[Congressional Record Volume 143, Number 118 (Tuesday, September 9, 1997)]
[Senate]
[Pages S8989-S9013]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION, AND
RELATED AGENCIES APPROPRIATIONS ACT, 1998
The Senate continued with the consideration of the bill.
Mr. GORTON. Mr. President, what is the order of business?
The PRESIDING OFFICER. The agreement was reached with respect to
amendment No. 1122.
Mr. GORTON. Mr. President, that agreement was in error. It was a
mistake on the part of Senator Specter. I ask unanimous consent that
the agreement be switched to amendment 1076.
The PRESIDING OFFICER. Is there objection?
Mr. GORTON. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. GORTON. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Santorum). Without objection, it is so
ordered.
Mr. GORTON. Mr. President, I withdraw my previous request for
unanimous consent, and I now ask unanimous consent that the debate
limitation with respect to amendment No. 1122 be vitiated, and that
there now be 60 minutes for debate prior to a motion to table amendment
No. 1076. I further ask unanimous consent that following the expiration
or yielding back of time, the amendment be temporarily laid aside, the
Senate then proceed to vote on the McCain motion to waive with respect
to amendment No. 1091, to be immediately followed by a vote on a motion
to table the Gorton amendment No. 1076.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GORTON. Speaking on behalf of the majority leader, I now give
notice
[[Page S8990]]
that it looks as though there will be two stacked votes after the
debate on this amendment; therefore, in proximately 1 hour.
Amendment No. 1076, as Modified
Mr. GORTON. Mr. President, what is the subject matter before the
Senate?
The PRESIDING OFFICER. Amendment No. 1076 is the pending question.
Mr. GORTON. Mr. President, just a few short weeks ago, Congress and
the President of the United States agreed to provide $48 billion over
the course of the next 10 years as an incentive to States to provide
health care coverage to uninsured, low-income children. To receive this
incentive, States must expand eligibility levels to children living in
families whose incomes are up to 200 percent of the Federal poverty
level.
Mr. President, this provided a real anomaly, a true injustice, with
respect to the State of Washington, and to varying extents to the
States of Hawaii, Minnesota, Rhode Island, Tennessee, and Vermont as
well. In the case of each of these States, though I must speak most
specifically to my own, State legislatures had already expanded the
eligibility for Medicare to children in families with incomes up to
roughly 200 percent of the poverty level.
Most of the other States, the States that were designed to be
incentivized, have mandatory levels of 100 to 133 percent of the
poverty level in incomes and, therefore, in many cases would get these
incentives for a very significant expansion of Medicare eligible
children for these Kidcare programs.
The net result, however, was that for States like the State of
Washington, the fact that they had been more generous, more
progressive, more liberal, whatever one wishes to call it on their own,
resulted in a dramatic penalty. Our taxpayers, of course, will
contribute to this expansion. We will, of course, be providing Kidcare
to exactly the same group of children that all other States will be
providing under the Kidcare amendment, but we will not be eligible for
the incentive.
Mr. President, if that were allowed to stand, it would be a dramatic
lesson to every 1 of the 50 States of the United States in dealing with
every program for which there is Federal assistance--every program--the
expansion of which is debated here, to make absolutely certain that
they did not expand those programs themselves, because if they just
waited, they would get more money from the Federal Government to do so;
and if they went ahead on their own, they would be penalized.
That is exactly what has happened to us here. Our argument for more
equitable treatment met with the approval of Members of the Senate when
we were debating this issue, and our States were at least in part
compensated for the work that they had already done. With the exception
I think of a single State in the group of five that I have named, that
benefit disappeared in the ultimate conference committee report.
Justice would require, it seems to me, Mr. President, that each of
these States be made whole, receive the same Federal subsidy for all of
its children who live in families between the previous Federal
requirement at 100 to 133 percent and the 200 percent. Because of
opposition, however, we do not ask that in this amendment.
All this amendment does is to say that the allocation that is made to
all States, on the basis of the number of eligible children, be
available for the State of Washington and for these other States to use
to the extent that we have children living in families at less than 200
percent of the poverty level who are of course eligible under our law
but did not avail themselves of the opportunity to become insured.
In other words, like the other States, we will get the incentive only
for children who are not eligible now and who take advantage of the
availability of such insurance in the future. Because allocations are
made by the Federal Government on the basis of eligibility and not this
precise use, and you just drawdown on the use, this amendment will not
affect--I want to make this absolutely clear to every Member of the
Senate--will not affect the allocations and the ability to use this
program by any other State in the United States.
We are not raiding anyone else's money. The eligibility is created by
what amounts to at least the State entitlement will only be using the
allocation that we already get in theory but cannot use in practice. No
one else will lose anything as a result.
Just to make certain that Members do not say this is simply a
statement by the Senator from Washington without any basis, I ask
unanimous consent a memorandum addressed to me from the Congressional
Research Service dated yesterday expressing exactly the same view be
printed in the Record at this point.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Congressional Research Service,
Library of Congress,
Washington, DC, September 8, 1997.
memorandum
To: Honorable Slade Gorton Attention: Kristen Michel.
From: Jean P. Hearne, Consultant, Education and Public
Welfare Division.
Subject: S. 1061--Amendment to Allow Title XXI Funding for
Certain Children.
As you requested, I have reviewed your amendment to Title
XXI, the State Child Health Insurance Program. The amendment
would allow states to use Title XXI funding for the costs of
covering under Medicaid certain waivered low-income children
whose income is below the Medicaid applicable income level in
the state but above the mandatory Medicaid income level for
children. These waivered low-income children are defined as
those living in states who have incomes at or above 200% of
poverty and who had previously not been covered by Medicaid
as of April 15, 1997. The provision would allow such children
to qualify for enhanced federal matching funds for the cost
of their Medicaid services.
The amendment would not change or otherwise affect the
allocation of Title XXI funds to states but changes the way
such funds may be used. The amendment would allow for certain
states' allotments to be spent on children who are currently
eligible for Medicaid coverage in such states but are not
participating in the program.
Mr. GORTON. I will read the end of that memorandum: ``The amendment
would not change or otherwise affect the allocation of Title XXI funds
to states but changes the way in which state funds may be used.''
Will not change the allocation. It will change the way in which they
can be used in my State and I believe to a greater or lesser extent,
three other States.
I simply want to repeat for the purposes of this argument, these are
States that did what the policy behind Kidcare in effect requires of
other States before it was required by this Congress and by the Federal
Government. These are States that went out of their way to try to see
to it that health insurance was available to these relatively low-
income families for their children. It is unconscionable, I believe,
Mr. President, that we should say because you did the job we came to
somewhat later, earlier, you are just out of luck. You can continue to
pay for it yourself. You will not get the incentive that Kidcare
provided, so on behalf of my own State and on behalf of a few others,
without penalizing any other State in the Union, I am asking for the
reasonable treatment, the fair treatment, that this amendment provides.
I suggest the absence of a quorum, and I ask unanimous consent it be
charged equally to both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ROCKEFELLER. Mr. President, it is very unusual for me to come to
the floor to oppose an amendment by my two very distinguished
colleagues from the State of Washington, Senator Gorton and Senator
Murray. I respect them both immensely. I have worked with them both
closely. In offering this amendment, I understand what it is they are
trying to do. There are many who look at States like Oregon and the
State of Washington and Wisconsin and Minnesota and say these are truly
progressive States, their governments are doing things which other
State governments ought to be doing. Philosophically, therefore, it
would be natural for them to come to the floor to ask for some kind of
exemption with respect to the children's health care bill.
I come to the floor as somebody who has worked for a very long time
on
[[Page S8991]]
health care, and who has worked virtually full time on this children's
health insurance bill. This legislation is a huge accomplishment in
terms of this Congress and the President. The children's health
initiative is the biggest thing to happen in health care since the mid-
1960's. Because of my experience in working on health care, and the
children's initiative in particular, I am extremely leery about opening
up the children's health legislation for amendment. I know that the
chairman of the Senate Finance Committee, Senator Roth, has said
exactly that, and I know Senator Moynihan has said exactly that. I am
not sure there are many people who have talked against this amendment,
which worries me because, on the face of it, it sounds like a
reasonable request, a progressive State asking for an exemption because
they are doing things at 200 percent of poverty, which most of the rest
of the States are not.
Mr. President, I can tell you that this was a very difficult
agreement to reach, the children's health insurance bill. There was the
whole issue of whether funding should be made available for health care
services as opposed to health care insurance? There was the whole issue
of whether the Federal Government should have a say, since it is
Federal dollars, in terms of how the money should be spent. The benefit
package, which is something I care enormously about, in the children's
health care bill is not as good as Medicaid, which is already currently
available to millions of children in this country. And there was the
question that I fought for, as did others, and didn't succeed, on
whether vision and hearing should be included. You can make an
enormously powerful case that if you don't provide hearing services,
then you won't catch the problems children are experiencing in hearing,
who then will stop learning. And, if you don't offer vision care, all
kinds of other things happen. It was a very controversial bill. It was
reached with great difficulty; the culmination and the consensus was
reached with very great difficulty.
I firmly believe it would be very unwise for us to agree to the
Gorton-Murray amendment simply because there will be a lot of other
people following their lead, and leaders of other States will be
following them through the door saying they do 200 percent of poverty,
but we do 185 percent or 190 percent of poverty, or we are going to be
doing it next year. There will be this and that, and all of a sudden
the $24 billion will be quickly eroded.
Now, am I saying that as a knee-jerk response against what is a very
good-faith effort on the part of the Senators from the State of
Washington to improve their situation? No. I am opposing the amendment
out of a genuine concern, accompanied by some degree of terror that, if
this amendment passes, there will be many others that follow. One can
almost say that, for example, had there not been votes this evening, I
was meant to go to West Virginia to discuss with the Governor, Cecil
Underwood, a Republican, how he and I were going to work together to
help implement--to make sure that the children's health insurance bill
works successfully in West Virginia. We don't do things as generously
as the State of Washington because we cannot, we don't have the money.
My point is that the children's health program is just being
implemented. The ink is barely dry. The implementation date has not
even arrived yet.
There is a very genuine concern on the part of those of us who care
about health care that if we start modifying the agreement on
children's health that was reached by the Congress and the White House
that we will be in trouble. There are still 10 million children in this
country that do not have health insurance. I remember there was common
wisdom on the floor of the Senate that if we got the $16 billion for
children's health insurance in the budget we could insure 5 million
uninsured children. And if we got extra money--$8 billion or more from
the tobacco tax--then we could insure all of the 10 million children.
That was the hope for a period of time on this floor. As it turns out,
it is much harder. It is much more difficult. And even with the full
$24 billion we may only be able to reach 3.6 million American children
who do not now have health insurance. In fact, the Congressional Budget
Office, I think in responding to the submission of this amendment to
them by Senators Gorton and Murray, indicated that, if this amendment
is passed, it will result in 30,000 fewer children receiving health
insurance coverage--not health services but health insurance coverage.
Health insurance coverage is all that matters. That is the wraparound.
That is the safety net. That is what guarantees your situation for the
future. If we adopt this amendment, others will want special treatment
and it would not be long before the $24 billion was eroded away.
So, again I emphasize the respect that I have for the two Senators
from Washington. I emphasize that they have every right, just on the
basis of the progressiveness of their State, to request this kind of an
amendment. But, if they do, there are going to be many States--in the
South, the Midwest, the Northeast, and the West--that are going to be
losing as a result of it because others will come in with other
requests, and gradually the $24 billion in new funding disappears.
So as somebody who cares passionately about health insurance being
available to all 10 million children, and who a few years ago fought
for health insurance to be available to 37 million Americans--now 40
million--who don't have it, I am rejoicing in the 3.6 million children
who will get health insurance under the children's health insurance
bill. But I do not want to see any fewer get it.
Therefore, I reluctantly, but energetically, oppose this amendment. I
hope that my colleagues will understand that there are a lot of
children across America that need to be protected and can best be
protected by defeating this amendment.
I thank the Presiding Officer.
I yield the floor.
I note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. GORTON. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GORTON. Mr. President, it is difficult for me to express my
disappointment in the position taken by my friend from West Virginia,
although across party lines we have become so close personally to one
another in a longtime, longstanding debate of great importance, that it
always seems to me emotionally at least that we are likely to agree on
other issues as well. I am greatly disappointed that we don't on this
one.
He tells me that he had hoped to go and visit with the Governor of
West Virginia on this subject today. Yet, the position he takes here is
that while West Virginia should be--and I agree with him should be--
entitled to an incentive for all of the new children who become
eligible for Kidcare because their families' incomes are not more than
200 percent of the poverty line, that not only should the State of
Washington be deprived of that incentive for children in exactly the
same position who receive Kidcare through the State at the present time
but that we shouldn't even be able to get the incentive for those who
do not yet receive it who are in precisely the position of the children
in West Virginia for whose circumstances he so eloquently speaks. I
find it is hard to see that anyone could justify a situation such as
that. But that is the situation in the bill as it was passed, not the
situation as it was written here in the Senate.
We had the Senate version--Senator Murray and I. With this amendment
it would have been unnecessary. The Senator expresses apprehension that
if this amendment passes there will be many more States with requests.
But I simply say to the Senator that we already have an agreement on
the amendments that are going to be considered on this bill. Someone
may do it someday in the future in some other set of circumstances but
not on the bill that deals with Medicaid and Medicare for the whole
next year.
In any event, the idea that you can't do something that is right
because it might create a precedent in the future to do something that
is wrong is not a form of argument that seems to me to be especially
persuasive. Since it is impossible for that to happen in connection
with this bill, it perhaps has even less weight.
[[Page S8992]]
Obviously, there are differences with respect to this amendment. I
regret that I have fought, and we worked diligently to see whether or
not we couldn't come up with something that simply could be agreed to,
as many other amendments on this bill have--we have not obviously been
able to do that. I greatly regret it. But I greatly regret the position
on the part of other Senators that, we have ours, it is tough on you,
you don't need it.
With that, Mr. President, I yield the floor.
Mr. ROCKEFELLER addressed the Chair.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, will the Senator from Washington
yield? I am not asking him to yield, but I simply would like to reply
to what it was that he said.
The last thing in the world that I want the Senator from Washington,
or anybody else, to think is we have ours, let others take care of
their own.
First, I think the Senator from the State of Washington knows that is
not the kind of legislator I am, in the first place. And, second, this
is not about we have ours, and let others take care of their own.
This is a question of trying to keep stitched together an extremely
fragile program about which there was enormous controversy. Enormous
heat was generated. I was actually almost surprised when it passed not
only in the Congress but was signed by the President. I would simply
say that I understand that the UC agreement on this bill prevents
Senators from offering similar amendments on this bill. But as a
Senator who is on the Senate Finance Committee, the Governors were
always asking for more ways to do things, new ways to get money, more
flexibility. The list of demands kept growing.
Yes, I will fight for the children of West Virginia. But what I am
thinking about here really is holding this program together, giving it
a chance to work, not precluding the idea of the Senators from the
State of Washington being able to introduce this kind of amendment a
year or so from now, but simply let us get the children's health
program implemented. Let us have a chance to see how it is going before
we start exempting this situation and then that situation.
I hope that will be cleared by the parties.
Mr. KENNEDY. Mr. President, will the Senator be good enough to yield?
Mr. ROCKEFELLER. Of course.
Mr. KENNEDY. I have listened to the Senator from West Virginia. I
agree with his position. I heard earlier today Chairman Roth's
opposition to this effort. And I understand other members of the
Republican leadership also intend to speak on their concerns and
opposition to this amendment.
Even under the proposal as it was recently passed, we will only reach
about half of the currently uninsured children. As the Senator
remembers, we had a more expansive and robust program that might have
provided the kind of extensive coverage that the Senator from
Washington was talking about. And with the work of the Senator from
West Virginia and the Senator from Rhode Island, we explored options to
expand coverage among working families in a manner that would have also
helped states that have already acted to expand Medicaid eligibility
guidelines. However, that proposal failed, and the program signed into
law was designed instead to fit on top of what each state is currently
doing. The new $24 billion investment in children's health is supposed
to provide assistance to the 10 million children in working families
whose parents are unable to afford health insurance and are not
currently eligible for Medicaid.
So, with all due respect, it is difficult to argue in the abstract
that we are pitting one type of uninsured child against another. The
point of this new program is to build upon current state efforts to
work up the income scale from what is currently being done in a state
to ensure that the sons and daughters of working parents receive
coverage. We are talking about teachers, nurses aides, janitors, and
other professionals whose salaries are too low to enable them to
purchase health insurance but too high to qualify for Medicaid. These
are hard-working Americans who put in 40 hours a week, 52 weeks of the
year.
I would join with the Senator from Washington and the Senator from
West Virginia to see an expansion of this program.
Through the work of the Senator from West Virginia, Senator Roth,
Senator Moynihan and others in that conference, we were able with the
leadership of the President to get a good program enacted. But we are
still probably going to need to enhance that program or strengthen it
down the road.
As I understand the Senator's position, we ought to put the new
program in place, find out what those needs are, and then I am sure the
Senator from West Virginia will be a leader here in the Senate to make
sure that we are going to help and assist families in the State of
Washington, West Virginia, or Massachusetts to try to make sure that
the sons and daughters of working families that are not covered are
going to be able to get some coverage. Is that correct?
Mr. ROCKEFELLER. In response to the Senator, I wholly agree with what
he said, by trying to make two points. One is that when we were first
contemplating this children's health insurance bill and the whole key
concept of maybe getting as much as $24 billion, or even perhaps more
than that, it was sort of understood that first we were going to insure
5 million children of the families that had the least resources to buy
health insurance, and then we would move on to those who had a little
bit more resources but still would not be able to afford buying health
insurance from the private market for their children. We were talking
about 10 million children. There was a lot of opposition to insuring 10
million children. It wasn't 40 million Americans, but it was 10 million
children. Then even with the $24 billion that was applied to the
program we are now faced with the prospect of maybe only being able to
cover 3.6 million children, leaving, therefore, many of the 10 million
uncovered.
I think the Senator is also correct when he says this in no way
precludes--I said that in my remarks earlier--the State of Washington,
which has clearly moved out ahead of others, from, once the ink is dry,
once we have seen a little bit more about how this works out, to be
able to come back based on the ability of this particular State and
others to be able to do more.
But at this point, I am very, very nervous given, frankly, the rather
capacious nature of the Governors in trying to bring this money to
them, having to put in fairly strict guidelines about what could be
spent on health care services as opposed to health interests, which
regrettably are different things. I really want to see the program
work, and I think we need to give it a chance to work and then come
back. And I will be the first to support the State of Washington and
others that have done more than other States. But let us take this
incredibly, frankly, put-together program and let it work before we
open more doors.
Mr. KENNEDY. I thank the Senator.
The PRESIDING OFFICER (Mrs. SNOWE). The Senator from Massachusetts.
Mr. KENNEDY. How much time is there?
The PRESIDING OFFICER. The Senator has 2 minutes 26 seconds.
Mr. KENNEDY. What is the regular order at that time?
The PRESIDING OFFICER. The Senator from Washington has 5 minutes, and
then the Senate will vote on a motion to table.
