[Congressional Record Volume 163, Number 153 (Monday, September 25, 2017)]
[Senate]
[Pages S5878-S5881]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                               Healthcare

  Mr. JOHNSON. Mr. President, I rise today to talk about the disasters 
of ObamaCare and a possible solution. It is a powerful first step--not 
perfect but a step that would take us off the path toward a single-
payer system and put us on a path toward federalism, with greater State 
control but, in many respects, greater freedom for the American public.
  During the last healthcare discussion and debate, I spoke with a 
couple, Sherry and Vern Colby from River Falls, WI. They had a real 
problem: They had preexisting conditions. They were quite pleased when 
ObamaCare passed because their preexisting conditions, they believed, 
would be covered. So they signed up for ObamaCare in 2014, paid the 
premiums, sent in their paycheck stubs to make sure their income levels 
qualified for the subsidies. Then a funny thing happened when they got 
their tax returns in March of 2015: They had to pay back more than 
$15,000 in subsidies because they made $59,000. They had to cash in 
pretty much all of their 401(k). They had to sell their house so they 
wouldn't lose it in foreclosure.
  I spoke with Sherry Colby today because, as we have debated the 
possibility of passage of Graham-Cassidy-Heller-Johnson, we have heard 
a lot of demagoguery. We have heard a lot of false charges. I would 
like to refute a couple of those.
  One of the claims of ObamaCare is it guaranteed that if you have a 
preexisting condition, you are free from worry, you will be covered. 
Well, in Sherry and Vern Colby's case, that is simply not true.
  I spoke with Sherry just this afternoon. Again, they had to sell 
their house, and they had to cash in their 401(k). Their nightmare 
didn't end at that point in time because President Obama, as he left 
office, took short-term, limited-duration plans--that duration from 264 
days down to 90 days. Now Sherry and Vern Colby are forced to buy these 
short-term, limited-duration plans that only last for 90 days. When I 
say ``forced,'' the problem they have is that they work. Vern drives 
milk trucks 60 hours a week. Sherry works in a florist's shop 30 hours 
a week. They make too much to be subsidized under ObamaCare. They don't 
make enough to be able to afford the premium of $14,000 per year with a 
$12,500 deductible. So right now they are paying $5,500 a year, and 
they have a $5,000 deductible per quarter and a 70/30 copay for a 
short-term, limited-duration plan that can and did exclude their 
preexisting conditions.
  Shortly after they signed up with IHC, Vern had a condition that 
required a hospital stay. The problem is, his preexisting condition 
wasn't covered under their insurance. The bill for that hospital stay 
was $45,000. To add insult to injury, because their short-term, 
limited-duration plan is not ObamaCare compliant, they are also paying 
the penalty. They are purchasing insurance, paying $5,500 per year, 
$20,000 in deductibles, a $45,000 hospital bill, and they are still 
penalized by the American Government under ObamaCare.
  Graham-Cassidy-Heller-Johnson maintains the provision of the 
guaranteed issue, covering people with preexisting conditions. There 
are all kinds of charges that somehow ObamaCare has guaranteed coverage 
for those individuals and Graham-Cassidy-Heller-Johnson would not.
  Personally, I believe Governors, State legislators, and the people in 
the State of Wisconsin will be far more concerned about Sherry and Vern 
Colby and will have innovative solutions, such as Wisconsin's high-risk 
pool or Maine's invisible high-risk pool, to actually bring down 
premiums so the Colbys can actually afford insurance without having to 
quit their jobs.
  But that is not the main reason I came to the floor today. While 
sitting in that chair or watching TV over the weekend, listening to 
people's speeches, I have heard repeatedly from our colleagues on the 
other side of the aisle talking about Graham-Cassidy-Heller-Johnson 
that it is going to destroy Medicaid as we know it, that it will be 
slashing spending in Medicaid--massive, deep cuts.
  Let me go to a couple of charts.
  This first chart really has nothing to do with healthcare--except it 
has everything to do with healthcare. What this chart shows is the CBO 
projection of deficits over the next 30 years by decade. CBO made the 
projections as a percentage of the GDP. Nobody understands 
percentages--we don't buy hamburgers with percentages--so we converted 
those percentages of GDP into dollars. According to our best 
calculations, CBO projects almost a $10 trillion deficit over the next 
10 years; the second decade, $37 trillion; the third decade, $82 
trillion, for a whopping total of a $129 trillion deficit over the next 
30 years. That would be added to our $20 trillion worth of debt.

