[Congressional Record Volume 158, Number 127 (Wednesday, September 19, 2012)]
[Senate]
[Pages S6458-S6463]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 TELEMARKETING FRAUD MODERNIZATION ACT

  Mr. WHITEHOUSE. Mr. President, I rise today to talk about an issue 
that is extremely important to people in Rhode Island and across the 
United States: protecting consumers and securing the integrity of 
Medicare by preventing waste and fraud. Individuals who commit Medicare 
fraud are not simply stealing from the government, they are stealing 
from the men and women who have paid into the system their whole lives, 
they are stealing from our Nation's seniors, and they are stealing from 
the taxpayers. We have an obligation to ensure that Medicare dollars 
are spent keeping seniors healthy, and not lining the pockets of 
predatory opportunists.
  In March, I held a hearing in Rhode Island on efforts at the Federal, 
State, and local levels to identify and reduce fraud in Medicare and 
Medicaid. I heard testimony from a representative of the Centers for 
Medicare and Medicaid Services, as well as State and Federal law 
enforcement officials, including Rhode Island's Attorney General, Peter 
Kilmartin; and the U.S. Attorney for Rhode Island, Peter Neronha. They 
discussed a number of the efforts underway to identify potentially 
fraudulent claims, recover improper payments, and use state-of-the-art 
analytic software to identify and prevent improper payments.
  I was pleased to hear about the steps being taken to modernize 
Medicare's anti-fraud efforts, but there is still much that can be 
done. In particular, I believe we must crack down on deceptive and 
fraudulent telemarketing and email schemes that force unwanted and 
unnecessary medical equipment onto unsuspecting seniors. I have heard 
from Rhode Islanders concerned about these ``too-good-to-be-true'' 
offers. During my March hearing, I heard testimony about Medicare 
beneficiaries receiving unsolicited phone calls from a company called 
Planned Eldercare, which promised to provide them with free medical 
products. If a senior agreed to the offer, Planned Eldercare would 
submit as many claims as it could to Medicare on that beneficiary's 
behalf, even if the products for which they were submitting claims were 
not medically necessary or even requested by the senior. This scheme 
defrauded Medicare out of more than $2.2 million.
  These schemes prey on older Americans and rob Medicare of millions of 
dollars that would otherwise be used to improve the health and well-
being of seniors. We must do more to prevent fraud of this kind, which 
is why I am joining with my colleague, Senator Blumenthal, in 
introducing the Telemarketing Fraud Modernization Act. This bill would 
close loopholes in the existing telemarketing fraud statute and update 
the law to include Medicare, Medicaid, and health care fraud, as well 
as schemes to fraudulently induce investments--like Ponzi schemes. It 
would also expand existing law to apply to schemes perpetrated via 
email, instant messages, and other forms of electronic communication. 
Updating the telemarketing fraud statute will give law enforcement 
agencies the tools they need to rein in scam artists, protect our 
Nation's seniors, and strengthen the integrity of the Medicare program.
  I look forward to continuing to work with my colleagues on both sides 
of the aisle on this important issue.
                                 ______
                                 
      By Mr. FRANKEN (for himself, Mr. Harkin, Mr. Sanders, Mr. Durbin, 
        Mr. Begich, Mr. Leahy, Mr. Blumenthal, and Mr. Whitehouse):
  S. 3557. A bill to amend the Higher Education Act of 1965 to prohibit 
institutions of higher education that participate in programs under 
title IV of such Act from including predispute arbitration agreements 
in enrollment contracts; to the Committee on Health, Education, Labor, 
and Pensions.
  Mr. FRANKEN. Mr. President, I rise today to talk about a bill I have 
just introduced, the Arbitration Fairness for Students Act, and to talk 
about why it is so important to protect our Nation's students.
  Access to higher education is becoming increasingly important in our 
Nation. In 2018, 70 percent of the jobs in

[[Page S6459]]