Mr. KENNEDY. I see the other Senator from Washington here who I know
has an interest. I will withhold my remarks to permit her to speak.
Mrs. MURRAY addressed the Chair.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. I thank the Chair.
I rise in support today of the pending Gorton-Murray amendment. I
think, as we are all aware, President Clinton recently signed into law
legislation that really calls for the largest expansion of children's
health care since the creation of Medicaid in 1965. I worked very hard
on this initiative with my colleagues, Senator Kennedy and Senator
Rockefeller. I was really thrilled to be a part of this historic effort
to provide real health care security to the most precious and
vulnerable children in our Nation. I think that is an accomplishment of
which we can all be
[[Page S8993]]
very proud, and it will not only provide health care security for our
children but economic security and peace of mind for millions of hard-
working parents as well.
I know the benefits of expanding health care benefits for children
because my home State of Washington took a similar step back in 1994.
The State took the lead because it was concerned about the future of
its children and it was expecting us to enact a comprehensive national
health security act for Americans at that time. The State of Washington
wanted to be sure that our children were the first priority in any
health care security efforts, and I applauded the action by the State
and am pleased to report that all children through the age of 18 in
Washington State who live in families up to 200 percent of the Federal
poverty level are covered. The State did not have to take that step and
expanded their Medicaid program beyond any Federal mandatory level. As
a result of that action, 427,000 children are now guaranteed access to
quality, affordable health care. This is a fact that I take a great
deal of pride in, and I know that our public health system has
benefited.
In the last Congress, when I started working to expand health care
insurance for 10 million children, I was assured that any expansion
would benefit all States and that those States that had expanded their
programs up to 200 percent of poverty would not be treated differently.
I had seen the success in my State and seen the benefits of providing
comprehensive health care to uninsured children. As a result, I worked
hard to fight for nationwide expansion.
During negotiations, I worked with several other Members to ensure
that the amount of funding for children's health care was increased. I
supported efforts in the Chamber to fund this expansion at $24 billion,
providing the greatest amount of resources available that will ensure
the greatest number of children are insured.
The final budget reconciliation legislation was a major victory for
children and families in this country, but unfortunately my State of
Washington will not benefit to the degree I had hoped. My State and
others that made the commitment to their children previously and
provided coverage up to 200 percent of the Federal poverty level will
not be able to access the $24 billion that was provided for in this
bill. The State will have to expand their current program by 50 percent
in order to access any of those new funds. I am hopeful that the State
will act to cover more children, if the resources are available at our
State level, but in the immediate future Washington State will not be
able to provide additional coverage, meaning that the intent of the
legislation to cover more uninsured children will not be met in my
State. We have made great strides in covering uninsured children, but
we still have over 300,000 children who have no health insurance. We
should be making every effort to encourage our States to expand the
number of children covered, not discourage them from doing so.
The Gorton amendment would only allow States that have covered
children up to 200 percent of the Federal poverty level to access the
children's health block grant money to cover children from 133 percent
to 200 percent of the poverty level, meaning that States could access
these funds for new children that are not currently required to be
covered. Again, this would apply only to new children as of October 1,
1997. Any child currently enrolled up to 200 percent would remain in
the Medicaid Program. We are simply trying to treat new children in
Washington State the same as they will be treated in Idaho or Montana
or any other State. A new ensured child is a new ensured child
regardless of which State they live in.
I have heard some of the concerns about this amendment and the impact
that it could have on States that are currently at 200 percent. Let me
assure my colleagues that, unfortunately, there are not many at this
level. I have also heard about the substitution effect. Included in
this amendment is a requirement that the State must certify that the
child has not been insured in the past. We are only talking about an
insured child as of October 1 of this year.
Finally, this amendment only applies to those new children that the
State made the decision to cover, the optional children. Those below
the 133 percent will not be included for any match purposes.
My colleagues should also keep in mind that there is already strong
maintenance-of-effort requirements in the act which apply to the States
as well. I listened to my colleagues, Senator Kennedy and Senator
Rockefeller. I understand their concerns and I want to remind them that
we all share the same goal. I hope we can continue to work on this so
that the children in my State are treated as equally as other children
across the Nation regarding that $24 billion. Our Governor has told us
he needs this amendment to look forward to ensuring new children. I
hope we can continue to work together to make sure that happens for the
children of Washington State as well as the rest of this country.
I yield the remainder of my time to Senator Gorton.
Mr. GORTON addressed the Chair.
The PRESIDING OFFICER. The Senator from Washington.
Amendment No. 1076, as modified, withdrawn
Mr. GORTON. Madam President, my colleague from the State of
Washington and I have worked diligently on behalf of what we consider
to be equity to our State and to two or three other States as well. It
had been our firm contention and our fond hope that we would be able to
secure the passage of this amendment by unanimous consent. It is quite
obvious that we cannot. Each of us disagrees with the rationale
presented by the other side on the amendment. But our preference is to
try to live and fight this issue another day, and for that reason I ask
unanimous consent to withdraw the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 1076), as modified, was withdrawn.
Mr. NICKLES addressed the Chair.
The PRESIDING OFFICER. The Senator from Oklahoma.
Amendment No. 1109
Mr. NICKLES. Madam President, earlier today the Senate adopted an
amendment No. 1109, an amendment that I introduced along with Senator
Roth, Senator Moynihan, Senator Grams from Minnesota, and Senator
Hagel, that deals with Social Security Administration personal earnings
and benefit estimate statements [PEBES].
The amendment that we passed requires the Social Security
Administration to include the employee contributions as well as
employer contributions on the PEBES. Right now, when those statements
are compiled, they show employee contributions but not employer
contributions. Due to the support of the chairman of the Finance
Committee and Senator Moynihan, these statements in the future will
show not only what the individual contributed but also what the company
contributed and what their future anticipated benefits will be.
I think it is a good amendment. It is a disclosure amendment. A lot
of people are not aware of the fact that not only do they contribute
7.65 percent of their payroll for Social Security and Medicare, but
their employer matches it, for a total of 15.3 percent of payroll. This
personal benefit statement will be sent to every eligible working
American from Social Security beginning in fiscal year 2000. Americans
will receive this financial disclosure every year, so people will know
what they have contributed to Social Security and what their employer
has contributed as well.
I thank my colleagues for supporting this amendment, especially the
chairman and ranking member of the Finance Committee and Senator
Specter.
Mr. KENNEDY addressed the Chair.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Madam President, I would like to have consent to be able
to speak for 7 minutes.
The PRESIDING OFFICER. The Senator has the right to speak.
Mr. KENNEDY. I thank the Chair.
Madam President, there are items that we will be dealing with--the
McCain amendment, the Durbin amendment, and also the other Gorton
amendment which we will be voting on in just a few moments--and I would
like to speak very briefly on each of them.
I strongly support the Durbin amendment which will repeal language in
the
[[Page S8994]]
budget agreement that deducts the cigarette tax devoted to children's
health from the amount of the settlement.
In effect, this last-minute loophole inserted in the budget bill by
Big Tobacco in the dead of night behind closed doors reduced the value
of the settlement by $50 billion. It was one of the most devious and
reprehensible actions that I have witnessed in my years as a Senator.
The lesson is clear. When tobacco issues are debated in the public,
the American people win. But when the debate moves into the backrooms
of Congress, the tobacco industry's interests come first, and the
public interest comes last.
It's time that Congress stood up to the tobacco industry and said
``no'' to Joe Camel and the Marlboro Man. This tobacco loophole has no
place in the budget agreement, I urge my colleagues to support the
Durbin-Collins amendment.
I strongly oppose the McCain amendment which would have a devastating
effect on our essential efforts to address physician work force issues.
Medicare pays approximately $9 billion per year for graduate medical
education. Over the years, these payments have been a strong incentive
for hospitals across the country to increase the size of their
residency programs. The increase has resulted in turn in widely
reported concerns about an oversupply of physicians. The Institute of
Medicine, the Pew Health Professions Commission, the Association of
American Medical Colleges, and the Council on Graduate Medical
Education have all emphasized the urgency of dealing effectively with
this problem, and Congress can't ignore it.
In addition, the longstanding hospital reimbursement policies have
been more generous for specialist residents than primary care
residents. As a result, most of the growth in the number of residents
has come in specialist positions, not in primary care, and has produced
an extremely serious oversupply of specialists.
Congress addressed these issues in the balanced budget legislation
enacted this summer. We expanded the New York graduate medical
education demonstration project into a national program to encourage
teaching hospitals across the country to adjust the numbers and types
of physicians they train. The program provides incentive payments to
teaching hospitals to voluntarily reduce the number of medical
residents in training, and to increase the proportion of residents
training in primary care.
The program pays hospitals for residents who are not being trained.
But the payments are reduced over time and phased out completely after
5 years. These payments help cushion the blow for institutions heavily
dependent on the Federal funds, and allow an orderly downsizing of
residency training programs, with minimal disruption to the provision
of health services.
The McCain amendment, however, would eliminate incentives for
hospitals to downsize the overall number of resident positions and
recalibrate the number going into primary care. The glut of physicians
and the imbalance between general practitioners and specialists would
go unaddressed.
The McCain amendment could also have a harmful effect on rural and
underserved areas. The budget agreement established a hospital-specific
cap on residents, based on 1996 levels. It gave the Secretary of the
Department of Health and Human Services the authority to lift the cap
for residency programs in rural and underserved areas if the total
number of positions does not exceed the national cap. By eliminating
these payment incentives under the McCain amendment, large residency
programs will no longer downsize. This result will hamstring efforts to
establish new residency programs to address the health care needs
in rural and underserved areas due to the overall cap.
Finally, the amendment would result in over $300 million in lost
savings, according to CBO estimates.
A critical part of health reform is responsible action to reduce the
over-supply of physicians and correct the imbalance between primary
care practitioners and specialists. The Budget Act is helping us put a
more effective policy in place, and we should not reverse the progress
we have made. I urge my colleagues to reject the McCain Amendment.
The second Gorton amendment hurts students and goes against the
Nation's commitment to helping the poor and educationally disadvantaged
students who need our strongest support.
Although meaningful education reform happens not at the Federal
level, or even at the State level, but at individual schools, the State
and Federal Governments are important partners in helping to improve
education for all children. We all need to work together to improve the
Nation's public schools.
This amendment does not support meaningful reform. Instead, it shifts
Federal dollars away from the neediest communities to the wealthier
ones. It guts carefully crafted and widely supported programs with
specific purposes. And it undermines the State's role as a crucial
partner in improving the achievement of all students.
This amendment is the wrong direction for the Nation's children and
the wrong direction for the Nation's future. It is not an attempt to
offer a helping hand for local schools. It is simply a thinly veiled
attempt to dismantle the Federal role in education.
Currently, Federal funds help schools and school districts improve
reading and math skills of disadvantaged students, help teachers get
the extra skills they need to teach all children to high standards,
help communities create safe and drug-free schools, and help
communities modernize their schools. This amendment would strip Federal
funding of these crucial, targeted purposes intended to help children
who need it most.
Time and time again, research has indicated that it is in high-
poverty communities that children are most likely to fall behind and
drop out of school. This amendment disregards the research and the
testimony that we have heard over and over about the need to help
disadvantaged and low-achieving students.
This amendment would shift funds from poor school districts to
wealthier ones. Currently, some States depend heavily on Federal funds.
Alabama, Arkansas, and Louisiana get more than 10 percent of their
schools funds from the Federal Government. Mississippi depends on the
Federal Government for a full 21 percent of its education funds. We
should not do anything to weaken that support.
As a Nation, we have made a commitment to help all students have the
opportunity to get a good education. We have a responsibility to make
sure that public tax dollars are well spent. This amendment provides no
accountability mechanisms and it is not fiscally responsible. Reforming
the Federal role in education is neither a casual nor quick decision,
and it should not be taken lightly.
Federal education laws are more flexible and school-friendly than
ever before. States and local education agencies are working in greater
and more effective collaboration. Schools are helping all children meet
high standards of achievement. We should not undermine these efforts
when they are just getting off the ground. We should support efforts to
improve education for all students, not undermine them.
I also strongly support and am a co-sponsor of Senator Daschle's
sense-of-the-Senate amendment with two key provisions--that Pell grants
should be funded at a total of $7.6 billion, and that a child literacy
initiative should be funded at $260 million this fiscal year.
Pell grants are an indispensable source of college aid for low- and
middle-income students. But too often, the current eligibility rules
shortchange too many students.
Today, single independent students at public 4-year institutions are
not eligible for a Pell grant if their annual income is over $10,000.
Many of these students will not benefit from the tax credits for
college expenses recently enacted in the budget law. Greater Federal
assistance is needed to help them meet their most basic college
expenses.
A similar problem faces parents trying to pay for college for their
children. Current law is actually a disincentive for college students
to work part-time to help pay for the cost of their education. Yet over
three-quarters of undergraduates now work part-time while enrolled in
college.
It makes no sense for the current law to penalize students who are
willing
[[Page S8995]]
and able to work their way through college. Many students work full-
time during the summer and part-time during the school year. But if
they do so, the response by current law is to reduce their eligibility
for Pell grants. We should be encouraging students to take part-time
jobs, rather than take out additional loans, as long as their jobs do
not become so burdensome and time-consuming that they interfere with
the students' education.
The budget agreement contained a clear commitment to allocate $700
million to reform the needs analysis formula for Pell grants. The House
appropriations subcommittee provided $500 million to meet this
commitment, but that is not sufficient. The Senate bill is far worse--
it contains no funds at all for this needed change.
The second part of the amendment will help more children learn to
read well. We know the dimensions of the current problem. Some 40
percent of the Nation's fourth grade children cannot read at the basic
level.
Low achievement in reading is a national crisis, and it demands
immediate attention. Children who lack good reading skills by the
fourth grade are far more likely to fall farther and farther behind,
and eventually drop out of school. President Clinton is right to focus
on this critical problem, and Congress should respond.
This amendment will provide $260 million for a child literacy
initiative--and it will provide the funds this year. As the ranking
member of the Labor and Human Resources Committee, I am strongly
committed to seeing that legislation authorizing the initiative is
enacted as soon as possible. But it makes no sense to delay the
appropriation.
I urge my colleagues to support these two important sense-of-the-
Senate provisions. We all know that the final bill will be written in
the conference between the Senate and the House. I hope we will have an
overwhelming vote of approval to insist that the conferees find a way
to pay for these two essential reforms in school and college education.
Another essential reform for elementary and secondary students is the
President's proposal for a voluntary national test for fourth grade
reading and eighth grade math. Schools need clear standards of
achievement and realistic tests to measure their achievement. These
tests are a tool they can use to measure their progress and identify
areas of need to bolster student achievement.
I strongly support having the National Assessment Governing Board
take responsibility for formulating policy guidelines for the voluntary
reading and math tests. NAGB is in the best position to oversee this
important issue. This bipartisan group has done an excellent job
managing the National Assessment of Educational Progress. As we all
know, NAEP has served to point out how we are doing as a nation and
helped educators think about ways to improve our education system.
The voluntary national tests, however, will go further. They will
help each school district, each school, each student to identify areas
of need in order to make the necessary changes to improve individual
student achievement.
The tests are linked to national and international standards. They
will show whether individual students are meeting widely accepted
standards in reading and math. No current test is available to provide
this essential information to students, parents, teachers, and school
administrators. For families that move from community to community or
State to State, there is no current way to measure the performance of
students on a comparative basis.
The President's proposal for voluntary national tests has broad
support from business leaders, including the Business Roundtable, the
U.S. Chamber of Commerce, the National Business Alliance, and many
others.
It also has strong support from the education community, including
the Council of Great City Schools, the Chief State School Officers, and
the National School Boards Association.
Seven States, including Massachusetts, and 15 major cities have
already agreed to use the voluntary test.
Voluntary national tests are an excellent way to support local school
reform and hold schools and districts accountable for student
achievement. I urge the Senate to reject any effort to deny Federal
funds for these tests.
Finally, the Nickles amendment is a blatant attempt to punish the
Teamsters Union for winning the UPS strike, and it does not deserve to
pass. The amendment would require the Federal government to abdicate
its responsibility under the court-approved consent order signed by the
Justice Department under the Bush administration. If the Federal
Government abdicates this responsibility, it could be subject to
contempt proceedings in Federal court.
This is an unacceptable result. It would substitute the Senate's
judgment for that of the Federal court about the meaning of the consent
order. This is not how the judicial process was meant to operate, and I
urge my colleagues to oppose the amendment.
Mr. NICKLES addressed the Chair.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. NICKLES. Madam President, I ask unanimous consent that the vote
that was originally scheduled to occur immediately after the Gorton
amendment occur at 6 o'clock.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. DURBIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 1078
Mr. DURBIN. Madam President, I have an amendment that is pending, I
believe, amendment No. 1078. I ask for the regular order that this
amendment be considered.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
Amendment No. 1078, previously proposed by the Senator from
Illinois [Mr. Durbin].
Mr. DURBIN. I ask unanimous consent to dispense with further reading
of the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. Thank you, Madam President.
It is my understanding that there is an agreement that in 25 minutes
or so a vote will be taken which will interrupt this debate. And during
this pending period, I am sure that others will be joining us to
discuss the amendment which I have called up. It has not only been my
intention to call up this amendment, but any amendments thereto this
evening. I hope we can dispense with this matter. I have waited all day
for this opportunity.
I think it is an important amendment. It is one that has received a
lot of attention, but it was an amendment which people almost missed
because, you see, in the tax bill that we considered just a few weeks
ago, it was not until the final hours before the vote that someone
discovered a provision buried deep in this tax bill, which literally
gave a $50 billion tax break to tobacco companies in the United States.
The reason why amendment came as such a surprise was it was not in
the House version of the tax bill, it was not in the Senate version of
the tax bill. No committee hearings were heard on this issue. No debate
was held on the floor of the House or the Senate on the wisdom of this
issue. But in fact we have come to learn that the tobacco companies,
through their lobbyists, inserted this provision in the tax bill at the
last minute.
It was a provision which I have called a ``legislative orphan,''
because for weeks afterward, after it was discovered, no one would
claim parentage of this poor little $50 billion amendment--no fathers,
no mothers, no living relatives. People said it appeared mysteriously,
that it was approved by the leadership but no one could quite tell us
where it came from.
Well, finally, after weeks of investigation, the USA Today reported,
through a staff member, that it was a product created expressly by the
tobacco companies and slipped into this tax bill at the last minute in
an effort to deal with some of the politics of raising the tobacco tax.
[[Page S8996]]
The tobacco companies have come before us time and again and said,
``It's a new day. We have learned our lesson. We are no longer the
oppressive industry, ignoring the reality of public health. We now want
to sit down and settle. We want to work with our legislative leaders in
Washington.''
Well, it was a new day when it came to the speeches, but not when it
came to propose this amendment to the tax bill. In fact, it was an old
day, old politics, old time religion. Wait for the dark of night, and
in that stealthy atmosphere come in with an amendment worth $50
billion.
Here is what it said. We were going to raise the tobacco tax, over
several years, 15 cents. That money was to be raised to provide health
insurance for uninsured children across America so that States could
invent their own programs and create their own approaches to cover
these children. And the tobacco tax revenues would help defray that
cost.