  There are a number of ways of describing this deficit. I am putting 
up two right now. What is it composed of? Well, if you take a look at 
revenue versus outlays, the deficit is composed of about an $18 
trillion deficit in Social Security alone. In other words, Social 
Security over the next 30 years will pay out $18 trillion more in 
benefits than it brings to the payroll tax; Medicare, $39 trillion. 
Interest on the debt over that same 30 years will be $65 trillion for a 
whopping total of $122 trillion of deficits over the next 30 years. 
That explains 95 percent of the deficit.
  Another way of looking at that deficit is this: Over the next 30 
years, our revenue will equal almost $200 trillion--$199 trillion. 
Outlays for Social Security will be $69 trillion; Medicare, $55 
trillion; Medicaid and ObamaCare $32 trillion, for a subtotal of $156 
trillion. If you add $65 trillion interest on the debt, we are already 
exceeding our revenue.
  You will notice that there is no money at all for any agencies, for 
national defense, for any other welfare programs. All the money is 
consumed by Social Security, Medicare, Medicaid, ObamaCare, and 
interest on the debt. This is clearly unsustainable.
  Let's talk about cuts. What would a cut really look like? Well, this 
is the

[[Page S5879]]

truth in terms of what we are projected to spend on Medicare, Medicaid, 
ObamaCare, and what we would spend under Graham-Cassidy-Heller-Johnson. 
If you go back to the year 2009, we were spending slightly more than 
$200 billion for Medicaid alone. This last year, we were spending about 
$438 billion. We have basically doubled spending in just the last 9 
years. According to projections, by the end of this time period, we 
will be spending over $700 billion per year on ObamaCare and Medicaid 
combined. Graham-Cassidy would spend a little less than that--not much 
less.
  Let me take a look at what a real cut would be. There are no cuts; 
you will notice spending never declines year over year--not once. It 
continues to grow year over year, not that far from the projections.
  This is what a real cut looks like. Many of my colleagues have talked 
about and campaigned on something they call the penny plan--a way to 
rein in out-of-control Federal spending by doing something that seems 
pretty reasonable, which is to take any government program and just 
reduce a dollar's worth of spending by just a penny. It would be a 1-
percent cut per year. If we were to do that to ObamaCare and Medicaid, 
you would see what a real cut looks like--a pretty minor cut, the type 
of cut many people have suggested under the penny plan, but that is 
what a real cut looks like. What Graham-Cassidy-Heller-Johnson does is 
not a cut; it is just a slight reduction in the rate of growth and 
spending.
  Again, oftentimes colleagues on the other side of the aisle are 
talking about drastic cuts. Well, let me detail what I would consider 
to be a possibly drastic cut. Let's say, rather than just 1 percent a 
year, we reduce spending by 5 percent a year or 10 percent a year. You 
know, I would agree with folks on the other side; if we were proposing 
those types of cuts, I would say that is slashing spending. I would say 
that would be a massive or draconian cut. But, again, that is not what 
we are doing. We are just slightly reducing spending over the next 10 
years.
  Let's look at this a little bit differently. Let's take a look at 
cumulative spending. If you just take cumulative spending year over 
year and add it up--our current projection on ObamaCare and Medicaid--
we would spend $5,688 billion; that is, $5.67 trillion. The Graham-
Cassidy-Heller-Johnson proposed spending is the green line, $5.44 
trillion or a reduction of $226 billion over 10 years, a 3.99 percent 
decrease--not draconian, not massive, not slashing. It is a small, 
slight reduction in the growth of spending.
  Let's take a look at what would happen if we just adhered to the 
penny plan in terms of cumulative spending. Again, this would be a real 
cut--1 percent per year. We would take the current law at $5.67 
trillion. The penny plan would actually reduce that to $4.2 trillion, 
and you would save $1.5 trillion for about 26 percent in savings. That 
would be a real cut that would constrain the growth of entitlements so 
we can further reduce the mortgage of our children by just a little 
bit.
  Why is this important? Again, to put things in perspective, over the 
next 10 years--this is blown up from our first chart--the projected 
deficit, according to CBO is close to $10 trillion--$9.6 trillion. What 
we are proposing under Graham-Cassidy-Heller-Johnson is a $226 billion 
reduction in the rate of growth of spending on Medicare or on Medicaid 
and ObamaCare--a 2.4-percent reduction in relationship to the $9.6 
trillion projected deficit. Is that massive? Is that draconian? I don't 
