[Congressional Record Volume 168, Number 193 (Tuesday, December 13, 2022)]
[Senate]
[Pages S7107-S7114]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CONCLUSION OF MORNING BUSINESS
The PRESIDENT pro tempore. Morning business is closed.
______
EXECUTIVE SESSION
______
EXECUTIVE CALENDAR
The PRESIDENT pro tempore. Under the previous order, the Senate will
proceed to executive session to resume consideration of the following
nomination, which the clerk will report.
The senior assistant legislative clerk read the nomination of Dana M.
Douglas, of Louisiana, to be United States Circuit Judge for the Fifth
Circuit.
Mr. WARNOCK. Mr. President, I suggest the absence of a quorum.
The PRESIDENT pro tempore. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. SCHUMER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Warnock). Without objection, it is so
ordered.
Recognition of the Majority Leader
The majority leader is recognized.
Recognizing the Syracuse Orange Men's Soccer Team
Mr. SCHUMER. Mr. President, before I begin, I want to extend a
massive--massive--congratulations to the Syracuse Orange men's soccer
team for winning the NCAA College Cup national championship last night
in a heart-stopping 7-to-6 victory, after penalty kicks. A big congrats
to Coach McIntyre, all the amazing players, and the staff on a
phenomenal accomplishment--the first in Syracuse history. Go Orange.
Government Funding
Mr. President, now on the omnibus, a more serious subject,
negotiations for a yearlong omnibus agreement move forward. There is a
lot of work left to do, but we are optimistic that if we preserve the
good faith we have seen so far, we will get there. I remain hopeful
because despite disagreements about the ultimate package, there is
little disagreement that an omnibus is by far the best solution for
funding the government. Still, we are going to need a little more time
beyond this week to get an omnibus done.
To avoid a shutdown this Friday, the Senate should be ready to pass a
1-week CR by the end of this week to give negotiators more time to
finish an agreement by the holidays. The House is set to begin
consideration of a weeklong CR today, and after all the progress made
towards an omnibus agreement, I hope nobody here in the Senate stands
in the way of getting a
1-week CR passed quickly, through consent if needed.
Again, an omnibus is the best option--the most responsible option--
for funding the government in the next fiscal year. It will ensure that
the Federal Government has all the resources necessary to serve the
public at full capacity. It will make sure our troops in uniform are
taken care of. And I expect an omnibus will contain priorities both
sides want to see passed into law, including more funding for Ukraine
and the Electoral Count Act, which my colleagues in the Rules Committee
have done great work on. It will be great to get that done.
After all the work we have done this year to pass important new
bills, like the PACT Act and the CHIPS and Science Act and so much
more, a CR into next year could prevent the investment secured in those
bills from going out the door. The vast majority of us don't want to go
down that road. So, again, the best option--the most responsible
option--is to proceed toward an omnibus, even if it won't contain
everything both sides want.
Nomination of Arun Subramanian
Mr. President, now on judges, later this morning it will be my honor
to come before the Senate Judiciary Committee to introduce an
exceptional public servant, Arun Subramanian, whom President Biden
nominated on my urging to serve as a district judge for the Southern
District of New York.
[[Page S7108]]
Here on the floor, Arun Subramanian is one of the few South Asians who
are on the bench--we need more--but he will pave the way. And it is my
intention to continue to support South Asians to come to the bench.
Nomination of Dana M. Douglas
Mr. President, here on the floor, we will also proceed with the
confirmation of Dana Douglas to serve as circuit court judge for the
Fifth District, which covers Texas, Louisiana, and Mississippi.
Judge Douglas's confirmation today will be significant for a few
reasons. For one, Judge Douglas will be the 28th--the 28th--circuit
court judge this majority confirms in the last 2 years. Of the many
votes we take in this Chamber, confirming circuit court judges ranks
near the top in importance. The lion's share of all Federal cases,
after all, are decided at the circuit court level.
Judge Douglas is also significant because, after her confirmation,
the Senate will have confirmed 11 Black women to serve as circuit court
judges. This is a record for any single session of Congress. Before
President Biden, only eight such nominees had been confirmed by this
Chamber. So this is truly a historic shift in the court's composition.
This representation matters enormously. The health of our Federal
courts hangs on judges who will both apply the law correctly while also
earning Americans' trust in the first place. The more our courts look
like the country at large--the more languages and backgrounds and
specialties we have on the bench--the more likely the trust endures.
That is more important than ever, given the recent disturbing decisions
handed down by the Supreme Court.
That is why judges like Dana Douglas matter. That is why circuit
court judges matter. And we are going to keep working for the rest of
this year and beyond to bring diversity and balance back to our courts.
Respect for Marriage Act
Mr. President, on the White House signing ceremony, finally, this
morning I want to note my tie. I am wearing it today for two reasons.
First, it is a constant reminder of one of the happiest moments of my
life, the day my daughter got married. And, second, I am wearing it
because, later this afternoon, President Biden will sign the Respect
for Marriage Act into law.
For many Americans in same-sex marriages--or who one day wish to
marry their partner--today is a day of relief and of jubilation. By
passing this law, we are sending a message to LGBTQ
Americans everywhere: You, too, deserve dignity and equality under the
law.
Few bills have hit home for Members on the Hill quite like this one.
Marriage equality is not just the right thing to do for America, it is
personal for so many of us, our staffs, and our families.
My daughter and her wife are beautifully--praise God--expecting their
first child, my third grandchild, next spring, and I want them to raise
their child with all the love and security that every child deserves.
Thanks to the dogged work of many of my colleagues, my grandchild will
live in a world that will respect and honor their mothers' marriage.
And, look, nothing about the Respect for Marriage Act was inevitable.
On the contrary, it took a lot of faith and a bit of risk taking to
reach this point. When my colleagues came and asked me for a delay, I
made that choice, and it was because they believed--and I believed--
that the bipartisan process could indeed work.
It wasn't a decision we took lightly, but today that gamble is paying
off. So I thank my colleagues on both sides of the aisle for making
today's signing possible, and I thank my friend Senator Feinstein, who
originally authored this landmark bill. Because of them and because of
the millions of Americans out there who pushed for change, history will
be made at the White House later today.
