[Congressional Record Volume 152, Number 122 (Tuesday, September 26, 2006)]
[Senate]
[Pages S10115-S10117]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   HOMELAND SECURITY AND HEALTH CARE

  Mr. BINGAMAN. Mr. President, I want to speak on three issues this 
morning. First, I will talk about two amendments I have filed to the 
Secure Fence Act which is the legislation the Senate is debating once 
we get through morning business. I will talk about the merits of those 
amendments and the reasons I believe Senators should support those 
amendments, that we should be allowed an opportunity to offer those 
amendments. There is some question as to whether we will be allowed 
that opportunity. After that, I will say a few words about health care 
and health care issues in this 109th Congress.
  First, as to the Secure Fence Act, H.R. 6061, I represent, as all of 
my colleagues know, a border State. I understand the frustration 
communities are facing due to the inability of the Federal Government 
to secure our Nation's borders. Illegal immigration is a serious 
problem, and we do need to do a much better job in addressing this 
problem. The Senate has passed a comprehensive immigration bill. It is 
not a perfect bill by any means, but it is aimed at improving security 
along our borders and at also reforming our immigration laws. I believe 
that the bill passed through the Senate was a step in the right 
direction. I was disappointed that the leadership of the House of 
Representatives refused to appoint conferees to meet with Senate 
conferees and instead decided to hold hearings around the country to 
concentrate on differences of opinion and to stir up discontent rather 
than to seek some common solutions to our substantial immigration 
problems. The Senate has passed a bipartisan bill. The House passed 
what I would characterize as a different bill. We should have convened 
a conference committee. We should have tried to work out differences 
between those bills. The failure to at least have made a good faith 
effort in that regard I think is very unfortunate.

  Mr. President, with regard to the specifics of this Secure Fence 
Act--and the Secure Fence Act is a piece of the House-passed 
immigration bill from about a year ago--I do believe there are 
locations along our border where fencing makes sense and additional 
fencing is required. However, we need to be smart about our security. 
Walls may make good sound bites in political ads, but the reality is 
that individuals charged with securing our borders have consistently 
stated that walls and fences are only part of the solution and that 
there are better and more cost-effective ways to provide for greater 
border security.
  Ralph Basham, who is the Commissioner of Customs and Border 
Protection, stated earlier this year in response to a question about 
the proposal to build 700 miles of double-layered fencing:

       It doesn't make sense, it's not practical.

  He went on to say that what we need is an appropriate mix of 
technology and infrastructure and additional personnel.
  Let me take a moment to also read some remarks delivered by Secretary 
Chertoff, the Secretary of Homeland Security. These were delivered on 
March 20 of this year in a speech he gave at the Heritage Foundation. 
In describing the Secure Border Initiative, also known as SBInet, 
Secretary Chertoff stated:

       We are going to build ourselves what I call a virtual 
     fence, not a fence of barbed wire and bricks and mortar, 
     which I will tell you simply doesn't work, because people can 
     go over that kind of fence but rather a smart fence, a fence 
     that makes use of physical tools but also tools about 
     information sharing and information management that let us 
     identify people coming across the border and let us plan the 
     interception and apprehension in a way that serves our 
     purposes and maximizes our resources thereby giving our 
     border patrol the best leverage they can have in order to 
     make sure that they are apprehending the most people.

  This week, the Department of Homeland Security selected Boeing as its 
contractor for this Secure Border Initiative. Under Boeing's proposal, 
it will build a network of approximately 1,800 towers along the 
southern border. It is unclear how mandating 700 miles of fencing as is 
proposed in this pending bill will fit into the proposal which Boeing 
has made and which has been selected by the Department of Homeland 
Security and whether the two together make sense. Unfortunately, the 
bill as currently drafted does not provide the Department of Homeland 
Security with the discretion that Department needs in order to 
determine the most appropriate means to secure the border. It also ties 
their hands with regard to the use and the placement of fencing. I do 
not think we should be mandating over 700 miles of fencing at specific 
locations. I do not think this Senate and those of us here in the 
Congress have enough detailed knowledge of the various areas along the 
border to be making the decision as to the specific areas where fencing 
needs to be built.
  It is also clear that the cost per mile is something we do not have a 
good handle on at this time in our debate. According to the Department 
of Homeland Security, it costs approximately $4.4 million for a single 
layer of fencing per mile. The bill we are debating today mandates 
double-layer fencing, which would add up to about $6.6 billion for the 
730 miles of fencing required under this bill.
  In discussions with local law enforcement, local, State, and Federal 
law enforcement along the border in the southern part of New Mexico, we 
have meetings with what we call the Southwest New Mexico Border 
Security Task Force, and at some of those meetings I have attended the 
point has been raised by local security officials that the location of 
the proposed double-layer fencing in this bill is, in their view, at 
least, at the wrong place.
  The bill also mandates fencing in some areas where we just spent 
millions of dollars per mile to build vehicle barriers rather than 
fencing because it was the judgment of the Border Patrol that vehicle 
barriers were more appropriate in those areas.
  If we are going to spend billions of dollars to place a fence along 
over one-third of our southern border, we should at least ensure that 
it is in the right location and that the Department of Homeland 
Security can make necessary adjustments in the interest of securing our 
borders. To this end, I