believe so.
  The types of controls we need to start enacting, if we are ever going 
to stop mortgaging our children's future, would be more like the penny 
plan, but even there, you can see how inadequate that is, based on the 
problem. The penny plan would reduce spending by $1.48 trillion--about 
a 15.4-percent reduction to our $9.6 trillion deficit.
  Let me conclude by talking about the fact that here in Washington, 
DC, here in Congress, we are not very good at solving problems, partly 
because not very many Members or their staffs have ever served in the 
private sector. They don't really understand people like Vern or Sherry 
Colby, who, as President Bill Clinton said, ``are out there busting 
it,'' working 60 to 70 hours a week. Their premiums have doubled and, 
in many cases, tripled. Their coverage is cut in half. They can't 
afford ObamaCare. They don't understand how businesses are struggling 
to pay the premiums when they provide healthcare. They don't understand 
it, and what they certainly don't understand is the problem-solving 
process: admitting you have a problem, defining that problem, gathering 
the information, doing the root cause analysis, and then, based on that 
careful analysis, based on the information, setting achievable goals 
and designing legislation, then designing the solution.
  We haven't been honest with ourselves in this body. We haven't come 
to grips with why premiums have doubled and, in many cases, tripled. It 
was because of the faulty design of ObamaCare--the fact that we are 
asking 5 to 6 percent of the American population to shoulder the full 
burden of covering people with preexisting, high-cost conditions. There 
is a way of addressing this, but we have to be honest. We have to set 
aside the rhetoric. We have to set aside the demagoguery.
  We have to take that first step of loosening the ties of this one-
size-fits-all model here in Washington, DC, letting the States 
innovate--like Wisconsin, like Maine's invisible high-risk pool--to 
actually bring down premiums. In Maine, when they enacted invisible 
high-risk pools, premiums for young people were cut to one-third of 
what they had been under guaranteed issue. For older folks, they were 
cut in half. It is possible to do this if we are honest and if we are 
courageous.
  With that, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Ms. WARREN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. WARREN. Mr. President, today we are voting on the nomination of 
William Emanuel to serve on the National Labor Relations Board. The 
NLRB may be one of the most important independent Federal agencies that 
you have never heard of. They are responsible for protecting the lawful 
rights of workers to come together and bargain with their bosses for 
higher wages and better working conditions.
  Starting a union is not an easy task. Often, it is a large 
corporation against its own employees. The money and the ability to 
threaten retaliation are heavily weighted on the corporate side.
  For more than a century, many corporations fought unions tooth and 
nail, hiring strikebreakers and union-busting thugs and, later on, 
union-busting lawyers. So back in the 1930s, Congress established the 
NLRB to act as a referee and to keep the playing field level so that 
workers would have a chance to form a union if they wanted to.
  President Trump picked William Emanuel to fill a vacancy on the NLRB. 
Mr. Emanuel has over 40 years of experience practicing labor and 
employment law. He has represented manufacturing companies, trade 
associations, logistics companies, hospitals, and dozens of other giant 
companies involved in labor disputes. He has represented big companies 
like Nissan, FedEx, Rite Aid, Safeway and Uber. That is an impressive 
resume. There is just one problem with it: In his more than four 
decades of practice, he has never been on the side of the workers--not 
once.
  Every party to a dispute is entitled to legal representation, and Mr. 
Emanuel has every right to spend his career representing corporations, 
but a guy who has never even once represented workers should not serve 
on the NLRB, period.
  The NLRB is not the Department of Commerce. It is not the Chamber of 
Commerce. It is not there to help pump up big corporations. No. When 
Congress created the NLRB, it gave it a simple mission: encourage 
collective bargaining. An individual who has spent his career working 
for some of the country's most ruthless union-busting firms, fighting 
off union efforts at every turn, has absolutely no business at the helm 
of an agency whose job is to encourage collective bargaining. The deck 
is already stacked against hard-working Americans.
  For the last few decades, productivity has increased, corporations 
and shareholders have gotten richer, but workers haven't shared in that 
growth.