our State, Minnesota, will require some postsecondary education. We 
must also make sure access to higher education remains and stays a 
positive experience and not a damaging one. Colleges and universities 
need to deliver on the promises they make to students. If they don't, 
students need to be able to hold them accountable.
  That is why I have introduced this bill today along with Senator 
Harkin and six cosponsors, including Senator Sanders. It would prohibit 
any school participating in the title IV Federal student aid system 
from forcing its students to forego access to the courts when they have 
a valid dispute and instead forcing them into private arbitration 
proceedings. This bill is simply about accountability. It is about the 
basic American right to seek justice in our court system--a right that 
is, unfortunately, being denied now to thousands of students after the 
landmark Supreme Court decision in the AT&T Mobility v. Concepcion 
case.
  A recent report from Public Citizen and the National Association of 
Consumer Advocates highlights how that decision is harming students. 
Before that decision, thousands of students who had attended a chain of 
culinary schools formed a class action lawsuit alleging that the school 
had exaggerated the salaries of its graduates, and they won. The 
students received payments of up to $20,000 each, which they 
desperately needed since, according to the lawsuits, these students 
typically had more than $40,000 in student loan debt.
  But that was before the Concepcion decision, which now allows 
corporations to block class action lawsuits through the use of 
mandatory arbitration clauses in their contracts. Now, a group of 
students who can prove they were lied to by their college can be barred 
from accessing our court system. I think that is wrong, and my bill 
would change that.
  But don't just take it from me. Take it from judges who are ruling in 
the post-Concepcion world and who believe that students are being hurt. 
In one recent case students alleged that a school misrepresented basic 
facts, such as the cost of education and the school's accreditation 
status. The students even showed they had to sign the enrollment 
contract, which contained the mandatory arbitration clause, before they 
were allowed to speak to financial aid counselors.
  The court ruled against the students, citing the Concepcion decision. 
According to the court:

       The argument had considerable validity and the court would 
     likely have found the Arbitration Agreements at issue here 
     unconscionable . . . if it were issuing this decision pre-
     Concepcion.

  The court also said that Concepcion ``likely foreclosed the 
possibility of any recovery for many wronged individuals.''
  As I said, this bill is about accountability. It is also about 
college affordability. Our higher education system often requires 
students to take on tens of thousands of dollars in debt. In exchange 
for this debt, students believe they are receiving an education that 
will allow them to pay that money back, often because that is exactly 
what the school is telling them. But what if the school is lying? 
Students need to be able to hold those schools accountable for their 
actions. Otherwise, what is going to stop other schools from charging 
whatever they want and convincing their students they can afford it by 
lying? We can stop these anticonsumer, antistudent contracts, and my 
bill would do just that.
  Congress has acted several times to protect individual industries 
from abuse of mandatory arbitration clauses. In 2001, Congress heard 
from William Shack, a long-time automobile dealer from Nevada. He told 
his story to Congress about how he and a partner had been working 
together to open a Saturn dealership, investing a lot of money, when 
Saturn suddenly pulled the deal.
  As a result of the arbitration clause in their contract, Mr. Shack 
and his partner were required to arbitrate the dispute. In his 
testimony, he said Federal legislation was the only remedy available to 
protect auto dealers from the imposition of these unfair contract 
provisions and to preserve State procedural and substantive 
protections. He explained:

       We reject categorically the idea that we ``voluntarily'' 
     agreed to submit to mandatory binding arbitration.

  The most compelling portion of Mr. Shack's testimony was this:

       [T]he dispute drove home to us in a drastic fashion just 
     how one-sided the mandatory binding arbitration process can 
     be for dealers. We were surprised to learn that, despite the 
     great system of justice that we have in this country, we 
     could be deprived of the basic right to an impartial decision 
     on the merits of our case. That is a grave injustice.

  In response to stories like Mr. Shack's, Senator Orrin Hatch 
introduced the Motor Vehicle Franchise Contract Arbitration Fairness 
Act. The bill had 66 cosponsors--an equal number of Democrats and 
Republicans. Unsurprisingly, there was opposition to this legislation--
the Chamber of Commerce testified against it. But Congress decided to 
prioritize the rights of auto dealers to seek justice in our courts, 
and in November of 2002, Congress passed this bill and made it law.
  Today automobile dealers cannot be bound by mandatory arbitration 
provisions in their contracts with their manufacturers. This change 
didn't result in a flood of litigation. It simply provided some equal 
footing for small auto dealerships to bargain with the large 
manufacturers. Once Congress determined that this particular industry 
was subject to the abuse, it took action to protect the vulnerable 
party.
  Congress again acted in 2007 to protect members of our Armed 
Services. Congress heard from military leaders that predatory lending 
targeted at our Nation's servicemembers was impairing our country's 
military readiness. In response, Republican Senator Jim Talent from 
Missouri, along with his colleague Senator Bill Nelson of Florida, a 
Democrat, introduced an amendment to the 2006 national defense 
authorization bill. Their provision prohibited predatory lending 
practices, including a prohibition on enforcing mandatory arbitration 
clauses in financial agreements with servicemembers. This amendment 
passed the Senate unanimously, and it went into effect in 2007.
  Despite strong opposition from the Wall Street lobby, Congress came 
together in a bipartisan manner to target abuses against our 
servicemembers.
  In addition to auto dealers and servicemembers, Congress has also 
taken up the plight of poultry growers. In a 2007 hearing in the Senate 
Agriculture Committee, one witness shared this terrible story. Gertrude 
Overstreet was a 67-year-old contract poultry farmer. She operated two 
chicken houses, so her total monthly income, including food stamps, was 
less than $1,000 a month for her and her husband. Mrs. Overstreet had a 
10th grade education.
  When the poultry producer for whom she worked violated the terms of 
their agreement, that company required Mrs. Overstreet to bring her 
claim into arbitration, where she was required to pay $27,000 in 
upfront costs before she could even get a hearing. Mrs. Overstreet 
didn't know what arbitration was or that her legal remedies had been 
stripped from her. This is an elderly couple who could not afford the 
cost of their medication, much less $20,000 in upfront arbitration 
fees.
  This might be the most compelling example of disparate bargaining 
power, a giant poultry processor versus Mrs. Overstreet. But Senator 
Grassley took up this cause and introduced the Fair Contracts for 
Growers Act. Thanks to his efforts, when the farm bill passed the 
following year, it included provisions that enabled poultry farmers to 
opt out of mandatory arbitration clauses imposed by the big processors.
  Most recently, Congress took up an amendment that I introduced in the 
national defense authorization bill in the fall of 2009. Some of the 
most offensive uses of mandatory arbitration clauses that I have seen 
are by overseas military contractors against women who have been 
victimized on the job. Too many women working for military contractors 
have had to endure unimaginable workplace harassment and environments. 
Those women deserve their right to a day in court just like the auto 
dealers, the servicemembers, and the poultry farmers. Once again, the 
amendment passed with broad bipartisan support. Once again, Congress 
took steps to tackle the most egregious abuses of mandatory 
arbitration.