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.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Recognition of the Minority Leader
The Republican leader is recognized.
Ukraine
Mr. McCONNELL. Mr. President, Senate Republicans have spent,
literally, months focused on the need for a strong bipartisan National
Defense Authorization Act, as well as robust funding for our Armed
Forces. Defending our homeland, deterring future threats, and
supporting our allies and partners should not be last-minute, low
priorities. They are fundamental duties if we want to remain the
strongest power in the world, and investing in strength today protects
our country, our servicemembers, and the American taxpayer tomorrow.
Let's take, for example, Ukraine. For nearly a year now, the free
people of a sovereign nation have stood firm and battled against brutal
and lawless aggression. The Ukrainians' brave stand was made possible,
in part, because the United States and a number of other countries have
realized that supporting their self-defense directly serves our own
interests.
Europe together constitutes America's largest trading partner.
Instability in Europe poses a direct threat to countless American
producers who sell to our friends across the Atlantic. Further, huge
disruptions to European markets would only add to the inflationary
challenges that the Democrats' spending has caused us already here at
home.
What is more, a successful Russian invasion would embolden the entire
club of anti-American thug regimes to take bolder and more brazen steps
toward further conflict, including direct threats to American lives.
Every day Russia spends on the back foot in Ukraine degrades its own
ability to wage further wars and dramatically changes the cost-benefit
calculus for others who might contemplate similar violence.
Continuing support for Ukraine is the popular mainstream view that
stretches across the ideological spectrum.
On my side of the aisle, for example, the former Director of National
Intelligence, John Ratcliffe, said recently that supporting Ukraine
``fully and completely'' is in the best interest of the United States.
The top foreign policy expert at the Heritage Foundation, James
Carafano, has spoken out forcefully about the need for continued
military assistance, and so has former Secretary of State Pompeo,
former Vice President Pence, and virtually every other leading national
security official from the previous administration.
Now, while the conflict has exposed serious weaknesses in Russia's
ability to wage a conventional war, it has also exposed shortcomings in
the West, particularly with our defense industrial bases.
Our European friends who had treated themselves to holidays from
history after the Cold War, who presumed a new normal of stability and
security and shifted spending disproportionately into domestic
programs, have received a harsh--harsh--wake-up call. They are rushing
to reinvest more in their own defenses. Some politicians here in
America fell victim to the same lullaby.
Now, fortunately, supplying the specific kinds of American armaments
that Ukraine needs does not cut our readiness in other important
regions, such as the Pacific. China and its neighbors are watching the
conflict in Ukraine closely, and the CCP would be delighted if Ukraine
fell to Russia.
But the long lead times to replenish what we are sending still
provide us with a sober reminder. We know, for a fact, that the world's
foremost military and economic superpower can and should both produce
all the capabilities that we need for ourselves and serve as freedom's
arsenal for our friends at the same time. We just need to organize our
resources and make critical, overdue investments in our defense
industrial capacity.
That is why the National Defense Authorization Act we will take up
soon provides multiyear procurement authority for longer term
certainty, planning, and efficiency. It authorizes significant
investments in modernizing our forces and capabilities.
But following through on these promises also requires that we pass
robust appropriations. I made that clear at
[[Page S7109]]
last week's briefing with the Biden officials.
I will say it again: Providing for the common defense is a
fundamental governing responsibility. It is not extra credit.
Our Democratic colleagues will not receive a goody bag of domestic
spending in exchange for fulfilling this solemn duty.
Tribute to Richard Burr
Mr. President, now on an entirely different matter, I would like to
begin my tribute to another of our distinguished departing colleagues
by quoting his own words from a letter written back in 2009. Here is
what he said:
Dear Mr. and Mrs. Carver, Thank you for entrusting me with
[your son's] memorial bracelet at the Asheville Veterans Day
Ceremony. I wish there had been more time to talk that day. I
returned to Washington, DC with the bracelet on my wrist . .
. [your son's] unrelenting courage and zeal for life are what
I will think of when I look at his name on my wrist. Rest
assured that I will wear [this] bracelet forever.
A quiet gesture, unheralded and understated, but leaving hugely
impactful ripples in its wake. A perfect case study of Senator Richard
Burr.
At first glance, it might appear to the uninitiated that our
distinguished friend is a man of contrasts or contradictions. For
example, this impeccably dressed Southern gentleman has been known to
drive around town in a rickety old Volkswagen. I think that our dear
departed colleague John McCain once called it ``an assault on the
senses''; or take the fact that when most of us were happy enough to
finish high school as either a successful jock or a successful student,
Richard was both a standout scholarship football player and winner of
the science fair; or consider that our unflappable, calm colleague with
an easy manner--almost casual, really--has been one of this Chamber's
most dogged legislators and most relentless champions across a whole
array of critically important causes.
That special bracelet bearing Army Chief Warrant Officer Mitch
Carver's name isn't just a comfort to one Gold Star family; it is an
outward sign of Richard Burr's entire approach to his job: supporting
service, honoring sacrifice, and making life better for folks in North
Carolina and across the Nation.
For 5 years, Richard's colleagues tasked him with helming the
Intelligence Committee. Some of this institution's most sensitive and
critical responsibilities wound up right in his lap.
But Senators on both sides knew that Richard's thoughtfulness,
fairmindedness, and discretion tailor-made made him for the role--no
showy victory laps, no braggy press tours. He led with the serious,
collegial, and patriotic tone that the issues actually demanded.
This quiet competence has been part of the Richard Burr brand from
the very beginning. As a backbench House freshman, Richard spearheaded
massive reforms of the Food and Drug Administration. Long before COVID-
19, he had a personal passion for helping to equip BARDA and other
pandemic preparedness initiatives.
Richard has authored transformational legislation that disability
advocates called the most important advance for their cause in a
quarter century. He reached across the aisle to help deliver justice
for victims of decades-old hate crimes. He drove bipartisan consensus
on a measure that has helped save students and families near $100
billion in loan payments.
