORD — SENATE December 23, 2009 now above $12 trillion. But that is not dating relationship I ever had in my to get rid of programs just like this enough. Apparently, we need to go fur- life was with this young girl named and have one program that is effective ther. Carolyn Denton. She became one of my and efficient, that has metrics on it, The American people are connecting best friends in high school. It just so that measures its goals and is account- the dots. They see this trend, which happened that one weekend I couldn’t able, instead of 49 or 72 or 64 across a has accelerated dramatically over the get a date, she didn’t have one, and I large number of different agencies—we last 12 months, and they are truly asked her out. From that point for- can do that, but there is no will here to scared for our collective future—for ward, I fell in love with somebody I do that. As a consequence, what we do, their kids’ and their grandkids’ future. have been married to for 41 years, my instead of making the Federal Govern- All these things I mentioned plus this wife Carolyn Coburn. ment more efficient, we just raise the health care bill are part of that. On this day of significant votes in debt limit. I am not about to be a part The American people know in their the Senate, and tomorrow, I wanted to of that anymore. gut—they may not understand all of take a moment to say how much I ap- I know my colleagues get upset with the Congressional Budget Office tech- preciate what she has meant to me the me as I come to the floor year after nicalities, but they know in their gut past 41 years, how much stronger she year talking about what we do and the that you cannot have it both ways. You has made me as a man, how she has fact that we do not fix the real prob- cannot count $467 billion of Medicare completed every aspect of my life being lems. I have been rather hard to get cuts as both helping pay for the other my partner as we walk through life, along with, by my colleagues, in terms spending in the bill and strengthening and the gift she gave me of three won- of them advancing new programs when Medicare. It is one or the other. It can- derful daughters. we do not eliminate the programs that not be both. It is the same thing in the So to my wife Carolyn, in front of the are already doing the same thing. health care bill with regard to Social body, I tell you thank you and happy I think at this time of Christmas, one Security—$52 billion double-counted. anniversary. of the things we ought to be doing is But you cannot have that both ways. It I would like to go to my prepared re- telling the American public that we is the same thing in this health care marks. will change. Next year, instead of cre- bill with regard to the CLASS Act—$72 The PRESIDING OFFICER. The Sen- ating new programs, we are going to billion double-counted. You can’t have ator is recognized. look at all the programs and consoli- that both ways. Those factors alone Mr. COBURN. Mr. President, I have date them and have one that does math put this bill out of balance, adding to spent 5 years in the Senate talking to and science, one that is for work-study the deficit, adding to the debt. my colleagues about spending. We find programs abroad, not the numerous What about the doc fix, the fix of rein front of us another opportunity to numbers we have for which we have no imbursement rates under Medicare to do the wrong thing. We have a debt accountability. health care professionals such as doc- limit increase. Yet, in those 5 years, America recognizes our incom- tors, which is clearly needed. That was after hundreds and hundreds of amend- petence, but we are going to spell it taken out of the health care bill. Why? ments the body has refused to agree to out. In this new year that comes for- Because that would cost money. It was that would cut spending, we are going ward, there is not going to be a week taken out. It was just pushed down the to increase the debt limit but we are that comes by that I do not come to road, the can was kicked down the not going to make any effort to cut the the floor and show another example to road. That has to be revisited by March spending. the American people of how we are not 1 of next year. If a real 10-year-or-more I have given seven complete speeches doing our work. It grieves me—not for doc fix is passed, that will be another on the floor about the significant me but for my children and everybody $200 billion unpaid for—more deficit amount of waste in the Federal Gov- else’s children, for my grandchildren and more debt. ernment. I will not repeat those now. and everybody else’s grandchildren— The American people get it. They But that number is now annualized to that we fail to treat the real symptoms know in their hearts, in their gut, that $380 billion a year—every year, $380 bil- of our debt; that is, we will not do the we are on an unsustainable course. lion worth of waste. Part of it is fraud, hard work of oversight. We should be They know all these bailouts and so- but a large part of it is duplication. Let condemned for that. We are failing the called stimulus acts, all these spending me give some examples of the duplica- American people. It ought not to be. bills and now this enormous health tion because I think when Americans I yield the floor. care bill, are part of that unsustainable hear this they do not understand why. The PRESIDING OFFICER. The Sen- course, and they are crying out. They The Government Accountability Of- ator from South Dakota, Mr. THUNE, is are saying we must reverse course, we fice found that there are 13 Federal recognized. must save our Nation. I hope we do agencies that spend $3 billion to fund Mr. THUNE. Mr. President, I appre- that starting here, starting now. 207 Federal programs, 207 different pro- ciate the comments of both my col- I yield the floor. grams, to encourage student standards leagues from Louisiana and Oklahoma The PRESIDING OFFICER. The Sen- in the fields of math and science—13 touching on an issue that I think is be- ator from Oklahoma, Mr. COBURN, is different agencies, 207 different pro- coming increasingly important to a lot recognized. grams. We could have spent one-tenth of Americans. Mr. COBURN. Mr. President, I ask that amount of money and had exactly I was listening this morning to one of consent to have 3 minutes outside of the same results and saved $2.7 trillion. my colleagues on the other side as he the time allotted to make a point of But we will not do it. came down here and talked about how personal privilege, and I ask unani- Another example, according to GAO, all the spending problems and all these mous consent for that. I would say the to the tune of $30 billion, the Federal debt problems were all inherited from reason is today is my 41st wedding an- Government funded more than 44 job- the previous administration. There is niversary, and I was going to discuss training programs administered by 9 sort of a Bush-phobia or something that. different Federal agencies across the around here among Members on the The PRESIDING OFFICER. Is there Federal bureaucracy. According to the other side because they do not want to objection? Without objection, it is so Catalog of Federal Domestic Assist- own up for the decisions they have ordered. ance, we have 14 departments within made. HONORING MY WIFE ON MY 41ST ANNIVERSARY the Federal Government and 49 inde- Granted, I would be the first one to Mr. COBURN. In 1953, I met a young pendent agencies that operate ex- admit that when Republicans were in lady—actually, it was 1954—a young change and study-abroad programs. We control of the Congress, we didn’t do it lady when she was 6 years of age. Her have 49 programs instead of 1. I have right all the time and we lost our way name was Carolyn. I went through tons of other examples just like that. a little bit with regard to spending. grade school with this young lady. I We have failed to do our job, and the But having said that, we now have— went through junior high with this easiest thing in the world is to spend since 2006—a Democratic Congress. I young lady. I went through high school somebody else’s money. Increasing the need to remind my colleagues that the with this young lady. The only serious debt limit without having a rescission President doesn’t spend a dime under

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13837 our Constitution. Congress has the year again—was by any stretch way the Budget Committee has called the power of the purse. Congress appro- above anything we have seen or should CLASS Act a Ponzi scheme of the first priates funds. So if you look at the last see at a time when we have an econ- order, something that Bernie Madoff several years in terms of appropria- omy in recession and most Americans would be proud of. tions, going back to the last couple of are having to tighten their budgets—12 You take that $72 billion out, which years that the Republicans were in percent nondiscretionary increase in the Congressional Budget Office says is control of the Congress, the amount of 2009 and 17 percent increase in spending going to add huge deficits in the out- spending in the nondefense part of the in 2010. years, you take out that $72 billion, budget was a negative 1 percent in 2007, With that and the stimulus spending, and you are already at a $130 billion 5 percent in 2006, and 8 percent in 2005. it brings us to where we are today, deficit. We haven’t even dealt with the That is nondefense discretionary which is this massive expansion of the fact that because of the way they have spending in our annual appropriations. Federal Government—$2.5 trillion in set this up, by front end loading the If you go to total growth, which in- new spending for a new entitlement tax increases and back end loading cludes defense, you are talking about 8 program. That, too, is not something spending, that understates the total percent in 2005, 5 percent in 2006, and 2 for which the previous administration cost. percent in 2007—more than most people is responsible. That is something this In the first 10 years, if you take those would argue we needed to be spending administration, the majority here in first 4 years when you have $56 billion in annual appropriations bills. the Congress, has decided they want to of revenue coming in and only $9 billion of spending going out, that is an- But the Democrats took control of push through. They want to finish it other $47 billion that you could add to the Congress after the 2006 election, so before the Christmas holiday. They the deficit. So you have gone from $132 they started writing the budgets. We want to get this in the rearview mirror billion in savings to a $177 billion def- have ownership for the 2007 budget, but before the American people have an op- the Democrats have ownership for 2008, icit. That is before you even get to the portunity to see what is in it, particu- more important issue, which is what 2009, and 2010. The 2008 budget grew at larly in the last hurried rush here over 9 percent total growth. Nondefense dis- the CBO came out with today in re- the weekend where we got the 400-page sponse to a question by the Senator cretionary spending grew at 6 percent. amendment that included all the spe- If you look at nondefense discretionary from Alabama asking: How can you cial last-minute deals that were made count money that is going to come spending in 2009, the last fiscal year, it to try to get that elusive 60th vote. from these Medicare cuts, count that was 12 percent. In this fiscal year, 2010, What we have seen is now the $2.5 tril- as revenue that will save and extend the estimate is that we will spend 17 lion in new spending is filled with all the life of Medicare, and still spend it percent over the previous year. So kinds of goodies that are going to favor for a new entitlement program on year-over-year spending in nondefense individual Senators and individual health care? discretionary appropriations here in States. The CBO basically said that is double the Congress will have grown almost 30 The American people are starting to counting. In fact, I want to read what percent in the last 2 years. That is not react. they said: a problem that was created by the The point I want to make about this To describe the full amount of HI trust Bush administration. That is not a is, the one thing that the President and fund savings as both improving the govern- problem, obviously, for which the Re- a lot of our colleagues on the other side ment’s ability to pay future Medicare bene- publican majority was responsible. have been talking about is how this re- fits and financing new spending outside of That is the Democrats, when they took duces the deficit. This saves $132 billion Medicare would essentially double-count a control of the Congress after the 2006 over the next 10 years. Just remember share of those savings and thus overstate the improvement in the government’s fiscal po- elections, beginning in 2007. They write that is $132 billion over 10 years. If you sition. the budgets, they approve the appro- look at what the deficit was for the Every American knows you can’t priations bills. Obviously, as you can month of October, if any of my col- spend the same money twice. That is see, the numbers have gone up dra- leagues know what the deficit was for what this does. They are going to cut matically—12 percent in the 2009 budg- the month of October, 1 month alone, $1 trillion over 10 years, when fully im- et year, and the 2010 estimate for which this last October, it was $176 billion—in plemented, out of Medicare, but they we are now funding appropriations 1 month. They are crowing about $132 will spend that money on a new enti- bills—and we have funded most of them billion in savings over a 10-year period. tlement program and still count the now with the omnibus or with the What is interesting about that $132 savings in Medicare. You can’t have it smaller appropriations bills, the six billion, if you take away all the gim- both ways. The American people have bills that were passed just a week or micks and you look at all the phony figured out this shell game. two ago—looking at 17 percent year- accounting that has been done to get When you take a $177 billion deficit over-year spending in appropriations. to that number, it goes down in a real after you take out all these accounting So that is almost 30 percent in the last hurry. gimmicks, you are already running a 2 budget years. That is not a problem For example, the SGR fix, the physi- significant deficit. Then when you add the other side can hold the previous ad- cian reimbursement issue is a $200 bil- in the fact that what the CBO now ministration responsible for or attack lion-plus item. Let’s say they are say- says, what most of us have believed to them for. ing they got $132 billion in savings over be true and have been arguing, that I will also mention that the $1 tril- the next 10 years. But at some point you can’t spend the same money twice, lion approved earlier this year in the you have to deal with that $200 billion you cannot double-count that revenue, stimulus funding was approved on al- SGR. If you take that away, you end up the Medicare trust fund is going to most party lines. There were a couple with a negative $68 billion already. take a significantly big hit. I know the of Republicans who supported that, but Then you add in this CLASS Act, Senator from Alabama is going to talk for the most part that was something which everybody who has any sense, more extensively about that. I want to approved by the Democratic majority. any actuary has absolutely denounced, point that out because we are going It was proposed by the President of the including even the Washington Post. into a big debate about raising the debt United States. That is not spending for But if you look at what the CLASS Act limit. Everybody, now that the horse is which the former President is respon- does, they are using the revenues in out of the barn, wants to shut the gate. sible. the first early years that come from But you can’t spend $2.5 trillion on a At some point around here, people the premiums paid in. That money will new entitlement program and then have to own up and take responsibility be spent. claim to be fiscally responsible or say for their own decisions. You cannot So when it comes time to pay out that you are doing something to reduce blame the past administration. You benefits, there isn’t going to be any the deficit. cannot blame inherited problems for money there. But they are showing a Interestingly enough, the CMS Actu- all the spending that is going on right $72 billion savings or addition to their ary said these Medicare cuts are un- here, right now. The last year, as I so-called savings in that first 10 years likely to be sustainable on a perma- said, appropriations spending—and this from the CLASS Act. The chairman of nent basis. We all know we are not

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13838 CONGRESSIONAL RECORD — SENATE December 23, 2009 going to cut $1 trillion out of Medicare and not in a good way. It exceeded $1.4 What can a lender do when he or a over the first 10 years. That just trillion in the last fiscal year. That is nation becomes concerned that the bor- doesn’t happen here. All that money is the highest amount in history and rower is going to have trouble paying going to get borrowed and put on the more than three times as much as the back, when the borrower keeps coming debt or they will have to raise taxes to highest deficit during the last adminis- back for more and more lending? What pay for it. You can’t have it both ways. tration. The budget President Obama you do is you raise the interest rate to As we get into the debate about the submitted to Congress doubles the def- reflect the greater risk in the lending debt limit, it is important to put icit in 5 years and triples it in 10. It of the money. That is what is going to things into context. I want to say also creates more debt than the com- happen to us. That greater interest again that $132 billion in savings, bined debt under every President since rate is going to be manifest in pay- which is what they are saying they get George Washington. That seems almost ments that we have to make by our by this health care reform bill with all impossible, but it is true. productivity and the taxes we pay. the tax increases and the Medicare The President’s budget creates more That will decrease our standard of liv- cuts, is suspicious in the first place, debt than all of the debt ever combined ing and create an additional obligation given the fact that the SGR, the $200 throughout the history of the country, on the American people. billion is not included, the $72 billion from George Washington all the way up President Obama has acknowledged CLASS Act, and the $47 billion that through George Bush, more debt under the problem. He said: they achieve by front end loading tax President Obama’s budget than all of We can’t keep on just borrowing from increases and back end loading spend- that combined. China. We have to pay interest on that debt, ing brings you to a $177 billion deficit Even Management and Budget Direc- and that means we are mortgaging our children’s future with more and more debt. in the first 10 years. That does not even tor Peter Orszag has said that is not include the funky accounting being sustainable. The debt has reached an He is right. So why does he propose used with regard to the Medicare trust almost unimaginable sum of $12 tril- more spending and more borrowing and fund. We will get into this debate about lion. To pay the Federal Government’s more than any other President in the the debt limit, but nothing bears on bills for the next 2 months, tomorrow history of the world? It is time for words and actions to that more heavily than what we do we are going to consider passing a match. It is time for Congress and the with health care. roughly $300 billion increase in the al- President to start reining in this out- We need to defeat this. I hope we will lowable U.S. national debt known as of-control spending and debt. I stand still see some courage by a few of my the debt ceiling. That means our debt with my colleague from Alabama in colleagues to help us take this health ceiling, now $12.1 trillion, will be $12.4 support of his amendment to reinstate care bill down, to go back to the draw- trillion. After those 2 months, we will statutory spending caps. While this is ing board, to do it right and to actually need to add another $1.5 trillion to the not a panacea for solving the fiscal put in place solutions that will mean- debt ceiling to pay for the remaining problems the Nation faces, it is a good ingfully reduce the cost of health care spending in the year 2010. way to start on the path to responsi- for people in this country, not increase Early next year our debt ceiling will bility. I will bet that most of our col- be a whopping $13.9 trillion. Of the their premiums, and not add to the def- leagues on the other side of the aisle icit and saddle future generations with massive national debt, a paper by the will vote against it. It is wrong for an enormous debt they don’t deserve. Heritage Foundation tells us: them to expect Republicans to extend Remember, $176 billion was the deficit The recession and excessive spending have the debt ceiling as long as they are unin the month of October alone. We are caused the debt held by the public to grow willing to do anything to get spending talking about, under their numbers, sharply to 56 percent of the economy, top- ping the historic average of 36 percent. To under control. $132 billion in savings over 10 years Americans expect us to get this which, when you sit down and figure it make matters worse, entitlement programs will double in size over the next few decades spending and debt under control. When out, it just doesn’t add up. and cause the national debt to reach 320 per- we return to the Senate in January, I yield the floor. cent of the economy. our first item of business will be a The PRESIDING OFFICER (Mr. NEL- That is so obviously unsustainable long-term debt ceiling extension, in- SON of Florida). The Senator from Ari- that it has to be of great concern to us. cluding consideration of the Sessions zona. amendment and others. After pushing Mr. KYL. Mr. President, when the re- It is like the size of a credit card being several times more than our income, the stimulus, the auto bailout, cash for cession hit last fall, many Americans clunkers, the massive $2.5 trillion had been living beyond their means and such that we can never pay the debt on the credit card. That is even to ignore health care bill, and others, I would had to quickly scale back. Families all hope our Democratic colleagues are across America have been tightening the interest payments. Let’s not forget about that. That is another tab we ready to take a breather from their big their belts. They have been forgoing spending and support a more reason- vacations, meals in restaurants, extra have to pick up. I have only been talking about the principle. But in 2009 able course so that we don’t have to Christmas presents, cutting back wher- continue to extend the Nation’s debt ever they can. The government needs alone, interest payments were $209 billion. By the year 2019, interest pay- ceiling. to take a lesson from those families. It The PRESIDING OFFICER. The Sen- is time that Congress and the adminis- ments are expected to reach $800 billion a year. That is just the interest on the ator from Alabama. tration get serious about cutting Mr. SESSIONS. Mr. President, I debt. spending in a meaningful way. Spend- thank Senator KYL for his consistent How are we going to afford that? By ing during President Obama’s first year performance over his entire career in the way, who do we pay that to? We in office, to put it charitably, has not the Senate of trying to maintain finan- pay it to all the people we borrow been what most would describe as re- cial responsibility in this body, and I money from, one of which is the nation sponsible. Government spending grew respect him highly on that and many of China. Chinese officials have indi- by $705 billion in fiscal year 2009, an in- other issues. crease of 24 percent. Appropriations cated that they are very nervous about There is so much we could say at this legislation enacted this year will in- the amount of debt the United States point on the debt limit, on which we crease spending by another 8 percent in is taking on. expect the vote tomorrow. I am not In mid-March, Chinese Premier Wen the year 2010. All of this spending, of going to vote on a debt limit increase Jiabao voiced concerns about U.S. Gov- course, has an impact on both the Fed- until we accompany it with some ac- ernment bond holdings: eral deficit and the Federal debt. tion that will actually reduce the in- Let me clarify the difference between We have lent huge amounts of money to credibly irresponsible path we are on. those two numbers. The deficit is the the United States. Of course we are concerned about the safety of our assets. To be That is going to be one of my positions, amount of total spending not covered honest, I am a little bit worried, and I would and I think others will take the same by revenues in a given year. The debt is like to . . . call on the United States to view. the sum of all of the Nation’s yearly honor its word and remain a credible nation Saying we have to increase the deficits. The 2009 deficit made history and ensure the safety of Chinese assets. debt—well, we have to do something

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00044 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13839 about reckless government spending. total interest this government paid on So we are going to take this savings We really do. We have to do something the debt we owe was $170 billion. You and increased revenue to Medicare, and about it. They always say: Next year. can see, this chart shows the annual in- we are going to spend it over here. This So I say: When? I believe we should terest payments we make that are is a chart I just put together to try to condition any increase in the debt surging year after year. It is the result show that. As shown on this chart, here limit on the passage of legislation that of several things. is Medicare. You raise Medicare in- would renew what has expired, spend- CBO is cautious, but they are ac- come and you cut their costs and you ing caps on the discretionary spending knowledging that interest rates are create an extra surplus. We have some accounts. I thank Senator KYL for sup- going to go up. We have virtually zero surplus still in Medicare. If we do not porting the legislation. interest rates in short-term Treasuries do something about it, Medicare will In other words, we can do that. We today. That is not going to continue. be in deficit in 2017—8 years. So this did it in 1990. You can see, as shown on So you have more debt and higher in- transfer of money then goes to the U.S. this chart, the declining expenditures terest rates. You get surging interest Treasury, and: Oh, we have extra that resulted in those numbers. We payments. money, let’s spend it on a new health passed it in 1990. As shown on this In 2017, we have interest payments care reform that has never before been chart, those yellow lines represent the over $600 billion. It goes over, in 2019— passed, creating benefits for people who deficit—up to $300 billion, and it began 1 year’s interest—$799 billion. As I re- have never received these kinds of ben- to shrink. In late 2000, 2001, we had sur- call, the supplementals we have used to efits before because we want to be help- pluses in our accounts. It is odd to fund the war in Iraq represented about ful to those people, create more insured show a surplus, shown below the line $70 billion a year. A couple years ago, people in America. on this chart, but we accomplished our highway spending was about $40 But as the CBO said, you cannot that. billion a year. Aid to education is count this money twice. What about President Clinton liked to claim about $100 billion a year. In 2019, in 1 the people who are paying into Medi- credit for it. I have a vague memory year, we will pay $799 billion, I think, care, who have been paying into it for that Republicans shut the government at a minimum, just in interest. You see 40 years? They have not received a down to contain President Clinton’s how huge those numbers are? It is dime of benefit—until they get to age spending. But there were battles over unsustainable. We cannot continue to 65—and it is their money they are put- containing spending, and it worked. A do this. ting into Medicare. They are not just big key to it was the spending limits, The American people understand it. giving it over here to the U.S. Treas- the spending caps. Those expired in CNN did a poll last month. They asked ury. 2002, and, look, we began to show the this question of the American people: As one of them wrote me: You are increases in deficits again. So I think Which of the following comes closer to taking my money. I am 67. I am just as a condition of voting for a debt in- your view of the budget deficit—the govern- now beginning to draw Medicare. You crease we should have a fix of the re- ment should run a deficit if necessary when are taking my money and giving it to storing of the caps. the country is in a recession and at war or somebody else. I have never received Senator KYL made reference to the the government should balance the budget any benefits from Medicare until now, fact that under President Obama’s 10- even when the country is in a recession and and you are taking it from me. year budget he submitted earlier this is at war? So as a matter of the way our ac- year, which was scored by the Congres- What do you favor? Sixty-seven per- counting occurs, the U.S. Treasury sional Budget Office, a nonpartisan cent say: ‘‘Balance the budget.’’ cannot take that money just free and group, but the leaders were picked by Well, what is Congress doing? Run- clear. It is not extra, free money. the Democratic majority. What would ning the most incredible series of defi- I see my colleague. I want Senator it do to our deficit, I ask? He has a cits we have ever seen, tripling the na- BAUCUS to recognize that according to budget for 10 years. He shows what he tional debt in 10 years—all in further- the CBO Director—he told me last expects to have in revenues during ance, basically, of President Obama’s night, there are bonds issued. Treasury those 10 years and what he expects to budget, which calls for this. has to give a bond to Medicare, a spend. He does not show, however, what Sure, President Bush was not as fru- Treasury note, an IOU. So when Medi- is spent in the health care legislation gal and fiscally responsible as he care starts running in default—as it because that was not in law at the time should have been. Most, however, of his will within the next 15 years if this bill the budget was submitted. So in truth debt was driven by war costs. But re- were to pass—when Medicare starts it will be worse than this. gardless, he could have been more fru- running into default, they are going to But let’s look at this. In 2008, the gal and spent less. But the deficits he have the Treasury pay for it. So, in ef- debt was $5.8 trillion; in 2013 it doubles had would come in at half or less than fect, this bond causes the U.S. Treas- to $11.8 trillion; and by 2019, it triples half of the deficits we are going to see ury to pay interest to Medicare. to $17.3 trillion. That is a stunning tri- on average over the next 10 years. So I During this first 10 years, the U.S. pling of the public debt of the United have to say, we are losing our perspec- Treasury will pay interest to Medicare States of America. It is an tive. of $69 billion on the money they bor- unsustainable path. One of the most This health care reform bill is a seri- rowed—this IOU here. Then, when it grim parts of the scoring of this deficit ous matter. We have a report this goes into default—as it is inevitably expansion is it is not getting better. In morning from the Congressional Budg- heading into default—the Treasury will years 8, 9, 10, the deficit is going up to et Office that clarifies what has been have to pay those bonds. So it in- almost $1 trillion a year; in 2019—the pretty obvious to us for some time, but creases the debt. 10th year—going up. They are not pro- it was difficult to get an official ac- What CBO says, without any equivo- jecting during that 10 years any reces- counting of how these numbers are cation, is—it is not disputable—the sion. In fact, they projected that we scored or added up by the Congres- debt of the United States will be in- would come out of the recession we are sional Budget Office. creased by this bill, not decreased. It in now faster than we are coming out But, basically, what they say is pret- will not be a $132 billion surplus in re- of it. So the numbers probably will be ty simple. They are saying that pro- ality but will be a $170 billion deficit, worse there. posals in this bill that raise the payroll just on that. Then, when you get to This is not made up. This is the tax on Medicare and reduce expendi- what Senator THUNE talked about, President’s budget. It is scored by this tures within Medicare—cutting Medi- other gimmicks in the bill, it makes Congress’s CBO, and it is the best num- care—saves money. It puts more money that even worse. bers we have. It is a stunning develop- in the pot. But it is part of the Medi- You say, well, the CBO has a score ment. We cannot continue. That is why care trust fund pot. As to that savings, that says it is a $132 billion surplus. It people say it is unsustainable. it is said: Well, we will just spend it reduces our debt $132 billion. Well, the Senator KYL made reference to this. I over here and pay for this new health way they are doing this, and the way made a chart on it some time ago. I care program that was just voted on that accounting is done, with trust just could not believe it. In 2009, the earlier today. funds and nontrust funds in a unified

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00045 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13840 CONGRESSIONAL RECORD — SENATE December 23, 2009 government budget, they do not score they came up with this actually do that. I think the American people this IOU because they seem to think it achieving a savings. But the Senator get that, which is why they believe it is all one government, and so what is made it very clear: $170 billion actually will add to the deficit as well. one is not the other, and it is not debt. to the deficit. As I mentioned earlier, But there are other things in this But it is a debt, and they said it explic- the accounting gimmicks that have bill—— itly. You cannot count the money over been used have understated the 10-year Mr. SESSIONS. I would just say my here as adding to the life of Medicare cost of this. By the way, my staff cor- understanding, having looked at this at and at the same time score this as free rected me. The off-the-top-of-my-head some length and given it thought, is money to be spent over here on this calculation was $177 billion in deficit; the legislation will extend Medicare be- program. it is actually $187 billion. So you add cause it increases the Medicare tax, President Obama, Monday, at a press that to what you mentioned, pretty and that will bring in more money. It conference, said it is going to reduce soon you have what they are claiming pretends we will slash provider pay- our deficit $132 billion, and it is going is a $170 billion savings turns into a ments on health care and others and to extend the life of Medicare by 9 very sizable deficit. save money that way. So, on paper, it years. Well, you cannot do both, as So I would ask the Senator from Ala- definitely should extend the life of they have explicitly stated in the let- bama—again, I give him great credit Medicare. ter we got from CBO, and it is just a for bringing this to light, raising this What do we do with the money? Well, matter of absolute fact. issue with the CBO—what does that the money that is saved is not staying They say: mean for this piece of legislation we in Medicare. It is being borrowed by To describe the full amount of HI trust are going to be voting on tomorrow, a the U.S. Treasury to spend on a new fund savings— $21⁄2 trillion expansion of the govern- program, and the U.S. Treasury owes it Over here in Medicare— ment financed through tax increases to Medicare. We can see in the trends as both improving the government’s ability and Medicare cuts. Yet even with all in Medicare it will not be too many to pay future Medicare benefits and financ- that, the assumption is, this is not years before Medicare is going to want ing new spending outside of Medicare would going to meet the requirement the that money. That is going to leave us essentially double-count a large share of President set out; that is, that it over here, and that is why we have a those savings. . . . doesn’t add a single dime to the deficit. debt. It increases our debt, and we are Well, these kinds of gimmicks and What does that mean to that com- going to have to pay that back—our manipulations have been done before, mitment made by the President and to children, our grandchildren—sooner but it is time to end it. I think the this legislation’s sort of fiscal situa- than that. Hopefully, we will be around American people have said: In a time of tion as we move forward and to these to pay some of that back. war, in a time of recession, we need to negotiations or discussions, if this So that is the problem we have. It is get busy about the budget—by a two- passes tomorrow, with the House of a misrepresentation to say this creates thirds vote. Representatives? money that can fund a program on a They are right. We are going to work Mr. SESSIONS. This is a huge issue. permanent basis. It does not. It is just our way out of this recession. This I remember a few months ago, in a an internal debt situation. American economy will respond sooner joint session of Congress, President Mr. THUNE. If the Senator will fur- or later and, hopefully, sooner for the Obama spoke to us. He looked out at ther yield, a couple other items that people of the United States. the crowd and said: This bill will not are being used to get us to where this The PRESIDING OFFICER. The Sen- add one dollar—or one dime—to the na- argument can be made, which is that ator’s time has expired. tional debt. It was a firm commitment there are savings from this, this $132 Mr. SESSIONS. Mr. President, is to all the American people who were billion savings and deficit reduction that the 10 minutes on this side? And is listening, all the Congressmen and Sen- the majority has talked about also in- there time left on this side? I ask unan- ators in that room—it will not add to cludes the creation of an entirely new imous consent to have 3 additional the debt. So what we now know is that program called this CLASS Act. minutes. this bill is going to add to the debt. There were eight Democratic Sen- Mr. THUNE. Mr. President, I think There is no doubt about it. The debt of ators who wrote a letter, basically, our side has another 10 minutes or so, the United States will increase. It is a asking that the CLASS Act not be in- with which I would perhaps enter into dangerous trend that happens in a lot cluded in this bill, recognizing what a colloquy with the Senator from Ala- of different ways that has put us onto many have; that is, that the CBO has bama. this course. recognized that while it may show I would ask the Senator, on the point I think he recognized you shouldn’t some savings in the early years, when he made—and I give the Senator great increase the debt. He recognized, if he people are paying premiums, it is simi- credit for raising that question to the is going to create an entirely new lar to everything else. That money, CBO—because I think it is intuitive to health care program over here, it ought when it gets spent on other things, most people that you cannot spend to be paid for, and he promised to do isn’t there to pay out benefits when the money twice; that you cannot some- that. We have Members of this body, time comes to pay out benefits. So we how double-count it. That is essen- Members of the House who supported get this artificial $72 billion infusion of tially what the CBO said in their let- the bill, based on the promise it would cash in the early years, which is being ter. I think the Senator quoted from it. not increase the debt. But we have used to, again, understate the cost of They went on to say—CBO has writ- now, conclusive proof, in any number this and to demonstrate—or to make ten ‘‘that the savings to the HI trust of different ways but particularly with the argument that there is, in fact, $132 fund . . . would be received by the gov- the CBO score, that it will increase the billion in savings here or deficit reduc- ernment only once, so they cannot be debt. It is a decisive issue as far as I tion. set aside to pay for future Medicare can see. There is $72 billion that this CLASS spending and, at the same time, pay for Mr. THUNE. If the Senator will fur- Act represents in that first 10-year current spending on other parts of the ther yield, in addition to this revela- window which, as I described earlier, legislation or on other programs.’’ tion from the CBO, which I think does our colleague on the other side has de- That is the argument we have been change the game and the whole debate scribed it as a Ponzi scheme. But it making all along. I guess finally it about whether this is a budget buster, does create an entirely new program, dawned on the CBO, evidently, and it which it has been described as, in spite not unlike some of the entitlement took the Senator’s question, I think, to of the fact that our colleagues on the programs that already exist, where get them to respond this way. other side have been arguing it extends payments are coming in now that are But the way the Senator explained the life of Medicare, I think this state- being used to spend for other purposes the interaction between government ment by the CBO certainly shreds the that someday, when the chickens come trust funds, the unified budget, and the notion that you can have it both ways; home to roost, there is going to be an- IOUs the government writes to itself, that you can double count this money; other reckoning. Again, I think it is perhaps gives some explanation to how that you can spend it twice. You can’t another example of a program of a way

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00046 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13841 in which this financial picture, with re- to confuse. One can do anything with is Medicare and the rest of the govern- gard to this health care bill, is under- numbers. ment, and under that unified budget restating its true costs and its impact on The real question is, What are the gime, the CBO still reaches the same deficits in the long run. facts? conclusion it has always reached. I I would ask my colleague from Ala- Mr. SESSIONS. Will the Senator would like that to be on the RECORD. bama, having looked at that particular yield? The Senator has a question. program, if he would agree that too is Mr. BAUCUS. I wish to first make a Mr. SESSIONS. Mr. Chairman, I something that is going to cost us sig- point, and I will yield later to the Sen- would agree that— nificantly in the outyears and whether ator. The PRESIDING OFFICER. The Sen- that is something that ought to be in- The Congressional Budget Office ator will address the other Senator cluded as counted toward the whole stands by its analysis. I have before me through the Chair. calculation on deficit reduction in this an e-mail sent today, dated today’s Mr. SESSIONS. Mr. President, will legislation. date, 2:56 p.m., and let me read it, from the Senator yield for a question? Mr. SESSIONS. I thank Senator the Congressional Budget Office: Mr. BAUCUS. Mr. President, I yield THUNE for his leadership in exposing The Congressional Budget Office has been for a question. this. The way I believe this operates— asked whether our memo this morning dis- Mr. SESSIONS. I think that CBO’s and you correct me if I am wrong—but cussing the effect of [this legislation] incor- second statement is correct. I think the way I believe it operates is it re- porating the manager’s amendment, on the the statement they did earlier about quires a certain number of premiums federal budget and on the balance in the Hos- the $132 billion surplus reducing the pital Insurance trust fund alters CBO’s ear- now, and the actuaries who score these debt over 10 years is technically accu- lier findings about the budgetary impact of rate. But I think the statement they things say that in the years to come, the legislation. It does not. In particular, as there will be claims on those policies described in our December 19 and December issued early this morning that this is— and people will claim more and more as 20 letters to Senator Reid— to count it in both places is a double they get older and the years go by and Let me continue reading and, hope- count of the money, in effect. it becomes actuarially unsound. But in fully, Senators are listening to this be- My question to the Senator is, we are the first few years, on paper—on cause this is a letter today, actually it going to be talking about voting on the paper—for the first 2 years, it looks is an e-mail today, at 2:56 p.m. CBO debt limit tomorrow. good because you have more coming in says: Mr. BAUCUS. That is correct. than going out. So they are scoring Mr. SESSIONS. The debt limit is the CBO and the staff of the Joint Committee gross debt of the country. this short-term surplus—correct me if I on Taxation estimate that the legislation am wrong—they are scoring this as an would reduce federal budget deficits by $132 Isn’t it true the passage of this asset, as income to the Treasury, when billion during the 2010–2019 period. health care bill will increase the gross the contracts people have when they Next: debt of the country, the gross debt start paying this money in protects being both the public debt and the CBO expects that the legislation would re- intergovernmental debt? them for years and years to come, and duce federal budget deficits during the dec- in the future they will be making more ade beyond 2019 relative to those projected Mr. BAUCUS. No, that is not—— claims than are paid out. under current law—with a total effect during Mr. SESSIONS. Will not the bill in- That is why it is actuarially unsound that decade that is in a broad range between crease the gross debt of the United and will increase the debt in the long one-quarter percent and one-half percent of States? run. Would the Senator describe it that GDP. Mr. BAUCUS. If I might respond and way? Of course, we know that is about $650 answer the question—no; the exact op- Mr. THUNE. Well, I think that is ex- billion to $1.3 trillion. That is CBO posite. CBO says so. CBO says it actu- actly how it would work. Again, it is today. ally reduces the debt by $1 billion. another gimmick, if you will; another Third: Mr. SESSIONS. I am asking the dif- accounting tool. CBO expects that the legislation would ference. The question is gross debt. Mr. SESSIONS. So it is dishonest. generate a reduction in the federal budg- Does it reduce or increase the gross When you know a program is not actu- etary commitment to health care during the debt? arially sound and it is going to take decade beyond 2019. Mr. BAUCUS. If I might, Mr. Presi- additional Federal Government rev- So what everyone says—and I might dent, as the Senator knows, the debt is enue to honor the contracts in the say to my good friend from Alabama, the accumulation of deficits, and by years to come, to count that today as part of that chart he had before us definition, if a deficit is reduced, there- an asset is wrong. It is improper to do today is accurate, I mean the flow of fore, the national debt is also reduced. that. We ought not to propose a plan Medicare and the IOUs and so forth. That is a mathematical truism. If the that has a Ponzi scheme-type nature to The part that is inaccurate is the in- deficit is reduced, automatically the it. creasing debt and the double account- debt is reduced. That is mathematics. Mr. THUNE. Well, I don’t disagree, ing part. There is no double accounting The next point I want to make, there and I think the American people agree here. There are separate accounting re- was substantial debate today about the with that. gimes and procedures that are used for constitutionality of this bill. As I have The PRESIDING OFFICER. The time all trust funds, including Medicare. discussed before, we have confidence of the Senator has expired. The Medicare trust fund issues dollars that the health care plan we have Mr. SESSIONS. I thank the Chair that are in surplus in the outyears, as crafted is an appropriate exercise of and yield the floor. the Senator said, that have been held the commerce clause and does not vio- The PRESIDING OFFICER. The Sen- by the trust fund—by the trustees—and late the 10th amendment. We further ator from Montana. dollars that are used in any way the believe that ample power is available Mr. BAUCUS. Mr. President, this has Federal Government decides to spend under the takings and spending power, been an interesting discussion we have dollars, either pursuant to legislation as well. heard in the last 15, 20 minutes. One or maybe the administration on its I ask unanimous consent to have can do anything with figures, numbers. own may be spending some dollars in printed in the RECORD two articles by I am not going to cite the often-used one place or another. Prof. Erwin Chemerinsky and Prof. Mi- phrase that some category of people This is not double accounting. No- chael Dorf. can figure, another category of people body has claimed there is double ac- There being no objection, the mate- can do something else. But anyway, counting. There are two different re- rial was ordered to be printed in the one can do anything with numbers, gimes and that is how—the Senator ac- RECORD, as follows: anything whatsoever. Frankly, this is curately described how the Medicare [From Politico, Oct. 23, 2009] an effort to confuse by pulling different trust fund is accounted for. But it is HEALTH CARE REFORM IS CONSTITUTIONAL figures out from one document and also true that under our budget rules, (By Erwin Chemerinsky) then another and concocting—they can we have a unified budget, there is one Those opposing health care reform are input a board up here. It is just an effort government—U.S. Government—there creasingly relying on an argument that has

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00047 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13842 CONGRESSIONAL RECORD — SENATE December 23, 2009 no legal merit: that the health care reform have insurance. Most states now require Consider, for instance, that the Constitu- legislation would be unconstitutional. There automobile insurance as a condition for driv- tion does not expressly grant Congress the is, of course, much to debate about how to ing. power to charter a bank. Accordingly, Presi- best reform America’s health care system. Since the 19th century, the Supreme Court dent George Washington asked two of his But there is no doubt that bills passed by has consistently held that a tax cannot be Cabinet members to prepare memoranda on House and Senate committees are constitu- challenged as an impermissible take of pri- whether that power could nonetheless be in- tional. vate property for public use without just ferred from the powers that are enumerated Some who object to the health care pro- compensation. All taxes are a taking of pri- in the Constitution—including the powers to posals claim that they are beyond the scope vate property for public use, but no tax has regulate interstate and foreign commerce, to of congressional powers. Specifically, they ever been invalidated on that basis. coin money, to lay and collect taxes, to argue that Congress lacks the authority to Since the late 1930s, the Supreme Court spend money for the general welfare, and to compel people to purchase health insurance has ruled that government economic regula- enact such laws as are ‘‘necessary and proper or pay a tax or a fine. tions, including taxes, are to be upheld as for carrying into execution the’’ specifically Congress clearly could do this under its long as they are reasonable. Virtually all enumerated powers. power pursuant to Article I, Section 8 of the economic regulations and taxes have been Arguing for a position that would today be Constitution to regulate commerce among found to meet this standard for more than 70 called ‘‘states’ rights,’’ Thomas Jefferson the states. The Supreme Court has held that years. There is thus no realistic chance that said no. The enumerated powers had to be this includes authority to regulate activities the mandate for health insurance would be construed narrowly, he said, or else the fed- that have a substantial effect on interstate invalidated for denying due process or equal eral government would completely over- commerce. In the area of economic activi- protection. shadow the states. Alexander Hamilton dis- ties, ‘‘substantial effect’’ can be found based Those who object to the health care pro- agreed, however. He explained that in order on the cumulative impact of the activity posals on constitutional grounds are making to carry out the powers it was expressly across the country. For example, a few years an argument that has no basis in the law. granted, Congress must have implied powers. ago, the Supreme Court held that Congress They are invoking the rhetorical power of Washington sided with Hamilton and, years could use its commerce clause authority to the Constitution to support their opposition later, in the landmark 1819 case of McCulloch prohibit individuals from cultivating and to health care reform, but the law is clear v. Maryland, so did the Supreme Court. At various points in American history, possessing small amounts of marijuana for that Congress constitutionally has the power politicians and judges have flirted with the personal medicinal use because marijuana is to do so. There is much to argue about in the Jeffersonian view, but for the most part, the bought and sold in interstate commerce. debate over health care reform, but constitu- Hamiltonian position has prevailed, espe- The relationship between health care cov- tionality is not among the hard questions to cially with respect to laws purporting to reg- erage and the national economy is even consider. stronger and more readily apparent. In 2007, ulate interstate commerce. Thus, under the Supreme Court’s 1942 decision in Wickard v. health care expenditures amounted to $2.2 [From FindLaw Legal News, Nov. 2, 2009] trillion, or $7,421 per person, and accounted Filburn, Congress can forbid a farmer from THE CONSTITUTIONALITY OF HEALTH INSUR- for 16.2 percent of the gross domestic prod- growing more wheat than his federal quota ANCE REFORM, PART II: CONGRESSIONAL uct. allows on the theory that if he does not grow Ken Klukowski, writing in POLITICO, ar- POWER wheat, he will purchase it, which will affect gued that ‘‘people who declined to purchase (By Michael C. Dorf) the interstate market. Likewise, in the 2005 case of Gonzales v. government-mandated insurance would not Although many key details remain to be Raich, the Court said that in the course of be engaging in commercial activity, so negotiated, Congress appears poised to enact regulating the national illegal market in there’s no interstate commerce.’’ some substantial reform of American health marijuana, Congress could forbid the intra- Klukowski’s argument is flawed because the care that will build on, rather than replace, state, noncommercial production and con- Supreme Court never has said that the com- our patchwork of government, private, and sumption of medical marijuana, even if it is merce power is limited to regulating those non-profit insurance. The bill that the Presi- legal under state law. The Court explained who are engaged in commercial activity. dent signs will likely contain, among other Quite the contrary: The court has said that that Congress legitimately worried that things, an ‘‘individual mandate’’ requiring making an exception to the general prohibi- Congress can use its commerce power to for- that everyone obtain health insurance or bid hotels and restaurants from discrimi- tion on marijuana use for medical marijuana face a financial penalty. Would such a man- use that is authorized by state law could sub- nating based on race, even though their con- date be constitutional? duct was refusing to engage in commercial stantially undermine the government’s abil- In my last column and an accompanying ity to police other marijuana production, activity. Likewise, the court has said that blog entry, I considered and rejected the ob- Congress can regulate the growing of mari- distribution, and possession. jection that an individual mandate would be That same logic applies to the individual juana for personal medicinal use, even if the an unprecedented burden on liberty because mandate in the health insurance context. As person being punished never engaged in any it would affirmatively direct conduct, rather I explained in my last column, the main commercial activity. than either forbidding conduct or imposing Under an unbroken line of precedents point of the individual mandate is to ensure affirmative obligations on only those who that insurance companies cover people even stretching back 70 years, Congress has the engage in conduct that the government has power to regulate activities that, taken cu- though they have pre-existing conditions. the power to forbid. As I explained, there are Without the individual mandate, however, mulatively, have a substantial effect on substantial precedents for such affirmative interstate commerce. People not purchasing many young, healthy people would decline obligations and even if there were not, there insurance until they got sick, creating a se- health insurance unquestionably has this ef- is no reason in principle why an affirmative fect. vere adverse selection problem. Thus, the in- duty is a greater restriction on liberty than dividual mandate is closely connected with There is a substantial likelihood that ev- a prohibition or condition. eryone will need medical care at some point. the regulation of health insurance, just as In this column, I consider a different objec- the Court said in Raich that the regulation A person with a communicable disease will tion to the individual mandate: the claim be treated whether or not he or she is in- of marijuana that is used for medical pur- that the federal government lacks the au- poses is closely related to the regulation of sured. A person in an automobile accident thority under the Constitution to impose the will be rushed to the hospital for treatment, the broader market for marijuana. mandate or to penalize those who do not Health care is an enormous interstate busi- whether or not he or she is insured. Congress comply. As I explain, this objection is also ness. It therefore counts as interstate com- would simply be requiring everyone to be in- unsound as a matter of constitutional law. I merce, regulable by Congress. Just as, in sured to cover their potential costs to the conclude, however, that individual members Raich, Congress acted constitutionally by system. of Congress ought to decide for themselves Congress also could justify this as an exer- declining to exempt individual acts of non- whether regulating health care in the man- commercial intrastate marijuana possession cise of its taxing and spending power. Con- ner of the proposed bills is an appropriate job gress can require the purchase of health in- from the Controlled Substances Act, so too for the federal government, or instead should Congress would act constitutionally by insurance and then tax those who do not do so be left to state regulation or the market. in order to pay their costs to the system. cluding an individual mandate within the This is similar to Social Security taxes, IS A REGULATION OF HEALTH CARE A ambit of its regulation of health care. which everyone pays to cover the costs of REGULATION OF INTERSTATE COMMERCE? IS EXISTENCE AN ‘‘ECONOMIC ACTIVITY’’? the Social Security system. Since the 1930s, Under the Tenth Amendment, Congress THAT’S THE WRONG QUESTION the Supreme Court has accorded Congress may only enact legislation that falls within Skeptics nonetheless point to two Supreme broad powers to tax and spend for the gen- one or more of its enumerated powers. Most Court cases—the 1995 ruling in United States eral welfare and has left it to Congress to de- of those powers—and all of the powers that v. Lopez and the 2000 decision in United termine this. are potentially relevant in the health insur- States v. Morrison—as grounds for the con- Nor is there any basis for arguing that an ance reform debate—are found in Article I, clusion that the individual mandate would insurance requirement violates individual Section 8. From the very earliest days of the be beyond the power of Congress under the liberties. No constitutionally protected free- Republic, there has been controversy about Commerce Clause. In Lopez, the Court in- dom is infringed. There is no right to not the scope of those powers. validated a federal criminal law forbidding