[[Page S10116]]

hope to offer an amendment that would ensure that the Secretary of 
Homeland Security has the ability to modify the placement and the use 
of fencing that is mandated in this bill; that is, he has that 
discretion to make those modifications if the Secretary determines that 
such use or placement of the fencing is not the best way to achieve and 
to maintain operational control of the border. I believe this is a 
reasonable amendment. I believe it will help ensure that DHS has the 
flexibility it needs to alter this proposal if the proposal is 
determined not to advance our overall security strategy.
  I hope that the majority party will allow a vote on this important 
measure and that they will support this important measure. Let me be 
clear. I believe we need to do whatever it takes to secure our borders. 
You cannot have a nation without secure borders. I have consistently 
worked to secure increased funding for vehicle barriers, for 
surveillance equipment, and for additional Border Patrol agents, but I 
also believe we need to pursue that secure border in the most effective 
way both from a security standpoint and in terms of the overall cost of 
the security.
  Mr. President, that is my description of the first amendment I do 
hope to offer. Let me also speak briefly about an amendment I hope to 
offer to this legislation This is regarding the Border Law Enforcement 
Relief Act of 2006. This is an amendment which is cosponsored by 
Senator Domenici of my State. It will provide local law enforcement in 
border communities with much needed assistance in combating border-
related criminal activity.

  During our debate on the immigration bill, this legislation was 
adopted by a vote of 84 to 6. It was also adopted by unanimous consent 
as part of the Senate's Homeland Security appropriations bill.
  For far too long, law enforcement agencies operating along the border 
have had to incur significant costs due to the inability of the Federal 
Government to provide adequate security of the border. It is time that 
the Federal Government recognize that border communities should not 
have to bear that burden alone. This amendment would establish a 
competitive grant program within the Department of Homeland Security. 
These grants would help local law enforcement situated along the border 
to cover some of the costs they incur as a result of dealing with 
illegal immigration, with drug trafficking, with stolen vehicles, and 
with other border-related crimes.
  The amendment authorizes $50 million a year to enable law enforcement 
within 100 miles of the border to hire additional personnel, to obtain 
necessary equipment, to cover the cost of overtime, and to cover 
additional transportation costs. Law enforcement outside of this 100-
mile geographical limit would be eligible if the Secretary of Homeland 
Security certified that they are located in what we call a high-impact 
area.
  The United States shares 5,525 miles of border with Canada and 1,989 
miles of border with Mexico. Many of the local law enforcement agencies 
that are located along the border are small rural departments charged 
with patrolling very large areas of land with very few officers and 
with very limited resources. According to a 2001 study by the United 
States-Mexico Border Counties Coalition, criminal justice costs 
associated with illegal immigration exceeded $89 million in each and 
every year. Counties along the southwest border are some of the poorest 
in our country, and they are not in a good position to cover these 
initial costs. The States of Arizona and New Mexico have declared 
states of emergency in order to provide local law enforcement with 
immediate assistance in addressing criminal activity along the border, 
and it is time that the Federal Government step up and share some of 
this burden.
  I urge my colleagues to support this amendment again as they have in 
the past. Let me make it clear to my colleagues I am offering this 
because, although it was adopted as part of the immigration bill, we 
need to once again adopt this amendment and attach it to this bill if 
this bill in fact winds up going to the President for signature.
  Mr. President, let me now change subjects once more and speak not 
about the Secure Fence Act, which is the legislation the Senate is 
dealing with today, but to speak about a subject that has been given 
very short shrift here on the Senate floor in recent weeks and months; 
that is, Congress's failure to enact any serious legislation with 
respect to the major health care problems facing our Nation. While 
problems such as the fact that 47 million uninsured Americans continue 
to be ignored by this Congress, by this administration, what is equally 
disappointing to me is that there are a number of Federal health 
programs that we are failing to reauthorize each year, and that number 
continues to grow. These are programs which are public, they are well-
known, and I believe the failure of the Congress to reauthorize these 
is a major neglect of our responsibilities.
  Although the Appropriations Committee continues to provide resources 
for a number of these expired Federal programs, Congress has 
increasingly failed to provide the roadmap to the executive branch for 
how these funds are expected to be spent. In fact, in each of the last 
several years, the Congress has ceded more of its legislative and its 
oversight roles in regard to health care to the executive branch in 
what one head of a national physician organization referred to as 
``inexcusable inaction.'' The result is that Congress is increasingly 
acting more like a trade association in trying to lobby the executive 
branch of Government to do things related to health care than it is 
acting as a legislative branch actually considering and passing 
legislation on these important issues.
  I find myself being asked by colleagues to cosign letters to the 
administration urging them to use their discretion, their 
administrative discretion, their administrative authority to 
essentially sidestep the law, ignore the law, take unilateral action to 
address some of these health care issues that we in the Congress seem 
unable or unwilling to deal with in legislation.
  That is, I fear, the sad legacy of this 109th Congress on health care 
policy. When the question is raised: What did the 109th Congress do to 
improve health care for Americans, I think the answer almost certainly 
will be very little, if anything.
  First, let's take the Medicare physician payment formula. As part of 
the Balanced Budget Act of 1997, Congress enacted a provision that 
attempted to save Medicare money, and it did so by placing physician 
payments on an automatically adjusting formula called the sustainable 
growth rate or SGR. During the economic boom of the 1990s, this SGR 
formula worked well for physicians, and physicians did receive positive 
updates year after year during that period.

