[Congressional Record Volume 156, Number 122 (Monday, September 13, 2010)]
[Senate]
[Pages S7009-S7017]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                   Prevention and Public Health Fund

  Mr. HARKIN. Mr. President, I come to the floor today to discuss an 
amendment that Senator Johanns, from Nebraska, will be offering to the 
Small Business Jobs and Credit Act. The amendment to be offered by the 
Senator from Nebraska--a good friend of mine and a former Secretary of 
Agriculture--however, would effectively kill the prevention and public 
health fund that is in the Health Care Act. That would be a grave 
mistake.
  The prevention and public health fund was created by the Affordable 
Care Act that we passed earlier this year. On March 23, when President 
Obama signed that historic bill into law, our Nation made two giant 
strides forward. We ensured that all Americans, regardless of means, 
will have access to quality and affordable health care. We committed 
ourselves to transforming America's current ``sick care'' system into a 
true health care system. I have been saying for years that what we have 
in America is not a health care system, we have a ``sick care'' system. 
Once you get sick, you get care one way or the other--emergency room, 
Medicare, Medicaid, health insurance, whatever. But that is always the 
most expensive--waiting until someone gets sick, and then you help 
them. So I have often said that we have a sick care system. A true 
health care system would put emphasis on keeping someone healthy and 
out of the hospital in the first place.
  One of the most important elements of this transformational bill we 
passed this year--the health care reform bill--was the creation of the 
prevention and public health fund. For the first time in history, we 
have decided not just to pay lip service to wellness and prevention but 
to invest in prevention and wellness in a very robust way.
  We cannot wait any longer to make these investments. By dedicating 
resources to preventing obesity, diabetes, heart disease, and other 
very costly conditions and diseases, we have a tremendous opportunity 
to both improve the health of the American people and to restrain 
health care spending.
  As we can see from the chart I have here, prior to this prevention 
fund, for every dollar spent on health care, 75 cents went to treating 
patients with chronic diseases. During 2005, the United States spent 
almost $2 trillion on health care. For every $1 spent, 75 cents went 
toward ``sick care,'' treating people with chronic diseases. Only 4 
pennies went for prevention.
  This underinvestment in prevention has had devastating consequences. 
Chronic diseases are one of the main reasons health care costs have 
increased so dramatically over the past several decades.
  This chart shows what has happened since 1987. From 1987 to today, 
U.S. health spending has gone up to $628 billion. But of that increase, 
two-thirds of the increase, $211 billion, is due to chronic diseases--
two-thirds of the increase. That is an increase of $211 billion since 
1987 because of chronic diseases, most of which are preventable. Our 
investment in wellness and prevention can save millions of Americans 
needless suffering and early death. It can save countless billions of 
dollars in health care costs. Again, let's have a couple of examples 
here that I have on these charts.
  What is our return on investment? For every dollar spent on childhood 
immunizations, we save $16.50. For every dollar we spend on smoking 
cessation for pregnant women, we save $6. Overall, the return on 
chronic disease prevention, on community-based prevention interventions 
is basically about 5.6 to 1 to 6.2 to 1. These are community-based 
interventions.
  I will say it once and I will keep saying it: Not every preventive 
and wellness measure takes place in a doctor's office. Sometimes they 
take place in other places--where we work, where we go to school, where 
we live. We know now, based on the Trust for America's Health, that the 
return on total savings we would get after 5 years would be $16.5 
billion and 10 to 20 years, $18.5 billion, or a return on investment of 
5.6 dollars for every dollar we put in or 6.2 dollars over 10 to 20 
years.
  That is why funding these types of programs is crucial if we hope to 
slow the growth of health care costs in our country. We will not be 
able to accomplish this if we do not increase our investment in the 
programs that prevent the development of these costly chronic diseases. 
To this end, the new health reform law makes significant new 
investments in wellness, prevention, and public health. For example, it 
requires insurance companies to cover recommended preventive services 
with no copayments or deductibles. Think about that. You now go in, get 
recommended preventive services, no copayments, no deductibles. It also 
ensures seniors have access to free annual wellness visits and a free 
personalized prevention plan under Medicare.
  A critical feature of the new law we passed that I think is essential 
to a sustainable push for wellness is the new Prevention and Public 
Health Fund. As I said earlier, bear in mind that maintaining good 
health is much more than just visits to the doctor's office. Where 
Americans live, go to work, and go to school also has a profound impact 
on our health. That is why, among other things, the fund provides for 
community transformation grants to enable localities to tailor wellness 
and prevention programs to their specific needs and environment. In 
addition, it invests heavily in strengthening the primary care 
infrastructure, including training for physician assistants and nurse 
practitioners, who typically practice in small clinics. That is why for 
fiscal year 2010 the prevention fund dedicated $64 million to State 
public health departments to implement evidence-based prevention 
services.
  This is what we did. There is $64 million just for community and 
State prevention. We can see the others: primary care and public health 
workforce, $273 million; infrastructure, $70 million; obesity 
prevention, $16 million; tobacco prevention, and on and on. That is 
what we did in 2010. It also allocated, as I mentioned, $16 million for 
obesity prevention activities and $15 million for tobacco control 
programs. We also invested $70 million in our public health 
infrastructure.
  For fiscal year 2011, let's see where we go. For fiscal year 2011, 
here is where the public health fund has gone under the Senate 
Appropriations Committee: for community prevention, $270 million; 
chronic disease State grants, $140 million; tobacco prevention and