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00048 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13843 possession of a firearm near a schoolyard. In adapted to that end, which are not prohib- that Congress will not simply federalize ev- Morrison, the Court rejected a federal law ited, but consist with the letter and spirit of erything, leaving no area of regulatory dis- providing victims of gender-motivated vio- the constitution, are constitutional.’’ cretion to the states. lence with a right to sue their attackers. As we have seen, the individual mandate is Wechsler’s point was mostly descriptive: Both decisions reasoned that Congress typi- ‘‘plainly adapted’’ to the undoubtedly legiti- Congress, he said, would in fact take account cally cannot regulate ‘‘noneconomic’’ intra- mate end of regulating the enormous and of state interests. But we might add a nor- state activities on the ground that they af- enormously important health-care sector of mative dimension: Congress should take its fect interstate commerce. the national economy. It is therefore con- constitutional role seriously in matters of Accordingly, lawyers David Casey and Lee stitutional. federalism, because judges are going to be Rivkin, writing in The Washington Post in THE TAXATION POWER highly deferential in such matters if and August, concluded that Lopez and Morrison In light of the broad interpretation the Su- when federal statutes are constitutionality make the Commerce Clause unavailable as a preme Court has given to the enumerated tested. source of congressional power for the indi- powers of Congress, an Act may be justified Accordingly, it would be perfectly appro- vidual mandate because a human being’s on more than one constitutional ground. priate for one or more members of Congress mere existence is not a form of economic ac- Thus, the individual mandate could alter- to vote against the individual mandate or tivity. Indeed, they might have added, exist- natively be upheld as a valid exercise of the health care reform more broadly on the ence is not an activity at all. ground that they think such matters should Although the issue is not entirely free Article I power to ‘‘lay and collect taxes, duties, imposts and excises,’’ as bolstered by be left to state regulation or to private deci- from doubt, I do not think that Casey and sion makers. But it would be equally appro- Rivkin have correctly read the precedents. the Sixteenth Amendment’s authorization of an income tax. After all, in most versions of priate for Congress to conclude otherwise In Lopez and Morrison, Congress sought to and thereby join the ranks of the other in- prohibit activities—firearms possession near the individual mandate, Americans are not literally required to purchase health insur- dustrialized countries—including those, like schools and gender-motivated violence, re- Canada and Germany, with robust commit- spectively—that were not, according to the ance: Instead, they are told to pay a tax from which they can be exempted if they ments to federalism—that have comprehen- Court, ‘‘economic.’’ In those two cases, it sive national health care systems. Properly was only by several logical inferences of the have health insurance. To be sure, as Casey and Rivkin observe, a understood, the constitutional case law is no handbone-connected-to-the-wristbone-wrist- 1922 case, Bailey v. Drexel Furniture Co., obstacle. bone-connected-to-the-elbow-bone sort that holds that Congress may not use taxation as DEBT LIMIT one could move from the regulated activity a pretext for accomplishing a regulatory ob- to an effect on commerce. For example, in Mr. BAUCUS. Mr. President, tomor- jective that it could not accomplish directly. Lopez, the theory went as follows: Guns near row morning, the Senate will have to But subsequent cases upholding ‘‘occupa- schools intimidate children; intimidated vote on legislation to increase the stat- tional taxes’’ on businesses that Congress children have a hard time concentrating on utory limit on the United States debt. clearly intended to discourage, have made their studies; they learn less; they then grow clear that a tax that serves a revenue-raising The measure that will be before us will up to be less productive members of society; purpose is not invalid simply because it also increase the limit by $290 billion. and thus the national economy suffers. Even serves a regulatory purpose. And there is no The debt limit sets a ceiling on the though each link in this chain is plausible, doubt that the tax on uninsured income amount of money the U.S. Treasury the Lopez majority reasoned that if the earners would serve a valid revenue-raising can borrow. If we pass this bill, then Court were to allow this sort of inferential purpose—namely, to defray the costs of sub- process, then virtually anything would count the Treasury can continue to borrow sidizing health insurance for those who could as a regulation of interstate commerce. Ac- money until about February 11 of next not otherwise afford it. year. If we do not pass this bill, then at knowledging that congressional power under Thus, even if Congress lacked the power to the Commerce Clause is very broad, the adopt the individual mandate under the least two very bad things will happen: Court in Lopez and Morrison nonetheless in- Commerce Clause, the taxing power would First, the United States would de- sisted that it is not infinitely broad. separately authorize a properly-worded tax fault on the interest payments on this By contrast with the laws that were invali- on the uninsured, despite its regulatory im- debt for the first time in the history of dated in Lopez and Morrison, the individual pact. this country. Second, the Federal Gov- mandate is quite close to the core of the Commerce Clause. Treating the mere exist- FEDERALISM IN CONGRESS: ITS MEMBERS, TOO, ernment would be unable to borrow the ence of a human being as the predicate of CAN CONSIDER THE CONSTITUTIONAL DIMEN- money it will need to pay Social Secu- regulation in the health care bills would SIONS OF LEGISLATION rity benefits that beneficiaries are en- miss the point. Whereas the Gun Free School The foregoing analysis shows why an indi- titled to receive. Zones Act in Lopez and the civil remedy pro- vidual mandate would be upheld against a The bottom line is we have no choice. vision of the Violence Against Women Act in court challenge, so long as the courts faith- We have to approve it. The law limits Morrison sought to discourage certain con- fully apply the current Supreme Court prece- how much money the Treasury can dents. Nonetheless, members of Congress are duct, the point of the individual mandate is borrow. One might ask: How did we to encourage certain conduct. And crucially, entitled—indeed, some might say they are the conduct the individual mandate seeks to obligated—to reach their own constitutional reach the current limit? The answer is encourage is quintessentially economic: It is judgment about any bill that comes before simple and it is, frankly—I am trying the purchase of a service, namely health in- them. And that is especially true when there to give a very fair answer, fair to both surance. is a question about the proper role of the fed- sides of the aisle and not be political Does Congress have the power to encourage eral government and the states. about this but just be fair and explain people to engage in market transactions? Of In its cases involving challenges to con- how we got to where we are. course it does. That, after all, was the whole gressional power, the Supreme Court has The financial crisis and the deep re- sometimes said that the broad deference point of the law upheld in Filburn: By lim- cession the new administration inher- iting the amount of wheat that farmer given to Congress arises out of institutional Filburn could grow, the government sought concerns: Except in extreme cases, the Jus- ited has resulted in record borrowing to encourage him to buy compensating tices lack the fact-finding capacity and this year. Let me be specific. amounts on the market. As the unanimous democratic legitimacy to make all of the First, the Bush administration asked Court explained in a ruling that the more re- fine-grained judgments about what matters for and then used authority to spend cent cases expressly reaffirm: ‘‘The stimula- should be federalized and what matters unprecedented sums of money to help tion of commerce is a use of the regulatory should be best left to the states. In the words banks, auto companies, insurance function quite as definitely as prohibitions of the late constitutional law scholar Her- firms, Fannie Mae, and Freddie Mac to bert Wechsler, the Court relies on ‘‘the polit- or restrictions thereon.’’ weather the financial crisis. The prior In the end, then, the argument of Casey, ical safeguards of federalism’’ to do most of Rivkin, and others who oppose the individual the work of ensuring a constitutional bal- administration enacted and used these mandate on Article I grounds amounts to no ance between national and state regulation. authorities before the current adminis- more than the assertion that the Constitu- Wechsler pointed to a variety of ways in tration even took office. That ran up a tion forbids Congress from using the most di- which the interests of the states are rep- huge number, a huge addition to our rect means of encouraging market activity: resented in Congress itself. Chief among deficits and debt. a mandate that individuals do so. But there these are the facts that each state has two Second, the new administration in- is nothing in the text or history of the Con- Senators, and that electoral districts respect herited the great recession. The reces- stitution to support that conclusion. state lines. In addition, as Stanford Law Indeed, the Ur-decision about Article I School Dean Larry Kramer has noted in sion has lowered revenues. To com- power, McCulloch, says the exact opposite: more recent scholarship, the national polit- pensate for reduced revenues, the ‘‘Let the end be legitimate, let it be within ical parties tie members of a state’s congres- Treasury has had to borrow more. the scope of the constitution, and all means sional delegation to state politicians. Taken In addition, the recession has in- which are appropriate, which are plainly together, these and other mechanisms ensure creased the need for Federal spending

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00049 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13844 CONGRESSIONAL RECORD — SENATE December 23, 2009 on things such as unemployment insur- drew the analogy that this is like going ing these days and weeks of debate, a ance and Medicaid costs for folks who out to dinner, ordering a good meal, good part of our bill, even though it can no longer afford health care. To and then refusing to pay the bill at the ended up with a partisan vote, included compensate for these increased out- end of it. We have a meal in front of 161 amendments offered by the minor- lays, Treasury has had to borrow more us—tragically a meal that got too ity in that markup session. More than as well. large because, frankly, the previous ad- half of all the amendments considered Finally, to keep the recession from ministration accumulated a debt with- were offered by the Republicans on becoming a lot worse than it has, the out ever asking the American people to that committee, on my committee at Obama administration had no choice pay for it, including the war in Iraq the time that were adopted almost but to enact a vigorous stimulus pack- and other items that left us in a hole unanimously in most cases. age, and the Treasury had to borrow larger than created by all administra- I wish to mention the minority staff the money to make up for this short- tions combined over 225 years of our tonight who made that possible. They fall as well. history—a remarkable achievement. It strengthened our bill and made it a Without enactment of this stimulus, is not just the deficit of one adminis- stronger one. Beginning with Frank the economy could have well descended tration but all 43 Presidents combined Macchiarola, Chuck Clapton, Katy into a depression. We would have been had never accumulated what one ad- Barr, Todd Spangler, Hayden Rhudy, in far worse economic shape had we not ministration did in 8 years. Keith Flanagan, Amy Muhlberg. They passed the stimulus legislation. I commend my colleague from Mon- work for Senator ENZI. To cover the costs of all these meas- tana. This is no easy task. It is a pain- Liz Wroe and Jeff Gonzales work for ures—that is those in the Bush admin- ful vote for anyone to cast, but it is ob- JUDD GREGG of New Hampshire. istration and those in the Obama ad- viously critical. This is more than just Jay Khosla, Patty DeLoatsche—I ministration—the Treasury Depart- a vote in this Chamber. It goes to the may have mispronounced that last ment has had to borrow record very stability of the global economy. name; I apologize if I did—along with amounts of money. Unfortunate as it We have to meet our obligations. I, Paul Williams of Senator HATCH’s staff is, we had to do it. Had we not, we for one, am certainly glad to cast a made a significant contribution to the would be in much worse shape today. vote. I do not think it is a difficult bill. While, again, there was division on a As a result of this unprecedented bor- vote. It is a hard vote considering what partisan basis, I thank them for their rowing, the Treasury is about to reach is at stake. But the implications of re- the current limit. It is clear that we efforts. They put in long hours as well. fusing to support this would be cata- On that note, let me say before get- have no choice but to raise the ceiling strophic to our country. ting to the substance of my remarks, I on the debt the Treasury can borrow. I thank my colleague. chair the Senate Banking, Housing, We have spent the money. We have to Mr. President, 10 minutes short of 12 and Urban Affairs Committee. We have raise the debt limit so bills can be paid. hours from now, we are going to cast been working diligently. In fact, today If we do not, the United States will de- our final vote on the national health my good friend and colleague from Ala- fault on its interest payments for the care proposal. I have some closing re- bama, RICHARD SHELBY, and I spent first time in its 220-year history. We marks on this historic debate. about an hour or so together and then cannot let that happen. We will not be Before I do so, I wish to thank once about five or six members, Republicans able to pay all the monthly Social Se- again our staffs who have been in- and Democrats on that committee, volved in all of this. I know my dear curity benefits to which people are en- spent another hour together, as we friend and colleague from Iowa will titled. That would be unthinkable. have every day almost over the last It is true we have to work harder to talk about this more specifically. I several weeks trying to fashion a bill reduce these deficits—we have no have already announced the names of on financial services reform that we the majority staff who have made a choice—also, therefore, to reduce our hope to present to our colleagues on national debt, certainly as a percent of contribution to this effort. our return in January and February I think it is fairly clear that tomor- gross domestic product. We have no that will deal with the catastrophe row morning at 7 a.m., when we cast choice. The point is we are beginning that has occurred economically in our our votes on this proposal, this is going to reach a crisis in the accumulation of Nation. deficits and therefore debt. That is to be a very divided Chamber. Sadly, My hope is as a Chamber—I know my clear. We must as a country, as a Con- we are going to end up on a very par- colleagues have heard me say this—I gress, working with the President, re- tisan vote. I suspect something along arrived in this Chamber as an employee duce those deficits in national debt. the lines of 60–40, although obviously of the Senate about 50 years ago. I sat However, we have to pay our bills. If we need less than 60 votes to pass the on these steps right over here. Lyndon we do not pay our bills, we default. bill at this point. But I suspect the Johnson sat in the Presiding Officer That would cause catastrophic con- vote will be something like that. I re- chair. John Kennedy was the President sequences. gret that deeply. It saddens me we have of the United States. I was a Senate To prevent those catastrophic con- come to that moment. But it is what it page and listened to the all-night de- sequences—that is, other countries is. bates in the early 1960s on civil rights having less confidence in the govern- While last evening I mentioned the and got to witness history. I got to ment, less confidence in the ability of members of the staff who are part of watch the Members of this Chamber, the United States to pay its debt, less the majority staff who made such a some of the historic figures—Hubert confidence in the U.S. dollar—we must contribution—and I thank them once Humphrey, Lyndon Johnson, Everett increase the Treasury’s borrowing again for their efforts—I want to also Dirksen—remarkable people who limit and, for a short period of time, I mention the minority staff who served served here. Barry Goldwater, of think it is appropriate and prudent. their Members well and admirably in course. We served together in this I urge my colleagues to vote for this this effort, certainly during the mark- Chamber for a period of time when I ar- legislation. There is no way around it. up of our bill in the Health, Education, rived in the Senate. It is a necessity. We simply have no Labor, and Pensions Committee that Thirty-five years ago on January 3 of choice. We have to pay our debts, but Senator Kennedy chaired for so many next month, I arrived as a 30-year-old in the future, let’s work harder to get years, that I had the honor of taking Member of the House of Representa- our deficits under control. over for him during his period of ill- tives, and 6 years later I arrived here The PRESIDING OFFICER. The Sen- ness, and is now chaired by my friend as a freshman Senator 30 years ago. ator from Connecticut. from Iowa, Senator HARKIN. Going back to the sixties, I had a lot to Mr. DODD. Mr. President, I am not a The Senator from Wyoming, MIKE do with this Chamber and watched it member of the Finance Committee and ENZI, is the ranking minority member over the years. do not have the responsibility Senator of that committee. We ultimately had The best moments occur when we BAUCUS does in dealing with these debt a divided, partisan vote in that com- work together. This has been a bitter ceiling issues. But let me corroborate mittee. But as my colleagues have and difficult battle over the last num- what he has been saying. Someone once heard me say over and over again dur- ber of months. But as someone who

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00050 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13845 takes great pride in having been part of bitter debates within the walls of this antee every American will have access this Chamber, as my father was before Chamber in which all of us are so proud to quality, affordable care when they me, for more than a quarter of the life to serve. need it, from the doctor they choose. I of our country, I want to see us once We do not have the luxury of tack- have talked about how reform will re- again return to the days when we have ling only those challenges that can be duce our national deficit by finally get- our partisan debates, which we should solved easily. But as Thomas Paine ting health care costs under control. I because it has built the country. wrote: have talked, as others have, about Partisanship—there is nothing wrong The harder the conflict, the more glorious what reform will do for small busi- with that. It is our ability to act civ- the triumph. nesses—giving them access to health illy with each other. I have been deeply Those words come from a pamphlet insurance exchanges where they can disturbed by some of the debate I have called ‘‘The American Crisis.’’ It was find the best deals for their workers heard, usually from newer Members, published 233 years ago this very week and a tax credit to help them pay for usually those who have been here 1, 2, at another very uncertain moment in it. And I have talked, as others have, 3 years, who do not have an apprecia- American history. That pamphlet be- about how reform will help our older tion of what this Chamber means and gins with these words: citizens, our seniors, by strengthening how we work together. Medicare and closing the so-called While we have our differences, the These are times that try men’s souls; the summer soldier and the sunshine patriot doughnut hole for prescription drugs ability to walk away from differences will, in this crisis, shrink from the service of and creating a new, voluntary program and forge those relationships over the his country; but he that stands it now, de- to pay for long-term care. I, along with next day is critically important. It is serves the love and thanks of man and others, have talked about how reform always the newest Members who fail to woman. will help doctors and health care pro- understand how the Senate has worked GEN George Washington, outmanned, viders spend more time caring for their for more than two centuries. We need outgunned, and sensing that morale patients, which they want to do, and to get back to that sense of civility was flagging in light of recent set- less time fighting with insurance com- once again. backs, ordered that this pamphlet and pany bureaucrats. I and so many others I hope when we return in January to these words be read to his deeply trou- have talked about how reform will fi- deal with new issues that we will get bled and impoverished troops. And on nally make insurance accessible and back to that comity that is important. Christmas Eve, 1776, he gathered his of- affordable for the 350,000 residents of Not the disagreements. The disagree- ficers at McKonkey’s Ferry to plan the my State and the 31 million people ments are important, but the ability to crossing of the Delaware. across our Nation who today don’t have deal with each other and forge the kind This body has been in session on of proposals that serve all of our con- it, whether it is because they can’t af- Christmas Eve only once since 1963— ford it or because they have been de- stituents and serve all of our country and we will tomorrow—when in the is going to be critically important. nied coverage due to a preexisting con- wake of President Kennedy’s assassina- dition. I have also talked, along with I wanted to share that thought with tion, the Senate met to consider a bill my colleagues this evening as someone my colleagues, about how reform will to fund our operations in Vietnam. We finally make insurance a buyer’s mar- who now at the ripe old age of 65 has will be in session tomorrow morning, spent well more than half of my life ket, ending a wide variety of abusive embroiled again in times that cer- insurance industry practices and em- deeply involved in this institution. It tainly try men’s souls. Like GEN saddens me when we end up being di- powering consumers to make smart de- George Washington, we have an oppor- vided and engaged in the ad hominem cisions. tunity to meet history’s gaze, to steel arguments that I think ridicule the in- As has been said so many times, this ourselves to the difficult work of mak- stitution, belittle and demean the con- bill is far from perfect, and we all know ing our Union more perfect. tributions that each and every Member that. It represents not the end but, as The journey we complete tomorrow my friend and colleague from Iowa has wants to make. has been a long and difficult one. But I, Even though we have had very strong said so many times, the beginning of for one, would not trade it for any- disagreements, I never once in my life our work. Long after all of us have left thing. We who will have the privilege in this Chamber ever questioned the this Chamber, however we depart, to cast our votes at 7 a.m. tomorrow patriotic intentions of any Member. We those who come after us will work on may have strong disagreements on how morning for health care reform will our product. They will make it better, to best achieve that more perfect never cast a more important vote in they will make it stronger, they will Union, but the idea you challenge an- our Senate careers. History will judge find our shortcomings in this bill, they other’s patriotism, honesty, their in- harshly those who have chosen to will add to it, and they will subtract tegrity, does a great disservice to this shrink from this moment, but those of from it. But they can never engage in institution, in my view. us who stand up to make this country those efforts if we do not do the job I Again, I regret sometimes the newer more secure, to make our Union more am confident we will do tomorrow Members who fail to understand the perfect, we will never forget this morning at 7 a.m. on Christmas Eve, importance of maintaining that which Christmas Eve. For this Christmas and that is to renew the American our Founders envisioned when they Eve, we have given an incredible gift. dream, revive our middle class, and re- created this institution. We have been granted a rare oppor- build the foundation upon which future This evening I rise to express once tunity to deliver an enormous victory generations will stand. and for all and lastly in this debate my for the American people for genera- I am very proud of this legislation, strong support for this bill, our Patient tions to come. We have a chance to al- with all its shortcomings. I am proud Protection and Affordable Care Act of leviate tremendous burdens of anxiety to have had a role in bringing it to a 2009. In a little over a week, this dec- and fear and suffering, to make our vote—an accidental role, as all of us ade, the first decade of the 21st century country stronger and healthier, to de- know. I wouldn’t be standing here talk- will come to a close, and it has been a liver the leadership our constituents ing about it in this context, other than turbulent one for our country. We have have demanded—and rightfully so—and as a Member of this Chamber, were it been tested by the acts of God and the the real and meaningful change they not for the tragic death of my great acts of evil men in this decade. We voted for 13 months ago. So in the last friend and colleague from Massachu- have entered two wars and have been week of a decade in which so much has setts. through a profound recession, almost a been asked of the American people, President Teddy Roosevelt famously depression. Our financial markets have that is what history now asks of us in said: failed. Middle-class families have lost this Chamber. Over the past weeks and months, I It is not the critic who counts; not the man their footing. The American dream is [or woman] who points out how the strong fading for far too many of our families have come to this floor to talk about man stumbles, or whether the doer of deeds in this Nation. what this bill will do for the citizens of could have done them better. The credit be- We wear these 10 years heavily. We my State and my country. I have longs to the man who [or woman] is actually have seen deep division in our country, talked about how reform will guar- in the arena, whose face is marred by dust

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But in the end, a crit- herself] in a worthy cause; who at the best fought so hard for regarding prevention ical mass of Senators rose to the his- knows in the end the triumph of high and wellness. All of that is in our bill. toric occasion. They voted their hopes, achievement, and who at the worst, if he [or It is in the bill Senator DODD brought not their fears. As we know now, in ret- she] fails, at least fails while daring greatly, forward out of our committee. So I am rospect, they passed laws that trans- so that his [or her] place shall never be with proud to have him not only as a friend formed America in profoundly positive those cold and timid souls who neither know but as our great leader on this health ways. victory nor defeat. care bill. Tomorrow morning, when we The Senate has now arrived at an- So we happy few, the 60 of us who finally pass it, it will be in no small other one of those rare historic cross- stand in the arena today, who have part because of the great leadership of roads. This time, we are going to pass fought and argued and compromised Senator DODD. So I wanted to thank comprehensive health reform—a great and organized so that we might cast him on the floor before he leaves to go goal that has eluded Congresses and this historic vote at 7 a.m. on Christ- home to be with his two great kids and Presidents going back to Theodore mas Eve, we would not trade this op- his wonderful wife. Roosevelt. portunity for anything. Appreciate it very much, CHRIS. I make no bones about my enthu- This last year has proven that Mr. DODD. I thank my colleague siasm for the reforms in this great bill. progress is not easy. Tomorrow, we will from Iowa, and we couldn’t have done Is it perfect? Is it what I would write if prove that it is not impossible. May it without him as well. I appreciate it. I could dictate everything? No. There the next decade in our country’s his- Mr. HARKIN. I thank the Senator have been genuine compromises made, tory be shaped by that spirit—by the very much. and that is the art of legislating. promise of a brighter tomorrow, by the Madam President, I also want to There are a lot of things not in this unshakable desire to rise to the chal- thank my good friend from Illinois, bill for which I fought very hard, such lenges that fate places in our path, by Senator BURRIS, for allowing me to go as a public option or getting a Medi- the quest to make our great Nation a first here, in front of him. care buy-in at age 55. But I understand more perfect one. You know, I was kind of feeling bad the art of compromise. Beyond that, I yield the floor. for myself because I didn’t know if I this bill will be the biggest expansion The PRESIDING OFFICER (Ms. was going to make Christmas Eve with of health coverage since the creation of CANTWELL). The Senator from Iowa is my wife and family for the first time in Medicare. recognized. 41 years. But I think, because of mov- It cracks down on abusive practices Mr. HARKIN. Madam President, I ing up the vote to 7 a.m., I might be by health insurance companies, abuses ask unanimous consent that the re- able to do that. that currently leave most Americans mainder of the time used on the bill But I just found out that today is one serious illness away from bank- today be for debate only. Senator BURRIS’s 48th wedding anniver- ruptcy. It includes an array of provi- The PRESIDING OFFICER. Without sary. Congratulations, Senator BURRIS. sions, including wellness and preven- objection, it is so ordered. So he is here today and his lovely wife tion and public health. Our aim in this Mr. HARKIN. Madam President, first is out in Illinois, but he sent her flow- bill is to change our current sick care of all, before he leaves the floor, I want ers today. I am sure she appreciated system to a true health care system to thank my dear friend, my colleague, that, but she would much rather be that keeps people out of the hospital in my classmate from 1975, for all his with Roland on this day. My goodness, the first place. great leadership on this bill. We were 48 years—in this day and age, it is hard Madam President, I was struck by all saddened by the fact that our lead- to find people married that long. So I something that the distinguished mi- er, Senator Kennedy, could not be with congratulate Senator BURRIS, who is a nority leader, Senator MCCONNELL, us over the last year to guide and di- great friend of mine personally and a said early Monday morning prior to the rect and to see the fulfillment of his valuable Member of the Senate. I think first critical cloture vote. Addressing lifetime dream of health care reform. it shows what people are giving up here Democratic Senators, the minority It fell upon CHRIS DODD’s shoulders to to make sure they are here to get leader turned and faced us and said: take it through. Madam President, he health reform passed. Senator BURRIS It’s not too late, it’s not too late. All it did it superbly. He kept our committee gave up being with his spouse of 48 takes is one, just one. Gesturing to this together. years. That is quite a sacrifice. side of the aisle, he said: One can stop Again, I just want to say that Sen- Thank you very much, Senator this bill; one can stop it, for every sin- ator DODD bent over backward, ex- BURRIS. gle one will own it. tended every consideration to the other Madam President, as we approach the He was talking about Democrats. I side to amend and to be involved in the final vote, again I wish to thank both say to the minority leader, we Demo- shaping of this bill. As my friend said, Senator DODD and Senator BAUCUS for crats are proud to own this bill. Just as we adopted 161 of their amendments a masterful job of shepherding this leg- we are proud of our ownership of Social out of 220 or so they offered. Not all of islation through the Finance and Security and Medicare and the Elemen- them were accepted. Not all of the HELP Committees. tary and Secondary Education Act and Democratic amendments were accept- There is no way we would be here so many other reforms, progressive reed, by the way, in the committee. So I today without the great work of our forms, that have made America the thought Senator DODD went the extra majority leader. To put it in Biblical great Nation we are today. mile to accommodate the other side. terms, Leader REID has the patience of For the record, let me point out ex- He did. I am just sorry that not one Re- Job, the wisdom of Solomon, and the actly what it is that Democrats will publican saw fit to support the bill stamina of Sampson. Senator REID is ‘‘own’’ by passing this bill. We will own when it came out of the committee, on the verge of achieving what major- the fact that this bill is fully paid for. but so be it. Because of Senator DODD’s ity leaders going back nearly a century Indeed, this bill will reduce the Federal dedication and his leadership, we have have failed to accomplish. Make no debt by $132 billion in the first decade a great bill here today. mistake about it, when this final vote and by at least $650 billion in the sec- I have been watching the debate, and is cast tomorrow morning, Majority ond decade. We will own the fact that most of the things people are talking Leader REID will have earned his place some 30 million additional Americans about are items that were in the bill in the Senate’s history. will in coming years have access to Senator DODD crafted, things that are As we approach the final vote, we quality, affordable health care. going to make a big difference in peo- have reached a momentous crossroad, Let me mention just a few of the ple’s lives. I will talk about a few of just as Senators did in 1935 when they things in the bill that Democrats will those in my formal remarks—things passed the Social Security Act and in own next year as soon as President

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00052 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13847 Obama signs this into law. We will own the health insurance companies, and CONGRESSIONAL RECORD the names of the fact that next year insurance com- this starter home has plenty of room those individuals on our staffs, who panies will be required to cover the for additions and improvements. have done so much to get us to this preexisting conditions of children. We We Democratic Senators are proud to point. I said earlier there is an old say- will own that. Think about that. There own this starter home. We are proud of ing that Senators are a constitutional will be a program to extend coverage to the fact that this starter home is fully impediment to the smooth functioning uninsured Americans with preexisting paid for. It is a starter home without a of staff. We kind of laugh at that, but conditions later. mortgage. we know there is great truth to that. We will own the fact that this bill Indeed, as I said earlier, this bill will Were it not for the staff who spent so provides immediate support to health reduce the Federal deficit by $132 bil- many hours and so much time away coverage for early retirees. We will lion in the first decade and by at least from their families that we would not own the fact that this bill will imme- $650 billion in the second decade. So, be here. diately shrink the size of the doughnut Madam President, even at this late I was talking with Senator REID’s of- hole by raising the ceiling on the ini- date before the vote tomorrow morn- fice. Kate Leone did a magnificent job. tial coverage period by $500 next year. ing, I say to our Republican colleagues, Carolyn Gluck, Jacqueline Lampert, We will own the immediate guar- Democrats are proud to own this legis- Bruce King, David Krone, Rodell antee of this bill of 50 percent price dis- lation and this starter home. We are Molineaux, and Randy DeValk. counts on brand-name drugs and bio- proud to own the many reforms and Senator DODD’s staff: Jim Fenton, logics purchased by low- and middle-in- benefits in this bill and we would be Tamar Magarik Haro, Monica Feit, come Medicare beneficiaries who are in very pleased to share ownership with Brian DeAngelis. the doughnut hole. We will own the as many of our Republican colleagues Senator BAUCUS’s staff: Liz Fowler, fact that this bill will provide tax cred- who care to join us. Bill Dauster, Russ Sullivan, John Sul- its to small businesses to make em- With all due respect to William F. livan, Scott Mulhauser, Kelly Whit- ployees’ coverage more affordable. Tax Buckley, it is not written in stone that ener, Cathy Koch, Yvette Fontenot, credits of up to 35 percent of the cost of conservatives have to say no to his- David Schwartz, Neleen Eisinger, Chris premiums will be available to small tory. I urge every Senator to say yes. Dawe. On our HELP committee: Michael businesses next year. This bill has many authors. But in a Myers, our great staff director, who for In addition, we will own the fact that very real sense this is Senator Ted more than a decade has led this staff this bill requires health insurance com- Kennedy’s bill. Our late beloved col- and for almost 20 years has worked for panies to allow children to stay on league would be so proud to see the Senator Kennedy. We are all sorry that their family’s policies until age 26. Senate on the cusp of passing land- Senator Kennedy could not be here for Democrats will own the fact that this mark health care reform. For decades, this. I can say honestly that Mike bill prohibits health insurers from im- from his first days in the Senate, this Myers carries on the torch as his staff posing lifetime limits on the benefits was his highest priority and fondest director. He did a magnificent job of consumers believe they are paying for win. As his friends on both sides of the getting us through this. And David and will tightly restrict the use of any aisle know, his great dream was of an Bowen—David Bowen, if there is one America where quality affordable care annual limits. person who knows more about what is Let me mention one other extremely is a right not a privilege for every cit- in this bill than anyone else, it is important thing that, in the minority izen. David Bowen. I have never asked him leader’s word, Democrats will own. Our Today, we are on the verge of making about anything in this bill that he bill, immediately, will stop insurers that dream a reality. So often Senator didn’t know where it was and what it from the devastating practice of re- Kennedy talked about the moral imper- does. He has been at every meeting, I ative of health reform. Too often in the scinding or cancelling health insurance don’t care how early in the morning, coverage when a policyholder is seri- debates of recent weeks we have lost how late at night. I know he has been ously ill. sense of this moral imperative. We apart from his family and his children. All of those things I mention will have heard speeches. We have had I wish David the best in terms of being happen right away, Madam President, charts, back and forth and back and with his family tomorrow and over as soon as the bill is signed into law. forth on some of the small stuff; who Christmas. David Bowen has done such Taken together, this is a breathtaking wins, who loses, because of this or that a magnificent job of guiding and di- catalog of reforms that will benefit the minor provision in the bill. recting this bill and making sure it was American people immediately. So, we Today, on the eve of this historic all put together. Democrats are very proud, I say to the vote, we should refocus on the big Connie Garner, who worked so hard, minority leader, to own these reforms. stuff, the moral imperative that drove so hard; Portia Wu, John McDonough, We had hoped that our Republican Senator Kennedy. With this bill we will Topher Spiro, Stacey Sachs, Tom colleagues would also be proud to own get rid of the shameful dividing line Kraus, Terri Roney, Craig Martinez, them. But let’s remember William F. that has excluded millions of Ameri- Taryn Morrissey, Andrea Harris, Sara Buckley’s conservative model. He is cans for too long. For too long, tens of Selgrade, Dan Stevens, Caroline sort of the father of the conservative millions of Americans have been on the Fichtenberg, Lory Yudin, Evan Griffis. movement in America. He said the role wrong side of that divide, without Now I want to mention one other per- of conservatives is ‘‘to stand athwart health insurance, without regular med- son who has been on my staff but now history yelling ‘stop’.’’ That is exactly ical care for their children, just one se- is on the HELP Committee staff, what our Republican colleagues have rious illness away from bankruptcy. Jenelle Krishnamoorthy. I have for been doing by filibustering and trying With this landmark legislation we many years been advocating that we to kill health care. They are ‘‘athwart erase that shameful divide within our have to change our focus in America history, yelling ’stop’.’’ My friends on American family. With this bill we say from a sick care society to a health the Republican side will be on the for every American, for every member care society. I mentioned that earlier. wrong side of history, the wrong side of of our American family, access to qual- This bill contains more for wellness reform, and the wrong side of progress. ity affordable care will be a right, not and prevention and public health than I have been saying this bill, the Pa- a privilege. It is a monumental any bill ever passed by Congress—ever tient Protection and Affordable Care achievement. passed—and it is not talked about Act, is like a starter home. It is not I urge all of our colleagues to vote much, you don’t hear too much debate the mansion of our dreams. It doesn’t yes on this bill. about it. But it is significant that we have every bell and whistle we would Now, Madam President, a lot has are going to change this paradigm. We all like, but it has a solid foundation been said about those of us who have are going to start putting more up giving every American access to qual- been the leadership on this bill: Sen- front, keeping people healthy in the ity, affordable coverage. It has an ex- ator REID, Senator BAUCUS, Senator first place. cellent protective roof which will shel- DODD, myself, and so many others. It is One person who has done more than ter Americans from the worst abuses of important to etch in history in our anyone else to make this happen is

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00053 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13848 CONGRESSIONAL RECORD — SENATE December 23, 2009 Jenelle Krishnamoorthy. I want to back next year, and we will start im- And while this bill will not satisfy thank her for just focusing laser-like plementing this bill. As the chairman many of us, it would be a mistake to the last couple of years or so on this of the HELP Committee, we will start overlook all the good it will do for tens and making sure it became a big part looking at building those additions and of millions of Americans. of our health care reform bill. those expansions. So let me explain exactly why I am On my personal staff, Jim Whitmire, I yield the floor and thank my friend convinced that this bill will satisfy the Beth Stein, Jenny Wing, Rosemary from Illinois for letting me go. three goals of a public option: Gutierrez, and Lee Perselay. Let me The PRESIDING OFFICER (Mr. According to the nonpartisan Con- mention Lee. Lee does all my work on BEGICH). The Senator from Illinois is gressional Budget Office, the exchanges disability issues. As many people recognized. that will be created under this legisla- know, it is my name on the Americans Mr. BURRIS. Mr. President, how tion will dramatically enhance com- With Disabilities Act. Nineteen years much time do I have? petition in the insurance market. ago we passed that. Lee Perselay does The PRESIDING OFFICER. The Sen- This will drive premiums down, al- all my work on the disability issue. ator has 6 minutes. lowing consumers to shop around for There is another part of the bill not Mr. BURRIS. Mr. President, the Sen- the plan that is best for them, their too many talk about, but it is so pro- ate has long been a forum for great de- family, or their small business. foundly important to people with dis- bate. CBO projections show that this would abilities. In this bill there is a provi- This institution is equipped to handle force providers to compete for the first sion that will have the Federal Govern- the most difficult questions our Nation time in many years, reducing costs and ment give a 6 percent increase in the faces. bringing everyone’s premiums under amount of money that the Federal Since we took up the issue of health control. Government gives to a State for Med- care reform, the debate has been fierce, As a result, many more people would icaid, 6 percent increase for a State and our differences of opinion have be able to get better coverage for less that will enact legislation to put in played out in dramatic fashion on the money. place the provisions of the Olmstead national stage. This bill will enhance the choices decision by the Supreme Court over 10 Over the last several months, I have that are available for individuals and years ago; that is, that every person said time and again that this health re- small businesses. with a disability has a right to a least form bill must accomplish the three Everyone will have the choice to restrictive environment. That means distinct goals of a public option in keep their current insurance coverage living in their own communities and order to win my support: if they are happy with it, but if they their own homes with personal assist- It must create real competition in are not, they will have real options for ant services, support so they can live the health care system. the first time in many years. at home rather than going to a nursing It must provide significant cost sav- This bill will give consumers the home. ings to the American people. tools they need to hold insurance com- This has been a dream of the dis- And it must restore accountability to panies accountable. ability community since we passed the the insurance industry. It includes strong consumer protec- Americans With Disability Act in 1990. For months I have told my col- tions—many of which take effect im- We have never been able to get it done. leagues that I would not be able to sup- mediately—and it contains significant Now we have it in this bill. It is not port a final bill that fails to meet these insurance reforms designed to put ordi- talked about much, didn’t hear much three goals. nary folks back in the driver’s seat. about it. But this will have more of a I believe they are the keys to com- This bill will eliminate annual and profound effect on people with disabil- prehensive health reform in America, lifetime caps on coverage, prohibit ities than any other single thing in and without them, our legislation companies from dropping patients who this bill or anything that we have would be ineffective and incomplete. get sick, and prevent discrimination done, literally, since 1990. Now people I expressed my concerns about the against people who have preexisting with disabilities can live at home and compromise bill, and I asked tough conditions. live in their own communities and the questions. It will also require insurance pro- State will get money from the Federal I have reviewed the CBO score and viders to cover essential health bene- Government to enable them to do that. the final legislative language as soon fits and recommended preventive care, Lee Perselay. as it became available. so more people can get the treatment Lee Perselay; thank you very much, I believe the way forward is clear. they need. Lee. This bill is not perfect. It does not in- Based on these provisions, it is quite Kate Cyrul of my staff, Dan Gold- clude everything I had hoped for. clear that this measure will provide berg, and the Senate legislative coun- But I am convinced that it can meet immediate and lasting improvements sel. A special thanks to Bill Baird, the three goals of a public option. in the health care system for everyone along with Stacy Kern-Scheerer and I believe it represents a monumental in this country. Ruth Ernst, who was present through- step forward—a strong foundation we It will extend quality coverage to 31 out the entire HELP Committee, and can improve upon in the months and million Americans who are currently they have gone above and beyond. years to come. uninsured, and increase access to pre- To all the floor staff here, too, we This is not the end of health care re- ventive care. forget about all they have done—Mike form in America—it is the beginning. This will reduce emergency room vis- Spahn and Anne Wall and Stacy Rich That is why we need to take the next its, allow more people to treat prevent- and Tim Mitchell and Tricia Engle and step in this process. Although this is able and chronic diseases, and help to Lula Davis, wonderful floor staff work- not the bill I had hoped I might be vot- bring health care costs under control. ing with us to get us to this point, ing on, I am confident enough to pass In fact, the Congressional Budget Of- where we have a final vote on this to- this legislation on to the next step. fice projects that this legislation will morrow morning. Let us send the Patient Protection cut the deficit by more than $130 bil- I wished to particularly mention and Affordable Care Act to a con- lion in just the first decade, and will these individuals. In many ways, they ference committee, where it will be save nearly $1 trillion over the next are the unsung heroes and heroines of merged with the House bill. several decades. what we have done. They can be con- There, I have every hope that the That is why I am confident that this tent in knowing, as they go through conferees will have the opportunity to bill will meet the three goals of a pub- life, they did a big thing here. They did strengthen some of these provisions lic option: competition, cost savings, something so important to help trans- and make this legislation better. and accountability. form our society. I, personally, thank We must not let the perfect stand in It may not be the legislation I would each and every one of them and wish the way of the good. While it is not ev- have written at the beginning of this them the best of the holiday season, erything I had hoped it would be, it is process, but after nearly a century of Christmas, New Year. We will come far more than we have now. debate about health care reform, under

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00054 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13849 the leadership of 11 Presidents and ference; namely, provisions to rectify Medicare beneficiaries with better countless Members of Congress, this the geographic inequities in the low value. Research shows that these effi- legislation represents a strong con- Medicare reimbursement rates. cient delivery practices can save the sensus. Across the country, Americans pay Medicare Program upwards of $100 bil- So it is time to take the next step in equal premiums to support Medicare. lion a year while also providing bene- this process—to send this bill to con- Yet there is a substantial geographic ficiaries better access to the care they ference and keep building upon this disparity in physician reimbursement need. Unfortunately, the current Medi- foundation. levels in the Medicare Part B Program. care payment structure penalizes those This is not a perfect bill, but it con- The degree of this disparity is unjusti- who provide efficient care while re- tains a number of fundamentally good fied and inherently unfair—and it is warding those who order unnecessary components. having an increasingly negative impact tests and services. It is critical that Most importantly, it will ensure that on the number of providers that are ac- this is addressed in conference, and it 94 percent of Americans can get the cepting Medicare and magnifying the will be-a-priority as we move forward health coverage they need. workforce shortage problem—espe- through this process. After decades of inaction, the Patient cially in rural areas. The unfairness in Mr. FRANKEN. Thank you, Senator Protection and Affordable Care Act is a this disparity in reimbursement rates HARKIN, for your leadership, and also monumental step in the right direc- is compounded by the fact that the thanks to my other colleagues for tion. States with the lowest reimbursement working on this issue. I agree with all There were many competing ideas rates are often those that deliver the that has been said, and I would like to that gave rise to this bill. highest quality of care. The system reiterate that our States have some of There were many voices, inside this must change and reward the quality of the best health care in the country. And it just doesn’t make sense that Chamber and outside of it, shouting to service delivered instead of the volume under the current Medicare reimburse- be heard on these issues. of care served. There were concessions and com- I see that my colleague from Oregon, ment system, the good care in our States gets punished and the less effec- promises. Senator MERKLEY, is here on the floor. tive, more expensive care gets re- But, out of a century of dissent—out He and I have often discussed this warded. The result is that we are not of decades of discussion and debate—we issue, as his State is also one that pro- providing health care in this country; have arrived at a basis for comprehen- vides outstanding care and yet suffers we are providing sick care. We need in- sive reform. from unduly low reimbursement rates. centives for providers for high-value It is time to put aside our differences I wonder if my distinguished colleague and move forward as one Congress, and care, and the best way to do this is shares my view that this is something through Medicare payment reform. one Nation. we must continue to work on before These geographic disparities in Medi- There is much work left to do on this this bill is finalized? care payments are unfair, and they are and a host of other issues. But in the Mr. MERKLEY. I thank my distin- not good for patient care. We are forc- messy process of debate and com- guished colleague for raising this issue, ing excellent providers out of business promise, along the path that has led us which has also been a concern of mine. because reimbursement rates are low to this point, this body has reaffirmed I agree with him that my State con- and they just can’t make ends meet. the enduring truth of the motto in- sistently lags behind other States on This is counterproductive to the goal scribed in this Chamber, just above the Medicare reimbursement and per cap- that I know we all share—to increase Vice President’s chair: ‘‘E pluribus ita spending. I strongly believe that a access to high-quality health care for unum.’’ It is there, Madam President, fundamental way to achieve the goal of all Americans. It is a top priority for right over your head. It means ‘‘Out of more efficiency in Medicare is to re- me that in conference we make some many, one.’’ align the Medicare payment system to changes so high quality care that is For our entire history, it has been reward health care providers for the provided at a reasonable cost will no the creed that binds us to one another quality of care they deliver, not simply longer be punished. Instead, we need to and to our common identity as Ameri- the quantity of services they provide. make sure that the bill rewards pro- cans. It is the principle that drives us Medicare is spending over one-third viders for being effective partners in to assemble in this august Chamber to more for each Medicare beneficiary in their patients’ care. I appreciate the debate the toughest issues we will ever some States compared to Oregon, to opportunity to share these concerns face. Iowa, or to the home State of my good and discuss these issues with my col- Although we come from every section friends from Minnesota, Senators leagues. of this country, from many States, we KLOBUCHAR and FRANKEN, who are also Mr. HARKIN. I couldn’t agree with are one country, and together, we can here on the floor with us today. my colleagues more. It is long past create a health care system that will The simple fact is, this antiquated time to take action to fix this system. be worthy of the people we represent. payment formula penalizes rural pro- I appreciate the commitment of the It is time to make good on the prom- viders and penalizes medical efficiency, Senator from Oregon and the Senators ise of the last century and move for- and I know in Oregon it has forced from Minnesota to fixing this problem ward with the Patient Protection and many physicians to stop accepting once and for all. Affordable Care Act. Medicare patients or limit the number DEFINITION OF FULL TIME WORK Let’s take the next step, and send of Medicare patients they serve, and Mrs. MURRAY. Mr. President, I this bill to conference. that is why I feel so strongly that we would like to engage my friends, the I yield the floor. must fix it once and for all in the final Senator from Iowa and Chairman of MEDICARE GEOGRAPHIC INEQUITIES IN health reform bill. I wonder if the Sen- the Health, Education, Labor and Pen- REIMBURSEMENT ators from Minnesota have had a simi- sions Committee, and the Senator from Mr. HARKIN. Mr. President, I am lar experience in their state. Montana and Chairman of the Finance pleased to support the legislation pend- Ms. KLOBUCHAR. I want to thank Committee, in a conversation about ing before the Senate today, which will you, Senator MERKLEY and Senator how ‘‘full time’’ is defined in the Pa- ensure that 31 million Americans will HARKIN, for your work on is issue. I tient Protection and Affordable Care finally have access to affordable, qual- have observed the same problems with Act and clarify any misunderstandings ity health coverage, which will crack Medicare reimbursement in my home about how the legislation resolves the down on outrageous abuses by the in- State. We represent States and regions potential for exclusion of certain work surance industry, and which will, at that have demonstrated true leadership group such as flight crews and rail long last, put prevention and wellness in lowering costs to Medicare while in- workers due to the definition of ‘‘full at the heart of our health care system. creasing the quality of care patients time’’ work and the unique way their I rise today, however, to signal that receive. The high-efficiency areas we work hours are calculated. there is an area of this legislation that represent are known for utilizing inte- Is it the Senators’ understanding remains of concern and that I will be grated health delivery systems and in- that the Patient Protection and Af- working to fix as we head to con- novative quality measures to provide fordable Care Act resolves a potential