In a situation folks in my own State know well, he stepped up to help
tobacco farmers transition to succeed in a freer market, and as the
ranking member of the Veterans' Affairs Committee, Richard delivered
much needed relief to men and women who served our Nation with the
Veterans Choice Act of 2014.
It is truly amazing what you can accomplish when you are willing to
be patient, keep an even keel, share some credit--oh, and occasionally,
even jump out a window. Let me explain. This is creative problem-
solving in action.
Back during sequestration, when staffing shortages had closed some of
the normal entrances and exits around the Capitol campus, our friend
found himself in the Russell Building while the only open exit was all
the way over in Dirksen. Rather than lengthen his commute, this ever-
pragmatic man of mystery found the lowest window around, grabbed his
dry cleaning, shimmied out, and hopped right down to the sidewalk.
Now the day is fast approaching when our colleague will escape from
this institution for good, but Richard's remarkable legacy here will
endure--whether that has meant using his charm and judgment of
character to disarm committee witnesses and get to the bottom of
complex issues under investigation or using his fluency in House-speak
to translate key happenings for us, his colleagues over here in the
upper Chamber.
And I would be remiss if I didn't mention how Richard excels at
turning up the pressure to break a stalemate. You see, if an issue is
dragging out and no solution appears forthcoming, unless Richard was
the point person himself, he would frequently just threaten to leave
town altogether until things got worked out.
We are talking about a colleague who is famous for keeping closer
tabs on the Senate's weekly wrapup proceedings than just about anyone.
In fact, as I understand it, Richard's team became so famous for
tracking the timing of final votes so closely that some other offices
would try calling Team Burr for the scoop before they would even try
the cloakroom.
Now, with Richard's seemingly laid-back demeanor, you might assume
our friend was just eager to get out to the beach or hit the links, but
that would be another one of those deceptive appearances. The truth is,
Richard didn't become an expert at speedy getaways because he wanted to
shortchange his duties. In fact, it was just the opposite. Even as
devoted a public servant as Senator Burr is, he knew that, in the final
analysis, another set of duties was even more essential.
When our colleague was first elected to the House in 1994, he and his
beloved wife Brooke had two young sons, and Brooke was carving out her
own tremendously successful career in business.
So our friend was bound and determined that serving the people of
North Carolina would not mean skimping on his proudest job of all--as
father to Tyler and William, and now as a grandfather as well.
Through decades of committed service, he has found a way to do it
all. But even so, I know Richard is excited to make up for lost time.
So we thank our colleague for his outstanding work for our country.
And I have it on good authority that our friend has a favorite catch
phrase that he has used to bid farewell to his office after they have
spent a long day doing good work. So, Richard, as you like to say,
``Dilly dilly.''
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.
Mr. THUNE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Padilla). Without objection, it is so
ordered.
Border Security
Mr. THUNE. Mr. President, last Tuesday, President Biden was asked why
he wasn't taking the opportunity to visit the border while traveling to
Arizona. His reply? ``Because there [is a] more important [thing] going
on.''
``[A] more important [thing] going on.''
Mr. President, no offense to new investment, but if President Biden
thinks that visiting a plant to celebrate new investment is more
important than the security and the humanitarian crises raging at our
southern border, then his priorities are seriously out of order, but,
of course, we already knew that.
This is hardly the first time the President has made it clear what he
thinks of the crisis at our southern border--as just an annoying
distraction from what he would rather be doing as President. In fact,
he has shown a remarkable ability throughout his Presidency to ignore
or minimize crises that he isn't interested in dealing with.
``There [is a] more important [thing] going on.''
I venture to suggest that for overwhelmed border communities
struggling with an apparently never-ending influx of illegal
immigration, there isn't anything--anything--more important going on,
and the President's
[[Page S7110]]
trivializing of our border crisis is a serious betrayal of the
responsibility he owes to these Americans and to all Americans.
The situation at our southern border is out of control and has been
that way for most of the President's administration. Over this past
weekend alone, Customs and Border Protection encountered more than
16,000 individuals attempting to cross our southern border illegally.
That is an average of 8,000 per day--higher than the daily average in
May, which posted the highest number of attempted illegal crossings
ever recorded. October saw a staggering 230,678 attempted illegal
crossings along our southern border.
All told, U.S. Customs and Border Protection encountered nearly 2.4
million individuals attempting to cross our southern border illegally
during fiscal year 2022. That is the highest number ever recorded,
exceeding the previous record set the year before by roughly 640,000.
Of course, these numbers just refer to individuals the Border Patrol
actually apprehended. There have also been almost 1 million known
``got-aways'' over the past 2 fiscal years and an untold number of
unknown ``got-aways.''
President Biden's comment doesn't just trivialize the scope of this
crisis; it also trivializes the human misery that has resulted. At
least 853 migrants died crossing the southern border in fiscal year
2022--the highest number ever recorded. It is hard to imagine that that
number wouldn't have been smaller if President Biden had gotten serious
about addressing this border crisis instead of inviting illegal
immigration with his lax border policies.
I mentioned overwhelmed border communities. I should also mention the
incredible strain the past 2 years have placed on the Border Patrol,
which has been forced to divert agents from border enforcement to the
overwhelmed humanitarian mission. Then, of course, there is the very
real danger represented by unchecked illegal immigration, including the
risk of dangerous individuals entering our country undetected and the
potential for increased drug trafficking.
Illegal drugs are flowing across our southern border and contributing
to violent crime not just in border communities but in communities
around the Nation. And that is not even to mention our Nation's
fentanyl crisis, which is being fed by drugs that are trafficked
across--where else?--our southern border. Our current border crisis is
an open invitation to increased illegal drug activity, but the
President has more important places to be than the southern border even
though, I should point out, he has never actually visited the southern
border--not once. The closest he got was literally driving by the
border on the way to a campaign rally in 2008.
For border communities and strained Border Patrol agents, I venture
to say that there is nothing more important than getting our Nation's
border crisis under control, but I guess we will just have to keep
waiting. After all, the President has more important things to do.