[[Page S7013]]

cessation, $100 million; public health infrastructure for disease 
surveillance, $84 million; prevention research, $50 million; community 
health worker demonstration project, $30 million. That is just to name 
a few of the investments.
  Given all the evidence we have--and we have a ton of evidence--
prevention saves us money in the long run, not to mention saving us 
from needless suffering and chronic diseases. Why now would we want to 
gut all of this? Why would we want to take all that away when we are 
trying to save money and keep people healthy? Why would we want to take 
all of that out? But that is exactly what the Johanns amendment does. 
The Johanns amendment would wipe all of that out--wipe it all out. It 
would deny any funding at all for prevention and wellness until 2018. 
For example, it takes away funding that keeps teens from starting 
smoking and all of the obesity avoidance and reduction programs we 
have. We know one of the biggest chronic illnesses facing us is the 
increasing rate of obesity among our young people. We know how to get a 
handle on that. We have good programs and evidence-based interventions 
to keep kids from getting obese or by getting them on track to reduce 
obesity. To gut all these programs is the same old penny wise, pound 
foolish, sick care system we have been laboring under for so many 
years. I thought we were going to move away from that. In fact, the 
prevention and wellness provisions of the health care bill we passed 
were some of the provisions that got strong support on both sides of 
the aisle.
  I know a lot of my Republican friends did not support the final bill. 
I understand that. But as we developed the bill in the HELP Committee 
and on the floor, the Prevention and Public Health Fund was widely 
supported. No one came after it. There were no amendments to gut it at 
that time. I think people on both sides of the aisle saw the wisdom, 
regardless of how one may have felt about other aspects of the health 
reform bill--I think every one agreed we have to do more in prevention 
and wellness and public health. For this reason, I say to my 
colleagues: Do not turn around now after we have done all this and gut 
the money to prevent chronic illnesses and diseases and keep people 
healthy. Do not gut that to put the money in the Johanns amendment.
  I am not alone in understanding the importance of this fund. Mr. 
President, I ask unanimous consent to have printed in the Record 
letters from a number of groups--everything from the American 
Association of People with Disabilities to the American Cancer Society, 
the American Heart Association, the Campaign for Tobacco-Free Kids, the 
National Association of Local Boards of Health, and the YMCA. More than 
200 organizations signed a letter to us stating that the 241 
undersigned organizations ``strongly urge you to oppose the use of the 
Prevention and Public Health Fund from the Affordable Care Act as an 
offset for an amendment offered by Senator Johanns. Such an action 
would virtually eliminate the Fund, and mark a severe blow to this 
monumental commitment to prevention and public health under the Act. . 
. .The Fund is a unique opportunity to truly bend the cost curve on 
health care spending. . . .We must ensure that we capitalize on the 
unprecedented opportunity to transform our public health system by 
investing in prevention and public health. We urge you to vote no on 
the prevention fund offset within the Johanns amendment, or any other 
such legislative vehicles.''
  I ask unanimous consent to have these letters printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              Partnership to Fight