  Without getting into great details about the formula that we enacted 
back in 1997, there are four factors that have caused the formula to 
result in cuts in payments to physicians in recent years. Let me 
mention those four factors: First was the economic downturn in the 
first term of the Bush administration; second, the changes in the 
composition of managed-care enrollment; third, the addition of more 
preventive care services; and, fourth, the inclusion of prescription 
drugs in the calculation of the formula.
  Congress created a mess with a poorly devised formula and, in 2001, 
more than two-thirds of the Members of Congress--both Democrats and 
Republicans--cosponsored legislation to halt the cuts and to change the 
manner in which this SGR formula was to be calculated. That 
legislation, unfortunately, died when the congressional leadership 
declined to schedule a vote. As a result, physician payments were cut 
by 5.4 percent in 2002.
  In 2002, there were more than 80 percent of the Congress who signed 
on to cosponsor legislation to fix the physician payment formula, but 
some deal was brokered that year, 2002, by one of the committee chairs 
and one physician group to impose a freeze in the payment and 
backloading the cuts in a budget-neutral manner in later years.
  So rather than fixing the problem, that has become the new mode in 
Congress: we go for year after year patchwork. Physician groups face an 
impending cut year after year. Congress pushes back the need to truly 
fix the problem, and the problem grows bigger and bigger, to a point 
where some would argue it is virtually unfixable at this point.

[[Page S10117]]

  What do I mean by ``virtually unfixable''? According to a new 
Congressional Budget Office analysis of the Medicare physician payment 
formula, one solution to fix the problem would cost $200 billion over 
the next 10 years. The sham of these annual 1-year adjustments to the 
Medicare physician payment formula masks the true size of our Nation's 
budget deficit, as we all know very well that the Congress is not going 
to allow scheduled cuts to physician payment rates of more than 40 
percent in the coming years, as is provided for in the law that is now 
built into the Congressional Budget Office baseline projections.
  So this SGR formula is clearly broken, but the hole that has been 
created is so deep that the problem is largely unsolvable at this 
point. The problem is made worse, of course, by the very fact that 
Congress has failed to pass a budget this year. In its next budget--
hopefully, next year--Congress needs to enact, in my view, a ``truth in 
budgeting'' amendment for Medicare physician payments so that we can 
admit the true level of our Nation's deficit by revising the payment 
formula baseline, and through that device address the problem with the 
SGR formula in a forthright manner.
  It is, sadly, too late to hope that we can solve all of this problem 
this year in this 109th Congress. I urge congressional leadership and 
organizations that represent physicians groups to push to resolve this 
annual crisis in the next Congress--early in the next Congress--in what 
would be a far more honest and open manner that would lead to a 
permanent fix with respect to this physician payment formula.
  Unfortunately, the Medicare physician payment formula is just one 
example of the much larger institutional problem facing the Congress in 
coming to grips with health care issues. Just a year ago Congress 
failed to restore more than $1 billion in expiring funding for the 
State Children's Health Insurance Program, or SCHIP. While there is not 
a single Member of Congress who would admit to not supporting the State 
Children's Health Insurance Program, congressional leadership has 
failed to find a way to ensure that $1 billion in dedicated resources 
to SCHIP was actually available to spend on the program.
  Now SCHIP faces a larger problem because the States are estimating a 
$900 million shortfall in fiscal year 2007 in order to provide current 
levels of health insurance coverage for children. According to the 
American Academy of Pediatrics and 85 other national organizations in a 
letter to Congress dated September 18:

