[Congressional Record Volume 155, Number 197 (Monday, December 21, 2009)]
[Senate]
[Pages S13706-S13709]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           HEALTH CARE REFORM

  Mr. VOINOVICH. Mr. President, I wanted to take some time to talk 
about the health care bill before the Senate which the majority leader 
is anxious to get passed before Christmas. I suspect that he knows if 
this bill sees too much light of day, he could lose 1 or 2 of his 60 
votes, and that is why his managers' amendment was kept under wraps so 
that no one knew anything about it until the last minute.
  On our side of the aisle, we would like to hold off until after 
Christmas to give all Members of the Senate and the American people a 
chance to review this legislation. Obviously, this is not going to 
happen. I think that is unfortunate.
  When you compare the number of days we spent debating this bill to 
other major pieces of legislation that have come before this body in 
recent years, the Democrats' haste is obvious.
  For example, in 2002, I was very much involved in the legislation 
that created the Department of Homeland Security. We spent 19 days over 
7 weeks on the floor debating that bill. We took 20 votes on amendments 
during the debate. The final result was bipartisan. Ninety Members of 
the Senate voted for it.
  Tragically, for the American people, unlike other important health 
care-related bills such as the Medicare Modernization Act that garnered 
wide bipartisan support, this bill is nowhere near bipartisan and did 
not receive a single Republican vote for cloture at 1 this morning, and 
only one Republican in the House of Representatives supported it.
  In my humble opinion, the way this bill was negotiated behind closed 
doors, and without the input of Members from both sides, will sour 
relations and bipartisan discussion on other major issues to come 
before the Senate, such as debt and deficit reduction--notably 
bipartisan legislation that I have been working on very closely with 
Senators Gregg and Conrad, a comprehensive energy bill, reauthorization 
of the surface transportation bill, climate change legislation, and--
very important--a jobs bill.
  The problems facing our country are too serious for business as 
usual, each side one-upping the other for political advantage, with the 
2010 elections casting shadows on what we should be doing for the 
benefit of our country, at a time when this Nation is as fragile as I 
have seen it in my entire life.
  Our future and the future of our children and grandchildren is in our 
hands. Our constituents and the world are watching. Our credibility and 
credit are on the line, and so is our economic and national security, 
and, quite frankly, our leadership position in the world. We need fewer 
partisans in this body and more statesmen.
  Last week I came to the floor to remind my colleagues and the 
American people about the fiscal realities that face our Nation and 
explained how this health reform legislation, which is now likely to 
pass based on this morning's cloture vote, would make an unsustainable 
fiscal situation even worse.
  Let me remind you as we stand right now that our Nation's debt has 
exceeded $12 trillion for the first time in our history. In fact, from 
2008 to 2009 alone, the Federal debt increased 19 percent, boosting 
national debt as a percentage of GDP from 70 percent last year to 84 
percent this year. We have not seen this kind of debt-to-GDP ratio 
since the end of the Second World War.
  We have amassed a staggering $70 trillion in unfunded obligations 
over the next 75 years or an estimated $600,000 per American household.
  Our Medicare Program is already on shaky footing with $37 trillion in 
unfunded future Medicare costs, and the Medicare trust fund is expected 
to be insolvent by 2017. Frankly, this is why I am disappointed the 
Senate failed to support Senator Gregg's amendment we considered 
earlier in this debate to ensure that the savings achieved by

[[Page S13707]]

Medicare cuts would be used to ensure the viability of the program, and 
not new entitlements.
  I ask my colleagues, can our Nation take on new programs and costs 
when we cannot pay for what we are doing right now? Our Nation's fiscal 
picture is not pretty. Our obligations to our entitlement programs are 
exploding. If we keep going the way we are, our debt will double in 5 
years and triple in 10.
  Our budgets are unbalanced as far as the eye can see. Last year we 
borrowed $1.4 trillion, and 50 percent of our debt is in the hands of 
foreign countries. The American people get it. They already know the 
Federal Government is the worst credit card abuser in the world, and we 
are putting everything on the tab of our children and grandchildren.
  They are not the only ones. Internationally, our creditors are 
concerned. Chinese Premier Wen Jiabao has noted:

       We have lent a huge amount of money to the United States 
     and of course we're concerned about the security of our 
     assets and, to be honest, I am a little bit worried. That's 
     why here I would like to urge the US to keep its commitment 
     and promise to ensure the safety of Chinese assets.