                                              Chronic Disease,

                                               September 13, 2010.
     Hon. Harry Reid,
     Senate Majority Leader, U.S. Senate, Washington, DC.
     Hon. Tom Harkin,
     Chair, Senate Health, Education, Labor and Pensions 
         Committee, U.S. Senate, Washington, DC.
       Dear Senators Reid and Harkin: Good health is more than a 
     result of good medical care. Improvements in primary, 
     secondary, and tertiary prevention in settings outside the 
     medical system--at home, at work, at school, and in the 
     community--are essential to improving health in America and 
     lowering costs. The Affordable Care Act recognizes this and 
     created the Prevention and Public Health Fund (the Fund), 
     which is a key part of our national commitment to creating a 
     healthy America.
       Accordingly, we urge you to oppose any legislative 
     proposals that take money from the Fund to pay for the 
     proposal. Regardless of the merit of such proposals, the 
     Fund, its resources, and the commitment to health they 
     represent must remain inviolate.
       Chronic diseases--often preventable and highly manageable--
     drive health care spending and economic losses. Just the top 
     seven chronic conditions cost the U.S. $1.3 trillion each 
     year. Recently in Health Affairs, Harvard professor David 
     Williams, former CMS Director Mark McClellan, and former CBO 
     Director Alice Rivlin opined that creating a healthy America 
     is attainable. We share their view that attainment requires a 
     ``national commitment to the health and wellness of all 
     Americans.''
       The Partnership to Fight Chronic Disease is a national 
     coalition of more than 100 partner organizations committed to 
     supporting reforms to better prevent, detect, and manage the 
     nation's number one cause of death, disability and rising 
     health costs: chronic disease.
       Preventing and managing chronic diseases effectively 
     depends upon people engaging in healthy behaviors and having 
     access to preventive health care services, diagnostic 
     services that detect chronic disease early, and coordinated 
     care to manage chronic illness once detected. Assuring that 
     all Americans are empowered to make the changes needed to 
     improve their health--to avoid tobacco use, eat nutritiously, 
     engage in physical activity, get screened and seek care as 
     recommended, and follow through to manage and reduce health 
     risks--requires dedicated efforts.
       Unfortunately, we are trending in the other direction. 
     Among adults, one in three is obese. Obesity rates continue 
     to rise among young people, leading many to predict that the 
     next generation of Americans is likely to live shorter lives 
     than their parents. Obesity also drives up costs: the 
     doubling of obesity in the United States since 1987 accounts 
     for nearly 30 percent of the increase in health care 
     spending.
       The Fund also presents a tremendous opportunity to reduce 
     health disparities. Not everyone in America has an equal 
     likelihood of living a long and healthy life. Health status 
     varies by geographic location, gender, race/ethnicity, 
     education and income, and disability, among other factors. 
     Disparities are common, and among Americans with chronic 
     diseases, minorities are more likely to suffer poor health 
     outcomes. Disparities exist across the continuum of health 
     status--from preserving health by making healthy behavioral 
     choices to detecting and addressing health risks to managing 
     chronic conditions to avoid costly complications and 
     disability. The annual price tag of racial and ethnic 
     disparities in health alone is an estimated $309 billion.
       The potential returns on health improvement efforts 
     supported by the Fund are substantial. For example, the 
     Robert Wood Johnson Foundation estimates that if all 
     Americans enjoyed the same level of health as college 
     graduates, the benefit would amount to $1 trillion a year. A 
     model estimating the impact of a modest health status 
     improvement among Medicare beneficiaries projected a savings 
     of $65.2 billion a year or $652 billion of over 10 years. 
     Similarly, a study released by Trust for America's Health, 
     investments in effective community-focused programs to 
     increase physical activity, improve nutrition, and prevent 
     tobacco use have been estimated to generate a return of more 
     than $5 for each $1 invested--for an overall savings of $16 
     billion a year within five years.
       The Fund stands both as means to achieve a healthy America 
     and a symbol of the commitment to do so. We urge you to 
     preserve the resources allocated to the Fund by the 
     Affordable Care Act and oppose any legislative proposals 
     relying on resources from the Fund as pay-fors.
  Sincerely the undersigned PFCD partners and other interested 
organizations:
       Alzheimer's Foundation of America, American Academy of 
     Nursing, American Association of Cardiovascular and Pulmonary 
     Rehabilitation, American College of Preventive Medicine, 
     American Dietetic Association, American Sleep Apnea 
     Association, Association of Maternal & Child Health Programs, 
     Cleveland Clinic, Dialysis Patient Citizens, DMAA: The Care 
     Continuum Alliance, Easter Seals, GlaxoSmithKline, HealthCare 
     Institute of New Jersey, Healthcare Leadership Council, 
     Healthways, Life Science Vendors Alliance, The Milken 
     Institute, National Association of School Nurses, National 
     Association of Chronic Disease Directors, National Business 
     Coalition on Health, National Health Council, National 
     Hispanic Council on Aging, National Hispanic Medical 
     Association, National Latina Health Network, National Patient 
     Advocate Foundation, National Recreation and Park 
     Association, Partnership for Prevention, Prevent Blindness 
     America, South Jersey Pharmaceutical and Medical Technology 
     Industry Alliance, XLHealth, YMCA of the USA.
                                  ____

                                                September 2, 2010.
       Dear Senator: As the Senate considers the Small Business 
     Jobs and Credit Act (H.R. 5297), the 232 undersigned 
     organizations listed below strongly urge you to oppose the 
     use of the Prevention and Public Health Fund