Inflation
Mr. President, in other tone-deaf comments from the Biden
administration last week, White House Chief of Staff Ron Klain said:
Fiscal responsibility is very important to us in the Biden
administration. We're very well aware that we have to stay
within our means economically. I think . . . you see that in
everything we've tried to do these past two years.
That was from the President's Chief of Staff.
Well, when I read that, I wasn't sure whether to laugh or cry or just
be angry on behalf of the millions of Americans who are currently
suffering as a result of the Democrats' lack of fiscal responsibility
over the past 2 years. We are currently in the midst of the worst
inflation crisis in 40 years. My daughters, who are married and have
their own children now, weren't even alive the last time inflation was
this bad.
November's inflation numbers came out this morning, and they just
confirmed what we already know: that we are still very much in the
midst of this crisis. Currently, inflation is up 13.8 percent since
January of 2021, when President Biden took office. Even if our
inflation crisis ended tomorrow, the inflation we have already
experienced will cost the average household more than $9,000 over the
next 12 months--$9,000. Now, for a lot of families, that is the
difference between prosperity and just getting by. For many others, it
is the difference between just getting by and not being able to get by
at all.
How did we get here? Well, in substantial part, it is thanks to the
President's and Democrats' fiscal irresponsibility.
When Democrats took office in January 2021, Congress had just passed
a fifth bipartisan COVID bill that met essentially all of the current
pressing COVID needs, but the Democrats just wanted to keep spending.
So, despite being warned that the size of the package they were
contemplating risked overheating our economy, under the guise of COVID
relief, the Democrats passed a massive and partisan $1.9 trillion
spending bill filled with unnecessary spending and payoffs to the
Democrats' interest groups. The economy, not surprisingly, overheated
as a result. Inflation began climbing and climbing and climbing again.
But what is almost worse and what makes the White House's claim that
they care about fiscal responsibility so incredibly ludicrous is what
the Democrats and the President did next. Even as it became clear that
their massive spending spree had helped set off a serious inflation
problem, the Democrats and the President kept pushing for more
spending. In fact, their goal, which they were, fortunately, prevented
from achieving, was passing another massive spending spree in the
neighborhood of $5 trillion.
Even after that plan was foiled, the Democrats and the President kept
right on pursuing more fiscally irresponsible legislation. In August,
the Democrats passed legislation, their so-called Inflation Reduction
Act--again filled with hundreds of billions of dollars in Green New
Deal spending, partially financed by tax hikes that will raise energy
prices and slow job creation.
Democrats tried to clothe the bill in an aura of fiscal
responsibility by claiming--dubiously, I might add--that it would
reduce the deficit by $300 billion.
Do you want to know how long that purported deficit reduction lasted
once the bill was signed into law? Eight days. Eight days. That is how
long it took for President Biden to completely wipe out any deficit
reduction of the bill by implementing his massive student loan
giveaway--a giveaway that not only wipes out any possible deficit
reduction but will also, according to the Committee for a Responsible
Federal Budget, ``meaningfully boost inflation.'' Yet we are supposed
to believe that the Biden administration values fiscal responsibility.
When it comes to fiscal responsibility, the Biden administration has
demonstrated that it could not care less. The Biden administration is
interested in implementing the big-government priorities of the far
left, no matter how much they cost. And, unfortunately, the American
people are the ones paying the price.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mrs. CAPITO. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Tribute to David McKinley
Mrs. CAPITO. Mr. President, today, I rise to really honor a seventh-
generation West Virginian, a lifelong Wheeling native, a devoted
husband, father, grandfather, and public servant, my very good friend,
Congressman David McKinley.
David and I have known each other for a very long time. He and Mary,
his wife, have extended steadfast love and friendship to my entire
family but, in particular, to my parents during some good times and
bad. Those friendships extended for many, many years and never wavered.
From when David was a delegate in the West Virginia State House to
when he chaired the West Virginia Republican Party to later when he
became my colleague and our colleague in the U.S. House of
Representatives, we worked together a lot.
David got a slot on the Energy and Commerce Committee during his very
[[Page S7111]]
first year in Washington. Now, I had already been there 10 years and
still hadn't made it to the Energy and Commerce Committee, so I was a
little bit jealous of David then. But, wow, did he really do tremendous
work on that committee.
Although time has gone by, David's passion and his love for West
Virginia have never wavered, and his pragmatic service has never
changed.
As the only licensed engineer in the House of Representatives--and if
you didn't know that, David is quick to tell you--his unique and
thoughtful analysis to challenges has helped his constituents
immensely, and it certainly made West Virginia a better place. And, by
the way, he has helped me understand some very complex issues.
In fact, I don't think there are as many Members of Congress who have
held townhall meetings on the Megabus to DC as David has to meet with
our constituents. But David never misses an opportunity to have a
conversation.
David has played an essential role in advancing legislation critical
to infrastructure, life-altering hearing aid devices, and securing the
pensions and retirement benefits that our West Virginia coal miners
rely on.
David is, and always will be, a problem-solver, and he brought
thoughtful solutions to the needs of our fellow West Virginians every
single day with unrelenting passion.
I have mentioned passion many times already in this short speech, but
``passion'' is a very fitting word because David does not do anything
halfway. He is passionate about our State of West Virginia. He is
passionate about West Virginia University's football team and all
sports teams. And he is always there ready to cheer on the
Mountaineers.
He is passionate about his hometown of Wheeling, and he is a
passionate defender of those Northern Panhandlers, which is what I am
as well. He is passionate about the men and women who have worked to
power our Nation and the solutions to our future.
But there is another component to David's public service and his life
that we must stop and recognize, and that is of his beloved wife, Mary.
Mary has truly been a partner to David and his work to make West
Virginia stronger and healthier. Mary received her masters of science
degree in nursing from none other than West Virginia University, has
had an exceptional career as a nurse at Ohio Valley Medical Center, and
is the director of education and professional development at the Ohio
Valley Health Services and Education Corporation in Wheeling.
But do you know what? Mary has a national presence as well. Mary
served as the national president of the American Association of
Critical Care Nurses. She epitomizes West Virginia's warmth and
friendliness, and we thank her for her service to our State as well.