[[Page S5880]]

Hourly wages have been virtually flat for almost 35 years, and one 
reason for this is the decline of unions. The impact is everywhere.
  Inequality has risen in America. Why? According to the Economic 
Policy Institute, the decline in unions accounts for about 20 percent 
to 30 percent of the growth in income inequality over the past several 
decades. When unions decline, all workers are hurt. For the more than 
40 million non-union men working in the private sector, the loss of 
unions over the past 30 years has been equivalent to an annual wage 
loss of about $109 billion. It is no wonder that American families are 
feeling the squeeze.
  The decline of unions isn't an accident. It didn't happen on its own 
or as the unexpected byproduct of some other event. No. Large 
corporations have called on their Republican buddies in local, State, 
and Federal governments, and they have launched a quiet but deadly 
attack on unions. Twenty-eight States have passed laws banning the 
collection of union dues from workers that the unions represent. The 
only purpose of these laws is to starve the unions of resources and 
make it harder for workers to join together and to stand up for 
themselves.
  The Supreme Court hasn't been kind to unions either, effectively 
decimating the ability of home healthcare workers to join together in 
2014. Now with a Republican-appointed majority on the Court, they are 
poised to deal the knockout blow to public sector unions later this 
term. And with the nomination of Mr. Emanuel, workers won't be able to 
count on the NLRB, either.
  As a candidate, President Trump promised American workers that under 
a Trump Presidency, ``the American worker will finally have a president 
who will protect them and fight for them.'' He also promised to ``drain 
the swamp'' in Washington and fill his administration with those who 
would work for working Americans--not for donors and not for special 
interests.
  When President Trump nominated Mr. Emanuel to serve at the highest 
labor court in the land, he delivered another gut punch to working 
people. In fact, Mr. Emanuel is the dream nominee for the donors and 
special interests. Trade associations for the companies that make their 
profits on the backs of low-wage workers immediately came out in 
support of his candidacy. The National Restaurant Association, the 
International Franchise Association, the National Retail Federation, 
the Retail Industry Leaders Association, the National Right to Work 
Committee, and the U.S. Chamber of Commerce applauded President Trump's 
pick with almost giddy enthusiasm and urged the Republican Senate to 
quickly confirm him to the Board. Today, unless a few of my colleagues 
on the other side of the aisle decide to stand up for workers, they 
will get their wish.
  We all know that Washington works great for the trade associations 
and their armies of lobbyists and lawyers, but it delivers one punch 
after another to the hard-working Americans who sent us to Washington 
to work for them. If Congress isn't going to stand up for workers, the 
very least we can do is give these workers a fighting chance to join 
together and stand up for themselves.
  It is the NLRB's job to make sure that employees can join unions if 
they want to. That is the law. A man who has spent 40 years beating 
back workers' efforts to form unions has no business on the Board. I 
urge my colleagues to join me in opposing his nomination.
  Mr. ALEXANDER. Mr. President, today the Senate will vote on the 
confirmation of William Emanuel to be a Member of the National Labor 
Relations Board, NLRB. I am glad that we are moving this nomination 
because, once Mr. Emanuel is confirmed, we will have a full five-member 
National Labor Relations Board, which has not been the case in nearly 2 
years.
  The NLRB was created in 1935 by the National Labor Relations Act, 
NLRA, which was significantly amended in 1947 by the Taft-Hartley Act. 
It has the statutory mission to promote ``free flow of commerce'' by 
allowing employees to organize and bargain collectively.
  The statute provides that ``employees shall have the right to self-
organization, to form, join, or assist labor organizations, to bargain 
