[Congressional Record Volume 157, Number 41 (Thursday, March 17, 2011)]
[Senate]
[Pages S1776-S1778]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              HEALTH CARE

  Mr. KYL. Mr. President, as three of my colleagues have already noted 
this morning, President Obama's health care law turns 1 next week, and 
in my view it hasn't been aging very well.
  On the eve of its 1-year anniversary, I too would like to review a 
few key developments related to the law and its implementation and note 
that, at least to me, it is very clear this bill has not become more 
popular with Americans but decreasingly popular.
  Let us go back to March 23, 2010, just about 1 year ago. That is when 
the President signed this health care bill into law. Later, that very 
day, 13 States filed a lawsuit against it in a Florida Federal court. 
Another 13 States have joined the suit since. In addition, Virginia 
filed its own separate lawsuit on the day of enactment.
  May 11, 2010. The nonpartisan Congressional Budget Office revised 
upward its cost estimate of ObamaCare. According to the CBO, ObamaCare 
will cost $115 million more than originally estimated, pushing the cost 
of the program to over $1 trillion.
  June 2010. With public opinion still decidedly against the law, a 
poll at that time found that 58 percent of Americans supported repeal. 
The Department of Health and Human Services launched a public relations 
campaign to try to change people's minds. Many seniors received a 
pamphlet from HHS Secretary Kathleen Sebelius that made claims such as:

       Your guaranteed Medicare benefits won't change--whether you 
     get them through original Medicare or a Medicare Advantage 
     plan.

  But, of course, the pamphlet failed to mention the fact that the law 
cuts Medicare Advantage plans by $202 billion over 10 years, meaning 
higher premiums, less benefits, and fewer plan choices for seniors. The 
CBO estimates that the extra benefits currently provided by Medicare 
Advantage plans will be cut in half.
  July 11, 2010. President Obama used a recess appointment to name 
Donald Berwick as Administrator of the Centers for Medicare and 
Medicaid Services, an agency that will play a critical role in the 
implementation of ObamaCare. The President used this procedure in an 
attempt to bypass the regular confirmation process before the Senate 
had held a hearing or voted on the nominee. The recess appointment 
allows Dr. Berwick to run the Centers for Medicare and Medicaid 
Services through the end of this year.
  A hearing would have given Senators the opportunity to question Dr. 
Berwick about his very controversial views, including his espousal of 
health care rationing. He has, for example, praised the British 
national health care system, which routinely denies and rations care, 
as ``extremely effective'' and ``conscientious.''
  On September 24, 2010, the Department of Health and Human Services 
issued its first waiver of ObamaCare provisions dealing with the 
limited benefit or mini-med plans. Since then, a total of 1,040 waivers 
have been granted, many to the administration's favored political 
constituencies. It seems as though they like the law as long as it 
doesn't apply to them.
  December 13, 2010. A Federal district court judge in Virginia ruled 
that the law's mandate that individuals purchase government-approved 
health insurance is unconstitutional.
  January 19 of this year. The House of Representatives voted 245 to 
189 to repeal ObamaCare.
  January 25, 2011. My Governor, Jan Brewer of Arizona, asked Secretary 
Sebelius to waive the maintenance-of-effort provision in the health 
care law. That is the provision that forces an unfunded Medicaid 
mandate on States by denying them the flexibility, the full ability to 
manage their own Medicaid Programs to fit their own budgets and their 
own unique Medicaid populations. This is a huge problem because 
Arizona, along with most other States, is experiencing a dire budget 
crisis.
  January 26, 2011. Medicare Chief Actuary Richard Foster testified 
before the House Budget Committee. He acknowledged to the committee 
that President Obama's promise that Americans will get to keep their 
coverage if they like it is ``not true in all cases.''
  January 31, 2011. Judge Roger Vinson, a Federal district court judge 
in Florida, ruled that the individual mandate in the law is 
unconstitutional and he invalidated the entire law. He concluded the 
law's requirement to buy insurance or pay a fee:

       . . . is outside Congress' Commerce Clause power, and it 
     cannot be otherwise authorized by an assertion of power under 
     the Necessary and Proper Clause. It is not constitutional.

  He also writes:

       It is difficult to imagine that a nation which began, at 
     least in part, as the result of opposition to a British 
     mandate giving the East India Company a monopoly and imposing 
     a nominal tax on all tea sold in America, would have set out 
     to create a government with the power to force people to 
     buy the tea in the first place. Surely this is not what 
     the Founding Fathers could have intended.

