[Congressional Record (Bound Edition), Volume 155 (2009), Part 23]
[Senate]
[Pages 31459-31506]
[From the U.S. Government Publishing Office, www.gpo.gov]




  TRANSPORTATION, HOUSING AND URBAN DEVELOPMENT, AND RELATED AGENCIES 
          APPROPRIATIONS ACT, 2010--CONFERENCE REPORT--Resumed

  The PRESIDING OFFICER (Mr. Begich). The clerk will report.
  The bill clerk read as follows:

       Conference report to accompany H.R. 3288, making 
     appropriations for the Departments of Transportation and 
     Housing and Urban Development, and related agencies for the 
     fiscal year ending September 30, 2010, and for other 
     purposes.

  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, one of the troubling aspects of this 
conference report is that the appropriators air dropped three very 
significant spending bills into the text during conference. In other 
words, three bills without any debate, discussion or amendment were air 
dropped into this pending legislation. The three bills are the Labor-
HHS-Education, financial services and general government, and the 
State-Foreign Operations appropriations bills. Combined, these three 
bills spend over $237 billion and contain 2,019 earmarks. It is 
remarkable and unacceptable that the Senate is willing to approve 
expenditure of such huge sums without the opportunity to debate and 
amend their content.
  I see the Senator from Hawaii, who will say: This is the way we have 
had to do business before. We have to do this because of the pressure 
of time, the fiscal year ended, et cetera, et cetera. Again, we get 
back to this old line that we heard for an entire year and even early 
this year about change, about how we were going to change things in 
Washington. We are going to change the way we do business.
  President Obama said about the last omnibus bill passed last March, 3 
months into the Obama administration:

       The future demands that we operate in a different way than 
     we have in the past. So

[[Page 31460]]

     let there be no doubt: this piece of legislation must mark an 
     end to the old way of doing business and the beginning of a 
     new era of responsibility and accountability that the 
     American people have every right to expect and demand.

  What are we doing today? The exact same thing that we were doing 
before.
  Here is a quote from the White House Chief of Staff Rahm Emanuel 
about the last omnibus bill. This is the one we weren't going to do 
anymore.

       Second, this is last year's business.

  He was talking about the one we passed in March.

       And third, most importantly, we are going to have to make 
     some other changes going forward to reduce and bring more--
     reduce the ultimate number and bring the transparency. And 
     that's the policy that he enunciated in his campaign.

  Bob Schieffer:

       But it sounds to me like what you're--what he's about to 
     do, here, is say, well I don't like this but I'm going to go 
     ahead and sign it--

  Talking about the last omnibus bill--

     but I'm going to warn you, don't ever do it again. Is that 
     what's about to happen here?

  Emanuel:

       In not so many words, yes.

  And then, of course, the Senate majority leader said about the last 
omnibus:

       We have a lot of issues we need to get to after we fund the 
     government, something we should have done last year but we 
     could not because of the difficulty we had with working with 
     President Bush.

  I wonder if we are going to blame President Bush for this one. If it 
rained, if it didn't rain? We blamed him for almost everything. 
Whatever it is, let's blame President Bush. The point is, what this 
bill is, and another one that will be coming up in a couple days, is 
exactly the same business as usual, a porkbarrel-laden bill with 
increases in spending when the American people are hurting in the worst 
possible way. The American people are hurting and the Labor, Health and 
Human Services and Education appropriations bill has $11.3 billion or a 
7-percent increase in spending over last year's spending level. Where 
are we? This is America. Americans are hurting. There is 10 percent 
unemployment. People can't stay in their homes. They can't keep their 
jobs. We are passing a piece of legislation with 1,749 earmarks just in 
the Labor, Health and Human Services piece of over $806 billion.
  Do you want to hear a few of them? They are fascinating. Here is my 
favorite of all--there are a lot of good ones--$2.7 million to support 
surgical operations in outer space at the University of Nebraska. I 
assure my colleagues, I am not making that up. That is an appropriation 
in this bill. Let me repeat: $2.7 million to support surgical 
operations in outer space. There are a lot of compelling issues before 
the American people. Surgical operations in outer space at the 
University of Nebraska? I guess the University of Nebraska has some 
kind of expertise that they need $2.7 million so we could support 
surgical operations in outer space. I wonder when the next surgical 
operation is scheduled in outer space? Maybe we ought to go into that.
  I will be spending more time on the floor on this. But $30,000 for a 
Woodstock film festival youth initiative? Woodstock was a pretty neat 
experience, but do we need to spend $30,000 to revisit that one? There 
is $200,000 to renovate and construct the Laredo Little Theater in 
Texas. The next time you are in Laredo, be sure to stop by the theater 
and see $200,000 of your money which is going to renovate and construct 
this little theater. There is $500,000 for the Botanical Research 
Institute of Texas in Fort Worth; $200,000 for a visitors center in 
Bastrop, TX, a visitor center there in Bastrop with a population of 
5,340 people. We are going to spend $200,000 of my taxpayers' dollars 
to build them a visitor center. There is $200,000 for design and 
construction of the Garapan public market in the Northern Mariana 
islands; $500,000 for development of a community center in Custer 
County, ID, population 4,342. If my math is right, that is about $100 
per person. Right here in our Nation's Capital, $200,000 to the 
Washington National Opera for set design, installation and performing 
arts at libraries and schools. They have an operating budget of $32 
million. Their Web site says the secret of its success is due to its 
position without the crucial government support typical in most world 
capitals. Then, of course, we always get back to Hawaii: $13 million on 
fisheries in Hawaii, nine projects throughout the islands ranging from 
funding the bigeye tuna quotas, marine education and training, and 
coral research.
  The list goes on and on. The next time you are in New York, go to 
Lincoln Center. We are spending $800,000 of your money for jazz at the 
Lincoln Center. Jazz lovers, rejoice. For those who are not jazz 
lovers, we have $300,000 for music programs at Carnegie Hall; $3.4 
million for a rural bus program in Hawaii. Apparently, the $1.9 million 
in the 2009 omnibus was not enough. In other words, we gave $1.9 
million for this rural bus program in Hawaii so we have to now give 
them $3.4 million more.
  Custer County, ID, with a population of 4,342, as of the year 2000--I 
am sure they have grown since--$500,000 for development of a community 
center in Custer County, ID.
  The list goes on.
  Then, of course, it is loaded with controversial policy riders that 
should have been debated in the Senate.
  In the Department of Labor bill, the conference rescinds $50 million 
from unobligated immigration enforcement funds under section 286(v) of 
the Immigration and Nationality Act. This will result in a decrease in 
the enforcement of immigration law. I guarantee you, if that provision 
had been debated here on the floor of the Senate, that $50 million 
would never have been removed.
  The conference agreement includes new language providing authority to 
the International Labor Affairs Bureau, the agency charged with 
carrying out the Department of Labor's international responsibilities. 
This may be a worthy program, but it should be addressed in 
legislation.
  There are so many other policy provisions in this bill which have not 
been authorized, which is supposed to be done by authorizers.
  The conference agreement provides $35 million for the Delta Health 
Initiative. The Delta Health Initiative provides a service to 
individuals in only one area of the country, the delta region of 
Mississippi. I have visited the delta region in Mississippi, and there 
are severe health needs. But couldn't we authorize this program? 
Couldn't we authorize it? Couldn't we have the proper debate and 
discussion?
  The list goes on and on.
  Of course, there is $25 million ``for patient safety and medical 
liability reform demonstrations'' that was not included in the House or 
Senate. Medical liability reform demonstrations--there is a 
demonstration project already in being. It is called the State of 
Texas, where they have reduced medical malpractice costs dramatically, 
and the physicians and caregivers are flowing back into the State of 
Texas.
  Mr. President, I will be talking more later this afternoon about all 
the pork and earmarking that is in this bill.
  I have to tell you that the anger and the frustration out there is at 
an incredibly high level. Those of us who--I am sure most of us do--
spend a lot of time at townhall meetings and hearing from our 
constituents know there is a level of anger out there, the likes of 
which I have not seen before. Here they are, hurting so badly because 
they cannot keep their homes and their jobs. My home State of Arizona 
is No. 2 in the country of homes where the mortgage payment is higher 
than the home value--48 percent of the homes in my State. So here we 
are with 10-percent unemployment, with deficits--this year of $1.4 
trillion--and there are dramatic increases, a 7-percent increase in 
spending in one, a 14-percent increase in spending in the other, and 
they do not get it. They do not get it. They do not get it. Americans 
are having to tighten their belts.
  My home State of Arizona is in a fiscal crisis. They are having to 
cut services to our citizens because we cannot print money in Arizona. 
They only print money here. And here we are with Omnibus appropriations 
bills with as high as a 14-percent increase in spending, loaded down 
with billions of dollars worth of porkbarrel projects.

[[Page 31461]]

  I predict to my colleagues that the anger out there will be manifest 
in a number of peaceful ways, including in the ballot booth. They are 
sick and tired of this. I saw a poll yesterday where the approval 
rating of Members of Congress has fallen below that of the approval 
rating for used car salespersons. I think it was at 4 percent, as I 
recall the poll. I have not met any of the 4 percent. I have not met 
anybody who approves of what we are doing.
  This exercise we are in right here, on December 11, 2009, with a 
pork-laden Omnibus appropriations bill which frivolously and 
outrageously spends their dollars when they are struggling to keep 
their heads above water is something that is going to be rejected 
sooner or later by the American people. I have warned my colleagues 
that the American people are sick and tired of this. They did not like 
it before. Now they are fed up with it.
  We will be hearing more this afternoon.
  So, Mr. President, I rise today to raise a point of order under rule 
XXVIII against H.R. 3288, the Omnibus appropriations bill. I do this to 
ensure that this bloated legislation is not permitted to proceed to 
full consideration by the Senate.
  Specifically, rule XXVIII precludes conference reports from including 
policy provisions that were not related to either the House or the 
Senate version of the legislation as sent to conference. Several 
provisions included in division D--the Departments of Labor, Health and 
Human Services, and Education, and Related Agencies Appropriations 
Act--of this omnibus bill are out of scope and were never considered on 
the floor of the Senate.
  Mr. President, I raise a point of order that the conference report 
violates the provisions of rule XXVIII.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. INOUYE. Mr. President, I move to waive all applicable sections of 
rule XXVIII, and I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. McCAIN. Mr. President, I yield the floor.
  The PRESIDING OFFICER. Under rule XXVIII, there is up to 1 hour 
equally divided.
  The Senator from Hawaii.
  Mr. INOUYE. Mr. President, I yield myself 10 minutes.
  Mr. President, I rise today with mixed emotions. When I assumed the 
chairmanship of the Appropriations Committee last January, I 
immediately reached out to the senior Republican member of the 
committee from Mississippi, Senator Cochran, to seek his support in 
achieving my central objective for the fiscal year: to return this 
appropriations process to the regular order. The vice chairman, Senator 
Cochran, agreed wholeheartedly, and together we committed to passing 
all 12 appropriations bills individually and to sending each of the 
completed bills to the President for his signature.
  It might be of interest to my colleagues that of the 12 bills 
assigned to this committee, 11 were passed by the end of July, many 
months ago. One was held up at the request of the House but passed in 
mid-September. This is December. These bills have been passed. And it 
might be of further interest to the Senate that of the 12 bills, 9 were 
passed unanimously, bipartisan, 30 to 0. Three passed by one 
objection--29 to 1.
  Completing action on our annual appropriations bills is our most 
fundamental responsibility. The Founding Fathers gave us the power of 
the purse, and for good reason. Our system of checks and balances, 
which has served us so well in the last 220 years, allows the executive 
branch to propose spending initiatives that make clear to us their 
intentions and desires. But the Constitution gives the Congress the 
ultimate decisionmaking authority, and it is our responsibility to 
fulfill this obligation.
  Regular order allows each Senator the opportunity to debate and to 
amend each bill on an individual basis. Every Senator on both sides of 
the aisle recognizes that regular order is the preferred course of 
action.
  The underlying Transportation, Housing and Urban Development bill 
will provide urgently needed funding so we can keep our transportation 
system safe and strong and provide much-needed assistance to our most 
vulnerable populations.
  In addition, every one of the six bills we consider today was 
reported out by the full committee. As I pointed out, three of them 
were passed unanimously and the other three by a vote of 29 to 1. Every 
one of them has been written in a bipartisan fashion with considerable 
input on the part of the minority party.
  The negotiations with our House counterparts have been spirited at 
times, but I can assure my colleagues that on the difficult issues, our 
subcommittee chairmen and ranking members have done an excellent job of 
defending Senate positions and of coming to fair and equitable 
compromises when such was necessary.
  I would also note that on Tuesday evening, we held a full and open 
conference with the House at which every conferee, including 22 Members 
of the Senate, bipartisan Members, and 14 Members of the House, also 
bipartisan, was afforded the opportunity to offer amendments on any 
provision of the legislation. For the record, comity was demonstrated 
by the Senate conferees, and no amendments--no amendments--were offered 
on our side. At the conclusion of the conference, 16 conferees, 
including 4 Republican members, signed the conference report.
  Finally, I can say this is a clean bill. There are no extraneous 
measures attached. For this reason, as I just mentioned, we have 
bipartisan support of the bill, and I am proud of that fact.
  Some have criticized this bill as spending too much. I will point out 
that the amounts recommended in the bill are below the amounts 
requested by the President and equal to the amount approved by the 
Congress in the Budget Committee. It has been a long process. 
Furthermore, the only area where the committee exceeded the amount 
requested by the President is for military construction and for 
veterans.
  Moreover, some have criticized the majority for resorting to an 
omnibus measure once again. Clearly, those who criticize are those 
responsible for this outcome. When the Senate needs 4 days to pass a 
noncontroversial conference agreement on the Energy and Water 
appropriations bill, we know the only reason can be that a few Members 
want to delay our progress. Why do they want to do that? So they can 
complain when the calendar has expired and we have no time left for the 
regular order.
  As a reminder to all of us, the Military Construction bill was 
delayed for 6 days of debate on this floor. It was a bill that was 
voted out of the Appropriations Committee unanimously, bipartisan-wise, 
and then delayed. But after the delay of 6 days, this Senate passed it 
by a vote of 100 to 0. What was the opposition all about? What was the 
delay all about, when everyone here was in favor of it? There was not a 
single dissenting vote, so it is obvious there was not opposition to 
the bill. It was simply that a few Members wanted to delay the bill.
  Mr. President, now is December 11, and it is nearly time to adjourn 
the Senate for the year. We have not completed our work, and therefore 
we have consolidated six appropriations bills in one measure. My 
colleagues know precisely why we have reached this point, and it is not 
the fault of one member of the Appropriations Committee, nor the fault 
of the majority. It is the fault of a handful of Members who would 
rather see the responsibility for funding our Federal Government turned 
over to the bureaucrats and administration than have the Congress 
exercise its constitutional responsibility. I am a very patient person, 
but at times the rhetoric of this debate is too much to take.
  With Senator Cochran, my vice chairman, as my partner, we have tried 
to move 12 individual bills only to be thwarted by a few Members--just 
a few Members. That is why we are here and where we are today with an 
omnibus bill.
  As we look ahead to consideration of fiscal year 2011 appropriations 
bills, I

[[Page 31462]]

hope all Members of the Senate will learn from the frustrations of this 
year. We can succeed in returning to regular order for appropriations. 
We only need a modicum of cooperation and a recognition that delay for 
the sake of delay serves no one's best interests, least of all the 
people of the United States.
  I strongly support this clean, bipartisan bill. I urge my colleagues 
to support it as well.
  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.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ENZI. Mr. President, for several weeks I have been saying, where 
are the appropriations bills? Under Federal law, we are supposed to 
have those done by October 1--October 1. Let's see. This is December 
10. We must be past that deadline.
  Well, here come the bills. They are all packed into one. There won't 
be the debate we would get if we handled them one by one. It is 
fascinating to me that one of them is Health and Human Services. All 
year we have heard that health is what is breaking the people of this 
Nation, how important health care is; why we have to do health care 
reforms under strict deadlines--strict deadlines that have shifted a 
number of times and are irrelevant to getting a good bill. But health 
care is that important, and it is one-sixth of the Nation's economy. So 
why haven't we had the health care appropriations debate before October 
1? Why did it get put off until now? I guess it is because all of the 
earmarks weren't ready yet or maybe it is because they thought this 
bill ought to pass and solve all of the problems.
  I think the bill could have passed much faster. I think it could have 
solved a lot more problems. If it would have had the kind of 
bipartisanship Senator Durbin keeps describing as having happened, we 
would already have the bill done. Much of what he keeps repeating--and 
the more times you repeat it doesn't make it more true--in every speech 
he gives, he makes the same comments about how long the HELP Committee 
worked on this bill and how many amendments from the Republican side 
were automatically accepted into the HELP bill. We always have to come 
out and correct that. Yes, there were a number of amendments. That bill 
was put together over a period of 2 weeks with a new committee 
chairman, without a single input from Republicans. It was brought to 
the committee for markup. We did have about 3 days to do amendments, 
and we did a lot of amendments. They did accept some of the amendments. 
Of course, we helped correct punctuation, we helped correct spelling, 
and we did have a few amendments that were accepted that actually made 
a difference.
  After the vote, they didn't publish the bill for the public to look 
at--the amended version of the bill for the public to look at. I think 
that was so they could rip out the Republican amendments they had 
accepted. That has never been done in committees. When amendments are 
accepted, they are left in the bill, or at least the Senator who 
proposed the amendment gets to talk about why maybe it should or 
shouldn't be in there, or at least he is informed that they are going 
to rip it out. Not in this case. The bill is published, we are looking 
for some of these things and find they are gone. Then they wonder why 
there is opposition to the bill.
  Then he talks about the hours we spent together working as the Group 
of 6. I appreciate him mentioning the hours, but hours don't make any 
difference if ideas aren't taken. The purpose of the hours is to be 
able to express ideas that can be included in a bill. Just getting to 
express them isn't enough. To make them bipartisan, they have to be 
included. Anybody who looks at the things we have on our Web sites 
would understand that we did have some good ideas, some things that 
would make a change in the way we do health care in America. Are those 
in this bill? No.
  This is the Reid bill. This wasn't put together by the HELP Committee 
or the Finance Committee, although significant parts of both of those 
bills, which we didn't have input into, are a part of it. How was that 
designed? That was designed behind closed doors right over there, with 
no Republican input whatsoever. How does that make it bipartisan? How 
does that even give us a chance to make it bipartisan? Then they wonder 
why we have amendments.
  Here is a fascinating thing on amendments: In the HELP Committee, the 
Democrats presented more amendments than the Republicans did. The 
Republicans did get two that we voted on and passed. The Democrats had 
over 30 that they presented to get passed. How come they even had to 
put in amendments? It was their bill. We are facing the same thing with 
the bill that is on the floor here. They are putting in more amendments 
than we are. Every time we put in an amendment they have a side-by-side 
on it to give them some cover to say, well, what they said wasn't that 
important. It wouldn't make a difference. Besides that, we don't want 
to do it, so we will have something that says we voted for that 
concept.
  If you put the bill together, you shouldn't be the ones filibustering 
and doing the amendments. They have a unique position here now. We have 
a Democratic amendment and a Democratic side-by-side. I don't remember 
ever seeing that before. But we had a request this morning for three 
Democratic votes and one Republican vote. That is real bipartisanship? 
Yet they want the cooperation.
  The thing that upsets me the most is they keep saying this will save 
money, this bill is going to save the country money, and we are in this 
appropriations process and we ought to be interested in saving the 
country money. But CBO didn't say that. CBO did not say that this bill 
will save money, unless you use a whole bunch of phony accounting, and 
there is phony accounting in this bill. That is how they are able to 
say, Oh, yes, we save money. We save money. This is going to save the 
American people a lot of money. No, it does not. Do not buy that story. 
Look at the accounting. I am the accountant. I have taken a look at it, 
but I am not that good of an authority.
  We just got the report from the CMS chief actuary. Yes, that is the 
actuary who is actually in charge of Medicare and Medicaid and he did 
an analysis on it. I am going to go into some more detail on that 
analysis, because he says this bill does not save money. This bill will 
cost seven-tenths of 1 percent more than if we did nothing. Is that 
health care reform?
  And where is the transparency we were promised would happen under 
this administration? Transparency? They built the bill behind the 
closed doors over on that side of the Senate Chamber and now a 
significant part of the bill--which is called the public option, 
government option, government-run program, whatever you want to call 
it--has been drastically changed. The newspapers have written about it. 
People have seen it. But the newspapers haven't seen what is in there. 
The Democrats, according to Senator Durbin, the majority whip, have not 
seen that bill. The only one who has seen it is Senator Reid and the 
Congressional Budget Office. He is not going to disclose any of that--
any of that--until after he sees what the score is going to be. That is 
the ultimate in transparency, in my opinion. If you think you have a 
good idea, maybe you ought to let people see what the score is and see 
what the bill is, and you ought to if you expect us to debate it in a 
hurry. That is what we are under, this hurry-up situation. Hurry up so 
a bill that isn't going to do anything until 2014 can be passed by 
Christmas.
  This side is ready to reform health care. This side is ready to stay 
in through the weekend. We already stayed in through last weekend. We 
will stay in until Christmas. We will stay in the days after Christmas. 
We

[[Page 31463]]

will stay in next year. But it has to be right. The American public 
expects this to be right.
  There has never been a major piece of legislation passed by this body 
in the history of the United States that was passed by one party. Not 
yet, there hasn't been. There is a good reason for that. It is full of 
flaws if just one side's ideas are incorporated in the bill, and this 
is no exception. This has a lot of flaws. This is a real move to the 
left to incorporate most of the people over there, but they weren't 
able to incorporate all of them, so now they are doing a secret public 
option to expand Medicare to distract people without telling them what 
is in it and expecting us in a few days to vote on this thing.
  Well, I am going to share some of these numbers from the CMS chief 
actuary a little later, but I see my colleague is here and is actually 
going to talk mostly on the appropriations bill. I will say that what I 
have had to say ties in directly to appropriations. It is spending 
money. We are going to spend $464 billion of Medicare money from a 
system that is going broke and we are going to raise taxes--that is 
kind of an appropriation too--to cover the other $\1/2\ trillion in new 
programs that are not going to lower premiums or save the United States 
money, according to the CMS Chief Actuary Rick Foster.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. DeMINT. Mr. President, I wish to thank Senator Enzi for not just 
what he said today but for what he has been doing throughout this whole 
debate to make very complex issues much simpler so that people can 
listen in to what is being said here and understand what we are doing. 
It has been a frustrating process here dealing with this attempted 
government takeover of health care. While the majority has us here on 
the floor debating one bill, they are behind a closed door over here 
creating a whole new bill and making periodic announcements about what 
might be in it. It is kind of like a magician who gets you looking at 
one hand while the sleight of hand is actually doing the magic with the 
other hand, and that is what we see happening here today. The majority 
wants to force this major piece of legislation through before Christmas 
while people aren't paying attention.
  In the middle of this, they have decided to take a break to expand 
spending at unprecedented levels. I am here right now to support 
Senator McCain's rule XXVIII point of order that points out that the 
majority, the Democratic majority, has violated all of these so-called 
ethics and transparency improvements that they were bragging about only 
a year ago. We are not supposed to take bills and in the secret of 
conferences add things that weren't in the House or the Senate version. 
That violates a specific rule, an ethics rule that the majority 
trumpeted not too long ago. This bill contains out-of-control spending. 
It completely reverses Congress's traditional position on many values 
issues such as taxpayer-funded abortions and needle exchanges in the 
District of Columbia. It ends the DC Opportunity Scholarship Program 
that has done so much to help a small number of disadvantaged minority 
students. It increases funding for Planned Parenthood, the Nation's 
leading provider of abortions, and it legalizes medical marijuana. Yet 
the overall funding levels of this bill are unconscionable at a time 
when we are in recession and so many people are out of work. We have 
massive debt that threatens our Nation's economic future and our very 
currency itself.
  The bill represents a $50 billion increase or 12.5 percent over last 
year's funding level. This is not mandated spending; this is 
discretionary spending. This is a time the President is saying we have 
to get a handle on our debt. Yet every bill the Democratic majority has 
pushed across this floor has major increases in spending. It is 
actually nearly a $90 billion increase over the year before.
  Mr. President, what the President said he was against, which was 
earmarks, this bill has 5,224 earmarks, costing nearly $4 billion, in 
addition to the other spending. I cannot read all of those, but I think 
people across the country have learned what earmarks mean. Here are a 
few examples:

  $500,000 for construction of a beach park promenade; six different 
bike paths totaling $2.11 million; $250,000 for a trail at Wolftrap 
Center for the Performing Arts; and $250,000 for the Entrepreneurial 
Center for Horticulture.