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00055 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13850 CONGRESSIONAL RECORD — SENATE December 23, 2009 problem of excluding from employer in- gine service railroad employees paid by With the guidance of the doula, the centives to provide coverage for em- the mile or by the day are full-time Chicago Health Connection found that ployees who work in professions that employees and receive the same bene- more young mothers were going to use unique calculations for hours fits afforded other full-time workers. Is their prenatal care appointments, mak- worked, such as flight crews and rail it the Senators’ understanding that ing better lifestyle choices, and—not workers? And that it does this by indi- this bill is intended to allow these surprisingly—delivering healthier ba- cating that the Secretary of HHS, in working groups to be encompassed in bies. The doulas stay with the moms consultation with the Secretary of the definition of ‘‘full-time employee’’ through the early months, encouraging Labor, shall prescribe such regulations, for purposes of the employer incentives breastfeeding, cuddling, and inter- rules, and guidance as may be nec- to provide quality health care cov- active play. essary to determine the hours of serv- erage? Bina Holland is a community-based ice of an employee, including rules for Mr. HARKIN. Yes, that is my under- doula at the Easter Seals Children’s employees who are not compensated on standing, that the Secretaries of Development Center in Rockford, IL. an hourly basis? Health and Human Services and Labor Bina has had a powerful impact on one Mr. HARKIN. Yes, the Senator is cor- will establish standards to govern of her clients—a 14 year old girl who rect. The Patient Protection and Af- workers in these industries so they are was 5 months pregnant and severely fordable Care Act is designed to expand fully entitled to the protections under underweight. Bina taught her about access to high quality and affordable this bill. It is not the intent of Con- healthy nutrition habits to strengthen health coverage for all workers. Be- gress to exclude or prevent workers her body to carry a baby. Bina also en- cause of the nature of work, some in- with unique work schedules from the couraged the young woman to visit her dustries uniquely calculate total daily benefits under the Patient Protection doctor regularly and to openly talk and Affordable Care Act or from incen- and monthly working time to deter- with the doctor about the health status tives for employers to provide these mine full-time schedules. That is why of the baby. workers with quality healthcare cov- this legislation gives the Secretaries of The girl delivered her baby early at Health and Human Services and Labor erage. Mr. BAUCUS. Again, I am pleased to 2.5 lbs, and Bina was there to explain discretion to establish rules and regu- the health benefits of breastfeeding. lations for the hours of service for concur with the Senator from Iowa in his understanding. The Secretaries of The young mom agreed to nurse her workers outside of standard hours. child, and each week the mother mon- This provision is meant to be construed Health and Human Services and Labor will establish standards to govern itored the baby’s growth. The child was broadly. nursed to health, and the mother suc- Mr. BAUCUS. I would concur with workers in these industries so they are fully entitled to the protections under cessfully graduated from the doula pro- my friend, the Senator of Iowa, in his gram. Thanks to Bina. understanding of the act. This provi- this bill. Mrs. MURRAY. Mr. President, I Community-based doulas are a pow- sion is meant to be construed broadly, would like to thank the Senators from erful resource for maternal and child and to expand access to high quality Iowa and Montana for their time and health, and the model is effective. In and affordable health coverage for all clarification on this issue. communities that have employed it, workers. Mr. DURBIN. The Patient Protection Mrs. MURRAY. Of particular concern outcomes include better prenatal care, and Affordable Care Act offers commu- to me are groups such as pilots and higher birth weight, higher nity health workers some overdue rec- flight attendants, cabin crews who, breastfeeding rates, better parenting ognition, and more importantly, au- under ‘‘full time’’ contracts, ‘‘work’’ on skills, fewer preterm births and c-sec- thorizes grants to help support and ex- average only 70 hours per month due to tion deliveries, and delays in subse- pand their work. quent pregnancy for teenages. the unique way their hours are cal- Community health workers are from culated. For obvious safety reasons, a With Chicago Health Connection’s the communities they serve. From success, they took on the challenge of pilot is limited, through Federal regu- rural small towns to the urban inner lations, to flying 100 hours per month, working with other communities to city, community health workers reach build their own community-based or 1,200 hours annually, even though he out to underserved communities in or she contributes many more hours of doula program. Today, they have ways that the current health care sys- transformed into Health Connect One, service outside of the time spent flying tem cannot, providing culturally and planes. This unusual work schedule, a training organization for commu- linguistically appropriate health infor- nities nationwide interested in starting however, raises the potential that a mation in a more familiar and wel- pilot might not be considered a full- their own community based doula pro- coming manner. Their work helps to grams. The need is everywhere, and time employee for purposes of this leg- bridge the healthcare gap and diminish islation under a rule that defined full these women are working hard to make disparities. these important services available ev- time status as simply ‘‘working’’ up- Nowhere is this more evident than in erywhere for all moms. wards of 30 or 40 hours per week. The the community-based doula program. same is true of other flight-crew em- Community-based doulas support preg- I am encouraged by the language in ployees. nant women during the months of preg- Section 5313 of the Patient Protection Additionally, railroad hours-of-serv- nancy, birth, and the immediate post- and Affordable Care Act, Grants to ice employees, who work by the mile or partum period. They provide parent Promote the Community Health Work- by the day, could also find it difficult education, logistical and emotional force and want to ensure that the defi- to meet the definition of full-time em- support. They help new mothers make nition of community health worker in- ployee under a strict ‘‘hours worked’’ better lifestyle choices and deliver cludes community-based doulas. The standard. Many train and engine serv- healthier babies. What makes these Federal Government currently funds ice railroad employees are paid by the programs work is the culturally sen- community-based doula programs mile and or by the day or paid for time sitive mentoring within the commu- through the Maternal and Child Health available to work, and are not paid by nity. Bureau’s Special Projects of Regional the hour. Although these workers are In Chicago, the community-doula and National Significance. Expanding undoubtedly full-time employees with- model has made a big difference in the the definition of community health in their profession, the annual or week- lives of these young moms and their workers in the reform bill will give ly hours they are calculated to work babies. The Chicago Health Connection these evidence-based programs greater might not satisfy a narrow minimum came up with this model. They trained support to meet the needs of families hour component that did not take into mentors from the community to work in underserved communities. account a more flexible hours of serv- with at-risk moms, many of whom Community-based doula programs ice concept for certain types of jobs. didn’t know where else to turn. These are a proven example of the health out- Currently all flight and cabin crew mentors spend time in the neighbor- comes that education, prevention and members employed by Part 121 com- hood, finding and befriending pregnant health literacy can bring. With grants mercial air carriers and train and en- women who need help. to promote the community health

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00056 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13851 workforce, doulas will continue to pro- denied coverage for further medical will patients receive smarter care from mote positive health behaviors in preg- treatment. their physicians, these policies will nant women and improve the lives of Because of this bill, lifetime and an- help ensure that taxpayer dollars are families nationwide. nual limits on coverage will be prohib- going to pay for the value of care Medi- Mr. FEINGOLD. Mr. President, I will ited. Premiums cannot increase due to care patients receive, as opposed to the vote for the comprehensive health re- medical needs or illness. Insurers can- volume of care. form bill being considered in the U.S. not charge women more than men for In addition to these positive changes Senate, but I will also work to improve the same insurance policy. Restricting to the way Medicare pays for health its flaws. There is much that is good or denying coverage based on pre- care, there is language to finally ad- about this legislation. It will, over the existing conditions is prohibited for all dress the historic inequity in Medicare course of 10 years, help ensure that Americans, beginning with children ef- reimbursement that Wisconsin and nearly every American has access to fective 6 months after final passage of other rural States have faced. Thanks good and affordable health insurance. this bill. A recent study found that 36 to the leadership of Senator CHUCK It will put Medicaid and Medicare percent of currently uninsured adults GRASSLEY in the Senate Finance Com- spending on a more sustainable and were unable to get health insurance be- mittee, this bill includes language that stable path. It will increase access to cause of a preexisting condition. Pre- will increase Medicare reimbursement home and community-based long term existing conditions can be anything for Wisconsin physicians and directs care services, increase our medical from serious, chronic diseases like dia- the Secretary of Health and Human workforce, and end some of the worst betes or cancer to medical episodes Services to analyze and adjust the cur- abuses by the private insurance. But like acne or even pregnancy. In nine rent formula to ensure more accurate there are serious deficiencies—like the States, being a victim of domestic vio- payments for rural providers in the fu- failure to establish a public health in- lence can be a preexisting condition. ture. Fixing the flawed Medicare for- surance option—that we know of, and This bill will end these consumer mula so that Wisconsin receives its fair there will be undoubtedly be some gaps abuses. share of Medicare reimbursements has in the bill that we will discover during People will be guaranteed the ability long been a priority of mine. implementation. The commitment that to renew their health insurance year I am pleased that this bill more fair- is made with this legislation is ongo- after year. If a claim is denied, policy ly reimburses Wisconsin for the leader- ing, and will require diligent oversight holders have a guaranteed right to ap- ship my state has demonstrated in ex- and improvements in the years to peal. And group insurers are required tending coverage to low-income resi- come. to spend at least 85 percent of every dents through BadgerCare, our State I am pleased that many of the prior- premium dollar on actual health care; Medicaid program. I was concerned ities I laid out at the start of this proc- if they are found to be spending less, that the Senate Finance Committee ess have been addressed in this bill. they are required to refund the dif- bill would have denied Wisconsin much-deserved Medicaid dollars, and I The bill includes provisions I fought for ference to the customer. This policy, worked hard to try to ensure the bill that help make sure Wisconsin is treat- along with others, will require an un- before the Senate fixed this problem. ed fairly. Those provisions include precedented level of transparency in As a result, relative to the bill that the fixes to a flawed Medicare formula that the sale of health insurance policies. denies our state fair reimbursement, fi- One of the strongest points of this Senate Finance Committee reported, nancial incentives for the kind of low- bill for me, and perhaps one of the this bill will bring hundreds of millions cost, high-value care practiced in Wis- most underappreciated, is the commit- more in Medicaid assistance back to consin, and hundreds of millions of dol- ment made to realign Medicare spend- Wisconsin. I appreciate the willingness of my fellow Wisconsin Senator, HERB lars in additional Medicaid assistance ing to reward our doctors and hospitals KOHL, the Chairman of the Finance for Wisconsin to account for the for the quality of care they provide to Committee, Senator MAX BAUCUS, and State’s leadership in expanding cov- their patients, rather than the quan- Senator REID in working with me to erage to its citizens. But I also recog- tity of care. Moving to a value-based ensure that Wisconsin’s investment is nize that this bill does not do as much system is one of the single most effec- acknowledged in this legislation. as I would like to reform our current tive ways to reduce health care spend- I am also pleased by the attention to health care system, and I will work to ing and improve the quality of care. long-term care reform in this bill. Mod- try to make sure the final version fixes Wisconsin is a national leader in value- ern medicine has turned fatal diseases these flaws. based delivery of health care. If every into chronic diseases, and enabled indi- I receive countless letters and emails health care provider operated like viduals to live much longer. These are and phone calls from my constituents those in Wisconsin, over $100 billion a tremendous accomplishments. But the on health care reform. Some of the year in taxpayer dollars could be saved. reality is that these individuals need most heartbreaking letters I receive Just last year, the Congressional Budg- even more assistance because of med- are from people who are sick or caring et Office estimated that nearly 30 per- ical advancements—from their fami- for a sick loved one and do not have cent of Medicare spending could be lies, communities, and government. health insurance. Some of these people avoided by integrating and coordi- Long-term care reform is inex- are recently laid off due to the reces- nating care, in the manner of high- tricably linked to overall health re- sion, and have lost their health insur- value providers. form, and one cannot truly succeed ance. Some people had health insur- As a result of this bill, Medicare re- without the other. While this bill does ance, but were dropped from their cov- imbursement for certain health care not include a comprehensive strategy erage because they became sick and ac- providers will be based, in part, on the to reform our long-term care system as tually needed health care. And some quality of care they deliver to their pa- I had hoped, it does include a number people were denied health insurance al- tients. Health providers will now have of critical building blocks to assist re- together, either because it was priced the opportunity to voluntarily join to- form efforts in the future. One of these out of their reach, or because they had gether as Accountable Care Organiza- critical pieces is the Community Liv- a preexisting condition. In far too tions to coordinate the care they de- ing Assistance Services and Supports many cases, these people have been liver to their patients, and to share in Act, or CLASS Act. The CLASS Act forced to declare bankruptcy because the savings they generate for Medicare. would create an optional insurance of their medical bills. Two thirds of all They will be given numerous opportu- program to help pay for home care and personal bankruptcy cases in the nities and incentives to change the way other assistance for adults who become United States are due to medical debt, they deliver health care, and will, for disabled. Those choosing to participate and over 80 percent of those individuals the first time, be penalized for deliv- would pay monthly premiums into an had health insurance. And in the most ering low-quality care. For example, if insurance trust, and after 5 years, egregious cases, sick children in Wis- a hospital demonstrates high rates of could access a cash benefit if they be- consin and around the country have readmissions or hospital acquired income disabled and need assistance. reached lifetime limits on care that are fections, they will receive less reim- Another critical component of this set by an insurance bureaucrat, and are bursement from Medicare. Not only bill is the attention paid to expanding

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00057 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13852 CONGRESSIONAL RECORD — SENATE December 23, 2009 home and community-based care op- bring down the deficit, the Control individual and $23,000 for a family. Im- tions. Again, Wisconsin has been a na- Spending Now Act. These policies, provements have been made to this pol- tional leader in increasing access to which make prescription drugs more icy during Senate consideration, and home and community-based care, be- affordable and require wealthy individ- the thresholds for the tax, along with ginning with the Community Options uals to pay their fair share of Medicare exemptions for high-risk professions, Program almost 30 years ago. As a premiums, generate $24.6 billion in sav- have been expanded. But I have heard State Senator, I worked to help expand ings. from so many in my State who have Wisconsin’s Community Options Pro- For all the positive aspects of this traded wage increases for solid health gram, known as COP, which provided bill, I am deeply disappointed by the insurance benefits in the past years. I flexible, consumer-oriented and con- lack of a public option. I have been have heard from teachers and laborers sumer-directed long-term care services fighting all year for a strong public op- and union members who are worried in community-based settings, enabling tion to compete with the insurance in- they may lose the health benefits they thousands of people needing long-term dustry and bring health care costs have fought for, and can’t reclaim the care to remain in their own homes down. I continued that fight during re- wages they have already lost. While rather than going to a nursing home. cent negotiations, and I refused to sign this policy is often referred to as the Over time, the COP program turned onto a deal to drop the public option ‘‘Cadillac’’ health care tax, they will be into Wisconsin’s FamilyCare program, from the Senate bill. the first to tell you that they hardly which is our newest State entitlement Removing the public option from the live the Cadillac lifestyle. I urge my program for low-income and disabled Senate bill is the wrong move. I am colleagues in the Senate and the House adults to receive necessary care, sup- concerned that without a public op- to consider the real-life impact that ports, and services in their homes and tion, there will be no true competition this policy could have on working communities. for the insurance industry. We have in- Americans and their families. The progressive vision that is the cluded mechanisms to protect against I am concerned about the cuts to driving force behind Family Care is egregious year-to-year increases in pri- home health and hospice providers also the driving force behind the long- vate insurance premiums from this under this bill. Home health and hos- term care provisions in this bill. This point on, but we have no mechanism to pice providers offer a truly valuable bill will establish the Community First force insurance companies to decrease service to our communities. But under Choice Option, which gives States the premiums as they are set today. A this bill, their reimbursements will be option to create a new Medicaid benefit strong public health insurance option drastically cut and I am concerned through which States could offer com- would provide a powerful incentive for that access will decrease as a result. munity-based attendant services and less responsible insurers to re-evaluate Improvements have been made under supports to Medicaid beneficiaries with their own cost-sharing and benefit Senator REID’s amendment, but we disabilities who would otherwise re- plans to ensure they are an attractive must do better for home health and quire the level of care offered in a hos- option for consumers. hospice providers. pital, nursing facility, or intermediate The public option would give con- I am disappointed that the bill does care facility. sumers a strong voice in the market- not permit the safe importation of pre- This bill also removes barriers to ex- place. If the private market was not scription drugs, which would reduce panding home and community-based meeting their needs, they would have health care spending for consumers and services; protects recipients of home an alternative. Competition is how we the Federal Government. I will keep and community-based services from can reduce our health care costs, but fighting to enact this common-sense spousal impoverishment; and increases there is no real competition in the pri- reform. appropriations by $40 million to help vate market. Private insurers compete Lastly, I oppose the sweetheart deals fund Aging and Disability Resource to generate the most profit, and the that some Senators and interest groups Centers. best return on investment for their apparently cut. These deals weaken the And finally, as a result of Senator shareholders. There is at most a sec- bill by subsidizing States or interest REID’s amendment, the bill provides ondary motivation to compete to give groups at taxpayer expense. They are new financial incentives for States to the best value to consumers. A public unjustified, and they should be elimi- shift Medicaid beneficiaries out of option serves as an outside factor to nated. nursing homes and into home and com- force private insurers to consider more Mr. WYDEN. Mr. President, the Pa- munity-based services. than just shareholder interests. tient Protection and Affordable Care Over 10 million Americans are cur- The Congressional Budget Office esti- Act is a fundamental first step toward rently in need of long-term care, and mated that the public option in the bill providing all Americans with afford- that number is expected to rise to 15 that was brought to the floor could able, quality health care. The health million in the next 10 years. These in- save up to $25 billion. The CBO’s anal- care system is complex, and that is dividuals struggle to remain inde- ysis of Senator REID’s amendment, why this Senate and two of its commit- pendent with limited assistance. Poli- which strikes the public option and re- tees, including the Senate Finance cies like those included in this bill, places it with multi-state plans, says Committee of which I am a member, which increase options for home and the following about the new policy: have taken the better part of this past community-based care so that nursing Whether insurers would be interested in of- year crafting this legislation. I believe homes are not the only choice, are fering such plans is unclear, and establishing several provisions of this bill are trans- smart changes that will benefit con- a nationwide plan comprising only of non- formational for American health care sumers of long-term care and save tax- profit insurers might be particularly dif- and will begin to move America toward ficult. Even if such plans were arranged, the more competition, choice, and quality. payers money. insurers offering them would probably have One of my most important priorities participated in the insurance exchanges any- The first provision is in the man- for the bill was that it be fiscally re- way, so the inclusion of this provision did agers’ amendment, and it is called free sponsible. Based on the most current not have a significant effect on the estimates choice vouchers. This section creates projections, the Congressional Budget of federal costs or enrollment in the ex- something that has never existed be- Office expects this legislation to reduce changes. fore in the American health care sys- the deficit by $132 billion by 2019 and Removing the public option gives up tem: a concrete way for middle-income roughly $1 trillion by 2029. While the a huge opportunity to reduce costs for Americans who cannot afford their bill does not go as far as I would like to American families and the govern- health care to actually push back rein in health care spending, the $871 ment, and I will work to try to ensure against the insurance lobby and force billion price tag on the bill is fully off- the final bill fixes this serious mistake. insurance companies to compete for set and will not add a penny to the def- I also am concerned about the excise their business in the insurance ex- icit. tax on high cost health plans. Under changes. Unlike today, where if a hard- Deficit reduction is achieved through this bill, health insurers will be taxed working, middle-class American can’t a number of policies, three of which are on the value of any health care plan afford just the one health insurance included in legislation I introduced to sold that is valued above $8,500 for an policy available to him at his job, with

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00058 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13853 this new provision, there will be a dif- stems from legislation that I intro- ical professionals, maintains its high ferent health care marketplace, with duced with 11 other Members on both level of health care while expanding free enterprise choices that can actu- sides of the aisle. As the name indi- the reach of existing Federal programs. ally drive down costs for the middle cates, the Independence at Home pro- The State Prepaid Health Care Act of class while ensuring those choices are gram will provide a way for seniors 1975 ensures that every employee in of good quality. And in that new mar- with chronic medical conditions to get Hawaii working at least 20 hours a ketplace, a worker who cannot afford medical treatment at home. The IAH week receive health insurance from his employer’s health plan can get a program is based on a house call team their employer. Hawaii received an ex- tax-free voucher for the same amount approach that has proven successful in emption to ensure Hawaii’s employer the employer contributes under the reducing costs and improving the qual- mandated health care law would not be health plan and use that voucher to ity of care for high cost patients with rolled back. The health care reform bill buy a more affordable plan in the in- multiple chronic illnesses, patients also includes tremendous cost savings surance exchange. who account for 66 percent—85 percent and subsidy incentives for the State. I have been an advocate for consumer of Medicare spending. The Independ- Hawaii is one of two States in the empowerment and choice my entire ca- ence at Home program requires pro- country who are not permanently en- reer in public service. Exchanges are a viders to achieve minimum savings on rolled in the Federal disproportionate new pathway to creating a competitive health care provided to the highest share hospital, DSH, program which re- marketplace for the first time for cost Medicare beneficiaries as a condi- imburses hospitals that care for the health care in this country. Massachu- tion of participating in the program. uninsured. Currently Hawaii’s tem- setts led the way, opening the door to Providing care at home makes sense, porary enrollment expires in 2012 but showing Federal legislators the poten- and is the right direction for the future the new bill will make DSH permanent tial for insurance exchanges when Mas- of health care delivery. But there is an- resulting in more than $100 million for sachusetts enacted its own health re- other aspect of the future of health Hawaii’s health care industry over the form law. Many other States lead the care that I think holds much promise: next 10 years. I am also pleased that we way with innovation in health care, in- personalized medicine. I won approval were able to include the reauthoriza- cluding States like Oregon and in the Finance Committee, along with tion of the Wakefield Pediatric-Emer- Vermont. That is why I have authored Senator CARPER, for including section gency Medical Services for Children and championed in the Senate Finance 3113 in the bill. This provision will in- program, at the suggestion of my two Committee section 1332, the waiver for crease access to innovative molecular colleagues from North Dakota, Senator State innovation. If States think they diagnostic tests that provide the foun- KENT CONRAD and Senator BYRON DOR- can do health reform better than under dation for the application of personal- GAN. This program works to ensure this bill, and they cover the same num- ized medicine for individuals suffering that emergency rooms across the coun- ber of people with the same com- from life threatening diseases such as try are equipped with the resources prehensive coverage, they can get a cancer and heart disease. These tests necessary to treat young children. A waiver exempting them from the legis- hold the promise of getting patients civilized, democratic society like ours lation and still get the Federal money the right type of chemotherapy for should help maintain the health and that would have been provided under their specific case of cancer. Personal- welfare of all our citizens. No one the bill. To me, this provision is a safe- ized medicine is the future, and I am should be denied medical care or lose ty valve, if certain provisions in this thrilled that the Patient Protection coverage because they can’t afford to bill will not work as intended in a and Affordable Care Act takes steps to pay to see a medical professional. Like given State. This provision will give move toward 21st century medicine. that July afternoon in 1965 when Presi- States a way to tailor health reform to I have spent the better part of my ca- dent Lyndon Johnson signed Medicare best meet the needs of their citizens. I reer trying to make the health care into law I am especially pleased to see intend to work with Senator SANDERS marketplace more competitive and try- that our great Nation once again has and other colleagues to make sure that ing to improve the quality of care for recognized and worked to meet the State waivers will be available even all Americans. I take many lessons basic needs of our citizens. sooner than they are under the current from my home State of Oregon, and Mr. LEVIN. Mr. President, at a hand- bill. have tried to apply the innovation that ful of moments, Members of the U.S. The waiver for State innovation and Oregon is known for as an example for Senate have faced choices that could free choice vouchers will improve the how other States can provide higher fairly be described as historic. Each of number of choices in the bill, for quality care at a lower cost. Through these choices was between progress— states, for employers and for employ- free choice vouchers, State waivers, sometimes incomplete progress—and ees. The Patient Protection and Afford- Medicare Advantage bonus payments, an intolerable status quo. In our finest able Care Act will also increase quality Independence at Home, and personal- hours, we have overcome fear and of care, particularly in the Medicare ized medicine, I believe this bill im- doubt and stood for the principle that Program. I worked in the Finance proves competition, choice and quality our Nation, though great, could aspire Committee to increase bonus payments across the entire country. to do better. When our ambition has to high quality plans in the Medicare Mr. INOUYE. Mr. President, I am weakened, we have taken the timid Advantage Program. In Oregon, Medi- pleased that this bill will extend basic path. That is an easier journey and less care Advantage is a lifeline given the health care to more than 30 million laden with fear or political peril, but it low traditional Medicare reimburse- Americans who were previously unable has not served our own time well or ment rates in the State. This amend- to afford the costs associated with see- passed the test of history. ment will reward the high quality ing a medical professional. Not since We have come to another of those plans that exist in Oregon, but will former President Harry S. Truman en- times. We can vote, now, to address also encourage other plans across the rolled as Medicare’s first participant in decades of frustration and anguish over country to increase the quality of the July of 1965 has our health care system a health care system most Americans care they provide. By boosting pay- undergone such a complete overhaul. know is broken. Or we can destroy the ments to the highest quality plans— The reform brought about by this bill hopes of millions of Americans whose the four and five star plans—the Fed- is needed and long overdue. For too modest ambition is not a perfect sys- eral Government will be incentivizing long millions of Americans have strug- tem, but an improved one. We cannot plans that provide preventive care, gled to see health professionals while vote to end every problem in health manage chronic diseases well, and have health insurance providers have raised care; this bill will not do that. But we high levels of consumer satisfaction. premiums and executives have reaped can make life safer, more secure, less Another provision that will add qual- multimillion-dollar bonuses. That is no costly, for most Americans, because we ity to the Medicare Program is Inde- longer the case. This bill also ensures can give them a better health care sys- pendence at Home, IAH, section 3024 of that Hawaii, a State long ahead of the tem. the bill, that I won approval for in the curve in terms of providing health in- Briefly, here is some of what this leg- Finance Committee. This provision surance and affordable access to med- islation will accomplish:

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00059 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13854 CONGRESSIONAL RECORD — SENATE December 23, 2009 People with preexisting conditions and bureaucracy. Hospitals will become hand, from the American Medical Asso- who are currently left out of the sys- more transparent as well—every hos- ciation to the American Heart Associa- tem will be able to get access to health pital in the Nation will publish a list of tion to the American Cancer Society, care in the future. Within 6 months of standard charges for the items and and dozens of others support passage of enactment, this legislation will allow services it provides. this bill? If this bill will explode the those not covered at work and who are The bill includes incentives to boost deficit, why does the nonpartisan Con- unable to find insurance in the indi- the availability of primary care, in- gressional Budget Office tell us it will vidual market because of preexisting cluding financial incentives under reduce the deficit by $132 billion over conditions to buy a plan that will re- Medicare to increase the number of pri- the first decade after enactment, and main in place if they get sick. And it mary care physicians. And it also pro- up to $1.3 trillion in the second? will offer free preventive services and motes standardizing health informa- Are all these organizations, the non- immunizations. tion technology in an effort to reduce partisan CBO, independent fact-check- This bill has provisions to help costly administrative overhead. ers, scores of economists and health strengthen Medicare by giving seniors This is not everything I hoped for. care experts—are they all engaged in a access to important preventive services But it is what we can get done. It is conspiracy to engineer a socialist gov- that they may otherwise not be able to what we should do. ernment takeover of medicine? I am afford. And also for seniors, this bill re- The minority has offered no alter- afraid that some of our Republican col- duces the Medicare doughnut hole, a natives, just apocalyptic rhetoric. leagues have latched onto any argu- gap in prescription drug coverage that Some of them stood before rallies, ment at hand to justify their opposi- I hope we are able to eventually close leading chants about socialism. They tion to health care reform. Let me ask one final question: What altogether. claimed it is a big government take- After 2014, new plans will be barred over. ‘‘Kill the bill’’ was their slogan. do opponents say to our constituents from imposing annual limits on cov- Before television cameras our efforts who speak to us every day of their be- erage, and sliding tax credits will be to produce reform were compared to lief that the time for health reform has available to make insurance more af- the activities of financial fraudsters come? That today is not the time? The man from Kalamazoo, MI, who went fordable for those earning below $88,000 like Bernie Madoff. bankrupt because his health insurance for a family of four, or earning below For those familiar with the facts, would not cover $40,000 in costs for a $43,000 for an individual. The credits these notions are rightly seen as false- life-saving heart operation—will they that will be offered to make coverage hoods. One of these falsehoods—the no- tell him this is not the time? The more affordable will bring millions of tion that health care reform would woman from Jackson, Michigan, who Americans under the umbrella of mean ‘‘death panels’’ voting to end the spent months fighting to get coverage health insurance, an important im- lives of senior citizens—has just been because insurance companies consid- provement for those families now with- named by an independent fact-check- ered her pregnancy a preexisting condi- out insurance and a step toward reducing organization its ‘‘Lie of the Year.’’ tion—will they tell her this is not the That’s quite a distinction. When dis- ing burdens and inefficiencies that time? The worried mother who wrote cussing the scare tactics being used by make health care more expensive for my office to say, ‘‘We will lose too opponents of health reform, the policy all of us. State-based exchanges will many bright young people—if some- director of AARP said, ‘‘The opponents offer those seeking individual coverage thing is not done’’—will they tell her of health reform have targeted (sen- both the purchasing power of belonging this is not the time? to a larger group, and a transparent iors) and have . . . misrepresented the No, this is the time. Now is the time marketplace in which benefits are facts, and have consciously tried to to embrace the same call of history standardized and costs are clear. scare seniors who depend on health that led our predecessors to ignore the The bill also helps small businesses care. So no surprise that they feel anx- apocalyptic rhetoric and establish So- that are struggling to get a handle on ious, because they’re hearing messages cial Security and Medicare. We must ever-increasing health care insurance every day designed to scare the bejesus pass this bill, so that generations after costs. Beginning in 2010, small busi- out of them.’’ us do not look back on a broken health nesses will receive a tax credit of up to The extreme rhetoric of the minority care system and say, ‘‘Here was an- 35 percent of their costs for insuring is a repeat of similar rhetoric which other lost moment when it could all their employees and their employees’ was used when Social Security and have changed.’’ We must pass this bill. families. In 2014 and beyond, the tax Medicare were being considered by the Now is the time. Just as we are plough- credit can be as much as 50 percent of Congress. ing the roads of record snow to get to an employer’s costs for covering em- In 1935, as Social Security was being work, our work now is to plough ployees. These credits will encourage debated, one Republican warned the through the endless filibusters to get these employers, which are the back- program would ‘‘enslave workers,’’ and our job done. bone of our economy, to provide health another declared ‘‘the lash of the dic- Mr. REID. On behalf of Senator BAU- care insurance coverage. tator will be felt’’ if it passed. Three CUS, Senator DODD, and myself, I sub- The bill also includes some major in- decades later, as the Congress debated mit this statement under the spirit of surance company reforms. Beginning in the Medicare Program, one Republican rule XLIV of the Standing Rules of the 2011, plans that do not spend a high Member of Congress said, ‘‘Let me tell Senate. We hereby certify that, to the percentage of their revenue for patient you here and now, it is socialized medi- best of our knowledge and belief, the care—85 percent of revenue for large- cine.’’ A future Republican President of managers’ amendment to the sub- group programs, and 80 percent in the the United States warned that if Medi- stitute amendment to H.R. 3590 does individual and small-group market— care passed, ‘‘you and I are going to not contain any congressionally di- will have to provide rebates to their spend our sunset years telling our chil- rected spending item as defined in rule enrollees. dren and our children’s children what XLIV. One of the benefits of this new re- it was like in America when men were Rule XLIV defines a congressionally quirement on insurance companies is free.’’ directed spending item as ‘‘a provision reversing the troublesome trend that Incredibly, the same Republican or report language included primarily has seen more and more of our health Party that once equated Medicare with at the request of a Senator providing, care dollars spent on administration. socialism would now have the public authorizing, or recommending a spe- Since 1970, the number of administra- believe they are defending Medicare cific amount of discretionary budget tive positions in our health care sys- from the threat of socialism. The men- authority, credit authority, or other tem has increased by nearly 3,000 per- tal gymnastics this requires is breath- spending authority for a contract, cent, far outstripping the growth in the taking. If this bill is such a threat to loan, loan guarantee, grant, loan au- number of physicians over the same pe- seniors, why does AARP support its thority, or other expenditure with or riod. It is long past time to ensure that passage? If it will destroy our health to an entity, or targeted to a specific we are spending precious health care care system, why do so many of the State, locality or Congressional dis- dollars on care and not on paperwork groups that know health care first- trict, other than through a statutory

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00060 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13855 or administrative formula-driven or the Senate, I am submitting this letter with hours, in fact, days and weeks of com- competitive award process.’’ To the regard to Section 10905 of Senate Amend- mittee hearings and meetings with ment 3276. best of our belief, no item meets this Section 10905 of the amendment creates a good bipartisan discussion on options definition. There are numerous items limited exemption from the annual fee on and ways to accomplish this. But now, that affect one or more States or local- health insurance providers established by apparently, we have a mandate by the ities differently than others, but none Section 9010 of Amendment No. 2786 to H.R. majority demanding we have a final of these meet the definition because of 3590, the Patient Protection and Affordable vote in the Senate before Christmas. one or more of the following reasons— Care Act of 2009. The exemption from the fee While we debate this, let me say I be- (A) no specific amount is associated is created for certain non-profit insurers with the provision, (B) the provision with a high medical loss ratio. Among other lieve we need to hear more from the involves distribution through ‘‘a statu- exemptions provided for under this section, people who are going to be most af- an exemption from the fee is available to fected, the American people, because tory . . . formula-driven . . . or competi- any entity which is a non-profit mutual in- tive award process’’ or (C) the criteria the final details of this bill were not surance company with market share in a crafted in front of the American public. are such that more than one State or State for 2008 between 40% and 60% and locality will or may benefit. It is quite whose medical loss ratio for all markets (in- I think most people in America know common in legislation for formulas and dividual, small group, and large group) in the President pledged that this legisla- programs to make adjustments to af- 2008 was 90% or higher. The exception is tion would be crafted around a table fect State- or locality-specific needs. available only if the entity has an average that is public, where, in fact, he said C– The rule defines a ‘‘limited tax ben- medical loss ratio for years after 2011 for the SPAN cameras could be present—in his efit’’ as ‘‘any revenue provision that previous three years for all markets of 89% words: So people could see the deals (A) provides a Federal tax deduction, or higher (prior year for 2012 fee and prior people were making and who was work- two years for 2013 fee). credit, exclusion, or preference to a This provision could be considered a ‘‘lim- ing for the American people and who particular beneficiary or limited group ited tax benefit’’ as defined in Rule XLIV, was cutting deals. of beneficiaries under the Internal Rev- and I anticipate that Blue Cross Blue Shield The C–SPAN camera was not present, enue Code of 1986; and (B) contains eli- of Nebraska may benefit from this provision, provided that that they maintain the high the table was not open, the room was gibility criteria that are not uniform closed, and the bill was negotiated in in application with respect to potential medical loss ratio called for under the provi- secret. But we are starting to find out beneficiaries of such provision.’’ sion. My purpose for requesting this provi- Section 10905 provides exceptions to sion was so that Nebraska’s sole non-profit what the deals were, and the deals are the annual fee on health insurance pro- insurer would not be excluded from the ex- outraging the American people as they ceptions to the insurance fee as set forth in see specific exemptions from certain viders for certain insurers. One of these Section 10905. exceptions is provided to any entity Consistent with the requirements of para- burdens in the bill being given to cer- that meets the following criteria—a graph 9 of Rule XLIV, neither I nor my im- tain States in order to get the votes mutual insurance company with mar- mediate family have any pecuniary interest from the Senators for those States. ket share in a State for 2008 between 40 in this item. We heard about different proposals percent and 60 percent and whose med- Sincerely, dealing with the State of Louisiana, ical loss ratio for all markets—indi- E. BENJAMIN NELSON. the State of Florida, the State of Con- vidual, small group and large group—in Mr. REID. Mr. President, as we finish necticut, the State of Nebraska, and 2008 was 90 percent or higher. The per- this session, there are many people the list is growing as we have an oppor- formance-based exception is available who have worked to get us to this tunity to deeply delve into the bill and if the entity has an average medical point. From the staff in the Senate to determine exactly what is in it. the Capitol Police, many employees loss ratio for years after 2011 for the But we will not have time to know previous 3 years for all markets of 89 have given their time to make sure that the Senate could complete its all the details of these deals. We will percent or higher—prior year for 2012 not have time to even know all the de- fee and prior two years for 2013 fee. It work on health care. In particular, I would like to recog- tails of how the bill works because this may be argued that this provision nize the work of the employees of the 2,700-page bill, 400 pages of which were could be considered a ‘‘limited tax ben- Government Printing Office, GPO. only disclosed last Saturday, will be efit’’ as defined in rule XLIV; at the Each day, the GPO works with the Sec- voted on at 7 o’clock in the morning. same time, the Joint Committee of retary of the Senate to meet the needs Taxation has indicated that the uni- Three days ago, I asked Idahoans of the Senate and we appreciate their verse of potential beneficiaries depends who, similar to most Americans—in efforts. Nearly all of the documents we in part on how ‘‘medical loss ratio’’ is fact, all Americans—want health care have used for the health care debate ultimately determined under the stat- reform, to sign a petition on the Inter- have been printed and delivered by the ute. In the interest of transparency, net asking the Senate to: employees of the GPO. the provision was included at the re- This past weekend, when the heavy . . . defeat H.R. 3590 . . . because we need quest of Senator BEN NELSON so that snow blanketed the city and shut down reform that will lower costs while increasing nonprofit Blue Cross Blue Shield of Ne- most government agencies and oper- quality . . . and keeping health care deci- braska would not be excluded from the ations, the men and women of the GPO sions between a patient and their doctor. exemption of nonprofit insurers from came to work and remained at their The response to this request has been the fee. In keeping with the spirit of posts. Some GPO employees spent the remarkable. In fact, I suspect that, as rule XLIV, Senator NELSON has pro- night to ensure that the Senate was I am speaking, we have already gotten vided Senator BAUCUS with a certifi- able to get the documents we needed. over 20,000 signatures on the petition cation that neither he nor his family Their performance throughout the on the Internet. I asked people to go to has a financial interest in the provi- health care debate was commendable my Internet site, mikecrapo.com, and sion. and I would like to ask my colleagues Mr. President, I ask unanimous con- simply sign the petition. Here is a par- to join me in thanking the GPO for a sent to have printed in the RECORD the tial stack. We are still printing out the job well done. rest of the names of the people who letter from Senator NELSON of Ne- The PRESIDING OFFICER. The Sen- braska dated December 21, 2009. signed the petition, but somewhere be- ator from Idaho is recognized. tween 19,000 and 20,000—and growing— There being no objection, the mate- Mr. CRAPO. Mr. President, as we ap- people signed the petition. rial was ordered to be printed in the proach the vote tomorrow morning, I RECORD, as follows: know a lot of people are calling it a Here is the remarkable thing about U.S. SENATE, historic vote. In some contexts, I guess it. When I asked the people of Idaho to Washington, DC, December 21, 2009. it is. However, many of us are con- sign this petition, I asked them to do Chairman MAX BAUCUS, cerned it is a historic mistake rather two things. I asked them, first, to go to Ranking Member CHARLES GRASSLEY, than a history-making opportunity. the Web site and sign the petition. U.S. Senate Committee on Finance, Dirksen We have had a lot of debate about Then, second, I asked them to contact Senate Office Building, Washington, DC. DEAR CHAIRMAN BAUCUS AND RANKING MEM- whether this legislation is the right or everyone within their circle of influ- BER GRASSLEY: Consistent with the provi- wrong way to improve health care for ence—people on their Christmas card sions of Rule XLIV of the Standing Rules of all Americans. We have had hours and list, people on their e-mail contacts

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00061 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13856 CONGRESSIONAL RECORD — SENATE December 23, 2009 list, people on their Facebook, their sensitive matter, and this bill goes the Yet what are we achieving? In an ear- Facebook friends, everyone who is opposite direction. But the majority is lier discussion of the House bill, I be- within their circle of influence—and moving full steam ahead in hope that lieve the Wall Street Journal said it ask them to also sign the petition and, they can pass it before the public can was the worst bill ever. We now have a if they didn’t live in Idaho, to contact understand what it is and register their different bill in the Senate, but it is their Senator and encourage their Sen- opposition. If we will take the time, we still falls into the same category. Why? ator to oppose this legislation, if they can improve the health care system— Because it drives up the cost of health agreed with me that it is not the path without the tax increases, without the care. It raises taxes by hundreds of bil- our Nation should follow. massive increase in the growth of gov- lions of dollars. It cuts Medicare by Remarkably, more than half the peo- ernment, without the porkbarrel hundreds of billions of dollars. It grows ple who have so far signed the petition spending and the sweetheart deals, the government by $2.5 trillion. It did not get that information from me. without the Medicare cuts and the un- forces the needy uninsured not into a They got the request or encouragement constitutional burdens on State gov- program where most of them can get to sign the petition from the friend or ernments this bill presents. insurance but into a failing and less ro- relative. A huge proportion of them do Among the steps many of us are try- bust medical system, Medicaid. It im- not live in Idaho. In fact, we have had ing to see enacted are things such as poses damaging unfunded mandates on people from all over America, in every allowing insurance companies to com- our State governments that are alone of the 50 States, sign this petition. pete across State lines, allowing small ready sharing the burden of Medicaid Why is this happening? By the way, businesses to band together to nego- and facing difficult troubled economic the number is growing. It is happening tiate group rates for insurance, requir- times. It means increased taxes not because the more Americans know ing pricing disclosures from health just at the Federal level but at the about this bill, the more they know it care providers to promote a competi- State level with unfunded mandates. It is not the path they want us to take for tive, consumer-driven health care mar- leaves millions of Americans unin- health care reform. Health care is per- ket, and offering incentives for pa- sured, and it establishes massive gov- sonal, private, and a sensitive matter tients and the private sector to create ernment controls over our health care wellness programs and other effi- among individuals and their doctors economy. and their family. This bill makes ciencies in health care delivery. In Let me go through a few of those to health care a public policy decision fact, when a bill similar to this was give more specifics. First, I don’t think controlled by a government bureauc- presented as the Republican alter- most Americans, when they talk about native in the House, with the provi- racy. Americans don’t want that kind health care reform, think that means sions the House Republicans proposed, of government control over our health we need to grow the size of our govern- it was scored, contrary to the bill we care economy. Yet instead Americans ment by $2.5 trillion. Although there is will be voting on, by CBO that it would see an administration and a congres- some smoke and mirrors in the way actually reduce the cost of health care sional majority forcing this bill down this bill is put together, because the in America by significant percentages. their throats in a rush to pass it before first 4 years of its costs are not started Yet we are now continuing to plow full public opposition legitimately over- steam ahead with a vote at 7 o’clock in until 4 years into the bill, so when you whelms this wrongheaded monstrosity. the morning on a bill that will increase try to count the first 10 years, you only Thousands are signing this petition be- the cost of health care. see a smaller number, when you take cause they desperately want Congress The petition I brought forward asks the first true 10 years of spending in to listen, but they know that their col- Congress to listen. It registers the this bill, it increases the cost of this lective voice has been ignored. The pe- fears of many Americans that they are government’s health care expenditures tition is one way they can make them- being ignored by the administration by $2.5 trillion. As we can see on this selves heard in hopes that this Con- and by the majority in Congress. I am chart, look at the first 4 years. The gress will pass needed and sensible re- going to continue to aggressively push spending is basically deferred. Why form but not this bill. for their wishes on the floor of the Sen- would that happen? I will explain that In fact, another point about this peti- ate. when I talk about deficit issues. But tion is in addition to getting on the I wish to take an opportunity now to what it does is hide the true cost of the Web site and signing the petition, I go ahead and get into a little bit more bill. If you measure the true cost of the have individuals calling my offices and of the detail we do know about this bill in the first full 10 years of spend- saying: Thank you for giving us an ave- bill. Why do I say it is the wrong direc- ing, it is $2.5 trillion rather than the nue to try to reach out to the Senate tion for America? To start, let’s ask $1.2 trillion it would be if you counted and tell the Senate to stop. I think what Americans want in health care it otherwise. thousands of Idahoans and people from reform. If you asked most Americans— What we see is a massive growth of all over America are eager to have an and there have actually been a number the Federal Government. That is not avenue to speak out, and we need to of polls that have shown this—do they what people were asking for and, frank- stop and listen. I thank the thousands want health care reform, they say yes. ly, it makes them kind of do a of Idahoans and Americans across the When they are asked what they mean doubletake when you explain to them country for being willing to get in- by that and what they want, the over- that we are increasing the size of our volved as citizens and petition their whelming answer is that they want to government by such massive amounts government to respect our rights and stop the skyrocketing increases in the with health care reform. Those pro- to honor our values and to reform cost of their health care insurance, posing that we adopt this bill often health care sensibly. The national polls they want to control the skyrocketing say: Our objective and what the Amer- indicate people oppose this bill. They increases in the cost of medical care. ican people want is to drive the cost want commonsense, lower cost action They also say they want to see in- curve down. I often ask, what cost that will reduce the cost of premiums creased access for those who don’t now curve are they talking about? If they and doctor visits. have access to quality insurance, both are talking about the cost of health This legislation instead raises taxes because they are compassionate and care or the cost of health care pre- on the middle class, increases premium want to see that kind of health care for miums, they are going up. If they are costs for many people now carrying in- everyone and because they know they talking about the size of the Federal surance, cuts senior programs, and are paying for it in their insurance pre- Government and the level of Federal fails to lower health care costs. Simply miums, for those who have insurance, Government spending, that is going up. put, there has not been a piece of legis- and in their taxes, those who pay taxes. There is one that they talk about. It lation this decade that has come for- They want to assure that we continue is called the deficit. That is whether we ward to meet more opposition than to have the highest quality of health are spending more than we are taxing this health care reform bill. The more care possible. That is what we are sup- and cutting. They argue that the def- Idahoans and Americans know about posed to be doing. That is what this icit is going down. There is only one the bill, the more they dislike it. bill should be working on. That is the way you can argue that this bill does Health care is a personal, private, and objective we should be achieving. not increase the deficit, and that is if