  That is what he said to the President--anybody who goes to China 
today. They are worried about the fact they have lent us a lot of money 
and maybe they might not get it back.
  While the international community understands our crisis, somehow 
Congress does not get it. Here we are considering a bill that, when 
fully implemented, spends more than $2 trillion over 10 years to 
restructure our health care system.
  I respect my friends on the other side of the aisle, but the 
assumptions they make are optimistic about the cuts in this bill, 
especially when one considers this body's propensity for acting in a 
fiscally irresponsible manner.
  Frankly, our history on the so-called doc fix is illustrative. We 
continue to kick the cost of fixing Medicare payments for physicians 
down the road, instead of dealing with its more than $200 billion cost.
  The bill before us does not even have the 1-year fix that the 
original bill had included. My friends on the other side of the aisle 
have decided to put it off and deal with it in a separate measure 
because it would make this bill even more expensive.
  As congressional observers have noted, we continue to put off the 
difficult choices. The fact is, Congress is not willing to take short-
term pain for long-term gain. This is my 11th year, and it is the same 
old story year after year.
  This brings me back to the health care bill. I have heard all the 
arguments of why health care reform is needed, and--do you know 
something--I agree with most of them. Frankly, there are a number of 
incremental things we could do today to make real improvements in our 
system in a bipartisan way. In fact, I encourage my colleagues to take 
a look at some of the proposals contained in the alternatives offered 
by my colleagues, including Senators Wyden and Bennett.
  These and other legislative proposals include things we can do on an 
incremental basis to improve our system, such as making it easier for 
small business to group together to reduce their health care costs; 
passing medical liability reform, where we have more tests being taken 
because doctors are afraid of being sued; increasing flexibility in the 
private market so people have more options and can choose insurance 
products that best meet their needs; implementing policies that 
encourage wellness and prevention; eliminating the fraud and abuse that 
have and will continue to plague our public health care programs; 
eliminating the ability of insurance companies to deny people insurance 
coverage because of preexisting conditions; or eliminating the caps 
that insurance companies put once an individual reaches a certain 
amount.
  Instead, we are going to pass a massive new spending bill that does 
little to fix our problems in the long run. What too many of my 
colleagues do not understand is there are limits to what government can 
do. There are limits on what government can do. When I was mayor of the 
city of Cleveland, Governor of Ohio, people would come to me with ideas 
to expand programs and services. Often, even though I saw the merit of 
these proposals, just like I see the merit of a lot of the suggestions 
we need to have in terms of health care, I knew we did not have the 
money to pay for these proposals, especially because we had to balance 
our budgets. In those situations, I had to be honest and say no.
  It is the same thing here. I am sure the Presiding Officer has people 
coming into his office every day saying: I want you to help with this 
worthy cause. I sit, I listen patiently, and I say to them: If what you 
are asking me to do means we are going to have to borrow money, and it 
is going to be paid for by our children and grandchildren, what do you 
have to say? Nine times out of 10, they say: No. Thank you very much, 
Senator. And they go out the door. They get it. They understand that.
  Unfortunately, Congress does not get it. It is not just my colleagues 
on the other side of the aisle, folks. No one's hands are completely 
clean. That is the way it is. We just keep on going the way we are, 
keep going down the road.