[[Page S6460]]

  When confronted with a group that has been victimized by mandatory 
arbitration clauses, Congress has repeatedly taken steps to protect the 
little guy and their right to a day in court, and we have done so on a 
bipartisan basis. I believe Minnesota's students--and students across 
the country--deserve the same protection we have afforded to auto 
dealers, to servicemembers, poultry farmers, and employees of military 
contractors. The Arbitration Fairness for Students Act would provide 
that protection, and I urge my colleagues to support it.
                                 ______
                                 
      By Mr. SANDERS (for himself, Mr. Blumenthal, Mr. Kerry, Ms. 
        Mikulski, Mr. Begich, Mr. Akaka, Mr. Durbin, Mrs. Gillibrand, 
        Ms. Klobuchar, Mr. Leahy, Mr. Wyden, Mr. Franken, Mrs. Boxer, 
        Mr. Johnson of South Dakota, Mr. Merkley, and Mr. Menendez):
  S. 3562. A bill to reauthorize and improve the Other Americans Act of 
1965, and for other purposes; to the Committee on Health, Education, 
Labor, and Pensions.
  Mr. SANDERS. Mr. President, today I am very proud to introduce the 
Older Americans Act reauthorization of 2012 bill along with 14 of my 
colleagues, including Senators Blumenthal, Kerry, Mikulski, Begich, 
Akaka, Durbin, Gillibrand, Klobuchar, Leahy, Wyden, Franken, Johnson, 
and Merkley. This bill is the result of an impressive team effort. We 
have reached out to a number of members on the committee and others who 
have brought forth ideas of their own, and I am very proud as chairman 
of the Subcommittee on Primary Health and Aging to have introduced this 
bill. I wish to thank the director of the subcommittee, Ashley Carson 
Cottingham, for her work, as well as Sophie Kasimow and Erica Solway.
  It is disappointing to me that this important piece of legislation 
has not been dealt with during this session, but on behalf of the 
millions of elderly people to whom it applies and for whom it will make 
life better, I am introducing it today because it will lay the 
groundwork for what we have to do next session.
  Originally enacted in 1965, the Older Americans Act was the first 
edition by the Federal Government to help senior citizens remain 
independent in their homes and in their communities. The Older 
Americans Act has historically received bipartisan support.
  This act provides Federal funding for some important programs with 
which many Americans are familiar. Among others is the Meals on Wheels 
Program. All over America we have seniors who are frail, who are unable 
to leave their homes, and every single day all over this country there 
are volunteers who are delivering hot, nutritious meals to seniors. I 
wish to thank all of those volunteers and to tell them we are going to 
do the best we can to increase funding to end some of those waiting 
lines that now exist throughout this country in terms of seniors being 
able to get the Meals on Wheels Program.
  Another important nutrition program the Older Americans Act deals 
with is the Congregate Meal Program. Every day in Vermont and I know 
all over this country the elderly come to senior centers, where they 
socialize and have a good time and are able to break through their 
isolation and also receive nutritious meals. The meals they receive are 
significantly funded by the Congregate Meal Program. In my view, they 
are inadequately funded, and we want to increase funding for that 
program as well.
  I would mention that in the State of Vermont alone--just one small 
State--almost 1 million Congregate and Meals on Wheels are served every 
single year. That is 1 million meals in a small State such as Vermont.
  Mr. President, we are in the midst of a terrible recession. 
Unemployment is too high, wages are too low, and many people have lost 
their homes. But in the midst of this recession, we do not talk enough 
about the plight of many elderly people. They are living their lives, 
often in great financial distress, under the radar screen. I think we 
are not paying enough attention to their problems.
  Today, incredibly enough, one in five seniors over the age of 65 is 
living on an average income of $7,500 per year, and the number of 
seniors going hungry is rising. Hunger among seniors in the United 
States today is a serious problem. In fact, there are over 5 million 
seniors who face the threat of hunger and others who are struggling 
every single day to make sure they have enough food in the refrigerator 