  I could go on and on. It makes no sense to be doing this. I think 
maybe one of the most egregious parts of the bill, which I want to 
focus on for a few minutes, goes back to those values issues. It is one 
thing to make abortion legal; it is quite another thing to force 
Americans who consider abortion immoral, based on their beliefs, or 
religious beliefs--it is immoral to make them pay for it, to actually 
promote abortion.
  That is what this bill does. Everywhere you turn, this administration 
is promoting anti-life initiatives and advancing policies that most 
Americans find morally objectionable--namely, taxpayer-funded 
abortions. We have seen that throughout this health care debate, and 
now in the very set of bills that funds our government, it is promoting 
and funding abortion.
  This Nation has had a debate about whether we should even allow 
abortions to be legal. But we have been in general agreement as a 
nation, and even here in the Congress, for years that we should not 
force taxpayers to pay for abortions. That is a terrible use of the 
power of government.
  The omnibus bill reported by the House-Senate conference allows 
taxpayer funds to be used to pay for elective abortion in the District 
of Columbia, because Congress controls DC's entire budget, including 
appropriating the city's local revenues. If this omnibus bill passes, 
Congress will be allowing U.S. taxpayer dollars to fund abortion on 
demand, when it was previously prohibited.
  This is a major shift in policy. We must step back and see where our 
priorities are as a nation. The values of our country are at stake in 
this legislation. As we look at this, I hope no American is so naive as 
to think that if they pass this government takeover of health care, no 
matter what we put in the legislation, they will eventually fund 
elective abortions in this country. It shows everywhere they pass a 
piece of legislation that they are trying to promote abortion in this 
country.
  A vote for the omnibus is a vote for taxpayer-funded abortion. A vote 
against Senator McCain's point of order is a vote for taxpayer-funded 
abortion. It is simple and it is clear. Congress is responsible for the 
budget and the way the funds are spent. If we don't think the 
government should create an incentive for taking unborn lives, we 
should not allow it in the legislation before us today.
  In addition to this troubling revelation, the bill contains many 
other egregious reversals of longstanding policy contradicting 
traditional American values. The underlying bill legalizes medical 
marijuana and uses Federal funds to establish a needle exchange program 
in Washington, DC. Both encourage the use of drugs.
  This is another glimpse of what is going to happen with government-
run health care. If this Congress is promoting the use of medical 
marijuana, needle exchange programs, abortion, in this funding bill, 
does anyone believe that that won't be a part of a government-run 
health care system? Of course not.
  Additionally, this bill eliminates the successful DC Scholarship 
Opportunity Program, which aids low-income children by giving them 
scholarships to attend private schools in Washington, DC. This affects 
only about 1,500 children. I have had a chance to meet with some of 
them who were in schools that were not working. This small scholarship 
program allows disadvantaged, primarily minority, students in 
Washington, DC, to go to a private school of their choice. Remarkably, 
in just a few years, the students who moved from the government schools 
to the private schools were 2 years ahead of their peers. It is an 
example of something that is working, helping disadvantaged students, 
and it is a good example of an administration that is more interested

[[Page 31464]]

in paying off union interests--in this case the teachers union--than 
doing what is good for the children in our country. To eliminate this 
small, inexpensive program is absurd. But it reveals to you----
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. DeMINT. No, I won't. It reveals to you the true motives of the 
majority. If we look at this bill and this eventual health care bill--
if we ever have time to see it before they try to pass it--we are 
beginning to see a real glimpse, a true picture of where this 
Democratic majority is going.
  Finally, this bill increases funding for title X family planning 
services, of which Planned Parenthood is the largest recipient. Planned 
Parenthood is the Nation's largest provider of abortions. Increasingly, 
they are what we call directed abortions. When people come to Planned 
Parenthood and look for advice on family planning, they are more often 
than not encouraged and pushed toward abortion.
  All around this bill, you see what is going on. It is a major change 
in policy--not to make abortion available but to make Americans pay for 
it and to promote it.
  I, along with 34 of my colleagues in the Senate, signed and sent a 
letter to the majority leader regarding the troubling anti-life 
policies in this omnibus bill. Collectively, we vowed to speak out to 
protect the longstanding Federal funding limitations on abortion--a 
belief that has enjoyed broad bipartisan support for many years.
  For this reason, as well as a number of other values issues that are 
irresponsibly addressed in this legislation, I support Senator McCain 
to raise a point of order against the omnibus under rule XXVIII of the 
Standing Rules of the Senate. I urge my colleagues to do the same.
  I remind my colleagues that a vote against the McCain point of order 
is a vote to force American taxpayers to promote and pay for abortions. 
It is plain and simple. I am sure there will be a lot of smoke and 
mirrors after my talk that will try to convince you that is not true. 
But it is in the legislation and it will happen. We need to stop it.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. DURBIN. Mr. President, I hope the Senator from South Carolina 
won't leave. He would not yield for a question. I want to address his 
remarks, and some of them are not accurate. I don't want him to feel 
that I am saying this outside of his presence.
  I ask the Senator from South Carolina, while he has a few minutes, if 
he could look in the bill and find the provision in the bill that kills 
the DC Opportunity Scholarship Program. Please present it to me now, 
because it is not there. It is not there.
  The DC Opportunity Scholarship Program is a voucher program, created 
more than 5 years ago. It was authorized through the Appropriations 
Committee, not through formal authorization. As many as 1,700 students 
in DC ended up going to school and getting about $7,500 a year to help 
pay the tuition for their schools. The program has diminished in size--
I will concede that--even though I tried in a debate and negotiations 
to change that. It is down to about 1,300 students. It is funded in 
this bill to the tune of $13.2 million.
  So for the Senator from South Carolina to stand up and say, as he 
did, that this program is killed, how does he explain the $13.2 million 
in the bill?
  Mr. DeMINT. If the Senator will yield, the President has said he is 
going to end this program.
  Mr. DURBIN. Does this bill end it?
  Mr. DeMINT. I will come to the floor to explain the technical aspects 
of why it is not.
  Mr. DURBIN. I am anxious to hear it. Explain all the technical 
aspects you would like, but the fact is that $13.2 million goes to the 
DC Opportunity Scholarship Program. And the 1,300 students currently in 
the program will be protected and will receive the tuition--a grant of 
$7,500 per student--in the coming year. That is a fact. To stand there 
and say otherwise is wrong.
  Mr. DeMINT. You grandfather it in--if the Senator will yield for a 
question, does this bill fund the continuation of the program beyond 
the 1,300 who are already in it?
  Mr. DURBIN. No. It limits the program to 1,300.
  Mr. DeMINT. It kills the program then.
  Mr. DURBIN. No. If they are why----
  Mr. DeMINT. But the program will not continue.
  Mr. DURBIN. Reclaiming my time. What happens is this program next 
year will be up going through the Senate and the House of 
Representatives. For the Senator from South Carolina to misrepresent 
the contents of the bill is not fair.
  Secondly, this idea of government funding abortion, let me say to the 
Senator from South Carolina, here are the basic pillars on this 
controversial issue in America. First, the Supreme Court has said 
abortion is a legal procedure in Roe v. Wade.
  Second, Congress said, through the Hyde amendment, that we will spend 
no Federal funds for abortion except in cases involving the life of the 
mother, rape, and incest.
  Third, Congress said any provider--hospital, doctor, medical 
professional--who in good conscience cannot participate in an abortion 
procedure will never be compelled to do so.
  This bill doesn't change that at all. In the Senator's State of South 
Carolina and in my State of Illinois, the leadership of the States--the 
Governor and the legislature--decide what they will spend their State 
funds on. That is done in States across the United States. Seventeen 
States have decided they will have State funds pay for abortions beyond 
the Hyde amendment. It is their State's decision, not our decision in 
DC. We, in this bill, give them the same authority that the State of 
South Carolina has and the State of Illinois has. No Federal funds from 
the government, from Congress, can be spent on this exercise or use of 
funds for abortions beyond the Hyde amendment. But if they choose to 
use their own funds--just as South Carolina and Illinois make their 
choice--then they make that decision.
  Many in Congress have a secret yearning to be mayors of the District 
of Columbia. They want to be on the city council--not just in the 
Senate. They want to make every finite decision for the 500,000 or 
600,000 people who live here.
  Mr. DeMINT. Will the Senator yield?
  Mr. DURBIN. Not at this time. When I finish, I will. The people who 
live here in DC are taxpaying citizens. They pay their taxes and they 
vote for President. They send their young men and women off to war just 
like every State in the Union. I think they are entitled to some of the 
basic rights we enjoy in each of our own States.
  I also want to say a word about the needle exchange program. I get 
nervous around needles. I don't like to run in to the doctor and say 
give me another shot. So taking an issue like this on is not a lot of 
fun to start with. Why are we talking about needle exchange programs in 
the District of Columbia? For one simple reason: The HIV/AIDS infection 
rate in the District of Columbia, Washington, DC, the Nation's Capital, 
is the highest in the Nation. We are living in a city with the highest 
incidence of needle-related HIV/AIDS and meningitis and other things 
that follow. A needle exchange program says to those who are addicted: 
Come to a place where they can at least put you in touch with someone 
who can counsel you and help move you off your addiction, and they will 
give you a clean needle instead of a dirty one. I hate it, and I wish 
we didn't need it. I don't like it. But in States across the Nation 
they make the decision that this is the humane and thoughtful thing to 
do to finally bring addicts in before they infect other people and 
spread this epidemic.
  The doctors are the ones who tell us this works. States make the 
decisions on it. I think the District of Columbia, facing the highest 
incidence of infection from HIV/AIDS, should also make that same 
decision in terms of the money they spend. The provision that came over 
from the House of Representatives would have limited the distribution 
of this program to virtually a handful of places in DC. We

[[Page 31465]]

said that DC can make the rules about where the safe places are for 
these needle exchange programs.
  As I said, I hate to even consider the prospect, but I cannot blind 
myself to the reality that we have this high incidence of infection in 
the District of Columbia, and the medical professionals tell us this is 
working. We are bringing addicts in. We are bringing them into a safer 
situation. We are counseling some of them beyond their addiction. We 
are saving lives.
  Am I supposed to turn my back on that and say, I am sorry, it offends 
me to think of this concept? It offends me to think of people dying 
needlessly, and that is why we have this program.
  Let me say a word about the DC Public Schools. I did not ask to take 
this DC appropriations bill on. This is not something I ran for in the 
House of Representatives or the Senate. But it is part of my 
responsibility. This is a great city with great problems, but there are 
some shining lights on the horizon, and one of them is Michelle Rhee, 
chancellor of the public school system in the District of Columbia.
  Michelle is an amazing story of a young woman attending Cornell 
University. She decided, when she graduated, to sign up for one of the 
top employers of college graduates in America today, Teach for America. 
She went off and taught in Baltimore. She took a hopeless classroom 
situation and in 2 years turned it around. Kids from the neighborhood 
had test scores nobody dreamed of because of Michelle's skill. She 
worked in New York, bringing nontraditional teachers into the teaching 
situation and then was asked to be chancellor here.
  She is working on an overall reform for the DC Public Schools, which 
I endorse. It is a reform which will move us toward pay for 
performance, where those teachers who do a good job and improve test 
scores are rewarded. It is a voluntary program for teachers. The 
results are starting to show. This week in the District of Columbia, 
they reported math scores that showed dramatic improvements compared to 
cities around the Nation.
  She has another responsibility: while 45,000 kids are in the public 
schools of DC, 28,000 are enrolled in public, but independent, charter 
schools. The charter schools have to match the performance of the 
public schools or improve upon them. It is the same for the voucher 
schools, the DC opportunity scholarships.
  The Senator from South Carolina stands before us to say I eliminate 
the program. Where does that $13.2 million go? It goes to the program, 
the DC opportunity scholarships. I did change the program. I changed 
the program because I failed initially when I offered amendments.
  Here are some of the changes I made, and you be the judge as to 
whether these are unreasonable changes.
  I said for the voucher schools--half of them are Catholic schools--I 
said for the voucher schools, every teacher in basic core subjects has 
to have a college degree. How about that for a radical idea, a teacher 
with a college degree? It is now required. It was not before.
  Second, the buildings they teach in--these DC voucher schools have to 
pass the fire safety code. Is that a radical idea killing the program? 
If it means closing a school that is dangerous, sure, I would close 
that school in a second before I would send my child or grandchild 
there.
  Third, we said, if you attend a DC voucher school, the students there 
have to take the same tests as the DC Public Schools so we can compare 
how you are doing. If you take a different test, you have different 
results. We are never going to have a true comparison.
  I also added in here, at the suggestion of Senator Lamar Alexander of 
Tennessee, a former Secretary of Education, that each of the DC voucher 
schools either has to be accredited or seeking accreditation. I don't 
think that is radical. I don't think it closes a program.
  The final thing I say is, the people who administer this program have 
to actually physically visit the school at least twice a year. We had a 
hearing where the administrator of the program was shown pictures of 
some of these DC voucher schools and, frankly, he said: We have not 
been there. Maybe once a year we get by. It has to be more than that. 
We have to make sure these schools are functioning and operating. We 
are sending millions of Federal dollars into them. We expect it at 
public schools, we expect it at charter schools. Should we not ask the 
same of the DC voucher schools?
  I say this, at least those in the Archdiocese of Washington agreed to 
these things and have said: For our Catholic schools, we are ready to 
meet these standards and tests. My hat is off to them. It is a 
challenge, I am sure, but it is one I think they will meet. I want them 
to continue to do that.
  I did try to expand this program in one aspect in the course of our 
negotiations, with Senator Collins' assistance, so siblings would be 
allowed to attend this program. I think it would be helpful. We were 
not successful. There are those opposed to this altogether.
  I say the Senator from South Carolina has mischaracterized the DC 
voucher program. He has not fully explained that we have not changed 
the Hyde amendment, which prohibits Federal funds for abortion 
purposes, other than strict narrow categories. He went on to say 
something about the needle exchange program, which does not reflect the 
reality and the gravity of the health crisis facing the District of 
Columbia.
  This is not a radical bill. This is a bill which I think is in the 
mainstream of America. It is a bill consistent with the same laws that 
apply in his State of South Carolina and my State of Illinois and most 
other States across the Nation.
  I wish we were not in this paternalistic position in relation to the 
District of Columbia. I would rather this city had home rule, had its 
own Members of Congress, could make its own decisions. That is my goal. 
I would like to see that happen. In the meantime, I think we should 
treat the people who live here fairly, give them a chance to deal with 
their significant problems, acknowledge success, as we just reported in 
the public schools, and try to help them where we can.
  This is, in fact, a great city and the capital of a great nation. I 
think the mayor does a good job.
  I reserve the remainder of my time.
  Mr. ENZI. Mr. President, what is the time situation?
  The PRESIDING OFFICER. The Senator from Wyoming has 8 minutes 26 
seconds. The Democrats have 7 minutes 30 seconds.
  Mr. ENZI. Mr. President, I rise to discuss a new report on Senator 
Reid's health care reform bill. This kind of fits in with the 
appropriations that deal with Health and Human Services that is over 2 
months past due.
  Last night, we received a new analysis of the Reid bill we have been 
discussing about 11 days straight, performed by the Center for Medicare 
and Medicaid Services--that is CMS--which is under the Department of 
Health and Human Services. The chief actuary, Rick Foster--this is the 
guy in charge of all this. He is the chief actuary. This is not 
somebody outside the system. This is the guy who has to answer for all 
this. He serves as the independent technical adviser to the 
administration and Congress on estimating the true costs of health care 
reform. Some of the findings in this report directly contradict some of 
the claims we heard this week about the Reid bill.
  For a week now, we have heard how the Reid bill will help slow 
spending growth and reduce how much we as a nation spend on health 
care. Mr. Foster's analysis shows that statement is false.
  According to this report, national health expenditures will actually 
increase by seven-tenths of 1 percent over the next 10 years. That is 
seven-tenths of 1 percent if we did nothing different. Despite promises 
that the bill would reduce health care spending growth, this report 
shows the Reid bill actually bends the health care cost curve upward.
  We have also heard, over the past week, how this bill will reduce 
health insurance premiums. Again, the administration's own chief 
actuary says this is false. The new report describes how

[[Page 31466]]

the fees for drugs, devices, and insurance plans in the Reid bill will 
increase health insurance premiums, increasing national health 
expenditures by approximately $11 billion per year.
  We have also heard how the Reid bill will reduce the deficit, extend 
the solvency of the Medicare trust fund, and reduce beneficiary 
premiums. According to the Foster report, these claims are all 
conditioned on the continued application of the productivity payment 
cuts in the bill which the actuary found were unlikely to be 
sustainable on a permanent annual basis. If these cuts cannot be 
sustained, one of two things will happen. Either this bill will 
dramatically increase the deficit or beneficiaries will not be able to 
continue to see their current doctors and other health care providers.
  In reviewing the $464 billion in Medicare cuts in the Reid bill, the 
Foster report found these cuts would result in providers finding it 
difficult to remain profitable.
  The report went on to note that absent legislative intervention, 
these providers might end their participation in the Medicare Program. 
In addition, if enacted, the report found that the cuts would result in 
roughly 20 percent of all Part A providers--that is hospitals, nursing 
homes, et cetera--becoming unprofitable within the next 10 years as a 
result of these cuts.
  As a former small business owner myself, I understand the impact this 
will have on doctors, hospitals, and other health care providers. In 
rural areas, such as my State, these providers will go out of business 
or have to refuse to take any more Medicare patients.
  The CMS actuary noted that the Medicare cuts in the bill could 
jeopardize Medicare beneficiaries' access to care. He said the Reid 
bill is especially likely to result in providers being unwilling to 
treat Medicare and Medicaid patients. That is what we have been saying 
for about 11 days.
  The Reid bill also forces 18 million people into the Medicaid 
Program. The Foster report concluded this will mean a significant 
portion of the increased demand for Medicaid services will be difficult 
to meet. These are not the claims made by insurance companies or anyone 
who might have a vested interest in the outcome of the debate. These 
come directly from the administration's own independent actuary.
  In light of this report, why are the sponsors of this bill continuing 
to argue for a $2.5 trillion bill of new programs which will increase 
health care spending, drive up premiums, and threaten the health care 
of Medicare beneficiaries?
  We can do better. We need to start over and develop a bipartisan bill 
that will address the real concerns of American people--develop a 
bipartisan bill. They cannot just exclude one side because there is a 
majority that won the election and gets to write the bills. We get 
tired of hearing that told to us. Where is your comparable bill? We are 
not trying to have a comparable bill, we are trying to have input into 
the current bill or the current bills: Sit down, talk about the 
principles, find the actual things that fit into those principles, 
develop the details, and have a bill that goes step by step so we get 
the confidence of the American people. The step we ought to start with 
is Medicare. That is why I present this report from the actuary of CMS, 
which is part of the Department of Health and Human Services, which is 
assigned most of the job of coming up with the details of the bill we 
have before us. That means actual elected officials would not be doing 
it. But this CMS actuary says everything that has been said by that 
side of the aisle is false unless there is some phony accounting that 
goes into it.
  I yield the floor and reserve the remainder of our time.
  Mr. President, I suggest the absence of a quorum and ask unanimous 
consent that we divide the time.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. MURRAY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, Division F of this omnibus conference 
agreement provides funding for the State Department, Foreign 
Operations, and related programs.
  I want to thank the ranking member of the subcommittee, Senator 
Gregg, and his very capable staff, Paul Grove and Michele Wymer, for 
once again working with me and my staff in a bipartisan manner to 
produce this conference agreement.
  I also want to thank Chairwoman Nita Lowey and Ranking Member Kay 
Granger, and their staffs, for working so cooperatively with us 
throughout this process.
  The fiscal year 2010 State Foreign Operations conference agreement 
provides $48.8 billion in discretionary funding, a $3.3 billion 
decrease from the President's budget request of $52 billion.
  The bill is $1.2 billion below the fiscal year 2009 level, including 
supplemental funds. This is an important point that needs to be 
understood by all Senators, because yesterday a Senator on the other 
side of the aisle criticized this bill for being 31 percent above 
fiscal year 2009.
  That is misleading, because it does not account for the billions of 
dollars in fiscal year 2009 ``emergency'' supplemental funding that was 
the standard way of doing business under the previous administration.
  To ignore those costs to American taxpayers is disingenuous. 
President Obama has made clear that he intends to fund these programs 
on budget, not through supplemental gimmicks. That is what the Congress 
urged him to do, and now he is being criticized for doing so.
  If you compare apples to apples, this bill provides $1.2 billion less 
spending than in fiscal year 2009.
  Some Republican Senators have made speeches against this omnibus 
package on account of earmarks they don't like, even though some of 
them requested their own earmarks. In fact, earmarks comprise a tiny 
fraction of the total package.
  Like past years, the State-Foreign Operations conference agreement 
does not contain any earmarks as defined by the Appropriations 
Committee.
  We do fund many programs that are priorities of Democrats and 
Republicans, including assistance for countries like Afghanistan, 
Pakistan and Iraq, and longstanding allies like Israel, Egypt, and 
Jordan.
  In addition, the conference agreement provides $5.7 billion to combat 
HIV/AIDS, including $750 million for the Global Fund. Funds are 
provided to combat other diseases, like malaria, tuberculosis, and 
neglected tropical diseases,
  The agreement provides $1.2 billion for climate change and 
environment programs, including for clean energy programs and to 
protect forests.
  The agreement provides $1.2 billion for agriculture and food security 
programs, with authority to provide additional funds.
  There are provisions dealing with corruption and human rights, 
funding for international organizations like the United Nations, NATO 
and the International Atomic Energy Agency, and to promote democracy, 
economic development, and the rule of law from Central America to 
Central Asia.
  The conference agreement provides the funds to support our embassies 
and diplomats around the world, public diplomacy and broadcasting 
programs, the Peace Corps, and many other programs that promote United 
States interests.
  I don't support everything in this omnibus package any more than 
anyone else does. I had hoped, as I know did Chairman Inouye and Vice 
Chairman Cochran, that we could have

[[Page 31467]]

brought each of the bills in this omnibus, including the State-Foreign 
Operations bill, to the Senate floor individually.
  But a handful of Senators on the other side have made clear that they 
will do whatever is procedurally possible to slow down or prevent 
consideration of these bills.
  Despite that, I can say that the State Foreign Operations conference 
agreement was negotiated with the full participation of both House and 
Senate chairmen and ranking members. It was in every sense a 
collaborative process.
  It is a balanced agreement and should be supported by every Senator 
who cares about U.S. security and the security of our allies and 
friends around the world.
  The PRESIDING OFFICER. The question occurs on agreeing to the motion 
to waive all applicable sections of rule XXVIII. The yeas and nays have 
been ordered. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Kentucky (Mr. Bunning), the Senator from Oklahoma (Mr. Coburn), 
the Senator from Texas (Mrs. Hutchison), and the Senator from North 
Carolina (Mr. Burr).
  Further, if present and voting, the Senator from Kentucky (Mr. 
Bunning) would have voted ``Nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 60, nays 36, as follows:

                      [Rollcall Vote No. 372 Leg.]

                                YEAS--60

     Akaka
     Baucus
     Begich
     Bennet
     Bingaman
     Bond
     Boxer
     Brown
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Cochran
     Collins
     Conrad
     Dodd
     Dorgan
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--36

     Alexander
     Barrasso
     Bayh
     Bennett
     Brownback
     Chambliss
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Feingold
     Graham
     Grassley
     Gregg
     Hatch
     Inhofe
     Isakson
     Johanns
     Kyl
     LeMieux
     Lugar
     McCain
     McCaskill
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Thune
     Vitter
     Voinovich
     Wicker

                             NOT VOTING--4

     Bunning
     Burr
     Coburn
     Hutchison
  The PRESIDING OFFICER. The yeas are 60, the nays are 36. Three-fifths 
of the Senators duly chosen and sworn having voted in the affirmative, 
the motion is agreed to.
  Mr. LEAHY. Mr. President, I move to reconsider the vote.
  Mrs. MURRAY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. REID. I ask unanimous consent that no further points of order be 
in order during the pendency of H.R. 3288.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. It is my understanding that the next vote will be tomorrow 
morning at 9:30. We will be happy to come in at 8:30, but I ask 
unanimous consent if we could have that vote at 9:30. We will come in 
at 9, if that is OK with everybody.
  Mr. McCAIN. Will the majority leader yield for a question?
  Mr. REID. I am happy to.
  Mr. McCAIN. And the disposition of the pending Dorgan amendment, 
could we have some idea about that?
  Mr. REID. I think my friend from Arizona asks a very pertinent 
question. We offered a consent request last evening--and I did again 
today--that we would have the votes now before the Senate in sequential 
order. I offered a unanimous consent request to do that. We are happy 
to do that. I announced there would be no more votes today. On Monday 
when we come in, we will be happy to do that.
  Mr. McCONNELL. I say to my friend the majority leader, the problem 
with that is we have been going back and forth with an amendment on 
each side, and the agreement that you have proffered, if I understand 
it correctly, basically had two Democratic side-by-sides. Am I not 
correct in my understanding of that?
  Mr. REID. Yes, but on all amendments that we have had up to this 
point, every side, Democrats or Republicans, has had the opportunity to 
do side-by-sides if they wanted to. In the weeks we have worked on 
this, what has transpired here, I am quite sure, has happened before. 
Simply stated, we have been requested by Republicans to have some 
votes, and we have agreed to have the votes. I explained in some detail 
last evening why we can't do it on a piecemeal basis. Procedurally, it 
puts us into a quagmire. Let's clear the deck. There will be other 
amendments after that we would certainly try to have each side offer.
  But I agree with the Senator from Arizona, we should get rid of the 
drug reimportation amendment one way or the other, in addition to the 
motion offered by Senator Crapo.
  Mr. McCONNELL. My point was, typically a side-by-side is offered one 
on each side. On the drug reimportation issue, you have basically two 
votes, both generated on the Democratic side, which created some 
confusion. But we will have to continue to talk about this and see if 
we can work our way through it.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KERRY. Mr. President, I wanted to ask the minority leader--some 
of us are a little bit perplexed. I know the Senate has its rules, and 
we try to work through them. But we also at this time of year often try 
to accommodate families and schedules and so forth. I am curious as to 
whether the minority leader might not consent to allowing us or why it 
is that we couldn't, since Senators are here today, schedule the vote 
and agree to have the vote on the 60-vote margin today rather than 
tomorrow morning, requiring all staff and everybody in the Senate to 
come in on a Saturday.
  Mr. REID. If I could make a comment before my friend the Republican 
leader comments, everyone should understand--this should make it easier 
for everybody--I am going to be home all weekend in Washington. I won't 
be traveling the country doing any fundraisers that people seem to be 
afraid of.
  Mr. McCONNELL. The answer to it is that our good friend the majority 
leader told us on November 30 we would be here the next two weekends. 
He said again this past Monday we would be here this weekend. I assumed 
and I know he certainly meant what he said. Our Members are here and 
ready to work. We wish to work on health care amendments. But as a 
result of the privileged status of the conference report that is before 
us, we have had that displaced. But I think everybody was on full 
notice as to what the work schedule was going to be for last weekend 
and this weekend.
  Mr. KERRY. Mr. President, if I could respond, I don't mean to assert 
myself in any way that is inappropriate with respect to the leader, but 
we all know that in the workings of the Senate, what we are doing is 
both complicated and serious and critical to the country.
  We are waiting for CBO to appropriately, consistently--as a member of 
the Finance Committee, we adhered to a very strict notion that we would 
try to find the precise modeling and cost of whatever it was we might 
do. It is entirely appropriate, to have a proper debate or discussion, 
that we know exactly what the cost is of any particular proposal. That 
is what we are waiting for. So the majority leader is appropriately 
trying to move another piece of legislation that is ripe, that is 
important to the country. This is just a question of courtesy to 
Senators and to their families and to the staff of the Senate who have 
been working extraordinarily hard. The question is simply, why, as a 
matter of convenience, we

[[Page 31468]]

couldn't schedule a vote for today instead of being scheduled for 
tomorrow. We could do that by unanimous consent.
  Mr. REID. If I could have the Record reflect, the Republican leader 
is right. I said we would be in session the next several weekends. But 
if you go back and look at the Record, how many times have I said we 
would be in session over the weekend and, interestingly enough, around 
here, magic things happen on Thursdays and Fridays. I have had every 
intention, as I have every time I have said it, that we should be in on 
a weekend, and usually we are able to work something out. We haven't 
been able to this time. I accept that. I am not complaining. But 
certainly the question of my friend from Massachusetts is a pertinent 
one. Senators are here now. Maybe we could have the vote early. But it 
is set statutorily. My unanimous consent request was, and I am not sure 
it was responded to, that we could have that vote at 9:30 tomorrow 
morning without having the mandatory 1-hour beforehand.
  I heard no objection to that. We will just come in at 8:30. We will 
come in at 8:30 tomorrow morning and have a 9:30 vote.
  Mr. KERRY. Mr. President, I ask unanimous consent that the vote 
scheduled for tomorrow morning be held instead today at some convenient 
time within the next hours.
  The PRESIDING OFFICER. Is there objection?
  Mr. McCONNELL. Mr. President, reserving the right to object--and I 
will object--we have been told by the majority that the single most 
important thing we could do would be to work on weekends and try to 
pass this health care bill which, according to the CNN poll that came 
out last night, the American people oppose 61 to 36, before Christmas. 
We are here. We are prepared to work. We would like to get back on the 
health care bill as rapidly as possible and vote on amendments to the 
bill. It either is or it isn't important enough for us to be here 
before Christmas. My Members are not expecting to take a break. We have 
been told by the majority all year long this is important. First we had 
to get it done before August. Then we had to get it done before 
Thanksgiving. Now we have to get it done before Christmas. We are here, 
ready to work.
  I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from New Hampshire.
  Mr. GREGG. Is the Senator from Arkansas seeking recognition?
  Mrs. LINCOLN. Yes.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. GREGG. Mr. President, I still have the floor. I was just asking a 
question.
  The PRESIDING OFFICER. The Senator from New Hampshire has the floor.
  Mr. GREGG. Mr. President, I ask unanimous consent to be allowed to 
speak for up to 10 minutes and then that the Senator from Arkansas be 
recognized, and then we will come back to this side.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Oregon is recognized.
  Mr. WYDEN. Mr. President, reserving the right to object--and I have 
no intention of objecting--I would like to also propound a unanimous 
consent request that after the Senator from Arkansas has spoken and 
after the Senator from New Hampshire has spoken, Senator Collins, I, 
and Senator Bayh be recognized for up to 30 minutes for a colloquy.
  The PRESIDING OFFICER. Is there objection to the request of the 
Senator from Oregon?
  The majority leader is recognized.
  Mr. REID. Mr. President, reserving the right to object, I would ask 
my friend from Oregon if he would allow this modification to his 
unanimous consent request. It would be as follows: consent that Senator 
Lincoln be recognized and that she be allowed to speak for up to 10 
minutes; that Senator Gregg be recognized for up to 10 minutes; and 
then that Senators Wyden, Collins, and Bayh be permitted to engage in a 
colloquy for up to 30 minutes; that following the conclusion of that 30 
minutes, Senator Alexander or his designee be recognized for up to 30 
minutes to engage in a colloquy with other members of the Republican 
caucus.
  The PRESIDING OFFICER. Is there objection?
  The Senator from New Hampshire.
  Mr. GREGG. Mr. President, reserving the right to object, I understand 
that is in addition to Senator Wyden's request, which is that I should 
begin with my first 10 minutes, then we would go to the Senator from 
Arkansas, then we would go to Senator Wyden, and then we would go to 
the outline as represented by the majority leader.
  Mr. REID. If that is OK with the Senator from Arkansas.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from New Hampshire is recognized.
  Mr. GREGG. Mr. President, thank you very much.
  Mr. President, I rise to speak a little bit about this health care 
bill. I know there has been a lot of discussion of it already today, 
but I think it is important--very important--that as this health care 
bill comes forward, we know what it says.
  Unfortunately, we received this 2,074-page health care bill about 8 
days ago, after it had been worked on for 8 weeks in camera, behind 
closed doors by the Democratic leadership. We have only had 8 days to 
look at it. We now hear there is going to be a massive revision of it--
a massive revision--that is going to involve potentially expanding 
Medicare to people who are aged 55.
  Medicare is already broke, by the way. It is broke. It has a $38 
trillion unfunded liability. And we are going to add another 10 million 
people, maybe, into Medicare? That makes no sense at all.
  But what I think is important is that what we know so far has been 
reviewed by a lot of different people, but some of them have not been 
all that objective. So there was a request made to CMS, which is an arm 
of the administration--therefore, one would presume it was not 
necessarily biased toward the Republican side of the aisle; in fact, 
maybe just the opposite; I do not think it is biased at all, hopefully; 
but if there was bias here, it certainly would not be Republican--to 
review the proposal of Senator Reid.
  Let me read to you what the CMS conclusion is--some of them--on the 
Reid bill.
  According to the CMS Actuary: ``The Reid bill increases National 
Health Expenditures'' by $234 billion during the period 2010 to 2019. 
Why is this important? Well, it is pretty darn important because we had 
representations that the purpose of this health care reform was to 
decrease, to move down, health care costs. Now we find this bill, as 
scored by the CMS Actuary, significantly increases the national health 
care expenditures.
  Secondly, they concluded that ``the Reid bill still leaves an 
estimated 24 million people . . . uninsured.'' Twenty-four million 
people--that is almost half of the uninsured today. Why is that 
important? We were told the purpose of this health reform exercise was 
to, one, insure everybody; two, bend the health care costs down; and 
three, make sure that if you have your own health care that you like, 
you do not lose it. Well, on two counts, it appears the Reid bill 
clearly fails that test and gets an F--on the issue of bending health 
care costs down and on the issue of insuring everyone, according to 
CMS, an independent group.
  Third, it says:

       The new fees for drugs, devices, and insurance plans in the 
     Reid bill will increase--

  Increase--

     prices and health insurance premium costs for customers. This 
     will increase national health [care] expenditures by 
     approximately $11 billion per year.