[[Page S7014]]

     from the Affordable Care Act (ACA) as an offset for an 
     amendment offered by Senator Johanns (No. 4596). Such an 
     action would virtually eliminate the Fund, and mark a severe 
     blow to this monumental commitment to prevention and public 
     health under the Act. We will also oppose any other such 
     efforts to use the Fund as an offset.
       ACA included historic reforms that have the potential to 
     transform our health system. For too long, we have focused 
     spending on treating people once they are sick rather than 
     preventing illness in the first place. The Prevention and 
     Public Health Fund (Fund) is urgently needed to address the 
     many emerging health threats our country faces and the 
     persistent chronic disease rates that we must begin to 
     control. The Fund is intended to ensure a coordinated, 
     comprehensive, sustainable, and accountable approach to 
     improving our country's health outcomes through the most 
     effective prevention and public health programs.
       ACA clearly states that the money be used ``for programs 
     authorized by the Public Health Service Act, for prevention, 
     wellness, and public health activities.'' The money would be 
     strategically used to support disease prevention by promoting 
     access to vaccines, building the public health workforce, and 
     investing in community-based prevention. Furthermore, the Act 
     specifically states that community-based prevention funding 
     must only support evidence-based prevention programs which 
     have been shown through scientific research to reduce chronic 
     disease, including behavioral health conditions, and address 
     health disparities. Research has shown that effective 
     community level prevention activities focusing on nutrition, 
     physical activity and smoking cessation can reduce chronic 
     disease rates and have a significant return on investment.
       Already in Fiscal Year 2010, we have seen these funds 
     invested for programs to promote tobacco control and 
     implement tobacco cessation services and campaigns, as well 
     as obesity prevention, better nutrition and physical 
     activity. The fund has been invested to support state, local 
     and tribal public health efforts to advance health promotion 
     and disease prevention, and to build state and local capacity 
     to prevent, detect and respond to infectious disease 
     outbreaks. The funds are also being used to support the 
     training of current and next generation public health 
     professionals.
       The Fund is a unique opportunity to truly bend the cost 
     curve on health care spending. Seventy-five percent of all 
     health care costs in our country are spent on the treatment 
     of chronic diseases, many of which could be prevented. 
     Further, in a public opinion survey conducted just prior to 
     the passage of the Act, Trust for America's Health and the 
     Robert Wood Johnson Foundation (RWJF) found that 71 percent 
     of Americans favored an increased investment in disease 
     prevention and that disease prevention was one of the most 
     popular components of health reform.
       We must ensure that we capitalize on the unprecedented 
     opportunity to transform our public health system by 
     investing in prevention and public health. We urge you to 
     vote NO on the prevention fund offset within the Johanns 
     amendment, or on any other such legislative vehicles.
           Sincerely,
       AARP; ACCESS Women's Health Justice; Advocates for Better 
     Children's Diets; AIDS Action; AIDS Alabama; All Saints Home 
     Care; American Academy of Pediatrics; American Academy of 
     Physician Assistants; American Association for International 
     Aging; American Association of Colleges of Nursing; 
     American Association of Colleges of Osteopathic Medicine; 
     American Association of Colleges of Pharmacy; American 
     Association of People With Disabilities; American Cancer 
     Society Cancer Action Network; American College of 
     Clinical Pharmacy; American College of Gastroenterology; 
     American Congress of Obstetricians and Gynecologists; 
     American College of Occupational and Environmental 
     Medicine; American College of Preventive Medicine; 
     American Counseling Association.
       American Dental Education Association; American Diabetes 
     Association; American Federation of State, County and 
     Municipal Employees; American Foundation for Suicide 
     Prevention; American Heart Association; American Lung 
     Association; American Medical Student Association; American 
     Nurses Association; American Psychological Association; 
     American Public Health Association; American Social Health 
     Association; American Society for Gastrointestinal Endoscopy; 
     American Thoracic Society; Applied Research Center; Arthritis 
     Foundation; Asian and Pacific Islander American Health Forum; 
     Association of American Medical Colleges; Association of 
     Maternal & Child Health Programs; Association for Prevention 
     Teaching and Research; Association of Public Health 
     Laboratories; Association of Schools of Public Health.
       Association of State and Territorial Dental Directors; 
     Association of State and Territorial Directors of Nursing; 
     Association of State and Territorial Health Officials; 
     Association of Women's Health, Obstetric and Neonatal Nurses; 
     Atlanta Regional Health Forum; A World Fit for Kids!; Bazelon 
     Center for Mental Health Law; Boston Public Health 
     Commission; Building Healthier America; C3: Colorectal Cancer 
     Coalition; California Association of Alcohol and Drug Abuse 
     Counselors; California Center for Public Health Advocacy; 
     California Conference of Local Health Department Nursing 
     Directors; California Food Policy Advocates; California 