to take care of their most basic needs.
  The very good news is that the Older Americans Act has developed 
programs to address these needs. Yet, because we have more seniors who 
are in need of these programs, it is absolutely imperative that we 
address the problems of hunger and make sure every senior in this 
country gets the nutrition he or she needs.
  This bill we are submitting today with 14 cosponsors will request 
higher authorization for nutrition programs, for supportive services, 
and for jobs programs. One of the things the Older Americans Act does--
and not a lot of people know this--is it provides employment 
opportunities for many seniors. This is important because not only does 
it allow hard-pressed seniors to earn additional revenue, but it also 
allows them to go out into the workforce and put meaning into their 
lives, which is extremely important. This legislation also provides for 
chronic disease self-management and the Long-Term Care Ombudsman 
Program. The bill also strengthens efforts to identify and prevent 
elder abuse--a serious problem in our country--support for family 
caregivers and care coordination activities, workforce for seniors, and 
increases protections for seniors living in nursing homes and receiving 
home care services.
  Mr. President, we need to see the reauthorization of the Older 
Americans Act early in the next Congress. With 10,000 baby boomers 
turning 65 each day and middle-class families experiencing rising costs 
from education to health care as well as the need to provide care to 
their aging relatives, we are at a critical moment in terms of how we 
address the very serious problems facing senior citizens.
  The interesting point about the Older Americans Act and about the 
Nutrition Program is that while, yes, it is an investment of Federal 
dollars, in the long run it actually saves us money. We had a very 
interesting hearing on this issue, and we heard from physicians who 
told us what common sense would suggest. If seniors do not get the 
nutrition they need, if they become malnourished, they are obviously 
more likely to become ill, end up in an emergency room or in the 
hospital. In addition, when we have senior citizens who are not getting 
the care and attention they need at home, the nutrition they need, they 
are more likely to suffer serious falls, break hips, and end up in a 
hospital, at great expense.
  So the bottom line here is not really rocket science. It is that if 
we make sure seniors throughout the country--those who are vulnerable, 
who are frail, who do not have a lot of money--get the nutrition and 
the attention they deserve while at home, they will be healthier and 
less likely to end up in emergency rooms and in hospitals at great 
expense to our health care system. So investing in the Older Americans 
Act is not only the right thing to do, it is not only the humane thing 
to do in terms of taking care of the most vulnerable and fragile people 
in our society, it also makes good financial sense for our country.
  Mr. President, I thank very much the 14 cosponsors we have. We are 
going to aggressively do our best to make sure this legislation is 
passed either in the lameduck session or when we return next year.
  With that, Mr. President, I yield the floor.
  Mr. FRANKEN. Mr. President, I would like to associate myself with the 
remarks of the Senator from Vermont. I am one of the cosponsors of the 
reauthorization of the Older Americans Act, and before I talk about a 
bill I have just introduced, I would like to underscore the fact that 
the Older Americans Act was introduced in 1965, and it allows seniors 
to stay in their homes and also saves money. It costs $6 a day to do 
Meals on Wheels per senior. This allows a senior to stay in their home 
and not go to a nursing home. We know what a nursing home costs every 
day. So this is an example of common sense. Seniors want to stay in 
their homes if they can.
  I have been with the Presiding Officer, my colleague from the State 
of

[[Page S6461]]

Minnesota, doing roundtables on the Older Americans Act. It is a great 
program that we need to reauthorize in order to do really a commonsense 
thing, which is allow seniors to stay where they want to stay--in their 
homes--and at the same time not have them spending the kind of money 
they would be spending in a nursing home or in that kind of facility. 
So I commend the Senator from Vermont.
                                 ______
                                 