Well, the tobacco companies have decided that they want the value of
this tobacco tax increase to be set off against anything they would
have to pay in a final settlement, the so-called universal or global
settlement.
So, at the last minute, they come in with this provision, a $50
billion setoff, or break, for the tobacco companies, without a minute
of hearings, without any consideration in the House or the Senate,
without any deliberation. They said, ``Let's make this part of any
tobacco deal. We get a $50 billion break.'' It is no wonder that
cynicism grows across America when this sort of thing is done. It
really raises a question about whether we are doing our job right.
Some of the tobacco companies have come back and said, ``Now, wait a
minute. This is nothing unusual. A $50 billion setoff against our offer
of $368.5 billion--it is a natural thing.'' Well, I am afraid it isn't.
It turns out State attorneys general, including Michael Moore of
Mississippi, sent a letter on behalf of this group, and they said that
``. . . [the] recent action by Congress to use revenues raised by new
taxes as a credit toward our settlement is unacceptable. . .'' This
comes from Michael Moore of Mississippi. ``As you know, this concept
was discussed and rejected by us during our negotiations. This
industry''--the tobacco industry--``has agreed to specific dollar
amounts in the settlement, and we will not agree to any diminution of
those amounts not specifically set forth in the agreement.''
Attorney General Moore, who led this effort of 40 different States to
bring an action against the tobacco industry, has in fact said that
this is not part of the agreement. It was expressly rejected.
So the tobacco companies, having lost in their negotiations with the
State attorneys general, came up to find some friends on Capitol Hill.
And they clearly must have found them, because now in fact we have this
amendment as part of the tax bill, signed into law.
The amendment which I propose today repeals it. It says that the
tobacco companies cannot sneak in here in the dark of night and put
this kind of provision in the law. I tried to attack this provision in
the closing hours before the tax bill was voted on. Some of my
colleagues told me later they were not sure what I was doing, and it
was late, and they were not certain what the point of order was setting
out to do, but they want a chance to vote on it again. Well, we are
going to give them that chance today, I hope, if we do not get muddled
down by the efforts of the tobacco companies again to pull a fast one.
I am reminded of a story because of what we are setting out to do
here. An Irishman was seen digging around the wall of his house. He was
asked by his neighbor what he was doing. He said, ``Faith, I'm letting
the dark out of the cellar.'' That is what we are trying to do here. We
want to let the dark out of the cellar in the tax bill. That section of
miscellaneous provisions which was supposed to be innocuous, not
costly, noncontroversial, turned out to include this $50 billion break
for these tobacco companies.
I think that what the tobacco companies are trying to do here is to
start writing the tobacco liability settlement legislation even before
Congress gets its chance. And they want this $50 billion break to start
with.
The tobacco company provision in the tax cut bill says the increase
in the tobacco excise taxes collected as a result of the balanced
budget law will be credited against the total payments the tobacco
companies would make as a result of Federal legislation implementing
the settlement.
The tobacco tax increase in the final version of the balanced budget
bill raised $5.2 billion in the first 5 years, and a total of $16.7
billion over 10 years. Projected out to the 25-year life of the
proposed settlement, we can estimate that the revenues at stake amount
to around $50 billion over 25 years. I do not know if there was another
provision in that tax bill of this magnitude. One small section that
will literally cost the taxpayers of this country $50 billion that was
put in this bill without a minute of debate or hearing.
That means the new balanced budget law, as amended by the tax cut
bill, would give the tobacco companies a $50 billion credit in any
future settlement. Boy, that is a good day at work if you can come home
as a lobbyist for the tobacco companies, and the spouse says to the
lobbyist, ``How was your day at work?''
``I had a great day.''
``What did you do?''
``I just saved the tobacco companies of America $50 billion without
anybody noticing. We stuck it in the bottom of the tax bill, and now no
one will ever know.''
Well, that isn't what happened. It was discovered. And today it will
be addressed directly.
The revenues in this bill were not intended to set off the liability
of the tobacco companies. They were in there to provide health
insurance for low-income kids. They should not be used to lessen the
financial liability of the tobacco companies.
Moreover, if this provision is not repealed, the tobacco industry is
going to argue that $50 billion should be taken out of the money the
settlement envisions for public health initiatives. Keep in mind, these
tobacco companies sat down with 40 State attorneys general and said,
``We are willing to reach a settlement. And we are willing to invest
money in public health initiatives to reduce children's smoking, for
example.''
Now they have said, ``We won't give you $368.5 billion as promised
over 25 years. We want a reduction of $50 billion.''
So what will be at stake here? Enforcement of this agreement, public
information campaigns, smoking cessation programs, industry liability
payments. We should not give the tobacco industry this $50 billion
windfall.
I am pleased that Senator Collins is joining me. I see she has come
to the floor here. Senator Collins of Maine has agreed with me that we
should repeal this sweetheart deal for big tobacco. American taxpayers
should not be subsidizing the tobacco industry to reduce its liability
for past misconduct.
The amendment is very simple. It simply says that subsection (k) of
section 9302 of the Balanced Budget Act of 1997, as added by section
1604(f)(3) of the Taxpayer Relief Act of 1997, is repealed. Or, in
plain English, the tobacco industry credit added to the balanced budget
bill by the tax cut bill is repealed.
The groups that have joined me in support of this effort grow by the
hour. I am very proud of those who are endorsing the Durbin-Collins
amendment to repeal that $50 billion tobacco credit.
I will read the groups for the Record: Action on Smoking and Health;
the American Association of Critical Care Nurses; the American Cancer
Society; the American College of Preventive Medicine; the American
Heart Association; the American Lung Association; the American Medical
Association; the American Public Health Association; the American
Society of Addiction Medicine; Children's Defense Fund; the HMO Group;
the Latino Council on Alcohol and Tobacco; the National Association of
City and County Health Officials; the National Center for Tobacco-Free
Kids; the National Council of Churches; the National Education
Association; the National PTA; the National Women's Law Center;
Partnership for Prevention; Public Citizen; Taxpayers for Common Sense;
U.S. Public Interest Research Group; and the Women's Legal Defense
Fund.
[[Page S8997]]
Some have argued we should just let this provision stand and then try
to adjust the settlement accordingly, by adding $50 billion to the
required payments. We should not have to expend valuable energy trying
to increase the settlement price just to return to where we stood
before July 31.
We should repeal this provision now, clear the decks, and start from
a level playing field in deciding what the settlement price would be.
Many of us think the final settlement price should be higher than $368
billion.
I might add that my colleague from Kentucky, Senator Ford, is
offering an amendment in the second degree to this. He suggested at one
point he thinks $368.5 billion should be the total that is in the
settlement. Though I will not oppose his amendment as written, I
disagree with that particular aspect. But whatever the price, it should
not have to be artificially adjusted to fix a provision added in the
dark of night that almost no one knew about and almost no one agreed
to.
Some have also argued that the settlement provision has no meaning
and no effect. When I brought it up on the floor some of my colleagues
said, ``Well, this is not binding. It is not a matter of law.''
I said at that point, ``Then take it out of the bill.''
``No, no, we have to keep it in the bill.''
Clearly, the people fighting for it in the bill wanted a strong
bargaining position. They wanted to say when the tobacco settlement
came down, we will start with a $50 billion credit for the tobacco
companies. I do not think the tobacco industry would have worked so
hard to put the provision in the bill if it was not important.
In fact, news reports have indicated that the provision was supposed
to have been put in the Balanced Budget Act and was added to the
Taxpayer Relief Act after being inadvertently left out of the budget
bill. If it had no meaning or effect, no one would have bothered to
write it into the tax cut bill.
But make no mistake about it, this provision is very meaningful.
Although it was originally characterized as an ``orphan'' provision
because no one would own up to having written it, the truth finally
came out that the tobacco industry provided the language directly to
the Joint Tax Committee staff which put it in the bill at the behest of
certain congressional leaders. The provision is very meaningful to
those who wrote it, namely, the tobacco companies. They stand to gain
$50 billion for 46 words of legislative language. That is more than $1
billion a word.
When you think about the history of Washington, DC, and all that we
have done on Capitol Hill, we have literally reached the point where an
effective lobbyist working in the stealth of the night can come up with
a provision which saves his clients more than $1 billion a word. What
an effective lobbyist that must be.
Regardless of whether we support or oppose the details of the
proposed settlement, we should all be able to agree that the taxpayers
should not be underwriting the cost of the settlement.
Some have argued we should not adopt this amendment because it might
slow down this appropriations bill, and it is a very important
appropriations bill. But I believe the American people and most Members
of Congress don't support this tobacco giveaway. We must not pass up
this opportunity to eliminate it. It is a bad law and it needs to be
changed.
Those who want to derail the Labor-HHS bill will try to do so
regardless of whether this provision is in it. We must not let a threat
to slow down the bill turn courage into cowardice. If we stand up to
the forces behind this amendment they will shrink away. They don't
really want to try to defend the indefensible.
The question also comes up as to whether, if the amendment is
adopted, the Labor-HHS appropriations bill could be ``blue slipped'' by
the Ways and Means Committee in the House, pursuant to the origination
clause, article I, Section 7 of our Constitution.
As a practical matter, the answer is no. Of course, the House could
do whatever it wishes. It is a sovereign body. But as a practical
matter, it wouldn't have a good case for blue slipping this bill over
this amendment because it is not a revenue measure.
We talked to the House Parliamentarian's office. They agreed. The
subsection of the budget bill that would be repealed by this amendment
does not amend the Internal Revenue Code. It does not impose or remove
a tax. It does not even change the tobacco industry's current
obligations. It addresses only a possible future credit against the
payments the tobacco industry would make in a settlement. That credit
is not a tax credit. It is simply a reduction of the tobacco company's
payment obligations under a settlement, if there is one. Therefore,
this is not a tax revenue measure subject to that objection.
Any Member of the House could try to offer a privileged resolution
claiming that the provision was a revenue measure subject to the
origination clause and asking the House to reject the bill and send it
back to the Senate, but they would have a hard time convincing the
majority in the House to reject this important appropriations bill on
the grounds this amendment was supposedly a revenue matter, even though
the amendment, as I said, does not affect the Tax Code nor anyone's tax
liability and does not even affect the tobacco industry's obligations.
Tobacco products in the United States kill more than 400,000
Americans every year. The U.S. economy suffers a tragic and unnecessary
loss of $50 billion each and every year from tobacco-related health
costs and another $50 billion from tobacco-related loss of
productivity.
Historically, the tobacco industry was unwilling to admit to any
damage caused by its products. Even today, tobacco company executives
choke on statements that their products ``might have'' caused some
instances of cancer.
But the settlement currently being discussed was agreed to by the
tobacco industry.
This secret credit should never have been written into the tax bill.
It should be repealed immediately.
Madam President, I say to my colleagues, they may have had an excuse
for not voting to strip this provision from the tax cut bill on July
31. Perhaps many of them genuinely did not know it was there. I only
learned about it a few hours before the vote. But there is no excuse
today. There is no excuse for the Senate to leave this provision in
law.
Now my colleagues have a chance to vote straight up to rectify the
situation. The American people do not want this credit to remain on the
books. It is time for Congress to agree and to vote to repeal it. So, I
say to my colleagues, don't let the tobacco companies take $50 billion
out of taxpayers' pockets to reduce their settlement liability.
I hope they will join me in voting for the Durbin-Collins amendment.
This amendment, to paraphrase an old literary quote, ``shines and
stinks like rotten mackerel by moonlight.'' We are now bringing it to
the attention of our colleagues to let them know that this rotten
mackerel should be excised from the Federal law, that the tobacco
lobbyists, as effective as they were in placing this provision in law,
did the wrong thing. They played old politics under the old rules.
I am happy now to yield the floor to my cosponsor on this amendment,
Senator Collins of Maine.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Madam President, I am pleased to be joining with my
colleague from Illinois in offering this amendment to repeal the tax
break that was slipped into the tax bill at the very last minute to
benefit the tobacco industry. I note that the distinguished Presiding
Officer, my colleague, the senior Senator from Maine, is also a strong
supporter and cosponsor of our effort.
This provision, which amounts to a $50 billion giveaway to big
tobacco, has generated justifiable outrage across the country and
fueled the tremendous cynicism that already colors the American
public's view of politics and politicians.
Now, Madam President, where did this tax break come from? It was not
in the Senate tax bill. It was not in the House version of the bill.
There was never any public debate. The one-sentence provision just
magically appeared at the end of a 327-page conference report tucked
into a section entitled ``Technical Amendments Related
[[Page S8998]]
to Small Business, Job Protection, and Other Legislation.''
No one claimed parentage. Like Harriet Beecher Stowe's Topsy, ``She
wasn't born, she just was.''
While no one has officially spoken up to claim this orphan, it turns
out, according to press reports, that the provision was written not by
Members of Congress, but by the tobacco industry.
Madam President, this is outrageous. It is backroom politics at its
worst, and represents the kind of abuse of the legislative process that
the American public is rightfully sick and tired of--a secret
agreement, negotiated behind closed doors, by powerful tobacco industry
lobbyists, in the closing hours of consideration of a massive tax bill.
Congress is currently considering the proposed $368.5 billion global
settlement negotiated between 40 attorneys general and the tobacco
industry. As we review this settlement, one of our primary objectives
is to ensure that the tobacco industry has negotiated in good faith and
is held fully accountable for their past misconduct.
Many of us have harbored suspicions about the tobacco companies'
supposedly good intentions during these negotiations. We have been
concerned that the tobacco companies would simply raise prices and
write off the settlement payments, effectively passing on the costs of
the settlement to the taxpayer and the tobacco consumer.
Well, Madam President, worst suspicions confirmed. Not only can the
tobacco companies write off the entire $368 billion as a business
expense, which means that 30 to 40 percent of the tobacco settlement
costs will be subsidized by the taxpayers, but now the Congress, in a
moment of midnight madness, has carved out a brand-new tax break for
these companies that effectively reduces the costs of the settlement by
$50 billion.
It is outrageous that we should even consider approving this tax
break and passing on these costs to the American taxpayer. Tobacco is
the No. 1 preventable cause of death in the United States. It accounts
for approximately 500,000 deaths a year and billions of dollars in
health care costs. The tobacco companies have agreed to the settlement
as a means of reducing their future liability and are providing some
compensation to States and individuals for the costs they face because
of the disease and addiction associated with their products.
Regardless of our position on the proposed tobacco settlement, we
should all agree to reject this $50 billion special tax break for the
industry.
Now, some would have us believe that the $50 billion tax credit is
part of the tobacco settlement. This is simply not true. In fact, this
concept was discussed and soundly rejected during the negotiations
between the attorneys general and the tobacco industry. In fact, the
States attorneys general strongly oppose this new tax credit.
I have a letter from the States attorneys general. I ask unanimous
consent it be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
State Attorneys General, (a Communication From the Chief
Legal Officers of the Following States,
August 6, 1997.
Hon. Phil Carlton,
Carlton Law Firm,
Pinetops, NC.
Dear Mr. Carlton: We are writing to inform you that the
recent action by Congress to use revenues raised by new taxes
as a credit toward our settlement is unacceptable. Apparently
this action was taken with approval by or at the urging of
representatives of the industry. As you know, this concept
was discussed and rejected by us during our negotiations. The
industry has agreed to specific dollar amounts in the
settlement, and we will not agree to any diminution of those
amounts not specifically set forth in the agreement.
We have continued our support for this settlement because
we believe it to be in the best interest of the American
public. We have always made it clear, however, that should
Congress substantially alter material terms of the agreement,
the States would exercise the option of rejecting the
settlement and continuing the prosecution of their lawsuits.
We regard this action as a substantial alteration of a
material term. We ask your immediate agreement that this must
be eliminated from any final resolution of this matter.
Sincerely,
Mike Moore,
Mississippi Attorney General.
Grant Woods,
Arizona Attorney General.
Christine O. Gregoire,
Washington Attorney General.
Robert A. Butterworth,
Florida Attorney General.
Richard Blumenthal,
Connecticut Attorney General.
Dennis C. Yacco,
New York Attorney General.
Ms. COLLINS. In that letter they state that they regard this action
as ``a substantial alteration of a material term'' of the agreement and
that they will ``exercise their option of rejecting the settlement and
continuing the prosecution of their lawsuits'' if it is included.
Madam President, this secret tax break should never have been written
into law in the first place. It should be repealed immediately. I urge
my colleagues to join me in supporting the Durbin-Collins amendment.
I yield the floor.
Ms. SNOWE. Mr. President, I rise today in support of the amendment
offered by the junior Senator from Illinois. This amendment would
repeal a provision that was inserted in the recently enacted Taxpayer
Relief Act of 1997 at the last minute that could potentially reduce the
cost to tobacco companies of the proposed global settlement of tobacco
litigation.
Mr. President, as my colleagues are aware, a global settlement on
tobacco litigation was announced on June 20. This settlement would
resolve lawsuits brought by 40 States against the tobacco industry that
sought to recoup State Medicaid spending for smoking related illnesses.
Under the terms of the settlement, the industry would pay an
estimated $386 billion over the next 25 years to compensate State and
individuals for tobacco-related health costs and to finance nationwide
antismoking programs. The settlement would further restrict the
advertising of tobacco products and impose new labeling requirements on
cigarettes and smokeless tobacco. At the same time, the tobacco
industry would gain closure to the State lawsuits, and protect the
industry from all but individual lawsuits in the future.
Mr. President, in light of this proposed agreement, I was very
disappointed that a provision was included in the recently enacted tax
cut package that would potentially reduce the cost to the tobacco
industry of their proposed settlement. Specifically, the provision--
which was agreed to by the administration and congressional negotiators
at the last minute--would allow the tobacco industry to treat the
excise tax on tobacco products as a credit against their proposed $368
billion payment, assuming that the settlement is codified. Although the
enactment of that settlement is far from certain, the value of this
potential credit is estimated to be $50 billion over 25 years.
Mr. President, regardless of whether or not Congress and the
President ultimately enact, modify, or reject the proposed tobacco
settlement, I do not believe that the already-enacted Federal excise
tax on tobacco products--which is paid by consumers and is intended to
help provide health insurance for uninsured children--should
potentially become a downpayment by the industry on their proposed
settlement. The fact that the Clinton administration and congressional
negotiators agreed to include this provision at the last minute does
not mean it should remain in law indefinitely--so I have cosponsored
the Durbin amendment to repeal this provision.
Mr. President, I regret that this provision was inserted in the tax
agreement without providing the House and Senate with an opportunity
for consideration. As my colleagues will remember all too well, the
negotiated tax package was a take-it-or-leave-it proposition: Members
were unable to remove this or any other specific provision without
taking the risk that the entire agreement would unravel and be killed.
Fortunately, we now have the opportunity to consider this provision
independent of the broader tax agreement, and I would urge that my
colleagues vote to repeal this settlement-reducing provision by
supporting the Durbin amendment.
Mr. FORD. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
[[Page S8999]]
The assistant legislative clerk proceeded to call.
Mr. FORD. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Vote on Motion to Waive the Budget Act
The PRESIDING OFFICER. The question is on agreeing to the motion to
waive the Budget Act for the consideration of the McCain amendment
1091. The yeas and nays have been ordered. The clerk will call the
roll.