     Foundation for the Advancement of Addiction Professionals; 
     California Immigrant Policy Center; California Pan-Ethnic 
     Health Network; California Partnership; California School 
     Health Centers Association; Campaign for Community Change; 
     Campaign for Public Health.
       Campaign for Tobacco-Free Kids; CASA de Maryland; C-Change; 
     Center for Biosecurity, University of Pittsburgh Medical 
     Center; Center for Health Improvement; Center for Science in 
     the Public Interest; Cerebral Palsy Association of Ohio; 
     Children and Adults with Attention-Deficit/Hyperactivity 
     Disorder; Children Now; Children's Dental Health Project; 
     City of Philadelphia Department of Public Health; Coalition 
     for Health Services Research; Coalition for Humane Immigrant 
     Rights of LA; Colon Cancer Alliance; Colorado Progressive 
     Coalition; Commissioned Officers Association of the U.S. 
     Public Health Service; CommonHealth ACTION; Community Action 
     Partnership; Community Catalyst; Community Health Councils.
       Community Health Partnership: Oregon's Public Health 
     Institute; Comprehensive Health Education 
     Foundation; Connecticut Certification Board; Connecticut 
     Citizen Action Group; Council of State and Territorial 
     Epidemiologists; County Health Executives Association of 
     California; Crohn's and Colitis Foundation of America; 
     Defeat Diabetes Fund; Digestive Disease National 
     Coalition; Faith Action for Community Equity; Family 
     Voices; Federation of Associations in Behavioral & Brain 
     Sciences; First Five; Friends of AHRQ; Friends of NCHS; 
     Friends of SAMHSA; Georgia AIDS Coalition; Granite State 
     Organizing Project; Grassroots Organizing; Harlem United 
     Community AIDS Center, Inc.
       Having Our Say Coalition; Health Care for America Now; 
     Health Law Advocates of Louisiana, Inc.; Health Promotion 
     Advocates; Health Rights Organizing Project; Hepatitis 
     Foundation International; HIV Medicine Association; Home 
     Safety Council; Idaho Community Action Network; Indian 
     People's Action; Infectious Diseases Society of America; 
     Institute for Health and Productivity Studies; Rollins School 
     of Public Health, Emory University; Institute for Public 
     Health Innovation; International Certification and 
     Reciprocity Consortium (IC&RC); International Health, Racquet 
     & Sportsclub Association; Interstitial Cystitis Association; 
     ISAIAH; JWCH Institute, Inc.; Korean Resource Center; 
     Libreria del Pueblo Inc.
       Louisiana Public Health Institute; Mahoning Valley 
     Organizing Collaborative; Main Street Alliance; Maine 
     People's Alliance; Make the Road New York; March of Dimes 
     Foundation; Maricopa County Dept. of Public Health; Media 
     Policy Center; Mental Health America; Michigan Association 
     for Local Public Health; Montana Organizing Project; National 
     Alliance of State and Territorial AIDS Directors; National 
     Assembly on School-Based Health Care; National Association 
     for Public Health Statistics and Information Systems; 
     National Association of Chain Drug Stores; National 
     Association of Children's Hospitals; National Association of 
     Chronic Disease Directors; National Association of Community 
     Health Centers; National Association of Counties; National 
     Association of County & City Health Officials.
       National Association of Local Boards of Health; National 
     Association of Public Hospitals and Health Systems; National 
     Association of School Nurses; National Association of State 
     Alcohol and Drug Abuse Directors; National Association of 
     State Mental Health Program Directors; National Business 
     Coalition on Health; National Coalition for LGBT Health; 
     National Coalition of STD Directors; National Council of 
     Asian Pacific Islander Physicians; National Council of Jewish 
     Women; National Council of La Raza; National Education 
     Association; National Environmental Health Association; 
     National Family Planning & Reproductive Health Association; 
     National Federation of Families for Children's Mental Health; 
     National Forum for Heart Disease and Stroke Prevention; 
     National Health Council; National Indian Project Center; 
     Northeast Ohio Alliance for Hope; National Korean American 
     Service and Education Consortium.
       National Network of Public Health Institutes; National 
     Nursing Centers Consortium; National Recreation and Park 
     Association; National Rural Health Association; National WIC 
     Association; Nebraska Appleseed; Nebraska Urban Indian 
     Health Coalition Nemours; New Hampshire Public Health 
     Association; NYC Department of Health and Mental Hygiene; 
     New York Immigration Coalition; New York Society for 
     Gastrointestinal Endoscopy; North Carolina Fair Share; 
     Northern Illinois Public Health Consortium; Northwest 
     Federation of Community Organizations; Novo Nordisk; NYU 
     Langone Medical Center; Ocean State Action; Ohio Alliance 
     for Retired Americans; Oregon Action.
       Out of Many, One; Papa Ola Lokahi; Partners for a Healthy 
     Nevada; Partnership for Prevention; Physician Assistant 
     Education Association; Planned Parenthood Federation of 
     America; Prevention Institute; Progress Ohio; Progressive 
     Leadership Association of Nevada; Project Inform; Public 
     Health Association of Nebraska; Public Health Foundation; 
     Public Health Institute; Public Health Law and Policy; Public 
     Health-Monroe County (MI); Public Health--Seattle and King 
     County; Public Health Solutions; Pulmonary Hypertension 
     Association; Rails-to-Trails Conservancy; REACH U.S. 
     SouthEastern African American Center of Excellence for 
     Elimination of Disparities (REACH U.S. SEA-CEED).