  So instead of bringing health premiums down, as was represented by 
the President--he said it was going to go down by $2,100 per family--
your health care premiums are going to go up. What happens when health 
care premiums go up? People stop giving you health care insurance 
because they cannot afford it. Employers cannot afford it. So on the 
third issue, will you lose your health insurance if you like it, yes, 
you will. Yes, you will because

[[Page 31469]]

the price of your health insurance is going to go up under the Reid 
bill.
  There are a couple other points they make which are fairly important 
here:

       The actuary's analysis shows that claims that the Reid bill 
     extends the solvency are shaky.

  They are ``shaky''--the claims that it extends the Medicare trust 
fund solvency.
  Quoting further:

       Moreover, claims that the Reid bill extends the Medicare HI 
     Trust Fund and reduces beneficiary premiums are conditioned 
     on the continued application of the productivity payment 
     adjustments in the bill, which the actuary found were 
     unlikely--

  That is their concept, ``unlikely''--

     to be sustainable on a permanent annual basis. . . .

  So the idea that this bill somehow assists Medicare--by the way, this 
bill cuts Medicare by $\1/2\ trillion, almost, in the first 10 years. 
When it is fully implemented, it cuts Medicare by $1 trillion in a 10-
year timeframe, and over the next 20 years, it cuts Medicare by $3 
trillion. The idea that this is going to somehow help Medicare is 
fraudulent on its face, according to the Actuary. ``Fraudulent on its 
face'' is my term. It is ``unlikely'' to accomplish that.
  Then it goes into this issue of the CLASS Act, which we have heard so 
much puffery about how wonderful this CLASS Act is, which is basically 
another Ponzi scheme, as it was described by the chairman of the Budget 
Committee, not myself. The Actuary said:

       The Reid bill creates a new long term insurance program 
     (CLASS Act) that the CMS actuaries found faces ``a very 
     serious risk''--

  This is their term, ``a very serious risk''--

     of becoming unsustainable as a result of adverse selection by 
     participants. . . .

  In other words, only people who are probably going to need long-term 
care are going to opt into this program. So this plan will basically 
not be able to pay the costs of the benefits it is proposing because 
they will not have funds coming in to support the people who need it 
because there will be no larger insurance pool of healthy people who 
are using the program. Only the people who need the program will use 
it. So the CLASS Act representations we have heard around here have 
been debunked by this CMS report.
  This is not our side saying these things. It is not our side saying 
that the cost of this bill will drive up the cost of national health 
care. It is not our side saying there are 24 million people left 
uninsured when this is fully implemented. It is not our side saying 
premiums will go up when this bill is fully implemented. It is not our 
side saying the CLASS Act will be a seriously unsustainable program. It 
is not our side saying Medicare will not be benefited by this program. 
In fact, it will be negatively impacted by this program. It is CMS 
saying that, an independent Actuary--not that independent; an arm of 
the administration. The administration's Actuary is saying it, not our 
side. So I think it is legitimate to have some serious concerns about 
this bill.
  The CMS report goes on and says:

       The CMS actuary noted that the Medicare cuts in the bill 
     could jeopardize Medicare beneficiaries' access to care.

  Now, that is serious. That is serious.
  It found that roughly 20 percent of all Part A providers--hospitals--
would become unprofitable--20 percent of all Part A providers, such as 
hospitals, would become unprofitable within the next 10 years as a 
result of the proposals in the Reid bill.
  Well, I know ``profits'' is a bad word on the other side of the 
aisle, but the simple fact is, if you do not have profit in a hospital, 
the odds are pretty good you are going to go out of business. You are 
going to go out of business because you cannot pay the costs of 
operating that hospital. Even nonprofits have some sort of cushion in 
order to make it through. Now we have the CMS Actuary telling us that 
20 percent of the hospitals in this country are going to go into a 
negative cashflow and are going to become unprofitable as a result of 
what this bill proposes.
  Well, colleagues, Senators, why would we vote for a bill which 
increases the cost of health care for the country and does not bend the 
health care cost down, which leaves half the people in this country who 
are uninsured still uninsured, which raises the premium costs for 
Americans, which puts the Medicare system at risk, which will put 
hundreds of providers at risk, hospitals, and which creates a brandnew 
entitlement which is not sustainable? And those conclusions are come to 
by the CMS, the independent CMS Actuary. Why would we want to put that 
type of program in place? Of course, we should not.
  Listen, this 2,074 pages of bill--it was put together haphazardly. It 
was just sheets of paper stuck together. It ends up costing us $2.5 
trillion overall. Every page costs us about $1 billion. Obviously, it 
was not well thought out because the CMS Actuary looked at it and said 
it is not well thought out. It does not accomplish its goals.
  So rather than moving forward with the bill, why don't we just step 
back and start doing things we know are going to work? Why don't we 
start doing a few things around here we know are going to work?
  I know the Senator from Oregon is on the floor, and he happens to be 
the sponsor of a bill which actually would make some progress in the 
area. Why don't we--I would be willing to step back and start from his 
bill because his bill at least makes sense. If it were scored by the 
CMS Actuary, it would not come out like this. They would not be saying 
that people would be uninsured, that the price of health care was going 
to go up and that Medicare was going to go into a disastrous strait and 
create an unsustainable entitlement.
  So we have ideas around here that do work or are fairly close or at 
least have the foundation to work. Why don't we use those rather than 
this bill? That is my only point. This bill is ill thought out, and 
that is not my conclusion, that is the only conclusion you can come to 
when you look at the CMS Actuary's evaluation of it.
  Mr. President, I appreciate the courtesy of the Presiding Officer, 
and I especially appreciate the courtesies of the Senator from 
Arkansas.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mrs. LINCOLN. Mr. President, thank you. And I appreciate the 
courtesies of my colleague from Oregon for allowing me to speak now.
  I rise today to talk a little bit about the health care concerns, 
particularly, in our small businesses. I first wish to compliment and 
thank my colleagues, particularly Senator Landrieu, who is chairman of 
the Small Business Committee, as well as Senator Snowe, with whom I 
have worked for years on the plight of the small businesses in our 
States and across the country--their need to be able to really access 
the kinds of competition and choice that allow them to make good 
decisions and spend their health care dollars more wisely and being 
able to do what they all want to do in small business, and that is to 
be able to cover their employees, to make sure their employees and 
their employees' families are covered with reasonable and meaningful 
health insurance that actually covers what they need but is at an 
affordable price. So I thank those women, as well as Senator Stabenow, 
who I know has also been working on these issues.
  But I really come to the floor today to highlight the challenges 
Arkansas small business owners face in providing quality, affordable 
health care for themselves, their families, and their employees under 
the current system and to look at what we can do to improve what their 
challenges are, what it is they face.
  Small businesses are our No. 1 source of jobs in Arkansas, and they 
are truly the economic engines of our local economies, but they are 
also the economic engines of our national economy, not to mention 
learning laboratories for great ideas that will allow us in this great 
Nation to be truly competitive in the 21st century.
  Arkansas's nearly 250,000 small business and self-employed 
individuals make significant contributions to our State's economy and 
generated $7.2 billion in 2008. Small employers account for 97 percent 
of the employers in our State, and I would daresay nationally it is 
somewhere at that same level.

[[Page 31470]]

  Addressing the needs of small businesses is absolutely critical to 
any health insurance reform legislation we bring forward.
  As I mentioned before, Senator Snowe and I have worked together for 
many years to try to address these concerns, talking with small 
businesses and their advocacy groups to try to figure out what it is we 
can provide them, just as we provide ourselves as Federal employees the 
ability to access health insurance that has been negotiated, where 
people have come together, pooled the resources of all of our risks as 
Federal employees--all 8 million of us--to really get a better deal in 
the marketplace.
  We want to be able to allow small businesses to do the same, to come 
together nationwide, pool themselves in their State exchanges, and be 
able to really take advantage of sharing their assets and their risks 
in the health insurance marketplace and get the best possible product 
they can.
  Those small businesses that are able to afford health care coverage 
for their employees in today's world continue to experience 
skyrocketing costs, jeopardizing our States' and our Nation's 
competitive edge, both among themselves nationwide domestically but 
also internationally. We find that our small businesses are finding 
themselves more and more in the situation of having to be competitive 
globally to be able to do the business they do and to create the jobs 
they need to create.
  Yesterday, I spoke with a radio station owner from Wynne, AR, in 
Cross County, who said high costs have threatened his ability to be 
able to provide coverage for his employees. Or, worse, skyrocketing 
costs are forcing business owners to consider giving up their 
businesses altogether, like the small business owner from Malvern, AR, 
who wrote me that he was giving up his 17-year-old business because he 
can no longer afford his rising health care insurance premiums. His 
wife and his daughter each have a preexisting medical condition, and he 
feels pressured to find a new job that provides affordable employer-
sponsored coverage for his family.
  I heard from another small business owner in Mena who told me that at 
the age of 65, he continued to keep himself on his own small business's 
health insurance plan in order to ensure that he could maintain 
providing health insurance to his employees, many with whom he grew up. 
They were friends of his from grade school or church and community 
services and other places where he had built lifelong relationships, 
not only as an employer and an employee but as part of a community. 
Being able to maintain providing that to them was so critical to him 
that he was willing to ante up.
  I have heard from small business owners from all across my State who 
desperately want to offer health care coverage for their employees, but 
it is simply not cost productive. The fact is, so many people think 
small businesses just want to opt out, that they don't want to provide 
health insurance, but they do. They do because it is important to them 
as a part of that community to do something for their employees who 
also happen to be their friends and neighbors. They also want to make 
sure their business is the best it can be, and in order to do that they 
have to compete for those skilled workers. Getting the best workers 
means providing good benefits, with health care being at the top of 
that list.
  Another Arkansan asked me to please include the self-employed in my 
efforts to secure affordable health care. There are many small 
businesses with only one employee, and health care under this scenario 
is extremely expensive. They are put in an individual market where they 
are rated against themselves in many instances and not given the 
benefit of what we enjoy as Federal employees; that is, pooling 
ourselves together, adding our assets and our risks together so that we 
can mitigate that risk among all 8 million Federal employees.
  These are just a few of the stories I have heard from Arkansans, and 
that is why in every Congress since 2004, I have introduced legislation 
to help small business owners afford health coverage for themselves, 
their employees, and their families. Several of my provisions are 
already included in the health insurance reform bill currently before 
the Senate, including the tax credit to help small businesses afford 
coverage, and we want to improve upon that. Also included are insurance 
exchanges through which consumers can compare insurance plans side by 
side so that they will be able to choose the option that is best for 
them, allowing their employees to see what is available to them and 
making sure that they are having access to all the options of the 
marketplace. There are reforms that force insurance companies to change 
the way they do business by limiting what an insurer can charge based 
on age and by banning the practices of denying coverage based on 
preexisting conditions or increasing rates when customers all of a 
sudden get sick.
  We look at our small businesses and, yes, there are a lot of young 
entrepreneurs, but a lot of our small businesses are those individuals 
in that category above 55. These are people who, unfortunately, are 
starting to see chronic disease challenges in their life as they age. 
Unfortunately, they become an issue, or certainly their coverage 
becomes an issue when we talk about preexisting conditions. So it is 
critical that we make sure we change the way insurers do business as 
usual today and make sure they are playing fair with the small business 
entities out there.
  Just one more of my efforts is something on which we worked with 
Senator Snowe and Senator Durbin, which is to allow that there would be 
national private insurers, as there are today, but allowing them to 
sell multistate plans nationwide, to be able to sell their plans in all 
50 States. It would be with a strong Federal administrator who would be 
able to negotiate for quality and affordable coverage. Some of this has 
emerged as another potential part of the framework for national health 
insurance reform that can help us achieve our goals of more choices and 
more affordability for consumers, particularly those in the small 
business marketplace.
  So I wish to thank the Presiding Officer for the opportunity to share 
with my colleagues and certainly those Americans out there who are the 
ingenuity and the engine of our economy. I know my colleague from 
Oregon has talked so much about choice and competition. It is so 
important, more important than ever in that small business marketplace 
and in that individual marketplace, as well as providing exchanges and 
the ability for national insurers, private insurers to be able to 
provide these types of products across all 50 States. Also, a 
multistate plan gives our small businesses and our self-employed, our 
individual marketplace, our independent contractors, such as our 
realtors and others, the ability to have access to greater choice, 
greater competition in that marketplace, and, therefore, a better 
product--greater, more meaningful coverage at a more reasonable cost, 
and that is what we want to see. More importantly, that is what our 
small businesses want to see.
  So I thank the Presiding Officer, and I yield the floor to my 
colleague from Oregon and my colleague from Indiana, and the Senator 
from Maine as well, whom I know will have a great addition to this 
conversation. Thank you.
  The PRESIDING OFFICER (Mrs. Shaheen). The Senator from Indiana.
  Mr. BAYH. Madam President, I wish to begin by complimenting my friend 
and colleague from Arkansas. We entered this body together, and she has 
consistently advocated on behalf of small businesses, not only across 
Arkansas but across the country. We both want to reform the health care 
system. We know this has a major impact on small businesses. They 
create most of the new jobs in our society. So if we care about job 
creation, we need to care about how health insurance costs affect 
businesses. They are going up too fast, and Senator Lincoln has 
consistently advocated for doing what we can to get those cost 
increases down and, in fact, lower the burden on our small businesses. 
So this is not only a health issue, it is a jobs issue. She has been a 
real leader for many years.

[[Page 31471]]

  So it is a privilege to work with the Senator on these important 
issues. Our class is doing well.
  I also wish to say how much I am privileged to work with my friend 
from Oregon, Senator Wyden, who has been one of the most innovative 
thinkers in the area of health reform. Once again, he is leading the 
way on an issue I am going to speak to for just a second.
  I am happy to see my colleague from Maine is with us. It saddens me 
to say that, regrettably, this is one of the few examples of bipartisan 
cooperation where we have come together across the aisle, Democrats and 
Republicans, working together to figure out how in a practical way we 
can help solve the problem our country faces.
  Here we have an issue of what to do about the 7 percent of Americans 
who are the individual insurance market but are receiving no subsidies 
from the government. According to the CBO, they are at risk of having 
their premiums go up. That is not right, particularly at a time when 
even people who are making more than $88,000 very often are struggling. 
So the question is, What can we do about it?
  Senator Collins, Senator Wyden, and myself focused on these 
individuals because we wanted to do what we could, in the words that my 
colleague from Oregon emphasizes so often, to provide choice and 
encourage competition to improve both price and quality. That is what 
our amendments are all about.
  I wish to read a very brief statement and then turn it over to my 
colleagues.
  When I go home to Indiana, the health care concern I hear the most 
about from ordinary Hoosiers, particularly middle-class Hoosiers, is 
what are we going to do to make their coverage more affordable. Many 
people in my State already have insurance, but they are struggling to 
keep up with the skyrocketing increases and the cost of that care.
  We began our health care debate and these deliberations in this body 
this past spring. In mid-October, months into our debate, some of us 
were struck by the fact that we had not answered the most basic 
question: How much is this going to cost, and what do we do to bring 
those costs down? So I, along with some others, submitted in writing 
that question to the Congressional Budget Office. What will this do for 
people in the small group markets such as small business owners, what 
will this do for individuals in the large group markets who work for 
larger employers, and what will it do for individuals who are out there 
struggling on their own to provide health insurance for themselves and 
for their loved ones?
  When they released their report, I was pleased to see that the 
current legislation before us would either contain or lower costs for 
93 percent of the American people. For 83 percent of those in small 
group and large group plans, it is about holding even or modestly 
lower. For the 17 percent in the individual marketplace, about 10 of 
that 17 percent get subsidies sufficient to actually bring their prices 
down, which leaves us with the 7 percent of those individuals in the 
individual market who get no subsidies and may see serious cost 
increases if nothing is done. The Wyden-Collins-Bayh amendments 
accomplish just that.
  Our first amendment promotes more health choices for both employers 
and workers who would otherwise have few, if any, choices. It would 
help individuals who would be forced to buy their own insurance at 
higher rates than they currently pay. It would give them the option to 
purchase low-cost plans that offer essential, basic coverage. It would 
ensure that Congress does not mandate that anyone buy a more expensive 
plan than they currently have.
  Our second amendment is a market-based reform that would pressure 
insurance companies economically to lower premiums and penalize them if 
they try to raise rates before the new exchanges are fully up and 
running. It would immediately adjust the insurer fee in the bill to 
give insurance companies a strong financial incentive to keep premiums 
down. It would do this by making it economically smart for companies to 
hold the line on overhead and executive salaries and to root out 
administrative inefficiencies.
  Our third amendment would offer vouchers to give consumers who have 
health insurance but aren't satisfied with it access to more choices to 
meet their health care needs. It would offer vouchers that individuals 
could use to shop in the new insurance exchanges we are creating. Those 
who prefer their current plan to what is offered in the exchange could 
return the voucher and keep their existing coverage.
  If we pass these amendments, we can credibly tell the American people 
that our long efforts will have addressed rising health insurance 
premium costs for everyone, and that is at the heart of this effort we 
have undertaken.
  In closing, I will say that Americans are not looking for a 
Democratic solution or a Republican solution to our health care 
challenge. They are looking for us to come together to pass a reform 
bill that works in practical terms in their daily lives. More choices, 
premium cost increases under control, eliminating preexisting 
conditions--those are the things that will help middle-class families 
in my State and others across the country.
  I am proud that the Wyden-Collins-Bayh affordability package will 
represent one of the few bipartisan efforts in this body. As I was 
saying, I regret the fact that it is one of the few, but I am proud we 
have come together to work to address this important challenge. I hope 
my colleagues will agree that we have a responsibility to restrain 
premium costs for all American families by encouraging consumer choice 
and robust competition in the private marketplace. I hope we will pass 
these amendments because they accomplish exactly that.
  Madam President, thank you for your patience. I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Madam President, I wish to begin my part of this colloquy 
with Senator Bayh and Senator Collins by thanking my colleague from 
Indiana. I also thank my colleague from Maine because both senators 
have said from the very beginning of this discussion that the bottom 
line for millions of working families, for single moms, for folks who 
are walking on an economic tightrope across the country, they are going 
to see this issue through the prism of what it means for them in terms 
of their premiums and their costs.
  Over these many months, Senator Bayh and Senator Collins and I have 
been toiling to put together some bipartisan ideas. We have filed these 
ideas as a package of amendments, submitted them to the majority 
leader, Senator Reid, and the chairman of the Finance Committee, 
Senator Baucus, and we just wanted to take a few minutes today to talk 
in particular about why it is so essential that there be a bipartisan 
effort put together for additional steps to contain costs.
  Senator Bayh is absolutely right in describing the Congressional 
Budget Office analysis. Certainly, many people were fearful the CBO 
report would come out and say that on day one after enactment premiums 
would rise into the stratosphere as a result of the legislation. 
Fortunately, that was not the case in the report for most people.
  We also believe there is a whole lot more that can be done. So we 
have said, Democrats and Republicans are going to try to prosecute that 
case. What it comes down to is ensuring that, in the text of this 
legislation, there is more choice and more competition.
  The reality is, ever since the 1940s, the days of the wage and price 
control decisions that have done so much to shape today's health care 
system, most Americans have not had real choice in the health care 
marketplace and have not been able to enjoy the fruits of a competitive 
system. Most Americans have little or no choice. Most Americans don't 
get a chance to benefit when they shop wisely.
  As Senator Bayh noted--and as Senator Collins and I have noted over 
the last few days--that is something we ought to change. It is 
certainly not a partisan idea. Senator Reid and Senator Baucus, to 
their credit, have agreed with me that there ought to be

[[Page 31472]]

more choice for those folks who have what, in effect, are hardship 
exemptions under this legislation. There are people, for example, who 
spend more than 8 percent of their income on health who aren't eligible 
for subsidies, who have these hardship exemptions; and Senator Reid, 
Senator Baucus, and I have agreed they ought to be able to take any 
help they are getting from their employer in the form of a voucher and 
go into the marketplace. These people should be able to put into their 
pockets any savings that come about because they have shopped wisely.
  But as Senator Bayh has noted, we have an opportunity to go further. 
If an employer in the exchange decides, on a voluntary basis, that 
their workers should have a choice, under the proposal advanced by the 
Senator from Indiana, the Senator from Maine, and myself, they would be 
able to do it.
  It is the voluntary nature of our idea that Senator Bayh has 
outlined, an approach that gives more options to both employers and 
employees, that caused our proposal to win an endorsement from the 
National Federation of Independent Business.
  I ask unanimous consent at this time to have printed in the Record 
that letter from the National Federation of Independent Businesses.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               National Federation


                                      of Independent Business,

                                                December 10, 2009.
     Hon. Ron Wyden,
     U.S. Senate, Dirksen Senate Office Building, Washington, DC.
     Hon. Susan Collins,
     U.S. Senate, Dirksen Senate Office Building, Washington, DC.
       Dear Senators Wyden and Collins: On behalf of the National 
     Federation of Independent Business (NFIB), the nation's 
     leading small business association, we are writing in support 
     of the Wyden-Collins amendment (Optional Free Choice 
     Voucher--amendment #3117), which provides vouchers as a new 
     voluntary option for employers and employees to purchase 
     health insurance.
       For small business, the goal of healthcare reform is to 
     lower costs, increase choices and provide real competition 
     for private insurance. The Wyden-Collins amendment achieves 
     what we know are clear bipartisan goals in healthcare 
     reform--expanding access to coverage, increasing consumer 
     choice and improving portability.
       Free choice vouchers recognize that the employer-employee 
     relationship in America has changed considerably since 
     employer-sponsored insurance began in the 1940s. They give 
     employees tax- advantaged resources to tailor healthcare 
     choices and purchases to their own preferences and needs. 
     Because the employees will be able to choose from more 
     policies, they will be more invested in their healthcare 
     decisions. They will be better consumers because they will be 
     more aware of costs, and this will help ``bend the cost 
     curve.''
       In today's diverse and highly mobile workforce, people 
     change jobs every few years. Improving portability will 
     reduce the ``job lock'' that currently stifles 
     entrepreneurship. Since free choice vouchers would help make 
     health insurance portable, employees will not be locked into 
     jobs when better opportunities come along.
       This amendment addresses the shortcomings of the existing 
     employer-based system for small businesses. In the current 
     system, small employers often have few options beyond ``take 
     it or leave it.'' This new and voluntary option will 
     encourage employers to provide insurance coverage for 
     employees. It is the exact opposite of employer mandates that 
     harm struggling businesses, discourage startups and kill 
     jobs.
       While some may claim this amendment weakens employer-
     sponsored health insurance, NFIB disagrees. The current 
     system works better for larger firms who can operate more 
     efficiently and effectively, and this inequity must be 
     addressed. Simply put, what works for Wall Street does not 
     work for Main Street. The Wyden-Collins amendment works to 
     address this by making coverage more affordable for many of 
     the nation's job creators.
       NFIB appreciates your commitment to healthcare reform and 
     your continuous efforts to find solutions that work for small 
     business.
           Sincerely,

                                                Susan Eckerly,

                                            Senior Vice President,
                                                    Public Policy.

  Mr. WYDEN. Madam President, I will make one last comment and then we 
will be happy to have our colleague from Maine join us in this 
bipartisan colloquy.
  As we go forward with this legislation, I hope we will do more to 
look at the exchanges, which are the new marketplace for American 
health care. We haven't had that kind of approach since decades ago 
when we had a discussion about a system that, for all practical 
purposes, tethered people to one choice that was a judgment by an 
employer and insurance company. I wish to make sure, in the days ahead, 
that as many people as possible can keep exactly what they have today. 
That is something the President feels strongly about. That is something 
every Member of the Senate feels strongly about. I also want employers 
and employees to be able to say they are going to have a broader range 
of choices than they do now.
  I think that can be done in a way that does not destabilize employer-
based coverage. In fact, I believe it will strengthen employer-based 
coverage. I think that is one of the reasons the National Federation of 
Independent Business has endorsed our proposal.
  We have a lot of work to do. I think there is a lot of good faith 
among Senators on both sides to get this done. I have always felt that 
on issues such as this, when you are talking about one-sixth of the 
American economy, you ought to try to find as much common ground as you 
possibly can. The three of us have come together behind a new set of 
amendments that does find some bipartisan common ground, around 
principles the President has embraced--choice and competition.
  At this point, I yield whatever time she desires to our friend from 
Maine, who is a wonderful partner in this, along with Senator Bayh. 
Americans are looking for commonsense ideas above all else. That is 
what we have sought to do in this proposal.
  I yield to my friend from Maine.
  The PRESIDING OFFICER. The Senator from Maine is recognized.
  Ms. COLLINS. Madam President, first, let me thank my two colleagues 
for their hard work on these amendments. My colleague from Oregon, 
Senator Wyden, has been working so hard on health care issues for such 
a long time. My colleague from Indiana, Senator Bayh, and I have worked 
together on other issues, and I am proud of the fact that the three of 
us have been able to come together, in a bipartisan way, to present to 
our colleagues three important amendments.
  It is, as Senator Bayh has noted, so unfortunate that the debate on 
this bill has been so divisive and partisan. Senator Wyden approached 
me about trying to find some common ground on issues that would unite 
us.
  I should make clear the adoption of these amendments--important 
though they are and great steps forward though they are--do not solve 
all the problems I have with the legislation before us. But they do 
improve the underlying bill in important ways because they help to 
advance the goal of more affordable insurance choices for consumers. 
Providing more choices and more competition and greater affordability, 
after all, should be major goals of health care reform.
  The bill before us falls short in meeting those objectives.
  Let me discuss our amendments. In summary, our amendments would allow 
individuals, who are not receiving subsidies, to purchase lower cost 
plans if that coverage is more affordable for them and more appropriate 
for them.
  We are also proposing health insurance vouchers that would provide 
more options for employers and employees alike. We are proposing 
incentives to insurers to keep their rates lower than they otherwise 
might be.
  Let me further explain our three amendments. First, we would open the 
catastrophic plan--the so-called young invincibles plan--in the 
individual market to anyone, regardless of age, who is not eligible for 
a subsidy under the bill.
  It is incredible to me that we are going to so constrain the 
insurance choices for an individual who is receiving no taxpayer 
subsidy at all. That does not make sense. We want to ensure not only 
that people can keep the insurance they have, if they like it, but also 
that they have more options available to them. Why should we say that 
an individual who is not receiving any help--no subsidy at all--can 
only purchase one of the four types of plans that are authorized by 
this bill?