  Here we are in the worst recession since the Great Depression. 
Millions of Americans are out of work. Others lucky enough to have a 
job are wondering if they will be next to be laid off or fired. In my 
State of Ohio, the unemployment rate is 10.6 percent. Yet we are 
talking about health care reform, cap and trade, which will put 
unsustainable burdens on doing business in this country and make it 
more difficult to get this economy going again.
  What people in this country want is to go back to work and have some 
assurance that their jobs are safe. The best way to give them security 
and access to health insurance is to get them back to work.
  We should not be asking our Nation's businesses to take on new tax 
burdens in the current recession. Yet this bill before us would impose 
$28 billion in new taxes on employers--$28 billion. Furthermore, the 
legislation creates a new Medicare payroll tax that will likely hit 
approximately one-third of the small businesses in this country, which 
employ some 30 million Americans. These new taxes are likely to 
significantly hinder these engines of job growth.
  Another troubling tax that will impact businesses in my State is the 
tax on device manufacturers. I have heard from one of our Ohio 
companies that this tax could force it to move its operations overseas 
to keep its doors open. In fact--this is unbelievable--according to the 
company's own calculations, the new device tax will exceed 100 percent 
of its domestic earnings and research and development budget. It has 
nothing to do with their profitability. They say: You are this 
business. You have a percentage of it, and we are going to lay the tax 
right on your back.
  Ohio cannot afford to lose these jobs to another country at any time 
but certainly not right now in this struggling economy. But this is 
just the beginning for businesses, large and small. The bill will add a 
whole new, never seen before, layer of bureaucracy on our businesses. 
Think about that. Small and even large businesses are already 
overwhelmed with management and paperwork demands as a result of 
government mandates. Many of them have to hire multiple tax attorneys 
and accountants to help them navigate the Federal laws and their tax 
obligations.
  I cannot help but wonder how many businesses, both large and small, 
will have to hire new ``benefit managers.'' There is an area where we 
will create some new jobs. We are going to hire benefit managers to 
help them keep track of the new requirements to ensure they are 
offering the appropriate benefits or paying the appropriate fine. What 
a nightmare.
  No one has mentioned the thousands of additional Federal workers. 
Nobody has talked about it. When we did Part D of Medicare, they had to 
hire over 500 people at CMS. So we will have to hire all kinds of 
people, including--listen to this--at the Internal Revenue Service. I 
bet you would have a hard time finding an American who thinks it is a 
good idea to get the IRS involved in delivering our Nation's health 
care.
  The worst thing we can do is borrow another $2.3 trillion, create 
additional Federal programs, and put a bigger burden on the engine of 
job creation. I find this especially troublesome after hearing the 
Chief Actuary at the Centers for Medicare & Medicaid Services

[[Page S13708]]

last week report that under the original Reid health care bill costs 
would go up, not down. In fact, according to his analysis, the Federal 
Government would spend $234 billion more on health care if this 
legislation became law than without it--$234 billion more with this 
legislation than what we are spending right now.
  It is not just the Federal Government. As I discussed in some detail 
last week, most States will have new fiscal obligations of about $26 
billion under this bill. If you are not lucky enough to be from one of 
the States, such as the Cornhusker State or another State that got a 
special deal in this legislation to get the Democratic leadership's 60 
votes, your Governor is going to be hit with a portion of the cost of 
expanding the Medicaid Program to cover all individuals up to 133 
percent of the Federal poverty level.
  In the State of Ohio, we have had 154,000 more people come on 
Medicaid just with the current extent of poverty, and to go to 133 
percent, it is going to be incredible.
  As a former Governor of Ohio, former chairman of the National 
Governors Association, and past chairman of the National League of 
Cities, I am very familiar with what unfunded mandates can do to State 
and local governments.
  By the way, there is a point of order that lies against this bill as 
an unfunded mandate in terms of local and State government, and also 
business. The American people should understand that the new State 
obligations under the Medicare expansion will mean less funding, OK, 
less funding for primary and secondary education, higher education 
programs, roads and bridges, county and local government projects, and 
safety service programs run by their States. In fact, I used to call 
Medicaid the Pacman that gobbled up our State budget dollars.