The assistant legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from Utah [Mr. Bennett] is
necessarily absent.
The result was announced--yeas 45, nays 54, as follows:
[Rollcall Vote No. 223 Leg.]
YEAS--45
Abraham
Allard
Ashcroft
Boxer
Brownback
Campbell
Coats
Collins
Coverdell
Craig
Dodd
Faircloth
Feinstein
Gorton
Gramm
Grams
Gregg
Hagel
Harkin
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Johnson
Kempthorne
Kohl
Kyl
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Nickles
Roberts
Sessions
Shelby
Smith (NH)
Specter
Thomas
Thompson
Thurmond
Warner
Wellstone
NAYS--54
Akaka
Baucus
Biden
Bingaman
Bond
Breaux
Bryan
Bumpers
Burns
Byrd
Chafee
Cleland
Cochran
Conrad
D'Amato
Daschle
DeWine
Domenici
Dorgan
Durbin
Enzi
Feingold
Ford
Frist
Glenn
Graham
Grassley
Hatch
Inouye
Jeffords
Kennedy
Kerrey
Kerry
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Moseley-Braun
Moynihan
Murkowski
Murray
Reed
Reid
Robb
Rockefeller
Roth
Santorum
Sarbanes
Smith (OR)
Snowe
Stevens
Torricelli
Wyden
NOT VOTING--1
Bennett
The PRESIDING OFFICER. On this vote, the yeas are 45, the nays 54.
Three-fifths of the Senators duly chosen and sworn not having voted
in the affirmative, the motion is rejected. The point of order is
sustained and the amendment falls.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, perhaps the Senate is not in order.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, perhaps the Senate is not in order.
The PRESIDING OFFICER. The Senate will please come to order.
Mr. SPECTER. Mr. President, may I request that my colleagues who have
amendments on the floor and who have amendments pending stay on the
floor so that we can have a sequencing and see where we are proceeding.
I would like to see, Mr. President, if we might reach a time
agreement on the pending amendment by Senator Durbin. I am advised that
there may be second-degree amendments to the Durbin amendment. May we
reach a unanimous consent agreement to proceed with the Durbin
amendment? Senator Durbin is prepared to accept a short time agreement.
He has already argued the matter. Senator Durbin is prepared to accept
a short time agreement of 20 minutes equally divided.
Is that acceptable to the Members?
Mr. FORD. Mr. President, I have an amendment in the second degree,
and I would be willing to take 10 minutes.
Mr. SPECTER. Mr. President, I ask unanimous consent then that we
proceed with the Durbin amendment with 20 minutes equally divided, and
10 minutes for a second-degree amendment by Senator Ford, unless there
is an objection.
Mr. SESSIONS. I object.
Mr. SPECTER. May I inquire of my distinguished colleague from Alabama
if he would accept a time agreement on his second-degree amendment?
Mr. SESSIONS. How long is the time agreement?
Mr. SPECTER. I would suggest 10 minutes, which has been offered by
the Senator from Kentucky. How about 10 minutes for the second-degree
amendment of the Senator from Alabama?
Mr. DURBIN. Mr. President, reserving the right to object.
The PRESIDING OFFICER. Just a minute, if the Senator would suspend.
Mr. SESSIONS. That would be appropriate.
Mr. SPECTER. I thank my colleague from Alabama.
Mr. President, I amend the unanimous-consent request to add 10
minutes for the amendment by Senator Sessions in the second degree?
Mr. SESSIONS. Thirty minutes.
Mr. FORD. Reserving the right to object.
The PRESIDING OFFICER. Let's please have order. Let's have one
Senator speaking at a time.
Mr. FORD. I would like to object.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. FORD. We have to see the amendment and then we can agree. I
apologize to the Senator. But I have been asked to object since we
didn't know what the amendment is, and I am objecting for my
colleagues.
Mr. SPECTER. Mr. President, might I ask the Senator from Alabama to
state the amendment that he proposes to offer?
Mr. SESSIONS. Yes. The amendment would deal with attorney fees,
involving payment of attorney fees--payments of attorney fees.
Mr. SPECTER. Mr. President, might the Senator from Alabama give a
little more specification?
[Laughter.]
Mr. SESSIONS. My amendment would limit the amount of money that could
be paid for the plaintiffs attorneys that have been hired as private
attorneys by the attorneys general, and would not vitiate Senator
Durbin's amendment, but, in fact, would be in addition to that, and
would not undermine or kill that amendment.
Mr. SPECTER. Mr. President, I thank my colleague from Alabama.
I would inquire of the Senator from Kentucky if that would be
sufficient to let us proceed with the unanimous-consent agreement with
30 minutes for that second-degree amendment.
Mr. DURBIN. Mr. President, reserving the right to object, I say to
the Senator from Pennsylvania, if the Senator from Alabama would be
kind enough to show us a copy of his amendment, we may be able to enter
into this agreement very quickly.
I would like to see the amendment, if he wouldn't mind. I have seen
Senator Ford's amendment. I believe the time allocation we have been
talking about is a reasonable one. But I wonder if the Senator from
Alabama is asking for 30 minutes for his amendment in the second
degree. Is that my understanding?
Mr. SPECTER. That is correct.
Mr. FORD. That is 15 minutes on the side.
Mr. SPECTER. Equally divided.
Mr. DURBIN. So as I understand it, the suggestion is that we agree to
20 minutes on my amendment, and then another 10 minutes equally divided
on Senator Ford's second-degree amendment, and 30 minutes on the
amendment of the Senator from Alabama as a second-degree amendment. Is
that correct?
Mr. SPECTER. Mr. President, that correctly states the issue.
Mr. SESSIONS. It is my understanding that there will no further votes
tonight.
Mr. SPECTER. My suggestion is that we proceed to vote tonight.
Perhaps we can, if we can find agreement on putting these all on the
calendar with the consent of the majority leader, vote tomorrow. But I
would like to see us come to terms with the complete list and at least
have a disposition pattern, if we do not vote tonight.
Mr. President, I yield to my colleague.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Mr. President, I thank the Senator.
I hope that we can reach an agreement on this amendment in the second
degree on a time limit, and if we can reach an agreement on a couple of
more that we have, then I hope the majority and minority leaders would
agree that we could roll those over and vote tomorrow, and not have any
more votes tonight.
Mr. SPECTER. Mr. President, may we proceed? If the Senator from
Alabama could give the Senator from Illinois a copy of his amendment
while we are talking about the others before we move on, if we can
solidify the agreement, it would be helpful. Our experience has been
that once we move on
[[Page S9000]]
without getting the agreement, sometimes they evaporate.
May I inquire of the Senator from Washington--is Senator Gorton in
the Chamber--as to a time agreement on his pending amendment?
Mr. GORTON. I am not yet prepared to enter into a time agreement on
the amendment.
Mr. SPECTER. Mr. President, may I inquire of the Senator from Indiana
about the testing amendment. Are we in a position to move for a time
agreement on that amendment?
Mr. COATS. Mr. President, if the Senator will yield, I am just
discussing that with Senator Dorgan and others. I just had a discussion
with the majority leader on that. We are in the process of discussing
that concept, and we are talking to numerous people on both sides of
the aisle. We will not be ready to go with that this evening, I do not
believe, but I believe we will be by tomorrow.
Mr. SPECTER. Mr. President, might I inquire if we could reach a time
agreement whenever the matter is ready for debate?
Mr. COATS. I am not 100 percent sure it is going to need a lot of
debate if we are able to work out a procedure and agreement on proper
language, and so forth, in terms of how we will dispose of this. It may
be that we don't need an agreement, but I can't give the Senator an
answer.
Mr. SPECTER. I thank the Senator from Indiana.
Mr. FORD. Mr. President, will the distinguished manager yield for a
question?
Mr. SPECTER. I would.
Mr. FORD. I have a second-degree amendment offered, 10 minutes
equally divided. I understand it is acceptable. I will not ask for a
rollcall vote. That might help expedite the decision here a little bit.
We could proceed with my second-degree amendment which would have to go
before the Durbin amendment, and then the amendment of the
distinguished Senator from Alabama which would be after that. We can go
ahead and get his out of way, if that would be acceptable.
Mr. SPECTER. Mr. President, I think that would be acceptable. I first
would like to explore what we can do on the other pending amendments.
If we could hear from the Senator from Oklahoma as to how much time
he would need on his amendment or perhaps the distinguished Senator
from Massachusetts as to whether we could reach a time agreement and
vote on the issues raised on the Teamsters matter.
Mr. KENNEDY. Mr. President, as was pointed out by the Senator from
Alaska and others, this is an extraneous matter. We had a good debate
on it the other evening. I believe that it would probably take--we did
not really complete the debate on it the other evening, so it will
probably take some time to reach a resolution of it. But the majority
leader has spoken to the minority leader about it and talked to me
about it in terms of time, but I think it will probably take some time.
I know the Senator from Maryland was very much involved in it. I don't
see him in the Chamber at this particular time.
Mr. SPECTER. Mr. President, might I inquire of the Senator from
Massachusetts whether he thinks it would be worthwhile to explore
trying to find some outer parameter of time, 4 hours equally divided--
some time limit?
Mr. DASCHLE. Mr. President, if the Senator will yield.
Mr. SPECTER. I do.
Mr. DASCHLE. This has been a matter of some discussion with the
majority leader, and I think it would be prudent for us to allow the
negotiations to continue without pressing for any kind of conclusive
agreement tonight. I think we are making progress, but I do not think
we are going to be in any position to come to any final conclusion on
the amendment until we have had some additional discussions with the
Senator from Oklahoma and others. So my preference would be to allow
these negotiations to continue as we work on other amendments and
revisit the question tomorrow afternoon, or tomorrow morning.
Mr. STEVENS. Mr. President, will the Senator yield to me?
Mr. SPECTER. I do.
Mr. STEVENS. I appreciate the statements made by the distinguished
Democratic leader, but I have just counted days and we have 8 more days
in this month to vote. And we have 14, 15 bills to bring across this
floor from the Appropriations Committee that should all be passed by
September 30. Tomorrow night is the President's picnic, and by
tradition we would not be voting tomorrow night. That means we are not
going to be voting Friday. Unless we get some agreement very quickly, I
would say by tomorrow afternoon, we probably cannot finish this bill
this week. We have the Interior bill and we have the D.C. bill yet to
pass and 14 bills after that--13 conference reports, managers'
statements from the conferences, and 1 continuing resolution.
I am beginning to see a problem developing as far as our ability to
handle these bills if these extraneous amendments are going to weigh
them down. I urge that we find some way to make up a list to see how
many more amendments we have out there and then see what we can do
about the time or getting some agreement to terminate this. This bill
actually is a larger bill than the defense bill. We have been on this
bill now for a substantial period of time. I think we have to find some
way to get it to a resolution by at least Thursday afternoon and lay
down the Interior bill so we can start that and get some of the debate
going on Friday on that at least. I hope that we would find some way to
get some resolution on some of these items that appear to be
unlimitable right now.
Is there some way we could agree on getting a list and say there will
be no more amendments? Could we get a list that there will be no more
amendments raised?
Mr. SPECTER. We have such a list.
Mr. STEVENS. You have a dozen second-degree amendments so I do not
think you can find an end to this unless you get an agreement there
will be no more amendments.
Mr. SPECTER addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. I thank our distinguished colleague, Senator Stevens,
the chairman of the Appropriations Committee, for what he has just said
and for his management of the overall appropriations process. He is
exactly right. We had discussed this matter, and that is why I am
pressing now to try to get time agreements.
We do have a list, but we have not precluded under the customary
arrangement second-degree amendments. We could not incorporate that
type of limitation.
May I inquire of the Senator from Minnesota, Mr. Wellstone, if he is
in the Chamber, with respect to the amendments he has pending?
Might I inquire of the Senator from Washington, Senator Murray, of
her willingness to enter into a time agreement on the amendment
relating to family violence?
Mrs. MURRAY. Mr. President, I would be happy to enter into a time
agreement after the Durbin amendment is disposed of. I would need a
half-hour of time. I do not know what the opponents would need.
Mr. SPECTER. Mr. President, then I ask unanimous consent that we
enter a time agreement on the amendment just referred to by the Senator
from Washington, 1 hour equally divided, so she will have 30 minutes.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. SPECTER. Mr. President, I thank my colleague from Washington.
I again inquire of the other Wellstone amendments--if the Senator
from Minnesota is not in the Chamber, perhaps we can call him and ask
him to come to the floor--if he would be willing to enter into time
agreements.
Mr. President, might I inquire of the distinguished Democratic
leader--if I might have the attention of the Senator from South Dakota,
there is an amendment pending regarding Pell grants and child literacy.
I ask, if I might, the Senator from South Dakota, the distinguished
Democratic leader, what his intentions are, whether he would be
agreeable to a time limit?
Mr. DASCHLE. I would be happy to agree to a 20-minute time agreement,
20 minutes equally divided, if it is a contested amendment.
Mr. SPECTER. Mr. President, I ask unanimous consent that we have the
agreement, 20 minutes equally divided.
[[Page S9001]]
Mr. DASCHLE. Reserving the right to object, I would assume there
would be no second-degrees--with that timeframe assuming that there are
no second-degree amendments.
Mr. LOTT. I would accept that in the unanimous-consent agreement,
without second-degree amendments, and then a vote on or in relation to
the Daschle amendment.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. SPECTER. Mr. President, I inquire of the Senator from Illinois if
he has had a chance to see the amendment by the Senator from Alabama.
Mr. DASCHLE. Mr. President, I might be able to enlighten my
colleague, the manager of the bill. We are told by a number of our
colleagues that they are not prepared to enter into a time agreement on
the amendment of the distinguished Senator from Alabama at this time.
So I think it will probably be some time before we are able to do that.
We may want to proceed. But at least at this point I do not think we
are in a position to agree to a timeframe on the amendment.
Mr. SPECTER. Mr. President, I thank the distinguished Democratic
leader and would ask that they make the review as promptly as they can
because we are ready to really proceed with the conclusion of the
amendment by Senator Ford and Senator Sessions and also Senator Durbin.
Mr. DURBIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. If the Senator from Pennsylvania will yield, I suggest we
return to my amendment, and Senator Ford has an amendment in the second
degree and he is prepared to offer it. And at that point, if there are
any other amendments in the second degree, they can be offered. But I
would like some understanding as to whether or not any more votes would
be taken this evening on any of these amendments.
Mr. SPECTER. Mr. President, if the Senator will yield, I think we
have to be prepared to vote, on this state of the record. We are in a
state of considerable flux, if not confusion, as to where this bill is
headed, and our experience is that unless we stay and debate and vote
we are not going to get through this bill. I say that with reluctance
because I know Senators have other plans.
Mr. President, I would suggest that we proceed at this time to the
debate on the amendment by the Senator from Kentucky on his second-
degree amendment and perhaps in that intervening 10 minutes we could
get Senator Wellstone to the floor to find a time limit. If we are
unable to come to an agreement on the second-degree amendment by
Senator Sessions, perhaps we would proceed with Senator Murray's
amendment which is 1 hour equally divided.
The PRESIDING OFFICER. The Senator from Kentucky is recognized for a
period of 5 minutes.
Mr. FORD. I ask, is it necessary that I call up my amendment?
The PRESIDING OFFICER. The Senator's amendment is pending.
Amendment No. 1117
Mr. FORD. Mr. President, this amendment is cosponsored by Senator
Robb, Senator Hollings, Senator McConnell, Senator Faircloth, Senator
Helms, and Senator Thompson.
As many of my colleagues already know, I have been extremely
disappointed that the national tobacco settlement includes no
provisions whatsoever to help the tobacco farmer. There is no question
that this proposal will affect them. Yet there is nothing in the
proposal for them. They were not invited to the negotiations. They were
not consulted about the negotiations. They were not even briefed about
what was going on during the negotiations.
The proposed settlement contains money to compensate promoters of the
NASCAR races who lose tobacco sponsorship. It contains money to
compensate promoters of rodeo events who lose tobacco sponsorship. It
contains money for other events, teams, or entries in such events who
lose tobacco sponsorship. It contains money, big money, for a tobacco
counteradvertising program. It contains money for smoking cessation
programs. It contains money for individual lawsuits. It contains money
for Medicaid lawsuits filed by the State.
Mr. President, the proposed tobacco settlement contains compensation
for just about everything you can think of, everything except the
tobacco farmer.
The negotiators found a way to compensate promoters of sporting
events, but they completely ignored a 200-year tradition that is the
cornerstone of many small communities in my State. In other words, the
farmers got the shaft.
I intend to do everything I can to keep any legislation from passing
unless there is a fair compensation for tobacco farmers included in the
$368.5 billion package. We have to take into account the future of
these small families. We have to take into account the future of these
small farm communities.
There are about 60,000 tobacco farms in my State alone, Mr.
President. Most of them grow a couple acres of tobacco, but they get
about one-fourth of their farm income from tobacco. The national
tobacco settlement leaves them out in the cold. It leaves the local
economies of entire communities in shambles. We must do something about
it.
I have been working with my farmers and with other tobacco State
Senators to develop a package that will provide fair compensation to
tobacco farmers and tobacco-growing communities. We intend to have such
a package included in any legislation to implement the tobacco
settlement. I think other Senators from tobacco States share my view
that we will simply not support any future legislation which does not
address the tobacco farmers' future.
So, Mr. President, all my amendment says is that farmers ought to be
taken into account. We should not forget them. My amendment is a
second-degree amendment which expresses the sense of the Senate that
tobacco growers and tobacco-growing communities should be fairly
compensated as a part of any Federal legislation for the adverse impact
which will follow from enactment of a national tobacco settlement. I
think this is a reasonable request, and I believe my colleagues are
prepared to accept my amendment by unanimous consent. I am perfectly
willing to do that without asking my colleagues to vote. I yield the
floor.
Mr. DURBIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, speaking to the second-degree amendment
offered by the Senator from Kentucky, he and I have been in
disagreement on this issue in the short time I have served in this
body, but I stand today in support of his second-degree amendment.
Though I may disagree with one or two provisions in it, I believe the
central element of his amendment is a suggestion that tobacco growers
should be protected in any settlement agreement, and I certainly think
that is a worthy goal as part of the settlement negotiations. For that
reason, though I may disagree with some other particulars, I will
support his second-degree amendment.
Mr. LUGAR. Mr. President, I did not object to the Ford sense-of-the-
Senate amendment to S. 1061. I agree with its sentiment that the needs
of tobacco farmers should be taken into account when Congress considers
the proposed tobacco settlement.
I wish to express reservations about two points in the Ford
amendment's language. First, the amendment says that any compensation
to tobacco growers should ``be included within the $368.5 billion in
payments.'' However, we do not now know that the size of the settlement
will be precisely $368.5 billion. It may be larger. Moreover, payments
to growers might be additive to the settlement amount, whatever its
size.
Second, the amendment expresses a desire to ensure ``the continued
administration of a viable federal tobacco program which operates at no
net cost to the taxpayer.'' I favor compensating tobacco farmers for
the equity they have built up in the quota system over the years. Such
a buyout of the quota program should lead to, at most, a minimal price-
supporting role for the Government. That is what we have done for the
producers of most other commodities in the 1996 FAIR Act: Transition
payments, and price supports at market-clearing levels.