[[Page 31473]]

  Some would say, well, if you do that, you are going to have a problem 
where a person will perhaps have a health savings account or a 
supplemental catastrophic insurance plan and wait until they are ill to 
trade up to a far better plan. But there is a way to stop that from 
happening. We have drafted our amendment so that if an individual 
wished to upgrade his or her coverage, he or she would have to wait 
until the next plan year and then could only upgrade to what is known 
as the bronze plan--the next higher level of coverage. That would help 
greatly to avoid the problem of adverse selection and having a 
situation where an individual simply waits until he or she becomes ill 
before upgrading coverage.
  We also wish to make sure consumers know exactly what they are buying 
and what kind of coverage they are getting. That is why we would 
require health plans to disclose fully the terms of the coverage to 
ensure that consumers fully understand the limitation.
  Finally, this amendment makes clear that States have the ability to 
impose additional requirements or conditions for the catastrophic plans 
offered under this bill.
  The bottom line is, health care reform should be about expanding 
access to affordable choices. The bill that is on the floor now would 
cause many Americans in the individual market to pay more for health 
care coverage than they do today. That isn't right. If their health 
care coverage is working well for them, if they are higher income and 
can bear the risk, if they have a health savings plan, if they are not 
getting a taxpayer subsidy, why should we dictate, to this degree, the 
level of coverage they can buy?
  I believe this amendment is simple common sense. Let me explain what 
it would mean in my home State of Maine because I think it shows that 
one size does not fit all. In Maine, 87.5 percent of those purchasing 
coverage in the individual market have a policy with an actuarial value 
of less than 60 percent. The most popular individual market policy sold 
in Maine costs a 40-year-old about $185 a month. These individuals 
often pair this catastrophic coverage with a health savings account.
  Under the bill we are debating, unless they are grandfathered and 
don't have any change--for example, they have not gotten married or 
divorced--then that 40-year-old would have to pay at least $420 a 
month--more than twice as much--for a policy that would meet the new 
minimum standard. Otherwise they would have to pay a $750 penalty.
  There is an exception in the bill, but it is only for people who are 
under the age of 30. What we are saying is, let's broaden that, so that 
if you don't receive help from the government, if you don't receive a 
taxpayer subsidy, you, too, can buy that kind of catastrophic coverage 
plan.
  A second amendment the three of us are offering would provide more 
choices to small businesses and to their employees. Giving employers 
and employees more choices should be among the chief goals of health 
care reform.
  Our amendment would allow employers who choose to do so to offer 
vouchers to employees so they can purchase insurance on the exchange. 
This would allow them, for example, to use the employer voucher, plus 
tap into the subsidy available because of their income level, and put 
some of their own funds into purchasing the kind of coverage they want. 
As Senator Wyden has explained, this program is completely optional. 
Employers could offer these vouchers or decide to continue with their 
employer plan.
  Let me tell you one reason I think this strengthens the bill. We need 
more people buying insurance through the exchanges, because if more 
people are using the exchanges, it broadens the risk pool, and the 
rates will be better for everyone. In insurance, having more people 
over which to spread the risk drives costs and premiums down.
  So it is not surprising to me that our Nation's largest small 
business group, the NFIB, has endorsed our amendment. Let me read one 
paragraph from the NFIB letter because it really sums it up. The NFIB 
says:

       This amendment addresses the shortcomings of the existing 
     employer-based system for small businesses. In the current 
     system, small employers often have few options beyond ``take 
     it or leave it.'' This new and voluntary option will 
     encourage employers to provide insurance coverage for 
     employees. It is the exact opposite of employer mandates that 
     harm struggling businesses, discourage startups, and kill 
     jobs.

  I think the NFIB has said it well. This will give more choices both 
to employers and to employees.
  Finally, let me say a few words about our proposal to modify the 
formula for the allocation of the $6.7 billion annual tax on health 
insurance providers.
  There are a lot of problems with that particular tax, not the least 
of which is the gap between when the tax is imposed and when the 
subsidies are finally available 4 years later. Another problem is that 
the tax applies to nonprofit insurers as well as for-profit insurers. I 
am working with Senator Carl Levin to try to address that problem.
  Here is what we are saying. The way the tax is designed in the bill, 
there is little to keep insurers from jacking up premiums, which is 
exactly the opposite of what we want them to do. They are going to just 
pass this tax on. So what we propose is to give insurers an incentive 
to keep premiums as low as possible. Under our amendment, if you are an 
insurer that is holding down the cost of your premiums, you don't pay 
as large a share of the tax. That makes sense. That helps us be more 
fair to the efficient insurer that is working hard to keep premiums 
down.
  Again, I am very pleased to join with my two colleagues in presenting 
to the Senate three amendments that will provide more choices, greater 
affordability, and more options. These should be the goals of health 
care reform, and these amendments help to advance those goals.
  Mr. WYDEN. Madam President, how much time do we have?
  The PRESIDING OFFICER. There is 3 minutes 50 seconds remaining.
  Mr. WYDEN. Madam President, I thank my colleague from Maine for her 
great statement. She summed it up so well.
  To close, I will turn to Senator Bayh, and if we have time, I will 
add a thought or two.
  Mr. BAYH. Madam President, I will be brief. I compliment Senator 
Collins on an excellent presentation. She summarized it very succinctly 
and in a way that was compelling.
  I hope our colleagues will take note that among the three of us, we 
have the east coast represented, the west coast represented, and the 
Midwest represented. So we span the country and this body. I hope that 
will cause our colleagues to take some note.
  The Senator from Maine focused on the letter from the NFIB. This 
helps small businesses at a time when they are struggling to create 
jobs. I hope our colleagues will take note of this letter.
  The Senator from Maine also pointed out, why should we control the 
health care choices of individuals who are receiving no subsidies. That 
ought to be up to them. We accomplish all of those things.
  It is a pleasure doing business with Senator Collins. This is a 
practical approach to solving these problems. I hope our colleagues 
will take notice.
  The last thing I will say is, I repeatedly have people come up to me 
and say: Boy, Ron Wyden has some great ideas. We need more of these 
ideas in this bill. And this is accomplishing that. Senator Wyden has 
been a true leader for many years in this area. I am glad choice and 
competition is being introduced, and it is because of his good work.
  Mr. WYDEN. Madam President, to close, briefly, I thank my colleagues. 
I don't want to make this a bouquet-tossing contest, but to have 
Senator Bayh and Senator Collins--they are as good of partners as it 
can possibly get.
  At the end of the day, Americans are going to watch this bill, they 
are going to watch it next year during the open enrollment season when 
millions are signing up for their coverage, and they are going to be 
looking to see if we did everything possible to hold down their 
premiums. Holding down their premiums--there is a variety of ways to go 
about it, but there is no better tool than to bring the principles of 
the marketplace, the principles that are used

[[Page 31474]]

in every other part of American life--choice and competition--for the 
challenge ahead.
  With the help of Senator Collins and Senator Bayh, we are going to 
prosecute that case. We are going to do it in a bipartisan way.
  I thank my colleagues. I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Madam President, I ask unanimous consent that 
Republican Senators be permitted to engage in a colloquy during our 
time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALEXANDER. Madam President, my grandfather was a Santa Fe railway 
engineer. He lived in Newton, KS. So far as I can tell, he was one of 
the most important men in the world. I was 5, 6, 7 years old when I 
would go out there. He drove one of these great big steam locomotives. 
If there were as many yellow flags and red flags along the track when 
he was driving that Santa Fe locomotive as there are with the health 
care locomotive that is going through the Senate today, I think my 
grandfather would have been guilty of gross negligence if he did not 
slow it down and see what those red flags and yellow flags meant.
  There is a lot of talk about making history with this bill, but there 
are a lot of different ways to make history. One of the things I hope 
we will be very careful to do in the Senate is not to make a historic 
mistake with this health care legislation.
  Now we have even one more red flag to consider. It came out last 
night from Chief Actuary Richard Foster of the Centers for Medicare and 
Medicaid Services. The Centers for Medicare and Medicaid Services is 
not a Republican organization nor a Democratic organization. It is in 
the Obama administration. But it is the agency in charge of the Federal 
Government's spending for health care, which, according to Mr. 
Samuelson, who wrote a column in Newsweek recently, was 10 percent in 
the year 1980 and 25 percent today of our government's total 
expenditures.
  If we go back to the reason we started all this debate on health 
care, let's remember that the reason we started the debate was first to 
see if we can bring down the costs of health care because the red flags 
and the yellow flags are everywhere for small businesses, for 
individuals, for our government. We cannot continue to afford the 
increasing cost of health care in America. So our first goal here is to 
bring down the costs.
  Yet, Mr. Foster, the Chief Actuary of the Centers for Medicare and 
Medicaid Services, in a lengthy report delivered last night on the 
health care bill--most of which we have seen but some of which we do 
not know about yet; it is still being written in the back room--says 
that it will increase costs. Instead of reducing costs, it will 
increase costs. It points out the obvious, which is that the taxes in 
the bill will raise the premiums for the 180 million of us pay who have 
employer-based insurance, and for those who have individual insurance. 
It talks about the millions of Americans who will be losing their 
employer insurance by the combination of provisions in this bill, many 
of whom will end up in Medicaid, where 50 percent of doctors will not 
see a new patient. But maybe the most important finding is the most 
obvious finding, the one which we have been suggesting to our 
colleagues day-in and day-out. It is one we ought to pay attention to 
and one which almost every American can easily understand. And it is 
this--it has to do with Medicare, the government program on which 40 
million seniors depend. This bill would cut $1 trillion--let's start 
this way. Medicare, the program we depend on, its trustees say it is 
going broke in 5 years. It is already spending more than it brings in, 
and it will be insolvent between 2015 and 2017. Those are the Medicare 
trustees telling us this.
  What does this bill do to that?
  Mr. McCAIN. Will the Senator yield for a question?
  Mr. ALEXANDER. If I may finish my point.
  What does this bill do? It would cut $1 trillion from Medicare. I ask 
the Senator from Arizona, if the program is going broke and you cut $1 
trillion out--and then it has been suggested over the last few days 
that we add several million more people into Medicare--what do you 
suppose the result would be?
  Mr. McCAIN. The answer is, obviously, that I don't know.
  I would like to say to the Senator from Tennessee--and Dr. Barrasso 
is here as well--a lot of Americans have heard of the Congressional 
Budget Office. I am not sure many have heard of the Centers for 
Medicare and Medicaid Services, which is part of the Department of 
Health and Human Services. Are they not the people whose entire focus 
is not on the entire budget, as CBO's is, but just on Medicare and 
Medicaid, so that they can make determinations as to the future and the 
impact of various pieces of legislation on specifically Medicare and 
Medicaid? Is that a correct assessment?
  Mr. ALEXANDER. The Senator from Arizona is exactly right. I believe I 
have my figures right. I think Mr. Samuelson said in his column the 
other day that in 1980 the Federal Government was spending 10 percent 
of all our dollars on health care and today it is 25 percent. And this 
is the agency in charge of most of that massive Federal expenditure 
every year.
  Mr. McCAIN. I thank my friend. Because the findings as of December 
10, 2009, which is entitled ``Estimated Financial Effects of the 
`Patient Protection and Affordable Care Act of 2009,' as Proposed by 
the Senate Majority Leader on November 18, 2009,'' have some 
incredibly, almost shocking results, I say to my friend from Tennessee.
  We know the bill before us does not bring costs under control. But as 
I understand this--and it is pretty, may I say, Talmudic in some ways 
to understand some of the language that is in this report, but is it 
not true that the Reid bill, according to this report--this is not the 
Republican policy committee but the Centers for Medicare and Medicaid 
Services--doesn't it say:

       The Reid bill creates a new long-term insurance program--

  Called the CLASS Act--

     that the CMS actuaries found faces ``a very serious risk'' of 
     becoming unsustainable as a result of adverse selection by 
     participants. The actuary found that such programs face a 
     significant risk of failure and expects that the program will 
     result in ``net Federal cost in the long term.''

  I would like to mention two other provisions to my friend from 
Tennessee and Dr. Barrasso, who is very familiar not only with this 
center but with Medicare and Medicaid services.

       The Reid bill funds $930 billion in new Federal spending by 
     relying on Medicare payment cuts which are unlikely to be 
     sustainable on a permanent basis. As a result--

  According to CMS--

     providers could ``find it difficult to remain profitable and, 
     absent legislative intervention, might end their 
     participation in the Medicare program.''
       The Reid bill is especially likely to result in providers 
     being unwilling to treat Medicare and Medicaid patients, 
     meaning that a significant portion of the increased demand 
     for Medicaid services would be difficult to meet.

  They go on to say:

       The CMS actuary noted that the Medicare cuts in the bill 
     could jeopardize Medicare beneficiaries' access to care. He 
     also found that roughly 20 percent of all Part A providers 
     (hospitals, nursing homes, etc.) would become unprofitable 
     within the next 10 years as a result of these cuts.

  Finally, he goes on to say:

       The CMS actuary found that further reductions in Medicare 
     growth rates through the actions of the Independent Medicare 
     Advisory Board--

  Which is one of the most controversial parts of this legislation--

     which advocates have pointed to as a central lynchpin in 
     reducing health care spending, ``may be difficult to achieve 
     in practice.''

  This is a remarkable study, I say to my friend from Tennessee.
  Mr. ALEXANDER. I thank the Senator from Arizona for being so specific 
about this and making it clear that this is not a Republican Senator 
talking, this is a Republican Senator reading the report of the Federal 
Government's Chief Actuary for the Medicare and Medicaid Program. 
Senator Barrasso, a physician for 25 years in Wyoming, brought to our 
attention some of

[[Page 31475]]

these things earlier this week when he pointed out what this also says.
  Isn't the point that if we keep cutting Medicare, there are not going 
to be any hospitals and any doctors around to take care of patients who 
need care?
  Mr. McCAIN. May I also ask, in addition to that question, has Dr. 
Barrasso ever heard of the CMS being biased or slanted in one way or 
another? Isn't it one of the most respectable and admired objective 
observers of the health care situation as far as Medicare and Medicaid 
are concerned?
  Mr. BARRASSO. My answer to that is they are objective. That is why we 
did not get this report--I have the same copy my colleague from Arizona 
has. This just came out, and the reason is because they wanted to take 
the time to study the bill which they got in the middle of November. So 
they needed the time to actually go through point by point what the 
implications were.
  The Senator talked about the one segment where they talk about they 
``face a significant risk of failure.'' They actually go on to say: 
``This will eventually trigger an insurance death spiral.'' This is for 
people who depend upon Medicare for their health care.
  There is an Associated Press story out today that says this provides 
a sober warning--a sober warning--today to Members of the Senate. This 
is a time when the Senate raised the debt limit in this country by over 
$1 trillion. As the old saying goes--I say to my friend who served in 
the Navy--they are spending money like drunken sailors, and yet they 
want to keep the bar open longer. They want to increase the debt at a 
time when our Nation cannot afford it, when we have 10 percent 
unemployment.
  The folks who know Medicare the best and can look at this objectively 
and share with the American people what their beliefs are as to what 
the impact is going to be say that is going to be devastating for 
patients who rely on Medicare for their health care--our seniors--and 
devastating for small community hospitals. I see the former Governor, 
now Senator of Nebraska, is here, and he knows, as I do from Wyoming, 
the impact on our small community hospitals.
  But as the Senator from Tennessee said, this is all being done in a 
back room. We are not privy to the newest changes, which I think are 
actually going to make matters worse. The New York Times today says 
Democrats' new ideas would be even more expensive. Questions exist 
about the affordability. What we are dealing with is a situation that 
is unsustainable, and that is why the newest poll out today by CNN--
certainly not biased one way or the other--finds that 61 percent of 
Americans oppose this bill. It is the highest level of opposition to 
date because more and more people are seeing and learning the truth 
about what is being proposed in the bill before the Senate.
  Mr. McCAIN. This is the information on the bill as it is; correct--
the original bill? This is without the expansion of Medicare taken into 
this study, which already, as the Senator quoted from the New York 
Times and other health care experts, is going to increase costs even 
more. As you expand Medicare, among other things, you run the risk of 
adverse selection, which means the people who are the sickest 
immediately enroll, which then increases the cost, and then who would 
be paying the increased Medicare payments? The young and the healthy. I 
ask my friend from Wyoming, should we do that to the next generations 
of Americans?
  Mr. BARRASSO. Well, we should not. We need to be fair. We need to 
deal with this in a realistic way. But the bill in front of us now is 
going to raise taxes $500 billion, it is going to cut Medicare by 
almost $500 billion for our seniors who depend upon it, and for people 
who have insurance they like, it is going to increase their premiums. 
They are going to end up paying more than if no bill was passed at all.
  That is why, across the board, more people would rather have this 
Senate do nothing than to pass this bill we are looking at today. They 
understand the impact on this Nation and our future is devastating. 
This will cause us to lose jobs, with the taxes; it will cause us to 
lose care in small communities; and for our seniors who depend upon 
Medicare, they are going to throw more people into Medicaid, another 
program where half the folks now can't find a doctor who will see them.
  All in all, there is nothing I see about this bill or any of the new 
changes and certainly nothing in this report that says to the American 
people: Hey, you might want to think about this. The American people 
have thought about it. This report tells the American people this is 
not what they want for health care in this Nation.
  Mr. ALEXANDER. Madam President, I ask unanimous consent to have 
printed in the Record the summary of the report of the Centers for 
Medicare & Medicaid Services.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Department of Health & Human Services, Centers for 
           Medicare & Medicaid Services, Office of the Actuary,
                                 Baltimore, MD, December 10, 2009.
     From: Richard S. Foster, Chief Actuary.
     Subject: Estimated Financial Effects of the ``Patient 
         Protection and Affordable Care Act of 2009,'' as Proposed 
         by the Senate Majority Leader on November 18, 2009.

       The Office of the Actuary has prepared this memorandum in 
     our longstanding capacity as an independent technical advisor 
     to both the Administration and the Congress. The costs, 
     savings, and coverage impacts shown herein represent our best 
     estimates for the Patient Protection and Affordable Care Act. 
     We offer this analysis in the hope that it will be of 
     interest and value to policy makers as they develop and 
     debate national health care reforms. The statements, 
     estimates, and other information provided in this memorandum 
     are those of the Office of the Actuary and do not represent 
     an official position of the Department of Health & Human 
     Services or the Administration.
       This memorandum summarizes the Office of the Actuary's 
     estimates of the financial and coverage effects through 
     fiscal year 2019 of selected provisions of the proposed 
     ``Patient Protection and Affordable Care Act of 2009'' 
     (PPACA). The estimates are based on the bill as released by 
     Senate Majority Leader Harry Reid on November 18 as an 
     amendment in the nature of a substitute for H.R. 3590. 
     Included are the estimated net Federal expenditures in 
     support of expanded health insurance coverage, the associated 
     numbers of people by insured status, the changes in Medicare 
     and Medicaid expenditures and revenues, and the overall 
     impact on total national health expenditures. Except where 
     noted, we have not estimated the impact of the various tax 
     and fee proposals or the impact on income and payroll taxes 
     due to economic effects of the legislation. Similarly, the 
     impact on Federal administrative expenses is excluded. A 
     summary of the data, assumptions, and methodology underlying 
     our estimates of national health reform proposals is 
     available in the appendix to our October 21 memorandum on 
     H.R. 3200.


                                Summary

       The table shown on page 2 presents financial impacts of the 
     selected PPACA provisions on the Federal Budget in fiscal 
     years 2010-2019. We have grouped the provisions of the bill 
     into six major categories:
       (i) Coverage proposals, which include both the mandated 
     coverage for health insurance and the expansion of Medicaid 
     eligibility to those with incomes at or under 133 percent of 
     the Federal poverty level (FPL);
       (ii) Medicare provisions;
       (iii) Medicaid and Children's Health Insurance Program 
     (CHIP) provisions other than the coverage expansion;
       (iv) Proposals aimed in part at changing the trend in 
     health spending growth;
       (v) The Community Living Assistance Services and Supports 
     (CLASS) proposal; and
       (vi) Immediate health insurance reforms.
       The estimated costs and savings shown in the table are 
     based on the effective dates specified in the bill as 
     released. Additionally, we assume that employers and 
     individuals would take roughly 3 to 5 years to fully adapt to 
     the insurance coverage provisions and that the enrollment of 
     additional individuals under the Medicaid coverage expansion 
     would be completed by the third year following enactment. 
     Because of these transition effects and the fact that most of 
     the coverage provisions would be in effect for only 6 of the 
     10 years of the budget period, the cost estimates shown in 
     this memorandum do not represent a full 10-year cost for the 
     proposed legislation.

[[Page 31476]]



             ESTIMATED FEDERAL COSTS (+) OR SAVINGS (-) UNDER SELECTED PROVISIONS OF THE PATIENT PROTECTION AND AFFORDABLE CARE ACT OF 2009
                                                                      [In billions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Fiscal year
           Provisions           --------------------------------------------------------------------------------------------------------------   Total,
                                    2010       2011       2012       2013       2014       2015       2016       2017       2018       2019     2010-19
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total\1\.......................      $16.1      -$1.6     -$18.6     -$35.2      $22.4      $78.1      $83.0      $76.2      $74.5      $71.0     $365.8
    Coverage\2\................  .........  .........  .........  .........       93.8      141.1      158.3      165.8      178.6      192.3      929.9
    Medicare...................       11.5        1.3      -13.4      -24.3      -60.5      -52.0      -66.0      -80.9      -95.8     -113.3     -493.4
    Medicaid/CHIP..............       -0.4       -0.1       -0.7       -5.3       -4.9       -4.9       -4.8       -4.9       -4.8       -4.8      -35.6
    Cost trends................  .........  .........  .........  .........       -0.0       -0.1       -0.2       -0.4       -0.6       -0.9       -2.3
    CLASS program..............  .........       -2.8       -4.5       -5.6       -5.9       -6.0       -4.3       -3.4       -2.8       -2.4      -37.8
    Immediate reforms..........        5.0  .........  .........  .........  .........  .........  .........  .........  .........  .........       5.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\Excludes Title IX revenue provisions except for 9015, certain provisions with limited impacts, and Federal administrative costs.
\2\Includes expansion of Medicaid eligibility.
\3\I Includes estimated non-Medicare Federal savings from provisions for comparative effectiveness research, prevention and wellness, fraud and abuse,
  and administrative simplification. Excludes impacts of other provisions that would affect cost growth rates, such as the productivity adjustments to
  Medicare payment rates, which are reflected in the Medicare line.

       As indicated in the table above, the provisions in support 
     of expanding health insurance coverage (including the 
     Medicaid eligibility changes) are estimated to cost $930 
     billion through fiscal year 2019. The net savings from the 
     Medicare, Medicaid, growth-trend, and CLASS proposals are 
     estimated to total about $564 billion, leaving a net cost for 
     this period of $366 billion before consideration of 
     additional Federal administrative expenses and the increase 
     in Federal revenues that would result from the excise tax on 
     high-cost employer-sponsored health insurance coverage and 
     other revenue provisions. (The additional Hospital Insurance 
     payroll tax income under section 9015 of the PPACA is 
     included in the estimated Medicare savings shown here.) The 
     Congressional Budget Office and Joint Committee on Taxation 
     have estimated that the total net amount of Medicare savings 
     and additional tax and other revenues would somewhat more 
     than offset the cost of the national coverage provisions, 
     resulting in an overall reduction in the Federal deficit 
     through 2019.
       The chart shown on the following page summarizes the 
     estimated impacts of the PPACA on insurance coverage. The 
     mandated coverage provisions, which include new 
     responsibilities for both individuals and employers, and the 
     creation of the Health Benefit Exchanges (hereafter referred 
     to as the ``Exchanges''), would lead to shifts across 
     coverage types and a substantial overall reduction in the 
     number of uninsured, as many of these individuals become 
     covered through their employers, Medicaid, or the Exchanges.
       By calendar year 2019, the mandates, coupled with the 
     Medicaid expansion, would reduce the number of uninsured from 
     57 million, as projected under current law, to an estimated 
     24 million under the PPACA. The additional 33 million people 
     who would become insured by 2019 reflect the net effect of 
     several shifts. First, an estimated 18 million would gain 
     primary Medicaid coverage as a result of the expansion of 
     eligibility to all legal resident adults under 133 percent of 
     the FPL. (In addition, roughly 2 million people with 
     employer-sponsored health insurance would enroll in Medicaid 
     for supplemental coverage.) Another 20 million persons (most 
     of whom are currently uninsured) would receive individual 
     insurance coverage through the newly created Exchanges, with 
     the majority of these qualifying for Federal premium and 
     cost-sharing subsidies, and an estimated 20 percent choosing 
     to participate in the public insurance plan option. Finally, 
     we estimate that the number of individuals with employer-
     sponsored health insurance would decrease overall by about 5 
     million, reflecting both gains and losses in such coverage 
     under the PPACA.
       As described in more detail in a later section of this 
     memorandum, we estimate that total national health 
     expenditures under this bill would increase by an estimated 
     total of $234 billion (0.7 percent) during calendar years 
     2010-2019, principally reflecting the net impact of (i) 
     greater utilization of health care services by individuals 
     becoming newly covered (or having more complete coverage), 
     (ii) lower prices paid to health providers for the subset of 
     those individuals who become covered by Medicaid, and (iii) 
     lower payments and payment updates for Medicare services, 
     together with net Medicaid savings from provisions other than 
     the coverage expansion. Although several provisions would 
     help to reduce health care cost growth, their impact would be 
     more than offset through 2019 by the higher health 
     expenditures resulting from the coverage expansions.
       The actual future impacts of the PPACA on health 
     expenditures, insured status, individual decisions, and 
     employer behavior are very uncertain. The legislation would 
     result in numerous changes in the way that health care 
     insurance is provided and paid for in the U.S., and the scope 
     and magnitude of these changes are such that few precedents 
     exist for use in estimation. Consequently, the estimates 
     presented here are subject to a substantially greater degree 
     of uncertainty than is usually the case with more routine 
     health care proposals.
       The balance of this memorandum discusses these financial 
     and coverage estimates--and their limitations--in greater 
     detail.


   Effects of Coverage Proposals on Federal Expenditures and Health 
                           Insurance Coverage

     Federal expenditure impacts
       The estimated Federal costs of the coverage provisions in 
     the PPACA are provided in table 1, attached, for fiscal years 
     2010 through 2019. We estimate that Federal expenditures 
     would increase by a net total of $366 billion during this 
     period--a combination of $930 billion in net costs associated 
     with coverage provisions, $493 billion in net savings for the 
     Medicare provisions, a net savings of $36 billion for the 
     Medicaid/CHIP provisions (excluding the expansion of 
     eligibility), $2 billion in savings from proposals intended 
     to help reduce the rate of growth in health spending, $38 
     billion in net savings from the CLASS proposal, and $5 
     billion in costs for the immediate insurance reforms. These 
     latter four impact categories are discussed in subsequent 
     sections of this memorandum.
       Of the estimated $930 billion net increase in Federal 
     expenditures related to the coverage provisions of the PPACA, 
     about two-fifths ($364 billion) can be attributed to 
     expanding Medicaid coverage for all adults who make less than 
     133 percent of the FPL and all uninsured newborns. This cost 
     reflects the fact that newly eligible persons would be 
     covered with a 100-percent Federal Medical Assistance 
     Percentage (FMAP) for the first 3 years and approximately 90 
     percent thereafter; that is, the Federal government would 
     bear a significantly greater proportion of the cost of the 
     newly eligible enrollees than is the case for current 
     Medicaid beneficiaries.

  Mr. ALEXANDER. I ask the Senator from Georgia, while this is a 
complex document, in many ways, isn't it a matter of common sense that 
if you take a program that is going broke and you take $1 trillion out 
of it and you add millions of people to it, isn't the end result going 
to be there is not going to be anyone left to take care of the patients 
who need help? Isn't that the logical result, just as this report says?
  Mr. CHAMBLISS. Not only does that report say that, but as you say, 
common sense ought to tell you that. Unfortunately, it is pretty 
obvious the folks on the other side of the aisle who are promoting this 
bill don't get that message.
  Let me quote the chairman of the Finance Committee, who today issued 
this statement relative to the CMS report the Senator has in his hand. 
He said:

       The report shows that health reform will ensure both the 
     Federal Government and the American people spend less on 
     health care than if this bill does not pass.

  That statement is directly contrary to the statement in the CMS 
report that Senator Alexander just referenced, which says:

       . . . we estimate that total national health expenditures 
     under this bill would increase by an estimated total of $234 
     billion (0.7 percent) during calendar years 2010-2019.

  Not only that, but the report says that national health expenditures 
would increase as a percentage of GDP from $1 of every $7, which is 
about 16 percent, to $1 out of every $5, which is 20 percent.
  What the report concludes is not only are our health care costs going 
to go up, but as the Senator from Arizona said, 20 percent of all Part 
A providers--nursing homes, hospitals, home health--would become 
unprofitable within the next 10 years as a result of the provision in 
this bill relating to the Medicare cuts the Senator from Tennessee 
talked about.
  The American people do get it. That is why these poll numbers the 
Senator from Wyoming just stated coming out of CNN and why the FOX poll 
I saw this morning said 57 percent of the people in America are opposed 
to this bill.