  So let's look at this. You take the side over here of Medicaid, but 
then what you do is you expand that, and it is going to be more 
expensive, and then you look around and you say: We have great needs 
with secondary and primary education. The kids are complaining about 
the fact that tuition is going up for our institutions of higher 
education. Our local government officials are complaining because the 
State and local government funds that are going to them are not 
available to them because all of this money is flowing in this 
direction. In other words, under the Reid bill, we will put more stress 
and further unfunded mandates on the States, making our health care 
fiscal picture even worse than it would be without doing anything at 
all. This doesn't make any sense.
  As I have often said--in fact, when I was Governor, I said--Gone are 
the days when public officials will be judged by how much they spend on 
a problem; the new realities dictate that we work harder and smarter 
and more with less. In fact, I remember giving my state of the union 
addresses or state of the State addresses in Ohio, and they used to 
take a pool about how many times I would say ``harder and smarter and 
more with less.'' That is what our States are doing but not the Federal 
Government--not the Federal Government, oh, no. States are raising 
taxes and cutting but not the Federal Government. We are just in there 
borrowing and borrowing and borrowing as if there will be no tomorrow.
  The costs incurred by our children and grandchildren as a result of 
this bill will be a crushing blow to their futures--a future that is 
already ominous because of this body. In other words, what we are 
saying to them is we are putting the cost on their credit card.
  You are in a new world where the competition is going to be keener 
than ever. We have all kinds of competitors that we didn't have when I 
was growing up, so they are going to have to work harder. Then we are 
going to say to them: By the way, your taxes are going up. We are going 
to put a burden on your back because we weren't willing to pay for or 
do without during the time we were in a position of responsibility.
  Another legacy I am upset about leaving for our children and 
grandchildren is the public funding of abortion. The other day, I 
explained to an individual that since Roe v. Wade, we have had over 40 
million abortions--40 million abortions. Yet I have friends of mine who 
are wanting children, and they are going to China, they are going to 
Russia, they are going to other places to find those children, but here 
in the United States over 40 million abortions. Unfortunately, the 
language that was inserted in the managers' amendment does not protect 
taxpayer dollars from being used to fund abortion. In fact, the U.S. 
Conference of Catholic Bishops and National Right to Life have said the 
language, and thus the bill, is unacceptable and should not move 
forward.
  Turning back to the fiscal arguments against this bill, one of my 
colleagues said yesterday that those of us on this side of the aisle 
who argue we cannot afford this bill are being disingenuous and we are 
engaging in scare tactics, even asking when the ``lying time''--from a 
colleague on the other side--the ``lying time'' for this side of the 
aisle will stop. Well, we will see. We will see. I am not going to be a 
Member of the U.S. Senate in 2012, but if God gives me the health and 
the energy, I will certainly be around to remind people who was telling 
the truth and who was not.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. DeMINT. I ask unanimous consent to speak for 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeMINT. Parliamentary inquiry, Mr. President:
  Does rule XXII of the Standing Rules of the Senate provide that on a 
measure or motion to amend the Senate rules, the necessary affirmative 
vote shall be two-thirds of the Senators present and voting?
  The PRESIDING OFFICER. It does.
  Mr. DeMINT. Further parliamentary inquiry: Is it also the case that 
on numerous occasions, the Senate has required a two-thirds cloture 
vote on bills that combine amendments to the Senate rules with other 
legislative provisions that do not amend the rules?
  The PRESIDING OFFICER. That would require a two-thirds vote.
  Mr. DeMINT. I have numerous examples here. We did it twice this year 
on S. 2349, and I could read those, but I will spare the Chair all of 
these. I am just trying to get at a concern we have.
  Am I correct that with respect to these bills, there was a 
combination of legislative provision and rules changes, and the Chair 
ruled that because there--and I am referring to earlier this year, 
those I referred to where we required the two-thirds cloture. Am I 
correct on these previous bills that with respect to the bills, there 
was a combination of legislative provisions and rules changes, and the 
Chair ruled that because there were rules changes, a two-thirds vote 
was required?
  The PRESIDING OFFICER. If there were changes to the Standing Rules of 
the Senate, a two-thirds vote would have been required to invoke 
cloture.
  Mr. DeMINT. I thank the Chair.
  Am I also correct that the Senate has required a two-thirds cloture 
on amendments to bills, where the amendments combine legislative 
provisions and rules changes? I have a number of references to bills 
when this was done, if there is any question, and I have given them to 
the Parliamentarian for consideration. Is there an answer? I mean, I 
know there have been amendments to bills that we required two-thirds 
because they include rule changes. I just wanted to get a confirmation 
from our Parliamentarian.
  Is that, in fact, the case, where two-thirds cloture on amendments to 
bills have been required to have a two-thirds vote because of the rules 
changes included in them?
  The PRESIDING OFFICER. The Chair would have to check that for a 
future answer.
  Mr. DeMINT. I believe the Parliamentarian does have references for 
when this has been done. I am quite certain it has.
  But as the Chair has confirmed, rule XXII, paragraph 2, of the 
Standing Rules of the Senate states that on a measure or motion to 
amend the Senate rules, the necessary affirmative vote shall be two-
thirds of the Senators present and voting.
  Let me go to the bill before us because buried deep within the over 
2,000 pages of this bill we find a rather substantial change to the 
Standing Rules of the Senate. It is section 3403, and it begins on page 
1,000 of the Reid substitute. These provisions not only amend certain 
rules, they waive certain rules and create entirely new rules out of 
whole cloth.

[[Page S13709]]

  Again, I will skip over some examples, but let me read a few of these 
provisions that amend the Senate rules which are contained in section 
3403 of the Reid substitute.
  Section D titled ``Referral:''

       The legislation introduced under this paragraph shall be 
     referred by the Presiding Officers of the respective Houses 
     to the Committee on Finance in the Senate and to the 
     Committee on Energy and Commerce and the Committee on Ways 
     and Means in the House of Representatives.