I believe that to continue the present tobacco program without change
is not
[[Page S9002]]
likely to be viable, so I find the amendment's language acceptable.
Because some might read it to imply an endorsement of the status quo, I
simply want to register my view that such a reading is neither required
by the amendment's language, nor in the long-term interest of tobacco
producers.
Mr. SPECTER addressed the chair.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I believe that the Senator from Kentucky
has offered a worthwhile amendment. There is no doubt about the
dislocation to tobacco growers occasioned by a settlement which will
have the effect of crippling their business for public policy reasons
which may yet be worked out.
It is obviously uncertain at this point as to what will happen with
the proposed global settlement on the tobacco industry, but I think
this is another matter where public policy calls for certain action.
There are some employees, some workers in the industry who are hurt. I
think it is sensible to provide for those individual workers.
Certainly, we have seen the demise in my State of the steel industry
and the glass industry and the coal industry, and we have tried to take
care of dislocated workers. As the distinguished Senator from Kentucky
has articulated the amendment, the sense of the Senate to do that I
think is acceptable. There may be a fair distance between the sense of
the Senate and how it is going to be effectuated. With some frequency
we see on this floor the Senate express its sense and then back off
when it comes to putting dollars up to druthers.
But in terms of the public policy behind looking out for the
interests of the employees who will be injured by a global tobacco
settlement, I believe the Senator from Kentucky has offered a
worthwhile amendment, and we are prepared to accept it on this side.
Mr. FORD. Mr. President, if I have any time left, I will yield it
back after asking unanimous consent that Senator Frist of Tennessee be
added as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FORD. Mr. President, I thank my colleague for his support, and I
do agree, once we have a sense of the Senate, they should be helped.
How they are helped is another issue.
I thank my colleague from Illinois for his effort here.
I yield back whatever time I might have.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 1117) was agreed to.
Mr. FORD. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. CRAIG. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. SESSIONS addressed the Chair.
The PRESIDING OFFICER. The Senator from Alabama.
Amendment No. 1125 to Amendment No. 1078
(Purpose: To provide for certain limitations on attorneys' fees under
any global tobacco settlement and for increased funding for children's
health research)
Mr. SESSIONS. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from Alabama [Mr. Sessions], for himself, Mr.
Craig and Mr. Faircloth, proposes an amendment numbered 1125
to amendment No. 1078.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the end of the amendment, add the following:
Sec. . (a) General Limitation.--Notwithstanding any other
provision of law, if any attorneys' fees are paid (on behalf
of attorneys for the plaintiffs) in connection with an action
maintained by a State against one or more tobacco companies
to recover tobacco-related medicaid expenditures or for other
causes of action, involved in the settlement agreement, such
fees shall--
(1) not be paid at a rate that exceeds $250 per hour; and
(2) be limited to a total of $5,000,000.
(b) Fee Arrangements.--Subsection (a) shall apply to
attorneys' fees provided for or in connection with an action
of the type described in such subsection under any--
(1) court order;
(2) settlement agreement;
(3) contingency fee arrangement;
(4) arbitration procedure;
(5) alternative dispute resolution procedure (including
mediation); or
(6) other arrangement providing for the payment of
attorneys' fees.
(c) Expenses.--The limitation described in subsection (a)
shall not apply to any amounts provided for the attorneys'
reasonable and customary expenses.
(d) Requirements.--No award of attorneys' fees shall be
made under any national tobacco settlement until the
attorneys involved have--
(1) provided to the Governor of the appropriate State, a
detailed time accounting with respect to the work performed
in relation to any legal action which is the subject of the
settlement or with regard to the settlement itself; and
(2) made public disclosure of the time accounting under
paragraph (1) and any fee agreements entered into, or fee
arrangements made, with respect to any legal action that is
the subject of the settlement.
(e) Provision of Funds for Children's Health Research.--Any
amounts provided for attorneys' fees in excess of the
limitation applicable under this section shall be paid into
the Treasury for use by the National Institutes of Health for
research relating to children's health.
(f) Effective Date.--The limitation on the payment of
attorneys' fees contained in this section shall become
effective on the date of enactment of any Act providing for a
national tobacco settlement.
Mr. SESSIONS. Mr. President, I would like to address a very important
issue that has not been discussed much. It has been raised a few times
but not openly discussed. I think it is consistent with Senator
Durbin's concern that a tax benefit being proposed has not had full
public discussion.
One of the things that has not had public discussion regarding the
tobacco settlement is attorney's fees. Many of the States have
undertaken very lucrative agreements with plaintiff lawyers who States
attorneys general have hired to represent their States to carry on this
litigation.
Less than a year ago, I was attorney general of the State of Alabama,
and I was asked and it was suggested to me to hire plaintiff attorneys
to represent the State of Alabama. It was suggested that a 25-percent
contingent fee would be appropriate in those cases. I rejected that. I
felt like it was not necessary for the State of Alabama to undertake
such a generous fee agreement. Other States have undertaken such
agreements, and that is of much concern to me.
Now we have the case coming before this Senate of being asked to
bless or to approve by legislation those agreements. It is important
for us to consider that every dollar that is spent on attorney's fees
is a dollar that does not go to children's health. So this amendment
limits the amount of money that can be spent on attorney's fees and
says any excess moneys that are saved in that regard will be sent to
the National Institutes of Health to be used for research for
children's illnesses.
I think that is the appropriate way to do this. We have a lot of
attorneys who have been talking a lot about children's health, so let's
talk about that seriously, and let's ask about how this has happened.
Let me just say, the way this agreement has been entered into, the
attorneys general, with their attorneys who they have hired, have
entered into an agreement, a global settlement agreement, with the
tobacco industry. Oddly enough, it mentions nothing about attorney's
fees.
What we have learned since then is that there is a side agreement
between the plaintiffs' attorneys who represent the States and the
tobacco industry to pay their attorney's fees directly by the tobacco
industry, apart from the State that they represent, which is a very odd
situation and, in fact, in my opinion, Mr. President, represents a
conflict of interest, because at this point, you have the attorneys
supposedly representing the State entering into an agreement, a side
agreement, with the attorneys and the party on the other side of this
litigation, the tobacco industry.
So that puts them in a situation in which, if they do not agree and
this settlement does not go forward, they do not get their attorney's
fee.
That is basic. That is a conflict, I submit, between their interests
and their duty and fidelity to the State, their client, and the
opposing side who
[[Page S9003]]
now is paying their fees. Why didn't they put it in the agreement? Why
didn't they state it publicly? Because they don't want to talk about
it.
Most of the estimates and many reports have been suggested as to how
much these fees might be. Some have said $10 to $14 billion. That is
what I have seen published in several different instances. Let me
repeat that: $10 to $14 billion. That is the greatest legal fee ever
paid in the history of this Nation, in the history of this world. It is
the mother of all attorney's fees. We are talking about $10 to $14
billion. Outside of education, the budget of the State of Alabama is $1
billion. So we are talking about an incredible sum of money that could
provide tremendous amounts of research and care for children. That is
where this money ought to go.
We are talking about a secret side agreement by which the attorneys,
supposedly representing the States and the children, have gone over
here now and have set up a side agreement with the people they have
been accusing of being so bad, the tobacco industry, the people they
are suing. That is not an appropriate way to do it.
I think if this body is to approve a global settlement and enact
legislation in that regard, this body ought to make clear where we
stand with regard to attorney's fees. We cannot allow some secret side
agreement representing billions of dollars that could be going to
children to be paid under the table by the party for the other side to
the attorneys to the States who are representing the children.
I think this is a very important subject, Mr. President, and I care
about it very deeply.
I think Senator Durbin's amendment deals with a tax question that has
not been fully aired. This is a question that has not been fully aired,
and it needs to be.
Our amendment would do something else. It would say that every fee
agreement that has been entered into between the State attorneys
general and the lawyers they hired, the plaintiffs' lawyers they hired
to represent them has to be made public, and the statement has to be
made public. We limit the amount of fees. I think this is a large fee,
most people think this is huge. Mr. President, $5 million is the limit
per State we think is appropriate for this kind of litigation. In
addition to that, we say it should not exceed $250 per hour in billing
time. So that would be the cap on the fees that this bill would set
forth: that no more than either $250 per hour, which is far more than
what the average working man in this country makes, I assure you, $250
per hour would be the maximum time. If it goes over that, we would cap
it at $5 million.
I think that is a reasonable proposal. It would not take effect until
and if this body enters into a global settlement of this litigation. I
think it is quite appropriate. I think that we need to deal with this
issue.
I will just say this, as to the secretiveness of it. There have been
several inquiries made by members of various committees of this Senate
and one made by me of an attorney general about what the fee agreement
was, and he did not set forth that agreement. Right after that hearing,
over a month ago, I wrote a letter to the parties involved in this
litigation, and I asked them to state the agreement they had with the
attorneys representing those States publicly. We have a response not
from one of them. They have not responded.
This is a public contract between the attorneys general of the States
and the lawyers who are representing the States. So I think something
is amiss here. It is something we ought to deal with. This amendment
deals with it straight up. I believe it fulfills the needs that we are
here for, and that is to make sure we get the most money possible for
children and children's health.
Mr. CRAIG addressed the Chair.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. CRAIG. Mr. President, I stand to join my colleague from Arkansas
this evening in offering this second-degree amendment. I must tell you,
when the Senator approached me, I was hesitant. I don't get involved in
what I originally think is a private-sector relationship, a client
relationship that can be none of our business here. But when the States
attorneys general and the trial attorneys have come together to craft a
universal or a national agreement that the Senator from Illinois
approaches tonight as part of his amendment, and they approach us to
make this national law, to make this the law of the land, it is now the
public's business, without doubt.
Clearly, the Senator from Arkansas has demonstrated that this
evening. He has even clearly stated----
Mr. FORD. Alabama.
Mr. CRAIG. Excuse me. Excuse me, the Senator from Alabama.
Mr. SESSIONS. Alabama, thank you very much, I say to the Senator from
Iowa.
[Laughter.]
Mr. CRAIG. Touche.
But the Senator has very clearly pointed out there could well have
been side agreements made or upfront agreements that go beyond any
average person's wildest imagination to the potential of tens of
billions of dollars in attorney's fees.
Here tonight the Senator from Illinois--and just a month ago this
Senate agreed to tax an industry for the purpose of the health of the
children of this country, a tax that in 1 year would not even
demonstrate this amount of money. How can it be possible that any one
profession could draw or come to draw or believe to be entitled to that
amount of money? And $250 an hour is a what the Senator's amendment
says is a reasonable and right fee, and even that the average working
person would pale to.
So I am extremely pleased that the Senator this evening has brought
forward the amendment. It is something that this Senate will either
face now or face in the future as we deal with the crafting of a
universal agreement, if that becomes possible and ultimately gets to
the floor of this Senate.
I will join with the Senator however many times it takes to make sure
that what he has proposed as an amendment tonight can and must become
the law of the land, because in his wisdom and in the crafting of this
amendment, he says that the excess dollars go where they ought to go,
to children's health because all of us are extremely concerned about
the rapid increase in teenage smoking in this country. That is part of
what spurred this whole effort that is now nationwide as it relates to
smoking and the tobacco industry.
So I think the amendment to the pending amendment is appropriate this
evening. It fits into what we are trying to do if in fact we become
participants in the crafting of a global agreement as it relates to
what is attempted to be resolved between the States attorneys general,
the tobacco industry, and the representatives of those States attorneys
general. So I join my colleague tonight. I am proud to be a cosponsor
of this important second-degree amendment.
Mr. FAIRCLOTH addressed the Chair.
The PRESIDING OFFICER (Mr. Enzi). The Senator from North Carolina.
Mr. FAIRCLOTH. I rise in strong support of the amendment offered by
the distinguished Senator from Alabama. I cannot think of any better
method of cutting to the crux of this whole tobacco settlement than the
amendment that he has offered. We talk about here, on a regular basis,
doing something for children, for the health care of children, for
their better care, and looking after children. And I strongly support
these initiatives.
Knowing the generous, caring, and giving nature of the trial
attorneys, I have no doubt that they would all be in strong support of
the amendment of the Senator from Alabama if they were here to vote on
it. Knowing of the eleemosynary history of trial attorneys, I know if
they were here, they would join us in strong support of Senator
Sessions' bill.
So I just say that this is a wonderful opportunity to make a major
contribution to the caring for children's health and their well-being
in this country. I commend again the Senator from Alabama for bringing
it to this body's attention. I stand in strong support of it.
I say again, knowing the nature of the trial attorneys of this
country, that if they were here and knowing that they had the
opportunity to make this strong contribution to the children of this
country rather than it going into attorneys' fees, that they would
stand in strong support of the
[[Page S9004]]
amendment of the Senator from Alabama also.
I thank you, Mr. President, and I thank Senator Sessions.
Mr. McCONNELL addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Kentucky.
Mr. McCONNELL. Mr. President, I commend my friend and colleague from
Alabama for an outstanding amendment. I listened carefully to his
comments, Senator Faircloth's comments, and Senator Craig's comments.
As I understand the amendment by the distinguished Senator from
Alabama, he is in effect here giving the Senate a choice, if I
understand correctly, a choice between legal fees and children's
health. The Senator from Alabama pointed out that as a State attorney
general he had the option to retain private counsel to engage in this
litigation which is going on in 30-some odd States around the country,
and that he chose not to do it, but that many State attorneys general
chose to hire private counsel to pursue this litigation against the
tobacco companies.
Now we understand, as the distinguished Senator from Alabama pointed
out, there are fee arrangements not known to the public under which
there could be billions of dollars in fees paid to these lawyers who in
effect were acting on behalf of State governments----
Is that right, I say to my friend from Alabama?
Mr. SESSIONS. You are correct. The Senator is correct.
Mr. McCONNELL. Engaged in the business of the public to recover the
Medicaid costs. And we are not sure how much those fees are.
Now, it is suggested that the Federal Government, the Congress of the
United States, ratify--we will have a proposal at some point this year
or next year--ratify what is referred to as the global tobacco
settlement. So the distinguished Senator from Alabama is simply saying
that this is a matter of public concern.
It will actually, if it is passed, be a matter of Federal law. If we
are going to sanction this kind of agreement, the distinguished Senator
from Alabama is saying we would like to make a decision as how best to
deploy the public money in this global settlement. Some of the public
money, Mr. President, is obviously legal fees for those who, on behalf
of State governments, brought these lawsuits.
The distinguished Senator from Alabama is not being unfair, it seems
to me, to the lawyers. As I understand the amendment, he is saying, up
to $5 million per State or at a rate of $250 an hour, whichever is
less----
Mr. SESSIONS. Less.
Mr. McCONNELL. Would be the capped fee arrangement for these private
lawyers doing public business at the behest of the State attorneys
general. And $5 million, Mr. President, is not a bad year's work, not a
bad 2 years' work--for many Americans not a bad lifetime's work.
So the distinguished Senator from Alabama is not saying that these
lawyers, if you have been hired by the State government, you have to do
it for nothing. All he is saying in effect is you don't get to gouge
us. So he has set here a reasonable limit, some would argue maybe even
too generous, and saying any excess amounts that have been agreed to
should be diverted to the children of America at the National
Institutes of Health to fund research for children and children's
diseases.
I think it is an outstanding amendment. I commend the distinguished
Senator from Alabama for his amendment. I think it makes an awful lot
of sense. It is clearly an amendment in the best interest of the
children of America. So, Mr. President, I thank the Senator from
Alabama for his leadership on this issue.
I yield the floor.
Mr. FORD addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Kentucky.
Mr. FORD. Mr. President, would the Senator from Alabama help me here
a little bit? I want to be sure--the eloquence of his amendment has
already been stated on the floor. Let us be sure, because this is a
very complex piece of legislation. And I yield to everyone because I am
not a lawyer and so, therefore, I have a hard time understanding side
agreements, protocols, but I am learning. I am on the jury.
As I understand it, your amendment applies to the $368.5 billion
settlement?
Mr. SESSIONS. That is correct.
Mr. FORD. Inside there?
Mr. SESSIONS. The Senator is correct.
Mr. FORD. All right.
Now, that is not the bill. That is not the total bill here. There is
also added on to that about $24 billion more for tort liability. That
is in addition to that. And then the lookback penalties, which is if
the reduction of youth smoking is not sufficient to meet the criteria
set, there will be another $42 billion. So we are talking about $435
billion here now, not $368.5 billion.
So I want to be sure that we all understand where we are going. We
are beginning to put so much weight on this agreement that it is going
to fall, and then we will lose, I think, all those goals that we have
set for ourselves.
But one of the items yet to be decided is the plaintiff attorney's
fees.
Your amendment does not get to that?
Mr. SESSIONS. It does, yes. Yes.
Mr. FORD. I am talking about the private litigants now.
Mr. SESSIONS. No, not the private litigants.
Mr. FORD. So private litigants, their attorneys are yet to be
compensated. So you add those on to the $435 billion. Now, if you are
talking about $10 to $14 billion in the other place, I wonder if we
could just add a low figure $10 billion, so we are now getting to
around $495 billion, almost $500 billion. So I want to be sure that we
all are on the same wavelength.
Then we are talking about the new taxes. That is another $50 billion.
That is another $50 billion. That is just over a few years. That is not
over the term of the contract. So you add that on and you are at about
$530 billion. So if there is a possible doubling of lookback penalties,
we are talking about another $42 billion.
So I want to be sure everybody understands that $368.5 billion is
just within a range for the States for those Medicaid payments. The
Federal Government will get about 60 percent; States will get about 40
percent.
There are a lot of things here I thought we ought to be sure about.
The Senator's amendment, I wanted to be sure that it was in the $368
billion, and not in addition to.
Mr. SESSIONS. Let me clarify that as best I can.
Mr. FORD. I think we are all going to have to work at this pretty
hard.
Mr. SESSIONS. To put it real simply, almost every State that entered
into this litigation hired a law firm to represent the State. Some of
them used their own attorneys, I believe, but most hired private
plaintiff lawyers to represent them. They then entered into agreements
to pay them so much money.
Now those attorneys general, now those plaintiff lawyers, now the
tobacco lawyers have come to this body and asked us to approve a global
settlement, ``but don't talk about attorney's fees,'' they say,
``because we're going to take care of that between the plaintiff
lawyers and the tobacco lawyers. We're going to work that out between
us.''
What we are saying is, that needs to be public. The public needs to
know. It ought to be capped to a reasonable fee, and not be a windfall,
because in many of these cases they hardly filed the lawsuits before
the settlement was agreed to, so almost no legal work has been done,
yet they would stand to receive perhaps billions of dollars in legal
fees. It is a matter we have to deal with.
Mr. FORD. I thank the Senator. I hope you understand what I am trying
to do. It is a huge, a humongous piece of legislation. The $368 billion
is just the beginning. It is now, in my judgment, at about $525 to $530
billion. And we have not talked about the private litigants' attorney's
fees, which are an add-on. You are not bothering that.
I think it might be well, Mr. President, if I submit these figures,
have them on a per year basis and with some question marks. There are
other add-ons that will be question marks. And the attorney's fees are
question marks. I think I will just put this in for a matter of the
Record just so everybody will understand.