[[Page S7015]]

       RiverStone Health; Safe States Alliance; Service Employees 
     International Union; Sexuality Information and Education 
     Council of the U.S.; Society for Adolescent Health and 
     Medicine; Society for Healthcare Epidemiology of America; 
     Society for Public Health Education; South Carolina Fair 
     Share; Summit Health Institute for Research and Education, 
     Inc.; TakeAction Minnesota; Tenants and Workers United; Thai 
     Health and Information Services, Inc.; The AIDS Institute; 
     The Amos Project; The Community Heart Health Coalition of 
     Ulster County; The Greenlining Institute; The MetroHealth 
     System; The National Alliance to Advance Adolescent Health; 
     Toledo Area Jobs with Justice; Trust for America's Health.
       UHCAN Ohio; United Action Connecticut; United Ostomy 
     Associations of America; Urban Coalition for HIV/AIDS 
     Prevention Services; U.S. PIRG; Virginia Organizing Project; 
     Washington Health Foundation; West South Dakota Native 
     American Organizing Project; WomenHeart: The National 
     Coalition for Women with Heart Disease; YMCA of the USA.

  Mr. HARKIN. Mr. President, I am sympathetic, I must admit, to the 
broader aims of the Johanns amendment. On a bipartisan basis, Senators 
want to change the information reporting rules for small businesses 
under the health reform law. But the $19.2 billion cost of the Johanns 
amendment is excessive. Moreover, to pay for it by slashing funds from 
wellness and prevention, by gutting this whole program until 2018, is 
deeply misguided. It perpetuates the disastrous notion that we can 
neglect and defund prevention efforts without paying huge long-term 
costs in terms of unnecessary chronic disease and disability and 
skyrocketing health insurance premiums.
  The purpose of the reporting requirement Senator Johanns is going 
after is to prevent fraud where many businesses may lie about the 
income they receive, thereby not paying their taxes. What does that 
mean? It just shifts taxes to the people who are honest and the 
businesses that are honest. Where the IRS has complete information on 
incomes such as salaries, which are covered by W-2 reports, compliance 
is 99 percent. But where there is no reporting, we see the reporting of 
income fall in half in some of the business categories.
  I support the alternative amendment offered by Senator Bill Nelson. 
It provides a balance regarding the reporting requirement. His 
amendment completely eliminates any reporting burden on the great 
majority of small businesses--those with fewer than 25 employees at any 
given point in a year. But the most important point is that the Nelson 
amendment does not take money away from the Prevention and Public 
Health Fund.
  While I appreciate the need to keep paperwork down, I also appreciate 
the need to prevent tax fraud which results in everyone else paying for 
the lost tax dollars. The Nelson amendment does preserve the reporting 
requirement for transactions over $5,000 for larger companies. I think 
very sensibly, the Nelson amendment pays for this lost revenue from 
less rigorous reporting requirements by repealing completely 
unnecessary tax breaks for the largest five oil companies--much better 
there than taking the money out of the Prevention and Public Health 
Fund.
  A long time ago, Ben Franklin taught us that an ounce of prevention 
is worth a pound of cure. The Johanns amendment is an attack on that 
principle, an attack to turn the clock back to say we are going to 
continue a sick care system in America rather than truly transforming 
our system to a health care system.
  I ask my colleagues to vote down the Johanns amendment and to vote 
for the Nelson amendment which accomplishes basically the same thing in 
a more balanced way. But the Nelson amendment does not do anything to 
gut the Prevention and Public Health Fund which we labored so hard to 
put in the health reform bill and which, as I said before, has been so 
supported on both sides of the aisle.
  Mr. President, I yield the floor, and 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. HARKIN. 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. HARKIN. Mr. President, I ask unanimous consent that any time used 
on the Senate floor during quorum calls be divided equally between both 
sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. 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. KYL. 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. KYL. Mr. President, I want to speak on the nomination of Jane 
Stranch--a vote we will be taking here in about 45 minutes--nominated 
to the Sixth Circuit Court of Appeals.
  It is always with a great deal of reluctance that I oppose a nominee 
for the bench. Most of the people who are nominated are nominally 
qualified, in that they have records as attorneys or sometimes as 
judges in lower courts, have recommendations from bar associations and 
the like. But occasionally it is necessary to oppose a nominee. And 
while I certainly acknowledge that Jane Stranch has the qualifications 
one would expect of a nominee for a court of this significance, I 
oppose her nomination because of a very troubling development that I 
see in several nominations.
  At some point I think it is important to draw the line and say that 
the President has got to be very careful not to nominate people who 
have--and in this case who have not--taken, in my view, a strong enough 
position against applying foreign law to interpret the American 
Constitution or to interpret American laws that apply to cases before 
them. We have seen this before in nominees, in then-Judge Sonia 
Sotomayor. When she had her Supreme Court hearing, several of us on 
this side of the aisle raised the question with respect to her position 
on foreign law. In many respects she said: Don't worry, I won't apply 
foreign law. Then in one of the cases in her first term as a Supreme 
Court Justice she did exactly that.
  We have raised the same question with regard to people such as Harold 
Koh and others. I want to quote one statement Ms. Stranch made to 
illustrate the point I am trying to make. At some point, unless Members 
vote against nominees who appear to take these positions, I suspect the 
President will keep on nominating people with these views and then 
wonder why we oppose them. So I am going to be clear about why I oppose 
this nominee, even though I am sure many of her other qualifications 
are fine. She said this regarding cases where foreign law was used:

       In these few cases, references to foreign law were made for 
     such purposes as extrapolating on societal norms and 
     standards of decency, refuting contrary assertions, or 
     confirming American views. Roper [a Supreme Court case] 
     specifically noted that the foreign law references were ``not 
     controlling'' and were presented for the purpose of 
     confirmation of the Court's conclusions.

  The problem with that statement--and while I appreciate the fact that 
she says foreign law is not controlling--is that the reality is foreign 
law has no place in the interpretation of the American Constitution and 
yet the Court continues to do that, with Justices continually saying it 
isn't controlling. If it is not controlling, why do it? Courts are 
supposed to look at precedent. What is precedent? Precedent is law that 
controls the case. There is no point in going outside of that and 
bringing in extraneous material. If it is not controlling, it is 
extraneous. If it is extraneous, it is redundant. Why bring it in?
  I appreciate her recognition that foreign law is not controlling, but 
interpreting the Constitution doesn't require the application of 
foreign law to develop material on societal norms or standards of 
decency or to refute contrary assertions, and it doesn't have any 
relevance in even confirming American views, as she said in her 
statement. If the American view of the Constitution is X, let's say, 
then it is X. That is the American view. And if it is agreed to by 
other countries, that is fine. If it is not, it is not the judge's 
business to inquire into it and wonder why it does agree or does not 
agree with the American view.
  I think that until enough of us register the view that we are not 
going to vote for judges who subscribe to the

[[Page S7016]]