  On February 2 of this year, on the Senate vote to repeal the law, it 
failed on a party-line vote, 47 to 51. So the Senate did not follow the 
path of the House of Representatives to repeal ObamaCare.
  On February 14, Valentines Day, the IRS submitted to Congress its 
fiscal year 2012 budget request. The health care bill is mentioned by 
the IRS more than 250 times. The IRS will have to hire thousands of new 
workers to implement the many new tax provisions. As the request noted, 
the health care law:

       . . . presents a major challenge for the IRS. It represents 
     the largest set of tax law changes in 20 years, with more 
     than 40 provisions to amend the tax laws.

  Just to remind my colleagues and our constituents throughout this 
country, the health care law has more than 40 provisions, the largest 
set of tax law changes in 20 years.
  February 22 of this year. A Clinton-appointed Federal judge ruled 
that ObamaCare is constitutional because the Constitution somehow 
permits the Federal Government to regulate what the court called 
``mental activity.''
  So much for keeping your thoughts to yourself.
  On March 3, 2011, at the request of the Obama administration, a 
Federal judge in Florida, the Federal judge who had previously ruled 
that ObamaCare is unconstitutional, clarified his ruling and noted his 
continuing concern with the fact that if the law is upheld, he says, 
``Congress could, indeed, mandate that everyone buy broccoli.''
  I think the first President Bush would have a real problem with that 
mandate.
  March 14, 2011, just 3 days ago. The latest Rasmussen poll shows that 
support for repeal of the health care law has reached its highest level 
since May of 2010, with 62 percent of likely voters now favoring 
repeal.
  That is what we should do. These developments highlight just some of 
the reasons why the bill is so unpopular and so deeply flawed that the 
American people agree it should be repealed and it should be replaced 
with more sensible ideas.
  The debate on the health care law will no doubt continue throughout 
this year, especially now that two Federal courts have already ruled it 
is unconstitutional. It would be best if we could stay the law until 
the Supreme Court rules on its constitutionality. States and businesses 
could save a great deal of money, and insurance companies wouldn't have 
to raise their rates. We will have a chance, I hope, to vote on such a 
proposal.
  Some things age well with time--not ObamaCare.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from South Dakota.
  Mr. THUNE. Mr. President, I rise also to speak to the issue of the 
health care reform bill, which my colleague from Arizona has pointed 
out is now seeing its 1-year anniversary. I think it is good to put in 
perspective the issues most Americans care about.
  As I travel my State of South Dakota and elsewhere in this country, I 
hear repeatedly what most Americans think we ought to be focused on 
right now in Washington, DC; that is, the economy, job creation, 
spending, and debt. They believe those are the issues that are most 
important. I think the public