Mr. President, I ask unanimous consent that this be printed in the
Record.
[[Page S9005]]
There being no objection, the material was ordered to be printed in
the Record, as follows:
NEW FEDERAL REVENUES FROM TOBACCO INDUSTRY
------------------------------------------------------------------------
Per year \1\ Over 25 years
------------------------------------------------------------------------
Core Tobacco Settlement......... $15 bil........... $368.5 bil.
Additional tort liability....... Up to $1 bil...... Up to $23.86 bil.
``Lookback'' penalties.......... Up to $2 bil...... Up to $42 bil.
Attorneys fees.................. ????.............. ????
---------------------------------------
Subtotal.................. Up to $18 bil. Up to $434.36 bil.
(+?). (+?)
New Excise Taxes................ $2 bil............ $50 bil.
---------------------------------------
Subtotal.................. Up to $20 bil..... Up to $484.36 bil.
Possible doubling of Lookback Up to $2 bil...... Up to $42 bil.
penalties.
---------------------------------------
Subtotal.................. Up to $22 bil..... Up to $526.36 bil.
Other add-ons?.................. ????.............. ????
---------------------------------------
Total..................... ????.............. ????
------------------------------------------------------------------------
\1\ Annual figures begin in 5th year of settlement, when fully
implemented.
1995 Tobacco Industry Contribution to GNP: $44.7 bil.
Mr. FORD. I thank the Senator for helping me here.
Mr. SESSIONS. If the Senator will yield.
Mr. FORD. Yes.
Mr. SESSIONS. I do think that, depending on the wording of these
understandings between the attorneys general and lawyers, that the fee
may be a percentage of the whole $500 billion that the Senator referred
to.
Mr. FORD. Because it is not $368 billion, I say to my friend from
Alabama.
Mr. SESSIONS. Yes. I appreciate your correcting that.
Mr. HARKIN. Will the Senator yield for a question?
Mr. SESSIONS. Yes.
Mr. HARKIN. Who has the floor?
The PRESIDING OFFICER. Senator Ford has the floor.
Mr. FORD. I yield the floor.
Mr. HARKIN. I wonder if I might inquire of the author of the
amendment, the Senator from Alabama, a question.
I was reading it over, and as I read the amendment, under the first
section, paragraph A of your amendment, you put a limitation on the
per-hour rate of attorneys, and then there is a cap total of $5 million
that applies per State?
Mr. SESSIONS. Yes.
Mr. HARKIN. The $5 million applies to per-State maximum.
Mr. SESSIONS. That would be the maximum, but if they could not
justify the fee by hour, they may not get that.
Mr. HARKIN. I understand that, but it is a maximum of $5 million in
any regard.
Now, this has to do with attorney's fees paid in connection with a
State recovering money. This does not have to do with the so-called
proposed big settlement that is going to come to us in the future. This
applies to States.
I wonder how we, here, can limit attorney's fees in a State action?
Mr. SESSIONS. I am delighted to try to answer that. It is a very
unusual thing that is happening to this Senate and we have been asked
by the attorneys general, by the defendants, the tobacco companies,
too, in fact, by legislation legislate a lawsuit. So it is unusual.
They are asking us to do that because many of the things that they
want, each side wants, cannot be accomplished through private
litigation. They want to, in effect, control new tobacco companies that
have not been making tobacco and have not made people sick before, they
want to control them and others.
So they have asked this body for a lot of reasons to ratify this
through our legislation. To that degree, they have asked us to ratify.
I think we need to find out what the attorney's fees are. I think as
part of our legislation our legislation ought to control legal fees and
we ought not to pay any more than that mentioned in this amendment.
That is, basically, where we are.
Mr. HARKIN. I listened to the Senator make the explanation but I
thought the amendment was going to go toward limiting attorney's fees
if there is a global settlement, this thing we are being asked to do at
some point. We do not know if it is this fall, next year, or whatever,
when we will be asked to ratify a so-called global settlement.
But your amendment does not just speak to that, it speaks to ongoing
cases in the States. For example, as I understand it, the State of
Mississippi just settled, the State of Florida just settled, other
States will maybe be settling. Your amendment seems to me to apply to
those States that make those settlements. It has nothing to do with the
proposed universal or global settlement that we will be asked to ratify
at some point later on.
That is why I wonder, by what right or power do we have in the
Federal Government of saying to a State government, a State attorney
general and the State government that you can't, in your agreement,
whatever your agreement is, you have to limit attorney's fees?
That seems to me to be an odd kind of a thing for us to do--the
Federal Government telling the State government when you make your
agreement, here is all you can do. It does not seem to me to be
constitutional.
Mr. SESSIONS. I would like to respond. I think you raise a very
interesting point.
First, I say it is unusual that the States would come to this body
and ask the Congress of the United States to ratify a lawsuit, but they
have.
Our bill does not take effect and does not apply unless this body
enacts a global tobacco settlement. It is the last sentence in the
amendment. In other words, we do not, and this legislation does not
attempt to intervene in litigation that is ongoing unless there is a
global legislation by the Congress of the United States, in which case
we would then also deal with attorney's fees as we should.
Mr. HARKIN. Again, I understand and I appreciate the Senator pointing
that out. Mississippi made an agreement, Florida has made an agreement,
maybe there will be a couple of other States that make agreements, what
if later on we make a global settlement, do they have to go back and
renegotiate all the attorney's fees? That is what I wonder.
How can we tell a State what they have to do prior to our reaching
this national settlement--and whether we reach it or not, I do not
know. What would happen, for example, to a State like Mississippi that
has already negotiated and make their deals--I guess, I assume they
have.
Mr. SESSIONS. My understanding is that States that have settled have
conditioned their settlement on the requirements of the congressional
global settlement. If there is no congressional action, then their
settlements will be in full force and effect, but if it is, they are
agreed to be vitiated by the congressional action.
Mr. HARKIN. The Senator was not aware of that. I appreciate that.
I yield the floor.
Mr. DURBIN. Mr. President, I rise in opposition to this amendment. I
have just seen this amendment this evening for the first time, but I
know the Senator from Alabama has offered it in the regular order of
business.
I have had a few minutes to read it over. I commend to my colleagues
the suggestion they should read this very closely. This amendment is
the dream of the tobacco companies. The Senators who have risen to
speak on behalf of this amendment from the tobacco-producing States I
think have given evidence of the fact that this is another one of the
last gasps of this industry.
Let me tell you why what appears to be so reasonable on its face is,
in fact, a loaded deck for the tobacco companies again.
My friend, the Senator from Alabama, wants to limit attorney's fees
and to take any excess and put it into health research for children.
Now, who in the world could oppose that?
But look closely. He does not want to limit the attorney's fees for
tobacco company lawyers. No. He just wants to limit the attorney's fees
for those on the plaintiffs' side, the States that have brought this
action. Now that is curious. If he is afraid that the attorneys, who
will ultimately all be paid by tobacco companies when this is all over,
are going to charge too much money, he only wants to limit the hourly
rate to $250 an hour to attorneys representing the plaintiffs in this
action. So he protects these fat cat law firms that have represented
the tobacco companies forever, who can charge $500 an hour, $1,000 an
hour, he does not care. His interest is only the attorneys for the
plaintiffs.
That does not make any sense. All of the money is coming out of the
same pot. If he wants to make this a reduction in the lifestyle of
attorneys, why does it not apply to defense attorneys? Why does it not
apply to tobacco company attorneys? No, his only interest is
[[Page S9006]]
the attorneys who stepped forward and filed these lawsuits on behalf of
the States.
Now, they have been characterized by their critics this evening as a
pretty motley crew. Remember that 40 different States decided through
their own elected attorneys general that they would bring these
lawsuits under fee arrangements so that they would have the legal
talent to be able to process the most complicated litigation in the
history of the United States.
Mr. SPECTER. May I interrupt my distinguished colleague for a moment
to say there will be no further rollcall votes tonight. I have just
been able to make that determination, and I know there are many
Senators on the campus waiting to find out what is going to happen.
I regret interrupting Senator Durbin, but I think that is worth a
statement. We have the list fairly well pared down. When Senator Durbin
finishes, I will announce the prospects for tomorrow.
Mr. DURBIN. I am pleased to be interrupted with that good news.
Isn't it curious that this effort to provide research funds for
children's health, funded by excess attorney's fees, would only apply
to attorney's fees in excess for the plaintiffs, that the law firms
representing Philip Morris and RJR and all the tobacco companies can
charge whatever they care to charge.
Now, I think that pierces the veil of what this is all about.
But let's read on. What else is the Senator from Alabama setting out
to do here?
Mr. SESSIONS. Will the Senator yield?
Mr. DURBIN. I yield for a question.
Mr. SESSIONS. Would the Senator be agreeable to this amendment if we
reworded it, in fact, make it apply to the tobacco lawyers? I will
certainly feel good about that.
The reason it was done this way is because many of the plaintiffs'
attorneys apparently have it on a contingency fee basis, probably have
filed lawsuits, may be entitled to hundreds of millions of dollars and
have done very little work. It would be an unjust enrichment, it
appears to me.
I would certainly entertain that amendment. I think it is a
suggestion that we ought to incorporate.
Mr. DURBIN. I think that is an improvement, but let me read on.
The reason why this amendment should not be considered, why the
tobacco companies will jump for joy if it is adopted, is that it will
discourage any State from bringing its lawsuit against the tobacco
companies.
The Senator from Alabama, for reasons I do not understand, has
decided that no State of the 40 that filed suits, no matter how deeply
they are involved in this litigation, can pay outside attorney's fees
beyond $5 million, which sounds like a huge sum of money until you
consider States like Minnesota.
Minnesota has been preparing for trial on January 19, has now
collected millions of documents from these tobacco companies, has
warehouses in London and in Minneapolis. They have attorneys scouring
through the documents and processing them. They are preparing to go to
trial.
In my home State of Illinois, I do not think we have made nearly that
progress in moving toward litigation. But the Senator from Alabama does
not care that the attorneys in Minnesota have been working overtime for
months and the attorneys in Illinois may not have been.
He says, we are going to pick an arbitrary figure--no State can pay
their attorneys no matter how much work they have put into this, any
more than $5 million, period.
Now, that is fundamentally unfair. It really does not reflect the
effort that has been put in by these attorneys in these States.
Let me tell you what else he is doing, and I think this is a pretty
crafty move by the tobacco companies. By putting this provision in the
law to limit attorney's fees, he will have the attorneys come forward
in these States and say to the attorney general, ``Well, listen, if we
cannot, after all of this discovery and all of this preparation even
recover the amounts that we have expended in attorney's fees, we
certainly cannot take this to trial,'' so the tobacco companies will
have their way. The tobacco companies do not want these cases to go to
trial. They want to discourage that from happening.
In fact, representatives of those companies have told me point blank
if any case goes to trial there will be no global settlement. The
Senator from Alabama is offering them a great improvement here in
saying that they do not have to worry about a trial now because
attorney's fees are going to be strictly limited.
Well, they will be jumping for joy at RJR and Philip Morris if this
Senator's amendment is adopted this evening, because by limiting the
attorney's fees and saying that there will be a strict limitation of
the amount that can be paid to the plaintiffs' attorneys he is, in
fact, discouraging, if not stopping litigation and trials.
You will have accomplished with your amendment what the tobacco
companies have been unable to accomplish to this point. You will have
stopped these cases and they cannot move forward.
I do not think that is what the Senator set out to do when he
explained this amendment. But I think that is the net result of it.
It is interesting to me as you look into it, what will happen to the
States that have settled, Mississippi and Florida, what will happen to
their attorney's fees? If I read this correctly, this may or may not
apply to it. It is not clear. This amendment is not drawn in a way that
can tell you it definitely applies in the case of Mississippi and
Florida. The Senator offers it for prospective payment of attorney's
fees. Yet, we already have two cases settled and they are not
addressed.
And then this whole question of the amount to be paid attorneys, a
$250 rate. I don't know what a reasonable rate is in the Senator's home
State. I don't know what attorneys might charge in any State, whether
it is New York, Minnesota, Illinois or Alabama. But I think the Senator
has chosen a rate that is unrealistic--unrealistic in terms of what
these attorneys general face.
Keep in mind that most of the attorneys general in the United States
looked to these lawsuits and said right off the bat, ``We don't have
the resources to sue these tobacco giants. We have to bring in the
resources and services of attorneys who will, in fact, represent us.''
Of course, those attorneys coming in to file those lawsuits expected to
be compensated if they won --only if they won. Contingency fees are
based on that. I know from my experience with the Senator in the
Judiciary Committee, he doesn't think very kindly of contingency fees,
particularly in his own State. But I think, quite honestly, this is a
clear illustration that if a contingency fee was not awarded to an
attorney, the attorney general would not have had this army of lawyers
to go forward.
When I heard comments from some of the Senators from tobacco-
producing States, it is clear that they resent these lawyers, these
attorneys general, for bringing these lawsuits and they want to get
even with them, they want to nail them and say, ``We are going to limit
your fees. You thought there was money in this, but there won't be any
money in this. We will limit you as to how much you can recover.''
I don't think that is fair. It is curious to me at this time, when we
are talking about whether or not the Federal Government is going to
impose its will on the States, that we have an amendment from a Senator
from Alabama, which suggests that we in Congress should impose on 40
different States, 40 different attorneys general, a fee arrangement
that we happen to think is reasonable.
Well, let me tell you what this is all about. The tobacco companies
were embarrassed when the amendment was disclosed that gave them a $50
billion windfall in the tax bill, an amendment which we hope to repeal.
They had hoped to initiate the negotiations in the tobacco settlement
by saying: Before we sit down at the table and reach an agreement, give
the tobacco companies $50 billion.
I think the public sentiment and the votes of this Senate will see it
another way. Now the tobacco companies come in with this amendment.
They want to see this amendment adopted because now they come to the
table and say to each of these States: There is a new arrangement. You
can't pay your attorneys. You can't go to trial. We have
[[Page S9007]]
you where we want you. We don't care what your contingency fee
agreement is going to be. You are limited to what we in Congress think
attorney's fees should be and how much they should be paid.
Well, I think this amendment should be defeated. I think this
amendment is one the tobacco companies will enjoy, one that the
American people will regret. The States, including my own, that had the
courage to step forward and file these lawsuits against the tobacco
companies should not be penalized at this point in time. They have done
a great service to this Nation. Each attorney general--Democrat,
Republican or Independent--who decided to enter into an agreement with
attorneys to represent them did it with the understanding that they
will be held accountable for this. The Senator says that these are
secret agreements. Well, in my home State, I can tell you that whether
there was a secret agreement or not, the gentleman who entered into it,
our attorney general, will be held accountable for it. Can he justify
it? Did he say to the taxpayers from Illinois we have recovered enough
money to justify the contingency money paid the attorneys? Of course,
and he is held accountable.
The Senator suggests this is done in secret with no accountability. I
think he is wrong. I hope when this is all said and done, we will
defeat this amendment, and that we will not give the tobacco industry a
victory this evening or tomorrow when we vote, such as they secured at
the close of debate on the tax bill. These tobacco companies have to be
told, whether they are trying to stop the States from bringing these
actions through this amendment by the Senator from Alabama, or
recouping $50 billion in the stealth of the night, that the party is
over. The tobacco companies just can't have their way anymore. I think
we have to stand up for the people who are best represented by these
lawsuits--the consumers, the children, those who unfortunately are
going to be the losers if this amendment is adopted.
At this point, I would like to move to table this amendment.
The PRESIDING OFFICER. The question is on the motion to table.
Mr. SPECTER addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SPECTER. Mr. President, I ask if the distinguished Senator from
Illinois will withhold that motion for the present time. We cannot
proceed to a rollcall vote tonight under a determination made earlier
by the majority leader, which I announced as soon as we had heard it.
There may be other Senators who wish to speak to this amendment. The
Senator from Illinois would be preserving his position, in any event,
since we cannot vote tonight, to carry this matter over until first
thing tomorrow morning. We are beginning at 9:30, so that we can
consider at that time if there are any other Senators on the floor who
wish to speak.
The PRESIDING OFFICER. Does the Senator from Illinois withdraw the
motion?
Mr. DURBIN. I will withdraw it, as long as at 9:30 we will proceed to
the same order of business and the amendment will be the amendment of
the Senator from Alabama and we can proceed to my amendment after we
have considered all amendments in the second degree.
Mr. SPECTER. Mr. President, that is agreeable to this manager of the
bill. So that all Senators will be on notice that a motion to table
will be pending. Of course, if it is not tabled, then we can't proceed
to the underlying amendment.
Mr. DURBIN. I withdraw the motion to table, with that understanding.
The PRESIDING OFFICER. The motion is withdrawn.
Mr. SPECTER. I thank my friend from Illinois.
Mr. President, we have made some progress in limiting the number of
amendments. We have been advised by Senator Wellstone that he is
prepared to withdraw a filed amendment on Pell grants. Senator
Wellstone is prepared to withdraw a filed amendment on infrastructure,
which leaves one pending Wellstone amendment on Head Start. I have been
advised that Senator Wellstone is prepared to enter into a unanimous-
consent agreement for 1 hour, equally divided, providing he has an
opportunity to modify his amendment. I will not ask unanimous consent
for the moment on that.
Senator Wellstone has arrived on the floor. Mr. President, since the
Senator has just arrived, perhaps I can ask my colleague if the
information is correct that the Senator is prepared to enter into a
unanimous-consent agreement for 1 hour, equally divided, on his Head
Start amendment on the understanding that it may be modified, and he is
prepared to withdraw the other two amendments, one relating to Pell
grants and one to education infrastructure?
Mr. WELLSTONE. Yes. I say to my colleague from Pennsylvania, that is
correct. I am prepared to lay this down tomorrow and debate it for 1
hour, if there are no second-degree amendments.
Mr. SPECTER. We can enter into a unanimous-consent agreement right
now that there be 1 hour, equally divided, with no second-degree
amendments in order and then a motion on or in relation to the
amendment to be offered at the conclusion of 1 hour of debate. I make
that unanimous consent request.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. Mr. President, did I understand my colleague from
Minnesota to say that he preferred to offer and debate the amendment
this evening?
Mr. WELLSTONE. I had been home and I followed the debate on the
amendment of the Senator from Alabama, and I had wanted to come over
here and respond to that.
Mr. SPECTER. Mr. President, I renew my question. Did my colleague say
he was prepared, after he discusses the amendment by Senator Sessions,
to debate the issue today so we can vote tomorrow morning?
Mr. WELLSTONE. No. Mr. President, I would be prepared to lay the
amendment down tomorrow morning as early as he wants.
Mr. SPECTER. I thank the Senator.
I yield the floor.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from Alabama.
Amendment No. 1125, As Modified
Mr. SESSIONS. Mr. President, I would like to modify the amendment to
reflect the change, which I send to the desk.
The PRESIDING OFFICER. The amendment is so modified.
The amendment (No. 1125), as modified, is as follows:
Strike the last word in amendment.
No. 1078. As amended, and insert the following:
``repealed''.