      By Ms. COLLINS (for herself, Ms. Mikulski, Mrs. Hutchison, Mr. 
        Lieberman, Mrs. Murray, Mr. Akaka, Mr. Merkley, Ms. Klobuchar, 
        Ms. Stabenow, Ms. Murkowski, Ms. Landrieu, Mrs. Shaheen, and 
        Mrs. Boxer):
  S. 3567. A bill to establish the Commission to Study the Potential 
Creation of a National Women's History Museum, and for other purposes; 
to the Committee on Energy and Natural Resources.
  Ms. COLLINS. Mr. President, I rise to introduce the National Women's 
History Museum Commission Act of 2012, a bill that would create a 
commission to evaluate and plan into the establishment of a museum that 
would be dedicated to women's history in our Nation's capital city. I 
appreciate the co-sponsorship of Senator Mikulski, Senator Hutchinson, 
Senator Lieberman, Senator Murray, Senator Akaka, Senator Merkley, 
Senator Klobuchar, Senator Stabenow, Senator Murkowski, Senator 
Landrieu, Senator Shaheen, and Senator Boxer.
  American women have made invaluable contributions to our country in 
such diverse fields as government, business, medicine, law, literature, 
sports, entertainment, the arts, and the military. The need for a 
museum recognizing the contributions of American women is long overdue.
  In 1999, a Presidential commission on commemorating women in American 
history concluded that, ``Efforts to implement an appropriate 
celebration of women's history in the next millennium should include 
the designation of a focal point for women's history in our Nation's 
capital.''
  Although Congress has made commendable provisions for the National 
Museum for African American History and Culture, the National Law 
Enforcement Museum, and the National Museum of the American Indian, 
there is still no institution in the capital region dedicated to 
women's role in our country's history.
  This bill would be a good step toward rectifying this oversight. The 
bill would simply establish a commission, similar to what was done for 
the African American History and Culture Museum, to develop a feasible 
plan for establishing such a museum in here in Washington, D.C.
  It is important to note that, unlike previous museum commissions, 
taxpayers will not shoulder the funding of this project. The proposed 
legislation calls for the commission to fund its own costs.
  A museum dedicated to women's history would help ensure that future 
generations understand what we owe to the many generations of American 
women who have helped build, sustain, and advance our society. They 
deserve a museum to present the stories of pioneering women like 
abolitionist Harriet Tubman, founder of the Girl Scouts Juliette Gordon 
Low, Supreme Court Justice Sandra Day O'Connor, astronaut Sally Ride, 
and Senator Margaret Chase Smith.
  Yes, of special pride to the State of Maine is a legendary 
predecessor in the Senate seat I now hold: Margaret Chase Smith, the 
first woman nominated for President of the United States by a major 
political party, and the first woman elected to both houses of 
Congress. Senator Smith began representing Maine in the U.S. House of 
Representatives in 1940, won election to the Senate in 1948, and 
enjoyed bipartisan respect over her long career for her independence, 
integrity, wisdom, and courage. She remains my role model and, through 
the example of her public service, an exemplar of the virtues that 
would be honored in the National Women's History Museum.
  Again, I urge my colleagues to support this legislation.
                                 ______
                                 
      By Ms. SNOWE:
  S. 3572. A bill to amend the Internal Revenue Code of 1986, title 5, 
United States Code, the Small Business Act, and the Small Business 
Investment Act of 1958 to provide certainty for small business 
concerns, and for other purposes; to the Committee on Finance.
  Ms. SNOWE. Mr. President, I rise today to introduce legislation that 
will boost America's small businesses and help them escape unnecessary 
regulations that are stifling creativity, growth, and job creation. 
This legislation will encourage small businesses to invest and hire, 
giving the economy a much needed lift.
  Two of the most vital issues looming over small business job creators 
are tax and regulatory uncertainty. This bill aims to, among other 
things, deliver targeted tax relief to small businesses with eight 
different tax provisions, and protect small businesses from burdensome 
regulations. The Restoring Tax and Regulatory Certainty to Small 
Businesses Act of 2012 will provide small business owners and 
entrepreneurs with the confidence they need to expand, thrive, and 
prosper in today's insecure economy.
  My friend and colleague, Small Business Committee Chair Landrieu, 
recently proposed a small business relief act with some similar 
measures. However, Chair Landrieu's bill lacks many of the tax and 
regulatory reforms that small businesses are seeking. While her bill 
does contain some measures that I support, and which I have worked with 
her to include in a freestanding bipartisan small business jobs bill, 
it does not include any provisions to protect small businesses from 
arduous regulations. Additionally, it omits tax provisions that were 
included in our joint bill, S. 2050, that need to be addressed. By and 
large, this bill has some merits and I commend Chair Landrieu for 
pressing forward the national conversation on these critical issues, 
but the bill I am introducing today goes further by including both 
regulatory, and additional tax relief for small businesses.
  The Restoring Tax and Regulatory Certainty to Small Businesses Act 
includes eight indispensable tax extenders that will provide targeted 
tax relief to small businesses and extend the essential tax relief 
provisions that were included in the bipartisan Small Business Jobs Act 
of 2010, P.L. 111-240. We have endured more than 40 straight months of 
unemployment over 8 percent and have yet to see changes implemented to 
ease the burdens on job creators. With this bill, the Nation's small 
businesses, which create at least two-thirds of all new jobs, will 
finally enjoy tax relief in many different forms.
  Small businesses should be rewarded for taking risks and increasing 
investments. Under this bill, the 100-percent capital gains exclusion 
will be extended, as will the availability of Section 179 expensing, 
which gives businesses the option of writing off the cost of qualifying 
capital expenses in the year of acquisition in lieu of recovering these 
costs over time through depreciation. Additionally, the carryback of 
general business credits to offset 5 years of taxes as a cash-flow tool 
for businesses that are currently not realizing profits will be 
extended, giving small businesses even more funds to put toward future 
endeavors.
  Prior to the enactment of the Small Business Jobs Act, taxpayers 
could generally only claim allowable general business credits against 
their regular tax liability, and only to the extent that their regular 
tax liability exceeded their alternative minimum tax--AMT--liability. 
With this bill, qualified small businesses will now be able to reduce 
their AMT liability for general business credits by allowing credits to 
be applied against regular income tax and AMT liability.
  Additionally, this bill will permit contractors that do not complete 
contracts within a single year to benefit from bonus depreciation. 
Another provision was designed to benefit businesses that were 
initially C corporations, but elected to be taxed as S corporations and 
had net built-in gains when they made the S corporation election. Under 
this bill, small businesses will also be able to deduct more for 
startup costs, and be able to deduct health insurance premiums against 
payroll taxes, both of which are significant matters to new and 
developing small business owners. Thanks to these new tax provisions, 
business owners will be empowered to increase participation in domestic 
and global markets.