       Without additional federal funding to avert these 
     shortfalls, states may have to reduce their SCHIP enrollment, 
     placing health care insurance coverage for over 500,000 low-
     income children at risk. States may also be forced to enact 
     harmful changes to their SCHIP programs, such as curtailing 
     benefits, increasing beneficiary cost-sharing or reducing 
     provider payments.

  Just a few years ago, Congress and the administration provided what 
is now estimated to be a $700 billion Medicare prescription drug 
benefit to our Nation's seniors. Yet somehow we cannot find our way to 
provide 1 percent of that amount for our Nation's children to avert a 
shortfall in funding in order to ensure that not only prescription 
drugs but comprehensive health care is provided to those low-income 
children.
  Four days before that, the Institute of Medicine issued a report 
noting that despite a profound epidemic confronting our Nation with 
respect to childhood obesity, the Federal Government, the food 
industry, schools, and others have made little progress in stemming 
this growing tide of childhood obesity.
  In 2 straight years, the Senate has passed amendments to the 
Agriculture appropriations bill by overwhelming majorities to increase 
funding for programs such as TEAM Nutrition, only to see that money 
disappear once we got into conference with the House. What is needed, 
in my view, is national leadership, both by the administration and by 
the Congress. We have failed to deal with this extremely important 
issue affecting the long-term health of many of our children.
  In addition to confronting expiring provisions with programs such as 
Medicare and SCHIP and major problems through the appropriations 
process in getting adequate funds to deal with childhood obesity, I 
also want to raise the issue of Congress' failure to enact 
reauthorizations of numerous Federal programs. According to the 
Congressional Budget Office, in its annual report entitled 
``Unauthorized Appropriations and Expiring Authorizations'':

       The Congress has appropriated about $159 billion for fiscal 
     year 2006 for programs and activities whose authorizations of 
     appropriations have expired.

  Some of the major health care programs whose authorizations have 
expired include the National Institutes of Health, the Ryan White CARE 
grant programs, the veterans' medical care, the Indian Health Service, 
and the Administration on Aging.
  Considering all the Congress must consider on an annual basis, it is 
not surprising that some programs are not reauthorized in a timely 
fashion. What has become disappointing is that there appears to be a 
lack of effort in some instances to even try or to bring these issues 
to closure despite the vast need.
  For example, the Indian Health Care Improvement Act expired in 2001, 
and for 6 long years American Indians and Alaska Natives have tried 
repeatedly to reauthorize the programs administered by the Indian 
Health Service. Moreover, the U.S. Commission on Civil Rights issued a 
report in 2003 entitled, ``A Quite Crisis: Federal Funding and Unmet 
Need in Indian Country,'' that called for immediate passage of the 
Indian Health Care Improvement Act and for the Federal Government to 
``act immediately to reverse this shameful and unjust treatment'' that 
is the Indian health care system and funding levels.
  And yet, here we are 3 years later and the Committee on Indian 
Affairs has reported a reauthorization bill to the Senate floor over 6 
months ago, but this bill has not yet been bought up for debate.
  Failure with respect to the Medicare physician payment formula, the 
State Children's Health Insurance Program shortfalls, childhood 
obesity, and the Indian Health Service are just examples of a larger 
problem that has grown over the years.
  Other programs, such as the Health Professions Act, so desperately 
need to be reauthorized and improved that both the administration and 
Appropriations Committee recognize are not working well, so they 
continue to get dramatically cut or even zeroed out. Meanwhile, as a 
Nation, there are areas in the country with terrible health profession 
shortages, and we are now importing 25 percent of our physician 
workforce from foreign nations, which is not a good result either for 
our Nation or for the country from which we have taken their doctors.
  Mr. President, our Nation's health care system is in a mess, and yet 
the Congress is not addressing rather critical and fundamental issues 
due to inaction, neglect, or inattention.
  In the coming days and during the lameduck session, I urge the 
leadership of the Congress to begin the work of addressing these 
important health care problems facing our country.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from South Carolina.
  Is the Senator seeking consent to proceed in morning business?
  Mr. DeMINT. Mr. President, I ask unanimous consent to speak for 30 
minutes in morning business.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.

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