``Sec. . (a) General Limitation.--Notwithstanding any
other provision of law, if any attorneys' fees are paid (on
behalf of attorneys for the plaintiffs or defendants) in
connection with an action maintained by a State against one
or more tobacco companies to recover tobacco-related medicaid
expenditures or for other causes of action, involved in the
settlement agreement, such fees shall--
``(1) not be paid at a rate that exceeds $250 per hour; and
``(2) be limited to a total of $5,000,000.
``(b) Fee Arrangements.--Subsection (a) shall apply to
attorneys' fees provided for or in connection with an action
of the type described in such subsection under any--
``(1) court order;
``(2) settlement agreement;
``(3) contingency fee arrangement;
``(4) arbitration procedure;
``(5) alternative dispute resolution procedure (including
medication); or
``(6) other arrangement providing for the payment of
attorneys' fees.
``(c) Expenses.--The limitation described in subsection (a)
shall not apply to any amounts provided for the attorneys'
reasonable and customary expenses.
``(d) Requirements.--No award of attorneys' fees shall be
made under any national tobacco settlement until the
attorneys involved have--
``(1) provided to the Governor of the appropriate State, a
detailed time accounting with respect to the work performed
in relation to any legal action which is the subject of the
settlement or with regard to the settlement itself, and
``(2) make public disclosure of the time accounting under
paragraph (1) and any fee agreements entered into, or fee
arrangements made, with respect to any legal action that is
the subject of the settlement.
``(e) Provision of Funds for Children's Health Research.--
Any amounts provided for attorneys' fees in excess of the
limitation applicable under this section shall be paid into
the Treasury for use by the National Institutes of Health for
research relating to children's health.
``(f) Effective Date.--The limitation on the payment of
attorneys' fees contained in
[[Page S9008]]
this section shall become effective on the date of enactment
of any Act providing for a national tobacco settlement.''
Mr. SESSIONS. Mr. President, this is in the nature of a technical
change. It doesn't change the basic import of the amendment.
I yield the floor.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I respect the motivation of my colleagues
who are offering amendments on the proposed global tobacco settlement
tonight. As we all know, the issues surrounding this settlement prove
easy to frame, but difficult to resolve.
I have been listening carefully to this debate, and the timing is
very interesting to me.
Here we are now in September. Everybody would like to see this
session end sometime near the end of October, or early in November, at
the latest.
But as far as the proposed global tobacco settlement goes, people
around here seem to be assuming it is going to happen when, really,
basically, nothing is being done.
Yet, tonight we are making arguments and amendments on the assumption
that something is going to get enacted.
I would suggest to my colleagues, though, that this discussion is
premature. We do not have all the details of the agreement. No one,
that is no one, does, not even any of the parties to the agreement has
final legislative language.
We have not even reached a discussion in this body of the most
general question we have to answer before we decide if the Senate will
consider the global tobacco settlement: do we want to further regulate
the use and sale of tobacco products in order to protect the public
health and bring a degree of accountability and finality to the surge
in tobacco-related litigation.
More precisely, the question we face during the remaining weeks of
this session is whether the global tobacco settlement proposal should
be implemented and, after we make that decision, then amendments would
be in order.
Mr. President, I don't think anybody in this body despises the use of
tobacco more than I. Frankly, I think tobacco use is wrong, it is
deleterious to health, and it basically can ruin people's lives.
There is no question that--in the eyes of almost every research
scientists--tobacco use causes cancer.
There is no question that it causes cardiovascular, respiratory, and
other similar diseases, and still we treat it as though it is a
substance that has every right to exist.
As long as it does have the right to exist as a legitimate business
in this country--and I believe that it will continue to be available--
then it seems to me that we have to resolve these problems in an
amicable, decent manner that is in the best interests of this country.
As I see it, there is not much happening on the proposed tobacco
settlement.
There is no use kidding ourselves, the $368 billion settlement
proposed by the attorneys general and most of the tobacco industry--all
except Liggett & Myers--as I understand it, is an interesting proposal.
There is no question, that offers a substantial sum of money. It is
to be paid over a 25-year period and, if my calculations are correct,
the tobacco companies will be able to write off about a third of the
cost of that settlement at the expense of the taxpayers.
There are many, many issues that have to be resolved on the tobacco
settlement if we are going to have one at all. Let me name just a few
of them, in no particular order of importance.
No. 1 would be an evaluation of the totality of the settlement. That
is, as I have said, whether this Congress should seize the window of
opportunity presented by the tobacco proposal which offers the
possibility of significant advances in public health and liability
reform. Are the public health gains it offers something we wish to
pursue? Are the legal reforms it contains sound public policy? Are the
two in appropriate balance?
No. 2 would be whether the costs associated with implementation of
this agreement should be treated for tax purposes as ordinary business
expenses?
Third would be the appropriate role of the Food and Drug
Administration in the regulation of tobacco products. This is an
extremely complicated issue. It involves an evaluation of the FDA's
current legal authority, the regulations FDA has promulgated on youth
tobacco use and the Greensboro court decision, and the future authority
called for in the agreement.
The fourth issue is an examination of the constitutional limitations
posed by an agreement which some believe abrogates their first
amendment, free speech rights.
The fifth issue is what I call the ``show me the money'' issue. I
challenge anyone to undertake an exhaustive review of the 68-page
proposed settlement and then delineate clearly how the $368 billion in
funds will be allocated. For example, many participants in the
agreement have said there are funds for children's health. On what
page? It simply isn't there.
And even for the amounts stipulated in the agreement, there is no
definition of how the funds will be divided among states or parties to
the agreement.
The sixth issue is a consideration of civil justice concerns, such as
changing traditional plaintiffs' rights to seek redress through the
courts.
The seventh issue is how those who were not parties to the original
agreement will be treated. One company, for example, Liggett & Myers,
has now signed agreements with about 25 States and all of the Castano
class members. How should those agreements be factored into the
settlement?
The eighth issue is related. Should there be an accommodation for
those who manufacture, sell, or use vending machines or for others who
have been engaged in legal businesses and have made a livelihood with
products or services that might not be continued after a settlement is
finalized?
Here's another important issue. The ninth issue we need to address is
that of documents disclosure. Some in this body have called for full
disclosure of all tobacco-related documents before any settlement is
considered. Others believe we will never get to a settlement if we
become enmeshed in an investigation of abuses extending back over 30
years.
One of the greatest advantages of having a tobacco settlement is the
public benefits that may derive from it for our children and indeed our
society as a whole.
As we all know, 3,000 kids start smoking a day--teenagers, that is--
1,000 of whom will become addicted over their lifetimes. These numbers
are only going up, and it is no secret that part of the reason is that
the tobacco industry has basically enticed these kids into smoking.
Without a tobacco agreement, we will not be able to put meaningful
resources into solving these teen tobacco use problems. It is
questionable whether we could ever provide the same nationwide
incentives or resources to not only slow down teenage smoking, but
perhaps end it forever.
And since we are debating the National Institutes of Health funding
bill, I might mention that without the tobacco settlement, we won't be
able to have as many funds as we would otherwise have for biomedical
research.
It is also apparent that if we break the cigarette companies, we are
not going to be able to have 25 years of continual multibillions of
dollars paid into a settlement agreement system for the benefit of our
society as a whole.
There are so many other issues that I hesitate to even begin. But the
fact is the proposed settlement is complex, it is difficult, and
Congress basically has done nothing about it since it arrived here on
June 20.
It is true we have held three hearings in the Judiciary Committee.
They have been interesting hearings. They have enlightened us to a
degree. We think we now know the issues involved. We have listened to
the attorneys general. We have listened to people representing the
tobacco industry. We have listened to constitutional experts. We have
listened to health care specialists.
And, frankly, we are going to hold some more hearings on this. But it
seems to me that we need to address the proposed tobacco settlement
with a timetable and a process that will literally cause it to be done.
We aren't there yet, and piecemeal amendments
[[Page S9009]]
on an appropriations bill won't get us to that point.
If the tobacco settlement is not completed by the end of this
particular session, I fear we may never have a tobacco settlement. If
that is so, we will lose this one-time opportunity to help our children
and perhaps to help keep millions of kids from ever starting to smoke
or chew tobacco.
If we lose that opportunity, it will be pathetic.
It is no secret that the tobacco industry has virtually won every
case but one in the history of litigation in this matter. In that one
particular case it was a $750,000 verdict. If I understand it
correctly, that is on appeal. And that will be dragged out for another
10 years by very, very good lawyers who are very, very capable of doing
exactly that.
So, if we do not move ahead and we don't solve these problems, we are
going to find ourselves in a morass where we are right back to business
as usual, and the tobacco companies will be making billions of dollars
at the expense of the society at large with no help to our young people
in this society and not much money for research other than what we can
generate through congressional appropriations. In the end, we lose all
of the advantages that we could achieve.
In fact, there are several things which must occur if we are even
going to try to move forward to an agreement, or move an agreement
forward.
First, the President of the United States has to get off the dime and
start leading on this issue.
In July, we heard the President would speak out a few days before his
planned August 15 vacation. It didn't happen.
Earlier this week, we heard the President was supposed to speak out
about the settlement this Thursday.
Let's speak the plain truth here. Without the President's leadership,
the tobacco agreement can't happen.
The proposed settlement was announced on June 20. At that time
President Clinton called the concessions attained by negotiators from
the tobacco industry ``unimaginable.'' He also tasked top executive
branch officials with the job of reviewing the settlement, consulting
with the public health community, and advising him on whether or not
this agreement adequately protects the Nation's public health
interests.
Eleven weeks have passed with no final word at all from the White
House on what, if any, changes the President wishes to see. Almost
daily we hear, or so it seems, rumors that the President will speak--
only to find out that he does not.
The President's silence in this area speaks volumes.
It has been speculated in the press that the President will say that
the level of funding needs to be increased, that the FDA's regulatory
authority needs to be strengthened, and that there needs to be greater
accountability on the part of the tobacco companies if the reduction
targets are not met, especially among the Nation's teenagers. But this
is only speculation at best.
Should President Clinton support the idea of moving forward, he needs
to tell our American people, and he needs to reveal what changes, if
any, he deems to be necessary.
We need the President to speak out and tell us precisely where he
stands and whether he believes there should be an agreement, and an
agreement this year.
We need him to help us to understand where we are going on this
issue. We need to know how much political capital he is willing to
expend on this issue, and we need to know whether he is really serious
about solving these problems.
With 3,000 children starting to smoke each and every day, I don't
believe the Clinton administration can afford to delay this any longer.
Second, I call on parties to the agreement to resolve ambiguities and
to help produce legislative language agreed upon by all parties so that
Congress can be crystal clear about the details of the proposal and
therefore can plan and judge it accordingly.
If the President chooses to take advantage of this one-time
opportunity, the parties to the agreement have a responsibility to
settle ambiguous points within the settlement agreement and provide the
Congress with their version of the settlement in legislative form.
Today, I am challenging the parties to the agreement to do so, to
provide us with the details of the agreement beyond the 68-page
prospectus.
I, for one, am willing to look at it. I think the other committee
chairmen who are involved are willing to look at it as well. We are
willing to see if we can mold together an agreement that literally will
be in the best interests of the public at large.
Let me add that several weeks ago I sent the proposed agreement to
legislative counsel and asked them to try to draft a bill based on the
language of the settlement. We found that these expert draftsmen were
presented with more questions than answers. So the parties need to get
together and help us to formulate the legislative language. I am
calling upon them to do that. If there are problems or ambiguities that
have to be resolved, we will help them with that.
Third, the parties who negotiated this settlement presented it to
Congress must also produce others willing to champion this
unprecedented public health opportunity. Beyond the several attorneys
general, the plaintiffs bar, and public health groups, few have seized
on the settlement as a viable option. Major legislation such as the
settlement envisions has never been approved absent widespread support.
And we aren't there yet, which is another reason why these amendments
we are considering tonight are premature.
The fact is we will not be there without the President and without an
awful lot of hard work on the part of all of us here.
Fourth and finally, we must consider how we resolve this issue of
document production. The proposed agreement provides that previously
undisclosed documents be publicly disclosed through a national tobacco
document depository open to the public and located centrally here in
Washington, DC. These documents would include documents from the files
of the tobacco companies, including those relating to internal health
research, documents that we have not been able to get up until now.
Any documents already produced in the attorney general actions would
be immediately deposited, and additional existing documents would be
placed in the depository within 3 months of the enactment of the bill.
Despite this provision for open disclosure, some in Congress--those
who question the settlement most--have proposed immediate disclosure of
these documents. The documents in the Minnesota case alone brought by
Attorney General Hubert Humphrey, who has testified before our
committee, amount to 33 million documents. Such massive disclosure is
neither practicable nor possible in the presettlement arena.
Naturally there are attorneys all over this country who believe that
the settlement will never make it through and they are trying to look
out for their clients. Internal documents which have not yet been
released could be invaluable in such suits.
But the greater good demands that we look at an agreement which could
bring us tremendous public health advances, and it appears that
agreement could actually be hindered by an exhaustive investigation of
internal tobacco documents.
I can't blame the cigarette companies for not wanting to produce the
documents in advance--although I cannot in any way condone some of
their past reprehensible behavior. I simply question whether it is the
appropriate role of Congress to conduct discovery for private
litigants.
I think we are all indebted to the negotiators for stimulating a
potentially fruitful public discussion on the public health issues
attendant to tobacco.
I commend the States attorneys general, especially those involved in
the class action litigation. I commend the public health
representatives who have been speaking out, and the representatives of
the tobacco industry for advancing the ball in a meaningful direction.
The climate has been created for the Congress and the public to have
opportunities to make significant strides on this whole set of tobacco
issues.
It is clear that the Senate is only in the beginning stages of this
process. Five congressional hearings having been held, and more are
planned.
I urge my colleagues to let the process work. Let us move a proposal
in the
[[Page S9010]]
Judiciary Committee. Many of my colleagues here tonight are members of
that committee, and we will have ample opportunity for full discussion.
I just have to doubt if this is the right time and the place, on the
Labor-HHS appropriations bill, to be raising these issues that could
blow the settlement out of the water.
I personally believe we ought to move that settlement forward.
My study has led me to conclude it is a one-time opportunity to do
something for our kids in this society.
It is a one-time opportunity to make significant advances in
biomedical research, And it is surely a one-time opportunity to have
the tobacco companies fully cooperate in providing all of their
internal research for the benefit of the public health at large.
There are so many benefits that could derive from a decent
settlement, if we can formulate one and keep the parties together.
It is time now for the President to speak out.
He was supposed to speak out this Thursday. Now they have put it off
for another week, knowing that every week that it is put off it is less
likely that we can pass something in this Congress.
Let me make a prediction. I believe that we are going to lose this
historic opportunity if we do not seize the opportunity, bite the
bullet, do the work that is necessary, get the involvement of the
companies, the attorneys general and others who are interested in this
process, and come up with a package, that literally, will realize all
of the public health gains I have been talking about, and more.
It is no secret that the tobacco industry may not proceed with the
settlement if the North Carolina case, which does indicate that FDA
does have some right to regulate in the area of nicotine, is overturned
on appeal. Many legal experts say that the Greensboro case is iffy at
best and that it could very easily be overturned on appeal. In fact, I
think there are many good arguments for overturning it on appeal based
on present law and our understanding of present law.
But let me admonish my colleagues that if that case is overturned on
appeal, I am not so sure that the tobacco industry is going to proceed
with a settlement anyway, because they might just continue to take the
risk that juries in the respective States will almost invariably find
that those who smoked all of their lives assumed the risk, or were
contributorily negligent in doing so. That is why they have won these
cases in large measure right up to today.
I was in Pittsburgh, PA, when the first anticigarette tobacco case
was brought, Pritchett versus Liggett & Myers, by the then fabled
McArdle law firm. Jimmy McArdle, was one of the leaders, if not the
leader in the whole country, in paving the way for tobacco litigation.
He scared the daylights out of tobacco companies, but lost, one of few
times that great lawyer did not prevail in court.
So I have watched this litigation for all of these years. If that
case in North Carolina is lost, we will lose a major incentive for the
tobacco companies to come to the table.
Or let's put it another way. If Minnesota Attorney General Hubert
Humphrey wins his case, the tobacco companies may very well decide not
to go forward anyway. Or, conversely, if General Humphrey loses, what
is the incentive for the tobacco companies to stay in the deal?
It would be a message to every other attorney general in the country.
Already they have decided to fight right to the end the case brought by
the Attorney General of Texas. What is the incentive to continue?
Right now we have an opportunity for all sides to put something
together. The attorneys general have put inordinate amounts of time and
effort into this matter, and there is an obligation on our part to try
to resolve it.
But without Presidential leadership, it is very unlikely that we can
resolve it. If we have the President's endorsement, then I think we
have to have leadership here in the Congress to move forward, and to do
what is right.
No matter what we do, it is going to be difficult because there are
those in the Senate and in the House who resent anything done to the
tobacco industry. And there are those who feel that anything the
tobacco industry wants should be blocked.
My feeling is that the benefits that could come from a legitimately
and well put together tobacco settlement clearly outweigh the desire of
some to just kill the industry, when in fact they don't have the tools
to do so.
There is no doubt in my mind that the $368 billion figure has to
change. We have to give serious consideration to the tax implications,
as some in this body have suggested. We have got to have some clear-cut
approach toward FDA authority.
We have to do a number of things that literally will make that
settlement more acceptable. And we have to bring all sides and all
parties together, and we have to bring the weight of the Federal
Government, the weight of the administration, the weight of the
legislative branch of Government, and ultimately the weight of the
courts into bringing this all together so that the public at large can
benefit greatly.
Personally, I am willing to devote substantial effort toward that
end. I know other committee chairmen, who have various jurisdictional
areas in this matter, are willing to work on it as well.
In all honesty, we are not going to resolve this by bits and pieces
in amendments to legislation like this.
With regard to the amendment of the distinguished Senator from
Illinois, let's face it, the language in the Balanced Budget Act was
pretty ambiguous. I see any way that language could be binding; it is
too ambiguous.
The language, in my opinion, is not really going to require any
tobacco settlement to pay for child health insurance. Nevertheless, it
would be nice to clarify that matter, and we could do that in a true
tobacco settlement.
With regard to attorneys' fees, I share some of the view of the
distinguished Senator from Alabama. I agree that there should be a
limitation. This should not be a ripoff situation where we have a
feeding frenzy on attorney's fees. On the other hand, there are
attorneys who have worked long and hard and spent a lot of money and a
lot of effort and time, and without whom the settlement would not have
been brought to this point. They do deserve some compensation for that.
I think we were all well aware that the issue of attorneys' fees is
going to have to be solved in any tobacco settlement that happens.
I do not believe we can easily solve tonight the problem that has
been raised by the Sessions amendment that would retroactively limit
attorney fees which have already been a matter of contract between
States and private counsels.
But we can solve the problem as to how much of this money that
actually has to be put up over 25 years is going to go for attorneys'
fees.
That is something we are going to have to work to solve. It needs to
be done fairly; it needs to be done with wisdom, as with all other
aspects of this agreement, in totality.
The way to do it isn't by nit-picking or just by amendment after
amendment in the Chamber. We could literally get into 100 tobacco
amendments on just this appropriations bill alone.