  Besides these critical tax provisions, the bill also provides real, 
meaningful

[[Page S6462]]

regulatory relief for job creators. Since the enactment of the Small 
Business Regulatory Enforcement Fairness Act of 1996, P.L. 104-121, 
more than 50,000 new rules have gone into effect, each with an 
estimated impact of more than $100 million annually. More than 3,000 
new Federal rules are established each year. And alarmingly, small 
firms with fewer than 20 employees bear a disproportionate burden of 
complying with Federal regulations. These small firms pay an annual 
regulatory cost of $10,585 per employee, which is 36 percent higher 
than the regulatory costs facing larger firms. This bill will 
strengthen existing laws and enable the SBA Office of Advocacy to 
protect small businesses from these burdensome regulations.
  The Restoring Tax and Regulatory Certainty to Small Businesses Act 
incorporates the latest version of the Freedom from Restrictive, 
Excessive, Executive Demands and Onerous Mandates, FREEDOM, Act--a 
necessary, targeted regulatory reform bill that will provide small 
businesses with much needed relief from onerous, one-size-fits-all 
Federal regulations. These provisions would: (a) require agencies to 
consider foreseeable indirect costs of rules; (b) increase the number 
of small business review panels charged with helping agencies better 
consider small businesses during the rulemaking process; (c) add teeth 
to the existing requirement that agencies regularly review the 
regulations on their books to determine if they are outdated or 
needlessly burdensome; and (d) allow small businesses to seek judicial 
review during the proposed rule stage, concerning whether an agency 
complied with its legal obligation to conduct an economic impact 
analysis with the rulemaking. Regrettably, current law does not allow 
small businesses to challenge this in court until after a burdensome 
rule is finalized, when it is already too late.
  A recent survey of 500 small business owners along the east coast 
found that 71 percent of employers plan to maintain current employee 
levels and only 21 percent plan to hire one or two more workers in the 
near future. Business owners are reluctant to hire because of the 
sluggish pace at which the U.S. economy is recovering, the uncertain 
fiscal future, and the overly burdensome regulations currently in 
existence. The NFIB reported that small business optimism is also at 
its lowest level since October 2011. Now is the time to reverse these 
trends and give small businesses, our one bright spot of job creation, 
the certainty and motivation they need to grow and provide more jobs.
                                 ______
                                 