[[Page 31477]]

The American people are getting it but, for some reason, our friends on 
the other side of the aisle are not.
  Mr. ALEXANDER. I see the Senator from Nebraska is here, and we had a 
conversation earlier about the attitude of people in Nebraska. It is 
very helpful to have independent evaluators who tell us that if you cut 
$1 trillion out of a program that is going bankrupt and then add more 
people to it, doctors and hospitals are going to go broke. We have 
heard that before from the Mayo Clinic, and I think Senator Johanns has 
been hearing that in the State of Nebraska.
  Mr. JOHANNS. I have heard it all over the State. Today, let me say, 
the fog cleared. The fog cleared and the Sun is shining brightly on 
this mammoth experiment with 16 percent of the economy. This actuary 
says, very clearly--and he has no ax to grind with anyone--that costs 
are going to go up under this bill; that care is going to be 
jeopardized under this bill; that the very linchpin, the essence of 
what this bill was supposed to be all about, can't happen.
  If I might, I wish to refer to something which I will ask to be a 
part of the Record to gain some perspective.
  I wish to applaud my colleagues on this side, and here is why. We 
wrote to the majority leader back in the first part of November and we 
said CBO had not been able to tell us what the ultimate impact would be 
on health care costs and we felt strongly we needed a second opinion. 
So we asked that this bill be submitted to scrutiny by CMS, and that is 
what we are getting today. Twenty-four of us signed onto that.
  Madam President, I ask unanimous consent to have printed in the 
Record the letter to the majority leader, dated November 12, 2009.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                Washington, DC, November 12, 2009.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate, Hart Senate Office Building, 
         Washington, DC.
       Dear Majority Leader Reid: This health care bill will be 
     the most significant piece of legislation that Congress 
     considers this year because it would undoubtedly affect every 
     American. Therefore, it is vitally important that we do not 
     make decisions without a complete and thorough analysis of 
     the bill.
       One of the most important issues facing us as we review 
     this legislation is its effect on overall health care 
     spending. The President has repeatedly stated that he 
     believes health reform should control health care costs. 
     Achieving that objective, as you know, means more than simply 
     employing draconian cuts in Medicare spending and creating 
     numerous new taxes to minimize the effect of creating a vast 
     new health care entitlement on the federal deficit. Bending 
     the cost curve means curbing the rate of all health spending.
       Unfortunately, the Congressional Budget Office has been 
     unable to produce an estimate of the effect of the bills 
     before us on overall medical spending though we note that the 
     CMS Actuary has provided such an assessment of an earlier 
     version of the House health reform bill (HR 3200). Such an 
     analysis would be invaluable to the Senate as we consider 
     this important legislation.
       Therefore, we request that you submit the legislation to 
     the Office of the Actuary at CMS for analysis and make the 
     findings public before you bring the bill to the Senate floor 
     for consideration. We agree with President Obama that health 
     care legislation must ``bend the cost curve so that we're not 
     seeing huge health-care inflation over the long term.'' 
     Therefore, we would specifically like the Office of the 
     Actuary at CMS to determine if this legislation will bring 
     down health care expenditures over the long term.
       We look forward to your response and the assurance that 
     this secondary analysis will be completed in order to provide 
     us and the American people with the information necessary to 
     make a well-informed vote.
           Sincerely,
         Mike Johanns; Sam Brownback; Pat Roberts; Robert F. 
           Bennett; Tom Coburn; Richard Burr; Christopher S. Bond; 
           Roger F. Wicker; John Barrasso; Michael B. Enzi; Jim 
           Bunning; Mike Crapo; Orrin G. Hatch; Lamar Alexander; 
           Susan M. Collins; John Thune; George S. LeMieux; Jim 
           DeMint; Mitch McConnell; George V. Voinovich; John 
           Cornyn; James E. Risch; Kay Bailey Hutchison; Lindsey 
           Graham; Thad Cochran.

  Mr. JOHANNS. Today, we finally have come to grips with the fact that 
all the promises made are not being fulfilled by this bill; that the 
$2.5 trillion that will be spent will accomplish nothing; that health 
care costs would not go down--they will, in fact, go up; and that 
people will lose their private insurance.
  I tell you the most heartbreaking thing for me, and any other Senator 
who has rural hospitals, which is just about every Senator, is that 20 
percent, as the Senator from Georgia points out, will be underwater. 
That means nursing homes that provide care for real people, and that 
means hospitals that provide services for real people. I tell you, in a 
State such as Nebraska, when hospital care disappears in a small town, 
that may mean hospital care disappears for hundreds of miles.
  Mr. ALEXANDER. If I could ask the Senator from Nebraska this 
question. Did a rural hospital in Nebraska or Wyoming or some State 
not--did I notice in a letter from the Mayo Clinic this week, they said 
cuts such as this or an expansion of Medicare under these circumstances 
would cause them to--well, to drop Medicare, period; they lost $840 
million this year, and they are beginning to say to some citizens from 
Nebraska, Montana, other areas: We can't take you if you are a Medicare 
patient or if you are a Medicaid patient.
  Mr. JOHANNS. They are saying that, and that is what is happening 
because they are losing money. They are definitely losing money on 
Medicaid and they are losing money on Medicare.
  So what the Reid bill does is it says: Mr. Alexander, you sell 
whatever--cars. Let's use that as the analogy--and I know you are 
losing $100 on every car. But let's just give you twice as many to 
sell. Well, you are going to lose twice as much money. That is their 
solution to the health care crisis in this country.
  But what this actuary points out, what the Mayo Clinic points out, 
and what so many analysts now have pointed out is that this bill is 
going to put hospitals under and it is going to put nursing homes 
under.
  Here is another point that gets lost in this complex debate. That 
nursing home or that hospital may be the only major employer in that 
community. When you lose that, you not only lose your medical care, but 
you lose those jobs. I have said on the floor before that this bill is 
a job killer. It is a job killer. There is no way of getting around it. 
Those jobs will disappear in that small town, that rural area, and even 
in the big cities.
  I hope our friends on the other side study this very carefully. This 
is a roundhouse blow to the Reid plan--to the Reid-Obama plan. This, in 
my judgment, proves, beyond a shadow of a doubt, that this is going to 
crush health care in our country.
  Mr. ALEXANDER. I would ask the Senators from Wyoming and Georgia, who 
are here, to go back to the beginning. When we began this debate, the 
President, in his summit at the beginning of the year, very correctly--
and I applauded him for that--all of us said we have to reduce health 
care costs--costs to us, costs to small businesses, and costs to our 
government. But doesn't this report of the chief actuary of the 
government say the Reid bill will actually increase health care costs?
  Mr. BARRASSO. It does say that. The President has said he wanted to 
bend the cost curve down. This report says, if we do these things that 
are in the Reid bill, costs of care will actually go up faster than if 
we did nothing at all. That means for people who buy their own 
insurance, the cost of their premiums will go up faster than if this 
Senate passed nothing at all.
  Mr. ALEXANDER. So if I am understanding it, we are going to cut $1 
trillion, when fully implemented, out of Medicare; we are going to add 
$1 trillion in taxes, when fully implemented; we are going to run up 
the debt, we believe on this side; we are going to increase premiums 
and costs are still going up?
  Mr. BARRASSO. For people all across the country, costs are still 
going to go up. The cost of doing business will go up. For families who 
buy their own insurance, the cost of their premiums will go up. For 
people who are on Medicare, they are going to see tremendous cuts into 
that program, and they depend on that for their health care. So costs 
are going up for people

[[Page 31478]]

who pay for their own and for businesses that try to build jobs.
  We know small business in this country is the engine that drives the 
economy, and according to the National Federation of Independent 
Businesses, 70 percent of all new jobs come from small businesses. They 
are going to be penalized to the point they are not going to be able to 
add those new jobs. The NFIB says we will lose across the country 1.6 
million jobs over the next 4 years as the government keeps collecting 
the taxes but doesn't even give any of these health care services 
because those have all been delayed for 4 years.
  Mr. ALEXANDER. We have about 6 minutes remaining in our time. I 
wonder if the Senator from Georgia, having heard the comments, has any 
additional recommendations on the chief actuary's report.
  Mr. CHAMBLISS. I wish to ask a question or two of the Senator from 
Wyoming, who is a medical doctor and who, prior to coming to the 
Senate, was an active orthopedic surgeon.
  I have had physicians come into my office by the droves and talk to 
me about Medicare before we ever got into this health care debate, and 
what I heard was in reference to the reimbursement rate under Medicare 
to physicians and to hospitals being so low.
  In fact, the American Hospital Association has come out just in the 
last 24 hours and pointed out that hospitals across the Nation get a 
return of about 91 cents for every dollar of care provided. That is not 
91 cents of the amount of charges from the hospital to Medicare, it is 
91 cents of the cost of the care provided. So the return is about 10 
percent less to a hospital than the cost that the hospital has in it.
  My understanding is that at least 10 percent less than the cost 
provided for a physician is reimbursed to the physician under Medicare. 
As a result of that, the younger physicians, particularly, who are 
coming out of med school with these huge debts they have incurred as a 
result of the long years they are required to be in school, simply 
cannot afford to take Medicare patients and they are not taking 
Medicare patients. Is that in fact what is happening in the real world? 
And will that not get worse under this proposal?
  Mr. BARRASSO. It is happening. It will get worse under the proposal 
that is ahead of us. That 90-percent figure is actually a high number. 
I know a number of physicians and hospitals, especially in rural 
communities, that get reimbursed less than that. The ambulance services 
do not even get reimbursed enough from Medicare--these are volunteer 
ambulance services--to fill the ambulance with the gas for taking 
somebody the long distances from where they may have fallen and hurt 
themselves, broken a hip, to get them all the way to the hospital. This 
is across the board bad for America.
  We say we want patients to be able to get care. If you throw a whole 
bunch more people on to this boat that is already sinking, which is 
what the Democratic leader is now trying to do, it is going to make it 
that much harder for our hospitals to stay open, especially in these 
communities where there is only one hospital providing care--much more 
difficult. But with any young physician coming out with a lot of debt, 
trying to hire the nurse and pay the rent and the electricity and the 
liability insurance and all of that, these do not even cover the 
expenses. That means they have to charge more to the person who does 
have insurance, the cost shifting that occurs.
  As a result, for people who have insurance, they are going to see 
their rates going up. For people who rely on Medicare, it is going to 
be harder to find a doctor. For those who are put onto Medicaid, with 
the aid for those who need additional help, which the Senate majority 
leader is trying to put more people into that area, it is going to be 
harder for them to find care.
  Across the board, there is nothing good with this proposal. What we 
have seen today documented from the folks who are objective and look at 
the whole picture, they think it is actually as bad--they admit it is 
as bad as we have been saying it is. They say you guys have been right, 
what you are saying about the cost of care, the impact on health care. 
And their phraseology is such that I think they absolutely pinpoint all 
of the reasons that the American people, now by a number of 61 percent, 
oppose this bill we are taking a look at. That is why the Mayo Clinic 
has said, in the letter from their executive director of their Health 
Policy Center, ``Expanding this system to persons 55 to 64 years old 
will ultimately hurt patients by accelerating the financial ruin of 
hospitals and doctors across the country.'' That is what we are looking 
at.
  Mr. ALEXANDER. Madam President, how much time remains?
  The PRESIDING OFFICER. There remains 1\1/2\ minutes.
  Mr. ALEXANDER. Madam President, if I could conclude our time, with 
the permission of the Senator from Georgia and Wyoming, instead of 
racing down this train track with yellow flags and red flags flying 
everywhere, people often ask us: What would you do? What we would do is 
what we think most Americans would do when faced with a big problem, 
not try to solve it all at once but to say, What is our goal? Our goal 
is reducing cost. What are the first four or five steps we can take to 
reduce costs? Can we an agree on those? We think we can. Let's start 
taking them. For example, small business health plans to allow small 
businesses to offer insurance to their employees at a lower rate. That 
legislation is prepared and before the Senate.
  Reducing junk lawsuits against doctors. That reduces costs.
  Allow competition across State lines for insurance policies. That 
reduces costs.
  Going step by step to re-earn the trust of the American people to 
reduce health care costs is the way to go, instead of making what this 
new report from the Center for Medicare and Medicaid Services helps to 
show again would be a historic mistake.
  I yield the floor.
  Mr. ROBERTS. Will the Senator yield for an observation?
  Mr. ALEXANDER. Certainly.
  Mr. ROBERTS. I thank the Senator for yielding.
  The PRESIDING OFFICER. The time of the Senator has expired. The 
Senator from Kansas.
  Mr. ROBERTS. Madam President, I will be very brief. I thank the 
Senator from Tennessee, not only for his statement but for his constant 
efforts. Facts are stubborn things. Yet he has pointed out basically 
what this report now confirms. During the last few months we have seen 
some commentary that says ``scare tactics,'' of all things. I happen to 
have the privilege of being the chairman of the Rural Health Care 
Caucus. I was in the House of Representatives when I had the privilege 
of serving there and I am a cochairman with Senator Tom Harkin of Iowa. 
There are about 30 of us who, from time to time, will correspond and 
meet and send messages back and forth to try to keep the rural health 
care delivery system viable.
  We have been worried for some time in regard to what is going to 
happen to Medicare, what is going to happen in regard to cost, what is 
going to happen in regard to rationing. Every hospital director, every 
hospital board in rural America has worried about these things--more 
especially about CMS, which has been described here in detail. That is 
the Centers for Medicare and Medicaid Services.
  I have to tell you, if you are a hospital administrator or if you are 
on the board of a local hospital in a rural area, and you hear the word 
CMS, it is probably not viewed in the best of considerations, that CMS 
is in charge of enforcing what H2S comes down with. So in terms of 
reimbursement, in terms of all things--competitive bidding--and I am 
talking about doctors, hospitals, nursing homes, home health care, 
hospice, all of this--when they hear the word CMS a cold chill goes 
down the back of their neck, more or less like expecting Lizzy Borden 
to come in the front door.
  So I am especially glad that the actuary, Mr. Richard Foster, the 
Chief Actuary from CMS, has shined the light of truth into darkness. He 
has taken the original bill we have been talking about for some time, 
as my colleague has pointed out, and said basically this

[[Page 31479]]

bill is going to increase costs and is going to result in rationing. It 
does not take into consideration the latest iteration that we hear from 
the press and media about including people 55 to 65 into Medicare. It 
is going to be interesting, if we have enough time--although I know 
that the distinguished majority leader has asked for a CBO score--but I 
would sure like to know what Mr. Foster would think of that idea. I 
think it would be far worse.
  I encourage all of my colleagues who belong to the Rural Health Care 
Caucus to take a very hard look at this. This confirms what we have 
been saying for some time. These are not scare tactics, these are 
actual facts.
  Let me say, too, I know when this debate first started some of the 
national organizations that represent doctors and hospitals, perhaps 
nursing homes--certainly not any home health care--well, I take that 
back. There was a letter written by the home health care folks at one 
time, but certainly not hospices--indicating that they were lukewarm, 
warm to the bill, or would perhaps support it. I think the message was 
pretty clear--come to the breakfast or you won't come to lunch. That 
was pretty bare knuckles but they hoped that at least by insuring those 
who have insurance, that would make their situation better.
  Then, of course, came the latest iteration to this bill of putting in 
people 55 to 65, and the national association, in regard to our doctors 
and our hospitals, said: Whoa.
  Let me point out in Kansas and in many States throughout the country 
there never was the support. They knew exactly what would happen if we 
passed this bill and CMS would come knocking on their door. I might add 
it wouldn't be CMS that would actually do that, it would be the 
Internal Revenue Service under this bill, and that was one 
consideration where I made about a 15-minute speech and obviously not 
too many people paid attention. But all patients, all doctors, all 
nurses, all clinical lab folks, anybody connected with the home health 
care industry or hospice or nursing homes or whatever, should have 
known it is going to be the IRS that is going to enforce this as well 
as CMS, which has been doing most of the enforcing.
  In Kansas, the Kansas Medical Society said: No, no, we are not going 
to go along with this bill. I am talking about the bill we have been 
talking about for some time. The Kansas Hospital Association was 
adamant. They said no. Obviously that was because of advice they got 
from 128 hospitals in my State, saying: No, we cannot reconcile with 
this because of cost, because of the rationing. We are only being 
reimbursed at 70 percent or less, as we talk about it--and the doctors 
about 80 percent.
  Many doctors do not serve Medicare now in Kansas. Let me rephrase 
that. Some doctors don't serve Medicare in Kansas. If this bill passes, 
a lot of doctors simply will not serve Medicare. You can have the best 
plan or the best card in the world, it is not going to make any 
difference if you can't see a doctor. It is not worth a dime.
  Then I have to say the Kansas Nursing Home Association and Kansas 
Home Health Care folks and the Kansas Hospice folks all said: No, this 
is not where we want to go. This is self-defeating. This is not going 
to do what the sponsors of the bill and what everybody for health care 
reform hoped they would actually see happen.
  I don't know what the word is, I am--not overwhelmed, I am extremely 
glad; I am somewhat surprised but I am extremely glad that CMS again 
shined the light of truth into darkness. I commend Mr. Foster, the 
chief actuary. I recommend this as required reading for everybody who 
was going to vote for this bill and certainly with the latest 
iteration, where we are adding anywhere from 10 to 20 to 30 million 
people to Medicare, which will make the situation much worse in regard 
to Medicare being actuarially sound and costs going up, premiums going 
up, and also rationing, the dreaded rationing. It is not a scare tactic 
but actually a fact.
  I yield my time.
  The PRESIDING OFFICER. The Senator from Washington.
  Ms. CANTWELL. Madam President, I have been on the floor now for about 
an hour listening to my colleagues on the health care debate. Certainly 
I want to express the opinion from many people in the Northwest. We 
know that doing nothing about health care certainly will guarantee that 
premiums will go up. We know it happened in the last 10 years; they 
have gone up 100 percent. We know that doing nothing now means they 
will go up 8 to 10 percent a year. We also know there is about $700 
billion in waste in the system.
  This is about what we can do to reform the system so we can stop the 
rise, the increase we are seeing in our premiums. There are many things 
in this legislation, changing fee-for-service systems so we are driving 
down the quantity of health care that is delivered instead of making 
sure that it is quality; making sure we make reforms in long-term care; 
making sure we give the power to States to negotiate and drive down the 
costs. I know my colleague Senator Collins was on the floor with some 
of my other colleagues, the Senators from Oregon and Indiana, to 
discuss their ideas about how we improve cost containment.
  I hope my colleagues in the next days will join us in the discussion 
about how we continually improve the bill to drive down costs, because 
doing nothing will not get us to that point.
  (The remarks of Ms. Cantwell and Ms. Collins pertaining to 
introduction of S. 2827 are located in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')
  Ms. COLLINS. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CRAPO. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAPO. Madam President, I ask unanimous consent to be able to 
enter into a colloquy with my Republican colleagues for up to 30 
minutes, and that following those remarks, the Republican leader be 
recognized, and that following his remarks Senator Durbin be recognized 
to speak.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAPO. Thank you, Madam President.
  Madam President, I would like to speak on health care. The pending 
business before the Senate right now is actually the Omnibus 
appropriations bill, which the Senate moved to yesterday, after having 
started the debate on the health care legislation.
  My motion is the pending business on the health care legislation, and 
so it is that motion I would like to talk about. Before I do so, I 
would like to again raise objection and concern to the fact that we 
have moved off the health care legislation debate to the Omnibus 
appropriations bill, both because I believe we should stay on the 
health care issue and work it through, but also because we moved to an 
Omnibus appropriations bill that we have not had an opportunity to 
review carefully and that raises the spending--I believe for these 
seven appropriations bills that have been compiled together, the 
spending is raised by an average of about 12 percent.
  Once again, Congress is in a spending free fall, and whether it be 
the stimulus package or the appropriations for our ordinary operations 
of government or whether it be the bailouts or the tremendous other 
aspects of spending pressures and proposals, including the health care 
legislation we have, there seems to be no restraint in Washington with 
regard to spending the taxpayers' dollars.
  But let's talk for a minute about the motion that was before the 
Senate before we moved off the health care legislation. It was a motion 
I raised to object to the tax increases on the middle class in America 
that are contained in the bill.
  The motion I have is very simple. It focuses on the President's 
pledge. The President pledged that ``no family making less than 
$250,000 will see their taxes increase--not your income taxes, not your 
payroll taxes, not your capital gains taxes, not any of your

[[Page 31480]]

taxes.'' The President pledged: You will not see any of your taxes 
increase one single dime.
  So the motion I brought was very simple. It was simply to commit the 
bill to the Finance Committee to have the Finance Committee go through 
the 2,074-page bill and remove from the bill the taxes that are in it 
that apply to the middle class in the United States, as defined by the 
President here: being those who, as a couple, are making less than 
$250,000 a year, or those, as an individual, who are making less than 
$200,000 a year.
  What we have seen is that not only has there been delay on reaching 
that goal but a counterproposal to the amendment has been brought up by 
the chairman of the Finance Committee, Senator Baucus. His 
counteramendment says:

       It is the sense of the Senate that the Senate should reject 
     any procedural maneuver that would raise taxes on middle 
     class families, such as a motion to commit the pending 
     legislation to the Committee on Finance, which is designed to 
     kill legislation that provides tax cuts for American workers 
     and families, including the affordability tax credit and the 
     small business tax credit.

  A number of us are here today to talk about the fact that this sense 
of the Senate is designed to provide cover for those who do not want to 
vote to protect American taxpayers. It is a meaningless sense of the 
Senate. We are going to go through the sense of the Senate phrase by 
phrase.
  I would like to ask my colleague from the State of Wyoming if he 
would like to step in on the first phrase and comment. The first phrase 
says what the amendment is: ``It is the sense of the Senate . . .'' 
Would my friend from Wyoming like to comment on what that means?
  Mr. BARRASSO. I would be happy to. OK, so we agree, it is the sense 
of the Senate. It is meaningless in terms of actually having the force 
of law. The Senator talked about the issues of the spending and the 
taxes, so we came up with a sense of the Senate.
  This is why we are asking people all across the country to read the 
bill. The sense of the Senate essentially means nothing. It says we 
kind of agree on this, but there is no law applied.
  Mr. CRAPO. Exactly. It is very critical to point out, a sense of the 
Senate has no binding impact. It is just sort of what we think.
  Let's go to the next phrase in the amendment: ``that the Senate 
should reject any procedural maneuver that . . . '' in other words, the 
Senate should reject a procedural maneuver.
  First of all, if the Senate is going to reject a procedural maneuver, 
that refers to what is happening on the Senate floor, procedural 
efforts. It does not refer to any substantive measure in the bill. The 
amendment we had pending--which this is going to be a counterpart to--
specifically refers to the substance of the bill and says the substance 
of the bill should be changed to take out the taxes, the hundreds of 
billions of dollars of taxes.
  I wonder, before we go to the next phrase, does my colleague from 
Wyoming care to comment?
  Mr. BARRASSO. Well, I do care to comment. I care to comment that the 
important thing is to get the taxes out of the bill--not what a sense 
of the Senate is, not some procedural maneuver. It is the specifics of 
removing the taxes from the bill.
  When the President says, ``My plan won't raise your taxes one 
penny,'' which was his quote, we need to be able to make sure the 
President is telling us the truth, that we need to remove these taxes 
from the bill.
  The Joint Committee on Taxation looked at this bill--specifically 
looked at this bill--and it said that 38 percent of the people earning 
less than $200,000 a year will see a tax increase--a tax increase under 
the Reid bill.
  So we want to make sure the President's words go with what is in the 
bill. So we need to actually remove the taxes--not just have a sense of 
the Senate.
  Then, when we look at the chief of staff of the Joint Committee on 
Taxation, he was asked a question at the Finance Committee, and he 
said, when it all ``shakes out,'' we would expect people who are going 
to be paying taxes are going to have incomes ``less than'' the number 
the President said.
  So I want to get to the point of the Crapo amendment, the amendment 
that actually says: Get these taxes out of the bill. This is a bill 
that is going to raise taxes by $500 billion, and those are taxes that 
are going to impact all Americans.
  At a time when we have 10-percent unemployment, when the Senate is 
being asked to increase the debt level by another almost $2 trillion, 
the last thing we need to be spending our time on is a sense of the 
Senate. We need to actually get to those taxes that are going to affect 
the people, the hard-working people of America get those taxes out of 
the bill.
  So as we are looking at that Baucus amendment; it is very nice, but 
it reminds me of the Bennet amendment we had here last week, and I 
think everybody voted for it. The New York Times, in their editorial, 
said it was a meaningless amendment. I want an amendment with some 
teeth in it that I can vote for, and I am ready to vote right now.
  Mr. CRAPO. I thank my colleague from Wyoming.
  The next phrase in the amendment--referring to a procedural motion--
says that ``would raise taxes on middle class families.''
  There is nobody bringing a motion to raise taxes. My amendment says 
it is referring the bill to the Finance Committee to take out the taxes 
on those who earn less than $200,000 or $250,000.
  I note that my colleague from Kansas has arrived.
  Would the Senator care to jump in at this point?
  Mr. ROBERTS. I will tread with great care, I would say to my 
distinguished friend.
  I thank the Senator for this colloquy. But you asked what it means 
that ``the Senate should reject any procedural maneuver that''--that is 
in quotes--and what does that really mean?
  Well, it applies only to the Senate procedural motions. By itself it 
would have no effect on any substantive provision. That is the way it 
is commonly understood under Senate rules. It means, if adopted, the 
amendment would not remove any provision that has been identified as a 
tax increase on middle-class taxpayers, which is precisely what the 
Senator is trying to do. So basically it means nothing.
  Mr. CRAPO. I think that is exactly the point we are trying to point 
out.
  The next phrase in the amendment says, ``such as a motion to commit 
the pending legislation to the Committee on Finance.'' Remember, that 
is referring to the previous phrase that refers to a motion to increase 
taxes.
  The only thing we need to say about this phrase is, there is a motion 
to commit the bill to the Finance Committee, but there is not a motion 
to commit the bill to the Finance Committee to raise taxes. It is to 
cut taxes.
  The next phrase in the amendment is to suggest that there is an 
effort to try to kill the legislation.
  Now, this is my motion. I suppose the implication there is, by trying 
to take the taxes out of the bill, we are trying to kill the 
legislation. What does that mean? Well, that means if you take the 
taxes out of this bill, that the bill does not stand. I assume that is 
what the amendment is trying to say. The reason that it does not stand 
is because they are saying the bill does not increase the deficit. 
Well, the only way you can say that the bill does not increase the 
deficit is if you do not bring into consideration the nearly $500 
billion of cuts in Medicare, the nearly $500 billion of taxes which are 
being put on the people of this country, and the additional budget 
gimmicks that do not start counting the spending for 4 years, plus a 
number of other budget gimmicks.
  So what they are saying is, you cannot take out one of the key legs 
of this bill, which is the way we raise all the money for this massive 
new spending, or else it will kill the bill. I think it is a pretty 
interesting fact that they have actually admitted in their own 
amendment what kind of games are being played.
  Mr. ROBERTS. Will the Senator yield for a question?
  Mr. CRAPO. Yes.