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00062 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13857 you assume that we don’t have nearly by which they will go up is about 10 to it is not $493 billion, or whatever the $1⁄2 trillion of Medicare cuts, that we 13 percent, according to CBO. number was, it is $1.28 trillion in new don’t have $1⁄2 trillion worth of taxes in The next group is the small group taxes. That is not what the American the first year and $1.28 trillion of taxes market. They represent about another people are asking for. in the first full 10 years of implementa- 13 percent. Again, CBO says under this The next question you might ask tion and that we don’t have several bill their rates are going to go up, not yourself is: OK, how much of those budget gimmicks. quite as badly, between 1 and 3 percent, taxes are going to be paid by people What are the gimmicks? The first but up, not down. who the President pledged would not be and biggest is the one I showed on the That brings us to the large group hit? Well, the Joint Tax Committee has previous chart. They don’t count the market. The large group market actu- analyzed the bill, and by 2019—and the first 4 years of spending. They stop the ally fares a little better. This is the re- reason they use the year 2019 is that is spending and don’t let it start hap- maining 70 percent of those insured in the end of the first full 10 years of im- pening for 4 years so that we have 10 the United States. Basically, the CBO plementation—by the year 2019, at years of taxes, 10 years of Medicare report says that for them there is a least 73 million American households cuts, and 6 years of spending. When you chance theirs may go down by a per- earning below $200,000 will face a tax balance that out, you can claim it cent or two, but basically, it could be increase. That is not just people mak- doesn’t increase the deficit because you stable, a zero-percent change as well. ing $200,000, that is everybody who pays don’t have a full 10 years of spending. Because individuals in the large group taxes who makes any kind of income There are other budget gimmicks. We market, those who get their insurance less than $200,000 in America. Seventy- have something called the SGR fix, the from larger employers, have less liabil- three million—not individuals—house- adjustments in compensation rates for ity of a harmful impact because they holds will pay taxes under this bill. physicians that we all know on both have that large group that can con- One of the things that is interesting, sides we must do. We must keep the tinue to negotiate to control their in response to this argument, some of physician compensation comparable health care costs. my colleagues on the other side have and moving up with inflation. That is So what do we see? Even under the said: Wait a minute. That is not true. going to cost $245 billion, approxi- best scenario—and there have been This bill is actually a tax cut. Wait a mately, over the next 10 years. That nine or ten studies of this and the CBO minute, you have me saying this bill $245 billion cost to reform and adjust report is the one that is the most fa- increases taxes and someone on the the Medicare compensation system is vorable toward the bill; most of the other side saying this bill cuts taxes. absent from the bill. Why? Because other reports have said that the rates How could that be? they are going to do it in a separate are going to go up for everybody—but Well, there is a subsidy in this bill bill and probably not pay for it; in even if we take CBO’s numbers, 30 per- for those who are at lower income cat- other words, not have offsets. We will cent of the people will see their insur- egories and are provided government see whether they have offsets, but it is ance rates go up, not down. The other dollars or subsidies in order to pur- not in this bill. If it were, it would 70 percent can expect basically the sta- chase insurance—the ones who are for- drive the deficit numbers by $245 bil- tus quo; in other words, not any change tunate enough not to have been pushed lion in the wrong direction. at all, maybe a slight decrease. into the Medicaid system. That subsidy There are other types of gimmicks. Is that what Americans were asking is about $400 billion or $500 billion in For example, there is double counting for robust health care reform system? the bill, and it is administered by the of the Medicare cuts. The CBO came No. Americans are asking for true, IRS, so it is claimed to be a tax cut. If out with a report today that said that solid, significant control of the cost of you offset that subsidy against tax in- if you cut Medicare by $465 billion, their premiums and their health care creases in other parts of the bill, then claiming that you are going to use that costs. you can say: Well, there is a tax cut in $465 billion to help make the financial I wish to move next to the question this bill. situation for Medicare more stable, you of taxes. This bill increases taxes by First of all, that is not what the can’t then take that same $465 billion about $1⁄2 trillion. The President has President said. The President did not and use it to establish a massive new pledged he wouldn’t sign a bill that in- say: I will not increase your taxes more government program, yet a third major volved tax increases on the middle than I will cut somebody else’s taxes. government health care entitlement class. He defined the middle class to be That is not what he said. What he said system. You can’t spend it on a new people who as individuals make less was: Your taxes will not go up if you one and claim you are saving one that than $200,000 a year or as a family or a are making under $250,000 as a couple is already facing fiscal collapse. It is couple making less than $250,000 a year. or $200,000 as an individual. these kinds of budget gimmicks that Here is the President’s pledge: But even if you accept that argu- make many of us object to the bill. If I can make a firm pledge. No family mak- ment, 73 percent or $288 billion of this you didn’t have those budget gim- ing less than $250,000 will see their taxes in- tax subsidy goes to taxpayers who do micks, if you didn’t have those tax increase. not pay any taxes. Their income levels creases, if you didn’t have those Medi- He was pushed on this pledge and he are so low they do not hit the thresh- care cuts, there is no way you could clarified it. He said not your income olds for incurring a tax liability. They say this bill is deficit neutral. taxes, not your payroll taxes, not your get a pure, straightforward subsidy. One of the things CBO does report—I capital gains taxes, not any of your The Congressional Budget Office ac- want to move to the question of the taxes. You will not see any of your knowledges this and scores it as Fed- cost of insurance—is that the pre- taxes increase one single dime. eral spending, not as tax relief. miums in the individual market will go That is the President’s pledge. But But either way you want to look at up, not down. What does that mean? what do we have? In the first 10 years, it, let’s say you agree it is tax cuts and CBO breaks the insurance market into $493 billion in new taxes. The question agree to offset it—which I think is three categories: the individual maris: Do those taxes all fall on the so- wrong—you still come up with 42 mil- ket, the small group market, and the called wealthy, those making more lion American households earning less large group market. The individual than $250,000? Well, CBO and the Joint than $200,000 a year who will face a net market is the one that is primarily Tax Committee have analyzed it, and tax increase, and the tax increases are there for small businesses that don’t the answer is clearly no. not small for these families. have a large or a small group oppor- But before I get to that, let’s see The bill grows the Federal Govern- tunity or individuals who don’t get what the taxes do in the first full 10 ment. It pushes up every cost curve their insurance through their em- years of implementation. Remember, you could think of. It increases taxes. ployer. It represents about 17 percent the first 4 years are kind of a slow start It increases the cost of health insur- or almost 1 in 5 of all insured people in with the spending, but if you compare ance. It increases the cost of health the country. Their insurance rates the taxes and the spending, count the care. under this bill—17 percent of all Ameri- total amount of taxes starting on the What does it do to Medicare? It cuts cans—are going to go up. The amount day when the spending kicks into gear, Medicare by $465 billion in the first

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Basically, what we have a government takeover of health care, cies—Medicare Advantage plans. here in this part of the bill is an abso- that do not drive up the size and reach These private plans provide com- lute transfer—an absolute transfer— of the Federal Government, that do not prehensive coverage, including vision from America’s senior citizens right drive up taxes but instead provide the and dental care, at lower premiums for over to the new government entitle- right kind of approaches to medical nearly 11 million seniors across the ment program and a redistribution of savings, that do not slash Medicare country. Seniors enrolled in Medicare that wealth to other people. benefits to our seniors, that do not put Advantage do not need Medigap poli- Senior citizens who have throughout massive burdens on our States, and cies. So what happens when the Reid their life paid the Medicare tax, the that do not force the neediest of our bill slashes this program by almost $120 Medicare payroll tax, will now see the uninsured into a failing health care billion? Just look at the Washington Medicare they thought they were going system, Medicaid. Post front-page story from October 27 to get cut. What kinds of cuts are we We are simply going to have to be questioning whether AARP has a con- talking about that we may be dealing back at this in the future if we do not flict of interest: with here? The biggest one is Medicare get it right now. Only then we will be Democratic proposals to slash reimburse- Advantage—$120 billion of cuts. facing much worse fiscal circumstances ments for . . . Medicare Advantage are wide- About one in four American seniors and very difficult problems with sus- ly expected to drive up demand for private has Medicare Advantage insurance. taining the fiscal stability of the two Medigap policies like the ones offered by This is insurance that was provided in programs we are now dealing with try- AARP, according to health-care experts, leg- a contract relationship with the pri- ing to sustain: Medicare and Medicaid. islative aides and documents. vate sector. In other words, it was an I urge my colleagues to listen to the One of the most disturbing develop- experiment to see if we could let the people who signed this petition—people ments in the Reid bill has been the per- private sector deliver Medicare and all across this Nation in every one of petuation and even doubling of the un- how they would do at it. They found the 50 States—who are saying: Wait. Do constitutional individual mandate tax they can actually, through the Medi- not do this now. Do some sensible re- from $8 billion to $15 billion. You heard care Advantage Program, increase the form, but do not make this mistake. me right—this unconstitutional man- benefits seniors get. I encourage all my colleagues, as we date tax actually doubled behind closed This is probably the most popular are literally on the eve of the vote that doors. I have long argued that forcing part of the Medicare Program. It is will determine whether this bill makes Americans to either buy a Washington- growing rapidly. The reason it is grow- it through the Senate, to step back and defined level of coverage or face a tax ing rapidly is because it provides better take a deep breath and evaluate wheth- penalty collected through the Internal coverage. Those in the Medicare Ad- er it will not be better for all of Amer- Revenue Service is highly unconstitu- vantage Program are going to see their ica for us to move a little slower and tional. benefits cut. start trying to build a bipartisan solu- We hear a lot of rhetoric from the Another pledge the President made tion that can have true benefits for the other side about Republicans defending was: If you like what you have, you can American people. the big, evil insurance companies while keep it. Well, not if you have Medicare With that, Mr. President, I yield the Democrats are the defenders of Amer- Advantage. It is also not true about a remainder of my time. ican families. The insurance mandate lot of people who have their insurance Mr. HATCH. Mr. President, there is a is a clear example of this partisan hy- through their employers these days be- lot of talk from the majority about pocrisy. Let me ask one simple ques- cause that is going to be lost to mil- why passing this bill is the right thing tion: Who would benefit the most from lions of Americans too. to do for the American people. It is a But in addition to the Medicare Ad- decision of conscience for them. Well, this unprecedented mandate to pur- vantage cuts, you are going to see hos- let us a take a closer look at these de- chase insurance or face a stiff penalty pital reimbursements, skilled nursing cisions of conscience. enforced by our friends at the Internal facilities, home health agencies, hos- After weeks of closed-door clandes- Revenue Service? pice, and others cuts to the tune of $465 tine negotiations, Senator REID finally The answer is simple. There are two billion in the first 10 years. The experts emerged with a 383-page Christmas list. clear winners under this Draconian pol- have all told us, what that is going to This bill is a dark example of every- icy—and neither is the American fam- do is to make impossible for many thing that is wrong with Washington ily. The first winner is the Federal health care providers in these cat- today. Despite all the promises of ac- Government, which could easily use egories to keep their doors open, or it countability and transparency, this bill this authority to increase the penalty, will cause them to reduce the amount is a grab bag of Chicago-style, back- or impose similar ones, to create new and quality of services they provide. room buy-offs. It is nothing more than streams of revenue to fund more out- So senior citizens are going to see the Democratic leadership’s own pri- of-control spending. Second, the insur- their Medicare, particularly their vate game of ‘‘Let’s Make A Deal’’ with ance companies are the most direct Medicare Advantage, benefits cut and special interest groups financed by winners under this individual insur- their access to care restricted and re- American taxpayers. ance mandate because it would force duced under this bill. So who won and who lost in this millions of Americans who would not In summary, there has been a lot of game? Well let us take a closer look. otherwise do so to become their cus- talk again about how Americans want AARP issued a strong statement of tomers. I cannot think of a bigger give- health care reform. But we need to do support for this bill. The Reid bill away for insurance companies than the it in a smart and sensible way. Many slashes Medicare by almost $1⁄2 trillion Federal Government ordering Ameri- have argued there are no alternatives to finance additional government cans to buy their products. If you do being put forward by our side. As I in- spending. So, why would the Nation’s not believe me then just look at the dicated earlier in my remarks, that is largest lobbying organization, avowed stock prices of the insurance compa- simply not true. In fact, the alter- to protect the interests of seniors, sup- nies that have recently shot to their native that was put forward in the port this legislation? To find the an- 52-week highs. House and the alternative many of us swer, like anything else in Washington, Jane Hamsher, the publisher of the have been talking about here have been just follow the money. very liberal blog Firedoglake, said the scored to actually achieve the results AARP takes in more than half of its following in a recent posting: ‘‘Having Americans are asking for. $1.1 billion budget in royalty fees from to pay 2 percent of their income in an- We do not need to rush this bill health insurers and other vendors. The nual fines for refusing to comply—with through in a claim that we are making sale of supplementary Medicare poli- the IRS acting as the collection agen- history but in a way that will be a huge cies, called Medigap plans, make up a cy—just might wind up being the most historical mistake. The American peo- major share of this royalty revenue. widely hated legislation of the decade. ple, in huge numbers, are asking us to AARP has a direct interest in selling Barack Obama just might achieve the

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00064 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13859 bipartisan unity on health care he al- States. Coincidentally, only one state substantive policy disagreements for ways wanted—Democrats and Repub- avoids this unfunded mandate—Ne- months, one Senator recently said the licans are coming together to say kill braska. following: ‘‘They are desperate to this bill.’ ’’ Of course, let us not forget about the break this president. They have ardent Now that we clearly understand the biggest loser in this bill—the hard- supporters who are nearly hysterical at huge windfalls the Reid bill provides working American taxpayer. This bill the very election of President Barack AARP and insurance companies, let me imposes over a $1⁄2 trillion worth of new Obama. The birthers, the fanatics, the take a moment to talk about the win- taxes, fees, and penalties on individ- people running around in right-wing ners and losers in the so-called abor- uals, families, and businesses. The new militia and Aryan support groups, it is tion compromise. The language to pre- fees begin in 2010, while the major cov- unbearable to them that President vent taxpayer dollars from being used erage provisions do not start until 2014. Barack Obama should exist.’’ to fund elective abortions is com- Almost $57 billion in new taxes are col- This statement is outrageous. In- pletely unacceptable. The new abortion lected before any American sees the stead of listening to the policy con- provisions are significantly weaker major benefits of this bill, which are cerns of a majority of Americans, the than the amendment I introduced with largely delayed until 2014. It is also no other side is simply dismissing them as Senator BEN NELSON to ensure that the coincidence that through the use of rants from the far right. If the major- Hyde amendment, which prohibits use these budget gimmicks the majority ity refuses to listen to what Americans of federal dollars for elective abortions, can claim this bill reduces our national are telling them now—I am sure they applies to any new federal health pro- deficit when we all know these reduc- will have a rude wake-up call waiting grams created in this bill. The Hyde tions will never be realized. for them later. It should come as no amendment has been public law since Based on data from the Joint Com- surprise to anyone that this kind of ar- 1976. mittee on Taxation—the nonpartisan rogance of power has led to congres- The so-called abortion compromise congressional scorekeeper—this bill sional approval ratings rivaling the does not stop there. The Reid bill cre- would break another one of President most hated institutions on the planet ates a State opt-out charade. However, Obama’s campaign promises by in- at a dismal 22 percent and falling. this provision does nothing about one creasing taxes on 42 million individuals One of the biggest tragedies of let- state’s tax dollars from paying for and families making less than $250,000 ting this bill move forward is that it abortions in other states. Tax dollars a year. will do nothing to address the funda- from Nebraska can pay for abortions in At a time, when we are struggling to mental issue of rising health care costs California or New York. This bill also fight a double-digit unemployment in this country. According to the Con- creates a new public option run by the rate, the Reid bill not only increases gressional Budget Office, this bill will Office of Personnel Management, OPM, payroll taxes by nearly $87 billion but actually raise our national health care that will, for the first time, create a also imposes $28 billion in new taxes on costs by $200 billion. The administra- federally funded and managed plan employers that do not provide govern- tion’s own actuary at the Centers for that will cover elective abortions. ment-approved health plans. These new Medicare and Medicaid Services, CMS, When you have Senator BOXER and taxes will ultimately be paid by Amer- agrees with this assessment. When this Speaker PELOSI, two of the largest pro- ican workers in the form of reduced bill fails to work, Americans will no choice advocates in the Congress, sup- wages and lost jobs. longer have any faith in Congress to ef- porting this sham so-called com- However, it is hard to say we didn’t fectively address the issue of health promise and everyone from the U.S. see these new taxes coming. For years care reform. The opportunity to save Conference of Catholic Bishops to the now, many of us have warned that the Medicare and Medicaid from their im- National Right to Life Committee and out-of-control spending in Washington pending financial collapse will be lost the Family Research Council opposing will eventually have to be repaid on for another generation. it, there is only one clear loser—the the backs of American families. In this The historic blizzard in Washington majority of Americans who believe in bill, the repayment comes in the form earlier this month was a perfect sym- the sanctity of life and oppose the use of stifled economic growth, lost jobs, bol of the anger and frustration brew- of federal dollars for elective abortions. and new and increasing taxes—and ing in the hearts of the American peo- Last but not least, I would like to they are just the first installment of ple against this bill. I urge the major- spend a couple of minutes to talk about what will be a long and painful extor- ity once again to listen to the voices of the numerous special deals conferred tion of taxpayers if Congress doesn’t the American people. Every vote for on States in this $2.5 trillion spending stand up and stop these terrible bills. this bill is the 60th vote. Let me repeat bill. How hefty are the pricetags for de- According to a recent study of simi- that again—every vote for this bill is cisions of conscience? Here are some lar proposals by the Heritage Founda- the 60th vote. My Republican col- highlights: $300 million for Louisiana; tion, these new job-killing taxes will leagues and I are united with the $600 million for Vermont; $500 million place approximately 5.2 million low in- American people in our fight against for Massachusetts; $100 million for Ne- come workers at risk of losing their this $2.5 trillion tax-and-spend bill. I braska. jobs or having their hours reduced and implore my colleagues not to do this to At a recent news conference, when an additional 10.2 million workers the American people. Don’t foreclose the authors of this legislation were could see lower wages and reduced ben- on their futures. Don’t stick them with asked about the Nebraska earmark for efits. even more government spending and Medicaid funding, the majority leader Poll after poll tells us about the government intrusion. simply replied, ‘‘A number of states are growing opposition against this tax- We can fix health care. Many of us treated differently than other states. and-spend health care bill. The latest have been working to do just that for That’s what legislation is all about. Rasmussen poll shows that 55 percent many years. A truly bipartisan bill That’s compromise.’’ of Americans are now opposed to this that would garner 75 to 80 votes in the The next logical question is pretty bill. The CNN poll has it even higher at Senate, would be fiscally sound and straightforward—Who will pay for 61 percent. Among senior citizens, the provide the American people with the these special deals? The answer is sim- group most likely to use the health fixes they are asking for in the health ple. Every other State in the Union, in- care system, only 33 percent are in care marketplace is easily achievable. cluding Utah, who are collectively fac- favor while 60 percent are opposed. Many of us are standing at the ready, ing $200 billion in deficits and are cut- Independent voters are also opposed al- and have been for months, to step for- ting jobs and educational services to most 2 to 1. Opposition in certain state ward and pass meaningful health care survive, will now pay to support these polls, like Nebraska, is even higher at reform that truly would help American special deals. 67 percent. families and please American tax- According to the Congressional Budg- So what is the majority doing to ad- payers. To date, we have been rebuffed et Office, the Medicaid expansion in dress these concerns? Nothing. In fact, by an unfailing determination by a few the Reid bill creates a $26 billion un- despite the efforts by many of us here to pursue a nearly Socialist agenda. I funded mandate on our cash-strapped on this side of the aisle to express our would ask my colleagues on the other

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00065 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13860 CONGRESSIONAL RECORD — SENATE December 23, 2009 side of the aisle who do not believe in element that he makes enough money petition in the exchanges. We do put the Europeanization of America, who on this test that why not? can’t hurt some limits on the insurance compa- believe in doing truly bipartisan work because we do not need it? nies with the medical loss ratio provi- here in the Senate, to step forward, In my family, my relatives have all sions that Senator ROCKEFELLER, Sen- vote against advancing this bill and had prostate cancer, and I watch very ator FRANKEN, and Senator NELSON work with those of us on this side of carefully. But when I go to the doctor helped craft. If we could have had a the aisle who are committed to making and he says I need this kind of a test or public option, it would have created a difference to craft a health care re- this kind of a scan, I say: Of course. If more competition. That is one of my form bill they can be proud to support. it were a car or a house, I might inves- great regrets, that we don’t. I worked The PRESIDING OFFICER. The Sen- tigate to see if I needed it. hard for it, but we don’t. Nonetheless, ator from New York. The second reason costs are so expen- we still get some limitation on insur- Mr. SCHUMER. Mr. President, it is sive is because fundamentally health ance companies and create more com- truly my honor to be here on this his- care deals with God’s most precious petition. toric evening and speak in support of gift to us, which is life. Who would not The fourth is the hardest: fee for the bill which we will vote on early to- beg, borrow, or steal to find $100,000— service. The fee-for-service system is morrow morning, Christmas Eve morn- who would not give their right arm if what drives up the costs. This bill, ing. It is an honor because anyone who we were told our husband, our wife, our more than any other provision ever looks at this country knows the prob- mother, our farther, our son, or our passed in America, begins to grapple lems we have, and that two problems daughter was ill and $100,000 would give with that most difficult issue. caused by the health care system are them a 25-percent greater chance of You do those four things, and you at the top of the list. One represents a living better, of healing? We would do will bring costs down. more conservative point of view and it. But because most of us do not have It is no wonder that CBO has said one represents a more liberal point of that $100,000, we buy insurance. That is that in the first 10 years, we save $127 view. But I am proud to say the bill we the reason there is health care insur- billion, even though we are covering 31 will pass tomorrow morning, God will- ance. It is not because it is health care; million more people, and in the second ing, deals with both. it is because it is so vital and so expen- decade, we are going to save over $1 The more conservative issue is con- sive. So we are willing to pay $5,000 a trillion. I forget the number. I think it trolling costs. The health care system year, so that, God forbid, if that time is $1.3 trillion. We are doing whoever costs this country a whole lot of comes when we need that $100,000 to becomes President in 2020 a huge favor money. By and large, we get good cover a loved one, it is there because because with the cost-control provi- health care—not everybody but most we have insurance. sions in this bill, should they become people. But it is so expensive, and that So when I go to the doctor and he law, we will get a great handle on has been documented. says I need this special test, special costs. It will take a while, but it will What does that mean? It means small scan, special procedure, not only do I do the job. On the other side, we don’t businesses cannot grow and actually not know whether I need it—because cover everybody, but 94 percent of all have less money to pay for wages. It the training is difficult; and you can go people will be covered, so it is an amaz- means our large businesses are less online, but you cannot really figure ing feat to both cover many more peo- competitive globally. We have seen these things out—but, second, I am not ple and reduce costs, and that is what that in the auto industry. It means in- paying for it. You put those things to- this bill does. dividuals often have to pay a fortune gether, and the costs go through the I wish to say, for my home State of for health care. It means our govern- roof. We have tried in this bill to fi- New York, there are lots of good things ment runs deficits that are perilous to nally get a handle on the costs. Most in this bill. We have 800,000 seniors who the economy. Health care costs are other countries have. In America, we would be cut from Medicare who will more the cause of our deficits than haven’t. We must. I believe very deeply not be because of provisions we were anything else. in covering everybody, but unless we able to get in the Finance Committee. On the other hand, we run a real get a handle on the costs, we will not Graduate medical education, inter- problem because many people are not be able to afford to cover everybody. mediate medical education—a lifeblood covered or covered adequately. The Even if we cover them today, we will for jobs in New York because training heartwrenching stories told by our fine run out of money in 5 years. We do it doctors is probably our second biggest leader—and I cannot give him enough in four ways, and I am going to be very industry in New York City—is not cut kudos for the job he has done here; and brief about them because my time is even though it was proposed to be cut. I will talk about that in a minute—but somewhat limited. Money for neighborhood national the people who are not covered or cov- First, we deal with efficiencies. health services and community health ered poorly suffer in many ways. They There is one form. If there is IT, as we centers will provide physicians in inner become not only less happy citizens— put in the stimulus bill—information cities and in rural areas where they that is most important—but less pro- technology—we can save hundreds of don’t have health care. They will get ductive citizens. The heartwrenching billions of dollars. Just one form. You really good health care. stories of people who do not have cov- go to a doctor’s office, there is a nurse, This bill is far from perfect. Had I erage for them or their children we all a doctor, and there are four people fill- written it, I would have written it a know about. It also, by the way, in- ing out forms. If you had one form, you different way. Had Senator CANTWELL creases costs because when people wouldn’t need that. or Senator CASEY or Senator delay coverage, when they are ill, it in- Second, prevention. Early interven- KLOBUCHAR written it, they would have evitably costs more. tion and prevention saves billions, and written it differently from me. But if This bill addresses both. I wish to, in in this bill that is what we encourage, every one of us in this Senate insisted my brief amount of time here—and I do early intervention and prevention. that the bill had to be written exactly not know how much time I have—ad- Right now, amazingly enough, if you our way, we would have 100 bills, each dress both. I wish to talk on the cost get diabetes in the later stages, Medi- with 1 vote, and no progress. So great side first. care or private insurance will pay for progress has been made, and this is a Why do health care costs go up so dialysis. God forbid someone needs a proud moment. much more than any other product? leg amputation, one of those serious There are many people I wish to Two main reasons. First, we do not retina operations, they pay. They don’t thank. have perfect knowledge, as the econo- pay for the early stages. They don’t My staff—I do want to mention mists would say. We basically do not pay for the nutrition therapy, the exer- Meghan Taira, Katie Beirne, and all of know what we are buying. When we go cise therapy that could arrest diabetes the others who worked so hard; Jeff to the doctor, and the doctor says: You in the early stages. We do that. Hamond, who worked so hard and so need this test, we do not know if we The third thing we try to do in this diligently on this bill. need it. Is the doctor genuinely pre- bill is provide competition in the insur- I thank MAX BAUCUS. He soldiered on scribing a test we need or is there some ance industry, and we do provide com- and on when things looked bleak and

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00066 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13861 pursued his dream of a bipartisan bill, tomorrow morning by television. It We know there are organizations which would have been a better prod- should be a proud moment for him. that have done multiple studies. We uct. It wasn’t to be but not because of I also wish to add a particular thanks know there is at least $700 billion in lack of his efforts. to President Obama. I wish to say to waste each year in our health care sys- Thanks go to Senator DODD and Sen- the President that he started this year tem. That is according to the Robert ator HARKIN on the HELP Committee with the dedication that this was going Wood Johnson Foundation. We know and my colleagues on the Finance to be a year where we got health care that is the kind of money that, if we Committee, but at the top of the list is reform. He stated that at the beginning are smarter about our health care just one person, and I was proud to be of his Presidency and held steady to choices, we can reduce the costs of one of his lieutenants on this, and that that during the very raucous debate health care and improve the system. is HARRY REID. I was up close. What an that happened in the early months re- Part of this is reforming Medicare amazing job that man did, modestly, garding the budget and whether we and the cost of Medicare because Medi- without complaining, without looking would have the money to do health care dollars are one in every five to what was good for him. He had a care reform. He remained committed health care dollars today. The more ex- mission, a job: get us 60 votes on this as we went home over the summer and pensive Medicare is, the end result is very difficult, complicated proposal. many things happened at town meet- the more expensive insurance is in gen- And he did it. He will never get the ings. He came back and was determined eral. So it is very important for us to credit he deserves because he is such a that we would forge ahead. He, as we reform the Medicare system, to have modest man, but I wanted to share that got legislation out of the Finance Com- provider reform, which this legislation mittee and had to combine bills, re- with my colleagues and with the coun- has, and to change the system. mained active and intent about this try as I am sure others have done be- But we also have to deal with the legislation. cost of the uninsured because we know fore. It reminds me of a saying my father So this bill is a very good bill on both that Americans right now who don’t used to make to me because he was a sides of the ledger. It will reduce costs have insurance and who go to the Navy man and always came up with rather significantly and in a smart emergency room are adding something nautical terms to kind of describe the like $43 billion a year in higher pre- way, without hurting patient care. It direction in which he would want his mium costs. That is $1,000 for each gets rid of the fraud and the waste and children to go. The President’s actions family in their premium increases. the abuse and duplication. At the same on health care policy for this year re- time, it will cover many more people. I know we can do nothing and have mind me of the saying ‘‘steady as she these same costs on the backs of the This is a very fine day for this coun- goes’’ because that is what the Presi- try, this Senate, and Leader REID. To- American people or we can try to dent has done for the last many change the system, as we are with this morrow morning, I will be very proud months—steady as she goes so that we legislation, to improve the quality of to vote for this piece of legislation, can get health care reform. care and access and to lower the costs certainly one of the most important I So I wish to add my thanks and con- have ever voted on in my 35 years as a gratulations to him and to his adminis- for Americans. That is why one of the legislator. tration and to the many members of main reforms I fought for in this legis- I yield the floor. that administration who were down lation was about paying for value, not The PRESIDING OFFICER. The Sen- here on the Hill, including Mr. for volume; that is, to change the fee- ator from Washington. Messina, who made many frequent vis- for-service system that rewards physi- Ms. CANTWELL. Mr. President, I am its, I think, to Members to talk about cians for how many procedures they do proud to be out on the floor tonight some of the details. or how many patients they have seen a with my colleagues. I am glad I am following my col- day but not for the value of the sys- I thank the Senator from New York league from Idaho, from the Northwest, tem. So I know that because of the for his comments and his work in the who spoke earlier, because I think it change we have in this legislation, we Finance Committee. He literally did shows you can be from the same region are going to reward physicians, start- work night and day in that committee of the country and have the very same ing several years from now—something and then worked with Leader REID on interests but look at this legislation that has worked in my State and many trying to get consensus within our cau- differently—not that I don’t share States in the Pacific Northwest that cus on this legislation. So I appreciate some of his concerns, and I am going to are more efficient at lowering the his strong, active support in making fight to make changes and add to the costs—by increasing efficiency and reform. legislation as it continues to move into thereby rewarding those States with I, too, wish to add my congratula- conference and in the years after its better Medicare payments. tions tonight because we are here to implementation. I think the Senator What it actually means for individ- talk about controlling health care has brought up some good points that uals is that they are going to get short- costs and what we are going to do to we need to follow up on. er waiting times, they are going to get help the American people. I too wish to Controlling health care costs in gen- better access to doctors, they are going thank my colleagues, Senator BAUCUS eral is what is driving us to take action to get more coordinated care, and they and Senator REID, for their active lead- tomorrow morning on Christmas Eve. are going to get better outcomes. Why? ership, as well as Senator DODD and We know we have already seen a 120- Because that is what we are going to Senator HARKIN. percent increase in insurance pre- incent in these reforms. That is the I add my thanks to the whole Fi- miums for the last 10 years; that is, kind of system that is working in nance Committee staff. I don’t think from 1999 to 2009, we have seen a 120- many parts of the country that are people realize they have worked from percent increase for Americans and cost-effective, that yield better results January until December, many week- their premium costs. That is some- for individual patients at lower cost. ends as well as during the week, many thing the American people can’t afford. I wish to thank my colleague from late nights as well as early mornings, And when my colleague from Idaho Minnesota, Senator KLOBUCHAR, be- and they deserve a lot of credit for the talks about the increase we are going cause it was her legislation that she in- details behind this legislation and to see in the next 10 years, he is right. troduced early this year that really making sure the i’s are dotted and the Insurance premiums are going to go up catalyzed this effort to focus on many t’s are crossed. again. This debate is about what we are of the things done at the Mayo Clinic I wish to thank my staff, all of my going to do to try to control those and things that had been done in Min- staff but in particular Mark Iozzi, who costs, whether this legislation we are nesota and things we had done in worked on this legislation, as did the discussing today will have an impact in Washington State that said: Let’s rest of the Finance Committee mem- reducing those costs so that maybe change this process and save dollars for bers of the staff, for about the last 111⁄2 premiums aren’t going to go up an- everybody in America by getting off months. I was glad to send him off on other 120 percent in the next 10 years the fee-for-service systems and going a plane today to reach his family, and and make insurance even more to a system that will be more cost-ef- hopefully he will be watching the vote unaffordable for the American people. fective. So I wish to thank her and her

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00067 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13862 CONGRESSIONAL RECORD — SENATE December 23, 2009 State for that leadership and to thank States. This will allow 70 percent of the that every State in the country takes those in my State who have performed uninsured to have full coverage. the option of delivering health care the same way on efficiency to deliver What does that mean from a cost-ef- through that kind of negotiated public this kind of health care reform. fective perspective? Let’s take an ex- plan that will allow them to drive A second cost control of this legisla- ample. If this legislation is not passed down insurance costs. tion that I supported that I think will and we have the current system in I hope we can expand the Basic do well for many people in this country America, an individual in 2016 trying to Health Plan in conference to an even is in the area of long-term care reform. get access to the individual market more robust plan that would cover Some people may know that my col- would have to pay over $5,850, and the more people. It does not make sense to league, Senator HARKIN, was on the individual would pay everything. The me to continue to subsidize expensive floor and was talking about long-term government would be paying nothing; insurance by giving Federal tax credits care in the insurance sector, but part that is, if this bill does not pass. That when I know the bill to the Federal of what we are doing in this bill is also is what would happen. Government and to the individual tax- to incent States to move off of nursing Let’s look at what will happen if, in payer can be cheaper by implementing home care and on to community-based fact, this bill does pass. You will have negotiated rates. care. the option of going into the exchange. While we have not been able to fully Home care juxtaposed to nursing The estimates are by CBO that you will implement that at the Federal level, home care is 70 percent cheaper and be able to reduce from where we nor- let’s not hold States back. Let States better meets the needs of individuals. I mally would be, about 11 percent, the do what they have done best for the say that because my State imple- cost of health care. In that exchange, last several decades; that is, innovate— mented this policy to focus on long- an individual who would be covered at innovate more quickly, more effec- term, community-based care decades 200 percent of poverty would end up tively, not without a Federal partner- ago. The end result is that kind of care paying $1,200, and the Federal Govern- ship but in a partnership with the Fed- has been more cost-effective, less ex- ment would end up paying $4,000. Al- eral Government and in a partnership pensive, personalized care, and individ- ready somebody is coming out ahead. with a public-private mechanism that I uals get to stay in their communities. They say that sounds good. That think has been cost-effective for the I do not know any senior in America sounds like a better deal than me being last 20 years. who would choose to go to a nursing able to afford this current rate. That Tomorrow, I will be voting in support home over staying in their home or in would be $5,850. It means I would be un- of this legislation because I believe in their community. But they have had insured. the innovation this legislation enables. very little choice up until now on this The Basic Health Plan has been in I know when we passed the Basic legislation to be able to do that be- operation for 20 years, driving down Health Plan in the mid eighties people cause we continue to incentivize nurs- costs through negotiated rates, as I said the same thing. There were con- ing home care. said, by 35 and 40 percent, and it is a cerns about whether we were going to There are some who need nursing far different picture for the individual. be able to implement the cost-effec- home care because they need a higher In our State, the individual only pays tiveness. In fact, at that time, it was level of delivery of care, and those peo- $400—$400—versus $1,200. Look at the said that some stakeholders believed it ple will still go to those facilities. But government. The government rate adds would be an entitlement. Others saw it we will save a lot in our Federal budg- to that, $3,700, but it is cheaper. Why? as essentially a cost-containment et, as we look at our Medicare and Because the State has negotiated with measure that would reduce uncompen- Medicaid budgets, for the future if we insurers and driven down the cost. sated care. Some others thought it simply take this one action. This bill That is what is missing in the ex- would demonstrate the viability of gov- alone would be worth passing just for change. ernment-subsidized health care. Advo- this one provision because of how much While some of my colleagues, I know, cates wanted to implement something money it is going to save the Federal think the exchange is going to deliver quickly so they could develop constitu- Government. great clout through the Office of Per- encies. The Basic Health Plan. Many of my sonnel Management, I hope they are All these things are similar argu- colleagues may have heard me talk right. I am anxious to see the results of ments to what we are hearing today about the Basic Health Plan as a basis that. But I am unapologetic about the and what this debate has been about. of this legislation that we added in this fact that I know the State of Wash- But I know that what happened after 20 country. Many people across the coun- ington has delivered these kinds of sav- years of us putting a plan in place is try may not understand the Basic ings through negotiated rates and that that hundreds of thousands of Washing- Health Plan because they do not have many States in our country have been tonians got more affordable health something similar to the Basic Health the most cost-effective tools for deliv- care. It has been a plan that has Plan in their States. ering new and efficient health care worked effectively. No one has tried to Nearly 20 years ago, the Washington models, while we at the Federal level dismantle the program from a political State Legislature passed the Basic still struggle to try to drive those poli- perspective. I think working together Health Plan because it allowed States cies. with the Federal Government we can to negotiate for lower rates. Essen- I know this legislation has cost con- show more cost containment for the tially, it is a public-private partner- trols. I know my colleague from Idaho American public. ship. Some people call it a public op- is very concerned about this, and he is I thank the Chair. I yield the floor. tion. Some people call it a public plan. right to be concerned. We will be The PRESIDING OFFICER. The Sen- I call it cost-effective health care de- judged by how much we are going to ator from Minnesota. livery. It is cost-effective because we drive down the costs. But the American Ms. KLOBUCHAR. Mr. President, I have proven for 20 years that we get 35 people should understand that rates ask to speak for 12 minutes. to 40 percent lower rates for individ- are going to go up another 120 percent The PRESIDING OFFICER. Without uals by grouping into this kind of plan in the next 10 years if we do nothing. objection, it is so ordered. and having the State negotiate the So this legislation is about bending the Ms. KLOBUCHAR. Mr. President, I rates. We have been able to have that cost curve. It is about looking at the come to the floor in support of the Pa- plan now for 20 years. projected growth, looking at general tient Protection and Affordable Care This provision of allowing States to inflation, and trying to drive health Act. It is an honor to follow my friend do something similar to the Basic care costs somewhere below what they from Washington, Senator CANTWELL, Health Plan is a provision we added in would be on an annual basis. That is who has been such a leader on the Fi- the Finance Committee that now will our objective. nance Committee in focusing on the allow every State in America to take We are going to have a challenge in very issue that is key in my State; that money they would get instead for tax monitoring this legislation, but that is is, cost reform, delivery system reform, credits and use that money in the de- why I am going to fight and cheerlead because for too long the people in cost- livery of negotiated rates for their for the Basic Health Plan and hope efficient States, such as Minnesota,

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00068 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13863 Washington, and Wisconsin, have been in Two Harbors, MN, he is spending work to expand coverage and increase seeing other States not quite offering $24,000 a year on his health care. choice and competition for American that kind of quality care we would like I have heard from doctors at Gunder- consumers. to see all over the country. son Lutheran in La Crescent, MN. They First, and very important to me and I think it always shocks people. If told me the story of how at one of their to my mother—who is 82 years old— you go to a hotel and you say you want hospitals in their region they had three this bill protects Medicare and our sen- to get a room, usually if you spend patients in a 1-month period come into iors. Medicare is one of the most val- more money you have a bigger room the emergency room with severe stom- ued social programs our country has and you have a better view. That is not ach problems. They had ruptured ap- produced in the last half century. Yet true with health care. pendixes. Do you know what they said it is also a program in dire need of re- Time and again, we see studies across as to why it got to that point? For two form if it is to survive on sound finan- this country—academic, bipartisan of them, they worked at small busi- cial footing and continue to provide studies—showing, in fact, some of the nesses and they were afraid it was the fine medical care our seniors have highest quality health care comes with going to blow up the premiums for come to expect. some of the lowest costs. health care coverage for that little By 2011, the first baby boomers will As the Senator from Washington company. The third one could not af- enter the Medicare system. Without ac- talked about how we can save that $700 ford the copays. They waited and wait- tion, if we sit and put our heads in the billion year that is wasted in our sys- ed and waited. They got a doctor and sand, it will go in the red by 2017. So tem, a lot of it comes not at the cost of that doctor was the emergency room, think of people such as my mom—82 care but actually at getting better some of the most expensive care in this years old. She wants to live well into care, because if you reduce unnecessary country. her 90s and beyond. Think of people waste, if you stop having people run- I heard from a mom in Bemidji, MN, who are 55 and who want to be on Medi- ning around to 20 different specialists who has a daughter named Micki. The care when they are 65. It is going to go who are giving them conflicting advice mom’s name is Sheryl. She wrote me a in the red by 2017 if we don’t do some- and not conferring and not knowing letter. She said: thing to make sure it is on strong fi- about the medications they are taking, I just got off the phone with my daughter nancial footing. when you have those disorganized sys- Micki. At first, I couldn’t understand her be- With this bill, we start to do that. We tems, they not only cost too much cause she was sobbing so hard. Her husband extend Medicare solvency by 10 years. I money for everyone, they also give had just been told by his boss that they am encouraged that my legislation can worse care. That is why the Mayo wouldn’t be carrying health insurance on create a value index, which the Senator model, an integrated care model with their employees any longer. They are a small from Washington discussed, as part of one primary care doctor working with company and it was costing them $13,000 a the formula that is used to determine month. For her, this is a matter of life and a team of specialists is a model we death. She has cystic fibrosis. Her medica- Medicare’s fee schedule. That was in- would like to see all across this coun- tions can run anywhere from $7,000 to $13,000 cluded in the Senate’s bill. This index- try. a month. Because it is a preexisting condi- ing will help reduce unnecessary proce- We cannot simply keep pushing our tion, the insurance companies won’t touch dures because those who produce more problems to another day. Rising health her unless it is under a group plan like the volume will also need to improve care care costs are unsustainable, busting one her husband just lost. or the increased volume will negatively the budget of families and businesses She went on to say in her letter: impact fees. Doctors will have a finan- alike. If we do not act, these costs are You need to stand and be my voice, be cial incentive to maximize the quality going to break the backs of the Amer- Micki’s voice. Micki is a fighter but she and the value of their services instead ican people. can’t keep fighting a system that is so of just the quantity. This country spends $2.4 trillion on against her. Micki has already lived longer My favorite story along these lines is health care alone. That is $1 out of than any of her doctors expected. We need not from Minnesota but from every $6 in the American economy. It you to be her voice. Geisinger, PA. They were trying to fig- is projected to be 20 percent of our That is why this bill is so important. ure out: How do we best treat diabetes. whole economy in 2020 if we do not act. The status quo is simply not sustain- We are not happy with the results. Despite spending 11⁄2 times more per able, not for families, not for small They realized with the routine cases, person on health care than any other businesses, not for big businesses that those were the people they wanted country, we all know there are many are trying to compete internationally someone to see more often, to check in problems in our health care system. against other companies and countries on them. So they had them assigned to Wages simply do not keep pace with that have more efficient health care nurses and the more difficult cases to premiums. Peoples’ wages have been systems. the endocrinologists. The endocri- stagnant or maybe gone up a little, Despite claims from my friends on nologists would review the nurses’ gone down some or they lost their jobs, the other side of the aisle, we have work and make sure there was proper but health care costs continue to sky- spent months debating this issue. The followup if there had to be adjust- rocket. C–SPAN viewers know what I am talk- ments. At the end of year, they had I always tell the people in my State ing about. If you look at the input the much happier patients. The quality of there are three numbers we need to re- Republicans have had on this bill, you care went way up, and they saved $200 member—6, 12, and 24. Ten years ago, can see that over 160 amendments were per month per patient. the average American family was accepted in the HELP Committee. Doz- What does our system in America do spending $6,000 a year on their health ens of bipartisan meetings and round- now? What does the Medicare system care. Now they are spending $12,000, table discussions were held in the Sen- do? It punishes them for that good with many people spending a lot more. ate Finance Committee. work. So that is what we are talking What will they be spending in 10 years They have engaged across this coun- about, actually getting that higher if we do not act? Mr. President, $24,000, try—so many people, sadly—in a cam- quality. You can save money if you up to $36,000 a year on their health care paign of misinformation. I know a lot have the right incentives in place. premiums. of people in Minnesota and across the With this legislation, we also stop When I go around my State, I hear country are left trying to wade paying for care that doesn’t result in these stories all the time. Granite through all the ads, misinformation, quality patient outcomes. Who wants Gear, a little backpack company up in and scare tactics to find out what this to go into the hospital to be treated Two Harbors, MN, makes backpacks bill is about. Well, this bill is not per- and get sick from something else dur- for our soldiers. They have done well. fect, as so many of my colleagues have ing that hospitalization? When you They built their business. The guy in said. We will work to make changes have to go back again, that is called a charge of it said he would not have and work forward. I would like to see hospital readmission. In 1 year, hos- started that business if he knew then more cost reform in this bill. But what pital readmissions cost Medicare $17.4 what he knows now; that is, for his we do with this bill is a beginning not billion. A 2007 report by the Medicare family of four, a small little business an end. We work to reduce cost, we Payment Advisory Commission found

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00069 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13864 CONGRESSIONAL RECORD — SENATE December 23, 2009 Medicare paid an average of $7,200 per small business health option pro- the American people deserve. Tomor- readmission that was likely prevent- grams—or SHOP programs—where row morning, Christmas Eve, will be able. This practice must stop. This small businesses can finally pool their the vote. isn’t good care for patients, and it is numbers and do what big businesses I yield the floor. not a good investment for taxpayers. do—negotiate for better rates for their The PRESIDING OFFICER. The Sen- The bill also establishes an inde- insurance. ator from Pennsylvania is recognized. pendent, 15-member Medicare Commis- Beginning with the passage of this Mr. CASEY. Mr. President, I ask sion tasked with presenting Congress bill—and this is one of my favorite unanimous consent to speak for up to with comprehensive proposals to re- parts—kids can’t be denied coverage 10 minutes. duce health care costs and improve due to preexisting conditions. So if The PRESIDING OFFICER. Without quality of care for Medicare benefits. your son or daughter gets sick, an in- objection, it is so ordered. The current Medicare payment policies surance company can’t look at you and Mr. CASEY. Mr. President, I wish to are not working well for patients, doc- say: I am sorry your kid got sick, you commend my colleague from Min- tors, and hospitals. We have to control don’t have any insurance. nesota, Senator KLOBUCHAR, for the costs and we have to get that high- Look at the story I just read with outline of the bill and the important quality care we see in Minnesota Micki, the woman whose husband lost priorities we are here to debate. This is throughout the country. her insurance. She has cystic fibrosis, the last night, the last couple of hours, In this bill, we also work to stop and she is not sure if she is going to be before we vote on the bill tomorrow fraud and abuse. Law enforcement au- able to get insurance. This puts an end morning, and I wish to do two things. thorities estimate that Medicare fraud to that and for kids it does it the One is to highlight, in very brief fash- costs taxpayers more than $60 billion minute the bill gets signed into law. ion, some of the main benefits of this every year—$60 billion going to con Insurance companies will be barred bill to the American people—and espe- men, $60 billion going to storefronts from limiting the total benefits Ameri- cially to our families—and then to that say they are a doctor’s office, cans can use over the course of a year speak of one particular family from when all that is behind it is a bunch of or over their lifetime. Affordable insur- Pennsylvania who I will talk about in fraudsters and rip-off artists who are ance coverage options will also be a moment. getting checks meant to go to pro- made immediately available through a By way of overview, what we tried to viders of care to our seniors—$60 bil- high-risk pool for Americans who have do in this bill, and I believe we have ac- lion a year. Finally, we have a bill that been uninsured and have been denied complished it, is not only to meet the puts the tools in place—enhanced coverage because they have a pre- goals President Obama set forth in the criminal penalties—that allows for di- existing condition. early part of this year as he assumed rect deposit of those payments from With this bill, insurance companies the Presidency and began to make the government to those providers, so immediately must fully cover regular health care reform a priority, but I we don’t have people ripping us off checkups and tests that help prevent also believe we are trying to meet the with an antiquated system of bad and illness, such as mammograms or eye goals and the objectives of the Amer- false checks. With this change, we put and foot exams for diabetics. ican people. I think we have reached a stop to criminals running phony busi- In addition, children would continue that point. nesses to steal Medicare checks from to be eligible for family coverage This legislation to reform health care our seniors. through the age of 26. will, first, not only be deficit neutral, We are also working to help our sen- I see my friend, the Senator from but over the first 10 years of the bill it iors with the cost of their prescription Pennsylvania, is here. Maybe he has will save $132 billion—reduce the def- drugs. Millions of Americans depend on four children who will soon be 26. I icit $132 billion. prescription drugs to help them man- know many people are glad this bill Something we haven’t talked enough age chronic disease or other illnesses. has contained in it a provision that about, although we have had a lot of But drug prices continue to skyrocket. says you can keep your kids on your important debates, but in terms of cov- That is why I voted for reimportation, insurance until they are 26. ering those who don’t have any cov- to allow these safe drugs to come in We know this bill isn’t perfect, no big erage today, this bill will cover 31 mil- from places such as Canada. We are not piece of legislation ever is. There is lion Americans. We know, for example, afraid of getting our medications from still work that needs to be done in con- the Medicaid Program, which is more Canada. Canadians come to shop and to ference committee. There are still ne- than 40 years old, covers 61 million vacation and to fish in Minnesota, and gotiations that will take place. There Americans, and Medicare covers 45 mil- we go to Canada to shop and to work are still things that need to be fixed. lion. So in this one piece of legislation, and to fish. We don’t have a problem We know this is only the beginning of not after 10 or 20 or 30 years but once with their drugs. Sadly, that proposal reform, not the end, but we must keep it is fully implemented over the next did not pass the Senate, but I will con- looking to the future. For too long, couple years, it will cover 31 million tinue to advocate for that. health care costs have been spiraling Americans. That will not only be bene- What does this bill do so far? What it out of control. That is why we can’t af- ficial to those individuals and their does is to help fill that doughnut hole, ford to hold off any longer on reform- families, but I would argue it is good that point where seniors who had been ing health care. for our economy. They will be more getting help with paying for their pre- I am going to close by reading some- productive workers and our economy scription drugs stop getting that help. thing Vicki Kennedy—Ted Kennedy’s will be stronger because we covered That doughnut hole is now filled. widow—wrote for the Washington Post. them. This legislation provides relief for This is what she wrote this weekend: The bill extends Medicare solvency. our small businesses. Right now, small The bill before Congress will finally deliver That is something we hear a lot about. businesses pay 20 percent more than on the urgent need of all Americans. It We have heard a lot of discussion about large businesses for the cost of care. In would make their lives better and do so Medicare but what about making sure a recent national survey, nearly three- much good for this country. That, in the end, it is solvent. Our bill does that. quarters of small businesses that did must be the test of reform. That was always Prescription drugs. A lot of families not offer benefits cited high premiums the test for Ted Kennedy. He’s not here to have benefited from our prescription urge us not to let this chance slip through as a reason. Beginning in 2011, with our fingers. So I humbly ask his colleagues drug program, but then they fall into a this legislation, small businesses will to finish the work of his life, the work of time period where they are paying the be eligible for tax credits worth up to generations, to allow the vote to go forward whole freight. It has been referred to as 35 percent of their contribution to and to pass health-care reform now. As Ted the ‘‘doughnut hole,’’ but that doesn’t their employees’ health insurance always said, ‘‘When it’s finally done, the peo- capture the gravity of the problem for plans. In 2014, these tax credits will ple will wonder what took so long.’’ a family and for an individual, older even increase more. After all the work and debate that citizen. When they fall into that so- This legislation, as we all know, also has gone into this bill over the past called doughnut hole, they are in big creates insurance exchanges known as year, we are finally having the votes trouble because they have to carry the