collectively through representatives of their own choosing, and to 
engage in other concerted activities for the purpose of collective 
bargaining or other mutual aid or protection, and shall also have the 
right to refrain from any or all of such activities.'' The statute 
further provides that it is an unfair labor practice for unions to 
``restrain or coerce employees in the exercise of their rights.''
  After years of playing the role of advocate for organized labor, the 
new Board should return to the role of neutral umpire. Board 
partisanship did not start under President Obama, but it became worse 
under him. When the Board is too partisan, it creates instability in 
our Nation's workplaces and does not serve the intent of the law, which 
is stable labor relations and free flow of commerce. The Obama Board 
overturned numerous longstanding precedents that had been upheld for 
decades by both Republican and Democrat boards.
  Under President Obama, the Board took three particularly harmful 
actions. First, the joint-employer decision, which was the biggest 
attack on the opportunity for small businessmen and women in this 
country to make their way into the middle class that anyone has seen in 
a long time--threatening to destroy the American Dream for owners of 
the nation's 780,000 franchise locations. Second, the ambush elections 
rule, which can force a union election before an employer and many 
employees even have a chance to figure out what is going on. This rule 
also forces employers to provide union organizers with a list of 
employees' telephone numbers, email addresses, employee work locations, 
shifts, and job classifications--highly personal information that many 
employees may not wish to share. Third was the microunion decision, 
which gave factions of employees within single businesses a path to 
forming their own unions. This decision risks fracturing workplaces and 
creating the potential for conflict and uncertainty among employees.
  The Senate has the opportunity today to help reverse this harmful 
trend and bring stability to our Nation's workplaces by voting for 
William Emanuel and filling out the Board--again, for the first time in 
nearly 2 years. Mr. Emanuel is eminently qualified to serve on the 
NLRB. He is currently a shareholder at Littler Mendelson in Los Angeles 
where he works on labor and employment matters. Mr. Emanuel has spent 
the entirety of his impressive career in the private sector, 
representing trade associations, hospitals and healthcare 
organizations, schools, as well as transportation, logistics, and 
manufacturing companies. Mr. Emanuel has previously represented his 
clients before the NLRB and has filed amicus briefs on behalf of trade 
associations.
  Mr. Emanuel was nominated to be a member of the NLRB on June 29, 
2017. The committee received Mr. Emanuel's HELP application on June 30. 
On July 6, the committee received Mr. Emanuel's Office of Government 
Ethics paperwork, including his public financial disclosure and ethics 
agreement. Based on these documents, OGE determined that Mr. Emanuel 
``is in compliance with applicable laws and regulations governing 
conflicts of interest.''
  We held Mr. Emanuel's hearing on July 13, and he completed all 
paperwork in accordance with the HELP Committee's rules, practices, and 
procedures.
  Mr. Emanuel offered to meet with all HELP Committee members. Mr. 
Emanuel met with nine of them, including five Democratic members. 
Following the hearing, Mr. Emanuel responded to 62 questions for the 
record, QFRs, or 101 if you include subquestions, and those responses 
were provided to Senators prior to the markup. The HELP Committee 
favorably reported out Mr. Emanuel's nomination on July 19.
  I look forward to voting for William Emanuel, who will serve on the 
National Labor Relations Board with distinction.
  Mr. LEAHY. Mr. President, one of the most pernicious threats to the 
right of employees and consumers to access our judicial system has been 
the rise of forced arbitration. This practice unfairly eliminates 
access to our courts for millions of Americans. When used by employers, 
forced arbitration serves to shield corporations from the