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opinion polls reflect that. If we look at any public opinion poll 
today, generally, they are in that order: It will be jobs, the economy, 
spending, and debt.
  As I look at what this health care bill has done--and use the metric 
of jobs and the economy and spending and debt and look at it on the 1-
year anniversary--I think we would have to say this has been a major 
failure in terms of speaking to or addressing the issues the American 
people care the most about.
  On the issue of jobs and the economy, there were lots of statements 
made about this when it was passed; that it was going to create lots of 
jobs. The former Speaker of the House, Nancy Pelosi, said, in its life, 
the health care bill will create 4 million jobs; 400,000 jobs almost 
immediately. Yet we have the CBO Director recently testifying that the 
new law will reduce employment over the next decade by 800,000 jobs.
  So we have a piece of legislation that is going to, according to the 
CBO, cost us jobs in the economy. Couple that with the fact that it 
will raise taxes, and raise taxes dramatically on the economy, by $\1/
2\ trillion in the first 10 years, $1 trillion dollars when it is fully 
implemented, and we see that businesses will pass those costs on to the 
people in this country who buy things--consumers--and, obviously, it 
leads to higher costs for a lot of these items.
  It leads to higher health care costs because most of those taxes were 
imposed upon health insurance companies, on pharmaceutical companies 
and on medical device manufacturers and many of those costs are being 
passed on. One would have to argue very hard to suggest that any kind 
of a tax increase is going to create more jobs. In fact, historically, 
it is very clear that any time we raise taxes, it actually costs the 
economy jobs.
  So we have the CBO Director talking about the loss of jobs, we have 
the fact that we have some massive tax increases in this legislation 
that will cost us jobs, and we also drive up the cost of doing business 
in this country because we are increasing the cost of health care for a 
lot of small businesses that are trying to provide coverage to their 
employees.
  What we have seen consistently is an argument from the other side 
that this was going to drive down the cost of health care. Yet, again, 
the facts tell an entirely different story.
  There was a statement made by the President: Reform will lower the 
cost of health care for our families, our businesses, and our 
government. Again, the Chief Actuary at the Centers for Medicare and 
Medicaid Services estimates the law will increase costs by $311 billion 
in the first 10 years alone, over and above normal inflation. CBO, the 
Congressional Budget Office, estimates the new law will increase health 
care spending by the Federal Government by $464 billion over the next 
decade. CBO estimates when it is fully implemented, the law will 
increase insurance premiums on a family policy by an average of $2,100 
per year--increased costs of health insurance for employers and 
employees, which is going to cost the economy jobs. It drives up the 
cost of doing business in this country. All these factors in this 
health care legislation contribute to a loss of jobs because they make 
it more expensive for small businesses in this country.
  If you use the metric of job creation and how this legislation 
impacts the economy, I think you would have to describe it as a major 
failure. The American people determine what is important. They have 
decided, and rightly so, when you have as high unemployment as we have 
in this country today, job creation should be the No. 1 priority of 
their policymakers in Washington, DC. In fact, we should be looking at 
policies that will be conducive to job creation, not policies that will 
inhibit job creation. The massive health care law that was passed last 
year will have exactly the opposite effect we should be striving for 
when it comes to jobs. We ought to be looking for policies that will 
create jobs. This actually will cost the economy jobs. You have the 
metric of job creation. If you measure the health care bill against 
that a year later, I think you would have to say it was a complete 
failure.
  The issues I mentioned that also bear on what is important to 
Americans today, spending and debt--how does health care legislation 
stack up against those criteria? First, with regard to spending, we all 
know by now that when it is fully implemented this new health care 
legislation will cost $2.6 trillion, a $2.6 trillion expansion of 
government--literally the largest expansion of the Federal Government 
in the last half century. You would have to go back to the 1960s to 
find a time that you see the government expand at the rate we have seen 
in the last 2 years alone, and that is reflected in the debt and 
deficit figures over the last 2 years.
  Since President Obama took office, the debt in this country has grown 
by over $3 trillion. In fact, if the budget he presented is 
implemented, that total debt will double by the end of the next decade. 
If you take a $14 trillion gross debt, almost $14 trillion--which is 
where it is today--if the President's budget is implemented you would 
see that debt double over the course of the next decade to over $26 
trillion.
  You have massive amounts of borrowing, massive amounts of debt, 
massive amounts of new spending and tax increases, all of which create 
an environment in which it is going to be very difficult for our 
economy and for the job creators to create jobs. But you have grown 
significantly the size of government.
  How about the issue, as I said earlier, of debt? We talk a lot about 
the $14 trillion gross debt we have today. We have a lot of research 
out there that suggests when you are carrying that kind of debt load, 
if you sustain it over any amount of time it is going to cost you a 
significant amount of economic growth. In fact, there is a good body of 
research out there that suggests when you have a gross debt-to-GDP 
ratio of 90 percent or higher, which is where we are today, it costs 
you about 1 percent a year.
  The President's former economic advisor, Christina Romer, said 
anytime you lose a percentage point of economic growth it costs you a 
million jobs. If we are losing, because of this high level of debt, a 
percentage point of economic growth every year, we are losing a million 
jobs every year as a result of that as well.
  How does the whole health care debate bear on this issue of debt in 
the long term? I think it is important, again, to point out that many 
of the things that were put into this bill, that were designed to be 
used as offsets to pay for the bill, end up in the outyears adding 
massively to the deficit. I will use a good example of that, the CLASS 
Act, a new long-term care entitlement program which was put into this 
bill. At the time it was being debated it was actually described by the 
chairman of the Budget Committee, the Democratic chairman, as a Ponzi 
scheme of the highest order, something Bernie Madoff would be proud of. 
That is how the CLASS Act was described. That particular act, and its 
creation, was used as a $70 billion offset to pay for the new massive 
health care entitlement program.
  What is going to happen, and we are finding out now more and more 
about this, is that particular program, although it generates some 
revenue in the early years, runs huge deficits when you get into the 
outyears because of the way the program is structured, because of 
adverse selection. Because of the way the program was designed in the 
first place you start adding massively to deficits in the outyears. 
Secretary Sebelius, at the Department of Health and Human Services, 
admitted to me in answer to a question at the Senate Finance Committee, 
that the CLASS Act program is ``totally unsustainable.''
  During yesterday's Finance Committee hearing I asked the question 
about whether there was actuarial modeling done prior to the law's 
passage so that Democrats and Health and Human Services would have 
known how bad this program is, and she would not respond to or answer 
that question.
  I asked Chairman Conrad, the chairman of the Senate Budget Committee, 
for a hearing to look at these actuarial models that Health and Human 
Services has developed to analyze the CLASS Act. Why has she come to 
the conclusion that it is totally unsustainable when many of us knew 
that in advance? In fact, that is what CBO, the Congressional Budget 
Office, was saying in advance.
  We have created these new entitlement programs that are going to lead