[[Page 31481]]


  Mr. ROBERTS. That phrase that the Senator just mentioned is, ``which 
is designed to kill legislation.'' My question has already been 
answered by the distinguished Senator, what does it mean, but there are 
no motions that have been considered or pending, including the pending 
motion to commit by the distinguished Senator--is the motion designed 
to kill this legislation? Because that is what you are going to hear on 
the other side, and that is not the case.
  Mr. BARRASSO. Madam President, it seems to me that what the Senator 
is doing with the Crapo amendment is actually trying to help people, 
trying to help the American people by taking this burden of $500 
billion of taxes off of their backs, off of their shoulders, helping 
the American people. That is what I see he is trying to accomplish, at 
a time where with a gimmick they are going to start taxing immediately 
and when the taxes go into play--today is the 11th of December; in 20 
days they are going to start collecting taxes for services they are not 
going to give for 4 more years. So it seems to me what is going on here 
with the Crapo amendment is it is saving the American people by keeping 
dollars in their pockets, keeping dollars in the pockets of the hard-
working people of our country.
  I am not the only one who is saying that. There is a new CNN poll out 
today that specifically asks the question--because the President has 
made a statement about the fact that you wouldn't see your taxes go 
up--Do you think your taxes would or would not increase if Harry Reid's 
bill is passed, and 85 percent of the American people in a CNN poll out 
today said they believe their taxes are going to go up; 85 percent of 
the American people.
  Mr. CRAPO. I would say to my colleague from Wyoming that they are 
right, if this bill is not committed back to the Finance Committee to 
take those taxes out.
  The next phrase in the amendment is--this is referring to a 
procedural motion, we call it--``that provides tax cuts for American 
workers and families.''
  In other words, they don't want to send it back to committee to have 
a procedural motion put into place that would stop them from providing 
tax cuts for American families.
  Again, it is rhetoric. Read the motion. The motion does not say to 
take out any benefits in the bill for anybody in America, unless you 
consider taxing people to be a benefit to them, but it simply says the 
taxes in the bill that are imposed on people that the President 
identified to be in the middle class and would be protected must be 
removed from the bill.
  Mr. ROBERTS. Would the distinguished Senator yield for a question?
  Mr. CRAPO. Yes.
  Mr. ROBERTS. As Republicans, there is probably no principle that 
unifies us more than keeping taxes low on American workers and 
families, and I don't think our friends on the other side would dispute 
that notion. Indeed, the Democratic Party assumed control of the White 
House almost a year ago, as everybody knows, and seated large 
majorities here in the Congress. The one unmistakable distinction 
between the parties is this: Our party has respectfully opposed--I 
underline the word respectfully--opposed numerous efforts by the 
majority party to impose broad-based taxes increases on American 
workers and families. So one only need to look at the stimulus debate 
or the budget debate or the cap-and-trade legislation, and I could go 
on and on and on, more especially with the health care debate, and the 
bill before us.
  Don't you follow from that general principle?
  Mr. CRAPO. Absolutely. Again, I believe what is going on here with 
this new amendment is simply an effort to sort of divert attention from 
the real issue that is before the American people, the motion that was 
before the Senate, before we were forced by a procedural vote yesterday 
to move off the bill, and that is the question of the taxes in the 
bill.
  The final phrase refers to a couple of the provisions in the bill 
that do have some support for improving the tax circumstances for small 
businesses and the affordability tax credit, meaning the tax credit 
that will be utilized to implement the subsidies for insurance.
  Again, we can say it any number of times, but the fact is the motion 
they are trying to avoid does not deal with either of these provisions 
of the bill; it deals with those provisions in the bill that tax the 
American people.
  Mr. BARRASSO. I am fine with voting on this, but it doesn't mean 
anything. I think it is absolutely meaningless, the Baucus amendment. I 
want to get to the heart of the matter, the meat of the matter, which 
is the Crapo amendment. That is the one I think makes the difference 
for the American people. If I were a citizen sitting at home watching 
C-SPAN on a Friday afternoon saying, what is going on in the Senate, 
what do I want, what is going to help me, I would say I want to call my 
Senator and say: Vote for the Crapo motion because that is the one that 
is actually going to help keep money in my pocket. The sense of the 
Senate? Oh, that is nice, but it is meaningless.
  I am ready to vote right now for the Crapo motion because that is the 
one I think is going to help possibly save my job if I am at home and 
working. I am worried about unemployment in the country, I am worried 
about the taxes and the impact that is going to have. Because I worry 
if we don't get these taxes out of here, it is going to be a job killer 
for our Nation and for families all across this country, in Idaho, in 
Wyoming, in Kansas, in Kentucky. I think we have great concerns for the 
economy and the 10-percent unemployment. We need to get those taxes out 
of there now.
  Mr. CRAPO. The Senator is, in fact, right. If you go back and try to 
get a little perspective on the entire debate, most Americans would 
agree that we need health care reform, but when they say that, they are 
talking about the need to control the skyrocketing costs of their 
health insurance and the costs of medical care, and they are talking 
about making sure we have real, meaningful access to quality health 
care in America.
  In his statements, the President has many times commented about 
different parts of that. We remember when he said, If you like what you 
have, you can keep it. Well, we have seen that is not true, and there 
will be and have been already amendments to try to address those 
questions.
  Remember when he said it is going to drive down the cost of health 
care and drive down your health care premiums? Well, we have learned 
now that it doesn't do that either; it actually drives up the cost of 
health care insurance and it is going to drive up the cost of medical 
care in this country.
  Remember when he said you will not see your taxes go up? In fact, he 
pledged that if you were a member of the middle class, whom he defined 
as those making less than $250,000 as a couple or $200,000 as an 
individual, you would not see your taxes go up. Well, this motion is 
focused on that part of the debate. What did we see happen? Instead of 
letting us fix the bill, send the bill back to the Finance Committee to 
make the bill comply with the President's pledge, we saw two procedural 
maneuvers, one to maneuver off the bill, to get off the bill and move 
to the omnibus appropriations bill; secondly, to put up a bait-and-
switch amendment that makes it look as though there is some kind of 
protection being put in place when, in reality, it is nothing more than 
a sense of the Senate relating to procedural motions that don't exist. 
I agree with my colleague from Wyoming and with my colleague from 
Kansas.
  I see we have several of our other colleagues joining us here now. We 
need to keep the focus on health care and we need to keep the focus on 
those core parts of the bill that are critical to the American people.
  Before I ask my colleague from Kansas if he wishes to make any other 
comments, I will reiterate the point that my colleague from Wyoming 
made with regard to the American people's understanding of this issue. 
In that CNN poll that I believe showed over 60 percent--I think it was 
61 percent--of the people in this country who do not want this bill to 
move forward because they are now understanding what it

[[Page 31482]]

does, in that same poll, 85 percent of the people in this country 
believe that this pledge of the President is broken by this bill.
  Mr. ALEXANDER. I wonder if I might ask the Senator from Idaho and the 
Senator from Kansas, both the Senators are on the Finance Committee, I 
believe, and have been working on this health care bill for a long 
time. It is typical of a big, complex bill such as this that it is 
difficult to pass, and you get a sense every now and then of whether it 
is likely to pass or unlikely to pass. This week has been a 
particularly difficult week for the bill. I have noticed the majority 
leader trying to create a sense of inevitability about the bill.
  But, increasingly, it seems to me, with it becoming clear that with 
so much of it being paid for by new taxes, and then last night the 
chief actuary of the Centers for Medicare and Medicaid Services saying 
the cost is going up, premiums are going up; with the Mayo Clinic 
saying it is beginning to not take Medicare patients, and the idea of 
putting millions more Americans into a program already going broke 
which you are taking $1 trillion out of is a bad idea; I wonder if in 
all--and all this talk about history being made and the inevitability 
of this bill, that the Senator from Idaho might not think, looking back 
over this whole debate, that maybe there are a lot of different ways to 
make it--that maybe a growing number of Senators might be thinking--not 
saying yet--might be thinking that this bill would be an historic 
mistake and that all the king's horses and all the king's men are not 
going to be able to push this up over the top.
  Mr. CRAPO. The Senator from Tennessee is right, and he has put his 
finger on one of the key issues that is going on here in the Senate 
that sometimes isn't highlighted as closely as I think maybe it should 
be. That is, while we are talking about the need to make sure this bill 
does not raise taxes on the middle class, to make sure that the bill 
does not increase the cost of health insurance premiums, and to make 
sure that we maintain quality of health care and don't cut Medicaid and 
Medicare, the real battle here is an effort to create a legacy to 
essentially put the government in control of the health care economy. 
That is the debate. That is the legacy. That is the history that those 
who are pushing the bill are seeking to make, and they are seeking to 
make it at the expense of those on Medicare, of those of the taxpayers 
in America; and of the costs, the cost curve that they said they want 
to drive down, dealing with the cost of our health care.
  I see our leader is here.
  Mr. McCONNELL. I say to my friends from Tennessee and Idaho, December 
11, 2009 may be remembered as the seminal moment in the health care 
debate for those who are writing about what finally happened on this 
issue. There were two extraordinary messages delivered on this very day 
on this health care issue. They were delivered from CMS and from CNN. 
CNN told us how the American people felt about it: 61 percent, as the 
Senator from Idaho pointed out, telling us please don't pass this bill. 
A week ago, Quinnipiac said 14 percent more disapproved than approved; 
the week before Gallup said 9 percent more disapproved than approved. 
We can see what is happening here: widening public opposition.
  And then CMS, the actuary, the independent government employee who is 
an expert on this, says this bill, the Reid bill, doesn't do any of the 
things it is being promoted to accomplish. So two important messages on 
December 11 delivered from CNN and from CMS.
  Mr. ROBERTS. Would the Senator yield?
  Mr. CRAPO. Yes.
  Mr. ROBERTS. I wish to thank our distinguished leader for pointing 
that out. It has been a seminal event. As I said before, I have the 
privilege of being chairman of the Rural Health Care Caucus. There are 
probably 30 of us in a bipartisan caucus to try to protect and improve 
the rural health care delivery system. I took that report by Mr. 
Foster, who is the actuary of CMS, and said, this is required reading. 
I made the point that if you mention CMS to a beleaguered hospital 
administrator or a member of the board or any medical provider--doctor, 
nursing home, home health care, hospice; even hospice is cut in regard 
to the cuts--they know if a CMS representative is knocking on the door, 
that is a lot like sending a cold shiver down their spine thinking it 
is Lizzie Borden. Of all of the agencies that now are shining the light 
of truth into darkness in regard to the nature of this bill in 
increased costs, and yes, rationing--no, it is not a scare tactic--CMS 
is that agency. It would be amazing if we could get CMS to report back 
on, if we knew what it was--the media reports are how we get the 
information on this new iteration of a bill where allegedly we are 
going to add in people from 55 years old into the Medicare system. You 
do that, and now all of a sudden even the national organizations, let 
alone the State provider associations who have been opposed to this, to 
say, Whoa, we can't do that. That is going to break the system.
  What I wish to point out and what I think is another piece of 
information that has sort of been overlooked, the CBO has estimated the 
cost to the Internal Revenue Service to implement taxes and penalties 
and enforce them--I am talking about the IRS now, not CMS, but the IRS 
that is going to implement and administer and enforce taxes and 
penalties on the bill--that cost is $10 billion estimated by CBO. That 
would double the budget size of the IRS. We have to train these people, 
and then you have to figure out what kind of questions they are going 
to ask of employers and employees in regard to the fines and the fees, 
you have to read the fine print. The American people understand this 
tremendous tax increase is going to be administered by the IRS and that 
is not going to be a happy circumstance. But those two things that the 
leader has brought out are absolutely primary in this debate.
  I think a side-by-side is a straw man. I think it is very clear about 
that. I am happy to comment on that further. I wish to give others an 
opportunity to speak.
  Mr. ALEXANDER. If I can make a short comment, I thank the Senator 
from Idaho for his leadership on taxes. But Senator McConnell's comment 
about those two events on December 9--the poll from CNN and the report 
from the Centers for Medicare and Medicaid Services chief actuary--made 
me think about the immigration bill 2 years ago, in 2007. There were a 
lot of our best Senators working to pass comprehensive immigration 
bill, including Senators McCain, Kennedy, Kyl, Martinez, Members on 
both sides of the aisle, who worked very hard to do it. There seemed to 
be a sense of inevitability that that bill might pass. The President 
was even behind it.
  But then it began to have so many problems, and the red flags began 
to pop up just like they are popping up with this comprehensive health 
care bill. There came a time, perhaps much like December 10, when the 
sense of inevitability was replaced by a sense that we were making a 
historic mistake, and a bill that got on the floor with 64 votes only 
had 46 to get off.
  I have a feeling this bill, the more we learn about it, the wiser 
thing to do is to let it fall of its own weight. Then we can start 
over, step by step, to reearn the trust of the American people by 
reducing health care costs. We can do that. That is the sense I have.
  I appreciate the Republican leader's observation about those 
important events on the 9th.
  Mr. CRAPO. Mr. President, I agree with my colleagues. I think the 
comment of our leader is very insightful. As you start seeing the 
evidence mount, and the fact that the American public is understanding 
the weight of this mounting evidence about this legislation, we could 
be at the tipping point right now, where it has become so evident that 
the purpose behind health care reform has not only been missed by this 
legislation, but it has been made worse--the objectives.
  I point to this chart, the cost curve. When you talk to most 
Americans about what they believe the purpose behind health care reform 
is, the vast majority say it is to control the skyrocketing costs. 
Well, those who are

[[Page 31483]]

promoting the bill say it does that, it bends that cost curve. Which 
cost curve? Is it the size of government? That goes up $2.5 trillion in 
the first full 10 years of implementation. The cost of health care--the 
CMS report came out, it is about the 10th report, but this is from the 
actuary of the Medicare and Medicaid system who analyzed this 
independently, and he says health care costs are going to go up, not 
down.
  The CBO said the cost of insurance is going to go up, not down. The 
Federal deficit--they say the bill doesn't make the Federal deficit go 
up. In fact, regarding that, the only way they can claim that is if 
they implement their budget gimmicks of delaying implementation of the 
bill for 4 years on the spending side, while raising taxes now, or if 
they raise hundreds of billions in taxes and cut Medicare by hundreds 
of billions of dollars.
  These things are starting to be understood by the American people. 
That is why I believe we are starting to see those kinds of answers in 
the polls. It is not just the CNN poll, as the leader knows. Many polls 
are showing the American people get it.
  Mr. ROBERTS. Will the Senator yield for another question?
  Mr. CRAPO. Yes.
  Mr. ROBERTS. I would like to get back to the side-by-side amendment 
allegedly being offered by the chairman of the Finance Committee, the 
Senator from Montana. I said straw man, and that is pretty harsh, but I 
intend it to be. We have seen how, if the language is examined, the 
amendment, at a minimum, is a red herring. You can fairly say the 
amendment, rather, has no other purpose than to facilitate a strong 
argument.
  On Tuesday, when Senator Crapo laid down his amendment, the majority 
didn't show us this side-by-side amendment until shortly before we 
thought--and they thought--we were going to vote. So that very limited 
notice makes you think it may be more likely to distract from or muddy 
the clear question the Senator from Idaho brought; that is, the motion 
to commit before the Senate. The motion was designed to be to be 
straightforward, and the Senator did that.
  A vote for the motion is a vote to send the Reid amendment and 
underlying bill back to the Finance Committee. Under the motion, the 
Finance Committee would report back a bill that eliminates the tax 
increases on middle-income taxpayers. One could not say it anymore 
simply. That is what the motion does. The other bill is a straw man.
  After the remarks by the distinguished leader, I would say this may 
be a seminal event. I think that is one of the key votes where the 
other side could start to realize this and start to finalize this 
without all the rhetoric and ideology and philosophical support for 
this bill, and they could start the road back, if you will, of doing it 
in a step-by-step, thoughtful way--doing it, meaning real health care 
reform.
  I commend the Senator. Again, this side-by-side is a straw man. The 
Senator is clear in what he wants to do. Under the Senator's motion, 
the Finance Committee would report back a bill that eliminates the tax 
increases for middle-income taxpayers. We can restart the debate in a 
bipartisan way, where we can agree on many common goals. I thank the 
Senator.
  Mr. CRAPO. I thank my colleague. Mr. President, how much time 
remains?
  The PRESIDING OFFICER (Mr. Reed). Thirty minutes.
  Mr. CRAPO. I thank the Chair.
  The PRESIDING OFFICER. Under the previous order, the Republican 
leader is recognized.
  Mr. McCONNELL. Mr. President, this follows along further with my 
colleagues who were discussing the CMS report.
  Americans, of course, were told the purpose of reform was to lower 
costs, to bend the so-called cost curve down. But the report released 
last night by the administration's own independent scorekeeper, as we 
have been discussing on the floor of the Senate, shows the Reid bill 
gets a failing grade.
  The chief actuary is the person the administration depends on to give 
its straightforward, unbiased analysis of the impact the legislation 
would have. This is an independent expert. It is the official referee, 
if you will. So this is quite significant.
  According to CMS, the Reid bill increases national health spending. 
According to CMS, there are new fees for drugs, devices and insurance 
plans in the Reid bill and they will increase prices and health 
insurance premiums for consumers.
  According to CMS, claims about the Reid bill extending the solvency 
of Medicare are based on the shakiest of assumptions.
  According to CMS, the Reid bill creates a new long-term insurance 
program, commonly referred to around here as the CLASS Act, that CMS 
actuaries found faces a ``very serious risk of becoming 
unsustainable.''
  The CMS found that such programs face a significant risk of failure.
  The Reid bill pays for a $1 trillion government expansion into health 
care, with nearly $1 trillion in Medicare payment cuts.
  All of this, I continue to be quoting from the CMS report.
  The report further says the Reid bill is especially likely to result 
in providers being unwilling to treat Medicare and Medicaid patients, 
meaning a significant portion of the increased demands for Medicaid 
services would be difficult to meet.
  The CMS actuary noted the Medicare cuts in the bill could jeopardize 
Medicare beneficiaries' access to care.
  The CMS actuary also found that roughly 20 percent of all Part A 
providers--that is hospitals and nursing homes, for example--would 
become unprofitable within the next 10 years as a result of these cuts. 
As a result of those Medicare cuts, 20 percent of hospitals and nursing 
homes would become unprofitable within 10 years.
  The CMS actuary found that further reductions in Medicare growth 
rates through the actions of the independent Medicare advisory board, 
which advocates have pointed to as a central linchpin in reducing 
health care spending, ``may be difficult to achieve in practice.''
  The CMS further found the Reid bill would cut payments to Medicare 
Advantage plans by approximately $110 billion over 10 years, resulting 
in ``less generous benefit packages'' and decreasing enrollment in 
Medicare Advantage plans by about 33 percent. That is a 33-percent 
decrease in Medicare Advantage enrollment over 10 years.
  What should we conclude from this CMS report? The report confirms 
what we have known all along: The Reid plan will increase costs, raise 
premiums, and slash Medicare.
  That is not reform. The analysis speaks for itself. This day, this 
Friday, as we were discussing yesterday, is a seminal moment. We have 
heard from CMS, the Government's objective actuary, the bill fails to 
meet any of the objectives we all had in mind. We also heard from CNN 
about how the American people feel about this package: 61 percent are 
opposed; only 36 percent are in support.
  The American people are asking us not to pass this, and the Center 
for Medicaid Services' actuary is telling us it doesn't achieve the 
goals that were desired at the outset.
  How much more do we need to hear? How much more do we need to hear 
before we stop this bill and start over and go step by step to deal 
with the cost issue, which the American people thought we were going to 
address in this debate?
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. CASEY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CASEY. Mr. President, we are in our discussion of health care. We 
have been focused on a couple of major goals. The obvious goals that I 
think are a major part of the legislation we are debating are 
controlling costs, the goal of providing better quality of care,

[[Page 31484]]

providing health care to millions of Americans--tens of millions, 
really--who would have no chance to get that kind of coverage without 
this legislation, and also the concern we have about not only 
controlling costs, but we have legislation on the floor that actually 
reduces the deficit by $130 billion and beyond the 10 years by hundreds 
of billions.
  One of the concerns we have is that in the midst of a health care 
debate about numbers and the details of the programs is that we also do 
not forget that some parts of our health care system work well but 
often might need an adjustment or an amendment or a change that would 
benefit a vulnerable population of Americans who do not have the kind 
of coverage or protection or peace of mind they should have.
  One of the more successful parts of our health care system as it 
relates to new parents, especially new mothers and new children, is 
what is known by the broad category of nurse home visitation programs. 
They have been enormously successful over many years.
  I have an amendment I filed for this health care bill called the 
nurse home visitation Medicaid option amendment. It sounds a little 
complicated, but it is actually rather simple. It is part of what we 
need to do in the next couple of days and weeks as we complete our work 
on health care.
  One point to make initially is that we know these nurse home 
visitation programs work. They get results for new parents, new 
mothers, and have positive benefits to a new mother and her children.
  We all have had the experience, if we are parents, of the anxieties 
of what it is like to be a new parent but especially what a new mother 
goes through--all of the anxiety. It is not limited to one income 
group. No matter what income you are, no matter what background, it is 
a challenge to fully understand what it is like to have a baby and to 
care for that child appropriately. That is one of the underlying 
concerns we have.
  In our health care system, we have to do everything possible to give 
that child a healthy start in life, and the best way to give a child a 
healthy start is to make sure his or her mother--and hopefully both 
parents--is able to handle the pressures and manage the anxieties that 
so many new parents have.
  The amendment I filed supports optional nurse home visits. That means 
that if someone chooses not to take advantage of this program, 
obviously, they do not have to. The amendment simplifies the process 
for providers of nurse home visitation to seek Medicaid reimbursement. 
Some will say there is Medicaid reimbursement now. Yes, there is, but 
it gets complicated to a point where a lot of States are not getting 
the full benefit of that reimbursement. This amendment will impact the 
lives of Medicaid-eligible pregnant women and their children, and the 
impact is profound. The amendment is cosponsored by Senator Gillibrand 
of New York. It will allow States the option to seek more adequate 
reimbursement for nurse home visitation services. Again, a State is not 
forced to seek greater reimbursement, but I believe a lot of States 
could and should take advantage of this kind of an option.
  In Pennsylvania, we have been trying to do this for years, even in 
the midst of having very effective nurse home visitation programs. One 
can just imagine how valuable that is for a new mother, that they can 
get advice and help from a nurse or another kind of professional and 
get them through the early days and weeks of being a new parent.
  I believe a State such as Pennsylvania that has had a track record of 
these kinds of programs that have a direct and positive impact on 
children and their families, their mothers especially, should be able 
to take advantage of this, as I am sure many other States.
  The amendment helps States cut through the redtape and allow these 
evidence-based nurse home visitation services--let me say those words 
again: ``evidence-based.'' This is not some theory; this is not some 
maybe--let's try to create a program. These programs work. The evidence 
is, in a word, irrefutable over many years that these nurse home 
visitation programs work. We want to allow States to be reimbursed 
under a State Medicaid option.
  We have about 30 years of research to back up the following claims. 
Let me give four or five points.
  We start with a category for every 100,000 families who are served by 
nurse home visitation programs or nurse-family partnership programs--
all in that same category.
  For every 100,000 families, 14,000 fewer children will be 
hospitalized for injuries and 300 fewer infants will die in their first 
year of life. That alone, that number alone is worth making sure States 
have this option. What is the price of saving 300 infants a year out of 
100,000 families? It is incalculable. There is no value we could put on 
that kind of lifesaving as well as down the road saving money.
  Let me give a couple of other examples.
  For every 100,000 families served by these nurse home visitation-type 
programs, 11,000 fewer children will develop language delays by age 2. 
That is a profound impact on the child--his or her ability to achieve 
in school and then his or her ability to develop a high skill and 
therefore contribute positively to our economy. There is no price one 
can put on 11,000 new children learning more at a younger age.
  Out of 100,000 families, 23,000 fewer children will suffer child 
abuse and neglect in the first 15 years of life. Again, there is no way 
we can quantify that with a number or budget estimate. But I would like 
to say we support strategies around here that are evidenced-based and 
scientifically based to make sure children are not abused, that they 
live through the first couple years of their lives when they are at 
risk of dying.
  One more statistic. Out of the 100,000 families we use as a 
measurement, 22,000 fewer children will be arrested and enter the 
criminal justice system in the first 15 years of their lives. Just like 
the statistic about the first year of life and surviving the first year 
of life or not having in this case 23,000 more children suffer child 
abuse and neglect, these are impossible to measure. In a sense, it is 
the measure itself that we save children's lives, we make them 
healthier. They and their families are able to contribute more to 
society.
  This is the right thing to do to give our States the option--just the 
option--of seeking greater reimbursement for these important services. 
I have seen it firsthand.
  Many years ago--it must be at least 10 years ago--in Pennsylvania, I 
actually went to the home of a brand-new mother, a lower income mother 
in northeastern Pennsylvania. We walked in the door, with her 
permission, with the nurse who was working with her after she left the 
hospital with her new baby. There is no way to put into words how 
valuable that relationship was between a new mother and a nurse, 
between a new mother and a health care professional to give her the 
start in any circumstance but especially if a new mother has financial 
pressures which are extraordinary and almost unbearable for some new 
mothers or has pressures as it relates to her husband or boyfriend, 
whoever is part of her life. Sometimes there is violence. Sometimes 
there are other pressures that some of us cannot even begin to imagine, 
in addition to the obvious pressure of being a new mother, being a new 
parent, and wanting to do the right thing.
  These programs, as the evidence and science tell us, work to give new 
mothers peace of mind and to give States the ability to directly and 
positively impact the lives of that new mother and her child.
  So we should give States this option, and that is why I urge my 
colleagues to support the nurse home visitation Medicaid option 
amendment.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. KYL. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page 31485]]


  Mr. KYL. Mr. President, I ask unanimous consent that following my 
remarks Senator Brown of Ohio and then Senator LeMieux of Florida be 
recognized in that order.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, each day it seems there is a new analysis of 
the Democratic proposal on health care that suggests it is not such a 
great idea. Today, a devastating report was made public by the Obama 
administration itself--the Department of Health and Human Services--and 
their group that is in charge of Medicare and Medicaid. It goes by the 
initials CMS. Specifically, the Chief Actuary, Richard S. Foster, of 
the Centers for Medicare and Medicaid Services, issued a report about 
the effect of the Reid legislation on health care as it pertains to a 
whole variety of things--the cost of the legislation, the effect it is 
going to have on taxes, on premiums, on benefits, the cost with respect 
to Medicare and the kinds of things that will occur to beneficiaries in 
Medicare, and so on. It is a complete report by a person who I think 
all would agree is not only qualified to speak to these things but also 
quite objective, as the chief actuary of CMS. He reached a number of 
very interesting conclusions, and I want to briefly discuss eight of 
them.
  The first thing is that he noted his estimates were actually not a 
full 10-year estimate, and I will quote what he said here.

       Because of these transition effects and the fact that most 
     of the coverage provisions would be in effect for only 6 of 
     the 10 years of the budget period, the cost estimates shown 
     in this memorandum do not represent a full 10-year cost for 
     the proposed legislation.

  The reason that is important is we have been saying here for quite a 
long time that you can't just look at the first 10 years in order to 
see the full impact of this legislation because for the first 4 years 
most of the benefits don't exist. They are simply collecting taxes and 
fees and revenues, and then is when the benefits kick in, as a result 
of which, when they say it is all in balance, it is in balance because 
they are collecting money for 10 years but they only have to pay for 
benefits for 6 of those 10 years. So the real question is: What does it 
cost over the first full 10 years of implementation? And it turns out 
that is about $2.5 trillion.
  We have known this, and we have made the point. I think even the 
chairman of the Finance Committee has acknowledged the $2.5 trillion if 
you take the first 10 years of implementation. But I think it is good 
to actually have that confirmed now by the Chief Actuary of CMS.
  Secondly, a point I have been making all along is that when the 
President said repeatedly: If you like your insurance, you get to keep 
it, that is not true; and it is not true for a variety of reasons under 
the bill, and again this report confirms what we have been saying is in 
fact true; namely, that a number of workers who currently have 
employer-sponsored insurance would lose their coverage. In addition to 
that, seniors who are enrolled in private Medicare plans, which are 
known as the Medicare Advantage plans, would lose benefits, and many of 
them would no longer be covered.
  Let me read two quotations, first relative to employer-sponsored 
insurance; and, second, people who are on Medicare Advantage plans. I 
am quoting now.

       Some smaller employers would be inclined to terminate their 
     existing coverage, and companies with low average salaries 
     might find it to their and their employees' advantage to end 
     their plans. The per-worker penalties assessed on 
     nonparticipating employers are very low compared to 
     prevailing health insurance costs. As a result, the penalties 
     would not be a significant deterrent to dropping or forgoing 
     coverage.

  What does that mean? The employer under this bill has an obligation 
to provide insurance to his or her employees. If they don't do that, 
then they pay a penalty. The problem is that the penalty is much less 
than the cost of buying the insurance. So what we have been saying all 
along, and what the CMS actuary confirms here, is that in a lot of 
cases, small employers--and particularly companies with low average 
salaries--will find it to their advantage to drop the insurance 
coverage and have their folks go into the so-called exchange programs. 
The penalty these employers pay will be much less than what they are 
paying now to provide insurance.
  So these folks who are very happy with the insurance they have right 
now are not going to be very happy when they get something 
substantially less than that through the so-called exchange. They may 
like the coverage they have now, but, unfortunately, what the President 
promised, that they would get to keep it, is not true. And this is 
confirmed by what I read to you.
  What about folks on Medicare Advantage? These are senior citizens 
above 65 who are on Medicare, and what they have chosen to participate 
in is the private insurance coverage component of Medicare called 
Medicare Advantage. Here is the quotation.

       Lower benchmarks would reduce Medicare Advantage rebates to 
     plans and thereby result in less generous benefit packages. 
     We estimate that in 2015, when the competitive benchmarks 
     would be fully phased in, enrollment in Medicare Advantage 
     plans would decrease by about 33 percent.

  Everybody has acknowledged there would be a reduction, but there has 
been little debate about how much it would be. Our initial projections 
are borne out by the CMS actuary--a decrease in enrollment in Medicare 
Advantage by about 33 percent. That is a third. This is important to me 
because 337,000 Arizonans participate in Medicare Advantage--almost 40 
percent of all our seniors. And a third of them, if this works across 
the board, are going to lose their plan because of this. In any event, 
they are all going to lose benefits because of ``the result in less 
generous benefit packages.''
  This hasn't been much in dispute, because the Congressional Budget 
Office itself has described precisely how much the benefit packages 
will be reduced by, and it is 90-some dollars. It is from 130-some 
dollars in actuarial value down to 40-some dollars in actuarial value, 
which is a huge reduction, obviously. So reduction in benefits; a third 
of the people no longer on Medicare Advantage. The bottom line, whether 
you are privately insured through your employer or you are a senior 
citizen in Medicare Advantage, you are not going to be able to keep the 
benefits and the plan you like and have, notwithstanding the 
President's commitment to the contrary.
  Third, Medicare cuts. We have been talking a lot about Medicare cuts, 
and my colleagues on the other side say: Well, we don't think that the 
Medicare cuts are the way you describe them. Seniors are still going to 
have access to doctors and so on. This report is devastating in blowing 
a hole in that argument. Let me quote a couple of the things they say.