  The bill creates out of whole cloth a new rule that this specific 
bill must be referred to the Senate Finance Committee.
  Another example under section C, titled ``Committee Jurisdiction:''

       Notwithstanding rule 15 of the Standing Rules of the 
     Senate, a committee amendment described in subparagraph (A) 
     may include matter not within the jurisdiction of the 
     Committee on Finance if that matter is relevant to a proposal 
     contained in the bill submitted under subsection (c)(3).

  Clearly a rule change.
  So there is no pretense that this bill is being referred under the 
rules to the committee of jurisdiction. Now it is allowing the Finance 
Committee to add whatever matter it wants to the bill regardless of any 
rules regarding committee jurisdiction. And for a good measure, the 
bill even specifically states that it is amending rule XV.
  Let me just skip over a number of other examples referring to rules 
just to try to get to the point here because it goes on and on, and I 
have pages here.

  There is one provision that I found particularly troubling, and it is 
under a section C titled ``Limitation on Changes to This Subsection:''

       It shall not be in order in the Senate or in the House of 
     Representatives to consider any bill, resolution, amendment, 
     or conference report that would repeal or otherwise change 
     this subsection.

  This is not legislation. This is not law. This is a rule change. It 
is a pretty big deal. We will be passing a new law and at the same time 
creating a Senate rule that makes it out of order to amend or even 
repeal the law. I am not even sure it is constitutional, but if it is, 
it most certainly is a Senate rule. I don't see why the majority party 
wouldn't put this in every bill. If you like your law, you most 
certainly would want it to have force for future Senates. I mean, we 
want to bind future Congresses.
  This goes to the fundamental purpose of Senate rules, to prevent a 
tyrannical majority from trampling on the rights of the minority or of 
future Congresses.
  Therefore, I would like to propound a parliamentary inquiry to the 
Chair. Does section 3403 of this bill propose amendments to the 
Standing Rules of the Senate? Further parliamentary inquiry: Does the 
inclusion of these proposed amendments to the Senate rules mean that 
the bill requires two-thirds present and voting to invoke cloture?
  The PRESIDING OFFICER. The section of the proposed legislation 
addressed by the Senator does not amend the Standing Rules of the 
Senate, and therefore its inclusion does not affect the number of votes 
required to invoke cloture.
  Mr. DeMINT. Is the Chair aware of any precedent where the Senate 
created a law and in doing so created a new rule that--and I am quoting 
from our bill:

       It shall not be in order in the Senate or in the House of 
     Representatives to consider any bill, resolution, amendment, 
     or conference report that would repeal or otherwise change--

  Such law?
  Is the Chair aware that we have ever put this type of binding 
legislation on future Congresses in a bill?
  The PRESIDING OFFICER. It is quite common to do that.
  Mr. DeMINT. I would ask the Chair to get those references, if the 
Parliamentarian would, to us.
  Mr. President, another parliamentary inquiry: If this new law will 
operate as a Senate rule, making it out of order for Senators to 
propose amendments to repeal or amend it--I have been in Congress 11 
years. I have never heard of an amendment being called out of order 
because it changes something that was done before. How is that 
different than the types of Senate rulemaking for which our 
predecessors in their wisdom provided a two-thirds cloture vote? This 
seems to be a redefinition of words, in my mind.
  Mr. President, it is clear that the Parliamentarian is going to 
redefine words, as I am afraid he has done as part of this process 
before. But this is truly historic that we have included rules changes 
in legislation, and yet we are ignoring a rule that requires a two-
thirds cloture vote to pass it. I believe it is unconstitutional. I 
believe it subverts the principle we have operated under, and it is 
very obvious to anyone that it does change a rule. It is clear that our 
rules mean nothing if we can redefine the words we use in them.
  I yield the floor.
  The PRESIDING OFFICER. The Chair will note that it is quite common to 
include provisions affecting Senate procedure in legislation.
  Mr. DeMINT. Is there a difference between Senate procedures and 
rules?
  The PRESIDING OFFICER. Yes
  Mr. DeMINT. So the language you see in this bill that specifically 
refers to a change in a rule is not a rule change, it is a procedure 
change?
  The PRESIDING OFFICER. That is correct.
  Mr. DeMINT. Then I guess our rules mean nothing, do they, if we can 
redefine them.
  I thank the Chair. I yield the floor.

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