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00070 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13865 whole burden. They have to pay for We also have done some things in heard about from so many others, and those prescription drugs all by them- this bill that didn’t get a lot of atten- also dropping of coverage, arbitrary ac- selves. This bill addresses that, some- tion. tions by an insurance company to drop thing that has gone unaddressed for a When we were in the early stages of coverage when they believe it is in number of years. this bill way back in the summer, in their best interests and not in the in- The number of children in our coun- the Health, Education, Labor, and Pen- terests of the family. try who are covered by the children’s sions Committee, Senator DODD and I Let me pick up with the letter. I am health insurance and other initiatives and others included provisions in the quoting here again from the letter has grown, thankfully. We will be bill long before it was amended in the from Trisha Urban: growing from 7 million kids covered original bill we put before our com- We are left with close to $100,000 worth of under the prior legislation to 14 million mittee this summer. medical bills. Concerned with the upcoming under the children’s health insurance. For example, mandating prevention financial responsibility of the birth of our But a lot of those children who don’t and screenings for children. No. 2, en- daughter and the burden of current medical have the benefit of the Children’s suring pediatric benefits as well as pe- expenses, my husband missed his last doctor’s appointment less than one month ago. Health Insurance Program might be diatric input into the formation of ben- caught in the preexisting condition efits; vision and oral health care for Less than 1 month from February of problem. Their ability to have cov- children, and, finally, in this section, 2009. Here is her story, the tragic part of erage will be limited because they have strengthening the pediatric workforce. her story, in addition to all of the prob- a preexisting condition. What our bill If we are going to give children the lems she had with her health insurance does is to say that upon passage of this kind of expert help they have a right to company and all of the challenges she bill, within months of the passage of expect and we have a right to expect and her husband faced getting coverage this bill, in 2010, children will be fully for their care, we have got to make for her family, her husband’s heart protected in this sense: Any kind of act sure we have the workforce, the high- condition and in her coverage, as well by an insurance company to deny them skilled work force, the doctors, who as her pregnancy, she talks about that coverage because of a preexisting con- are, in fact, pediatricians; so all kinds night in early 2009 when she was ready dition will be illegal in 2010. of benefits for our children and for our We also, over a number of years, will families. to deliver her daughter. She said: make it illegal for an insurance com- But this isn’t just a debate about pol- My water broke the night before. We were anxiously awaiting the birth of our first pany to deny someone coverage due to icy and the provisions of the bill. That is, obviously, part of what we are here child. A half hour later, two ambulances a preexisting condition for adults. For were in my driveway. As the paramedics those who are discriminated against, to do. What we are here to do is meet were assessing the health of my baby and me even before the bill is implemented, we the needs of real families in America. I the paramedic from the other ambulance provide a high-risk pool for them. have met a number of them in Pennsyl- told me that my husband could not be re- We protect consumers in other ways. vania, and every Member here, whether vived. I was holding a copy of the first half of they are for or against the bill, wheth- Here’s Trisha Urban, having lived the bill here. Sometimes bills get real er they are trying to kill the bill on through all of those difficulties with complicated, and I know our colleagues the other side or whether they are try- her own insurance and her problems on the other side have complained ing to support and pass the bill on this with insurance and worrying about her about the size of the bill. But to get it side, could tell a story. Each of those pregnancy and worrying about her hus- right, you have to put in a lot of detail. Senators could tell a story about many band. She walks up to her driveway the On page 78 of the bill, it is very clear. families in their State. exact day that her baby was born and On page 78, the bill deals directly with One story is to remain an inspiration she finds her husband dead in the drive- the preexisting condition problem. Mil- for me from day one, going way back in way. lions of Americans have been denied February when I received a letter. This The chart depicts the headline from coverage over the last couple of years woman in Pennsylvania who wrote to the Reading Eagle dated February of because of this one problem—millions me remains an inspiration. Her name is this year: ‘‘Tilden Township Woman of Americans. Here is what it says, Trisha Urban, from Berks County, PA, Tends to Baby Born Hours After Her very simply, on page 78: right near Reading and the eastern side Husband’s Death.’’ A group health plan and a health insurance of our State. She wrote this letter. I I will cite a few facts from the story: issuer offering group or individual health in- will quote major portions of the letter. Just after noon, Thursday, Trisha A. surance coverage may not impose any pre- She talked about herself and her hus- Urban’s husband, Andrew D. Urban, died. existing condition exclusion with respect to band. She said her husband had to Less than nine hours later, she gave birth to such a plan or coverage. leave his job for 1 year to complete an their first child, Cora Catherine. It is not long or complicated. It is internship requirement to complete his Because of that tragedy and maybe one sentence—one sentence that, at doctorate in psychology. ‘‘The intern- only because of that tragedy I met long last, provides the kind of protec- ship was unpaid and we could not af- Trisha Urban months after she wrote a tion insurance companies have refused ford COBRA.’’ She goes on to say that letter to me, and I met her daughter. to provide to adults and children, and because of preexisting conditions nei- They came down to hear the Presi- the protection for children goes into ef- ther her husband’s health issues nor dent’s speech to a joint session of Con- fect within a matter of months after her pregnancy—Trisha talked about gress. I held her daughter Cora. I prob- enactment. her pregnancy in the letter—‘‘nor my ably never would have met that beau- Let me make two more points, and pregnancy would be covered under pri- tiful child were it not for this tragedy, then I wish to talk about an individual vate insurance. I worked four part-time were it not for this story. and her family. The Children’s Health jobs and was not eligible for any health I am not sure what I would do if I Insurance Program, as I said, has been benefits. We ended up with a second- were in her case. I am not sure if I extended. But what happened in the rate insurance plan through my hus- would have remained so saddened by it earlier versions of the bill was the full band’s university. and so frustrated by what the insur- funding of it would cut off in 2013. In ‘‘When medical bills started to add ance companies did to her or didn’t do the bill, we now have added to that. So up, the health insurance company de- for her. Anyone would understand that, now the children’s health insurance cided to drop our coverage,’’ stating if she or I or anyone else who suffers funding will be extended 2 more years. that the internship didn’t qualify us that tragedy would look within them- So at least through the end of Sep- for benefits. It didn’t stop there for a selves and suffer alone with their fam- tember 2015, the Children’s Health In- second. So within the space of two sen- ily. Patricia Urban didn’t do that. She surance Program is fully funded. tences, she has highlighted at least didn’t just tell us about the problems We need to do more than that. We two, if not three, of the major problems she had with her insurance company; will have to get to that as we move for- we have heard so much about: the pre- she didn’t just tell us about the tragic ward, but we have extended it 2 more existing condition problem that I death of her husband; she did more years. pointed to in the bill and we have than that. She wrote to me.

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00071 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13866 CONGRESSIONAL RECORD — SENATE December 23, 2009 For those who say, well, we don’t The PRESIDING OFFICER. The that were ratified by the United States need to do anything about this health clerk will call the roll. Senate. insurance problem, I would ask them The bill clerk proceeded to call the Amazingly, notwithstanding these to listen to Trisha Urban. She said at roll. appalling deeds, the native people of the end of her letter: Mr. CASEY. Mr. President, I ask the United States have always been I am a working class American and do not unanimous consent that the order for and continue to be staunchly patriotic have the money or the insight to legally the quorum call be rescinded. and loyal to this country. They have fight the health insurance company. We had The PRESIDING OFFICER. Without volunteered to serve in the defense of no life insurance. I will probably lose my objection, it is so ordered. our Nation in every military action home, my car, and everything we worked so f and war in which we have been engaged hard to accumulate in our life will be gone in and on a per capita basis, more Native an instant. MORNING BUSINESS Americans have put themselves in But then she says this: Mr. CASEY. Mr. President, I ask harm’s way and given their lives to If my story is heard, if legislation can be unanimous consent that the Senate protect the United States than any changed to help other uninsured Americans proceed to a period of morning busi- other ethnic group of Americans. They in a similar situation, I am willing to pay ness, with Senators permitted to speak have made the greatest sacrifice, but the price of losing everything. I’m asking you to share my story with others in Con- for up to 10 minutes each. their contributions do not end there. gress and I’m willing to speak on behalf of The PRESIDING OFFICER. Without We know that the native people of my husband so that his death will not be in objection, it is so ordered. the United States have made signifi- vain. f cant contributions to our society in every walk of life, in every profession, So says Trisha Urban in this letter. NATIVE AMERICAN APOLOGY She challenged me with that letter, or in medicine and agriculture and as at least I took it as a kind of challenge Mr. INOUYE. Mr. President, I wish stewards of the lands and resources we I wanted to accept. I think she chal- today to discuss the Native American all hold dear. There have been great lenges all of us. If Trisha Urban, who apology resolution that was recently men and women who have led their na- lived through all of those problems passed as part of the fiscal year 2010 tive nations out of war, poverty, and with the health insurance company, de- Defense appropriations bill. despair. Throughout the generations, nied coverage because of preexisting I believe that it is well known to they have shown us the true meaning condition, dropped coverage, medical most Members of this body that the of courage in the face of the greatest bills going through the roof, and then original inhabitants of the lands that odds, and the quiet strength to per- the ultimate tragedy, the death of her now constitute the United States, the severe. This provision signifies a new day, husband, if she can endure all that and aboriginal, indigenous, native people of brings a message of hope, and provides still stand up and say, I am willing to America, occupied and exercised sov- ereignty over more than 550 million a foundation for the future. pay the price of losing everything I Mr. President, I would like to thank need, I am going to do that to try to acres of land prior to the first Euro- pean contact. Senator BROWNBACK for his leadership help pass a health care bill—if she can on this measure. do that, the least we can do is to do In the early days of our history, well what a lot of us have tried to do over before our Nation was formed, the na- f many months, which is to work on tive people fought alongside our sol- LEGISLATIVE WORK OF this, to debate it, and to fight hard to diers in the Revolutionary War. The In- COMMITTEE ON THE JUDICIARY dian tribes enabled the survival of Gen- pass it. So tomorrow morning in the Mr. LEAHY. Mr. President, this has eral George Washington and his troops early hours of the morning, when it been an extraordinary year in the his- might still be dark out, it is my hope during the harsh winter at Valley tory of the Senate Committee on the and prayer there will be a little light in Forge by providing food to the troops. Judiciary. Thanks to the members and that darkness in the early morning to- A few years later, as our Founding their work through 87 hearings and 33 morrow when we pass this bill, and we Fathers were engaged in the challenge business meetings this year we have can say that we did our best. of forming a new nation, they drew been productive. Here are some of the I know we are not done yet to get upon the democratic model of govern- legislative highlights: this bill out of the Senate. I know we ment that they learned from the Six We have considered and reported to are not done yet. We can at least say Nations of the Iroquois Confederacy. the Senate several important legisla- we did our best, that we tried as best There they found the well-institu- tive initiatives: We successfully consid- we could to be responsive to, to answer tionalized practice of the fundamental ered and reported to the Senate the the plea for help and the invocation of principles of freedom of speech and a Fraud Enforcement and Recovery Act hope that Trisha Urban has in her let- system of governmental checks and that President Obama signed into law ter. balances provided through the separa- in May. We reported the important I have remained ever inspired by her tion of governmental powers. Patent Reform Act, which can help our courage, by her willingness to speak In our early days as a nation, we en- economic recovery and lead to addi- up, and by her willingness to be a wit- tered into treaties with Native Ameri- tional American jobs. We reported sig- ness not just to what has been going cans pursuant to the provisions of the nificant cyber security legislation, in- wrong with our system and not just U.S. Constitution that recognize them cluding the Personal Data Privacy and giving testimony about her husband’s as sovereigns. But later, we abandoned Security Act. death but the way Trisha Urban has the path of an honorable course of deal- We also reported the Improving As- been a witness to the hope and the ings, and turned to war. Thousands lost sistance to Domestic Violence Victims promise of change that will come with their lives through these battles and Act; Public Corruption Prosecution Im- this bill. I know tomorrow morning horrific massacres. The native popu- provements Act; the Crime Victims isn’t the end of the road. But tomorrow lation everywhere was decimated. Fund Preservation Act; and the Per- morning is at least the beginning of Forced marches to relocate the na- formance Rights Act. We reported the the end of a lot of these tragedies and tive people from their traditional Railroad Antitrust Enforcement Act; a lot of these stories. homelands to areas west of the Mis- the PACT Act on cigarette smuggling; So on Trisha’s behalf as we say on be- sissippi in the dead of winter cost thou- and the Preserve Access to Affordable half of so many others, we need to get sands of more lives. Few Americans Generics Act, to end anticompetitive this legislation passed tomorrow morn- know that there was not one Trail of pay-for-delay schemes in the drug in- ing and to move forward in a positive Tears—but many. dustry. new direction in terms of what happens The treaties could have signaled a re- Mindful of the end of the year dead- to our health care system. turn to a course of honorable dealings lines, we worked hard to report with With that, Mr. President, I yield the with the native people had the United bipartisan support the USA PATRIOT floor. States not proceeded to break provi- Act Sunset Extension Act and the Sat- I suggest the absence of a quorum. sions in every single one of the treaties ellite Television Modernization Act.

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00072 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13867 We reported the Juvenile Justice and Bush’s tumultuous administration, be needed to confirm a nomination, and Delinquency Prevention Reauthoriza- with the Senate majority changing in that filibusters of nominations are un- tion Act just last week. And after the middle of the year and Democrats constitutional, have hypocritically re- many working sessions, we were finally then in the majority, we worked from versed themselves and now employ any able to report the historic Free Flow of July through December to confirm 28 delaying tactic they can. Information Act to establish a quali- judicial nominees. That was, of course, Judicial nominees have been and are fied privilege in Federal law for jour- the year of the September 11 attacks available for consideration. This lack nalists to protect their confidential and the anthrax attacks in the Senate, of Senate action is attributable to Sen- sources and the public’s right to know. but we continued our work. The Senate ate Republicans and no one else. The Through the course of the year Sen- proceeded to confirm 6 judicial nomi- President has reached across the aisle ators on this Committee contributed to nees by voice vote in December 2001, a to consult and has made quality nomi- enactment of the Lilly Ledbetter Fair total of 10 judicial nominees that nations. We have held the hearings, Pay Act, Matthew Shepard and James month, a total of 28 in the last 6 and the Senate Judiciary Committee Byrd, Jr. Hate Crimes Prevention Act, months of that year, and 100 in the 17 has favorably reported 12 judicial the Fraud Enforcement and Recovery months I served as chairman of the nominees to the Senate on which ac- Act, the OPEN FOIA Act, the Human Senate Judiciary Committee during tion has not been permitted. There are Rights Enforcement Act, the President Bush’s first term. now more judicial nominations stalled Webcasters Settlement Act, an exten- By contrast, thus far this month, on the Senate Executive Calendar—12— sion of the EB–5 program for three with 12 judicial nominees now avail- than the number that have been con- years, an end to the ‘‘widow penalty’’ able to the Senate for final consider- firmed all year. One has been ready for in immigration law, the Judicial Sur- ation, Senate Republicans have only Senate consideration for more than 13 vivors Protection Act, the Reserve Of- allowed a vote on Judge Jacqueline weeks, another more than 10 weeks, ficers Modernization Act, the charter Nguyen to the Central District of Cali- and the list goes on. Nor are these con- for the Military Officers Association of fornia. She was confirmed unanimously troversial nominees. Eight of the 12 America, as well as legislation to keep after been delayed 6 weeks. They have were reported from the Judiciary Com- the Patent Office on a financial foot- even refused to consider the nomina- mittee without a single dissenting ing, and legislation to clarify statutory tion of Beverly Martin of Georgia to vote. The majority leader and all time periods for litigation. We worked the Eleventh Circuit, despite strong Democratic Senators have been ready to include in the American Recovery support from her home state Senators, to proceed. The Republican Senate and Reinvestment Act provisions to both Republicans. Instead of acting of leadership is not. It has stalled and de- provide needed funding to state and her nomination, which has been await- layed and obstructed. local law enforcement and to protect ing final action since September 10, Unlike his predecessor, President privacy as we improve healthcare in- and that of Judge Greenaway of New Obama has reached out and across the formation technology. Jersey, who has been nominated to the aisle to work with Republican Senators Many of us worked for Senate pas- Third Circuit and was reported on Oc- in making his judicial nominations. sage of the District of Columbia House tober 1, they insist on delaying debate The nomination of Judge Hamilton, Voting Rights Act. on that nomination for at least a which the Republican leadership fili- Within the health insurance reform month. I hope we will be able to turn bustered, was supported by the most legislation being passed by the Senate to that nomination when the Senate senior Republican in the U.S. Senate, this week are provisions we worked on returns in late January. my respected friend from Indiana, Sen- to improve our anti-fraud efforts and The refusal by the Republican minor- ator LUGAR. Other examples are the to provide recourse for those harmed ity to enter into customary time agree- nominees to vacancies in Alabama sup- by health services. ments to consider non-controversial ported by Senators SESSIONS and SHEL- I thank the members of the Senate nominees has led us to fall well short BY, in South Dakota supported by Sen- Judiciary Committee for their con- of the confirmations achieved in the ator THUNE, and in Florida, supported tributions and cooperation. first years of other Presidents. On the by Senators MARTINEZ and LAMIEUX. f eve of the end of the session, the Sen- Still others are the President’s nomi- ate has confirmed little more than one- nation to the Eleventh Circuit from JUDICIAL AND EXECUTIVE third as many of President Obama’s Georgia, supported by Senators NOMINATIONS circuit and district court nominees as ISAKSON and CHAMBLISS, which the Sen- Mr. LEAHY. Mr. President, I have it confirmed of President George W. ate will not consider until the end of been calling on the Republican leader- Bush’s—28—or of President Clinton’s— January because of Republican objec- ship to end the delays and obstruction 27—in their first years. In fact, Presi- tion, and his nomination to the Sixth of judicial nominations and join with dent Obama is on pace to have the few- Circuit from Tennessee, supported by us to make progress in filling some of est judicial nominees confirmed by a Senator ALEXANDER. the many vacancies on Federal circuit President in his first year since Presi- Last week we held a confirmation and district courts. I have done so re- dent Eisenhower, who only made nine hearing for two more well-respected peatedly for most of the year, and sev- nominations in 1953. Of course, all nine and well-qualified nominees that were eral times over this last month. Re- were confirmed. The total this year the result of President Obama’s effort grettably, as we head into the winter stands to be the fewest confirmed in to reach out and consult with home recess and the end of the first session any President’s first year in more than state Senators from both sides of the of the 111th Congress, Republican ob- 50 years, and the fewest in any year aisle, Judge James Wynn and Judge Al- struction is setting a new low for the since the Republican majority con- bert Diaz. Judge Wynn and Judge Diaz Senate in our consideration of judicial firmed only 17 in the 1996 session, a have been nominated to fill two long- nominations. Presidential election year. standing vacancies on the U.S. Court of The Senate has been allowed to con- The unprecedented obstruction we Appeals for the Fourth Circuit. Both firm only one judicial nominee all have seen by Senate Republicans on are from North Carolina. Senator BURR month. It is now December 23. By this issue after issue—over 100 filibusters and Senator HAGAN worked with each date in President Bush’s first year in this year alone, by some calculations, other and with the White House on office, the Senate with a Democratic which have affected 70 percent of all these nominations. I thank them both majority confirmed 10 nominations Senate action—have ground Senate for their testimony before the com- just in December to reach a total of 28 consideration of judicial nominations mittee last week in strong support of confirmed Federal circuit and district to a crawl. Instead of time agreements these nominees. court nominees in the first session of and the will of the majority, the Sen- These nominations are just the most the 107th Congress. That is 10 times as ate is faced with filibusters, and anony- recent examples of this President many nominations as the Senate has mous and Republican leadership holds. reaching out to home State Senators considered and confirmed this month. Those who just a short time ago said from both parties to consult before During the first year of President that a majority vote is all that should making nominations. Just as I worked

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00073 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13868 CONGRESSIONAL RECORD — SENATE December 23, 2009 last year to end a decade-long impasse in office, we had reduced judicial va- dicial nominations pending on the Sen- on the Sixth Circuit with the confirma- cancies to as low as 34, even though it ate Executive Calendar. At the end of tions of Judge Helene White and Ray was a Presidential election year. When the first year of President Reagan’s Kethledge of Michigan, I will work to President Bush left office, we had re- first term—a year in which the Senate see that these nominations from North duced vacancies in 9 of the 13 circuits confirmed 41 of his Federal circuit and Carolina are considered fairly and con- since President Clinton left office. district court nominees—not a single firmed expeditiously. With the support As matters stand today, judicial va- judicial nomination was left on the of the senior Senator from North Caro- cancies have spiked and are being left Senate Executive Calendar. lina, a Republican, and the determined unfilled. We will start 2010 with the In stark contrast, there are now 12 efforts of Senator HAGAN, a Democrat, highest number of vacancies on article judicial nominees on the Senate Execu- North Carolina will finally have the III courts since 1994, when the vacan- tive Calendar, and unless there is a representation on the Fourth Circuit cies created by the last comprehensive burst of cooperation from Republicans, that it deserves. judgeship bill were still being filled. they will remain on the calendar Instead of praising the President for While it has been nearly 20 years since awaiting Senate consideration beyond consulting with Republican Senators, we enacted a Federal judgeship bill, ju- the end of this session and into next the Republican leadership has doubled dicial vacancies are nearing record lev- year. That is a significant change from back on what they demanded when a els, with 97 current vacancies and an- our history and tradition of confirming Republican was in the White House. No other 23 already announced. If we had judicial nominations that have been re- more do they talk about each nominee proceeded on the judgeship bill rec- ported favorably by the Senate Judici- being entitled to an up-or-down vote. ommended by the Judicial Conference ary Committee by the end of a session. That position is abandoned and forgot- to address the growing burden on our The record of obstruction of the Sen- ten. Instead, they now seek to fili- Federal judiciary, as we did in 1984 and ate Republicans is just as dis- appointing when we consider the execu- buster and delay judicial nominations. 1990, in order to provide the resources tive nominations that have been re- They have also walked back from their the courts need, current vacancies ported by the Judiciary Committee. position at the start of this Congress, would stand at 160 today. That is the There are currently an incredible 20 ex- when they threatened to filibuster true measure of how far behind we have ecutive nominations that have been re- nominees on which home state Sen- fallen. I know we can do better. Justice ported favorably by the Senate Judici- should not be delayed or denied to any ators were not consulted. We saw with ary Committee pending on the Senate American because of overburdened Judge Hamilton that they filibustered Executive Calendar, including nomina- a nominee supported by Senator courts and the lack of Federal judges. I, again, urge the Republican minor- tions for Assistant Attorneys General LUGAR. to run three of the 11 divisions at the When President Bush worked with ity to allow Senate action on the 12 ju- Department of Justice. Each of these Senators across the aisle, I praised him dicial nominees on the Senate Execu- nominations has been pending 4 and expedited consideration of his tive Calendar before the end of the ses- months or longer. An editorial in to- nominees. When President Obama sion. We have now wasted weeks hav- day’s Washington Post entitled ‘‘Nomi- ing to seek time agreements in order to reaches across the aisle, the Senate Re- nees in Limbo’’ and subtitled ‘‘The consider even nominations that were publican leadership delays and ob- Senate should do its job before taking reported by the Judiciary Committee structs his qualified nominees. It is a vacation’’ describes the Republican unanimously and confirmed unani- clear that the Republican leadership obstruction of the nomination of Dawn mously by the Senate when finally al- has returned to their practices in the Johnson to head the Office of Legal lowed to be considered. The 12 judicial 1990s, which resulted in more than dou- Counsel, which has been stalled on the nominees are Beverly Martin of Geor- bling circuit court vacancies, and led Senate Executive Calendar since gia, nominated to the Eleventh Circuit; to the pocket filibuster of more than 60 March, as ‘‘[p]erhaps the greatest of President Clinton’s nominees. The Joseph Greenaway of New Jersey, nom- nominations travesty.’’ The editorial crisis they created eventually led even inated to the Third Circuit; Edward concludes: ‘‘[T]he president should be to public criticism of their actions by Chen, nominated to the District Court given deference in choosing executive- Chief Justice Rehnquist during those for the Northern District of California; branch officials who share his views. years. Dolly Gee, nominated to the District Ms. Johnsen is highly qualified and The Republican obstruction and Court for the Central District of Cali- should be confirmed. At the very least, delay in considering well-qualified non- fornia; Richard Seeborg, nominated to senators should have the decency to controversial nominees comes at a tre- the District Court for the Northern give her an up-or-down vote.’’ mendous cost to the ability of our Fed- District of California, Barbara Keenan Senate Democrats treated President eral courts to provide justice for all of Virginia, nominated to the Fourth Bush’s first nominations for these Americans. We have seen a tremendous Circuit; Jane Stranch of Tennessee, same posts quite differently than Sen- spike in judicial vacancies. Although nominated to the Sixth Circuit; Thom- ate Republicans are now treating there have been nearly 110 judicial va- as Vanaskie of Pennsylvania, nomi- President Obama’s nominees. We cancies this year on our Federal circuit nated to the Third Circuit; Louis But- promptly reported the President’s and district courts around the country, ler, nominated to the District Court for nominees to head the Office of Legal only 10 vacancies have been filled. That the Western District of Wisconsin; Counsel, the Office of Legal Policy, and is wrong. The American people deserve Denny Chin of New York, nominated to the Tax Division, and they each re- better. the Second Circuit; Rosanna Malouf ceived Senate consideration in a mat- In only 5 months of President Bush’s Peterson, nominated to the District ter of days or weeks after they were re- first year in office when I served as Court for the Eastern District of Wash- ported by the committee. We still have Senate Judiciary Committee chairman ington; and William Conley, nominated heard no explanation for the five and with a Democratic Senate major- to the District Court for the Western months of Republican obstruction of ity, we confirmed 28 judicial nominees. District of Wisconsin. the nomination of Chris Schroeder to During 17 months of President Bush’s At the end of the Senate’s 2001 ses- head the Office of Legal Policy after first 2 years in office, we confirmed 100 sion, only four judicial nominations his nomination was reported by the of his judicial nominees. Although two were left on the Senate Executive Cal- committee in July by voice vote with- Republicans chaired the Senate Judici- endar, all of which were confirmed soon out dissent. The Washington Post edi- ary Committee and Senate Republicans after the Senate returned in 2002. At torial rightfully calls for Mr. Schroe- held the Senate majority for more than the end of the first session of Congress der’s confirmation as well as for the half of President Bush’s time in office, during President Clinton’s first term, confirmation of the long-pending nomi- more judges nominated by President just one judicial nominee was left on nation of Mary Smith to run the Tax Bush were confirmed by the Senate the Senate Executive Calendar. At the Division. Democratic majority and when I served end of the President George H.W. As with the judicial nominations, the as Senate Judiciary Committee chair- Bush’s first year in office, a Demo- Republicans have employed new stand- man. During President Bush’s last year cratic Senate majority left just two ju- ards of demanding a supermajority and

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00074 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13869 floor time and delays to consider even ugee Affairs in June 1990. The com- perpetrators of horrible acts after they nominations that could be confirmed mittee was not oblivious to the con- left their official positions and settled easily, grinding our progress to a halt. cerns raised at the time by the execu- in, or fled to, the United States. I hope that the Republican Senators tive branch regarding sovereign immu- For example, Congress carefully cre- and leadership will relent and end the nity. We were cognizant of the role of ated the cause of action against an ‘‘in- year by making progress on these im- the executive to manage foreign policy. dividual’’ to ensure that foreign states portant nominations to put us on a bet- We addressed each of these concerns in or their entities could not be sued ter path for the next session. turn, but we were not persuaded that under the act under any circumstances. Similarly, we discussed at length the f they outweighed the importance of creating a private cause of action under fact that the legislation would not per- THE TORTURE VICTIMS the TVPA. The full Congress agreed mit a suit against a former leader of a PROTECTION ACT when it enacted the TVPA in March country merely because an isolated act Mr. LEAHY. Mr. President, the U.S. 1992. of torture occurred somewhere in that Supreme Court recently granted certio- The TVPA was drafted, in part, in re- country. But Congress neither intended rari in a case involving the Torture sponse to gaps in two existing laws: the nor imagined that the FSIA would pro- Victim Protection Act of 1991, TVPA, a Alien Tort Claims Act and the Conven- vide former officials with a defense to law I supported from the earliest days tion Against Torture. In deciding a lawsuit brought under the TVPA. following its introduction by Senator whether the Alien Tort Claims Act Such an interpretation would under- SPECTER in the summer of 1986. Sen- could be used by victims of torture mine the purpose of the law. The TVPA ator SPECTER and I worked for years to committed abroad, one Federal judge was not intended to cover the tor- see this historic human rights bill be- expressed concern that separation of turous acts of private individuals. To come law in 1991. Yet today I am con- powers principles required an explicit the contrary, in order for a defendant cerned that the TVPA’s crucial role in grant by Congress of a private right of to be liable under the TVPA, the tor- protecting human rights may be weak- action for lawsuits that affect foreign ture must have been taken ‘‘under ac- ened or even rendered meaningless. The relations. The Alien Tort Claims Act tual or apparent authority or under the Supreme Court case, Samantar v. did not have such an explicit grant. color of law of a foreign nation.’’ The Yousuf, may decide the fate of this Congress responded by enacting the Judiciary Committee explicitly stated landmark law. TVPA with an unambiguous basis for a in its report on the bill that, ‘‘the The TVPA provides a Federal cause cause of action. FSIA should normally provide no de- of action against any individual who Similarly, the United States signa- fense to an action taken under the subjects any person to torture or ture on the Convention Against Tor- TVPA against a former official.’’ extrajudicial killing. This cause of ac- ture was an important and symbolic I hope that the Supreme Court stud- tion is available where the individual step in the prevention of torture, but ies this definitive and comprehensive acts under actual or apparent author- the Convention fell short of the TVPA history as it considers the case of Samantar v. Yousuf. Congress clearly ity, or under color of law of any foreign in at least two important respects. intended the TVPA to extend to former nation. Congress passed the TVPA in First, the Convention required that officials of foreign countries if they response to widespread use of official signatories open their courts to suits choose to come to the United States torture and summary executions that for damages caused by torture in their after leaving their positions of author- took place around the world, despite own countries. That policy was wel- ity. Congress also stated that the FSIA the universal consensus condemning come but insufficient. The TVPA al- does not extend immunity to such indi- such practices. Congress recognized lows torture victims to sue their viduals. Claims that a suit brought that neither Federal nor international abuser without returning to the coun- against a former official would under- law was strong enough to curb such try of abuse. Congress took this step mine the FSIA and endanger foreign egregious human rights abuses. We en- because it believed that governments relations are simply inaccurate. Con- acted the TVPA to ensure account- that had allowed torture to occur with- gress properly weighed the foreign pol- ability for those who commit atrocious in their jurisdiction would not nec- icy concerns when it passed the TVPA. violations of human rights. essarily provide meaningful redress to The Supreme Court should not overrule The case currently before the Su- victims. Furthermore, torture victims the well-considered judgment of Con- preme Court, Samantar v. Yousuf, who escaped from the country of abuse gress. raises the question of whether the For- would not eagerly return to that coun- eign Sovereign Immunities Act, FSIA, try to file suit. Congress designed the f allows an action filed under the TVPA TVPA specifically to respond to that DETERIORATING SITUATION IN to be brought against a former govern- situation by opening U.S. courts to NEPAL ment official of a foreign country who these cases and providing a civil cause Mr. LEAHY. Mr. President, over the is now living in the United States. The of action here in the United States for years, both during and since the end of answer is clear in the TVPA and its torture committed abroad. the monarchy in Nepal, I have urged legislative history. The answer is yes. Second, by creating a Federal cause the Nepal Army to respect human Congress expressly intended the TVPA of action in our own courts, Congress rights and cooperate with civilian judi- to apply against former government of- ensured that torturers would no longer cial authorities in investigations of its ficials. In enacting the TVPA, Congress have a safe haven in the United States. members who abuse human rights. I made it explicit that the FSIA would The legislation served notice to indi- spoke on this subject a few days ago in almost never provide a defense to such viduals engaged in human rights viola- relation to the horrific case of Maina persons. They can be sued under the tions that their actions were anathema Sunuwar, a 15-year-old Nepali girl who TVPA to recoup damages caused by to American values and they would not was tortured to death by Nepal Army their torturous actions. find shelter from accountability here. officers who then sought to cover up The Senate clearly stated its inten- Congress explicitly drafted the TVPA the crime. tion to ensure that the TVPA operated to strengthen and expand the scope of I have also, similarly, urged the in concert with existing law, specifi- action that victims of torture could Maoists to stop committing acts of vio- cally taking into account the FSIA, take in our courts, but Congress was lence and extortion against civilians, the Alien Tort Claims Act, and the nonetheless conscious of the bill’s lim- respect human rights, and work to im- United Nations Convention Against its. The TVPA was not meant to over- prove the lives of the Nepali people Torture, which the United States ride traditional diplomatic immunities through the political process. The fact signed in 1988. This point was discussed or the FSIA’s grant of immunity to that the Maoists laid down their arms extensively as we drafted and refined foreign governments. The act struck a and entered into a peace agreement the legislation. The operation of the balance. It protected well established gave the Nepali people the first chance TVPA was considered in a hearing held notions of sovereign and diplomatic in Nepal’s history to build a demo- by the Judiciary Committee’s Sub- immunities for current political actors cratic government that is responsive to committee on Immigration and Ref- without creating a safe haven for the their needs.

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00075 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13870 CONGRESSIONAL RECORD — SENATE December 23, 2009 It is therefore disheartening that the may again take matters into their own Government, which insists that the Maoists continue to engage in tactics hands. Hmong are economic migrants who that serve little purpose but to make In the meantime, the periodic eco- should be repatriated, has reportedly the lives of the Nepali people, already nomic shutdowns and acts of violence deployed additional troops to difficult, even harder. They have just and intimidation perpetrated by the Phetchabun province where most of the staged their latest general strike, Young Communist League, cause one Hmong are in camps. There is a grow- which for the past 3 days crippled Ne- to question whether the Maoist leaders ing concern that the Thai military pal’s economy. understand or accept the responsibil- may expel the Hmong before the end of For 3 days, Nepal, already a poor ities that are inherent in a democracy. the year. There is also concern that a country, neither imported nor exported Rather than orchestrating acts of col- group of 158 Hmong in Nongkhai prov- goods through its land entry points, lective punishment to try to force a re- ince, who have been screened and causing a significant loss of revenue. sult, the Maoists need to earn the granted United Nations refugee status, Tourism, one of Nepal’s most impor- public’s trust and respect. There is also could be sent back to Laos. I under- tant sources of income for hotels, the responsibility to exercise power in stand that the United States and sev- shops, transport, restaurants, and a manner that strengthens, not erodes, eral countries have told the U.N. High guide services, has been damaged. The popular support. So far, the Maoists Commissioner for Refugees and the garment industry, also among Nepal’s have failed to demonstrate a capacity Thai Government they are prepared to largest, was brought to a halt. And for either. consider this group of refugees for re- there is the risk that foreign compa- The Communist Party of Nepal— settlement. Potential resettlement nies will decide that Nepal is still too Maoist—today remains a designated countries should be given an oppor- unstable, and look elsewhere to invest. foreign terrorist organization under tunity to interview these individuals in What possible good does this kind of U.S. law. I am among those who would Thailand. It may be that some of the 4,000 protest do? It angers and hurts the like to see that designation lifted, as I Hmong are economic migrants. It is very people whose interests the believe the U.S. could, through tech- also likely that some are refugees who Maoists claim to serve. In fact, it hurts nical assistance and exchange pro- have a credible fear of persecution if poor people the most, because they and grams, help the Maoist leaders to bet- they were returned to Laos. I am aware their children do not have savings, and ter understand the benefits of working that many Hmong fought alongside the go hungry. And it can hardly make constructively within the democratic U.S. military during the Vietnam war. other political parties more likely to process on behalf of the Nepali people. The U.N. High Commissioner for Refu- accede to the Maoists’ demands. But the fact remains that having en- The latest news is that the Maoist gees, working with Thai authorities, gaged in acts that got them onto the needs to determine who has a legiti- leaders have threatened an indefinite list in the first place, they need to national strike unless the government mate claim for asylum and who does demonstrate that they have abandoned not, in accordance with long-standing puts in place within a month a unity those tactics and are accountable to principles of refugee law and practice. government headed by the Maoists. the people. Organizing harmful strikes No one with a valid claim should be re- This kind of ultimatum, which has no that serve no logical or legitimate pur- turned to Laos except on a voluntary place in a democracy, would be dis- pose, encouraging acts of violence, re- basis. The United States, and other turbing enough if it were not for the fusing to punish its own members who countries, can help resettle those who fact that the Maoists headed a coali- committed atrocities, and making do have valid claims but need access tion government last year after win- threats, are not consistent with a re- and the opportunity to consider rel- ning national elections, only to leave sponsible political organization. evant cases. the government in May when it failed Mr. President, poverty and injustice I mention this because I cannot over- to replace the then army chief of staff. have been a fact of life in Nepal for state the consternation it would cause I also felt that Nepal needed a new centuries. Three and a half years ago here if the Thai Government were to army chief who was not tainted by past the Nepali people rose up against a cor- forcibly return the Hmong to Laos in abuses, but for the Maoists to quit the rupt, abusive monarchy and demanded violation of international practice and government and then accuse the Presi- something better. They are still wait- requirements. The image of Laotian dent of forcing them to do so when ing, but they will not wait forever. refugees including many who the their demands were not met, was irre- Like Nepal’s other political parties, United Nations and the Thai Govern- sponsible. Today, in fact, Nepal has a the Maoists will be judged by what ment itself have stated are in need of new army chief. Time will tell if he is they deliver. protection being rounded up by Thai the right person for the job. f soldiers and sent back against their As an observer of developments in FATE OF HMONG REFUGEES will during the Christmas season, and Nepal, I have been encouraged by the the possible violence that could result, positive steps the country has taken Mr. LEAHY. Mr. President, I want to is very worrisome. On December 17 I since the events that led to the end of speak briefly about a worrisome hu- joined other Senators in a letter to the the monarchy. But the desires that led manitarian situation that is developing Thai Prime Minister about this, and I to that courageous demonstration of in Thailand, which could cause prob- will ask that a copy be printed in the popular will remain unfulfilled. The in- lems for our relations with the Thai RECORD at the end of my remarks. stitutions of democracy are barely military. As chairman of the Department of functioning and the political situation Thailand and the United States are State, Foreign Operations, and Related continues to deteriorate. Only 5 longtime friends and allies, and our Programs Subcommittee of the Appro- months remain until the deadline for Armed Forces have developed a cooper- priations Committee which funds inter- drafting a new constitution, and grow- ative relationship. Many Thai military national assistance programs, I have ing distrust between the political par- officers have been trained in the United supported U.S. military training pro- ties threatens to derail the peace proc- States, and Thai soldiers have partici- grams and other assistance to the Thai ess. Indeed, the political parties have pated in joint U.S.-Thai training exer- military. We share common interests often seemed more concerned with pro- cises such as Operation Cobra Gold. I and want to continue to work together. moting their own interests than with expect this relationship to continue. But after the deplorable forced repatri- addressing the needs of the Nepali peo- But I am very concerned, as I know are ation to China of Uighur refugees by ple. The army has yet to reform. Thou- other Senators, that the Thai Govern- Cambodian authorities last week, we sands of Maoist ex-combatants need to ment may be on the verge of deporting expect better of the Thai Government. be demobilized and trained for jobs in roughly 4,000 ethnic Hmong back to Should the Hmong be treated similarly the civilian workplace. Unless the po- Laos where many fear persecution. it could badly damage the Thai mili- litical parties take decisive steps to Thailand has a long history of gen- tary’s reputation, and put our military work together to address these issues, erosity towards refugees from Burma, collaboration at risk. the situation will go from bad to worse, Laos, Cambodia and Vietnam. It is a Mr. President, I ask unanimous con- and at some point the Nepali people history to be proud of. But the Thai sent to have printed in the RECORD the

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00076 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13871 December 17, 2009 letter to which I re- forward to working with your government to conclude that progress toward a na- ferred. strengthen this important relationship. tional consensus on sensible gun legis- Sincerely, lation is a long way off. This percep- There being no objection, the mate- Russell D. Feingold, United States Sen- rial was ordered to be printed in the ator; Barbara Boxer, United States tion, however, is just that: merely a RECORD, as follows: Senator; Sheldon Whitehouse, United perception. In reality, Americans of all U.S. SENATE, States Senator; Richard G. Lugar, political stripes share much common Washington, DC, December 17, 2009. United States Senator; Patrick J. ground when it comes to issues of gun Mr. ABHISIT VEJJAJIVA, Leahy, United States Senator; Lisa safety, and I am hopeful that this con- Prime Minister, Kingdom of Thailand, Wis- Murkowski, United States Senator; sensus will produce tangible legislative consin Ave, N.W., Washington, DC. Amy Klobuchar, United States Sen- results. DEAR MR. PRIME MINISTER, We are writing ator; Mark Begich, United States Sen- to express our concern regarding reports of a ator; Al Franken, United States Sen- In a recent poll conducted by well- possible repatriation to Laos of Lao Ilmong ator. known pollster Frank Luntz, NRA from the Huay Nam Khao camp and Nong f members and non-NRA gun owners ex- Khai detention center in Thailand. While we pressed strong support for a number of recognize that the Kingdom of Thailand is TRIBUTE TO LEWIS K. BILLINGS proposed gun safety laws. These gun- burdened by the large number of refugees it Mr. HATCH. Mr. President, today I owning Americans did not see a con- hosts on its territory, we encourage you to express my deep appreciation to a not take steps to repatriate any individuals tradiction between supporting legisla- great Utahn and friend, Provo City to Laos at this time. Thailand is a strong tive efforts to reduce gun violence and ally of the U.S., and the cooperation between Mayor Lewis K. Billings, whose tenure as mayor will soon come to an end. It their right to bear arms. Specifically, our governments, including a history of 85 percent of non-NRA gun owners and working together on Laotian and Burmese has been my distinct pleasure to work refugee issues, is greatly valued. with Mayor Billings over the past 12 69 percent of NRA gun owners sup- We understand that your government has years. ported closing the ‘‘gun show loophole’’ conducted screenings in the Phetchabun Nestled at the base of the Rocky by requiring all gun sellers at gun camp in fluay Nam Khao to identify and sep- Mountains, Provo was founded by rug- shows to conduct a Brady criminal arate refugees meriting protection from ged pioneers in 1849 and is one of the background check on prospective pur- those migrating for primarily economic rea- oldest cities in the West. Today, Provo chasers. In addition, 86 percent of non- sons. We remain concerned, however, regard- NRA gun owners and 82 percent of NRA ing the lack of transparency in this screen- is one of largest cities in the State of ing process, and the absence of a civilian en- Utah. Mayor Billings and his beautiful members favored a proposal to prevent tity to lead it. In July of this year, a group wife Patti are longtime residents of individuals listed on a terrorist watch of Senators sent a letter to General Provo and raised eight wonderful chil- list from purchasing firearms. Seventy- Songkitti Jaggabatara requesting more in- dren there. four percent of non-NRA gun owners formation about the criteria and methods Mayor Billings was elected Provo and 69 percent of NRA members also used in screening Laotian Hmong in the City Mayor in November 1997, after agreed with this statement: ‘‘the fed- Phetchabun camp, but a response to this in- completing 3 years as chief administra- quiry has not yet been received. eral government should not restrict tive officer and director of community the police’s ability to access, use, and We acknowledge the difficulty that this and government relations for the city issue has posed for both your country as well share data that helps them enforce fed- as the inhabitants of the camps. However, we of Provo. He and I share many of the eral, state, and local gun laws.’’ same conservative values and prin- believe that the lack of transparency in the At first glance, these polling num- ciples and his service as mayor is a screening and repatriation process only exac- bers may not seem very surprising. erbates these difficulties and heightens strong reflection of his dedication to international concern regarding these popu- those ideals. Mayor Billings will long After all, these gun safety proposals lations. A process that adheres to the core be remembered for focusing on effec- are founded on common sense and are tenets of the refugee convention, and is con- tive public safety and law enforcement, crafted to keep firearms out of the ducted by an independent third party organi- fiscal responsibility, economic develop- hands of criminals and terrorists. Un- zation, could resolve much of this concern by ment and job creation, neighborhood fortunately though, the NRA leader- helping to ensure that the Lao Hmong are ship continues to oppose three Federal able to provide a full and accurate account and downtown revitalization, the arts, that can serve as the basis for an appropriate emergency readiness, and a host of gun safety bills that, according to the status determination. other local, regional, and national pub- recent poll, their own members sup- Before repatriating any individuals to lic policy issues. During his tenure, port: the Gun Show Background Check Laos, we strongly urge your government to Provo City has consistently received Act, S. 843, which would close the ‘‘gun work with an independent third-party orga- national recognition for low crime show loophole;’’ the Denying Firearms nization to conduct a transparent screening rates, high quality of life, and positive and Explosives to Dangerous Terrorists process consistent with international stand- business development. Act, S. 1317, which would prevent indi- ards. Once such a process is in place. we hope that any Hmong determined to have refugee Mayor Billings has accomplished a viduals listed on terrorist watch lists status will be provided opportunities for great deal during his tenure as Mayor from purchasing a gun; and the Pre- third country resettlement. This includes of Provo. His dedicated public service serving Records of Terrorist and Crimi- the individuals at the Nong Khai center, who and determination to shape Provo into nal Transactions Act, S. 2820, which have already been screened by the United the wonderful city it is today will be would improve the ability of law en- Nations High Commissioner for Refugees. remembered for years to come. I ask forcement agencies to prevent gun vio- For those who are not judged to require pro- my colleagues to join me and the citi- lence by increasing the amount of time tection, we encourage you to work with zens of the great State of Utah in international organizations and the govern- gun background check records are ments of the U.S. and Laos to establish a re- thanking Mayor Billings for his many kept. years of dedicated service. We all ap- patriation process that includes effective I support these sensible gun safety third party monitoring. preciate his efforts and service, but measures, and as the polling indicates, We also understand that Assistant Sec- none so more than me. so do a majority of American gun own- retary of State Eric Schwartz will be visiting f Thailand in the very near future. We hope ers, including NRA members. The NRA that the U.S. and Thailand can work closely GUN OWNERS SUPPORT GUN is not only out of touch with main- to find a solution that alleviates the burden SAFETY LAWS stream America, they also are out of of this situation on Thailand, as well as the Mr. LEVIN. Mr. President, the debate touch with their own members. It is concerns about the repatriation of those in surrounding gun legislation is often an time to set aside the false claims that need of protection, and we would be happy to too often cloud the debate surrounding consult with you on this process. acrimonious one, creating the percep- gun safety. There is an overwhelming We appreciate your efforts to ensure a tion that Americans are hopelessly di- transparent process and just resolution to vided on this policy issue. After listen- consensus in America: the time to pass this issue. The Kingdom of Thailand remains ing to the positions of the National commonsense gun safety legislation is a close ally of the United States and we look Rifle Association, NRA, a person could now.