As I reflect on Congressman McKinley's Federal work and
accomplishments, perhaps no other area has seen his trademark tireless
devotion than protecting and promoting the hard work and values
embodied by our West Virginia coal miners.
David has fought tooth and nail for our coal miners' livelihoods, for
their healthcare, and for their ability to power this Nation but
sometimes get taken for granted when we look at the sacrifices that
they have made.
As David turns the page on this chapter of his life, I am sure this
is not the last that we will hear from him. I certainly hope not. In
retirement, David and Mary will be able to enjoy time spent with their
four children and six grandchildren.
With David's time in Congress coming to a close, his thoughtful
approach to problems and his fearless advocacy on behalf of West
Virginians will be missed in this town, will be missed in our country,
but certainly can never be erased from our State and our country's
history. But his contributions and the example he set will continue to
stay with us always.
I admire David's tenacity and divisiveness. You really never have to
wonder what David McKinley thinks on a certain topic. I like that. I
like that. For that, we should all be grateful. I know that I and West
Virginians are certainly grateful.
So, David, thank you for your service. I know he is not coming back
into town until tomorrow, but I wanted to get this on the record. The
difference that you have made in our State that we both love, and the
friendship and counsel that you have provided me over the years is much
appreciated.
So when I see David and we have a conversation and he sends me on my
way, he has a trademark saying that he always says to me, so I am going
to say it back to him today. David, I will say this to you: Go get `em,
kid.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Louisiana.
Unanimous Consent Request--S. 5941
Mr. KENNEDY. Mr. President, I want to talk a few minutes about
Medicare.
If I am on Medicare and I go to my physician for an earache and my
physician treats me, hopefully successfully, my physician then does not
turn around and send a bill to Medicare that says: For services
rendered for an earache. What my physician does is fill out a form that
has a bunch of codes on it, and my physician fills out the form with
the code for an earache.
Now, what does that mean? That means that when that form with a code
for an earache goes to Washington, the administrators at Medicare look
up the code for an earache, and they know then how much they are going
to pay my physician for treating an earache.
As you can imagine, there are thousands of codes--literally thousands
of codes--because there are thousands of diagnoses for which our
citizens on Medicare seek treatment every year.
So, every year, Medicare puts out a fee schedule, and in its
essential form this is just a schedule listing all of the codes for all
the different illnesses that doctors who treat Medicare patients bill
for. And these codes, this fee schedule, are used to reimburse doctors
and hospitals. Well, of course, it is not as simple as that, and the
way that the codes are put together and the fee schedule is put
together are not exactly a model of clarity. And we need to do better,
and, hopefully, someday we will do better. But, at the moment, we have
to deal with reality as it is.
Now, in setting a code--or how much Medicare is going to pay my
doctor for treating my earache under Medicare--and in putting together
the fee schedule, which is put together by the Centers for Medicare and
Medicaid Services, which I will just refer to it as ``Medicare''--
Medicare takes all kinds of factors into consideration in deciding how
much to pay my doctor for an earache. Medicare looks at things like the
diagnosis, of course. Medicare will pay less for an earache than for
heart surgery. Medicare looks at the procedure that the doctor had to
use.
Medicare looks at the location. If I go to my doctor in Baton Rouge,
where my primary care physician is located, the cost of living in Baton
Rouge is lower than the cost of living in New York. So the fee for an
earache paid by Medicare to my Baton Rouge physician is going to be
lower than that paid to a physician in New York.
The fee schedule looks at time and expenses of the doctor. The fee
schedule that Medicare puts together looks at things like the cost of
maintaining a practice: rent, supplies, support personnel. The fee
schedule tries to take into consideration the cost of medical
malpractice.
So the point is that a doctor treating me in Baton Rouge for an
earache will not receive the same fee that a doctor, for example, in
New York will receive for treating a patient there under Medicare for
an earache.
But every year Medicare gets together and they send out a new fee
schedule, and it is a very complicated process. And that process is
complicated by the fact of what we call budget neutrality. Under
current law, the Centers for Medicare and Medicaid Services--or
Medicare, as I have been calling it--is required to make budget
neutrality adjustments to the payment schedule. And the technical
definition is--I will read it to you, and then I will explain it:
Medicare is required to make Medicare physician payment schedule
adjustments whenever changes in relative value units generate a payment
increase or decrease of $200 million.
I told you it was complicated.
Now, what does that mean? That means that Medicare is statutorily
required--required by Congress--to maintain budget neutrality, and this
means that, as certain codes increase in value, in order to maintain
budget neutrality, Medicare has to reduce payment for other codes.
Budget neutrality is also
[[Page S7112]]
much more complicated than I just explained it, but those are the basic
rules.
Now, here is the problem. The Centers for Medicare and Medicaid
Services--CMS, or Medicare, as I have been referring to it--has just
released their 2023 physician fee schedule. The new fee schedule has
come out, and because of the formula and because of the budget
neutrality requirement, CMS is proposing--or Medicare--a 4.5-percent
across-the-board reduction in Medicare payments. So every payment is
going to be cut 4.5 percent across the board.
Well, it gets even more difficult. Due to the $1.9 trillion deficit
increase caused by the American Rescue Plan and under our budget rules,
pay-go sequestration is going to be triggered by the American Rescue
Plan, and that is going to require an additional 4-percent reduction
across the board in payments to physicians and hospitals.
So unless we do something, every physician who treats a patient who
is on Medicare--it doesn't matter what for--is going to be paid 8.5
percent less--in the middle of raging inflation, in the middle of not
only doctor shortages but staff shortages as well.
Now, this is not the first time we have had this problem. We had it
last year, and we had it the year before. We solved it then, but we
need to solve it today. And you do not have to be a senior at Cal Tech
to figure out that if you cut physicians' fees for every different
diagnosis for which Americans seek treatment from a Medicare physician
by 8.5 percent, physicians are going to have to either make it up
somewhere or stop seeing Medicare patients. So all of a sudden your
doctor under Medicare is not taking any more Medicare patients. We
don't want that.