      By Mr. LEAHY (for himself and Mr. Inhofe):
  S. 3577. A bill to eliminate conditions in foreign prisons and other 
detention facilities that do not meet primary indicators of health, 
sanitation, and safety, and for other purposes; to the Committee on 
Foreign Relations.
  Mr. LEAHY. Mr. President, I am very pleased to join today with the 
senior Senator from Oklahoma, Senator Inhofe, in introducing 
legislation that has already attracted broad support--from across the 
social and political spectrum.
  This bill, titled the Foreign Prison Conditions Improvement Act of 
2012, seeks to address a much neglected, global human rights and 
humanitarian problem--the inhumane treatment of people in foreign 
prisons and other detention facilities.
  On any given day, millions of people are languishing in foreign 
prisons, many in pretrial detention having never been brought before a 
judge or formally charged or proven guilty of anything, deprived of 
their freedom in abysmal conditions, often for years longer than they 
could have been sentenced to prison if convicted.
  Others are imprisoned after being convicted of offenses, often after 
woefully unfair trials, including for nothing more than peacefully 
expressing political or religious beliefs or defending human rights. 
Regardless of their status they have one thing in common. They are 
deprived of the most basic rights and necessities--safe water, adequate 
food, essential medical care, personal safety, and dignity.
  Anyone who has been inside one of these facilities, or seen 
photographs or press reports of what they are like, understands that 
this is about the mistreatment of human beings in ways that are 
reminiscent of the Dark Ages.
  A few examples illustrate the point. In Haiti's National Penitentiary 
before the 2010 earthquake, more than 4,000 prisoners were confined in 
a space built for less than 900. Many did not have room to lie down and 
had to sleep standing up. Sanitation was practically non-existent. 
Deadly contagious diseases were rampant. The overwhelming majority of 
inmates had never been formally charged, never seen a lawyer or a 
judge. The earthquake damaged the prison and the prison guards fled, 
leaving the inmates to fend for themselves without food or water. They 
managed to get out, but the squalid facility filled up again.
  I recall a newspaper article about how in Benin, in West Africa, the 
skin of prisoners was ragged from the extraction of fly larvae, an 
affliction that is symptomatic of the deplorable conditions. Many 
inmates suffer from tuberculosis, scabies, parasites, lung infections 
or other illnesses. The prison in Abomey, located in southern Benin, 
was built in 1904 to house a maximum of 150 prisoners. More than 1,000 
have reportedly been confined there.
  In February of this year, a fire at the Comayagua Prison in Honduras 
killed 360 inmates. In one overcrowded cell block only 4 of 105 
prisoners survived. More than half of those who died were waiting to be 
charged or tried.
  It is common in prisons from Latin America to the Middle East, 
Africa, and Asia for inmates to be severely malnourished and to go for 
months without being able to wash. Many prisoners depend for survival 
on food brought to them by relatives. In many countries individuals 
awaiting trial, young and old, are housed together with convicted, 
violent criminals.
  Prisoners and other detainees in many countries are also routinely 
victimized by poorly trained, abusive guards who are virtually 
unsupervised and unaccountable to any higher authority. Sexual abuse of 
men, women and children is common.
  A government commission in Cameroon reported that an average of five 
prisoners die per month in a prison there, simply from lack of proper 
medical care. Inmates in many countries suffer from HIV/AIDS and other 
illnesses in prisons with no medical records, where doctors do not 
enter. Prisoners intentionally cut or otherwise harm themselves in the 
hope of receiving medical attention for life-threatening illnesses. If 
and when they are released they infect the local population.
  A New York Times article described how prisoners in Zambia were 
punished by being stripped naked and held in solitary confinement in 
small, windowless cells, sometimes for days on end, in ankle-to-calf-
high water contaminated with their own excrement. It is like something 
out of The Count of Monte Cristo, only worse because it is happening in 
the 21st Century. But the article went on to describe how Zambia's 
Prison Service conducted its own internal audit, appointed a new 
medical director, and allowed human rights workers access to its 
facilities. The legislation Senator Inhofe and I are introducing seeks 
to provide incentives for those kinds of improvements. Our bill would 
do the following:
  First, it calls attention to this long ignored problem. Most people 
know little if anything about what goes on inside foreign prisons, and 
many would prefer not to know.
  Second, it sets forth primary indicators for the elimination of 
inhumane conditions in foreign prisons and other detention facilities, 
such as human waste facilities that are sanitary and accessible, and 
adequate ventilation, food and safe drinking water.
  Third, it requires the Secretary of State to report annually on the 
conditions in prisons and other detention facilities in at least 30 
countries receiving United States assistance or under sanction by the 
United States, selected by the Secretary's determination that such 
conditions raise the most serious human rights or humanitarian 
concerns.
  Fourth, it encourages the Secretary and the Administrator of the U.S. 
Agency for International Development to furnish assistance for the 
purpose of eliminating inhumane conditions where such assistance would 
be appropriate and beneficial.
  For countries that are not making significant efforts to eliminate 
such

[[Page S6463]]