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00077 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13872 CONGRESSIONAL RECORD — SENATE December 23, 2009 SMALL BUSINESS LENDING could provide to small businesses, up this legislation immediately when ENHANCEMENT ACT OF 2009 while also encouraging more credit we come back from recess. Mr. UDALL of Colorado. Mr. Presi- unions to enter the business loan mar- As part of this effort, I urge my col- dent, as our Nation begins its economic ket. Under current law, many credit leagues to extend tax provisions, some recovery, our unemployment numbers unions find it difficult to start member of which are set to expire this year, still remain far too high. Too many business lending programs because the that were enacted by Congress to aid Americans are unable to find work, cost of meeting high regulatory and the recovery of the gulf coast after the which only slows the pace of our emer- staffing requirements is too expensive 2005 hurricane season. Hurricane gence from recession. As part of my relative to the cap. Raising the mem- Katrina devastated the gulf coast and continuing effort to support tailored, ber business lending cap would make it recovery efforts to date have been de- fiscally responsible methods to getting easier for credit unions to recover layed because of a continuing shortage our economy back on track, I am proud costs, and therefore would increase the of skilled construction workers, lim- to discuss a bipartisan bill that I intro- number of credit unions able to start ited financing, and sustained increases duced this week with several of my small business loan programs. in construction and insurance costs. Senate colleagues from both sides of The Credit Union National Associa- These challenges have been com- the aisle. tion estimates that these sensible re- pounded by the current economic cri- The bill is the Small Business Lend- forms would increase small business sis. ing Enhancement Act of 2009, which is lending by $10 billion within the first By extending a number of the tax cosponsored by Senator SCHUMER, Sen- year of their enactment, including an provisions that were enacted as part of ator LIEBERMAN, Senator SNOWE, Sen- increase of nearly $200 million in my the Gulf Opportunity Zone legislation ator BOXER, Senator COLLINS, and Sen- home State of Colorado. This new ac- that Congress passed in 2005, a number ator GILLIBRAND. If enacted, this legis- cess to credit would likely produce of important projects, including low- lation would immediately allow in- more than 100,000 new jobs nationwide income housing projects, will have ade- creased lending for small businesses to within the first year of the bill’s enact- quate time to overcome development the tune of billions of dollars. It would ment. That is the sort of pro-business, challenges, and create more opportuni- do so in a safe and fiscally responsible pro-jobs policy that we need. ties for displaced residents looking to way, without calling on the Federal Mr. President, these simple statutory return after the 2005 storms. This will Government to spend a dime. And best changes would not increase Federal result in more jobs and a faster recov- of all, it could lead to large-scale job outlays one cent, but they would dra- ery for the gulf coast. If Congress fails creation in my home State of Colorado matically increase the amount of pri- to act to extend the tax provisions of and around the country. For these rea- vate capital available to small busi- the GO Zone legislation, including the sons, I hope that our Senate colleagues nesses to help make payroll, buy inven- placed-in-service provision of the GO join us in urging swift passage of this tory, and expand and innovate. More- Zone low-income housing tax credit, at common-sense legislation. over, these proposed statutory changes least 77 low-income housing projects in Small businesses are the engine of are safe and fully supported by the Na- the Gulf Coast are at risk of not being our Nation’s economy. In the last 15 tional Credit Union Administration, completed. Mr. President, I ask unanimous con- years, small businesses have generated the independent Federal regulator with sent that a letter I wrote requesting an nearly two-thirds of all new jobs cre- oversight of our Nation’s credit unions. extension of the placed-in-service pro- ated in the United States, and they To further ensure the safety and sound- vision of the GO Zone low-income hous- currently employ more than half of the ness of credit unions, this bill requires ing tax credit be included in any tax American workforce. the NCUA to submit a semiannual re- extenders legislation be printed in the However, small businesses continue port to Congress on the status of credit to struggle accessing credit, as large RECORD. union member business lending, includ- There being no objection, the mate- banks have significantly cut back on ing any recommendations for legisla- rial was ordered to be printed in the Main Street lending. According to a re- tive changes. In sum, this is a respon- RECORD, as follows: cent Treasury Department report, the sibly drafted bill that could help spur U.S. SENATE, 22 banks that have received the most much-needed economic growth and job Washington, DC, December 9, 2009. funding through the Troubled Asset production. Hon. MAX BAUCUS, Relief Program, TARP, cut their col- Mr. President, we have to do all we Chair, Senate Committee on Finance, Wash- lective small business loan balances by can to responsibly unlock credit mar- ington, DC. $11.6 billion from April through Octo- kets for small businesses in Colorado Hon. CHARLES GRASSLEY, ber of this year. and throughout the country. I believe Ranking Member, Senate Committee on Fi- America’s community banks, which nance, Washington, DC. this legislation is an important piece DEAR CHAIRMAN BAUCUS AND RANKING MEM- by-and-large did not receive Federal of that effort. I look forward to work- BER GRASSLEY: We write to request your sup- bailout funds, are doing all they can to ing with my colleagues on both sides of port for extending the placed-in-service date fill the Main Street credit vacuum cre- the aisle to quickly pass the Small for affordable housing developments in the ated by these large financial institu- Business Lending Enhancement Act, Gulf Opportunity Zone. tions. While this legislation I have au- and allow our nation’s small businesses As you know, GO Zone low income housing thored is aimed at helping credit tax credits have been vital in our effort to to again set our country on a path to- restoring the number of affordable housing unions ramp up their small business ward job growth and further pros- units along the Gulf Coast. Tough economic lending, I have also joined with many perity. conditions, however, have prevented many of of my colleagues this year in support of f these projects from moving forward at the a number of initiatives that will help pace necessary to meet the placed-in-service community banks increase lending to TAX EXTENDERS deadline of January 1, 2011. small businesses. Ms. LANDRIEU. Mr. President, as Together this bipartisan group of Gulf The Small Business Lending En- the Senate moves forward toward end- Coast senators has been working to extend hancement Act will further these ef- ing the debate on health care reform this deadline for two years, to allow 77 low income housing projects in Louisiana, Mis- forts to free up credit for small busi- and recessing until the New Year, we sissippi, and Alabama to move forward and ness. Under current statute, credit leave some important legislation un- creating more than 13,000 construction-re- unions are required to limit member finished, including legislation that lated jobs. This legislation would not allo- business lending to 12.25 percent of the would extend a number of tax provi- cate any new credits—it would merely pro- credit union’s total assets. This bill sions that are set to expire on Decem- vide additional time to take full advantage would raise that cap to 25 percent of ber 31 of this year. The House has al- of the credits that were issued in the after- total assets, and increase the minimum ready acted to extend a number of math of the 2005 hurricanes. Extending the place-in-service deadline is business loans subject to the cap from these expiring tax provisions, and I critical to improving the availability of af- $50,000 to $250,000. These provisions urge my colleagues on the Senate Fi- fordable housing along the Gulf Coast. would increase the amount that credit nance Committee to work with Senator FEMA estimates that the 2005 storms de- unions already offering business loans BAUCUS and Senator GRASSLEY to take stroyed or heavily damaged 82,000 rental

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00078 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13873 units, of which 54,000 served low-income pop- So today, as always, I wish you all a warfare, foreign internal defense, di- ulations. During his August 27 visit to New safe return, and a very Merry Christ- rect action, counterterrorism, and Orleans, HUD Secretary Shaun Donovan em- mas. counterinsurgency. phasized the need to revitalize this housing The principle units that make up to- and highlighted the importance of a placed- f day’s USASOC include the John F. in-service extension. AMERICAN HIKERS DETAINED BY With an extension, developers will be able Kennedy Special Warfare Center and to attract investors to their proposed devel- IRAN School, U.S. Army Special Forces Com- opments, have adequate time to overcome fi- Mrs. BOXER. Mr. President, I rise mand, 75th Ranger Regiment, 160th nancial barriers triggered by the current today to renew my appeal to the Gov- Special Operations Aviation Regiment, economic crisis, and create more opportuni- ernment of Iran to immediately release 3rd and 7th Special Forces Group, 4th ties for residents displaced by the 2005 hurri- Psychological Operations Group, 95th canes to return home. Without an extension, the three American hikers—Shane more than 6,000 units are unlikely to be com- Bauer, Sarah Shourd, and Josh Civil Affairs Brigade and the 528th pleted. The loss of more than $1 billion in Fattal—who were detained by Iranian Sustainment Brigade. economic activity—to the construction in- authorities in July. Since its inception on December 1, dustry, suppliers, professionals, developers According to available information, 1989, the pace of USASOC’s operations and others—would be a major blow to our the three young adults, who are all has been extraordinary; operating states and the region. graduates of the University of Cali- around the world, often behind-the- Your initiative in helping the Gulf Coast lines, in some of the most remote and to recover has been invaluable. It is our hope fornia, Berkeley, inadvertently crossed that the Senate Finance Committee will an unmarked border into Iran while hostile regions on the planet. continue this leadership by including a hiking in the Kurdistan region of At more than 27,000 personnel, placed-in-service extension in a tax extend- northern Iraq. USASOC is only 5 percent of the U.S. ers bill or other legislation this year. We ap- Shane, Sarah and Josh have now Army. However, USASOC is the largest preciate your consideration of this request. been held in semi-isolation for over 140 of the service components that make Sincerely, days without charge, access to legal up U.S. Special Operations Command, MARY L. LANDRIEU, USSOCOM, and provides approximately United States Senator. representation, or information on the current status of their case and future 70 percent of the special operations per- DAVID B. VITTER, sonnel in Central Command’s theater United States Senator. proceedings. This is deeply troubling and approximately 63 percent of Amer- ROGER F. WICKER, and incredibly difficult for their fami- United States Senator. lies. ica’s total overseas military commit- THAD COCHRAN, I recently spoke to the Iranian Am- ments. USASOC provides trained and United States Senator. bassador to the United Nations on be- ready Army special operations forces f half of the hikers to reiterate my call to support the Geographic Combatant Commanders, GCC, the Theater Special CHRISTMAS OVERSEAS for their release. I also asked that they be able to call their families and con- Operations Commands, TSOC, and Am- Mr. JOHANNS. Mr. President, I rise tinue to be visited by Swiss consular bassadors throughout the world. today to speak about those Nebraskans Today the operations tempo for officials. who will be overseas, in harm’s way, Army Special Operations has never During this holiday season, Ameri- this Christmas. been greater, and is unlikely to de- cans from all walks of life are cele- The job our young men and women in crease in the near future. USASOC cur- brating and renewing ties of family, uniform do to protect our safety every rently has soldiers deployed on 103 Mis- friendship, and good will. day is magnificent. I have met with sions in 56 countries around the world, The extended absence of these young many of these young service men and and is operating across the spectrum of Americans from their families is par- women throughout my years of public operations. service, and I know they represent the ticularly painful during such a festive Currently 222 of the Army’s 228 Con- very best of America. During my time time. As such, I call upon the Iranian tinental United States-based Special as Governor, it was truly an honor to authorities to immediately release Forces operational detachments ‘‘A’’— command Nebraska’s National Guard Shane, Sarah and Josh so that their ODA—are committed to supporting op- forces. They serve our country with families can welcome them home. erations worldwide, either deployed or immense valor, at the risk of their own f preparing for deployment. USASOC’s lives. To them, we are all deeply grate- 20TH ANNIVERSARY OF THE U.S. ability to manage the high operations ful. ARMY SPECIAL OPERATIONS tempo is directly attributable to the Christmas in wartime has always COMMAND caliber of its personnel. The range of been a difficult time for troops and skills within USASOC is embraced by a their families. The contrast is very Mrs. HAGAN. Mr. Presdient, this spectrum of Army unconventional great between Americans at home cele- month, the U.S. Army Special Oper- units. brating holiday cheer, and those on the ations Command, USASOC, celebrates I would like to take this opportunity front lines going about their regular 20 years of service to the Army and Na- to highlight the great contributions of day of danger. It is a contrast that we tion. Having been at war for over one- USASOC units currently in theater, should be mindful of this season. I, and third of that time, the men and women particularly the 3rd and 7th Special many of my fellow Nebraskans, will of USASOC continue to make great Forces Groups in Afghanistan, the 95th pause tomorrow to give thanks for the contributions worldwide with an oper- Civil Affairs Brigade and the 4th Psy- sacrifice of our troops, and pray that ations tempo that has never been chological Operations Group in Iraq they get home safely. Their mission is greater. USASOC remains committed and Afghanistan. just, and they are the most capable to maintaining the world’s finest President Obama has stated in his military in the world. Their presence is ground special operations force. Its agenda for defense, ‘‘We must build up missed at this time more than any personnel take quiet professional pride our special operations forces, civil af- other but our pride, in them and their in executing each mission with excel- fairs, information operations and other friends, is even greater than our sorrow lence, honor and valor. units and capabilities.’’ The demand at their absence. I am proud that USASOC’s head- for special operations personnel, skills So to those Nebraskans who are in quarters are in North Carolina. and training remain high. Faced with harm’s way this Christmas, and to all USASOC Commander LTG John often desperate, unconventional en- American forces, those who serve Mulholland has done a tremendous job emies, our approaches for defeating abroad to protect us here at home, I in training, organizing, and equipping them involve unwavering commitment truly thank you. I hope it will be, in Army Special Forces units, capable of combined with unique unconventional some small measure, a comfort on conducting global Special Operations skills. Christmas, to know that so many of missions. Army Special Forces units USASOC’s expertise ensures the your friends, family, and fellow Ameri- perform a variety of missions, includ- Army’s special operations forces can cans are safe and secure due to your ing special reconnaissance, psycho- execute the most lethal, highly com- service, and praying for you. logical, civil affairs, unconventional plex and sensitive special operations,

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00079 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13874 CONGRESSIONAL RECORD — SENATE December 23, 2009 wage unconventional warfare, conduct major events in our State, such as the 5,000 riders and over $1 million in lodg- high risk helicopter operations, or Damascus missile explosion, the Cuban ing and food sales. And in Iowa, the prosecute civil military and influence refugee crisis and the great Arkansas week-long Register’s Annual Great Bi- operations. Texas shootout football game of 1969. cycle Ride Across Iowa has become so For those in today’s USASOC, the Following his departure from tele- popular that last year, they had to pace is fast, the challenges great, but vision, I was privileged to have Jim turn people away after more than 9,000 morale and job satisfaction have sel- join my staff in the Arkansas attorney applied to cycle across the State. dom been greater. The command’s general’s office in 2001 serving as the It is often through outdoor events motto, ‘‘Without Equal’’, captures the public information officer. like bike races that you will find a CEO spirit of its personnel and their com- After so many years of faithful serv- or company leader visiting Central Or- mitment to maintaining the world’s ice to the people of Arkansas, Jim egon on a vacation and having the finest ground special operations force. Pitcock has made a decision to retire brainstorm that it would make a great The command’s missions, however, from the Senate and his presence will place to locate a new enterprise. Many have not come without a sizable cost in be missed. He will continue to be a high-tech companies, for example, are lives lost. In the 8 years since the start friend and adviser to me and I wish him locating in places with unique, scenic of Operation Enduring Freedom and all the best of luck as he begins this beauty to set them apart from their Operation Iraqi Freedom, 244 of new chapter in his life. competition in the big cities and to USASOC’s personnel have made the ul- Mr. President, I ask my colleagues to give them an added bonus to attract timate sacrifice. Their names are cast join me in celebrating the outstanding the talent they need to succeed. in bronze on a wall in USASOC’s Me- career and service of Jim Pitcock to I thought there must be a way to tap morial Plaza at Fort Bragg, NC. the U.S. Senate and the State of Ar- the full recreation potential of central In closing, the performance and con- kansas. Oregon and create a model that could be replicated in other parts of the tributions of Army Special Operations f Forces in the Central Command the- country. So, 2 years ago I asked recre- ater of operations and around the THREE SISTERS SCENIC BIKEWAY ation leaders in Deschutes County to world have been nothing short of mag- Mr. WYDEN. Mr. President, too look at how recreation could add value nificent. Whether in Iraq and Afghani- many of our communities are hem- to its recreation assets, creating the stan, the Philippines, Trans-Sahara Af- orrhaging jobs. That is especially true strongest possible engine for economic rica or wherever friends and partners in rural areas, where industries have development. Since then, the Sisters area has de- find themselves challenged by the suffered and companies have had to let cided that much of its economy is tied forces of disintegration, oppression and lots of people go. In Oregon, for exam- to broadening the set of recreation ex- extremism, Army Special Operators ple, changes in forest policy have hit periences they can offer to visitors. from across the Command’s formations rural communities particularly hard in recent years. I am constantly working They have developed many miles of are unquestionably among America’s new, spectacular mountain bike trails most relevant answer to the threats to find solutions that will help those communities not just survive but in the cascade foothills of Peterson our Nation faces. Ridge as part of that effort. They see f thrive. It is indisputable that many rural the development of a better cycling TRIBUTE TO JIM PITCOCK communities and small towns in Or- route to Bend as a vital addition to the Mr. PRYOR. Mr. President, today I egon contain some of the most beau- menu of recreation opportunities in the rise to honor the career of Jim tiful scenery in America. When I look area. Community and business leaders Pitcock, a valuable staff member and at their future, I see that the scenic from across Deschutes County have more importantly a valuable part of beauty and solitude of beautiful places worked for the past two years on ideas the Arkansas community. Jim has like Sisters, OR, which sits in the shad- like those developed in Sisters. They been faithful and selfless in his service ow of the Cascade Mountains, can be a came together recently to formally to the State of Arkansas, and his con- big engine to drive the economy. In- launch an effort to create the Three tributions will be sorely missed by me, vestments in amenities like parks and Sisters Scenic Bikeway—a scenic bike my staff, and the many Arkansans who scenic bikeways can be valuable for route connecting each of the cities in have had the great fortune of working communities because they aren’t fleet- that county, via cycling-friendly with this wonderful public servant. ing. They build infrastructure that routes that take you past spectacular Jim has served on my staff from the lasts for generations. The beauty of na- scenery. very first day of my tenure as a Mem- ture, especially out in the countryside, Government officials are pitching in ber of the U.S. Senate. His knowledge attracts tourists—particularly too. The Oregon Department of Trans- of the State of Arkansas and govern- bicyclists. portation and the U.S. Forest Service ment has guided some of my most im- The League of American Bicyclists are working together to implement the portant decisions and for that I will be estimates that biking contributes $133 committee’s vision of a paved bike forever grateful. His wise, steady coun- billion per year to our national econ- path connecting Bend to Sunriver. The cil is always held in high esteem. Jim omy, provides 1.1 million jobs, and gen- Forest Service is about halfway has served several roles on my staff. erates $17.7 billion in Federal, State, through their decision making process His most recent role as senior case- and local taxes. They estimate that an- on a paved path from Sunriver out to worker has benefitted the people of Ar- other $46.9 billion is spent on meals, Lava Lands Visitors Center, and ODOT kansas by assisting individuals, busi- transportation, lodging, gifts, and en- is pursuing a variety of funding options nesses and organizations that are expe- tertainment during bike trips and to get the work done while crews are riencing difficulties with Federal agen- tours. still working on the major reconstruc- cies. Jim’s leadership has set an expec- Savvy entrepreneurs in Oregon have tion of Highway 97 nearby. tation of excellence in constituent come together to capitalize on the ben- As we rebuild our country’s infra- services. efits that being a destination for structure and seek new ways to create Prior his work in the U.S. Senate, bicyclists can bring to a community. jobs, we would do well to follow the les- Jim was already a legend in Arkansas. Cycle Oregon—called ‘‘the best bike son of Deschutes County and The Three He served as news director at Channel ride in America’’—attracted 2,200 peo- Sisters Scenic Bikeway. It was an idea 7 in Little Rock for more than 30 years. ple from 44 States and 11 foreign coun- that was first proposed by concerned During this time, Jim established an tries to its 2008 ride, which took hardy members of the community. It answers unprecedented system of archiving bicyclists through some of Oregon’s local needs and they have a lot of con- news coverage for historical purposes. most beautiful sites. But it is not just fidence it will work. And as representa- Jim has witnessed and archived news Oregon entrepreneurs who have figured tives of those communities, my col- from Governors Faubus to Huckabee this out. It is a nationwide phe- leagues and I have the ability to help and Presidents Johnson to Clinton. He nomenon. Bloomington, Indiana’s water the seeds of those ideas when also provided critical coverage of ‘‘Hilly 100 ride,’’ for example, draws government can help out.

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00080 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13875 This kind of collaborative effort by able growth rate, SGR. Comprehen- own Chief Actuary stated, ‘‘it is doubt- local groups can be the kind of na- sively fixing the SGR costs well over ful that many could improve their own tional model other struggling rural $200 billion. Only providing a two- productivity to the degree achieved by communities should consider as they month temporary patch for the prob- the economy at large,’’ and that they work to rebuild their infrastructure lem will result in a more than 20-per- ‘‘are not aware of any empirical evi- and economies. Cities across America cent drop in Medicare physician pay- dence demonstrating the medical com- are realizing that investing in outdoor ments beginning in March of next year. munity’s ability to achieve produc- recreation options like bikeways is an To me and many other Members of tivity improvements equal to those of affordable way to significantly improve Congress, health care reform includes the overall economy.’’ In fact, the their quality of life and, in the process, fixing the SGR so that physicians can Chief Actuary’s conclusion is that it improve their competitiveness to at- be assured of not facing drastic Medi- would be difficult for providers to even tract new businesses and jobs. care payment cuts year after year and remain profitable over time as Medi- It is time to remember that our in- so that beneficiaries can be assured of care payments fail to keep up with the frastructure can’t just be focused on having access to physicians. But there costs of caring for beneficiaries. Ulti- ways to bring more cars onto our al- is no SGR fix in the Reid bill. Do the mately, the Chief Actuary’s conclusion ready stressed roads. Fixing highways math and you will see why. A com- is that providers who rely on Medicare and bridges is critically important, but prehensive SGR fix of over $200 billion might end their participation in Medi- for better health, relaxation, and the would wipe away the $132 billion in care, ‘‘possibly jeopardizing access to economic benefits they can bring, bike- budgetary savings that the Reid bill is care for beneficiaries.’’ ways can also be part of the solution to currently reported to have. The Chief Actuary even has numbers to back up these statements. His office fix our infrastructure and help revive In fact, the Congressional Budget Of- ran simulations of the effects of these struggling communities back home. fice noted that the estimated cost of drastic and permanent cuts. And based f repealing the SGR and replacing it with a permanent freeze would be on these simulations, the Chief Actu- RESPONSE TO SLATE ARTICLE BY about $207 billion once physician-ad- ary found that during the first 10 years, JACOB WEISBERG ministered drugs were removed from ‘‘ 20 percent of Medicare Part A pro- Mr. GRASSLEY. Mr. President, I the calculation of the SGR formula. viders would become unprofitable as a would like to address an article written That was done in the physician rule result of the productivity adjustments.’’ That’s one out of five hos- by Jacob Weisberg for Slate magazine that CMS finalized on October 30, 2009. pitals, nursing homes and hospices. It on December 12, 2009. This article is en- However, according to CBO, the re- is for this reason that the Chief Actu- titled, ‘‘Are Republicans Serious About moval of those drugs from the SGR for- ary found, ‘‘reductions in payment up- Fixing Health Care? No, and here’s the mula will increase Medicare’s spending dates based on economy-wide produc- proof.’’ In this article, Mr. Weisberg for physician services, as well as fed- tivity gains, are unlikely to be sustain- eral spending under TRICARE by $78 unfairly and misleadingly takes aim at able on a permanent annual basis.’’ my position in the current health re- billion over the 2010–2019 period. The The second category of Medicare cuts form debate. net impact on the budget would be that the Chief Actuary raised concerns The author reports that I have criti- close to $300 billion over 10 years, none about would be imposed by the new cized the Reid bill for creating an ‘‘in- of which is reflected in the Reid bill. Independent Payment Advisory Board defensible new entitlement’’ and that And let’s take a look at what is in created in the Reid bill. This is the new it ‘‘expands the deficit, threatens Medi- the bill. I certainly hope Mr. Weisberg body of unelected officials that would care, and does too little to restrain did when he wrote his article. A good have broad authority to make even fur- health care inflation.’’ portion of the budgetary savings in the ther cuts in Medicare. These additional I don’t dispute Mr. Weisberg attrib- Reid bill is from the CLASS Act. This cuts in Medicare would be driven by ar- uting these criticisms of the Reid bill program apparently produces budg- bitrary cost growth targets. This board to me. But, Mr. Weisberg can’t dispute etary savings during the first 10 years, would have the authority to impose these serious shortcomings of the Reid but only because no benefits pay out further automatic Medicare cuts even bill that I and other Members on this for the first 5 years. This makes the absent any Congressional action. The side of the aisle have been discussing revenues outpace the program’s out- Chief Actuary gave a reality check to on the Senate floor for the past weeks. lays. But CBO has stated that outlays this proposal. He showed how tall an In fact, both the nonpartisan Congres- will outpace revenues after the first 10 order the Reid bill’s target for health sional Budget Office, CBO, and the years. This means that the CLASS act care cost growth actually is. According independent Department of Health and will result in deficit spending over the to the HHS Chief Actuary, limiting Human Services, HHS, Chief Actuary long run. In fact, the chairman of the cost growth to a level below medical have confirmed that the Reid bill Budget Committee, a Democrat, called price inflation ‘‘would represent an ex- would not only establish this indefen- the CLASS Act a massive government ceedingly difficult challenge.’’ He sible new entitlement, but also rep- ponzi scheme. So this casts serious pointed out in this analysis that Medi- resent the largest expansion of govern- doubt on those who tout that the Reid care cost growth was below this target ment-run health care in history. But bill is deficit neutral or saves money. in only 4 of the last 25 years. let me go through each criticism of the The Reid bill also threatens Medi- The HHS Chief Actuary also pointed Reid bill that Mr. Weisberg has cor- care. I don’t think Mr. Weisberg can out that the backroom deals that rectly reported. argue that close to $1⁄2 trillion in Medi- carved out certain types of providers The Reid bill will expand the deficit. care cuts won’t jeopardize beneficiary would complicate this board’s efforts Mr. Weisberg identifies the 10-year access to care. Even the White House’s to cut Medicare cost growth. According CBO score of the bill to be $848 billion, own Chief Actuary confirmed that the to the analysis, ‘‘[t]he necessary sav- but that is comprised of 10 years of Reid bill jeopardizes beneficiary access ings would have to be achieved pri- Medicare cuts and tax increases and to care. He raised concerns in par- marily through changes affecting phy- only 6 years of outlays. So if he were ticular about two categories of these sician services, Medicare Advantage intellectually honest, Mr. Weisberg Medicare cuts. First, the Chief Actuary payments and Part D.’’ So providers would have used the cost of 10 years of warned about the permanent produc- like hospitals will escape from this outlays, which budget analysts assume tivity adjustments to annual payment board’s cuts at the expenses of doctors, to be closer to $2.5 trillion. But the use updates. Under the Reid bill, these pro- seniors enrolled in Medicare Advantage of budget gimmickry does not end ductivity adjustments automatically plans and seniors who will pay higher there when supporters of the Reid bill cut annual Medicare payment updates premiums for their Medicare drug cov- claim that it is deficit neutral. based on productivity measures of the erage. If we surveyed the nation’s sen- One of the biggest problems in Medi- entire economy. Referring to these iors, I doubt very much they would say care that we have to address in Con- cuts, he wrote that ‘‘the estimated sav- that raising their premiums for Medi- gress every year is the Medicare physi- ings . . . may be unrealistic.’’ In his care drug coverage or limiting preven- cian payment formula or the sustain- analysis of these provisions, Medicare’s tive benefits in Medicare Advantage is

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00081 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13876 CONGRESSIONAL RECORD — SENATE December 23, 2009 what they would call health care re- Question from Iowan: ‘‘Thank you, Senator advance care planning in this context form. GRASSLEY, for coming. The Democrats tell us is only offered by qualified profes- And this board is guaranteed to have all the time that it’s a right of every Amer- sionals and done in an appropriate to impose these additional Medicare ican to have health care. Yet it seems this manner. Obama plan will systematically deny those In his article, Mr. Weisberg misses cuts. According to the Chief Actuary’s rights to certain groups like the elderly. And analysis of the Medicare cuts in the I, as a person in my 60’s I’m getting very the point. The core of this issue is Reid bill, even though the Medicare concerned about the health care that I might when it comes to advance care plan- cuts already in the Reid bill are ‘‘quite be able to have if this bill passes.... ning, what role, if any, the government substantial’’ they ‘‘would not be suffi- Iowan Restating the Question: ‘‘Ok . . . should play. When the government at- cient to meet the growth rate targets.’’ [the question] involves limited coverage be- tempts to influence these sensitive de- So this means the board will be re- cause of a person’s background and age, race, cisions, it raises the possibility that quired by law to impose even more physical condition such as that. Basically it the government’s interests may be dif- was on the lady’s age.’’ ferent and potentially incompatible Medicare cuts in addition to the mas- Senator GRASSLEY: ‘‘″[V]ery recently in sive Medicare cuts already in the Reid things that we’ve been talking about in our with the patient’s interests. bill. And this will make it even harder negotiations has been just exactly what you When provisions to increase the gov- for our seniors to find providers who brought up. I won’t name people in Congress ernment role in advance care planning will treat them. or people in Washington, but there’s some are included alongside cost contain- Not only does the Reid bill ‘‘[do] too people that think that it’s a terrible problem ment provisions, it raises the concern little to restrain health care infla- that Grandma’s laying in the hospital bed that the purpose for the proposal is to with tubes in her, and think that there ought save money rather than to ensure ap- tion,’’ it actually increases health care to be some government policy that enters inflation. According to the HHS Chief propriate care at the end of life. And into that. I’m just on the opposite. I think that is in fact what has already hap- Actuary, the Reid bill would bend the that’s a family and a religious and or ethical pened. This idea of encouraging living health care cost curve the wrong way. thing that needs to be dealt with and there’s wills was originally proposed by the Over the next 10 years, the Administra- some fear because in the House bill there’s Carter administration in 1977 as an option’s own Actuary stated that ‘‘total counseling for end of life. And from that standpoint, you have every right to fear. You tion to produce both federal and sys- national health expenditures under tem-wide savings in health expendi- this bill would increase by an esti- shouldn’t have counseling at the end of life. You ought to have counseling 20 years before tures. More recently, the Urban Insti- mated total of $234 billion.’’ As a result you’re going to die. You ought to plan these tute published a paper in July 2009 that of that increase, health care would things out. And, you know, I don’t have any identified proposals like advance care then be projected to grow from 17 per- problem with things like living wills, but planning consultations as a way to cent to 20.9 percent of the gross domes- they ought to be done within the family. We help cut costs to offset spending for tic product in 2019. So using the Reid should not have a government program that health care reform. Compassion and bill to curb health care cost growth determines you’re going to pull the plug on Grandma. Thank you all very much for com- Choices, formerly known as the Hem- would be like putting out a fire with lock Society, has also advocated for gasoline. ing.’’ Mr. Weisberg is not the first who has the inclusion of advance care planning The Chief Actuary also found that a consultations in health care reform taken what I said during this exchange good portion of the increase in national legislation. Minimizing such an impor- and twisted it to attempt to portray health expenditures would be caused by tant issue or trying to turn it into an me as a fearmongerer. And unfortu- the so-called fees in this bill on med- amusing story as Mr. Weisberg has nately he probably won’t be the last. ical devices, on prescription drugs and done debases the important discussion What’s even more unfortunate is that on health insurance premiums. He stat- that needs to occur on this sensitive Mr. Weisberg and those like him fail to ed, that these ‘‘fees would be passed and personal issue. through to health consumers in the see the legitimate cause for concern Mr. Weisberg then criticizes Medi- form of higher drug and device prices when you have a combination of the care Part D, which I championed, in his and higher insurance premiums.’’ This expanded role of government in health attempt to question my opposition to would result in, ‘‘an associated in- care generally plus funding for advance the Reid bill. In 2003, Medicare was 37 crease of approximately 11 billion dol- care planning consultations alongside years old and functioning a lot like it lars per year in overall national health cost containment proposals. Some had on day one. It emphasized treat- expenditures.’’ commentators took my comments and ment, not prevention, not disease man- Higher premiums from the Reid bill twisted them and even quoted me as agement. It was a horse-and-buggy are no trifling matter. In fact, one esti- saying the House health care reform version of health care compared with mate concluded that the Senate bill bill would establish death panels, and the kind of coverage that other Ameri- would increase premiums by about 50 this was blatantly incorrect. As you cans received through their employers. percent on average for individuals can see from what was said at the town Then, as now, employer-based health without employer-based coverage, and meeting, I said no such thing. As I said plans often covered prescription drugs. more than 20 percent for small busi- then, putting end-of-life consultations Employers realized it was cost-effec- nesses. And even the Congressional alongside cost containment and gov- tive to pay for a relatively cheap cho- Budget Office’s more conservative ernment-run health care causes legiti- lesterol-lowering drug if it meant analysis predicts that premiums will mate concern. avoiding a triple bypass down the road. increase 10 to 13 percent for 14 million And to address another point that But Medicare beneficiaries were stuck Americans as a result of the Reid bill. Mr. Weisberg makes, a provision that in 1965 when prescription drugs were But that is where my agreement with provided for the option of advance care less vital than they are today. And be- Mr. Weisberg ends. He then proceeds to planning was in a bill I supported. In cause Medicare didn’t cover prescrip- lob several troubling and incorrect 2003, Congress enacted a narrow provi- tion drugs, they often were forced to claims at me in his attempt to portray sion to offer coverage for hospice con- forgo medications, pay out of pocket, me as ‘‘incoherent.’’ sultation services for Medicare bene- try to find an affordable supplemental Mr. Weisberg distorts what I said in ficiaries who have been diagnosed as policy, or take a bus to Canada to get response to a constituent’s question at terminally ill. Under this provision, their medicines. a town hall meeting in Iowa last Au- this consultation would be covered Republicans and Democrats alike gust when he accuses me of playing the only when provided by a health care agreed Medicare beneficiaries deserved ‘‘age card.’’ This is what Mr. Weisberg provider with expertise in end-of-life 21st century health care coverage, in- claims that I said: ‘‘There is some fear, issues such as a hospice physician. The cluding prescription drug coverage. because in the House bill, there is covered services include a pain and However, there were still differences on counseling at the end of life. And from care management evaluation, coun- how much the government could afford that standpoint, you have every right seling about hospice care and other op- to spend on providing this new benefit. to fear ‘‘ tional services such as advice on ad- In May of 2002, Republicans put forth a But this is what was actually said at vance care planning. This provision $350 billion proposal to provide com- that meeting: was designed to assure that advice on prehensive drug coverage to America’s

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00082 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13877 seniors. The Democrats thought this Medicare was already 37 years old be unable to negotiate prices across the was insufficient and put forth their when Congress added prescription drug broad range of covered Part D drugs own proposal totaling close to $600 bil- coverage. The Medicare structure was that are more favorable than those ob- lion. At the end of the day, the fiscal well-established. Congress worked in a tained by PDPs under current law.’’ year 2004 budget resolution included a bipartisan way to set aside the funding Even the Washington Post editorial $400 billion reserve fund for the cre- to improve the program and do so with- page has stated that ‘‘governments are ation of the drug benefit. out disrupting the parts that already notoriously bad at setting prices, and While there was bipartisan support worked for tens of millions of people. the U.S. government is notoriously bad for the drug benefit, Democrats never- Don’t forget that 76 senators voted in at setting prices in the medical theless continued to argue that Con- favor of the Senate bill for the drug realm.’’ What’s more, the idea of pri- gress should be spending more. For ex- benefit including 35 Democrats and one vate negotiation on drug costs origi- ample, former Senator Bob Graham of Independent. We certainly can’t say nated with none other than President Florida said, ‘‘Some would argue that the same for the current health care Bill Clinton. Under President Clinton’s this budget includes $400 billion for a reform effort in the Senate. plan, he proposed that ‘‘[p]rices would Medicare prescription drug benefit. One key difference is the fact that be determined through negotiations be- They know full well that $400 billion is the prescription drug benefit is purely tween the private benefit administra- inadequate to provide an affordable, voluntary, unlike the mandatory sys- tors and drug manufacturers.’’ Presi- comprehensive, universal prescription tem of insurance coverage for everyone dent Clinton’s plan was introduced on drug benefit for America’s seniors.’’ proposed in the current health reform April 4, 2000 as S. 2342 by the late Sen- The late Senator Edward Kennedy stat- bills that is backed up with the imposi- ator Moynihan by request. ed, ‘‘This budget has far less funding tion of stiff fines on those who don’t Mr. Weisberg also uses incorrect data than is necessary to provide a mean- comply. Under the Medicare benefit, to compare the 10-year cost of Medi- ingful prescription drug benefit for all seniors who don’t need prescription care Part D and the Reid bill. Medicare seniors.’’ And Senator TOM HARKIN coverage or who don’t see it is a good Part D costs do not ‘‘dwarf’’ the Reid stated, ‘‘We need a budget that is bal- value for the premium don’t have to bill costs as Mr. Weisberg claims be- anced, that takes the approach that we need to reduce the debt to take care of get it. The drug benefit is provided and cause the true 10-year cost of the Reid the baby boomers and provide for a de- administered by private entities, which bill, as acknowledged by supporters of cent drug benefit for the elderly. Clear- compete for beneficiaries’ business. the bill on the Senate floor, is $2.5 tril- ly, the $400 billion proposed for pre- And this competition between plans lion and not the $848 billion figure that scription drugs and other medical re- has kept the overall cost of the pro- he uses. forms is far too low for that purpose.’’ gram down. So attempting to portray me as being Congress eventually passed the Medi- And let’s not forget what we were ‘‘incoherent’’ for opposing the Reid bill care Prescription Drug, Improvement, trying to do back in 2003 compared to even though I championed the Medi- and Modernization Act of 2003, Medi- what is happening in Congress now. care Modernization Act is absolute care Modernization Act, Public Law Back in 2003, we were operating on a nonsense. budget surplus, and there was bipar- The Medicare Modernization Act did 108–173, on a bipartisan basis and cre- 1 ated the drug benefit that year. In con- tisan support to address a need by cre- not impose a $2 ⁄2 trillion tab on Ameri- trast to the process we are witnessing ating the Medicare drug benefit. The cans. It did not kill jobs with taxes and this year on health care reform, the Medicare Modernization Act met this fees that go into effect 4 years before final conference report from the MMA need. the reforms kick in. It did not kill jobs passed the Senate with the support of The situation is totally different in and lower wages with an employer 11 Democrats and one Independent. 2009. We are now operating on record mandate. It did not impose a half a And yet I can’t help but think that if budget deficits. So the goal of any trillion in higher taxes on premiums, the Democrats had their way on the health reform legislation should be to on medical devices, on prescription total amount of spending almost twice bend the cost curve. But as the HHS drugs, and more. It did not jeopardize as much on the drug benefit, then far Chief Actuary has established, the Reid access to care with massive Medicare more than this responsible bipartisan bill fails to do so. cuts. It did not impose higher health amount would have been spent. And In response to those who say the drug care costs. And it did not raise health certainly despite the criticism that the benefit only added to Medicare’s ex- premiums for millions of Americans new drug benefit is often subjected to penses, the Medicare Modernization like the Reid bill will do. from the left, not even the most Act also expanded coverage of preven- Mr. President, I ask unanimous con- staunch opponents of Part D have pro- tive services to emphasize less expen- sent to have printed in the RECORD the posed repealing the drug benefit for our sive prevention over more costly treat- December 12, 2009, Slate article by Nation’s seniors. ment. The law created a specific proc- Jacob Weisberg. Now in addition to the bipartisan ess for overall program review if gen- There being no objection, the mate- support for the creation of the benefit, eral revenue spending exceeded a speci- rial was ordered to be printed in the the vast majority of Medicare bene- fied threshold. And it took the politi- RECORD, as follows: ficiaries also like their prescription cally bold step of introducing the con- [From the Slate, Dec. 12, 2009] drug coverage. Survey after survey cept of income testing into Medicare, ARE REPUBLICANS SERIOUS ABOUT FIXING consistently shows that the benefit en- with higher income people paying larg- HEALTH CARE? joys broad support from beneficiaries. er Part B premiums beginning in 2007. (By Jacob Weisberg) According to Medicare Today, 88 per- Also, Mr. Weisberg makes several ad- Iowa Sen. Charles Grassley, the top Repub- cent of Part D enrollees are satisfied ditional points about Medicare Part D lican on the Senate finance committee, has with the program. And the program that are simply wrong. For example, he emerged as one of the harshest critics of what the right likes to call ‘‘Obamacare.’’ has come in $239 billion under budget. states that the government prohibition from negotiating drug prices with man- After spending the first half of the year When was the last time you could say working with Democrats to find a bipartisan that about a government program? ufacturers only raises the Medicare compromise, Grassley has spent the second Furthermore, the fact that Medicare Part D pricetag. CBO, the Chief Actu- half trying to prevent one. He attacks the beneficiaries are able to obtain their ary, and noted economists have all bill now being debated on the Senate floor as prescription drugs and afford them found the exact opposite to be true. an indefensible new entitlement. He com- means fewer hospitalization and emer- The Chief Actuary stated that ‘‘direct plains that it expands the deficit, threatens gency room visits when diseases like price negotiation by the Secretary Medicare, and does too little to restrain diabetes, heart disease, and pulmonary would be unlikely to achieve prescrip- health care inflation. At a town hall meeting tion drug discounts of greater mag- in August, the 76-year-old Iowan played the disease are properly managed with age card. ‘‘There is some fear, because in the modern prescription drug therapy. nitude that those negotiated by Medi- House bill, there is counseling for end of life. How is adding prescription drug cov- care prescription drug plans responding And from that standpoint, you have every erage to Medicare different from the to competitive forces.’’ And CBO has right to fear,’’ he told an audience in John current health care debate? concluded that ‘‘the Secretary would Wayne’s hometown of Winterset.