       Providers for whom Medicare constitutes a substantive 
     portion of their business could find it difficult to remain 
     profitable and, absent legislative intervention, might end 
     their participation in the program (possibly jeopardizing 
     access to care for beneficiaries).

  This is what we have been predicting. If you impose extra costs and 
mandates on the people who are providing the care--whether it be the 
hospitals, the physicians, home health care, or if you are taxing 
something such as medical devices--all of those impose costs on the 
people who are providing these medical benefits. What the CMS actuary 
is saying here is that the combination of those things would 
potentially jeopardize access to care for the beneficiaries. There 
aren't going to be as many of these people in business to provide care 
for an increasing number of people.
  Let me go on with the quotation that I think will make this clear:
       Simulations by the Office of the Actuary suggest that 
     roughly 20 percent of Part A providers [hospitals, nursing 
     homes, home health] would become unprofitable within the 10 
     year projection period as a result of the productivity 
     adjustments.

  In other words, 20 percent of the hospitals, home health care folks 
and others are not going to be profitable anymore. They are going to be 
out of business because of the burdens that are being placed upon them 
in this legislation. What happens when you have the baby boomers going 
into the Medicare Program? Under the latest idea from

[[Page 31486]]

the other side of the aisle, we are even going to have 30 million 
potentially being able to join Medicare--the folks from 55 up to 65--
but you are going to reduce by 20 percent the number of folks to take 
care of them--the hospitals and home health care and so on. Obviously, 
you have a big problem. Access will be jeopardized, as the actuary 
says.
  This is where rationing, in effect, comes in. There simply aren't 
enough doctors, hospitals, and others to care for the number of 
patients who want to see them. This is how it starts. First, long 
delays, long lines, long waiting periods before you can get your 
appointment, and eventually denial of care because there is simply 
nobody to take care of you.
  This is exacerbated by something else in the legislation, which is 
the fourth point here. The actuary talks about the independent Medicare 
advisory board. What is happening is that Medicare is being cut in 
three different ways: one, Medicare Advantage, which I mentioned; two, 
the providers are being slashed in the reimbursements that they are 
receiving; and three, this legislation creates an independent Medicare 
advisory board that is supposed to make recommendations on how to 
effect huge reductions in the cost of Medicare, and the primary way 
they will do that is by reducing the amount of money paid to doctors, 
to hospitals, to others who take care of patients. That, obviously, 
will also result in less care for the senior citizens.
  If the cuts are so drastic that Congress says no, we are not going to 
do them, then you don't have the savings the bill relies upon to pay 
for the new entitlement. So one of two things happens, and they are 
both disastrous: Either you have these huge cuts, which are devastating 
for access to care or the cuts are so unrealistic they do not go into 
effect, in which case the legislation can't be paid for. And then I 
guess you are going to have to raise taxes on the American people 
because you aren't able to effect the savings from Medicare.
  Here is what the actuary says:

       In general, limiting cost growth to a level below medical 
     price inflation alone would represent an exceedingly 
     difficult challenge.

  That is the challenge being put before them here--an exceedingly 
difficult challenge.

       Actual Medicare cost growth per beneficiary was below the 
     target level in only 4 of the last 25 years, with 3 of those 
     years immediately following the Balanced Budget Act of 1997; 
     the impact of the BBA prompted Congress to pass legislation 
     in 1999 and 2000 moderating many of the BBA provisions.

  What does that mean? In 1997, Congress passed the Balanced Budget 
Act, which drastically reduced the payments to these providers in order 
to cut the cost of Medicare. Three out of the four years in which the 
costs were reduced, it was immediately following that legislation. But 
starting in 1999 and into the year 2000, Congress realized those cuts 
were too deep; you were not going to get doctors and hospitals to 
continue to take care of patients if we continued to cut what they were 
paid for their services. So the cuts were ameliorated and, as a result, 
the savings were not achieved.
  What the actuary is saying here is if that same thing happens again, 
if these cuts are so drastic we actually don't let them go into effect 
because they would be self-defeating, then you will not have the 
savings that have been promised and scored here as enabling this 
legislation to be so-called ``budget neutral.'' It won't be budget 
neutral. So as I said, one of two things will happen, and both are bad. 
Either you have the cuts, which are devastating for seniors or you 
don't have them and they are devastating to taxpayers.
  Five is Medicare expansion. I think all of us agree on both sides of 
the aisle that Medicaid is a very vexing problem because the States 
have to pay for a percentage of the Medicaid patients and the States 
are generally in very poor financial shape and they do not need more 
people added to the Medicaid rolls that can't pay for them.
  My Governor was in town earlier this week, and she said: Please, 
please, don't add people to the Medicaid rolls and expect the States 
are going to be able to pay for them. Let me read a couple of the 
quotes from this actuarial report.

       Providers might tend to accept more patients who have 
     private insurance (with relatively attractive payment rates) 
     and fewer Medicare or Medicaid patients, exacerbating 
     existing access problems for the latter group.

  That latter group, of course, is the Medicaid group. The problem is 
that reimbursement is so low for Medicaid, frankly, they are the last 
patients a doctor sees, and their care is not the best. If we are going 
to provide care for a group of people, we need to do it right. 
Unfortunately, this is how rationing begins if you don't have enough 
money to do it right.
  Then let me conclude with this quotation.

       [This] possibly is especially likely in the case of the 
     substantially higher volume of Medicaid services, where 
     provider payment rates are well below average.

  And that is my point.

       Therefore, it is reasonable to expect that a significant 
     portion of the increased demand for Medicaid would be 
     difficult to meet, particularly over the first few years.

  What they are saying is that there aren't going to be the physicians 
and the other people to care for the Medicaid patients here and, as a 
result, the promise we have made to these people we are not going to be 
able to keep.
  Enrolling in Medicaid does not guarantee access to care by a long 
shot.
  No. 6. Again, this is something we have been saying. This is not 
really too controversial because the Congressional Budget Office has 
said the same thing that the Actuary here says. But it is always good 
to have a backup opinion. This is the tax on drugs, on devices, and on 
insurance plans. We have all been saying of course those costs are 
passed on to the consumer in the form of higher premiums or, in a 
couple of cases, higher taxes. That is what is demonstrated:

       Consumers will face even higher costs as a result of the 
     new taxes on the health care sector.

  I might just say before I read the quotation here, it doesn't make 
any sense to me why, in order to pay for this new entitlement, you 
would tax the very people you want to take care of. Tax the doctors, 
insurance companies, device manufacturers that make the diabetes pump 
or the stent for a heart patient or some other device that improves our 
health care these days? Let's tax them? I am saying maybe you want to 
tax liquor or tobacco or something, but why tax the things that make 
people healthier? Go figure. That is what the bill does.
  Here is what the Actuary says:

       We anticipate that such fees would generally be passed 
     through to the health consumers in the form of higher drug 
     and device prices and higher insurance premiums, with an 
     associated increase of approximately $11 billion per year in 
     overall national health expenditures, beginning in 2011.

  Remember how we were going to drive costs down with this bill? We 
weren't going to be paying as much? The Actuary says:

       We anticipate such fees would be generally passed through 
     to the consumers in the form of higher drug and device prices 
     and higher insurance premiums, with an associated increase of 
     $11 billion a year.

  This is going backward, not forward. The whole idea was to reduce 
costs and premiums. Instead, they are going up.
  No. 7. Here is another tax. We are going to tax the higher premium 
plans. In response--this is a 40-percent tax on these plans. What will 
employers do? According to the Actuary:

       . . . employers will reduce employees' health care 
     benefits.

  That makes sense. If you are going to tax an insurance plan that has 
a lot of good benefits in it, then the employer is going to say: Rather 
than paying that tax, I will reduce the benefits--precisely what CMS 
says. This is another case in which if you like what you have, sorry, 
you are not going to get to keep it. We are going to tax it. Then the 
employer is going to reduce the benefits.
  Here is the quotation from CMS:

       In reaction to the excise tax, many employers would reduce 
     the scope of their health benefits.

  This is exactly what we have been saying.
  Here are seven specific ways in which the CMS Actuary, working for 
the

[[Page 31487]]

Obama administration Department of Health and Human Services, has 
verified the complaints Republicans have been making about this 
legislation for weeks--that it will raise premiums, it will raise 
taxes, it will raise costs. It will raise the cost of health care. It 
will raise the cost to the government. It will provide fewer benefits. 
It will result in the transition of people from private insurance to 
the exchange which is created in here and will result in less access to 
care because there will be fewer providers to take care of more people. 
What a wonderful reform.
  This is why, when I talk about this legislation, I do not talk of 
health care reform. I am reminded of the line from a novel in which the 
individual says:

       Reform, sir? Don't talk of reform. Things are bad enough 
     already.

  Indeed, they are. We do have problems. One of those problems is 
premium costs going up.
  I note that my colleagues in the House of Representatives on the 
Republican side offered an amendment which, according to calculations 
of the Congressional Budget Office and according to the House 
Republicans, would have actually reduced premiums by $3,000 a year for 
the average family rather than increasing them. Republicans have good 
ideas about attacking the specific problems we face today. What we do 
not need is something under the guise of reform which is so massive, so 
intrusive into our lives and, with all due respect, not well thought 
out in terms of its long-range implications.
  What you end up with at the end of the day, according to CMS now, 
according to the Actuary of the U.S. Government Health and Human 
Services, CMS, it raises premiums, raises taxes, reduces access to 
care, increases the cost, and provides fewer benefits. I cannot imagine 
how we could go home at Christmastime and say to our constituents: This 
is what we are giving you for Christmas this year.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Ohio is recognized.
  Mr. BROWN. Mr. President, I rise to speak in opposition to a 
provision in the Patient Protection and Affordable Care Act that would 
impose a 40 percent excise tax on certain health insurance plans.
  It is my strong belief that a benefits tax is the wrong way to pay 
for health reform legislation.
  Beginning in 2013, this legislation would impose an excise tax of 40 
percent on insurance companies and plan administrations for any health 
insurance plan that is above the threshold of $8,500 for singles and 
$23,000 for family plans.
  The tax would apply to the amount of the premium in excess of the 
threshold.
  This tax would not only be imposed on basic health benefits, it would 
be imposed if the combined value of basic benefits, dental benefits, 
and vision benefits reaches the $8,500 limit.
  In other words, Americans would be better off without dental and 
vision coverage than with it.
  How could a disincentive to dental and vision coverage be a good 
idea? The answer is, ``it's not.''
  In subsequent years, increases in the benefit thresholds will be tied 
to the consumer price index plus one percent.
  What this means is that more and more workers and employers will be 
affected in subsequent years.
  In fact, the Congressional Budget Office, CBO, estimates that, by 
2016, this benefits tax would affect 19 percent of workers with 
employer-provided health coverage.
  CBO further projects that revenues resulting from the tax would 
increase by 10-15 percent every year in the second decade after the tax 
takes effect.
  And though this appears to be a tax on insurance companies, we should 
not be fooled.
  Insurance companies are likely to pass these costs onto their 
customers--forcing employees to pay higher premiums or encouraging 
employers to cut or limit coverage.
  Health reform legislation should not penalize middle-income Americans 
who have forgone salary and wage increases in return for more generous 
health benefits.
  I remember, as the Presiding Officer in his leadership in the Banking 
Committee remembers, during the auto discussions, when President Bush 
first moved to help the auto companies that were under such duress, 
many people on the other side of the aisle saw the legacy costs as 
something bad, the legacy costs the auto companies had. In fact, these 
legacy costs were benefits negotiated by unions. Those workers had been 
willing to give up present-day wages to have better health insurance 
and better pensions. This is the same kind of issue.
  And health reform legislation should not encourage the elimination of 
existing health benefits.
  Instead, health reform legislation should ensure that Americans who 
have negotiated good health benefits--including dental and vision 
coverage--are able to keep those benefits without punishment.
  I have heard many of my colleagues argue that this excise tax will 
``bend the cost curve'' of health care costs and expenditures.
  However, the Commonwealth Fund found that ``there is little empirical 
evidence that such a tax wcould have a substantial effect on health 
care spending.''
  And is makes no sense to bend the cost curve by compromising access 
to needed health services now--leading to higher health care costs 
later.
  You are squeezing on a balloon, not changing the long-term trajectory 
of health spending.
  To bend the cost curve, we need to identify and reward the provision 
of the right care, in the right settings, at the right time.
  We need to target duplication, promote best practices, and clamp down 
on those who overprice health insurance and health care products and 
services--exploiting their role in ensuring the health of the American 
people.
  We need to give Americans more purchasing power and inject more 
competition into the health care marketplace.
  We don't need to reverse the clock on health care progress by 
discouraging Americans from having good health coverage.
  There is so much that is critically important in health reform 
legislation--from delivery system reforms to prevention and wellness 
initiatives to provisions which strengthen Medicare to making insurance 
more affordable and accessible for all Americans--but this 
counterproductive tax on middle-income Americans is not a provision I 
can support.
  That is why I have cosponsored an amendment with Senator Sanders of 
Vermont that would eliminate this benefits tax and instead impose a 
surtax on the very wealthiest earners--those who benefitted so much 
from the Bush-era tax cuts.
  Our amendment, as modified, would replace the benefits tax on health 
insurance plans with a 5.4 percent surtax on adjusted gross income for 
individuals who earn more than $2.4 million a year and couples who earn 
more than $4.8 million per year.
  Instead of taxing middle class Americans for having good health 
coverage, our amendment would help address the disproportionate impact 
of the Bush tax cuts--which were outrageously tilted toward the 
wealthiest of the wealthy.
  Multimillionaires and billionaires fared far better than middle-class 
families under the Bush Administration. Let's not continue that 
tradition in this Congress.
  The PRESIDING OFFICER (Mr. Kirk). The Senator from Florida.
  Mr. LeMIEUX. Mr. President, it is always good to follow my colleague 
from Ohio. I rise to speak about the health care bill. I, specifically, 
wish to speak about this new report we have received from the Office of 
the Actuary from the Centers for Medicare & Medicaid Services. This 
report, unfortunately, confirms many of the problems we already knew. 
This report comes from an independent actuary who works in the very 
agencies that have to implement our Federal health care programs. This 
actuary has reviewed the proposal before us, the proposal that is 
intended to be health care reform. The review and report of this 
actuary shows significant problems with this proposal and why we must 
start over and take a step-by-step approach.

[[Page 31488]]

  I had the opportunity to read this report this afternoon in my 
office, word for word, and go through it line by line. I hope all my 
colleagues do on both sides of the aisle. There are many troubling 
things this report shines light upon. First, the proposal we are 
debating increases the cost of health care. For Americans who are at 
home and might be watching this to see various Senators on the floor of 
this great body, they think the reason we are here is to reduce the 
cost of health care and to promote more access. Those are the two big 
goals. That is what the President told us. We are going to lower the 
cost of health care. This report shows, national health care 
expenditures are going to go up from 16 percent of the gross domestic 
product to 20 percent.
  The chief actuary says, on page 4 of this report, we are going to 
spend $234 billion more on health care over the next 10 years. We are 
going to spend more on health care. We are not going to reduce costs. 
We are going to increase costs.
  Moreover, the Federal Government, in its provision of health care, is 
going to spend $366 billion more in health care provisions. We are told 
this proposal is budget neutral or it actually creates less of a 
deficit. It cuts the deficit of the Federal budget. But as has been 
revealed this week--and this is just gimmickry--the taxes start before 
the benefits. For 4 years, we pay the taxes and the benefits don't 
start until 2014. So 4 years of penalties without any benefits. This is 
similar to if you were to go buy a home and you went to buy the home 
and you said: We are going to live here for the next 10 years, and the 
real estate agent said to you: That is fine. You are just going to pay 
for the first 4 years, but you don't get to move in until 2014.
  For families sitting around the kitchen tables, that is not how they 
balance their budgets. But that is this strange world that Washington 
is, that you can set up this budget gimmickry in order to get it to so-
called budget neutrality. The actuary of CMS recognizes that. He says, 
on page 2, most of the coverage provisions would be in effect for only 
6 of the 10 years of the budget period.

       The cost estimates shown in this memorandum do not 
     represent a full 10-year cost of the proposed legislation.

  It is not budget neutral. It is just a gimmick.
  The second problem the actuary points to is, it jeopardizes access to 
care for seniors. My colleagues have been saying this for the past 
couple weeks. You can't take $\1/2\ trillion out of Medicare and have 
it not hurt the provision of health care for seniors. This plan is 
going to gut Medicare as we know it. It severely cuts funding for 
Medicare.
  In this report, it goes through all the cuts to Medicare Advantage, 
to home health, to hospice. The actuary goes through all these cuts. 
What does the actuary conclude is going to be the result? Our friends 
on the other side of the aisle say this is not going to cut Medicare; 
it is going to save Medicare. How do you take $\1/2\ trillion out and 
save Medicare? The actuary understands it. He knows that doctors who 
provide services under Medicare for seniors or for the poor under 
Medicaid aren't going to take these reimbursements anymore. They will 
not see people and provide health care. So it is not health care reform 
if the doctor will not see you.
  Right now, in this country 24 percent of doctors aren't taking 
Medicare; 40 percent are not taking Medicaid. The actuary says 
providers for whom Medicare constitutes a substantive portion of their 
business could find it difficult to remain profitable and might end 
their participation in the program, possibly jeopardizing access to 
care for beneficiaries.
  The second reason we are doing health care reform, access to care, is 
going to be hurt for seniors by this bill. That is on page 9, for those 
who are following at home. By the way, we are going to put this report 
on our Web site at lemieux.senate.gov. If you want to read it, you can 
read all the details.
  The next thing the actuary discovers as a problem with this bill is 
that for the 170 to 180 million Americans who have health insurance, 
your premiums are going to go up, not down. We are not going to bend 
the cost curve down. Health care will be more expensive, more expensive 
than if we were to do nothing and not implement this bill at all.
  The chief actuary says premiums for the government-run plan, for 
example, would be 4 percent higher than for private insurers. So we 
don't achieve that goal. What is going to happen when we put all this 
burden on businesses? Because we know that under this program we are 
going to penalize businesses if they don't provide health insurance. We 
are going to penalize individuals if they don't provide health 
insurance. So what are small businesses going to do who are hardly 
making it now? In Florida, we have 11 percent unemployment. Our small 
businesses are suffering.
  The actuary says on page 7, some small employers would be inclined to 
terminate their existing coverage. So they will drop their health 
insurance. You are an employee in a small business, they drop your 
health insurance. Now you must go buy the Federal program, where you 
will be subsidized. What does that mean? It means every man and woman 
will be paying taxes to help pay for health care insurance, taxes we 
can't afford, spending we can't afford, not in a world where we have a 
$12 trillion budget deficit. We are just pushing the cost off on our 
children and grandchildren. That is when this deficit is going to come 
home to roost.
  The actuary also says the excise tax on high cost employer-sponsored 
health insurance is going to cause employers to scale back coverage. So 
if you have one of the better health care plans, the Cadillac plans, 
your employer will not be incentivized to give you less coverage, less 
benefits, less access. Is that what we thought reform was supposed to 
be?
  Now we also know from the actuary we are going to raise taxes in this 
bill. As my friend, the Senator from Arizona, was saying, we are going 
to tax device makers. We are going to tax pharmaceutical companies, the 
implements and devices and medicines that save our lives. We know there 
is $64 billion in penalties in this bill. The actuary says, on page 5, 
if you are a small business or you are an individual and you don't 
provide the insurance, you are going to be taxed, penalized, $64 
billion in penalties.
  The actuary says:

       We anticipate that such fees would generally be passed to 
     health consumers--

  These are the taxes on the devices and the drugs--

     in the form of higher prices and higher insurance premiums.

  I also wish to address one point before concluding. My friends on the 
other side have been saying there are not going to be any cuts to 
benefits because we will run a more efficient system. There is going to 
be less fraud and abuse and waste.
  We all want that. That makes a lot of sense. But the actuary, in 
evaluating this--and he talks about it on page 12--finds that the cuts 
and the reductions are negligible. In fact, he can't even sufficiently 
provide evidence to know what the estimates of savings might be; at 
best, $2.3 billion for all the efficiency and savings. Remember, this 
is a $2.5 trillion program. There is $2.3 billion in savings, like 1 
percent. So it is not the efficiency that is going to make up the cuts; 
it is going to be a cut in benefits to seniors. It will be higher 
insurance premiums for Americans. That is not health care reform.
  It is why the Wall Street Journal called this bill the worst bill 
ever. In talking about this new proposal to expand Medicare and drop 
the age for Medicare, this morning the Wall Street Journal corrected 
itself and said that is even worse than the worst bill ever.
  Similar to the Presiding Officer, I am new to this Chamber. I have 
been here about 90 days. It is a great honor to serve in the Senate, 
representing 18 million people from Florida, but it is also a little 
bit frustrating. The way the Senate works is not the real world. It is 
not like moms and dads who sit around the kitchen table and try to 
figure out how to make ends meet and they can only spend as much money 
as they take in. That is not how we work

[[Page 31489]]

in this institution. We don't work in a reasonable way.
  My colleague from Utah will speak in a minute. He was on the floor 
the other night talking eloquently about how, when you do real reform, 
you get 80 Senators to vote on a proposal. If this bill passes, 60 
Democrats will vote for it, 40 Republicans will not. If just one 
Democrat would feel their conscience and not vote for this bill, we 
could start over. We could work together in a bipartisan way and help 
those 45 million Americans who don't have health insurance. But we 
wouldn't do it by robbing from Medicare. We wouldn't do it by raising 
taxes. We wouldn't do it by creating a $2.5 trillion new program.
  I have struggled to try to figure out a way to explain to the people 
how bad this bill is. I know it is hard. You are sitting at home, 
around the kitchen table, trying to understand what Washington is up 
to. It is hard to understand. I have thought about cultural references 
and historical references, maybe even things in pop culture that I 
could use as an analogy to try to explain what is going on in the 
Senate. The only thing I can think of is the ``Wizard of Oz.'' In the 
``Wizard of Oz,'' Dorothy gets thrown into the tornado in sort of an 
alternate reality, a place that doesn't play by the same rules. That is 
sort of the Congress. Dorothy and the lion and the tin man and the 
scarecrow are told: Follow the yellow brick road, you will get there. 
All your answers will be solved. Everything will be great.
  That is sort of like this phrase we hear around here: Make history, 
make history, just get it done. Pay no attention to the cuts in 
Medicare. Pay no attention to the Medicaid you will put on the States 
that can't afford it. Pay no attention to the higher taxes and the 
higher premiums people will have to suffer under. Similar to the 
scarecrow, who doesn't have a brain, it is not very thoughtful to put 
more expenses and more taxes on the States with Medicaid when they 
can't afford it. Similar to the tin man, who doesn't have a heart, it 
is not very thoughtful to take money out of health care for seniors. 
Similar to the lion, who has no courage, we don't have the courage to 
do what is right and work together in a bipartisan way. When you get to 
the end of the yellow brick road and you get to Oz, you find out there 
is nothing behind the curtain.
  This isn't health care reform. We need to start over, and we need to 
get it right.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I appreciate the remarks of my 
distinguished colleague from Florida. People need to listen to him. I 
am grateful to have him in the Senate, a fine man he is and a good 
example to all of us. I appreciate his remarks.
  I rise to explain why I believe the Reid health care bill is not only 
bad policy for this country but also undermines the Constitution and 
the liberty it makes possible. I urge my colleagues to resist two 
errors that can distort our judgment and lead us down the wrong path. 
Those errors are assuming that the Constitution allows whatever we want 
to do and ignoring this question altogether.
  We have only the powers the Constitution grants us because liberty 
requires limits on government power and we have our own responsibility 
to make sure we stay within those limits.
  James Madison said that if men were angels, no government would be 
necessary, and if angels were to govern men, no limits on government 
would be necessary. Because neither men nor the governments they create 
are angelic, government and limits on government are both necessary to 
protect liberty--not just government but limits on government as well. 
Those limits come primarily from a written Constitution which delegates 
enumerated powers to the Federal Government.
  Here is how the Supreme Court put it just a few years ago. This is in 
United States v. Morrison in 2000, quoting Marbury v. Madison--one of 
the most important decisions ever by the Supreme Court, probably the 
single most important decision--back in 1803:

       Every law enacted by Congress must be based on one or more 
     of its powers enumerated in the Constitution. ``The powers of 
     the legislature are defined and limited; and that those 
     limits may not be mistaken or forgotten, the constitution is 
     written.''

  The important word there happens to be ``limits.''
  No one likes limits, least of all politicians with grand plans and 
aggressive agendas. It is tempting to ignore or forget the limits the 
Constitution imposes on us by pretending the Constitution means 
whatever we want it to mean. But we take an oath to support and defend 
the Constitution, not to make the Constitution support and defend us. 
The Constitution cannot limit government if government controls the 
Constitution.
  In April 1992, during a debate on welfare reform legislation, the 
senior Senator from New York, Mr. Moynihan, with whom I served, made a 
point of order that an amendment offered by a Republican Senator was 
unconstitutional. Here is what Senator Moynihan said:

       We do not take an oath to balance the budget, and we do not 
     take an oath to bring about universal peace, but we do take 
     an oath to protect and defend the Constitution of the United 
     States.