conditions, the Secretary is to enter into consultations with their 
government to achieve the purposes of the Act.
  The legislation also provides for training of Foreign Service 
Officers, and directs the Secretary to designate, within the Department 
of State's Bureau for Democracy, Human Rights, and Labor, an official 
with responsibility for implementing the provisions of the Act.
  Finally, it authorizes the expenditure of funds to implement the Act.
  Once enacted, the Foreign Prison Conditions Improvement Act of 2012 
will help foreign governments ensure that prisoners in their countries 
are treated as any people deprived of their freedom should be--as human 
beings, with dignity, in safety, and provided the basic necessities of 
life.
  In countries around the world, the United States is helping to reform 
justice systems and strengthen the rule of law. No justice system can 
claim to deliver justice if prisoners and other detainees are treated 
like animals, or worse. By helping to change attitudes, and showing how 
with relatively little money prison conditions can be significantly 
improved, we can help advance the cause of justice more broadly.
  Millions of people around the world look to the United States as a 
defender of justice. This legislation will further that goal and it 
reflects the best instincts of the American people. It has already been 
endorsed by a wide range of groups, including Amnesty International, 
USA; Baptist World Alliance, Division of Freedom and Justice; Ethics 
and Religious Liberty Commission of the Southern Baptist Convention; 
Human Rights First; Human Rights Watch; International CURE; 
International Justice Mission; International Prison Chaplains' 
Association; Jewish Council for Public Affairs; Just Detention 
International; Justice Fellowship/Prison Fellowship Ministries; 
National Association of Evangelicals; National Religious Campaign 
Against Torture; New Evangelical Partnership for the Common Good; Open 
Society Policy Center; Penal Reform International; Religious Action 
Center of Reform Judaism; United Methodist Church, General Board of 
Church and Society; and the United States Conference of Catholic 
Bishops. I want to thank these groups for their support and their 
efforts to focus attention on this urgent problem.
  Identical legislation is being introduced today in the House by 
Representatives Chris Smith and Russ Carnahan, both of whom care deeply 
about this issue, so this is a bipartisan, bicameral effort.
  Finally, I want to thank Senator Inhofe, who has visited many African 
countries and has witnessed the problems this legislation seeks to 
address, as well as his staff, who have been very helpful in this 
process. At a time when some people seem to get satisfaction from 
calling Washington broken, this is another example of how two Senators 
and two Representatives, of different parties, whose political views 
often differ, can work together in furtherance of a just cause.
  Mr. INHOFE. Mr. President, it is with great pleasure that I introduce 
the Foreign Prison Conditions Improvement Act along with my friend from 
Vermont, Senator Patrick Leahy.
  This bill seeks to identify and eliminate unhealthy and unsafe prison 
conditions found in developing countries like Haiti and on the African 
continent where millions suffer in inhumane conditions.
  Overcrowded, unsanitary detention and incarceration facilities 
endanger lives. This extremely high risk environment is a breeding 
ground for disease, particularly HIV/AIDs and tuberculosis, and creates 
grave risks to communities in which released prisoners live. Studies 
estimate that HIV infection rates in prisons in developing countries 
can be as much as 50 times higher than in the general population, and 
tuberculosis infection rates in prisons there are more than 20 times 
higher than in the general population.
  Our bill encourages these developing nations to provide humane and 
sanitary prison conditions so that prisoners can be released in good 
health, and thus stem one of the causes of the spread of HIV and 
tuberculosis among the general public. Our bill also focuses on 
eliminating excessive pre-trial detention and dysfunctional justice 
systems which frequently result in prisoners and other detainees 
spending years in unhealthy prison conditions before their cases are 
even adjudicated. Tragically, inadequate, misplaced or lost records 
often result in the incarcerated being held indefinitely because their 
cases have never been heard. Unbelievably, such poor recordkeeping has 
kept many in prison long after their sentences have been served.
  Specifically, our bill calls upon the Department of State to submit 
to Congress an annual report that describes inhuman prison conditions 
in at least 30 countries receiving U.S. foreign assistance. It gives 
the Secretary of State and Administrator of the U.S. Agency for 
International Development the discretion to restructure, reprogram or 
reduce U.S. foreign assistance to these countries based upon whether 
they are making ``significant efforts'' to eliminate inhuman conditions 
in their prisons and other detention facilities.
  The goals of this bill are noble, but it will take close monitoring 
and hard work by our U.S. Foreign Service personnel on the ground 
overseas to fulfill this work. That is why our bill directs the 
Secretary of State to provide training to these embassy and consulate 
personnel so that they can effectively investigate and assess prison 
conditions in foreign prisons as well as assist these foreign 
governments to adopt substantive prison reforms. The Secretary is also 
directed to designate and task a Deputy Assistant Secretary of State 
within the Bureau of Democracy, Human Rights and Labor with the 
responsibility for gathering the information for the annual report and 
make recommendations to the Secretary based off its conclusions.
  I have visited Africa frequently, and I believe that given the 
chance, the majority of Africa's leaders will welcome the opportunity 
to interact with our embassy and consulate personnel and adopt the best 
practices for achieving the elimination of unhealthy and unsafe 
conditions in their prisons and other detention facilities.
  The task at hand reminds me of the teaching of Jesus in Matthew 
25:39:40 when he said, ``when did we see you sick or in prison and 
visit you?'' And the King will answer them, `Truly, I say to you, as 
you did it to one of the least of these my brothers, you did it to me.' 
''
  We are all our brothers' keepers.

                          ____________________