Not only that, but the Medicare fee schedule is looked to by private
insurance companies when they determine how much to pay physicians
under their insurance plans. That is the problem.
Here is what my bill would do to solve it. My bill would freeze the
current fee schedule in this sense--not per se but indirectly. My bill
would keep physician reimbursement at existing levels. So the amount
that doctors are paid today for that earache would be the same next
year.
My bill would pause the pay-go cuts until 2024. So, in effect, my
bill would prevent, next year, an 8.5-percent reduction across the
board to physician fees.
Now, I know what you are thinking, Mr. President. You are thinking:
Well, I have heard speeches by Kennedy before about controlling the
cost of spending in government and the rate of growth. So here he is
suggesting that we spend more.
And it is true that this bill would replace the fee schedule cuts by
adding money to the Medicare budget. The pay-go cuts would just be
postponed. But I have a pay-for. I am not asking this Congress just to
add spending and go borrow the money and put us further in debt. I have
a way to pay for it.
As you know, we sent--``we,'' meaning the U.S. Congress, sent--a lot
of money to our healthcare delivery system during COVID to help
patients, or, rather, to help physicians and hospitals deal with our
healthcare crisis. We sent a lot of that money through what is called
the Provider Relief Fund. These are dollars that were sent out to the
hospitals and the doctors to help them get through the COVID pandemic.
Our doctors and hospitals didn't use all that money. They have
returned some of it, believe it or not. As of February of this year, a
few months ago, they had returned $9.8 billion. And I suspect, by now,
they have returned, as best as we can tell from CBO, about $15 billion.
So we have $15 billion in our healthcare budget that is not accounted
for in terms of how it would be spent.
My bill would cost $2.25 billion. I would propose, Mr. President,
that we pay for that $2.25 billion and take it out of what I believe is
the $15 billion pot of money that was returned to the Provider Relief
Fund. So I have a problem, I have a solution, and I have a way to pay
for it without us having to spend money we don't have and thereby
borrow it.
So, Mr. President, as if in legislative session, I ask unanimous
consent that the Committee on Finance be discharged from further
consideration of S. 5194.
Let me stop just for a moment, Mr. President. We have to solve this
problem. We are going to solve this problem. We solved it last year,
and we solved it the year before. Nobody in this body wants to throw
people off Medicare.
Now, we are having trouble putting together a budget. I don't know
how that movie is going to end. It may end with an omnibus. It may end
with a continuing resolution, where we will wait for a new Congress.
But we need to solve this problem now and not make it contingent on an
omnibus and not make it contingent upon a continuing resolution. We
need to solve it now for the American people who depend on Medicare,
and that is what my bill does.
We can continue to fight over the budget. We can continue to fight
over the CR. But we are going to solve this problem today with a pay-
for, with my bill.
So I repeat, as if in legislative session, I ask unanimous consent
that the Committee on Finance be discharged from further consideration
of S. 5194 and the Senate proceed to its immediate consideration, and I
further ask that the bill be considered read a third time and passed
and that the motion to reconsider be considered made and laid upon the
table.
The PRESIDING OFFICER. Is there any objection?
Mr. WYDEN. Reserving the right to object, Mr. President.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, let me say to our colleague from Louisiana
that I very much agree with much of the statement he has given. I have
been interested in these sensible policies with respect to providers
since the days when I was codirector of the Oregon Gray Panthers. So
our colleague from Louisiana is talking about important issues.
As chair of the Finance Committee, I can say that nobody on either
side wants to see financial hardship for healthcare providers or
disruption to the healthcare system. This is particularly important
when you have got COVID, what looks like a god-awful flu, and an RSV
crisis filling up the doctors' and hospitals' waiting rooms nationwide.
What I can tell my colleague from Louisiana is that, on both sides of
the aisle on the Finance Committee, Democrats and Republicans have put
in some long hours--long hours--discussing solutions to these physician
payment issues with our colleagues in the House on both sides and the
administration.
Our discussions include other critical healthcare issues. For
example, I think my colleague knows that Senator Crapo and I have been
very focused on mental healthcare, making it easier for Americans to
get mental healthcare when they need it.
And we are especially proud that this bipartisanship is paying off.
As our colleagues may know, Senator Crapo and I got four major
provisions--four--into the commonsense gun safety law--everything from
helping kids on Medicaid, behavioral health--our colleague, Senator
Stabenow. So we believe strongly in writing black-letter law on a
bipartisan basis.
Now, the reason I am taking the time to put this into context, it is
very important that our bipartisan discussions on a yearend healthcare
package continue. Time is, obviously, short.
I am just coming off two red-eye flights to Oregon in the last 4
days, and I want my colleague to know, again, I appreciate much of what
he has said. I didn't come to the floor to say, Senator Kennedy is
horrible. Quite the contrary. I think he has good ideas here. Time is
tight, and I am confident there is a bipartisan agreement around the
corner.
I do say to my colleague, passing this proposal now, in my view,
would make this process that we are part of, Senator Crapo and I--
talking to the administration, talking to the House, and doing all the
things that my colleagues have a lot of experience on--passing this
proposal now would make it harder to reach a bipartisan agreement on
physician payments, mental health, a variety of other key kinds of
issues. So I will just say, with the understanding, a, that my
colleague has raised important points and, b, that Members on both
sides are working towards a
[[Page S7113]]
shared goal on this issue, Mr. President, I object.
The PRESIDING OFFICER. Objection is heard.
The Senator from Louisiana.
Mr. KENNEDY. Mr. President, I appreciate my good friend Senator
Wyden's comments. And I hope he gets some sleep off that red-eye
flight.
I am just going to repeat quickly what I said before.
I hope we can put together--we can't solve this problem without
passing a bill. I don't know if we are going to be able to pass a bill,
any kind of bill. Hopefully, before we go home for Christmas and before
this Congress ends, we will be able to do the National Defense
Authorization Act, which I think we are going to do this week. There
will be some people objecting to the NDAA. I know that. And it will
slow it down. But after they object and they get to be dramatic for a
little while, we will come back and pass the bill. And then we will
decide whether to do an omnibus or whether we are going to do a
continuing resolution and wait for the new Congress.