I think the way to do it is to get the President to speak out. Let's
keep holding our hearings. Let's get a final legislative draft and look
at it. Let's bring the parties together and demand that the attorneys,
the attorneys general, the public health groups, and the tobacco
companies who originally negotiated the deal work to provide us with a
draft. Let's reform and refine that draft, factor in the President's
perspective, and the views of others who did not participate, such as
the farmers, and let's move forward to resolution of this issue in the
best interests of the American people.
I just wanted to make these comments because I am very upset that we
keep playing around with this issue. Frankly, if we let it go beyond
the end of this year, it may be very difficult, it maybe impossible, to
do next year.
I ask unanimous consent that Bruce Artim be granted access to the
floor for the remainder of the session.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I yield the floor.
Mr. SPECTER addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Pennsylvania.
[[Page S9011]]
Mr. SPECTER. Mr. President, a few administrative matters here.
I ask unanimous consent that Senator Domenici be added as a cosponsor
to amendment No. 1121.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 1095, as modified
Mr. SPECTER. Mr. President, I ask unanimous consent that the pending
amendment be set aside and that the Senate turn to the consideration of
amendment No. 1095 to S. 1061 very briefly and temporarily for
disposition.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. On behalf of Senator Landrieu, I send a modification to
the desk.
The PRESIDING OFFICER. Without objection, the amendment is so
modified.
The amendment, as modified, is as follows:
On page 44, line 2, strike ``$5,606,094,000'' and insert
``5,611,094,000''.
On page 85, line 19, further increase the amount by
$5,000,000.
Mr. SPECTER. This amendment, Mr. President, provides for an
additional $5 million for the adoption opportunities program, bringing
the total in the bill to $18 million. The amendment is offset by
further reductions in administrative expenses. It has been cleared on
both sides, and accordingly I urge its adoption.
The PRESIDING OFFICER. Without objection the amendment is agreed to.
The amendment (No. 1095), as modified, was agreed to.
Amendment No. 1125
Mr. SPECTER. Mr. President, very briefly on the pending amendment
offered by the distinguished Senator from Alabama, I think the debate
this evening has been very useful. The comments by the distinguished
Senator from Utah are cogent. We have had the hearings as noted by
Senator Hatch in the Judiciary Committee. It is tempting to eliminate
the very substantial tax break which is presented in the reconciliation
bill. Perhaps that is something that can be done now although the
considerations advanced by the Senator from Utah are very weighty.
The amendment offered by the Senator from Alabama to curtail the
attorney's fees is very much worth considering. I am not sure that the
proper place for it is on this bill because we really do not know all
the underlying facts. When you talk about $250 an hour, that is a
substantial sum of money on an hourly rate. When you talk about a total
of $5 million, that is a substantial sum of money. The reports are that
the attorney's fees in the agreement run into the billions. It may well
be that before an intelligent legislative decision can be made on this
matter, we will have to know a great deal more about the arrangements
made by each State with the attorneys, what their work has involved,
evaluation of the contingent nature, that is, a likelihood of failure
so that a contingent fee is set and some consideration on the
likelihood of success because if there is no settlement, then there are
no attorney's fees to be paid, and that may be a fact-specific inquiry
which will take some considerable time ultimately by the Judiciary
Committee.
But in any event, the stage is set. There are other Senators who want
to discuss this issue. We will proceed to the conclusion of it when we
resume consideration of the bill tomorrow morning at 9:30.
I yield the floor.
Mr. WELLSTONE. Mr. President, might I ask the manager a question? I
had come to the floor to speak tonight, but I know it is late and
people may be anxious to leave. What would be the order of business
tomorrow? Is there additional time on the amendment of the Senator from
Alabama?
Mr. SPECTER. Mr. President, if the Senator will yield, I will be glad
to respond. The pending amendment will remain in the Chamber. The
Senator from Illinois, [Mr. Durbin], had made a motion to table and
then had withdrawn it at my request so that Senators who were not here
might have an opportunity to debate tomorrow morning. But that will be
the amendment which we will return to at 9:30 tomorrow morning.
Mr. WELLSTONE. Mr. President, I wonder whether, with the support of
my colleagues, rather than taking up more time tonight, I might ask
unanimous consent to be included in the sequence of that order to be
able to speak once we start for 5 minutes or 10 minutes? I will not do
it tonight.
Mr. SPECTER. Mr. President, if I may respond, I don't think there is
any unanimous consent order required. If the Senator is here tomorrow
morning when we proceed with the bill, I am sure he will be recognized.
Mr. WELLSTONE. I thank the Chair. I will wait until tomorrow, then,
to speak.
Mr. SESSIONS addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from Alabama.
Mr. SESSIONS. I want to express my appreciation to the distinguished
chairman of the Judiciary Committee, Senator Hatch, for his remarks. I
appreciate them. His committee, the Judiciary Committee, of which I am
a member, has begun wrestling with these very complex issues. I think
he is exactly correct. It is a matter that requires the leadership of
the President. He is going to have to step up to the plate and bring
his departments of the U.S. Government on board if there is to be an
agreement. It has so many possibilities of going awry.
I think, personally, I have not decided whether this legislative
body, the Congress, ought to get involved in this lawsuit or not. It
may be the right thing for us to do. Then again it may turn out that it
is not. But if we do, I think it is appropriate that we limit the
amount of attorney's fees in these cases. Under the fee agreements that
I understand are now in place, attorneys, private attorneys, who have
been hired by the States have been involved in litigation maybe only a
few weeks and could stand to receive tens of millions, even billions of
dollars. In fact, most published reports indicate that fees could be as
high as $10 billion to $14 billion in this litigation.
That is far too much. That money needs to go to children. That is
what these lawsuits were about, to have that money go to children for
children's health, and that is what this bill would be involved with.
So I feel very strongly about that.
As to this being a tobacco industry bill, I am surprised the Senator
from Illinois said that because I am supporting his amendment which
would add another $50 billion, $60 billion to the tobacco industry, at
least take away any benefit that now may come to them in that amount--a
very significant issue. And I have come down on his side.
I simply say, just as that amendment that came through to change
perhaps the funding for the tobacco industry to save them a large
amount of money was not fully debated, likewise the attorney's fees
that have been out there have not been debated. As a matter of fact,
they have not been discussed. At the Judiciary Committee hearing at
which I appeared with Senator Hatch, I asked about attorney's fees of
several of the attorneys general, and I got only evasive answers.
So then I submitted written questions to them asking for detailed
explanations of what kind of fee agreements had been entered into and
asked them to respond to me in writing. Over a month has passed, and we
have heard nothing from them. So I say there is a side agreement, an
unhealthy, secret agreement, it appears, between the attorneys for the
States and the tobacco industry, that the attorneys general and the
States are saying they are not responsible for.
You cannot do that. Mr. President, as an attorney, let me say this.
An attorney's fidelity must be totally to his or her client, and in
this instance, these attorneys, these plaintiff attorneys who have been
hired to represent most of the States involved who have contingent fee
agreements with their States need to have their total loyalty to the
State. But if they are over there on the side entering into a fee
agreement negotiation with the tobacco industry and saying to the
American people and the people of the various States involved, ``Don't
worry about the fee agreement, the tobacco industry is going to pay
that,'' make no mistake about it, that is money taken from the
children. That is money taken from the settlement that would go to
benefit the health of people who have suffered from smoking. It is a
side agreement that is not healthy.
I have serious questions in my mind as a practicing attorney whether
or not
[[Page S9012]]
that is ethical because, you see, if that private side agreement
between the tobacco people and the attorneys about how much money they
get falls apart, those attorneys get no money--perhaps. And maybe the
tobacco company can say, well, if you will just agree to this
restriction or that restriction, we will agree to pay you two or three
more billion dollars in attorney's fees. That is the kind of unhealthy
relationship that should never occur in serious litigation, and this is
certainly serious litigation.
The Senator from Kentucky from the other party indicated that this
settlement may exceed $500 billion. We cannot allow 10-20 percent of
that money to go to attorneys, many of whom have filed lawsuits so
recently that the ink is hardly dry on them. They have done very little
litigation. Yet we are at the point of the tobacco industry coming in
and agreeing to settle and pay it all and the litigation would
presumably end and then they would get these huge sums in legal fees. I
think it is a very important matter, and as far as this Senator is
concerned I will not support any agreement, I will not support any
global settlement legislation from this body that does not fully
disclose every dime that is being paid, and I don't think we should.
In addition to that, I think this body ought to make clear that if
any settlement does occur, we should cap the amount of legal fees. I
think $250 an hour is fine pay for any good lawyer, and that is the
maximum they ought to be paid. If they are not worth that--they do not
normally charge that--they should not get $250. But we say no more than
$250 an hour and no more than $5 million per State. So that is 50
States to perhaps pay $5 million, and we could save substantial sums of
money, Mr. President, that could go to benefit children's health in
this country and not be involved in windfalls to attorneys who may have
done very little work at all.
I think this is a good bill. I just point out that, of course, if
there is a global settlement and there needs to be some changes in the
actual formula or caps involved in the payment of attorney's fees, that
could be made a part of it. But I think this body right now needs to
send a message to the people of this country that we are going to
insist on full disclosure and we are going to put some reasonable
limits on how much money can be spent on attorney's fees.
Amendment No. 1125, as Modified Further
Mr. SESSIONS. Mr. President, at this point I would like to further
modify my amendment to address the concerns of the Senator from Iowa
with regard to the ongoing State suits versus the national tobacco
settlement.
I send that to the desk at this time.
The PRESIDING OFFICER. The Senator has a right to modify his
amendment. The amendment will be so modified.
The amendment (No. 1125), as modified further, is as follows:
Strike the last word in amendment No. 1078, as amended, and
insert the following: ``Repealed.
``Sec. . (a) General Limitation.--Notwithstanding any
other provision of law, if any attorneys' fees are paid (on
behalf of attorneys for the plaintiffs or defendants) in
connection with an action maintained by a State against one
or more tobacco companies to recover tobacco-related medicaid
expenditures or for other causes of action, involved in the
National Tobacco Settlement Agreement, such fees shall--
``(1) not be paid at a rate that exceeds $250 per hour; and
``(2) be limited to a total of $5,000,000.
``(b) Fee Arrangements.--Subsection (a) shall apply to
attorneys' fees provided for or in connection with an action
of the type described in such subsection under any--
``(1) court order;
``(2) settlement agreement;
``(3) contingency fee arrangement;
``(4) arbitration procedure;
``(5) alternative dispute resolution procedure (including
mediation); or
``(6) other arrangement providing for the payment of
attorneys' fees.
``(c) Expenses.--The limitation described in subsection (a)
shall not apply to any amounts provided for the attorneys'
reasonable and customary expenses.
``(d) Requirements.--No award of attorneys' fees shall be
made under any national tobacco settlement until the
attorneys involved have--
``(1) provided to the Governor of the appropriate State, a
detailed time accounting with respect to the work performed
in relation to any legal action which is the subject of the
settlement or with regard to the settlement itself; and
``(2) made public disclosure of the time accounting under
paragraph (1) and any fee agreements entered into, or fee
arrangements made, with respect to any legal action that is
the subject of the settlement.
``(e) Provision of Funds for Children's Health Research.--
Any amounts provided for attorneys' fees in excess of the
limitation applicable under this section shall be paid into
the Treasury for use by the National Institutes of Health for
research relating to children's health.
``(f) Effective Date.--The limitation on the payment of
attorneys' fees contained in this section shall become
effective on the date of enactment of any Act providing for a
national tobacco settlement.''
Mr. SESSIONS. Mr. President, the effect of this amendment would be to
make sure this amendment applies to tobacco attorneys, too. It would
limit their fees if they were in excessive amounts.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
amendment no. 1122
Mr. MACK. Mr. President, my colleague Senator Gorton has introduced
an amendment which would return federal funding for education programs
serving grades K-12 directly to school districts. Currently, nearly one
third of all the money spent on education by the federal government
ends up at the Department of Education. However, of that amount, only
13.1 percent actually reaches local school districts.
Mr. President, the Federal Government currently administers so many
education programs which it cannot efficiently control, nor can it
determine if it is money well spent. The vast number of these programs
are redundant and could be easily combined. Over the years, as new
ideas and innovations in education have been enacted, we have not
reviewed programs currently in place which serve similar purposes. The
result has been a growing Washington bureaucracy, with more federal
regulations affecting the day-to-day workings of our local schools.
Clearly, when it comes to the education of our young people, one size
does not fit all. This amendment would remove Washington bureaucrats
from what should be local decisions. Parents, teachers, and local
school officials are far better prepared to determine how best to use
scarce resources. We should express our confidence in parents, our
teachers and our principals to decide how best to use limited resources
to meet the needs of children--who ultimately are the ones we must
serve. Washington bureaucrats, far removed from these local situations,
cannot accurately make those decisions.
Mr. President, I am sure that during debate on this amendment and
debate on this bill, we will hear from others in this body about the
need to preserve Congress' role in providing for the education of our
nation's children. Certainly, there is a role for Congress in this
area, but I believe it is a more limited role.
I must point out that this amendment would not reduce by one dime the
amount of funding provided by the federal government for education
nationwide. Instead, it will ensure that the status quo which has
sentenced our schools to mediocrity will be reformed to enable parents,
teachers and local decisionmakers to enact innovative reforms to our
education system.
Mr. President, I believe in this approach because I believe in
parents--who have the biggest stake in their parent's success and
fulfillment. I believe in teachers--who, everyday, stand before
classrooms of children and challenge their minds with knowledge and
ideas, who inspire them to dream and imagine, who help them open the
doors to success. These are the ones we should seek to help, because
their efforts will determine how America fares in the 21st Century--
they will determine whether we continue to lead in the world or whether
we will allow that leadership to fall on some other nation.
I'm confident that our parents, teachers, and students can build the
best education system in the world, if only Washington ``experts'' will
just get out of the way. Let's show them that Congress believes in
their abilities
[[Page S9013]]
to make the right decisions for the future of our children by
supporting this amendment. I thank the chair and I yield the floor.
Medicare Commission Provision
Mr. FEINGOLD. Mr. President, I want to thank the Senator from Iowa
[Mr. Harkin], for his efforts to include language in this
appropriations bill relating to the Bipartisan Commission on the Future
of Medicare. I also want to thank his colleague, the senior Senator
from Iowa [Mr. Grassley], who chairs the Senate Special Committee on
Aging, for joining me in advocating some additional direction to the
Commission with respect to long-term care. I very much enjoy working
with Senator Grassley on the Aging Committee, where he has continued a
long tradition of bipartisanship.
Mr. President, the language added to the bill at our request touches
on one aspect of an enormously important segment of health care, namely
long-term care. I have been deeply involved in long-term care issues
for nearly 15 years, and have advocated significant reforms to our
current system both at the State and Federal level.
Mr. President, many will recall that as part of the Balanced Budget
Act of 1997, we created the so-called National Bipartisan Commission on
the Future of Medicare. Established because of the need to reform and
modernize the principal health care system of our Nation's seniors,
that Commission will examine a host of issues relating to health care
coverage and will make recommendations that we hope can lead to an
improved Medicare system, one which will not only deliver better health
care but also provide some relief from the growing pressure Medicare
has been placing on our Federal budget.
One of the key issues to be examined by the Commission is the area of
chronic disease and disability.
Mr. President, effective treatment of individuals with chronic health
care needs requires a combination of acute and preventive care, disease
management, health monitoring, and long-term care services and
supports. However, as it is now structured, the Medicare fee-for-
service program responds to specific and discrete episodes of care
through separate providers, and often discourages timely, coordinated
cost-effective chronic care.
Mr. President, more than 20 percent of Medicare beneficiaries today
have chronic health care needs, and they are the fastest growing
segment of the Medicare population. A major part of the health care for
these beneficiaries with chronic needs are the long-term care services
and supports which are separately financed by beneficiaries and their
families, or, for those without personal resources, by Medicaid and the
States.
This latter group of people with chronic care needs, those who are
eligible for both Medicare and Medicaid, help make up a particularly
important group of beneficiaries. The so-called dually eligible make up
about one-sixth of the population of these two programs, but account
for nearly one-third of program expenditures and rightly have captured
the attention of policy makers as one of the critical targets for
policy reforms in the two programs. As a recent hearing of the Aging
Committee revealed, the lack of coordination between these two
programs, and more generally between Medicare and long-term care,
creates perverse incentives for cost-shifting in the health care
system, and often results in excess cost, inappropriate care, or no
care at all.
Mr. President, while the National Bipartisan Commission on the Future
of Medicare is already directed to examine this critical population,
our proposal goes further be specifically calling on the Commission to
examine the potential for coordinating Medicare with cost-effective
long-term care services.
Mr. President, I want to underscore the language we had included in
the bill does not limit or even specify what the Commission might
consider in reviewing the potential for coordinating Medicare with
long-term care services. But there are a number of matters deserving
the Commission's attention that I want to highlight, including the
success of a number of States, such as Wisconsin, in developing
effective long-term care programs built on flexible delivery systems
that deliver more cost-effective, individualized care. The Commission
should also take a particularly close look at efforts which build upon
the existing system of informal supports, often provided by family
members and friends, that currently account for the vast majority of
long-term care provided in this country.
More generally, while the primary focus of the Commission will be the
future of Medicare, as the Commission calculates the future cost of the
current Medicare program, I urge it take into consideration the total
costs of care for individuals with chronic illnesses and disabilities,
including the cost of long-term care services and supports, whether
those costs accrue to Medicare, Medicaid, private insurers, or
beneficiaries and their families. It is neither good budgeting policy
nor good health care policy to partition off health care service
planning, making changes to one program while ignoring the effect those
changes will have in other areas.
Mr. President, unlike the near-term focus of the budget process, the
recommendations that we expect the Commission will make regarding
Medicare will be based on a much longer and broader view. Some of the
defects of the current Medicare program are arguably the result of
short-term budget considerations that have led to unintended, sometimes
expensive consequences. By taking a broader view, the Commission can
avoid some of these past errors, and possibly contribute to one of the
highest health care priorities we have, the need for significant long-
term care reform.
amendment no. 1074
Mr. CAMPBELL. Mr. President, I strongly support the amendment offered
by my distinguished colleague from Arizona, Senator McCain. The
amendment would dedicate an additional $100 million to research on
Parkinson's disease, an effort driven by my accomplished mentor and
dear friend, Morris K. Udall.
The statistics are staggering. While over a million Americans battle
Parkinson's at a cost of $26 billion annually, the Federal commitment
to Parkinson's research is only $27 million. While it is not only
impossible but unfair to try and determine what disease should get more
funding for research while another gets less, these statistics say
unequivocally that Parkinson's deserves more.
While I have many fond memories of Mo, his thirty years of
unparalleled service to this country, his ever present wit and his
statesmanship, one of my fondest memories is of a circumstance in which
he exhibited rarely matched courage and integrity. While both in the
House of Representatives, I had the honor of crusading with Mo to
remove a painting from a wall in the Capitol that was both offensive
and demeaning to Native Americans. That painting, that symbol of
dominance, hung for years. Mo Udall took it down. He took down many
such injustices during his tenure in Congress.
Parkinson's has robbed us of too many valuable people. I feel very
strongly that the 64 Members of the Senate who cosponsored this bill
should follow through on their initial--overwhelming--show of support
and adopt the amendment.
____________________