[[Page S5881]]

consequences of harmful behavior, such as discrimination or sexual 
harassment. Today, the Senate is considering a nominee for the National 
Labor Relations Board, or NLRB, who has advocated in favor of forced 
arbitration in the employment context. Mr. Emanuel's support for 
stripping American workers of their rights is an important reason why I 
am opposing his nomination.
  The shadow justice system brought about by forced arbitration results 
in real harm to employees while serving only to protect powerful 
corporate employers. In a high-profile example from last year, former 
FOX News host Gretchen Carlson was barred from speaking publicly about 
her allegations of sexual harassment against the company's former 
chairman, Roger Ailes. Had she not spoken out and instead complied with 
the private arbitration clause in her contract, her case would have 
been hidden from public view, denying other victims of harassment the 
knowledge that they were not alone.
  In another disturbing case reported earlier this year, hundreds of 
current and former employees of Sterling Jewelers, a company that earns 
$6 billion in annual revenue, have for years alleged that the company 
is engaged in pervasive gender discrimination and has fostered a 
culture that condones sexual harassment. According to reports, this 
shocking behavior dates as far back as the early 1990s. Despite decades 
of allegations from women at the company, these claims were hidden 
behind closed doors because of private arbitration. The full details 
are still unknown today.
  These are just two examples that highlight the serious harm forced 
arbitration can cause employees. During the Obama administration, the 
NLRB found that the use of forced arbitration by employers to limit 
employees' rights to enter into class or collective actions violated 
the National Labor Relations Act. Mr. Emanuel participated in key cases 
related to this decision. I am concerned that his history of advocacy 
on this issue could lead to his prejudging the outcomes of subsequent 
cases that come before the Board.
  Unfortunately, Mr. Emanuel declined during his confirmation hearing 
to recuse himself from decisions related to forced arbitration should 
he become a member of the Board. His other answers on this issue did 
not sufficiently allay my concern that he would work to undermine the 
rights of employees to access our judicial system. As someone who has 
fought for years to protect Americans' access to the courts and has 
introduced legislation to limit the harms caused by forced arbitration, 
I must oppose his nomination.
  Ms. WARREN. Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is, Will the Senate advise and consent to the Emanuel 
nomination?
  Mr. DURBIN. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant bill clerk called the roll.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Mississippi (Mr. Cochran), the Senator from Florida (Mr. 
Rubio), and the Senator from Alabama (Mr. Strange).
  Further, if present and voting, the Senator from Florida (Mr. Rubio) 
would have voted ``yea.''
  Mr. DURBIN. I announce that the Senator from New Jersey (Mr. 
Menendez) is necessarily absent.
  The PRESIDING OFFICER (Mr. Lankford). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 49, nays 47, as follows:

                      [Rollcall Vote No. 203 Ex.]

                                YEAS--49

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Capito
     Cassidy
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Inhofe
     Isakson
     Johnson
     Kennedy
     Lankford
     Lee
     McCain
     McConnell
     Moran
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Sasse
     Scott
     Shelby
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--47

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Donnelly
     Duckworth
     Durbin
     Feinstein
     Franken
     Gillibrand
     Harris
     Hassan
     Heinrich
     Heitkamp
     Hirono
     Kaine
     King
     Klobuchar
     Leahy
     Manchin
     Markey
     McCaskill
     Merkley
     Murphy
     Murray
     Nelson
     Peters
     Reed
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden

                             NOT VOTING--4

     Cochran
     Menendez
     Rubio
     Strange
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table and the President 
will be immediately notified of the Senate's action.

                          ____________________