views Jane Stranch has articulated, as I said, I suspect the President 
will simply continue to nominate those individuals, and that is 
something I think the majority of us--certainly the majority of 
Americans--would object to.
  Again, I regret having to express my opposition to this nominee, but 
in order to render my objection to the kind of jurisprudence they 
mentioned, the only way I can do that, I gather, is to vote no, which 
is what I intend to do.
  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.
  Mrs. HUTCHISON. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. HUTCHISON. I thank the Chair.
  (The remarks of Mrs. Hutchison pertaining to the introduction of S. 
3768 are located in today's Record under ``Statements on Introduced 
Bills and Joint Resolutions.'')
  Mrs. HUTCHISON. I yield the floor and suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. 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. CORNYN. Mr. President, I will vote against the nomination of Jane 
Stranch to the Sixth Circuit Court of Appeals. While several aspects of 
Ms. Stranch's record concern me, I will be voting no primarily because 
of Ms. Stranch's responses during her nomination process that 
demonstrate that it is proper for American judges to rely on 
contemporary foreign or international law in interpreting the U.S. 
Constitution.
  Reliance on contemporary foreign law to interpret our Constitution 
undermines democracy, American sovereignty, and the rule of law. In 
American democracy, the people are sovereign. The Constitution was 
``ordained and established'' by ``We the People of the United States.'' 
As Chief Justice Marshall explained in McCulloch v. Maryland, ``[t]he 
government proceeds directly from the people'' and is established ``in 
the name of the people.'' When judges look to foreign nations to find 
new limitations on what laws the American people can enact through 
their elected representatives, they undermine democracy and make the 
will of the American people subservient to the opinions of foreign 
judges. Furthermore, because there are so many sources of foreign law 
available in the world, judges often pick and choose foreign citations 
that correspond with their own personal politics, preferences, and 
feelings in an effort to create the illusion that the judges' personal 
political agenda are somehow mandated by law.
  Under our Constitution, the people's right to govern themselves and 
make laws through their elected representatives is limited only by the 
Constitution itself, not by the opinions of foreign judges. In recent 
years, however, some judges have looked to foreign nations to strike 
down democratically enacted laws. For example, in Roper v. Simmons, the 
Supreme Court ruled that legislatures cannot impose capital punishment 
for heinous crimes committed by individuals under the age of 18. 
Justice Kennedy's majority opinion emphasized the ``weight of 
international opinion'' and cited the United Nations Convention on the 
Rights of the Child, among other sources. Just this year, in Graham v. 
Florida, the Supreme Court relied on ``the overwhelming weight of 
international opinion'' to find that life sentences are 
unconstitutional for juvenile criminals who commit crimes other than 
homicide.
  This trend of American judges overruling the will of the American 
people in favor of the opinions of foreign judges is worrisome. I was 
therefore disappointed in Ms. Stranch's statements to the Judiciary 
Committee that seem to endorse this practice. Specifically, Ms. Stranch 
took the position that American judges may use foreign law in their 
opinions ``for such purposes as extrapolating on societal norms and 
standards of decency, refuting contrary assertions or confirming 
American views.'' She actually praised the Supreme Court for what she 
called its ``restraint'' in citing foreign law, and argued that the 
Supreme Court's recent use of foreign law in cases such as Roper and 
Graham should be a ``model for the lower courts.'' This is a very 
troubling view.
  The Supreme Court's increasing reliance on the opinions of 
contemporary foreign judges has not been restrained, and should not be 
a model for American judges. Rather, American judges interpreting the 
U.S. Constitution should constrain themselves to interpreting the text 
and meaning of that document alone. Because Ms. Stranch's answers 
indicate that she will rely on foreign law as a pretense for imposing 
her personal political beliefs on the American people, and because 
reliance on contemporary foreign law in interpreting the U.S. 
Constitution threatens democracy, American sovereignty, and the rule of 
law, I will vote no on this nomination.
  Mr. LEAHY. Mr. President, at most there is only a minute remaining so 
I yield back all time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I ask for the yeas and nays on the 
nomination.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Jane Branstetter Stranch, of Tennessee, to be United States Circuit 
Judge for the Sixth Circuit?
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Montana (Mr. Baucus), 
the Senator from Indiana ( Mr. Bayh), the Senator from Maryland (Ms. 
Mikulski), and the Senator from Colorado (Mr. Udall) are necessarily 
absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Kansas (Mr. Brownback), the Senator from Wyoming (Mr. Enzi), the 
Senator from New Hampshire (Mr. Gregg), and the Senator from Alaska 
(Ms. Murkowski).
  The PRESIDING OFFICER (Mrs. Shaheen). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 71, nays 21, as follows:

                      [Rollcall Vote No. 230 Ex.]

                                YEAS--71

     Akaka
     Alexander
     Begich
     Bennet
     Bennett
     Bingaman
     Boxer
     Brown (MA)
     Brown (OH)
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Cochran
     Collins
     Conrad
     Corker
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Goodwin
     Graham
     Hagan
     Harkin
     Hatch
     Inouye
     Johanns
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     LeMieux
     Levin
     Lieberman
     Lincoln
     Lugar
     McCain
     McCaskill
     Menendez
     Merkley
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Tester
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--21

     Barrasso
     Bond
     Bunning
     Burr
     Chambliss
     Coburn
     Cornyn
     Crapo
     DeMint
     Ensign
     Grassley
     Hutchison
     Inhofe
     Isakson
     Kyl
     McConnell
     Risch
     Roberts
     Thune
     Vitter
     Wicker

                             NOT VOTING--8

     Baucus
     Bayh
     Brownback
     Enzi
     Gregg
     Mikulski
     Murkowski
     Udall (CO)
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table. The President 
will be immediately notified of the Senate's action, and the Senate 
will resume legislative session.


                            Vote Explanation

 Mr. BAUCUS. Madam President, I was necessarily absent from the 
Senate on Monday, September 13, 2010, because I was holding the Montana 
Economic Development Summit in Butte, MT. Had I been present, I would 
have voted yes on the nomination of Jane Stranch, of Tennessee, to be 
U.S. Circuit Judge for the Sixth Circuit.

[[Page S7017]]

  Mr. UDALL of Colorado. Madam President, due to ongoing efforts to 
address the impacts of one of the most destructive Colorado fires in 
decades, I was unable to cast a vote for rollcall No. 230, the 
nomination of Jane Branstetter Stranch to be United States Circuit 
Judge for the United States Court of Appeals for the Sixth Circuit. Had 
I been present, I would have voted ``yea'' to confirm the nominee.
  Mr. BROWN of Ohio. Madam President, I ask unanimous consent that the 
Senate proceed to morning business, with Senators permitted to speak 
therein for up to 10 minutes each.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________