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00083 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13878 CONGRESSIONAL RECORD — SENATE December 23, 2009 One might credit the sincerity, if not the Orrin Hatch of Utah, among many others. the Federal bench and in crucial posi- validity, of such concerns were it not for an Here is Kansas Republican Sam Brownback tions at the Justice Department. Or inconvenient bit of history. Not so long ago, in 2003: ‘‘The passage of the Medicare bill ful- perhaps, and I sincerely hope that this when Republicans controlled the Senate, fills a promise that we made to my parents’’ is not the case, Democrats have been Grassley was the chief architect of a bill generation and keeps a promise to my kids’ that actually did most of the bad things he generation.’’ Here is Brownback in 2009: purposefully delaying nominees in now accuses the Democrats of wanting. As ‘‘This hugely expensive bill will not lower order to create the illusion that Repub- chairman of the finance committee, Grassley costs and will not cover all uninsured.’’Here licans are obstructing. championed the legislation that created a is Jon Kyl of Arizona: ‘‘As a member of the It bears mention that the average prescription-drug benefit under Medicare. bipartisan team that crafted the Part D leg- time from nomination to confirmation The contrast between what he and his col- islation, I am committed to ensuring its suc- for nominees to the Circuit Courts of leagues said during that debate in 2003 and cessful implementation. I will fight attempts Appeal under President Bush was 350 what they’re saying in 2009 exposes the dis- to erode Part D coverage.’’ Kyl now calls days. And that was just the average. ingenuousness of their current complaints. Harry Reid’s legislation: ‘‘a trillion-dollar Today the Medicare prescription-drug de- bill that raises premiums, increases taxes, The majority of President Bush’s first bate is remembered mainly for the political and raids Medicare.’’ nominees to the circuit courts waited shenanigans Republicans used to get their The explanation for this vast collective years for confirmation votes and some bill through. Bush officials lied about the flip-flop is—have you guessed?—politics. of them never even received a hearing, numbers and threatened to fire Medicare’s Medicare recipients are much more likely to despite being highly qualified, out- chief actuary if he shared honest cost esti- vote Republican than the uninsured who standing nominees. mates with Congress. House Republicans cut would benefit most from the Democratic It has been suggested by some that off C–SPAN and kept the roll call open for bills. In 2003, Karl Rove was pushing the tra- three hours—as opposed to the requisite 15 ditional liberal tactic of solidifying senior roll call votes should not be required minutes—while cajoling the last few votes support with a big new federal benefit, don’t for judicial nominees, as if this is they needed for passage. Former Majority worry about how to pay for it. Today, GOP something that has never been done be- Leader Tom DeLay was admonished by the incumbents are more worried about fending fore. In fact, rollcall votes and time House ethics committee for winning the off primary challenges from the right, like agreements for noncontroversial judi- eleventh-hour support of Nick Smith, a the one Grassley may face in 2010, or being cial nominees became routine in 2001, Michigan Republican, by threatening to va- called traitors by Rush Limbaugh. But what at the insistence of Chairman LEAHY porize Smith’s son in an upcoming election. happened the last time they were in charge and former Majority Leader Daschle. It’s worth remembering these moments when gives the lie to their claim that they object Republicans criticize Democratic Majority to expanding government. They only object During the Bush administration, of the Leader Harry Reid for his hardball tactics. to expanding government in a way that 327 article III judges confirmed by the The real significance of that episode, how- doesn’t help them get re-elected. Senate, 59 percent were by rollcall ever, is not their bad manners, but what Re- f vote. The vast majority of those—86 publicans ordered the last time health care percent—were consensus, non- was on the menu. Their bill, which stands as JUDICIAL NOMINATIONS controversial nominees who were the biggest expansion of government’s role Mr. SESSIONS. Mr. President, as the unanimously approved. In short, in 2001 in health care since the creation of Medicare first session of the 111th Congress the Democrats adopted a new standard: and Medicaid in 1965, created an entitlement for seniors to purchase low-cost drug cov- comes to a close, I believe it is impor- a presumption that all lifetime ap- erage. Grassleycare, also known as Medicare tant to correct the record regarding pointments receive a formal recorded Part D, employs a complicated structure of the Senate’s processing of judicial vote. There is no reason that presump- deductibles, co-pays, and coverage limits. nominations. Despite the statements of tion should change now simply because Thanks to something called the ‘‘doughnut some of my Democrat colleagues to the a Democrat is in the White House. Not- hole,’’ drug coverage disappears when out-of- contrary, the fact is we have been mov- withstanding that new standard, I pocket costs reach $2,400, returning only ing nominees at a fair and reasonable would be remiss if I did not point out when they hit $3,850. Simply stated, the bill pace. The Judiciary Committee has that four of the last five judicial nomi- cost a fortune, wasn’t paid for, is complicated as hell, and doesn’t do all that held hearings for every one of Presi- nees that we have confirmed have been much—though it does include coverage for dent Obama’s circuit court nominees confirmed without rollcall votes. end-of life-counseling, or what Grassley now and all of his district court nominees Over the past month, the Senate has calls ‘‘pulling the plug on grandma.’’ that are ripe for a hearing. At this been consumed in a debate on a In their 2009 report to Congress, the Medi- point in President Bush’s administra- healthcare bill that would create an care trustees estimate the 10-year cost of tion, 30 nominees had yet to even re- enormous entitlement program, the Medicare D as high as $1.2 trillion. That fig- ceive a hearing. As the numbers bear likes of which we have never before ure—just for prescription-drug coverage that out, President Obama’s nominees have seen in this country. Tomorrow morn- people over 65 still have to pay a lot of money for—dwarfs the $848 billion cost of the fared far better. ing, the Senate will proceed to a vote Senate bill. The Medicare D price tag con- Allegations that Republicans are de- on this monumental piece of legisla- tinues to escalate because the bill explicitly laying confirmation votes ring hollow. tion. It can hardly be said that it has bars the government from using its market Democrats control 60 votes in the Sen- been ‘‘business as usual’’ in the Senate. power to negotiate drug prices with manu- ate and set the agenda for the floor. If While Senators have been focused on facturers or establishing a formulary with my Democrat colleagues are dissatis- health care, as they should be, Demo- approved medications. fied with the pace of nominations, I crats have seen fit to slip through life- And unlike the Democratic bills, which suggest that they look to their leader. won’t add to the deficit, the bill George W. time appointments to the Federal judi- Bush signed was financed entirely through On Tuesday, the majority and minority ciary. Just last week, Chairman LEAHY deficit spending. While Grassley and his col- leaders announced that we will vote on scheduled a hearing for two Fourth Cir- leagues accuse Democrats of harming Medi- Judge Beverly Martin’s nomination to cuit nominees in the middle of this his- care through cost cuts, it is their bill that the Eleventh Circuit Court of Appeals toric debate. Both Judge Diaz and has done the most to hasten Medicare’s com- on January 20. As I have said many Judge Wynn were nominated by the ing insolvency. Between now and 2083, Medi- times before, Republicans have been President on November 4, 2009. This is care D’s unfunded obligations amount to $7.2 ready and willing to proceed to a roll a quick turnaround for any circuit trillion according to the trustees. Numbers call vote on this nomination for like these prompted former Comptroller court nominee, and it is especially General David M. Walker to call it ‘‘. . . months. I do not know the majority quick for a nominee to the Fourth Cir- probably the most fiscally irresponsible leader’s reasons for not calling up the cuit. During the 110th Congress, despite piece of legislation since the 1960s.’’ nomination sooner. Indeed, I do not the 33 percent vacancy rate and over- Grassley is not alone in his incoherence. Of claim to know the majority leader’s whelming need for judges, four nomi- 28 current Republican senators who were in reasons for not calling up a number of nees to that court were needlessly de- the Senate back in 2003, 24 voted for the nominations. Perhaps in some cases it layed: Mr. Steve Matthews, Judge Rob- Medicare prescription-drug benefit. Of 122 is because my Democrat colleagues do Republicans still in the House, 108 voted for ert Conrad, Judge Glen Conrad, and it. There is not space here to fully review not want to have a debate on the mer- Mr. Rod Rosenstein. this hall of shame, which includes Lamar Al- its and expose to the American people President Bush nominated Steve exander of Tennessee, Mike Enzi of Wyo- just what types of individuals the Matthews on September 6, 2007, to the ming, Kay Bailey Hutchison of Texas, and President has nominated to serve on same seat on the Fourth Circuit for

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00084 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13879 which Judge Diaz has been nominated. waited 414 days for a hearing that NOMINATION HOLDS Mr. Matthews had the support of his never came. His nomination was re- Mr. GRASSLEY. Mr. President, I, home state senators and received an turned on January 2, 2009. The reason Senator CHUCK GRASSLEY, intend to ob- ABA rating of Substantial Majority given by his home state senators for ject to proceeding to the nominations Qualified. He was a graduate of Yale why his nomination was blocked was of Lael Brainard to be Under Secretary Law School and had a distinguished ca- that he was ‘‘doing a good job as the of the Treasury, Michael Mundaca to reer in private practice in South Caro- U.S. attorney in Maryland and that’s be an Assistant Secretary of the Treas- lina. Despite his exemplary qualifica- where we need him.’’ I think that a 2008 ury, Mary Miller to be an Assistant tions, Mr. Matthews waited 485 days for Washington Post editorial painted a Secretary of the Treasury, and Charles a hearing that never came. His nomina- more accurate picture: ‘‘blocking Mr. Collyns to be an Assistant Secretary of tion was returned on January 2, 2009. Rosenstein’s confirmation hearing . . . the Treasury. Another of President Bush’s nomi- would elevate ideology and ego above My support for the final confirmation nees, Chief Judge Robert Conrad, was substance and merit, and it would un- of these nominees will rest on the re- nominated to the seat for which Judge fairly penalize a man who people on sponse to concerns I have with respect Wynn is now nominated. He had the both sides of this question agree is well to Internal Revenue Code section support of his home state senators and qualified for a judgeship.’’ 6707A. A letter outlining these con- received an ABA rating of Unanimous It was only when President Obama cerns was sent to both Secretary Well-Qualified. Further, Judge Conrad nominated Judge Davis to this seat Geithner and Commissioner Shulman met Chairman LEAHY’s standard for a that we heard Democrats’ outrage over on December 22, 2009, and I ask unani- noncontroversial, consensus nominee the fact that the seat had been vacant mous consent that my letter be printed because he previously received bipar- for 9 years. Ironically, however, Judge in the RECORD. tisan approval by the Judiciary Com- Davis fared far better than President There being no objection, the mate- mittee and the Senate when he was Bush’s nominees to the Fourth Circuit. rial was ordered to be printed in the confirmed by voice vote to be a U.S. He received a hearing a mere 27 days RECORD, as follows: Attorney in North Carolina and later after his nomination, a committee vote U.S. SENATE, to the District Court for the Western just 36 days later, and, finally, con- COMMITTEE ON FINANCE, District of North Carolina. On October firmation earlier this year. There are Washington, DC, December 22, 2009. 2, 2007, Senators BURR and Dole sent a other examples of Democrats’ unrea- Hon. TIMOTHY F. GEITHNER, Secretary, letter to Senator LEAHY requesting a sonable delay and obstruction but I U.S. Department of Treasury, Pennsylvania Av- hearing for Judge Conrad, and they will not detail them here. Suffice it to enue, NW, Washington, DC. spoke on his behalf at a press con- say that Democrats are now capital- Hon. DOUGLAS SHULMAN, Commissioner, ference on June 19 that featured a izing on their eight years of obstruc- Internal Revenue Service, Constitution Avenue, number of Judge Conrad’s friends and tion by seeking to pack the Fourth Cir- NW, Washington, DC. colleagues who had traveled all the DEAR SECRETARY GEITHNER AND COMMIS- cuit Court of Appeals. SIONER SHULMAN: I am writing to express my way from North Carolina to show their It has been said that the overall fed- disappointment with actions taken by both support for his nomination. That re- eral judiciary vacancy rate is higher the Department of the Treasury (Treasury) quest was ignored. On April 15, 2008, than it was when President Bush was and the Internal Revenue Service (IRS) with Senators BURR, Dole, GRAHAM, and in office and therefore we need to con- respect to Internal Revenue Code (IRC) sec- DEMINT sent a letter to Senator LEAHY firm more judicial nominees. But, as tions 382 and 6707A. asking for a hearing for Judge Conrad the story of the Fourth Circuit ob- On November 18, 2008, I wrote to then Sec- and Mr. Matthews. Despite over- structionism illustrates, that is a spe- retary Paulson regarding Notice 2008–83, which changed the rules governing the de- whelming support and exceptional cious argument. During the Bush ad- ductibility of losses under IRC section 382(h). qualifications, Judge Conrad, who was ministration, Democrats held up quali- The facts and circumstances surrounding the nominated on July 17, 2007, waited 585 fied judicial nominees—for years in issuance of that Notice raised concerns days for a hearing that never came. His some cases—denying them an up-or- about the independence and merits of the de- nomination was returned on January 2, down vote even though the majority of cision. 2009. Senators were ready and willing to Treasury’s most recent guidance on this Judge Glen Conrad also had the sup- confirm them. And, in any event, the same issue, Notice 2010–2, raises the same port of his home State Senators—in- need to fill vacancies should not under- concerns. Accordingly, I request that you provide the Finance Committee with all cluding Democrat Senator JIM WEBB— cut the responsibility of the Senate to records relating to communications per- and received an ABA rating of Majority properly vet these lifetime appoint- taining to the issuance of Notice 2010–2 be- Well-Qualified. He too met Chairman ments. As the minority party, we have tween Treasury officials, Citigroup, Inc., or LEAHY’s standard because he was con- a duty and a right to ask the important other Troubled Asset Relief Program (TARP) firmed to the District Court for the questions that may not be asked by participants and/or their representatives. Western District of Virginia by a unan- those who agree with the President’s Please also provide a timeline for, and docu- imous, bipartisan vote of 89–0 in Sep- point of view. mentation of, Treasury and IRS discussions tember 2003. Despite his extensive In that regard, we can only process and approvals for Notice 2010–2 as well as any qualifications, Judge Conrad, who was nominees that we have before us. Presi- discussions about the impact this notice would have on the tax gap. In cooperating nominated on May 8, 2008, waited 240 dent Obama has nominated only 12 cir- with the Committee’s review, no documents, days for a hearing that never came. His cuit court nominees, all of whom have records, data, or other information related nomination was returned on January 2, had hearings; there are currently 20 to these matters, either directly or indi- 2009. circuit court vacancies. Similarly, rectly, shall be destroyed, modified, re- Earlier this year, we confirmed Judge President Obama has nominated only moved, or otherwise made inaccessible to the Andre Davis to the ‘‘Maryland’’ seat on 19 district court nominees, all but 6 of Committee. the Fourth Circuit. A brief history of whom have had hearings; there are cur- I understand that Treasury believes that that seat bears mention. President Notice 2010–2 was justified, in part, because rently 78 district court vacancies. it would help protect the government’s inter- Bush nominated Rod Rosenstein to fill These numbers stand in stark contrast est in Citigroup, Inc. Yet, it appears that No- this vacancy on November 15, 2007. The to the 65 nominees President Bush put tice 2010–2 may generate billions of dollars of ABA rated Mr. Rosenstein Unanimous forth during his first year in office. tax savings for Citigroup, Inc. Please provide Well Qualified, and in 2005, he was con- I have said many times that I do not documentation of any discussions of impact firmed by a noncontroversial voice wish to engage in a back and forth on on the tax gap resulting from Notice 2010–2. vote to be the United States attorney this issue but I will not stand by while The quick and immediate relief provided to for the District of Maryland. Prior to some in this body attempt to rewrite Citigroup, Inc. stands in stark contrast to his service as U.S. attorney, he held history in their favor. Facts are stub- Treasury and IRS’s position on providing relief to small business owners who have been several positions in the Department of born things and despite the statements assessed penalties under IRC section 6707A. Justice under both Republican and by some to the contrary, they cannot As you know, Chairman Baucus and I have Democrat administrations. Despite his alter the state of the facts and the evi- been working throughout this year with our stellar qualifications, Mr. Rosenstein dence. counterparts in the House of Representatives

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Additionally, the number of much appreciate the IRS’s difficult position Dr. Brainard was nominated on with respect to protecting the government’s forms I–9 produced by the nominee interest in collecting taxes and penalties due March 23 of this year, and the Finance with significant irregularities was very and appreciate the IRS’s moratorium on col- Committee’s routine vetting began unusual. The committee released six lection enforcement activity. shortly after that. For the past 9 different forms I–9 with irregularities. However, according to Commissioner months Dr. Brainard has given evasive, The committee memo discusses each of Shulman’s letter to Chairman Baucus dated incomplete, and inconsistent answers these, but possibly the most problem- July 17, 2009, 72% of section 6707A penalty as- to questions asked by the Committee atic is one form where it appears that sessments were imposed on small businesses minority and majority. I have said this dates have been written over to change and small business owners. The penalty is before, but every nominee who passes clearly being assessed disproportionately on the year. When questioned by com- small businesses compared to larger tax- through the Finance Committee has mittee staff about these forms I–9 in a payers. In addition, the placement of liens on been treated the same for the nearly 9 meeting with the nominee and her ac- these taxpayers, even though they are not years I have been either chairman or countant, the accountant asked to yet being enforced, is a significant threat to ranking member. Dr. Brainard was speak to the nominee alone, without their operations. Many small businesses use treated in a manner consistent with committee staff in the room. The business assets or mortgage personal resi- how past nominees have been treated, nominee sent a letter to myself and dences to secure lines of credit for the busi- but she did not respond in a consistent Chairman BAUCUS apologizing for the nesses. Imposing liens has significant nega- manner. On November 18, the Finance tive implications for a small business that irregularities but offering no sub- has limited access to capital. Committee released a memo covering stantive explanation for many of them. I discussed this issue with Commissioner three basic issues that arose during the The third issue discussed in the Fi- Shulman last month. I understand my staff vetting of Dr. Brainard. The nominee nance Committee memo involves the has also discussed this again with IRS staff had a chance to review and make com- nominee’s deduction of one-sixth of her since then but that the IRS insists that ments on this memo before it was re- household expenses from partnership placement of liens is necessary to protect leased. income as an office-in-home deduction. the government’s interest. I am troubled and The first issue covered in the memo Committee staff simply asked the frustrated by this position. It is inconsistent involves responses to questions on the with the administration’s publicly expressed nominee to show how she determined concern about the difficulties facing small Finance Committee questionnaire per- that one-sixth was the appropriate per- businesses in accessing capital. taining to previous late payments of centage, and the nominee has provided I am also concerned that there is a dis- taxes and whether or not the nominee many different answers to this ques- connect between what Treasury and IRS is current on taxes owed. The nominee tion. The Finance Committee memo staff in Washington, DC think is happening had to submit four separate responses summarizes Dr. Brainard’s attempts to and what is actually happening in the field. to one question as the committee came explain her office-in-home deduction For example, when my staff discussed with to gradually discover that Rappahan- your staff the issue of IRC section 6723 being with a variety of formulas adding up to used to justify the placement of liens, your nock County, VA, property taxes had a variety of answers. As before, the staff denied this was happening. Yet, after been paid late in 2005, 2006, 2007, and real issue here is not what percentage providing the name of a specific taxpayer 2008. The issue is not that someone for- the nominee should have used to cal- who was subject to such a lien, my staff was got to pay their property taxes on culate her office-in-home deduction; informed that there may be a systemic issue time; the issue here is the difficulty the issue is the inability of the nomi- in either the Automated Lien System or the the Finance Committee had in getting nee to respond to what should be sim- Integrated Collection System. complete, accurate, and correct an- ple questions in a straightforward way. My staff has also informed me that some of swers out of Dr. Brainard. Committee As the committee memo notes, on the assessments and liens are the result of Treasury and IRS regulations and proce- staff spent most of 2009 attempting to her 2008 partnership return, the nomi- dures, such as the decision to disallow disclo- get straight answers from Dr. nee reduced the size of her office-in- sures on amended returns and the decision to Brainard, and the whole time this was home deduction by half from one-sixth pursue 6707A assessments while other exam- going on the nominee had not paid her to one-twelth. Dr. Brainard said that ination issues remain unresolved. Until 2008 property taxes. The nominee fi- this change was made because com- Treasury regulations and IRS procedures can nally disclosed the late payment of the mittee staff had been asking questions be revised to clear up the confusion, I re- 2008 property taxes on October 12, 2009, regarding her earlier use of the office- quest that IRS remove all liens on small though the taxes had actually been in-home deduction. The nominee did businesses resulting from 6707A assessments unless there is a known risk that the tax- paid in September. Answers on this not amend her partnership returns for payer will evade payment of the penalties. specific issue from the nominee reflect 2005, 2006, and 2007 where an office-in- Since the pending legislation will signifi- a troubling aspect that is char- home deduction of one-sixth was taken. cantly reduce the 6707A assessment amount, acteristic of many of Dr. Brainard’s an- I am not able to say that either num- liens may no longer be necessary. swers. Though Dr. Brainard owns the ber is correct or incorrect because the As a supporter of closing the tax gap, I Rappahannock County property with nominee provided several contradic- very much appreciate the IRS’s difficult po- her husband, she has consistently tory answers to this question. sition with respect to protecting the govern- As I have been saying, the larger ment’s interest in collecting taxes and pen- avoided taking any responsibility for alties. If the IRS believes that removal of a the payment of taxes owed. issue here is not that someone was late lien would result in the IRS being unable to As I said before, the issue is not that in paying county property taxes, or the collect the penalty amount as revised by the someone forgot to pay county property appropriate size of an office-in-home pending legislation, please provide a descrip- taxes on time. Though a chronic inabil- deduction. The larger issue is the ap- tion of these situations. However, I ask you ity to pay taxes timely is a serious parent unwillingness or inability of a to consider using your discretion as was done concern, the real problem here is the person, nominated by the President, to for big financial corporate TARP partici- inability of the nominee to be straight answer questions asked by a standing pants who will benefit from Notice 2010–2. I appreciate your prompt attention to this with myself, our staff, and the com- committee of the Senate in a straight- matter. Please contact my staff with any mittee as a whole. forward manner. The reason Dr. questions or concerns. The second issue discussed in the No- Brainard’s nomination took a full 9 Sincerely, vember 18 memo involves the comple- months to the day to be discharged by CHUCK GRASSLEY, tion of several forms I–9, employment the Finance Committee is that she Ranking Member. eligibility verification, which is re- spent 9 months giving evasive, incom- Mr. GRASSLEY. Mr. President, I quired to document that a new em- plete, and inconsistent answers to com- want to explain my position on the ployee is authorized to work in the mittee staff in response to what are nomination of Lael Brainard to be United States. The nominee will tell generally routine questions. Under Secretary of the Treasury for you that all of her employees are eligi- The only thing that is perhaps even International Affairs. I voted against ble to work in the United States, and I more troubling than a nominee who

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Mr. President, (The nominations received today are and vetting done on nominees as an as- today I wish to recognize Taras G. printed at the end of the Senate pro- sembly line that produces a guaranteed ‘‘Tary’’ Szmagala, on the occasion of ceedings.) outcome. his retirement from the Greater Cleve- f We have seen what I believe to be po- land Regional Transit Authority in NOTIFICATION OF THE PRESI- litical operatives from outside the Sen- Cleveland, OH. Tary has dedicated his DENT’S INTENTION TO DES- ate selectively leak information in a life to public service and has worked IGNATE THE REPUBLIC OF effort to target the Finance Commit- tirelessly to improve the quality of life MALDIVES AS A BENEFICIARY tee’s process of vetting nominees and for the citizens of our community. His DEVELOPING COUNTRY AND TO even the specific staffers who carry out career demonstrates a commitment to TERMINATE THE DESIGNATIONS this work. These political operatives excellence and exemplary leadership, OF CROATIA AND EQUATORIAL have had a lot of work to do, as Dr. and has earned him the respect and ad- NEW GUINEA AS BENEFICIARY Brainard is the fifth nominee from the miration of his friends and associates. DEVELOPING PROGRAMS UNDER For 23 years, Tary has served the current administration to run into sig- THE GENERALIZED SYSTEM OF Greater Cleveland Regional Transit nificant problems during the Finance PREFERENCES PROGRAM—PM 39 Committee vetting process. The Fi- Authority, during which time he has nance Committee vetting process has held a number of positions, including: The PRESIDING OFFICER laid be- not changed in the nearly 9 years I director of governmental relations, fore the Senate the following message have been chairman or ranking mem- manager of communications, deputy from the President of the United ber. What has changed are the specific general manager, interim general man- States, together with an accompanying nominees and the apparent willingness ager, and executive director of external report and papers; which was referred of some to tolerate and excuse issues affairs. He has made significant con- to the Committee on Finance: that would have disqualified nominees tributions towards procuring Federal To the Congress of the United States: from the previous administration. and State capital improvement funds The Generalized System of Pref- Nominees in the previous administra- for the RTA’s major projects, includ- erences (GSP) offers duty-free treat- tion would have had trouble garnering ing, but not limited to, the Euclid Cor- ment to specified products that are im- support if they had these sorts of prob- ridor Project and the extension of the ported from designated beneficiary de- lems, and I made it clear my job was Waterfront Line, and the Walkway veloping countries. The GSP is author- not to defend a problematic nominee. from Tower City to Gateway. ized by title V of the Trade Act of 1974, Most people do not know about these Additionally, Tary’s distinguished as amended (the ‘‘Act’’). problematic nominees from the past career in public service includes serv- In accordance with sections because in some cases they did not get ing as special assistant to U.S. Senator 502(f)(1)(A) and 502(f)(2) of the Act, I am a hearing and in others they were not Robert Taft, teacher and administrator providing notification of my intent to nominated in the first place. for the Parma Board of Education, and add the Republic of Maldives to the list public and personnel coordinator for of beneficiary developing countries There is only one person who could the Cleveland Regional Sewer District. under the GSP program and my intent tell us why the vetting process for this Moreover, he has served numerous gov- to terminate the designations of Cro- nominee took so long, and that person ernmental leaders and organizations, atia and Equatorial Guinea as bene- is Lael Brainard. and has devoted countless hours to ficiary developing countries under the I have been trying to ask her ques- civic organizations, including the Stel- GSP program. tions for 9 months now without much la Maris Board of Directors, the Na- In Proclamation 6813 of July 28, 1995, success, so now my questions are for tional Highway Safety Advisory Com- the designation of Maldives as a bene- the critics of the Finance Committee mittee, the Ohio Public Transit Asso- ficiary developing country for purposes process and those determined to see ciation, St. Ignatius High School and of the GSP program was suspended. this nominee confirmed no matter several colleges. After considering the criteria set forth what. Tary has worked tirelessly to provide in sections 501 and 502 of the Act, I How long should we allow a nominee many Americans with a tangible con- have determined that the suspension of to provide incomplete and contradic- nection to their Ukrainian heritage by the designation of Maldives as a GSP tory answers before we simply decide serving on the Ukrainian Museum Ar- beneficiary developing country should that person ought to be confirmed any- chives Board of Directors, the Ukrain- be ended. way? ian National Association Board of Di- In addition, I have determined that Who is important enough not to be rectors and as a representative of the Croatia and Equatorial Guinea have obligated to follow the same rules and Ukrainian-American community in each become a ‘‘high income’’ country, obligations as all other nominees? many official capacities, including as as defined by the official statistics of What high government official is so Member of Presidential Delegation to the International Bank for Reconstruc- important that they ought to be ex- Ukraine in 1991. tion and Development. In accordance empt from the burden of routine Con- It is my privilege to recognize Tary with section 502(e) of the Act, I have gressional oversight? for his diligent commitment and dedi- determined that the designations of Is knowing the right people a sub- cated service to the Greater Cleveland Croatia and Equatorial Guinea as bene- stitute for simple honesty and strength Regional Transit Authority, and to the ficiary developing countries under the of character? community that he has served for over GSP program should be terminated, ef- three decades.∑ fective January 1, 2011. As for myself, I am going to answers f BARACK OBAMA. these questions by reiterating my op- THE WHITE HOUSE, December 23, 2009. position to the nomination. MESSAGES FROM THE PRESIDENT f I, Senator CHUCK GRASSLEY, do not Messages from the President of the MESSAGE FROM THE HOUSE object to proceeding to the nomina- United States were communicated to tions of Lael Brainard to be Under Sec- the Senate by Mrs. Neiman, one of his ENROLLED BILL SIGNED retary of the Treasury, Michael secretaries. At 1:42 p.m., a message from the Mundaca to be an Assistant Secretary f House of Representatives, delivered by of the Treasury, Mary Miller to be an Mrs. Cole, one of its reading clerks, an- Assistant Secretary of the Treasury, EXECUTIVE MESSAGES REFERRED nounced that the Speaker pro tempore and Charles Collyns to be an Assistant As in executive session the Presiding (Mr. VAN HOLLEN) has signed the fol- Secretary of the Treasury. Officer laid before the Senate messages lowing enrolled bill:

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00087 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13882 CONGRESSIONAL RECORD — SENATE December 23, 2009 H.R. 4284. An act to extend the Generalized EC–4157. A communication from the Sec- ant to law, the report of a rule entitled System of Preferences and the Andean Trade retary of Health and Human Services, trans- ‘‘United States Visitor and Immigrant Sta- Preference Act, and for other purposes. mitting, pursuant to law, the report of a pe- tus Indicator Technology Program (‘‘US– The enrolled bill was subsequently tition to add workers from the Hanford site VISIT’’); Enrollment of Additional Aliens in signed by the President pro tempore in Richland, Washington, to the Special Ex- US–VISIT; Authority to Collect Biometric posure Cohort; to the Committee on Health, Data From Additional Travelers and Expan- (Mr. BYRD). Education, Labor, and Pensions. sion to the 50 Most Highly Trafficked Land f EC–4158. A communication from the Sec- Border Ports of Entry’’ (RIN1601–AA35; retary of Health and Human Services, trans- RIN1600–AA00) received in the Office of the MEASURES REFERRED mitting, pursuant to law, the report of a pe- President of the Senate on December 17, 2009; The following bills were read the first tition to add workers from the Metals and to the Committee on the Judiciary. and the second times by unanimous Controls Corporation in Attleboro, Massa- f chusetts, to the Special Exposure Cohort; to consent, and referred as indicated: the Committee on Health, Education, Labor, REPORTS OF COMMITTEES H.R. 1242. An act to amend the Emergency and Pensions. The following reports of committees Economic Stabilization Act of 2008 to pro- EC–4159. A communication from the Sec- vide for additional monitoring and account- retary of Health and Human Services, trans- were submitted: ability of the Troubled Asset Relief Pro- mitting, pursuant to law, the report of a pe- By Mr. LIEBERMAN, from the Committee gram; to the Committee on Banking, Hous- tition to add workers from the Brookhaven on Homeland Security and Governmental Af- ing, and Urban Affairs. National Laboratory in Upton, New York, to fairs, without amendment: H.R. 3639. An act to amend the Credit Card the Special Exposure Cohort; to the Com- S. 69. A bill to establish a fact-finding Accountability Responsibility and Disclo- mittee on Health, Education, Labor, and Commission to extend the study of a prior sure Act of 2009 to establish an earlier effec- Pensions. Commission to investigate and determine tive date for various consumer protections, EC–4160. A communication from the Sec- facts and circumstances surrounding the re- and for other purposes; to the Committee on retary of Health and Human Services, trans- location, internment, and deportation to Banking, Housing, and Urban Affairs. mitting, pursuant to law, a report relative to Axis countries of Latin Americans of Japa- the Community Services Block Act Discre- nese descent from December 1941 through f tionary Activities: Community Economic February 1948, and the impact of those ac- EXECUTIVE AND OTHER Development and Rural Facilities Programs; tions by the United States, and to recommend appropriate remedies, and for other COMMUNICATIONS to the Committee on Health, Education, Labor, and Pensions. purposes (Rept. No. 111–112). The following communications were EC–4161. A communication from the Direc- By Mr. DORGAN, from the Committee on laid before the Senate, together with tor, Strategic Human Resources Policy Divi- Indian Affairs, with amendments: accompanying papers, reports, and doc- sion, Office of Personnel Management, trans- S. 1178. A bill to extend Federal recognition to the Chickahominy Indian Tribe, the uments, and were referred as indicated: mitting, pursuant to law, the report of a rule entitled ‘‘Adverse Actions’’ (RIN3206–AL39) Chickahominy Indian Tribe-Eastern Divi- EC–4151. A communication from the Under received in the Office of the President of the sion, the Upper Mattaponi Tribe, the Rappa- Secretary of Defense (Comptroller), trans- Senate on December 17, 2009; to the Com- hannock Tribe, Inc., the Monacan Indian Na- mitting, pursuant to law, the report of a vio- mittee on Homeland Security and Govern- tion, and the Nansemond Indian Tribe (Rept. lation of the Antideficiency Act that oc- mental Affairs. No. 111–113). curred within the National Geospatial-Intel- EC–4162. A communication from the Direc- f ligence Agency in fiscal year 2003, and has tor, Strategic Human Resources Policy Divi- been assigned National Geospatial-Intel- sion, Office of Personnel Management, trans- EXECUTIVE REPORTS OF ligence Agency case number 08–03; to the mitting, pursuant to law, the report of a rule COMMITTEES Committee on Appropriations. entitled ‘‘Training; Supervisory, Manage- EC–4152. A communication from the Dep- The following executive reports of ment, and Executive Development’’ nominations were submitted: uty Secretary, Division of Corporation Fi- (RIN3206–AK75) received in the Office of the nance, Securities and Exchange Commission, President of the Senate on December 17, 2009; By Mr. BAUCUS for the Committee on Fi- transmitting, pursuant to law, the report of to the Committee on Homeland Security and nance. *Lael Brainard, of the District of Colum- a rule entitled ‘‘Proxy Disclosure Enhance- Governmental Affairs. ments’’ (RIN3235–AK28) received in the Office EC–4163. A communication from the Direc- bia, to be an Under Secretary of the Treas- of the President of the Senate on December tor, Strategic Human Resources Policy Divi- ury. *Ellen Gloninger Murray, of Virginia, to be 17, 2009; to the Committee on Banking, Hous- sion, Office of Personnel Management, trans- an Assistant Secretary of Health and Human ing, and Urban Affairs. mitting, pursuant to law, the report of a rule Services. EC–4153. A communication from the Direc- entitled ‘‘Examining System’’ (RIN3206– *Bryan Hayes Samuels, of Illinois, to be tor of Environmental Policy and Compli- AL51) received in the Office of the President Commissioner on Children, Youth, and Fami- ance, Office of the Secretary, Department of of the Senate on December 17, 2009; to the lies, Department of Health and Human Serv- the Interior, transmitting, pursuant to law, Committee on Homeland Security and Gov- ices. the report of a rule entitled ‘‘Implementa- ernmental Affairs. *Jim R. Esquea, of New York, to be an As- tion of the National Environmental Policy EC–4164. A communication from the Chief sistant Secretary of Health and Human Serv- Act (NEPA) of 1969’’ received in the Office of of the Border Security Regulations Branch, ices. the President of the Senate on December 17, Customs and Border Protection, Department *Michael W. Punke, of Montana, to be a 2009; to the Committee on Environment and of Homeland Security, transmitting, pursu- Deputy United States Trade Representative, Public Works. ant to law, the report of a rule entitled ‘‘Im- EC–4154. A communication from the Chief with the rank of Ambassador. porter Security Filing and Additional Car- *Islam A. Siddiqui, of Virginia, to be Chief of the Publications and Regulations Branch, rier Requirements; Correction’’ (RIN1651– Internal Revenue Service, Department of the Agricultural Negotiator, Office of the United AA70) received in the Office of the President States Trade Representative, with the rank Treasury, transmitting, pursuant to law, the of the Senate on December 17, 2009; to the report of a rule entitled ‘‘Tier II Issue: Cost of Ambassador. Committee on Homeland Security and Gov- *Charles Collyns, of Maryland, to be a Dep- Sharing Stock Based Compensation Direc- ernmental Affairs. tive No. 2’’ (LMSB–4–1109–040) received in the uty Under Secretary of the Treasury. EC–4165. A communication from the Assist- *Mary John Miller, of Maryland, to be an Office of the President of the Senate on De- ant Secretary, Bureau of Political-Military Assistant Secretary of the Treasury. cember 10, 2009; to the Committee on Fi- Affairs, Department of State, transmitting, *Michael F. Mundaca, of New York, to be nance. pursuant to law, the Uniform Resource Loca- an Assistant Secretary of the Treasury. EC–4155. A communication from the Sec- tor (URL) for a report relative to the FY2009 retary of Health and Human Services, trans- Agency Financial Report; to the Committee *Nomination was reported with rec- mitting, pursuant to law, the report of a pe- on Homeland Security and Governmental Af- ommendation that it be confirmed sub- tition to add workers from Oak Ridge Hos- fairs. ject to the nominee’s commitment to pital in Oak Ridge, Tennessee, to the Special EC–4166. A communication from the Sec- respond to requests to appear and tes- Exposure Cohort; to the Committee on retary of the Department of Energy, trans- tify before any duly constituted com- Health, Education, Labor, and Pensions. mitting, pursuant to law, a report entitled mittee of the Senate. EC–4156. A communication from the Sec- ‘‘Fiscal Year 2009 Agency Financial Report’’; retary of Health and Human Services, trans- to the Committee on Homeland Security and f mitting, pursuant to law, the report of a pe- Governmental Affairs. INTRODUCTION OF BILLS AND tition to add workers from Piqua Organic EC–4167. A communication from the US– JOINT RESOLUTIONS Moderated Reactor in Piqua, Ohio, to the VISIT Program Director, National Protec- Special Exposure Cohort; to the Committee tion and Programs Directorate, Department The following bills and joint resolu- on Health, Education, Labor, and Pensions. of Homeland Security, transmitting, pursu- tions were introduced, read the first

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00088 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13883 and second times by unanimous con- BOND) was added as a cosponsor of S. and businesses the chance to recover sent, and referred as indicated: 2854, a bill to amend the Internal Rev- and rebuild. By Mrs. LINCOLN (for herself and Mr. enue Code of 1986 to extend and modify Mr. President, I ask unanimous con- SANDERS): the credit for new qualified hybrid sent that the text of the bill be printed S. 2926. A bill to amend the XVIII of the motor vehicles, and for other purposes. in the RECORD. Social Security Act to provide for the appli- S. 2925 There being no objection, the text of cation of a consistent Medicare part B pre- At the request of Mr. WYDEN, the the bill was ordered to be printed in mium for all Medicare beneficiaries in a the RECORD, as follows: budget neutral manner for 2010, to provide an name of the Senator from Minnesota S. 2928 additional round of economic recovery pay- (Mr. FRANKEN) was added as a cospon- ments to certain beneficiaries, and to assess sor of S. 2925, a bill to establish a grant Be it enacted by the Senate and House of Rep- the need for a consumer price index for elder- program to benefit victims of sex traf- resentatives of the United States of America in ly consumers to compute cost-of-living in- ficking, and for other purposes. Congress assembled, SECTION 1. SHORT TITLE. creases for certain governmental benefits; to AMENDMENT NO. 2995 the Committee on Finance. This Act may be cited as the ‘‘Heartland At the request of Mr. SCHUMER, the By Mr. HARKIN (for himself, Mr. Disaster Tax Relief Extension Act of 2009’’. name of the Senator from Michigan SANDERS, Mr. WHITEHOUSE, and Mr. TITLE I—HEARTLAND DISASTER AREAS (Ms. STABENOW) was added as a cospon- BROWN): SEC. 101. CREDIT TO HOLDERS OF TAX CREDIT S. 2927. A bill to amend the Internal Rev- sor of amendment No. 2995 intended to BONDS. enue Code of 1986 to impose a tax on certain be proposed to H.R. 3590, a bill to Section 702(d)(7)(C) of the Heartland Dis- securities transactions to fund job creation amend the Internal Revenue Code of aster Tax Relief Act of 2008 (Public Law 110– and deficit reduction, and for other purposes; 1986 to modify the first-time home- 343; 122 Stat. 3918) is amended by striking to the Committee on Finance. buyers credit in the case of members of ‘‘January 1, 2010’’ and inserting ‘‘January 1, By Mr. GRASSLEY: the Armed Forces and certain other 2011’’. S. 2928. A bill to amend the Internal Rev- Federal employees, and for other pur- SEC. 102. EDUCATION TAX BENEFITS. enue Code of 1986 to extend certain disaster Section 702(d)(8) of the Heartland Disaster tax relief provisions, and for other purposes; poses. Tax Relief Act of 2008 (Public Law 110–343; to the Committee on Finance. AMENDMENT NO. 3264 122 Stat. 3918) is amended by striking ‘‘or By Mr. FEINGOLD (for himself and Mr. At the request of Mr. WYDEN, the 2009’’ and inserting ‘‘2009, or 2010’’. WHITEHOUSE): name of the Senator from Oregon (Mr. SEC. 103. SPECIAL RULES FOR USE OF RETIRE- S. 2929. A bill to prohibit secret modifica- MERKLEY) was added as a cosponsor of MENT FUNDS. tions and revocations of the law, and for amendment No. 3264 intended to be pro- Section 702(d)(10) of the Heartland Disaster other purposes; to the Committee on Home- posed to H.R. 3590, a bill to amend the Tax Relief Act of 2008 (Public Law 110–343; land Security and Governmental Affairs. 122 Stat. 3918) is amended— By Mr. SPECTER (for himself, Mr. Internal Revenue Code of 1986 to mod- (1) by striking ‘‘January 1, 2010’’ both SCHUMER, and Mr. GRAHAM): ify the first-time homebuyers credit in places it appears and inserting ‘‘January 1, S. 2930. A bill to deter terrorism, provide the case of members of the Armed 2011’’, and justice for victims, and for other purposes; to Forces and certain other Federal em- (2) by striking ‘‘December 31, 2009’’ both the Committee on the Judiciary. ployees, and for other purposes. places it appears and inserting ‘‘December 31, 2010’’. f f SEC. 104. ADJUSTMENTS REGARDING TAXPAYER ADDITIONAL COSPONSORS STATEMENTS ON INTRODUCED AND DEPENDENCY STATUS. S. 624 BILLS AND JOINT RESOLUTIONS Section 702(d)(15) of the Heartland Disaster Tax Relief Act of 2008 (Public Law 110–343; At the request of Mr. DURBIN, the By Mr. GRASSLEY: name of the Senator from New Jersey 122 Stat. 3918) is amended by striking ‘‘or S. 2928. A bill to amend the Internal 2009’’ and inserting ‘‘2009, or 2010’’. (Mr. LAUTENBERG) was added as a co- Revenue Code of 1986 to extend certain SEC. 105. EFFECTIVE DATE. sponsor of S. 624, a bill to provide disaster tax relief provisions, and for The amendments made by this title shall 100,000,000 people with first-time access other purposes; to the Committee on take effect as if included in the enactment of to safe drinking water and sanitation Finance. section 702 of the Heartland Disaster Tax Re- on a sustainable basis by 2015 by im- Mr. GRASSLEY. Mr. President, lief Act of 2008. proving the capacity of the United today I have introduced a bill to extend TITLE II—NATIONAL DISASTER AREAS States Government to fully implement deadlines for a number of provisions in SEC. 201. LOSSES ATTRIBUTABLE TO FEDERALLY the Senator Paul Simon Water for the the Heartland Disaster Tax Relief Act DECLARED DISASTERS. Poor Act of 2005. of 2008, as well as a number of national (a) NO LIMIT FOR 2010.—Paragraph (1) of section 165(h) of the Internal Revenue Code S. 891 disaster tax relief provisions, through of 1986 is amended by striking ‘‘$500 ($100 for At the request of Mr. BROWNBACK, the 2010. taxable years beginning after December 31, name of the Senator from Ohio (Mr. The Heartland Disaster Tax Relief 2009)’’ and inserting ‘‘$100 ($0 for taxable BROWN) was added as a cosponsor of S. Act has been critical in rebuilding the years beginning after December 31, 2009, and 891, a bill to require annual disclosure lives and communities of those affected before January 1, 2011)’’. to the Securities and Exchange Com- by the terrible floods and tornadoes (b) EFFECTIVE DATE.—The amendment mission of activities involving colum- from last year. made by this section shall apply to taxable years beginning after December 31, 2009. bite—tantalite, cassiterite, and wolf- Because of delays in Federal funding and tighter credit conditions, many in- SEC. 202. EXPENSING OF QUALIFIED DISASTER ramite from the Democratic Republic EXPENSES. of Congo, and for other purposes. dividuals, families, and businesses af- (a) IN GENERAL.—Subparagraph (A) of sec- fected by the 2008 floods and storms S. 1402 tion 198A(b)(2) of the Internal Revenue Code will be unable to meet the deadline for At the request of Mr. SPECTER, his of 1986 is amended by striking ‘‘January 1, name was added as a cosponsor of S. the tax relief intended to help with re- 2010’’ and inserting ‘‘January 1, 2011’’. (b) EFFECTIVE DATE.—The amendment 1402, a bill to amend the Internal Rev- covery. Louisiana is still rebuilding from made by this section shall apply to disasters enue Code of 1986 to increase the Hurricane Katrina in 2005. Congress ex- occurring after December 31, 2009. amount allowed as a deduction for tended tax incentives for that disaster SEC. 203. NET OPERATING LOSSES ATTRIB- start-up expenditures. UTABLE TO FEDERALLY DECLARED twice, and might even extend them a DISASTERS. S. 2824 third time. I am just proposing a sec- (a) IN GENERAL.—Subclause (I) of section At the request of Mr. KOHL, the name ond year of the same kind of tax incen- 172(j)(1)(A)(i) of the Internal Revenue Code of of the Senator from New Jersey (Mr. tives that have been in effect for Hurri- 1986 is amended by striking ‘‘January 1, 2010’’ MENENDEZ) was added as a cosponsor of cane Katrina victims for over 4 years. and inserting ‘‘January 1, 2011’’. S. 2824, a bill to establish a small dollar This is especially important when (b) EFFECTIVE DATE.—The amendment loan-loss guarantee fund, and for other made by this section shall apply to disasters small businesses are struggling to re- occurring after December 31, 2009. purposes. cover, and small businesses create 70 SEC. 204. WAIVER OF CERTAIN MORTGAGE REV- S. 2854 percent of all net new jobs. ENUE BOND REQUIREMENTS. At the request of Mr. KOHL, the name It is only fair to extend the deadlines (a) IN GENERAL.—Paragraph (11) of section of the Senator from Missouri (Mr. and give these individuals, families, 143(k) of the Internal Revenue Code of 1986 is

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00089 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13884 CONGRESSIONAL RECORD — SENATE December 23, 2009 amended by striking ‘‘January 1, 2010’’ and The Office of Legal Counsel memo- or modifies an unpublished Executive inserting ‘‘January 1, 2011’’. randum that contains this position is Order—even if the substance of the un- (b) EFFECTIVE DATE.—The amendment still classified, but Senator published order is well-known to Con- made by this section shall apply to bonds WHITEHOUSE convinced the Department gress and even the American people. issued after December 31, 2009. of Justice to declassify certain propo- This bill is narrowly aimed at the situ- SEC. 205. SPECIAL DEPRECIATION ALLOWANCE FOR QUALIFIED DISASTER PROP- sitions in the memorandum. Among ation in which the American people ERTY. them is the proposition that have been given official notice of one (a) IN GENERAL.—Subclause (I) of section ‘‘[w]henever [the President] wishes to version of the law, but a different 168(n)(2)(A)(ii) of the Internal Revenue Code depart from the terms of a previous ex- version is being implemented. of 1986 is amended by striking ‘‘January 1, ecutive order,’’ he may do so, because Third, the bill does not require the 2010’’ and inserting ‘‘January 1, 2011’’. ‘‘an executive order cannot limit a President to adhere to the terms of an (b) EFFECTIVE DATE.—The amendment President.’’ And he doesn’t have to Executive Order. Many scholars have made by this section shall apply to disasters occurring after December 31, 2009. change the executive order, or give no- argued that a President must adhere to tice that he is violating it, because by a formally promulgated Executive By Mr. FEINGOLD (for himself ‘‘depart[ing] from the executive order,’’ Order unless or until the Order is for- and Mr. WHITEHOUSE): the President ‘‘has instead modified or mally withdrawn or amended, just as S. 2929. A bill to prohibit secret modi- waived it.’’ the head of an agency must adhere to fications and revocations of the law, Now, no one disputes that a Presi- the agency’s regulations. I happen to and for other purposes; to the Com- dent can withdraw or revise an Execu- agree. But this bill does not take issue mittee on Homeland Security and Gov- tive Order at any time; that is every with the Bush administration’s asser- ernmental Affairs. President’s prerogative. But abro- tion that any deviation from the Exec- Mr. FEINGOLD. Mr. President, today gating a published Executive Order utive Order by the President is a per- Senator WHITEHOUSE and I will intro- without any public notice works a se- missible amendment of that Order. It duce the Executive Order Integrity Act cret change in the law. Worse, because simply requires public notice that the of 2009. The bill prevents secret the published Order stays on the books, amendment has occurred. changes to published Executive Orders it actively misleads Congress and the Fourth, the bill does not require the by requiring the President to place a public as to what the law is. publication of classified information notice in the Federal Register when he This is not just a hypothetical prob- about intelligence sources and methods has modified or revoked a published lem dreamed up by the Office of Legal or similar information. The basic fact Order. Through this simple measure, Counsel. It has happened, and it could that the published law is no longer in the bill takes an important step toward happen again. To list just one example, effect, however, cannot be classified. reversing the growth of secret law in the Bush administration’s warrantless On rare occasions, national security the executive branch. wiretapping program not only violated can justify elected officials keeping The principle behind this bill is the Foreign Intelligence Surveillance some information secret, but it can straightforward. It is a basic tenet of Act; it was inconsistent with several never justify lying to the American democracy that the people have a right provisions of Executive Order 12333, the people about what the law is. Main- to know the law. Indeed, the notion of longstanding executive order governing taining two different sets of laws, one ‘‘secret law’’ has been described in electronic surveillance and other intel- public and one secret, is just that—de- court opinions and law treatises as ‘‘re- ligence activities. Apparently, the ad- ceiving the American people about pugnant’’ and ‘‘an abomination.’’ ministration believed its actions con- what law applies to the Government’s stituted a tacit amendment of that Ex- That’s why the laws passed by Congress conduct. ecutive Order. Who knows how many It is my hope and my expectation have historically been matters of pub- other Executive Orders were secretly that the Obama administration will lic record. But the law that applies in this coun- revoked or amended by the conduct of not continue the previous administra- try includes more than just statutes. It the administration over the past 8 tion’s practice of purporting to amend years. the law in secret. But even if the ad- includes regulations, the controlling The bill that Senator WHITEHOUSE ministration agrees to end this prac- legal interpretations of courts and the and I are introducing provides a simple tice, that will not end the need for this executive branch, and certain Presi- solution to this problem. If the Presi- legislation. At last year’s Secret Law dential directives. As we learned at a dent revokes, modifies, waives, or sus- hearing, the Deputy Assistant Attor- hearing of the Judiciary Committee’s pends a published Executive Order or ney General for OLC testified that dur- Constitution Subcommittee that I similar directive, notice of this change ing the Iran-Contra scandal in the chaired last year, some of this body of in the law must be placed in the Fed- 1980s, the Reagan Department of Jus- executive and judicial law was increas- eral Register within 30 days. The notice took the same position: that the ingly kept secret from the public, and tice must specify the Order or the pro- President could secretly modify execu- too often from Congress as well, under vision that has been affected; whether tive orders simply by not complying the Bush administration. The adminis- the change is a revocation, a modifica- with them. We can safely assume that tration concealed Department of Jus- tion, a waiver, or a suspension; and the the ability to modify the law in secret tice legal opinions and interpretations nature and circumstances of the will hold as much appeal for a future of the Foreign Intelligence Surveil- change. If information about the na- administration as it did for at least lance Court. ture and circumstances of the change two administrations in the past. We The shroud of secrecy extended to is classified, it is exempt from the pub- can’t wait for this to happen in order Executive Orders and other Presi- lication requirement, but the informa- to act, because we won’t know that it dential directives that carry the force tion still must be provided to Congress has happened—the entire point of the of law. The Federal Register Act reso that we, as legislators, know how practice, after all, is to keep Congress quires the President to publish any Ex- the law has been changed. and the public in the dark. The time to ecutive Orders that have general appli- That is what our bill does; now let prevent this eventuality is now. cability and legal effect. But through me talk briefly about what our bill I commend Senator WHITEHOUSE for the diligent efforts of my colleague does not do. First, it does not expand his tireless work to bring this issue to Senator WHITEHOUSE, we learned in the existing legal requirements, under light, and I urge all of my colleagues in late 2007 that the Department of Jus- the Federal Register Act, that deter- the Senate to support this modest ef- tice took the position that a President mine which Executive Orders must be fort to ensure the integrity of our pub- can ‘‘waive’’ or ‘‘modify’’ any Execu- published. To the extent the Federal lished laws. tive Order without any notice to the Register Act permits a certain amount Mr. President, I ask unanimous con- public or Congress—simply by not fol- of ‘‘secret law’’ in the form of unpub- sent that the text of the bill be printed lowing it. In other words, even in cases lished Executive Orders, our bill leaves in the RECORD. where the President is required to that framework in place. There being no objection, the text of make the public, the President can Second, our bill does not require pub- the bill was ordered to be printed in change the law in secret. lic notice when the President revokes the RECORD, as follows:

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00090 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — SENATE S13885 S. 2929 authorizing or prohibiting the revocation, other tortious conduct that results in Be it enacted by the Senate and House of Rep- modification, waiver, or suspension of any injury on our soil. The ATA authorizes resentatives of the United States of America in Presidential proclamation, Executive Order, suit in Federal court by any U.S. na- Congress assembled, or other Presidential directive that was pub- tional injured ‘‘by reason of an act of lished in the Federal Register through means SECTION 1. SHORT TITLE. international terrorism’’ and permits This Act may be cited as the ‘‘Executive other than a formal directive issued by the Order Integrity Act of 2009’’. President and published in the Federal Reg- the recovery of ‘‘threefold the damages SEC. 2. REVOCATIONS, MODIFICATIONS, WAIV- ister.’’. he or she sustains’’, that is, treble ERS, AND SUSPENSIONS OF PRESI- damages, as well the costs of suit and DENTIAL PROCLAMATIONS AND EX- By Mr. SPECTER (for himself, attorneys’ fees. ‘‘18 U.S.C. § 2333(a). ECUTIVE ORDERS. Mr. SCHUMER, and Mr. But a number of lower Federal courts Section 1505 of title 44, United States Code, GRAHAM): have frustrated Congress’s intent by is amended by adding at the end the fol- S. 2930. A bill to deter terrorism, pro- lowing: erecting unfounded jurisdictional bar- ‘‘(d) REVOCATIONS, MODIFICATIONS, WAIV- vide justice for victims, and for other riers to suit. No such decision is more ERS, AND SUSPENSIONS OF PRESIDENTIAL purposes; to the Committee on the Ju- significant in its effect than the Court PROCLAMATIONS AND EXECUTIVE ORDERS.— diciary. of Appeals for the Second Circuit’s In ‘‘(1) NOTICE REQUIRED.—If the President, Mr. SPECTER. Mr. President, l have re Terrorist Attacks on September 11, whether formally or informally, and whether sought recognition to urge support for 2001, 538 F. 3d 71 (2d Cir. 2009). That de- through express order, conduct, or other the legislation I have just introduced, cision arose from litigation brought by means— the Justice Against Sponsors of Ter- ‘‘(A) revokes, modifies, waives, or suspends the victims of the 9/11 attacks, includ- any portion of a Presidential proclamation, rorism Act. The legislation would ing family members of the nearly 3,000 Executive Order, or other Presidential direc- amend the Foreign Sovereign Immuni- innocent people killed and commercial tive that was published in the Federal Reg- ties Act, FSIA, and the Anti-Terrorism entities that suffered in excess of $10 ister; or Act, ATA, to ensure that foreign spon- billion in damage to their property. ‘‘(B) authorizes the revocation, modifica- sors of terrorism are held accountable The plaintiffs sought damages against, tion, waiver, or suspension of any portion of to their American victims in our among other defendants, the Kingdom such Presidential proclamation, Executive courts. These amendments are nec- Order, or other Presidential directive; of Saudi Arabia, several Saudi officials, essary because some lower-court deci- and a purported charity under the con- notice of such revocation, modification, sions have deprived victims of ter- waiver, or suspension shall be published in trol of the Kingdom known as the the Federal Register within 30 days after the rorism, including most recently 9/11’s Saudi High Commission for Relief of revocation, modification, waiver, or suspen- victims, of the legal remedies Congress Bosnia and Herzegovina. Substantial sion, in accordance with the terms under intended to confer on them when it en- evidence establishes that these defend- paragraph (2). acted the FSIA and ATA, and thereby ants had provided funding and sponsor- ‘‘(2) CONTENT OF NOTICE.— removed a critical deterrent to the fi- ship to al-Qaeda without which it could ‘‘(A) IN GENERAL.—Except as provided nancing and sponsorship of terrorism. not have carried out the 9/11 attacks. under subparagraph (B), the notice required Congressional inaction would leave the under paragraph (1) shall specify— Even the Second Circuit acknowledged ‘‘(i) the Presidential proclamation, Execu- victims of 9/11 without recourse against that plaintiffs had offered a ‘‘wealth of tive Order, or other Presidential directive, the sponsors of al-Qaeda and, more im- detail, conscientiously cited to pub- and any particular portion thereof that is af- portantly perhaps, render the FSIA and lished and unpublished sources,’’ as to fected; the ATA ineffective deterrents to fu- the defendants’ sponsorship of al- ‘‘(ii) for each affected directive or portion ture terrorist attacks. Qaeda. thereof, whether that directive or portion Recent news reports serve as a re- None of the plaintiffs had their day thereof was revoked, modified, waived, or minder that al-Qaeda and other foreign in court, however, for the Second Cir- suspended; and terrorist organizations remain dedi- ‘‘(iii) except where such information is cuit ruled that the Federal courts have classified, the specific nature and cir- cated to their declared goal of carrying no jurisdiction over the principal de- cumstances of the revocation, modification, out large-scale terrorist attacks within fendants. As for Saudi Arabia and its waiver, or suspension. the U.S. In our continuous efforts to official state agencies, the Second Cir- ‘‘(B) REVISED EXECUTIVE ORDER.—Where the prevent such attacks, we have appro- cuit held that they were not subject to revocation, modification, waiver, or suspen- priately focused our attention on stem- suit under the FSIA’s tort exception sion of a Presidential proclamation, Execu- ming the flow of money to terrorists because, having not been designated by tive Order, or other Presidential directive is through deterrence. As the Treasury the United States as a state sponsor of accomplished through the publication in the Federal Register of a revised Presidential Department’s Undersecretary for Ter- terrorism, Saudi Arabia was not cov- proclamation, Executive Order, or other rorism and Financial Intelligence has ered by a separate FSIA exception for Presidential directive that replaces or observed, ‘‘the terrorist operative who suits against designated state sponsors amends the one that was revoked, modified, is willing to strap on a suicide belt is of terrorism. Suits arising from ter- waived, or suspended, that revised Presi- not susceptible to deterrence, but the rorist activities, the court concluded, dential proclamation, Executive Order, or individual donor who wants to support can only be brought under the FSIA’s other Presidential directive shall constitute violent jihad may well be,’’ Testimony exception governing designated state notice for purposes of paragraph (1). of Stuart Levey, Under Secretary for sponsors of terrorism. As for the Saudi ‘‘(3) CLASSIFIED INFORMATION.—If the information specified under paragraph (2)(A)(iii) Terrorism and Financial Intelligence, princes, the Second Circuit held that is classified, such information shall be pro- before the Senate Committee on Fi- the courts lacked personal jurisdiction vided to Congress, using the security proce- nance, April 1, 2008. Holding them lia- over them because, though they ‘‘could dures established under section 501(d) of the ble for civil damages in courts may be and did foresee [that] the recipients of National Security Act of 1947 (50 U.S.C. the most effective—and, given the ab- their donations would attack targets in 413(d)), in the form of a classified annex de- sence of effective criminal sanctions, the United States,’’ they did not them- livered to— often only—way to deter them from selves ‘‘direct’’ any terrorist attacks or ‘‘(A) the majority and minority leader of the Senate; sponsoring terrorist attacks. ‘‘Suits ‘‘command’’ any ‘‘agent’’ to ‘‘commit ‘‘(B) the Speaker, majority leader, and mi- against financiers of terrorism can,’’ as them.’’ nority leader of the House of Representa- renowned federal judge Richard Posner Both conclusions are wrong. The tives; recently emphasized, ‘‘cut the terror- former is especially troubling because ‘‘(C) the Committee on the Judiciary of the ist’s lifeline.’’ Boim v. Holy Land Foun- it establishes an immunity from suit Senate and the Committee on the Judiciary dation for Relief and Development, 549 F. under the FSIA that Congress did not of the House of Representatives; and 3d 685 (7th Cir. 2008). intend. A foreign state is subject to ‘‘(D) if the information pertains to na- As carefully written by Congress, the suit for its terrorist activities under tional security matters, the Select Com- FSIA abrogates the sovereign immu- the FSIA’s tort exception without re- mittee on Intelligence of the Senate and the Permanent Select Committee on Intelligence nity of foreign countries and permits gard to whether it is subject to suit of the House of Representatives. suit against them in Federal court under the separate exception for des- ‘‘(4) RULE OF CONSTRUCTION.—Nothing in when, among other things, a foreign ignated state sponsors of terrorism— this subsection shall be construed as either country commits terrorists acts or that is, without regard to whether the

VerDate Nov 24 2008 02:41 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00091 Fmt 0624 Sfmt 0634 E:\RECORD09\S23DE9.PT2 S23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE S13886 CONGRESSIONAL RECORD — SENATE December 23, 2009 United States has designated it as a attribution of the source of nuclear material, (6) In order to create a sufficient deterrent, it state sponsor of terrorism. The Second and for other purposes. is necessary to have the capability to positively Circuit effectively read into the tort There being no objection, the Senate identify the source of nuclear or radiological exception an exception for terrorist-re- proceeded to consider the bill, which material, and potential traffickers in nuclear or radiological material must be aware of that ca- lated torts. Even the Solicitor General, had been reported from the Committee pability. International cooperation may be es- who has adopted an unduly restrictive on Homeland Security and Govern- sential to catalogue all existing sources of nu- interpretation of the FSIA’s excep- mental Affairs with an amendment to clear or radiological material. tions, concluded that the Second Cir- strike all after the enacting clause and SEC. 3. SENSE OF CONGRESS ON INTERNATIONAL cuit misread the statute on this crit- insert in lieu thereof the following: AGREEMENTS FOR FORENSICS CO- OPERATION. ical point. SECTION 1. SHORT TITLE. It is the sense of the Congress that the Presi- This Act may be cited as the ‘‘Nuclear The Second Circuit’s and other lower dent should— courts’ decisions on these seemingly Forensics and Attribution Act’’. (1) pursue bilateral and multilateral inter- technical jurisdictional points not only SEC. 2. FINDINGS. national agreements to establish, or seek to es- deprive the victims of terrorism the Congress finds the following: tablish under the auspices of existing bilateral compensation to which they are enti- (1) The threat of a nuclear terrorist attack on or multilateral agreements, an international American interests, both domestic and abroad, is framework for determining the source of any tled but also remove a powerful weapon one of the most serious threats to the national in our arsenal against foreign ter- confiscated nuclear or radiological material or security of the United States. In the wake of an weapon, as well as the source of any detonated rorism. We can no longer wait for the attack, attribution of responsibility would be of weapon and the nuclear or radiological material Supreme Court to correct these errant utmost importance. Because of the destructive used in such a weapon; decisions. The Court’s refusal earlier power of a nuclear weapon, there could be little (2) develop protocols for the data exchange this year to hear the plaintiffs’ appeal forensic evidence except the radioactive material and dissemination of sensitive information relat- of the Second Circuit’s decision in In re in the weapon itself. ing to nuclear or radiological materials and Terrorist Attacks, despite the impor- (2) Through advanced nuclear forensics, using samples of controlled nuclear or radiological both existing techniques and those under devel- tance of the case and the conflicts materials, to the extent required by the agree- opment, it may be possible to identify the source ments entered into under paragraph (1); and among the lower courts on the key and pathway of a weapon or material after it is (3) develop expedited protocols for the data issues it presents, suggests that the interdicted or detonated. Though identifying exchange and dissemination of sensitive infor- Court may well never do so. intercepted smuggled material is now possible in mation needed to publicly identify the source of That is why I have introduced the some cases, pre-detonation forensics is a rel- a nuclear detonation. Justice Against Sponsors of Terrorism atively undeveloped field. The post-detonation SEC. 4. RESPONSIBILITIES OF DOMESTIC NU- Act. The act is main provisions would nuclear forensics field is also immature, and the CLEAR DETECTION OFFICE. amend FSIA to make clear that, as challenges are compounded by the pressures and (a) ADDITIONAL RESPONSIBILITIES.—Section time constraints of performing forensics after a Congress originally intended, a foreign 1902 of the Homeland Security Act of 2002 (as re- nuclear or radiological attack. designated by Public Law 110–53; 6 U.S.C. 592) state may be sued under the torts ex- (3) A robust and well-known capability to is amended— ception if it sponsors terrorists who identify the source of nuclear or radiological (1) in subsection (a)— commit terrorist attacks on our soil, material intended for or used in an act of terror (A) in paragraph (9), by striking ‘‘and’’ after without regard to whether it is a state- could also deter prospective proliferators. Fur- the semicolon; designated sponsor of terrorism, and thermore, the threat of effective attribution (B) by redesignating paragraph (10) as para- could compel improved security at material stor- graph (14); and amend the ATA to ensure that its anti- (C) by inserting after paragraph (9) the fol- terrorism provisions, like FSIA’s, are age facilities, preventing the unwitting transfer of nuclear or radiological materials. lowing: given the meaning Congress intended. I (4)(A) In order to identify special nuclear ma- ‘‘(10) lead the development and implementa- urge my colleagues to support these terial and other radioactive materials con- tion of the national strategic five-year plan for modest, but critical, amendments. fidently, it is necessary to have a robust capa- improving the nuclear forensic and attribution capabilities of the United States required under f bility to acquire samples in a timely manner, analyze and characterize samples, and compare section 1036 of the National Defense Authoriza- AUTHORITY FOR COMMITTEES TO samples against known signatures of nuclear tion Act for Fiscal Year 2010; ‘‘(11) establish, within the Domestic Nuclear MEET and radiological material. (B) Many of the radioisotopes produced in the Detection Office, the National Technical Nu- COMMITTEE ON FINANCE detonation of a nuclear device have short half- clear Forensics Center to provide centralized Mr. BAUCUS. Mr. President, I ask lives, so the timely acquisition of samples is of stewardship, planning, assessment, gap anal- unanimous consent that the Com- the utmost importance. Over the past several ysis, exercises, improvement, and integration for all Federal nuclear forensics and attribution ac- mittee on Finance be authorized to decades, the ability of the United States to gather atmospheric samples—often the preferred tivities— meet during the session of the Senate ‘‘(A) to ensure an enduring national technical method of sample acquisition—has diminished. on December 23, 2009, at 2 p.m. nuclear forensics capability to strengthen the This ability must be restored and modern tech- collective response of the United States to nu- The PRESIDING OFFICER. Without niques that could complement or replace existing clear terrorism or other nuclear attacks; and objection, it is so ordered. techniques should be pursued. ‘‘(B) to coordinate and implement the na- (C) The discipline of pre-detonation forensics f tional strategic five-year plan referred to in is a relatively undeveloped field. The radiation paragraph (10); PRIVILEGES OF THE FLOOR associated with a nuclear or radiological device ‘‘(12) establish a National Nuclear Forensics Mr. CRAPO. Mr. President, I ask may affect traditional forensics techniques in Expertise Development Program, which— unknown ways. In a post-detonation scenario, ‘‘(A) is devoted to developing and maintaining unanimous consent that Marques Cha- radiochemistry may provide the most useful vez be granted the privilege of the floor a vibrant and enduring academic pathway from tools for analysis and characterization of sam- undergraduate to post-doctorate study in nu- for the remainder of today’s session. ples. The number of radiochemistry programs clear and geochemical science specialties di- The PRESIDING OFFICER. Without and radiochemists in United States National rectly relevant to technical nuclear forensics, objection, it is so ordered. Laboratories and universities has dramatically including radiochemistry, geochemistry, nuclear declined over the past several decades. The nar- f physics, nuclear engineering, materials science, rowing pipeline of qualified people into this crit- and analytical chemistry; NUCLEAR FORENSICS AND ical field is a serious impediment to maintaining ‘‘(B) shall— ATTRIBUTION ACT a robust and credible nuclear forensics program. ‘‘(i) make available for undergraduate study (5) Once samples have been acquired and student scholarships, with a duration of up to 4 Mr. CASEY. Mr. President, I ask characterized, it is necessary to compare the re- years per student, which shall include, if pos- unanimous consent that the Senate sults against samples of known material from re- sible, at least 1 summer internship at a national proceed to the immediate consider- actors, weapons, and enrichment facilities, and laboratory or appropriate Federal agency in the ation of Calendar No. 244, H.R. 730. from medical, academic, commercial, and other field of technical nuclear forensics during the The PRESIDING OFFICER. The facilities containing such materials, throughout course of the student’s undergraduate career; the world. Some of these samples are available clerk will report the bill by title. ‘‘(ii) make available for doctoral study student to the International Atomic Energy Agency fellowships, with a duration of up to 5 years per The bill clerk read as follows: through safeguards agreements, and some coun- student, which shall— A bill (H.R. 730) to strengthen efforts in the tries maintain internal sample databases. Access ‘‘(I) include, if possible, at least 2 summer in- Department of Homeland Security to de- to samples in many countries is limited by na- ternships at a national laboratory or appro- velop nuclear forensics capabilities to permit tional security concerns. priate Federal agency in the field of technical

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The after graduation; ‘‘(3) HAWAIIAN NATIVE-SERVING INSTITUTION.— clerk will report the bill by title. ‘‘(iii) make available to faculty awards, with The term ‘Hawaiian native-serving institution’ The bill clerk read as follows: a duration of 3 to 5 years each, to ensure fac- has the meaning given the term in section 317 of A bill (H.R. 3819) to extend the commercial ulty and their graduate students have a sus- the Higher Education Act of 1965 (20 U.S.C. space transportation liability regime. tained funding stream; and 1059d). ‘‘(iv) place a particular emphasis on reinvigo- There being no objection, the Senate ‘‘(4) HISPANIC-SERVING INSTITUTION.—The proceeded to consider the bill. rating technical nuclear forensics programs term ‘Hispanic-serving institution’ has the while encouraging the participation of under- meaning given that term in section 502 of the Mr. CASEY. Mr. President, I ask graduate students, graduate students, and uni- Higher Education Act of 1965 (20 U.S.C. 1101a). unanimous consent that the bill be versity faculty from historically Black colleges ‘‘(5) HISTORICALLY BLACK COLLEGE OR UNIVER- read a third time, passed, and the mo- and universities, Hispanic-serving institutions, SITY.—The term ‘historically Black college or tion to reconsider be laid upon the Tribal Colleges and Universities, Asian Amer- university’ has the meaning given the term ‘part table and any statements be printed in ican and Native American Pacific Islander-serv- B institution’ in section 322(2) of the Higher the RECORD. ing institutions, Alaska Native-serving institu- Education Act of 1965 (20 U.S.C. 1061(2)). tions, and Hawaiian Native-serving institutions; The PRESIDING OFFICER. Without ‘‘(6) TRIBAL COLLEGE OR UNIVERSITY.—The objection, it is so ordered. and term ‘Tribal College or University’ has the ‘‘(C) shall— The bill (H.R. 3819) was ordered to be meaning given that term in section 316(b) of the ‘‘(i) provide for the selection of individuals to Higher Education Act of 1965 (20 U.S.C. read a third time, was read the third receive scholarships or fellowships under this 1059c(b)).’’. time, and passed. section through a competitive process primarily (b) JOINT INTERAGENCY ANNUAL REPORTING on the basis of academic merit and the nuclear f REQUIREMENT TO CONGRESS AND THE PRESI- forensics and attribution needs of the United DENT.— DISCHARGE AND REFERRAL— States Government; EXECUTIVE NOMINATION ‘‘(ii) provide for the setting aside of up to 10 (1) IN GENERAL.—Section 1907(a)(1) of the percent of the scholarships or fellowships Homeland Security Act of 2002 (6 U.S.C. Mr. CASEY. Mr. President, as in ex- awarded under this section for individuals who 596a(a)(1)) is amended— ecutive session, I ask unanimous con- are Federal employees to enhance the education (A) in subparagraph (A)(ii), by striking ‘‘; sent that the Committee on Environ- and’’ and inserting a semicolon; of such employees in areas of critical nuclear ment and Public Works be discharged forensics and attribution needs of the United (B) in subparagraph (B)(iii), by striking the period at the end and inserting ‘‘; and’’; and from further consideration of the fol- States Government, for doctoral education lowing nomination and that the nomi- under the scholarship on a full-time or part-time (C) by adding at the end the following new basis; subparagraph: nation be referred to the Committee on ‘‘(iii) provide that the Secretary may enter ‘‘(C) the Director of the Domestic Nuclear De- Commerce, Science, and Transpor- into a contractual agreement with an institution tection Office and each of the relevant depart- tation: ments that are partners in the National Tech- of higher education under which the amounts Timothy McGee, of Louisiana, to be an As- nical Forensics Center— provided for a scholarship under this section for sistant Secretary of Commerce. tuition, fees, and other authorized expenses are ‘‘(i) include, as part of the assessments, eval- paid directly to the institution with respect to uations, and reviews required under this para- The PRESIDING OFFICER. Without which such scholarship is awarded; graph, each office’s or department’s activities objection, it is so ordered. ‘‘(iv) require scholarship recipients to main- and investments in support of nuclear forensics f tain satisfactory academic progress; and and attribution activities and specific goals and ‘‘(v) require that— objectives accomplished during the previous ORDERS FOR THURSDAY, ‘‘(I) a scholarship recipient who fails to main- year pursuant to the national strategic five-year DECEMBER 24, 2009 tain a high level of academic standing, as de- plan for improving the nuclear forensic and at- Mr. CASEY. I ask unanimous consent fined by the Secretary, who is dismissed for distribution capabilities of the United States re- that when the Senate completes its ciplinary reasons from the educational institu- quired under section 1036 of the National De- tion such recipient is attending, or who volun- fense Authorization Act for Fiscal Year 2010; business today, it adjourn until 6:45 tarily terminates academic training before grad- ‘‘(ii) attaches, as an appendix to the Joint a.m., Thursday, December 24; that fol- uation from the educational program for which Interagency Annual Review, the most current lowing the prayer and pledge, the Jour- the scholarship was awarded shall be liable to version of such strategy and plan; and nal of proceedings be approved to date, the United States for repayment within 1 year ‘‘(iii) includes a description of new or amend- the morning hour be deemed expired, after the date of such default of all scholarship ed bilateral and multilateral agreements and ef- the time for the two leaders be re- funds paid to such recipient and to the institu- forts in support of nuclear forensics and attribu- served for their use later in the day, tion of higher education on the behalf of such tion activities accomplished during the previous and the Senate resume consideration of recipient, provided that the repayment period year.’’. H.R. 3590, with the time until 7 a.m. may be extended by the Secretary if the Sec- Mr. CASEY. I ask unanimous consent retary determines it necessary, as established by equally divided and controlled between regulation; and that the committee substitute amend- the two leaders or their designees, and ‘‘(II) a scholarship recipient who, for any rea- ment be agreed to, the bill, as amend- the Senate proceed to vote on passage son except death or disability, fails to begin or ed, be read a third time and passed, the of the bill at 7 a.m., as provided for complete the post-doctoral service requirements motions to reconsider be laid upon the under the previous order. in a technical nuclear forensics-related specialty table, with no intervening action or de- The PRESIDING OFFICER. Without at a national laboratory or appropriate Federal bate, and any statements be printed in objection, it is so ordered. agency after completion of academic training the RECORD. f shall be liable to the United States for an The PRESIDING OFFICER. Without amount equal to— ‘‘(aa) the total amount of the scholarship re- objection, it is so ordered. PROGRAM ceived by such recipient under this section; and The committee amendment in the Mr. CASEY. Mr. President, there will ‘‘(bb) the interest on such amounts which nature of a substitute was agreed to. be two rollcall votes beginning at 7 would be payable if at the time the scholarship The amendment was ordered to be a.m. tomorrow. The first vote will be was received such scholarship was a loan bear- engrossed and the bill to be read a on passage of H.R. 3590. The second ing interest at the maximum legally prevailing third time. rate; vote will be on passage of H.R. 4314. ‘‘(13) provide an annual report to Congress on The bill (H.R. 730), as amended, was Senators are encouraged to be in the the activities carried out under paragraphs (10), read the third time and passed. Chamber at the beginning of the first (11), and (12); and’’; and f vote and to vote from their desks. (2) by adding at the end the following new f subsection: EXTENDING THE COMMERCIAL ‘‘(b) DEFINITIONS.—In this section: SPACE TRANSPORTATION LI- ADJOURNMENT UNTIL 6:45 A.M. ‘‘(1) ALASKA NATIVE-SERVING INSTITUTION.— ABILITY REGIME TOMORROW The term ‘Alaska Native-serving institution’ has the meaning given the term in section 317 of the Mr. CASEY. Mr. President, I ask Mr. CASEY. If there is no further Higher Education Act of 1965 (20 U.S.C. 1059d). unanimous consent that the Senate business to come before the Senate, I

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DEPARTMENT OF DEFENSE In 1962 Jim joined WMAL, the predecessor Mr. Clarke had been out late in Virginia cov- APPROPRIATIONS ACT, 2010 of WJLA (ABC Channel 7), where he served ering a story that was in danger of not mak- as a dedicated television journalist for more ing the 6 o’clock evening news. SPEECH OF According to his co-worker John Corcoran, than 40 years. Jim did an outstanding job for rather than not make the broadcast, Mr. HON. BETTY McCOLLUM Channel 7 and served our region well before Clarke hopped a ride on the station’s heli- retiring just a few years ago. Jim was a man OF MINNESOTA copter and ordered an assignment editor and of integrity and will be sorely missed by all intern to pick up an emergency blanket and IN THE HOUSE OF REPRESENTATIVES who had the pleasure of knowing him. My meet him on the roof of the station. The Wednesday, December 16, 2009 thoughts and prayers go out to his wife, Lizbe, problem was, there was no helicopter landing pad. Ms. MCCOLLUM. Madam Speaker, I rise to and the rest of his family during these difficult Leaning outside the hovering helicopter, express my support for H.R. 3326, the Depart- times. I would like to share an obituary for Jim that Mr. Clarke dropped the tape from his report ment of Defense Appropriations Act for Fiscal into the outstretched blanket below, and the Year 2010. This legislation provides the need- ran in the Washington Post on December 22. segment made it into the editing bays for ed support, resources, and equipment for [From the Washington Post, Dec. 22, 2009] that evening’s news. America’s brave men and women in uniform. JIM CLARKE, EMMY-WINNING WJLA ANCHOR f With the passage of H.R. 3326, Congress AND REPORTER, DIES will affirm its commitment to America’s Armed (By T. Rees Shapiro) INTRODUCING DECABROMINE Forces, both overseas in a theater of war and Jim Clarke, 75, an Emmy Award-winning ELIMINATION AND CONTROL ACT here at home when they return from duty. I television journalist for more than 40 years am pleased that this bill recognizes the incred- at what became WJLA (Channel 7), died Dec. 21 at his home in Annandale. Mr. Clarke had HON. CHELLIE PINGREE ible sacrifice made by our troops and their a heart attack in his sleep after shoveling OF MAINE families. It provides an increase in military snow for most of the day before. IN THE HOUSE OF REPRESENTATIVES pay, first-class medical care, and expanded In 1962, Mr. Clarke joined WMAL, the pred- Wednesday, December 23, 2009 support and counseling for military families en- ecessor to WJLA, as an evening news anchor during the burdens of war. and reporter. During his career at the ABC Ms. PINGREE of Maine. Madam Speaker, I But the sacrifices made for national security News affiliate, his work included covering am very proud to introduce the Decabromine should not be for our troops and their families the race riots after the assassination of the Elimination and Control Act today. to bear alone. When the country commits to Rev. Martin Luther King, Jr., the trial of the Since 2005 there have been 44 state-based failed presidential assassin John Hinckley, initiatives to ban brominated flame retardants fighting a war, it must also commit to paying Jr. and the Iran-Contra hearings. for it. All additional funding necessary for sta- Mr. Clarke focused many of his investiga- (PBDEs), but only four have been signed into bility in Afghanistan and Pakistan must be tions on consumer advocacy stories and gov- law, including one in my home state of Maine. paid for today, rather than added to America’s ernment corruption. He won numerous That bill was sponsored by my daughter, mounting debt. That is why I joined my col- awards for his work, including nine local Maine Speaker of the House Hannah Pingree, leagues in cosponsoring H.R. 4130, a bill that Emmy Awards, the Ted Yates award for cou- and passed by the Maine legislature. would establish a temporary surtax to pay for rageous journalism and the National Head- Today, I am honored to continue the long liner Award for an investigative report on the war in Afghanistan. tradition of bringing good ideas from Maine to abuses at St. Elizabeths Hospital, where sev- Washington. Madam Speaker, I am also pleased that eral psychiatric patients died from neglect. H.R. 3326 increases oversight of the Depart- Mr. Clarke was in Norway when the news PBDEs are known endocrine disruptors, ment of Defense to reign in waste, fraud, and broke in 1998 about the sex scandal sur- interfering with the transmission and regulation abuse. It ensures that defense personnel—not rounding President Bill Clinton and former of thyroid and reproductive hormones. Expo- outside contractors—perform the department’s White House intern Monica Lewinsky, and sure of infants to PBDEs is of particular con- most critical functions, and calls for additional he caught the first flight back to begin his cern because these chemicals have produced coverage. To get a head start during the investigators to oversee those contracts that developmental neurotoxicity in laboratory ani- plane ride home, he wrote his script for the mals, impairing memory, learning and behav- are outsourced. next newscast on the back of an airsickness Finally, in addition to critical spending for bag. ior. Even more worrisome is the fact that our national defense, this package contains James Davis Clarke, a native of Auxier, breastfeeding infants are exposed to higher key items to help Americans during our eco- Ky., was a 1956 communication arts graduate concentrations of PBDEs because of the pres- nomic downturn. H.R. 3326 will extend ex- of Fordham University in New York. One of ence of these chemicals in mother’s milk. The panded unemployment benefits, health insur- his earliest jobs in the news business was as time has come to remove this chemical from ance for unemployed workers, and enhance- a copyboy for NBC newscaster John Cameron our children’s toys and clothing. We must take Swayze. immediate steps to ban this toxic and dan- ments for small business loans. It will delay Mr. Clarke’s big break came in the early cuts to Medicare physician payment exten- 1960s as a radio reporter for WGH radio in gerous chemical. sions, and help meet the growing demand for Newport News, Va. He secured a taped inter- This bill phases out, and ultimately bans, nutrition assistance for low- and middle-in- view at the home of Francis Gary Powers, the last hazardous type of PBDE, come Americans. the U–2 spy plane pilot who had been shot Decabromine, by 2013. It mandates disclosure down over Russia. The report made news f of products containing Decabromine to the En- across the country as a rare first-person ac- vironmental Protection Agency and requires HONORING THE LIFE OF JIM count of the crash and eventually reached safer alternatives to be created to replace this CLARKE the ears of the WMAL newsman Ed Meyer, toxic chemical. I have worked closely with the who recruited Mr. Clarke to join the ABC affiliate in Washington. International Association of Fire Fighters, the HON. FRANK R. WOLF Mr. Clarke retired from WJLA in 2003 as a Environmental Working Group, Maine Depart- OF VIRGINIA national affairs reporter. ment of Environmental Protection and Environ- Survivors include his wife of 48 years, IN THE HOUSE OF REPRESENTATIVES mental Health Strategy Center to develop this Lizbe Schuster Clarke of Annandale; four important piece of legislation, and I greatly ap- Wednesday, December 23, 2009 children, Christopher Clarke of Washington, preciate the contributions of each of these Mr. WOLF. Madam Speaker, I rise to share Kimberly Allen of Albuquerque, Katie Adam- groups in getting us to this critical point. son of Arlington County and Suzanne with our colleagues today the recent passing Sprague of Portland, Ore.; and eight grand- I look forward to working with my colleagues of Jim Clarke. He died on December 21, 2009 children. in the 111th Congress to pass this vital legis- at his home in Annandale, Virginia, at the age Among colleagues, Mr. Clarke was known lation and finally enact a long overdue ban on of 75. to be intrepid. One evening during the 1970s, Decabromine.

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor. Matter set in this typeface indicates words inserted or appended, rather than spoken, by a Member of the House on the floor.

VerDate Nov 24 2008 04:25 Dec 24, 2009 Jkt 089060 PO 00000 Frm 00001 Fmt 0626 Sfmt 9920 E:\CR\FM\A23DE8.001 E23DEPT2 smartinez on DSKB9S0YB1PROD with REMARKS E3068 CONGRESSIONAL RECORD — Extensions of Remarks December 23, 2009 RECOGNIZING THE MIRAMAR HIGH be justifiably proud. I look forward to more also ask my colleagues to join me in recog- SCHOOL PATRIOTS championships from them in future years. nizing its 75 years of continued service to its f community as well as the State of California. HON. ALCEE L. HASTINGS CELEBRATING THE NEVADA COUN- OF FLORIDA TY ASSOCIATION OF REALTORS’ f IN THE HOUSE OF REPRESENTATIVES 75TH ANNIVERSARY SENATE COMMITTEE MEETINGS Wednesday, December 23, 2009 HON. TOM McCLINTOCK Title IV of Senate Resolution 4, Mr. HASTINGS of Florida. Madam Speaker, OF CALIFORNIA agreed to by the Senate on February 4, I rise today to honor the Miramar High School IN THE HOUSE OF REPRESENTATIVES 1977, calls for establishment of a sys- Patriots’ football team of my hometown, Wednesday, December 23, 2009 tem for a computerized schedule of all Miramar, Florida. On Friday, December 18, meetings and hearings of Senate com- Mr. MCCLINTOCK. Madam Speaker, I rise 2009, Miramar beat the DeLand Bulldogs 42– to honor the Nevada County Association of mittees, subcommittees, joint commit- 20 to become the first team from Broward Realtors’ 75th anniversary. For 75 years the tees, and committees of conference. County to win a 6A championship. Their 14– Nevada County Association of Realtors has This title requires all such committees 1 record and their convincing win in the title been dedicated to helping protect the invest- to notify the Office of the Senate Daily game are two things of which all Broward ment Americans place in their homes. Digest—designated by the Rules Com- County citizens and all true football fans can In 1935, a group of local real estate agents mittee—of the time, place, and purpose be proud. established the Nevada County Association of of the meetings, when scheduled, and I congratulate Coach Damon Cogdell and Realtors with the goal of offering clients and any cancellations or changes in the the entire team for a job well done. I espe- their families the highest level of professional meetings as they occur. cially want to praise quarterback Ryan Wil- real estate service. As an additional procedure along liams, who passed for five touchdowns in the The Nevada County Association of Realtors with the computerization of this infor- game, and receiver Ivan McCartney, who seeks to maintain and enhance programs, mation, the Office of the Senate Daily caught three of them. I am delighted to laud products and volunteer participation as well as Digest will prepare this information for a team that has achieved great success. develop new services and relationships to printing in the Extensions of Remarks The Miramar High School Patriots are fine meet the demands of its members, clients and section of the CONGRESSIONAL RECORD examples of young men who have excelled at the community. The Association promotes the on Monday and Wednesday of each athletics and academics. By working hard and preservation of real property rights and is a week. focusing on the tasks at hand, they have tremendous asset to its community. Meetings scheduled for Thursday, De- reached the pinnacle of their sport. They are Madam Speaker, I would like to thank the cember 24, 2009 may be found in the people of whom their peers and everyone can Nevada County Association of Realtors and Daily Digest of today’s RECORD.

VerDate Nov 24 2008 04:25 Dec 24, 2009 Jkt 089060 PO 00000 Frm 00002 Fmt 0626 Sfmt 0634 E:\CR\FM\A23DE8.005 E23DEPT2 smartinez on DSKB9S0YB1PROD with REMARKS Wednesday, December 23, 2009 Daily Digest Senate Withdrawn: Chamber Action Reid (for Cardin) Amendment No. 2878 (to Routine Proceedings, pages S13795–S13888 Amendment No. 2786), to provide for the establish- Measures Introduced: Five bills were introduced, ment of Offices of Minority Health. Pages S13796, as follows: S. 2926–2930. Pages S13882–83 S13833 Measures Reported: Reid Amendment No. 3292 (to Amendment No. S. 69, to establish a fact-finding Commission to 2878), to change the effective date. Page S13796 extend the study of a prior Commission to inves- During consideration of this measure today, the tigate and determine facts and circumstances sur- Senate also took the following action: rounding the relocation, internment, and deportation By 39 yeas to 60 nays (Vote No. 389), Senate de- to Axis countries of Latin Americans of Japanese determined that the point of order against Reid scent from December 1941 through February 1948, Amendment No. 2786 (listed above), as being in and the impact of those actions by the United States, violation of Congress’s enumerated powers in article and to recommend appropriate remedies. (S. Rept. 1, section 8, and in being in violation of the 5th No. 111–112) Amendment of the United States Constitution, was S. 1178, to extend Federal recognition to the not well-taken. Pages S13830–31 Chickahominy Indian Tribe, the Chickahominy In- By 55 yeas to 44 nays (Vote No. 390), Senate dian Tribe-Eastern Division, the Upper Mattaponi agreed to the motion to waive section 425(a)(2) of Tribe, the Rappahannock Tribe, Inc., the Monacan the Congressional Budget Act of 1974 with respect Indian Nation, and the Nansemond Indian Tribe, to Reid Amendment No. 2786 (listed above). Thus, with amendments. (S. Rept. No. 111–113) the point of order raised was rendered moot. Page S13882 Pages S13804, S13831 Measures Passed: Appeal of the Ruling of the Chair with respect to Nuclear Forensics and Attribution Act: Senate Senate Rule 44, paragraph 4 (disclosure of congres- passed H.R. 730, to strengthen efforts in the De- sionally directed spending) on Reid Amendment No. partment of Homeland Security to develop nuclear 2786 (listed above). (By 57 yeas to 42 nays (Vote forensics capabilities to permit attribution of the No. 391), Senate tabled the Appeal.) Pages S13810, source of nuclear material, after agreeing to the com- S13831–32 mittee amendment in the nature of a substitute. By 39 yeas to 60 nays (Vote No. 392), Senate de- Pages S13886–87 termined that the point of order against Reid Commercial Space Transportation Liability Re- Amendment No. 2786 (listed above), as being in gime: Senate passed H.R. 3819, to extend the com- violation of the 10th Amendment of the United mercial space transportation liability regime, clearing States Constitution, was not well-taken. the measure for the President. Page S13887 Pages S13822, S13832 Measures Considered: Motion to suspend Rule 22 of the Standing Rules Service Members Home Ownership Tax Act— of the Senate for the purpose of proposing and con- Agreement: Senate continued consideration of H.R. 3590, to amend the Internal Revenue Code of 1986 sidering DeMint Amendment No. 3297 (create to modify the first-time homebuyers credit in the point of order). (By 53 yeas to 46 nays (Vote No. case of members of the Armed Forces and certain 393), Senate tabled the Motion.) Pages S13832–33 other Federal employees, taking action on the fol- By 60 yeas to 39 nays (Vote No. 395), three-fifths lowing amendments proposed thereto: of those Senators duly chosen and sworn, having Pages S13796–S13866 voted in the affirmative, Senate agreed to the motion Adopted: to close further debate on the bill. Page S13834 By 60 yes to 39 nays (Vote No. 394), Reid A unanimous-consent agreement was reached pro- Amendment No. 2786, in the nature of a substitute. viding for further consideration of the bill at 6:45 Pages S13796–S13834 D1515

VerDate Nov 24 2008 02:42 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00001 Fmt 5627 Sfmt 0627 E:\RECORD09\D23DE9.PT2 D23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE D1516 CONGRESSIONAL RECORD — DAILY DIGEST December 23, 2009 a.m., on Thursday, December 24, 2009, with the Anne M. Tompkins, of North Carolina, to be time until 7 a.m. equally divided and controlled be- United States Attorney for the Western District of tween the two Leaders, or their designees; and Senate North Carolina for the term of four years. vote on passage of the bill at 7 a.m., as provided for Sally Quillian Yates, of Georgia, to be United under the previous order. Page S13887 States Attorney for the Northern District of Georgia for the term of four years. Message from the President: Senate received the Noel Culver March, of Maine, to be United States following message from the President of the United Marshal for the District of Maine for the term of States: four years. Transmitting, pursuant to law, the notification of George White, of Mississippi, to be United States the President’s intention to designate the Republic Marshal for the Southern District of Mississippi for of Maldives as a beneficiary developing country and the term of four years. to terminate the designations of Croatia and Equa- Beatrice A. Hanson, of New York, to be Director torial New Guinea as beneficiary developing proof the Office for Victims of Crime. Page S13888 grams under the Generalized System of Preferences program; which was referred to the Committee on Nomination Withdrawn: Senate received notification of withdrawal of the following nomination: Finance. (PM–39) Page S13881 Suedeen G. Kelly, of New Mexico, to be a Mem- McGee Nomination—Referral Agreement: A ber of the Federal Energy Regulatory Commission unanimous-consent agreement was reached providing for the term expiring June 30, 2014, which was sent that Committee on Environment and Public Works to the Senate on July 28, 2009. Page S13888 be discharged from further consideration of the nom- Messages from the House: Pages S13881–82 ination of Timothy McGee, of Louisiana, to be an Assistant Secretary of Commerce, and be referred to Measures Referred: Page S13882 the Committee on Commerce, Science and Transpor- Executive Communications: Page S13882 tation. Page S13887 Executive Reports of Committees: Page S13882 Nominations Received: Senate received the fol- Additional Cosponsors: Page S13883 lowing nominations: Statements on Introduced Bills/Resolutions: Daniel J. Becker, of Utah, to be a Member of the Pages S13883–86 Board of Directors of the State Justice Institute for a term expiring September 17, 2010. Additional Statements: Page S13881 James R. Hannah, of Arkansas, to be a Member Authorities for Committees to Meet: Page S13886 of the Board of Directors of the State Justice Insti- Privileges of the Floor: Page S13886 tute for a term expiring September 17, 2010. Record Votes: Seven record votes were taken today. Gayle A. Nachtigal, of Oregon, to be a Member (Total—395) Pages S13830–34 of the Board of Directors of the State Justice Insti- tute for a term expiring September 17, 2012. Adjournment: Senate convened at 9:45 a.m. and John B. Nalbandian, of Kentucky, to be a Mem- adjourned at 8:15 p.m., until 6:45 a.m. on Thurs- ber of the Board of Directors of the State Justice In- day, December 24, 2009. (For Senate’s program, see stitute for a term expiring September 17, 2010. the remarks of the Acting Majority Leader in today’s Andre´ Birotte, Jr., of California, to be United Record on page S13887.) States Attorney for the Central District of California for the term of four years. Committee Meetings David A. Capp, of Indiana, to be United States Attorney for the Northern District of Indiana for the (Committees not listed did not meet) term of four years. Richard S. Hartunian, of New York, to be United BUSINESS MEETING States Attorney for the Northern District of New Committee on Finance: Committee ordered favorably York for the term of four years. reported the nominations of Lael Brainard, of the William Joseph Hochul, Jr., of New York, to be District of Columbia, to be Under Secretary, Michael United States Attorney for the Western District of F. Mundaca, of New York, and Mary John Miller, New York for the term of four years. of Maryland, both to be Assistant Secretary, and Ronald C. Machen, Jr., of the District of Colum- Charles Collyns, of Maryland, to be a Deputy Under bia, to be United States Attorney for the District of Secretary, all of the Department of the Treasury, Mi- Columbia for the term of four years. chael W. Punke, of Montana, to be a Deputy United

VerDate Nov 24 2008 02:42 Mar 11, 2010 Jkt 089060 PO 00000 Frm 00002 Fmt 5627 Sfmt 0627 E:\RECORD09\D23DE9.PT2 D23DE9 mmaher on DSK69SOYB1PROD with CONG-REC-ONLINE December 23, 2009 CONGRESSIONAL RECORD — DAILY DIGEST D1517 States Trade Representative, with the rank of Am- Gloninger Murray, of Virginia, both to be Assistant bassador, Islam A. Siddiqui, of Virginia, to be Chief Secretary, and Bryan Hayes Samuels, of Illinois, to Agricultural Negotiator, Office of the United States be Commissioner on Children, Youth, and Families, Trade Representative, with the rank of Ambassador, all of the Department of Health and Human Serv- and Jim R. Esquea, of New York, and Ellen ices. h House of Representatives a.m. on Saturday, December 26, 2009 unless it soon- Chamber Action er has received a message from the Senate transmit- Public Bills and Resolutions Introduced: There ting its concurrence in H. Con. Res. 223, in which were no public bills or resolutions introduced today. case the House shall stand adjourned pursuant to Reports Filed: There were no reports filed today. that concurrent resolution. Speaker: Read a letter from the Speaker wherein she appointed Representative Moran (VA) to act as Committee Meetings Speaker Pro Tempore for today. Page H15511 No committee meetings were held. Chaplain: The prayer was offered by the Guest Chaplain, Reverend Gene Hemrick, Washington Theological Union, Washington, DC. Page H15511 Joint Meetings Membership of Standing Committees: Read a let- No joint committee meetings were held. ter from Representative Larson (CT), Chairman, f Democratic Caucus wherein he informed the Speaker NEW PUBLIC LAWS that Representative Parker Griffith is no longer a member of the Democratic Caucus. Subsequently, (For last listing of Public Laws, see DAILY DIGEST, p. D1511) read letters from the Speaker wherein she advised S. 1422, to amend the Family and Medical Leave Chairman Oberstar, Committee on Transportation Act of 1993 to clarify the eligibility requirements and Infrastructure, Chairwoman Vela´quez, Com- with respect to airline flight crews. Signed on De- mittee on Small Business, and Chairman Gordon, cember 21, 2009. (Public Law 111–119) Committee on Science and Technology that Rep- f resentative Parker Griffith’s election to the Commit- tees on Transportation and Infrastructure, Small COMMITTEE MEETINGS FOR THURSDAY, Business, and Science and Technology have been DECEMBER 24, 2009 automatically vacated pursuant to clause 5(b) of rule (Committee meetings are open unless otherwise indicated) X, effective today. Page H15512 Senate Quorum Calls—Votes: There were no Yea and Nay votes, and there were no Recorded votes. There were No meetings/hearings scheduled. no quorum calls. House Adjournment: The House met at 12 noon and at No committee meetings are scheduled. 12:04 p.m., the House stands adjourned until 10

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Next Meeting of the SENATE Next Meeting of the HOUSE OF REPRESENTATIVES 6:45 a.m., Thursday, December 24 10 a.m., Saturday, December 26

Senate Chamber House Chamber Program for Thursday: Senate will continue consider- Program for Saturday: To be announced. ation of H.R. 3590, Service Members Home Ownership Tax Act, and vote on passage of the bill, and passage of H.R. 4314, an act to permit continued financing of government operations at 7 a.m.

Extensions of Remarks, as inserted in this issue

HOUSE

Hastings, Alcee L., Fla., E3068 McClintock, Tom, Calif., E3068 McCollum, Betty, Minn., E3067 Pingree, Chellie, Me., E3067 Wolf, Frank R., Va., E3067

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