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massively to higher deficits and more debt well into the future, the 
CLASS Act being one example of that. I suggest as well that when you 
create a $2.6 trillion new entitlement program, if history is any 
indication, that would dramatically understate what the true costs are. 
We have seen that historically, that whatever the estimates are about 
some of these new government programs, they are significantly less than 
what was estimated when they were created in the first place.
  I would argue on the issue of how the new health care bill on its 
first anniversary impacts the issue of debt, we are not going to know 
probably for some time but I think we can get a pretty clear idea that 
this is going to lead to much higher deficits and much higher debt in 
the outyears because of the statement the Congressional Budget Office 
and the CMS Actuary and even now the Secretary of Health and Human 
Services are saying with regard to programs such as the CLASS Act--
which was created under this bill.
  I think the other reason you are going to see the debt and deficit 
explode is because of the gimmicks that were used by the Democrats to 
finance the health care bill. I mentioned the CLASS Act was one of 
those, but there were a number of other gimmicks that were used as 
well. There was the Medicare payroll tax increases, the Medicare cuts 
that are supposed to occur under this to pay for the new health care 
entitlement program. It was also indicated at that time they were going 
to extend the lifespan of Medicare. Essentially, what happened is the 
same revenues were spent twice; they were double counted. In other 
words, there was new revenue going to come into the Medicare trust fund 
because of increased payroll taxes and because of the reductions in 
spending in those Medicare accounts that allegedly would create a 
credit for the Medicare trust fund. Unfortunately, all those new 
revenues are going to be used to finance this new health care 
entitlement program.
  Somewhere down the road, when the time comes to pay the bills of 
Medicare, you are going to have to borrow money to do that because of 
the way these gimmicks were used and the way the double counting was 
used, not only to credit the Medicare trust fund but also to use it as 
an offset for the new health care entitlement program.

  If you look at the actual numbers it is somewhere on the order of 
$400 billion that was double counted in the Medicare trust fund and 
about $30 billion, I believe, was the number on the Social Security 
trust fund. For these gimmicks, the chickens are going to come home to 
roost at some point in the future and it is going to lead to 
significantly larger deficits and a much higher debt than we are 
looking at today, than what was contemplated when the legislation was 
passed in the first place.
  Whether it is the gimmicks that were used, whether it is these new 
entitlement programs such as the CLASS Act, whether it is the actual 
cost--even estimated cost of $2.6 trillion in new expansion of 
government, whether it is the loss of jobs associated with the higher 
taxes, the higher health care premiums in this legislation, if you are 
going to evaluate it based upon the issues that are most important to 
the American people--and that is the economy, jobs, spending, and 
debt--on the first anniversary of this health care reform legislation, 
this has been already a huge failure by any objective measurement. My 
guess is before this is all said and done we are going to continue to 
see more and more of our employers having to drop their coverage, 
perhaps pay the penalty rather than continue to provide coverage for 
their employees, and push them into the government program.
  I think you are going to see more and more government control, more 
and more influence and intervention of the Federal Government, more and 
more cost to taxpayers, and higher and higher health care costs for 
small businesses and for families and for individuals in this country. 
On the first year anniversary of this legislation, I think the best 
thing Congress could do would be to repeal it and start over with 
commonsense health care reforms that will actually reduce the cost of 
health care, that will be fiscally responsible, that will not break the 
bank, and that will help get us on a path where we can create jobs and 
get the economy growing again rather than inhibiting that.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Illinois.
  Mr. DURBIN. Mr. President, we are in morning business?
  The ACTING PRESIDENT pro tempore. We are.
  Mr. DURBIN. The Democratic side is now recognized?
  The ACTING PRESIDENT pro tempore. They are.
  Mr. DURBIN. How much time is remaining?
  The ACTING PRESIDENT pro tempore. There is 25 minutes 47 seconds.

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