[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.
____________________