But in order to solve this problem, we have got to do something now.
And there are millions of Americans out there that are looking at an
8\1/2\ percent cut to Medicare when we have an 8-percent inflation.
That is a 16-point swing. And those millions of people are not just
physicians or nurses. They are patients who depend on Medicare for life
and death.
So I hope that the chairman of Finance, who is whip smart, will
consider my proposal. It would postpone the pay-go cuts of 4 percent,
and it would freeze the current fee schedule. If we don't, if the new
fee schedule goes into effect, we are going to have another 4\1/2\
percent cut--that is where I get the 8\1/2\ percent--and it would pay
for it.
It wouldn't increase debt at all. We pay for it, very simply, as I
explained. We pay for it out of the $15 billion in the Provider Relief
Fund.
And if our Finance Committee doesn't like that as a pay-for, I have
another one. You can pay for it out of the Medicare Improvement Fund.
It has 7.3 billion in it. Now, that is $24 billion we have got to solve
the $2.5 billion problem so the elderly in our country can sleep
tonight. So I hope my esteemed colleague will take this into
consideration. And I know that he will.
The PRESIDING OFFICER. The Senator from Louisiana.
Flood Insurance
Mr. KENNEDY. Mr. President, I am going to talk for a minute about
another subject: flood insurance. It doesn't do any good to offer flood
insurance when people can't afford it. And that is what FEMA is doing
right now.
We all know--or most people know--that you can't buy flood insurance
really in the private market. I mean, you can, but for the most part,
you can't. And if your house floods and you have homeowners insurance,
don't make the mistake of thinking your homeowners insurance covers it
because it doesn't. You have got to go buy special flood insurance.
And we have had this problem for a while, and the Federal Government
addressed it by creating the National Flood Insurance Program. We call
it, as you know, NFIP. About 5 million people who wouldn't be insured
for flood otherwise are members of the National Flood Insurance
Program. They don't get it for free. They pay for the flood insurance,
and they pay dearly.
My State, Louisiana, has 5,000 people out of 5 million who depend on
the National Flood Insurance Program. We in Louisiana have the highest
participation rate in the country, bar none. And despite what some
people may think, my people who are buying flood insurance, they are
not multimillionaires; they are working people. They are people who get
up every day and go to work, and they obey the law and pay their taxes.
They try to do the right thing by their children. They live paycheck to
paycheck. These aren't multimillionaires paying for this flood
insurance. And they are not paying for the flood insurance on mansions
on the beach. We don't have those in Louisiana. These are working
people.
Now, for my people and for most Americans who carry flood insurance,
their home is their biggest investment. It is the biggest investment
they will ever make. It is the most money they will ever spend at one
time. And so they want to protect their investment. And they need flood
insurance to do that. And we in the Federal Government solved the
problem when we created the National Flood Insurance Program.
Now, last year, FEMA, which is under the executive branch, of
course--we all know what FEMA is--FEMA rolled out the most significant
change in history in the way the National Flood Insurance Program
calculates the cost of flood insurance--the most important change in
history--and they didn't ask Congress for our input. They just did it.
They went out and hired a consultant who created a new algorithm. And
this algorithm, supposedly, says FEMA, can see the future. It can look
out 35 years and tell whether your home is going to flood and when it
is going to flood. And they cannot only look at a particular area, they
say this algorithm is so good that it can look at your specific
property and tell whether it is going to flood and assess the risk.
Man, I want a dozen of those.
FEMA calls this Risk Rating 2.0. There is just one problem: FEMA
won't tell any of us in the U.S. Congress, much less the American
people, how this algorithm works. I asked them to give me the
algorithm, and I would pay, at my expense--at my expense--to have
somebody evaluate it. FEMA said, if I showed it to you, Kennedy, I
would have to kill you. They won't show it to us.
But yet when I asked them about it--I have asked them in committees--
FEMA says, Risk Rating 2.0--that is what they call it--they say it is
fairer, and they say it is based on the value of your home and the
unique flood risk for that property. Once again, man, FEMA is
clairvoyant. This algorithm is awesome. They can look out 35 years;
they just won't tell us how they do it.
There is no transparency on this grading 2.0. People have absolutely
no idea, Members of the U.S. Congress have no idea, how this algorithm
works and how they come up with the specific price for every home in
America. But I will tell you what we do know: All the prices have gone
up.
Let me give you an example. In Louisiana, we have a lot of levees. A
lot of those levees are helped paid for with Americans' taxpayer money.
And we are grateful to our neighbors and America for helping us out.
But a lot of those levees are paid for by Louisiana citizens. We have
asked: How does this algorithm, in raising these prices, take into
account the levees? Are we getting credit for our levees? And they say:
Sure. And I say: Can you show me? And they say: If I showed you, I
would have to kill you; this is a secret algorithm.
No transparency. None.
Now, in the past, FEMA has already recognized levees and their
importance. And they say they are doing it now under Risk Rating 2.0.
But they won't show us how. And our levees work. Our levees work.
Last year, we had a number of storms. We had one that came through
New Orleans. We have a levee system around New Orleans. It held. Thank
you, American taxpayers. But we don't know how FEMA takes that into
account. They say they do. They say: Trust us.
You know, every now and then, I play poker with friends. And they are
all good friends. I trust them. But you know what, every time I play
poker, every hand, I cut the cards. It is not a matter of friendship or
trust. That is just the way it is supposed to be: transparency.
Now, this isn't just my opinion. There was an interview in the Times-
Picayune, Mr. Dwayne Bourgeois. Mr. Bourgeois knows what he is talking
about. He is the executive director of the North Lafourche
Conservation, Levee, and Drainage District in Louisiana. He is an
expert on floodwater drainage and levees. This is what he said about
the Risk Rating 2.0:
I [just] can't figure out why some people get this minimum
result and these other people get the maximum result. I can't
tell you what the secret sauce is to get to that rate.
And the reason he can't is because FEMA will not tell us what the
secret sauce is. What is the effect of this secret sauce? FEMA says it
is going to make everything fairer. I know this much: It is going to
make everything more expensive.
According to FEMA's estimates, 80 percent of the people who have
flood
[[Page S7114]]
insurance and have to have flood insurance in Louisiana--in part
because the mortgage company requires it--are going to see their rates
go up.
The likely average full-risk premium for a home in Louisiana under
this new secret sauce is $1,700. Under the old system, it was $766.
That is a 122-percent increase because of this algorithm, this secret
sauce, which FEMA will not let us see.
My people can't afford this. And the reality is, people are already
dropping flood insurance. They are saying: We just can't pay for it.
Something has to give. We have inflation at 8 percent or my rent has
gone up. Food has gone up. Gas has gone up. We just can't afford it.
The number of flood insurance policies in eight of my parishes--we
call our counties parishes--in eight of my parishes or counties, the
number of policies has dropped from 290,000 in October 2021 to 267,000
in November of 2022, and it has fallen.
So that is 22,000 people--almost 23,000--out of only 8 parishes or
counties who have had to give up their flood insurance.
Now, it is not just Louisiana, Mr. President. You may be having the
problem in California.
The Associated Press estimates that 1 million fewer Americans will be
able to afford to buy flood insurance by the end of the decade because
of Risk Rating 2.0, their algorithm, their secret sauce. And E&E News
has identified 425,000 policyholders across the country who have
already discontinued coverage.
What does that mean for each State? Well, for example, cancellations
of flood insurance because they can't afford it. Eleven percent of the
people of California who were buying flood insurance can't afford it
anymore, they have dropped it; 11 percent of the policyholders in
Texas; 9.6 percent in Florida; in Virginia, North Carolina, Georgia,
and South Carolina, 8 percent.
Now, this is a disaster waiting to happen. And I am all for a fair
system, but I will tell you what I am not for. I am not for having a
Federal Agency, without consulting the U.S. Congress, without talking
to you, Mr. President, about your policyholders in California or me in
Louisiana, without explaining to us how they are doing it, just
unilaterally raising prices with an algorithm or their secret sauce, as
I call it.
Now, Senators Cassidy and Gillibrand and I have introduced a bill. It
is called the Flood Insurance Pricing Transparency Act. It is a
bipartisan bill. All we are asking that FEMA do is talk to us and tell
us how they are coming up with these rate increases.
The American people pay the salary of the people at FEMA, and my
people and your people, Mr. President, deserve to know how their
policies are being priced.
And, Mr. President--Mr. President Biden, if you are listening--I hope
you will pick up the phone and you will call your FEMA Director, for
whom I have great respect--I don't hate anybody--but I hope the
President will call the FEMA Director here and ask him what planet he
just parachuted in from and what is he thinking, raising these kinds of
prices without telling the American people why.
Nomination of Dana M. Douglas
Mr. DURBIN. Mr. President, today, the Senate will vote to confirm
Judge Dana Douglas to the U.S. Court of Appeals for the Fifth Circuit.
Born and raised in New Orleans, Judge Douglas' passion for the law
and public service was inspired by her family's background in law
enforcement. In particular, her mother, Ms. Ida Woodfork, served in the
Orleans Parish Sheriff's Office for 30 years, and her uncle, Mr. Warren
Woodfork, Sr., was the first Black superintendent of the New Orleans
Police Department.
Judge Douglas earned her B.A. in social work and Black world studies
at Miami University and received her J.D. from Loyola University School
of Law. From there, she clerked for Judge Ivan L.R. Lemelle on the U.S.
District Court for the Eastern District of Louisiana.
Judge Douglas then spent 18 years litigating, trying four cases to
verdict or judgment and handling several administrative matters before
State agencies. Although she worked in private practice, she also
served the community for 9 years as a commissioner and then vice
president of the New Orleans Civil Service Commission, a quasi-judicial
body regulating the city's civil service.
Since 2019, Judge Douglas has served as a magistrate judge for the
Eastern District of Louisiana. In that time, she has authored 111
reports and recommendations, all of which have been adopted in whole or
in part by the district court.
Judge Douglas enjoys the strong support of Senators Kennedy and
Cassidy, and the American Bar Association unanimously rated her as
``qualified'' to serve on the Fifth Circuit.
If confirmed, Judge Douglas will be the first woman of color to serve
on the Fifth Circuit.
Judge Douglas' experience, qualifications, and temperament will be
assets on the Fifth Circuit, and I urge my colleagues to join me in
supporting her nomination.
Vote on Douglas Nomination
The PRESIDING OFFICER. Under the previous order, the question is,
Will the Senate advise and consent to the Douglas nomination?
Ms. SMITH. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from Colorado (Mr.
Hickenlooper) is necessarily absent.
Mr. THUNE. The following Senators are necessarily absent: the Senator
from Texas (Mr. Cruz), the Senator from Alaska (Ms. Murkowski), and the
Senator from Alaska (Mr. Sullivan).
The result was announced--yeas 65, nays 31, as follows:
[Rollcall Vote No. 388 Ex.]
YEAS--65
Baldwin
Bennet
Blumenthal
Blunt
Booker
Brown
Burr
Cantwell
Capito
Cardin
Carper
Casey
Cassidy
Collins
Coons
Cornyn
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Graham
Grassley
Hassan
Heinrich
Hirono
Kaine
Kelly
Kennedy
King
Klobuchar
Leahy
Lujan
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Ossoff
Padilla
Peters
Portman
Reed
Romney
Rosen
Rounds
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Tillis
Toomey
Van Hollen
Warner
Warnock
Warren
Whitehouse
Wicker
Wyden
Young
NAYS--31
Barrasso
Blackburn
Boozman
Braun
Cotton
Cramer
Crapo
Daines
Ernst
Fischer
Hagerty
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Lankford
Lee
Lummis
Marshall
McConnell
Moran
Paul
Risch
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Thune
Tuberville
NOT VOTING--4
Cruz
Hickenlooper
Murkowski
Sullivan
The nomination was confirmed.
The PRESIDING OFFICER (Ms. Sinema). 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.
____________________