  Applying that sage advice today, we do not take an oath to reform the 
health care system or to bring about universal insurance coverage, but 
we do take an oath to protect and defend the Constitution of the United 
States.
  For the past 8 years, my friends on the other side of the aisle 
insisted that the Constitution sets definite and objective limits that 
the President must obey. The Constitution, they said, does not mean 
whatever the President wants it to mean. Compelling circumstances or 
even national crises, they said, cannot change the fact that the 
Constitution controls the President, not the other way around.
  It is easy to insist that the Constitution controls another branch of 
government, that the Constitution does not mean whatever another branch 
of government wants it to mean. The real test of our commitment to 
liberty, however, is our willingness to point that same finger at 
ourselves.
  I ask my colleagues, is the Constitution rock solid, unchanging, and 
supreme for the executive branch but malleable, shape-shifting, and in 
the eye of the beholder for the legislative branch?
  A principle applied only to others is just politics, and politics 
alone cannot protect liberty. We must be willing to say that there are 
lines we may not cross, means we may not use, and steps we may not 
take.
  The Constitution empowers Congress to do many things for the American 
people. Just as important, however, is that the Constitution also sets 
limits on our power. We cannot take the power without the limits.
  I want to address several constitutional issues raised by this 
legislation.
  The first is the requirement in section 1501 that individuals obtain 
not simply health insurance but a certain level of insurance. Failure 
to meet this requirement results in a financial penalty which is to be 
assessed and collected through the Internal Revenue Code.
  We hear a lot about how Senators on this side of the aisle are 
supposedly defending the big, evil insurance companies, while those on 
the other side of the aisle are defenders of American families. This 
insurance mandate exposes such partisan hypocrisy.
  Let me just ask you one simple question. Who would benefit the most 
from the unprecedented mandate to purchase insurance or face a penalty 
enforced by our friends at the Internal Revenue Service? The answer is 
simple. There are two clear winners under this Draconian policy and 
neither is the American family. The first winner is the Federal 
Government, which could easily use this authority to increase the 
penalty or impose similar ones to create new streams of revenue to fund 
more out-of-control spending. Second, the insurance companies are the 
most direct winners under this insurance mandate because it would force 
millions of Americans who would not otherwise do so to become their 
customers. I cannot think of a bigger

[[Page 31490]]

 windfall for corporations than the Federal Government ordering 
Americans to buy their products.
  Right now, States are responsible for determining the policies that 
best meet the particular demographic needs and challenges of their own 
residents. That is the States. Massachusetts, for example, has decided 
to implement a health insurance mandate, while Utah has decided not to 
do so. This bill would eliminate this State flexibility so that the 
Federal Government may impose yet another one-size-fits-all mandate on 
all 50 States and on every American. I cannot think of anything more at 
odds with the system of federalism that America's Founders established, 
a system designed to limit government and protect liberty.
  I can understand why this mandate is so attractive to those who 
believe in an all-powerful Federal Government. After all, raising the 
percentage of those with health insurance is easy by simply ordering 
those without insurance to buy it. But while government may choose the 
ends, the Constitution determines the permissible means. That is why 
one of the basic principles is that Congress must identify at least one 
of our powers enumerated in the Constitution as the basis for any 
legislation we ultimately pass.
  The health insurance mandate is separate from the penalty used to 
enforce it. The only enumerated power that can conceivably justify the 
mandate is the power to regulate interstate commerce. For more than a 
century, the Supreme Court treated this as meaning what it says. 
Congress cannot use its power to regulate commerce in order to regulate 
something that is not commerce. Congress cannot use its power to 
regulate interstate commerce in order to regulate intrastate commerce.
  In classic judicial understatement, the Supreme Court has said that 
``our understanding of the reach of the commerce clause . . . has 
evolved over time.'' Indeed, it has. Since the 1930s, the Supreme Court 
has expanded the power to regulate interstate commerce to include 
regulating activities that substantially affect interstate commerce. 
That is obviously far beyond, by orders of magnitude, what the commerce 
power was intended to mean, but that is where things stand today, and 
some say it justifies this health insurance mandate in this bill.
  Using the Constitution or even the Supreme Court's revision of the 
Constitution as a guide requires more than a good intention fueled by 
an active imagination. The Supreme Court has certainly expanded the 
category of activities--get that word ``activities''--that Congress may 
regulate. But every one of its cases has involved Congress seeking to 
regulate just that: activities in which people have chosen to engage. 
Even the Supreme Court has never abandoned that category altogether and 
allowed Congress instead to require that individuals engage in 
activities, in this case by purchasing a particular good or service. 
The Court has never done that.
  Let me mention just three of the Supreme Court's commerce clause 
cases. In its very first case, Gibbons v. Ogden in 1824, Thomas Gibbons 
had received a Federal license to operate a steamboat between New 
Jersey and New York and wanted to compete with Aaron Ogden, who had 
been granted a steamboat monopoly by New York State. In Wickard v. 
Filburn, Roscoe Filburn used the winter wheat he planted on his Ohio 
farm to feed his livestock and make bread for his own dinner table. In 
the winter of 1942, he grew more wheat than allowed under the 
Agricultural Adjustment Act and challenged the resulting fine. And in 
Hodel v. Surface Mining & Reclamation Association, companies challenged 
a Federal statute regulating surface coal mining.
  These cases have two things in common. The Supreme Court upheld 
Federal authority in each case, but each case involved an activity--
remember the word ``activity''--in which individuals chose to engage. 
There would have been no Gibbons v. Ogden if Thomas Gibbons had not 
chosen to operate a steamboat. Congress could regulate his activity but 
could not have required that he engage in it. There would have been no 
Wickard v. Filburn if Roscoe Filburn had not chosen to grow wheat. 
Congress could regulate his activity but not have required that he 
engage in it. And there would have been no Hodel case if companies had 
not chosen to mine coal. Congress could regulate their activity but 
could not have required that they engage in it.
  The key word in the commerce clause is the word ``regulate,'' and the 
key word in every Supreme Court case about the commerce clause is the 
word ``activity.'' Regulating an activity in which individuals chose to 
engage is one thing; requiring that they engage in that activity is 
another.
  The Congressional Budget Office examined the 1994 health care reform 
legislation which also included a mandate to purchase health insurance. 
Here is the CBO's, the Congressional Budget Office's, conclusion. This 
is August 1994, the Congressional Budget Office:

       A mandate requiring all individuals to purchase health 
     insurance would be an unprecedented form of federal action. 
     The government has never required people to buy a particular 
     good or service. . . .Federal mandates typically apply to 
     people as parties to economic transactions, rather than 
     members of society.

  That is pretty important language. In other words, Congress can 
regulate commercial activities in which people choose to engage but 
cannot require that they engage in those commercial activities.
  Just a few months ago, as Congress once again is considering a health 
insurance mandate, the Congressional Research Service examined the same 
issue. Here is what the Congressional Research Service concluded. This 
was in July 2009. The CRS concluded:

       Whether such a requirement [to have health insurance] would 
     be constitutional under the Commerce Clause is perhaps the 
     most challenging question posed by such a proposal, as it is 
     a novel issue whether Congress may use this clause to require 
     an individual to purchase a good or service.

  Can Congress use this clause to require an individual to purchase a 
good or service?
  One thing did change in the legal landscape between 1994, when CBO 
called the health insurance mandate ``unprecedented,'' and 2009, when 
CRS called it ``novel.'' The Supreme Court twice found that there are 
limits to what Congress may do in the name of regulating interstate 
commerce.
  In United States v. Lopez, the Court rejected a version of the 
commerce power that would make it hard ``to posit any activity by an 
individual that Congress is without power to regulate.''
  If there is no difference between regulating and requiring what 
people do, if there is no difference between incentives and mandates, 
if Congress may require that individuals purchase a particular good or 
service, why did we even bother with the Cash for Clunkers Program? Why 
did we bother with TARP or other bailouts? We could simply require that 
Americans buy certain cars or appliances, invest in certain companies, 
or deposit their paychecks in certain banks. For that matter, we could 
attack the obesity problem by requiring Americans to buy fruits and 
vegetables and to eat only those.
  Some say that because State governments may require drivers to buy 
car insurance, the Federal Government may require that everyone 
purchase health insurance. That is too simplistic, that argument. 
Simply stating that point should be enough to refute it. States may do 
many things that the Federal Government may not, and if you do not 
drive a car, you do not have to buy car insurance. This legislation 
would require individuals to have health insurance simply because they 
exist, even if they never see a doctor for the rest of their lives.
  The defenders of this health insurance mandate must know that they 
are on shaky constitutional ground. The bill before us now includes 
findings which attempt to connect the mandate to the Constitution. I 
assume they are the best arguments that this unprecedented and novel 
mandate is constitutional.
  Those findings fail in at least four ways.
  First, the findings say that the requirement to purchase health 
insurance will add millions of new consumers to the health insurance 
market. I cannot dispute the observation

[[Page 31491]]

that requiring more people to purchase health insurance will result in 
more people having health insurance. I think that seems quite self-
evident. But the question is not the effect of the mandate but the 
authority for the mandate. Liberty requires that the ends cannot 
justify the means. The findings also fail to establish that the 
insurance mandate is constitutional by failing to offer a single 
example--a single precedent, a single case--in which Congress has 
required individuals to purchase a particular good or service or the 
courts have upheld such a requirement. The cases I described are 
typical, and similar examples are legion. Every one involves--every one 
of those cases I have cited--the regulation of activity in which 
individuals choose to engage. Requiring that the individual engage in 
such activity is a difference not in degree but in kind.
  The findings also fail to answer the question by observing that 
States such as Massachusetts have required that individuals purchase 
health insurance. As I noted regarding the example of car insurance, 
our Federal and State system allows States to do many things that the 
Federal Government may not. That is one of those limits on the Federal 
Government that is necessary to protect liberty.
  The findings fail to answer the question by mistakenly focusing on 
whether Congress may regulate the sale of insurance. That misses the 
point in two respects. Simply because Congress may regulate the sale of 
health insurance does not mean that the Congress may require it. Simply 
because Congress may regulate the sale of health insurance does not 
mean that Congress may regulate the purchase of health insurance. This 
legislation requires you to believe that nonactivity is the same as 
activity; that choosing not to do something is the same as choosing to 
do it; that regulating what individuals do is the same as requiring 
them to do it. That notion makes no common sense, and it certainly 
makes no constitutional sense. If Congress can require individuals to 
spend their own money on a particular good or service simply because 
Congress thinks it is important, then the Constitution means whatever 
Congress says it means and there are and will be no limits to the 
Federal Government's power over each and every one of our lives.
  That version of Federal power will be exactly what the Supreme Court 
in Lopez prohibited; namely, that there would be no activity by 
individuals that the Federal Government may not control. Neither the 
power to regulate interstate granted by the Constitution nor the power 
to regulate activities that substantially affect interstate commerce 
granted by the Supreme Court go that far. They don't go that far.
  The American people agree. A national poll conducted last month found 
that 75 percent of Americans believe that requiring them to purchase 
health insurance is unconstitutional because Congress's power to 
regulate commerce does not include telling Americans what they must 
buy. By a margin of more than 7 to 1, Americans believe that elected 
officials should be more concerned with upholding the Constitution 
regardless of what might be popular than enacting legislation even if 
it is not constitutional.
  Some defenders of this legislation such as the House majority leader 
have said that Congress may require individuals to purchase health 
insurance because it can pass legislation to promote the general 
welfare. The only thing necessary to dismiss this argument is to read 
the Constitution. Read the Constitution. That dismisses this argument. 
Just read it. Read the Constitution. Article I refers to general 
welfare as a purpose, not as a power. It is a purpose that limits 
rather than expands Congress's power to tax and to spend. The 
requirement that individuals purchase health insurance is not an 
exercise of either the power to tax or the power to spend, and so even 
the purpose of general welfare is not connected to it at all. Needless 
to say, it makes no sense to include in a written Constitution designed 
to limit Federal Government power an open-ended, catchall provision 
empowering Congress to do anything it thinks serves the general 
welfare.
  If America's Founders wanted to create a Federal Government with that 
much power, they could have written a much shorter Constitution, one 
that simply told Congress to go for it and legislate well. That is what 
they could have done. They didn't do that, thank goodness.
  The Heritage Foundation has just published an important paper arguing 
that this health insurance mandate is both unprecedented and 
unconstitutional. It is authored by Professor Randy Barnett, the 
Cormack Waterhouse Professor of Legal Theory at the George Washington 
Law Center; Nathaniel Stewart, an attorney with the prestigious law 
firm of White & Case, and Todd Gaziano, Director of the Center for 
Judicial and Legal Studies at the Heritage Foundation.
  I ask unanimous consent to have the conclusion portion of the Legal 
Memorandum published by the Heritage Foundation printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               Conclusion

       In theory, the proposed mandate for individuals to purchase 
     health insurance could be severed from the rest of the 2,000-
     plus-page ``reform'' bill. The legislation's key sponsors, 
     however, have made it clear that the mandate is an integral, 
     indeed ``essential,'' part of the bill. After all, the 
     revenues paid by conscripted citizens to the insurance 
     companies are needed to compensate for the increased costs 
     imposed upon these companies and the health care industry by 
     the myriad regulations of this bill.
       The very reason why an unpopular health insurance mandate 
     has been included in these bills shows why, if it is held 
     unconstitutional, the remainder of the scheme will prove 
     politically and economically disastrous. Members need only 
     recall how the Supreme Court's decision in Buckley v. Valeo--
     which invalidated caps on campaign spending as 
     unconstitutional, while leaving the rest of the scheme 
     intact--has created 30 plus years of incoherent and 
     pernicious regulations of campaign financing and the need for 
     repeated ``reforms.'' Only this time, the public is aligned 
     against a scheme that will require repeated unpopular votes, 
     especially to raise taxes to compensate for the absence of 
     the health insurance mandate.
       These political considerations are beyond the scope of this 
     paper, and the expertise of its authors. But Senators and 
     Representatives need to know that, despite what they have 
     been told, the health insurance mandate is highly vulnerable 
     to challenge because it is, in truth, unconstitutional. And 
     political considerations aside, each legislator owes a duty 
     to uphold the Constitution.

  Mr. HATCH. I also wish to share with my colleagues a letter I 
received from Dr. Michael Adams and attorney Carroll Robinson. They are 
on the faculty of the Barbara Jordan Mickey Leeland School of Public 
Affairs at Texas Southern University. Mr. Robinson, a former member of 
the Houston City Council, was named by the Democratic Leadership 
Council in 2000 to its list of ``100 to Watch.''
  I ask unanimous consent their entire letter, which is dated October 
25, 2009, be printed in the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. HATCH. Let me share just an excerpt from these two people. This 
is an excerpt from Michael Adams, Ph.D., and Carroll G. Robinson, 
Esquire, from the Barbara Jordan and Mickey Leland School of Public 
Affairs, Texas Southern University:

       Our reading of the Constitution and Supreme Court precedent 
     could not identify any reasonable basis, expressed or 
     implied, for granting Congress the broad, sweeping and 
     unprecedented power that is represented by the individual 
     mandate requirement. In fact, we could not find any court 
     decision, state or federal, that said or implied that the 
     Constitution gave Congress the power to mandate citizens buy 
     a particular good or service or be subject to a financial 
     penalty levied by the government for not doing so.

  That is pretty impressive stuff.
  It is certainly possible to achieve the goal of greater health 
insurance coverage by constitutional means, not unconstitutional means. 
I am quite certain, however, that those means are politically 
impossible.
  Liberty requires that the Constitution trump politics, but in the 
legislation before us, politics trumps the Constitution.
  Another provision in this legislation that is inconsistent with the 
Constitution is section 9001, which imposes an

[[Page 31492]]

excise tax on high-cost employer-sponsored insurance plans differently 
in some States than in others. The legislation imposes a tax equal to 
40 percent of benefits above a prescribed limit but raises that limit 
in 17 States to be determined by the Secretaries of the Treasury and 
Health and Human Services.
  My colleague from Ohio, Senator Brown, spoke against this provision 
on policy grounds earlier.
  The Constitution allows Congress to impose excise taxes but requires 
that they be ``uniform throughout the United States.'' This is one of 
those provisions that will be dismissed with pejorative labels such as 
archaic by those who find it annoying. But it is right there in the 
same Constitution that we have all sworn to uphold. We have all sworn 
that same oath to protect and defend, and we are just as bound today to 
obey it.
  Frankly, a good test of our commitment to the Constitution is when we 
must obey a provision that limits what we want to do.
  The Supreme Court has had relatively few opportunities to interpret 
and apply the uniformity clause, but its cases do provide some basic 
principles which I think easily apply to the legislation before us 
today. The Court has held, for example, that a Federal excise tax must 
be applied ``with the same force and effect in every place where the 
subject of it is found.''
  The Congress has wide latitude in determining what to tax and may 
tailor a regional solution to a geographically isolated problem, but 
laws drawn explicitly in terms of State lines will receive heightened 
scrutiny. By the plain terms of the legislation before us, insurance 
plans providing a certain level of benefits in one State will be taxed 
while the very same plans providing the very same benefits in another 
will not be taxed. We do not yet know what States will be treated 
differently, but we do know, according to this bill, that 17 of them 
will. That actually makes the constitutional point more clearly by 
identifying the State-based discrimination more starkly. Congress may 
decide to tax insurance plans with benefits that exceed a particular 
limit, but the tax must have the same force and effect wherever that 
subject of the tax is found. That is the clear meaning of the 
constitutional provision and the clear holding of the Supreme Court's 
precedents. Taxing the same insurance plans differently in one State 
than in another is the opposite of taxing them uniformly throughout the 
United States.
  I commend to my colleagues the work of Professor Thomas Colby of the 
George Washington University Law School, whose comprehensive work on 
the uniformity clause was published in volume 91 of the Virginia Law 
Review.
  I asked the Congressional Research Service to look at this uniformity 
clause issue. Its report confirmed that this differential tax on high-
cost insurance plans is drawn explicitly along State lines and that a 
court will more closely scrutinize the reasons for the State-based 
distinction. It also concluded that Congress has not articulated any 
justification for singling out certain States for different treatment. 
I have raised this issue over and over throughout the process of 
developing and considering this legislation. I serve on both of the 
Senate committees that are involved in this process. In fact, I can say 
I have served on three: not only the HELP Committee--the Health, 
Education, Labor and Pensions Committee--but also the Finance 
Committee, as well as the Judiciary Committee that, for some reason, 
has some great interest in the Constitution. I have never heard any 
justification for singling out certain States for different tax 
treatment.
  The attitude seems to be that this is what the majority wants to do, 
so they are going to do it no matter what the Constitution says. That 
may be politically possible, but that does not make it constitutionally 
permissible.
  Other legal analysts and scholars who are examining this health care 
takeover legislation are raising additional constitutional objections. 
Professor Richard Epstein of the University of Chicago School of Law, 
for example, focuses on provisions that restrict insurance providers' 
ability to make their own risk-adjusted decisions about coverage and 
premiums. He argues these restrictions amount to a taking of private 
property without just compensation and in violation of the fifth 
amendment.
  Others have observed that the legislation requires States to 
establish health benefit exchanges. It does not ask, cajole, encourage, 
or even bribe them. It simply orders State legislatures to pass 
legislation creating these health benefit exchanges and says if States 
do not do so, the Secretary of Health and Human Services will establish 
the exchanges for them. How thoughtful.
  But as the Supreme Court said in FERC v. Mississippi in 1982:

       This Court never has sanctioned explicitly a federal 
     command to the States to promulgate and enforce laws and 
     regulations.

  The Supreme Court reaffirmed a decade later in New York v. United 
States that ``the Framers explicitly chose a Constitution that confers 
upon Congress the power to regulate individuals, not States.''
  In that case, the Court struck down Federal legislation that would 
press State officials into administering a Federal program.
  More recently, in Printz v. United States, the Supreme Court stated:

       We have held, however, that State legislatures are not 
     subject to Federal direction.

  Yet this legislation does what these cases said Congress may not do. 
It commands States to pass laws, it regulates States in their capacity 
as States, and it attempts to make States subject to Federal direction.
  Let me return to the principles with which I began. Liberty requires 
limits on government power. Those limits come primarily from a written 
Constitution which delegates enumerated powers to Congress. We must be 
able to identify at least one of those enumerated powers to justify 
legislation, and those powers should not mean whatever we, in our 
delightful wisdom, want them to mean.
  Those principles lead me to conclude that Congress does not have the 
authority to require that individuals purchase health insurance, and 
that Congress cannot tax certain health insurance plans in some States 
but not in others.
  These, and the others I have mentioned, are only some of the 
constitutional issues raised by this legislation. Any of these, and 
others I have not mentioned, could well be the basis for future 
litigation challenging this legislation should it become law.
  Writing for the Supreme Court in 1991, Justice Sandra Day O'Connor 
reminded us:

       The Constitution created a Federal Government of limited 
     powers.

  America's Founders, she wrote, limited Federal Government power to 
``protect our fundamental liberties.''
  Here is the way Justice O'Connor put it, writing for the Supreme 
Court in New York v. United States in 1992:

       But the Constitution protects us from our own best 
     intentions: It divides power among sovereigns and among 
     branches of government precisely so that we may resist the 
     temptation to concentrate power in one location, as an 
     expedient solution to the crisis of the day.

  That is a pretty remarkable statement. I could not have said it 
better myself. Those are either principles we must obey or cliches we 
may ignore.
  If the Constitution means anything anymore, if it does what it was 
created to do by not only empowering but, more importantly, limiting 
government power, then now is the time to stand on principle rather 
than to slip on politics.
  I yield the floor.

                               Exhibit 1

                                                 October 25, 2009.
     Hon. Orrin G. Hatch,
     U.S. Senator.
       Dear Senator Hatch: We support reducing the cost of health 
     insurance and expanding access to quality, affordable 
     prevention, wellness and health care services for all 
     Americans. Despite our support for health care reform that 
     empowers consumers, we have serious concerns about the 
     constitutionality of the individual mandate requirement being 
     proposed by Congress.
       At least one scholar has argued that the individual mandate 
     requirement is constitutional because Congress has unlimited 
     authority under the Commerce Clause to regulate the economic 
     activity of individual

[[Page 31493]]

     American citizens no matter how infinitesimal.
       We do not agree with that position. In Philadelphia, the 
     Framers established a federal government of limited powers. 
     If Congress has unlimited power under the Commerce Clause to 
     regulate the economic activity of citizens, then the 
     Constitution is no longer (and never was) ``a promise . . . 
     that there is a realm of personal liberty which the 
     government may not enter.''
       We believe that this promise still exists and is not a 
     mirage. The Supreme Court said so, at least as recently as 
     2003.
       It has also been argued that the individual mandate is 
     constitutional because citizens have ``no fundamental right 
     to be uninsured'' or ``to decline insurance.'' These are 
     strawman characterizations intended to distract attention 
     from the real constitutional question: Does Congress have the 
     power to mandate citizens buy a specific good or service or 
     be subjected to a financial penalty for not doing so?
       Our reading of the Constitution and Supreme Court precedent 
     could not identify any reasonable basis, expressed or 
     implied, for granting Congress the broad, sweeping and 
     unprecedented power that is represented by the individual 
     mandate requirement. In fact, we could not find any court 
     decision, state or federal, that said or implied that the 
     Constitution gave Congress the power to mandate citizens buy 
     a particular good or service or be subject to a financial 
     penalty levied by the government for not doing so.
       There are cases that say Congress can tell consumers what 
     products to buy if they choose to buy, but no cases that say 
     Congress can mandate that a citizen must buy a particular 
     good or service or be fined for not doing so.
       The individual mandate requirement directly burdens the 
     fundamental meaning of being an American citizen as embodied 
     in the Ninth Amendment reaching back through the Declaration 
     of Independence to the Magna Carta and its expansion coming 
     forward from the 3/5ths Clause of Article I of the 
     Constitution and the Court's Dred Scott decision to the 
     Thirteenth, Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth 
     and Twenty-Sixth Amendments as well as through Supreme Court 
     decisions related to these amendments, legislation adopted 
     pursuant to them, the Bill of Rights and its penumbra.
       The Supreme Court has ruled that freedom of speech, 
     expression and association are constitutionally protected. 
     Our right to freely move around the country is also 
     constitutionally protected. Congress can regulate the size of 
     political donations but has no authority to tell a citizen 
     which political candidate or party they can lawfully 
     contribute to.
       Like political donations, how a citizen legally spends 
     their money in the market place is clearly a form of 
     expression and association that requires strict scrutiny, or 
     heightened, protection.
       Calling the individual mandate a tax raises another 
     constitutional concern. Under the mandate, American citizens 
     are essentially subject to a financial penalty simply for 
     being a citizen of the United States residing in a state of 
     the Union. It is essentially an existence fee, a fee for 
     existing.
       Under the Fourteenth Amendment, the definition of 
     citizenship does not include any requirement that Americans 
     pay a ``tax'' simply because we are citizens. In fact, the 
     Twenty-Fourth Amendment and related Supreme Court decisions 
     expressly prohibit financially burdening the rights of 
     citizens to prevent them from exercising a right of 
     citizenship. Citizens have a liberty interest in deciding 
     when to buy a good or service and which to buy form the 
     legally available options.
       The Supreme Court has said, ``Had those who drew and 
     ratified the Due Process Clauses of the Fifth Amendment or 
     the Fourteenth Amendment known the components of liberty in 
     its manifold possibilities, they might have been more 
     specific. They did not presume to have this insight. They 
     knew times can blind us to certain truths and . . . laws once 
     thought necessary and proper in fact serve only to oppress. 
     As the Constitution endures, persons in every generation can 
     invoke its principles in their own search for greater 
     freedom.''
       We believe that reducing the cost of health care insurance 
     and expanding coverage can be achieved without opening the 
     constitutional Pandora's Box of the individual mandate 
     requirement.
           Sincerely,
     Carroll G. Robinson, Esq.
     Michael O. Adams, PhD.

  The PRESIDING OFFICER. The Senator from Kansas is recognized.
  Mr. BROWNBACK. Mr. President, I am delighted to follow my colleague 
from Utah. I am pleased he has raised these constitutional issues, 
which I think are significant to this bill. The idea that we could have 
a constitutional mandate to buy health insurance, to me, is highly 
questionable under our rights under the role of the Federal Government 
and under the Constitution. Senator Hatch has been on the Judiciary 
Committee for many years and he understands these issues very well.
  We are now on our sixth iteration of the health care reform bill. 
This one talks about expanding Medicare, basically as one of the key 
components of solving the problem. Here is a quote from the Mayo Clinic 
I found, and others have also been cited. I found this interesting, 
succinct, and accurate:

       Any plan to expand Medicare, which is the Government's 
     largest public plan, beyond its current scope does not solve 
     the Nation's health care crisis, but compounds it. It is also 
     clear that an expansion of the price control of the Medicare 
     payment system will not control overall Medicare spending or 
     curb costs. This scenario follows the typical pattern for 
     price control, reduced access, compromised quality, and 
     increasing costs anyway. We need to address these problems, 
     not perpetuate them through health reform legislation.

  That was the Mayo Clinic. It is clearly not the way to go to solve 
the crisis or the problems. It probably hastens the day Medicare goes 
bankrupt, which is set to happen in 2017, 7 years away.
  I want to talk about the possibility that this health care bill puts 
this very early piece of economic recovery that we are having at risk. 
The latest reports on unemployment provide some hope that our battered 
economy may be showing some tentative signs of economic recovery, as 
the job loss continues to slow. Most of this is based off of monetary 
policy. We are seeing some of this taking place.
  Consumer confidence is still low. Unemployment hovers at 10 percent, 
and over 7 million jobs were lost since the beginning of the recession.
  It should be clear that any potential recovery is incredibly fragile. 
That being the case, Congress and the administration should focus like 
a laser beam on policies that encourage economic growth and put 
Americans back to work. That seems to be obvious.
  Instead, though, the administration and the Democratic-controlled 
Congress have taken up crucial months with a proposed revamping of our 
entire health care system that will cost nearly $2.5 trillion over the 
next 10 years, to be paid for by new taxes and employer mandates, and 
it will impose a grave risk to a sustained rebound of our Nation's 
economy. This hurts our economic recovery.
  Not only that, but the Democratic health care bill includes some 
positively perverse incentives that would discourage hiring, work, 
saving, and even marriage. Again, it would discourage hiring, work, 
savings, and marriage. Higher taxes, more employer mandates, and 
disincentives to job creation, productivity, and family formation are 
hardly the prescription for the growth our economy so desperately needs 
right now.
  Both the House and the Senate bills would, for instance, increase the 
already existing penalty on work faced by many low-income families who 
receive tax and in-kind benefits from government welfare programs. We 
already heard this. Health insurance subsidies in the legislation for 
individuals and families in poverty would tack on an additional 12 to 
20 percent to marginal tax rates, which already approach 40 to 50 
percent for families receiving a variety of benefits for those with low 
incomes. This would result in marginal tax rates of 50 to 60 percent 
for most affected families.
  If working more hours or obtaining better paying jobs results in more 
than half of those additional earnings being taken away as a result of 
taxes or a reduction in benefits--if you are a low-income individual, 
you are working more, you are getting more money coming in, but your 
benefits from the government are reduced. So if you are taking 50 to 60 
percent away in a reduction of benefits or in taxes, the incentive to 
work harder or to invest in an education is greatly reduced. That is 
obvious on its face. Yet it is in this bill.
  This is not the only work disincentive in the bill. It is common for 
teenagers and college students to obtain jobs so they can have some 
spending money on their own or to help with their educational expenses. 
The Senate bill penalizes the families of these younger workers by 
including their wages in benefit eligibility calculations. For many 
low-to-moderate income families, the inclusion of their

[[Page 31494]]

wages could mean a significant increase in their cost of health 
insurance or even in them losing thousands of dollars of health 
insurance subsidies altogether. That is in the bill.
  And more harmful to the economy, potentially, are the incentives 
directed at employers. Both the House and Senate bills include 
temporary subsidies to small businesses to encourage them to offer 
employer-sponsored health insurance. As the number of employees 
increase or as salaries increase, the amount of the credit provided to 
the business decreases. The structure of this subsidy not only 
discourages employers from hiring new employees, but it also 
discourages them from increasing employees' salaries. We don't want 
those sorts of disincentives in any bill.
  Ironically, the incentives in the bill would even work to encourage 
employers to drop health insurance coverage for individual employees or 
eliminate insurance coverage altogether. The Senate bill would cap 
employee contributions to insurance premiums at 9.8 percent of their 
income. If an employer offered a policy that required employees to pay 
more than this, the employee would be eligible to purchase insurance 
through the new ``health care exchanges.'' The employer would have to 
pay a fine. Since, in many cases, that fine is considerably less than 
the additional insurance costs the employer would incur if they 
retained coverage, many businesses concerned about the bottom line 
would be enticed by the bill to stop providing any health insurance 
coverage. So they are actually enticed here to drop health insurance 
coverage--another thing we don't want to see happen.
  Furthermore, employers who offer flexible spending accounts or FSAs 
will be encouraged to stop providing these tax-free medical spending 
accounts for their employees. Under the Senate Democrats' bill, FSA 
contributions will be included in the total cost of employees' health 
insurance benefits for the purpose of calculating the proposed tax on 
high-cost health plans--the so-called Cadillac health care plans. 
Adding an FSA contribution could push the total cost of health benefits 
above the high-cost threshold for many workers, which will result in 
the employer being liable for a portion of the 40 percent high-cost 
plan's tax. As more and more plans become subject to the high-cost 
plan's tax, it will be in the employer's best interest to eliminate FSA 
offerings altogether. That is another disincentive we don't want to see 
happening.
  The proposed legislation would also create new marriage penalties 
across the income spectrum. We have been working for some years to do 
away with the marriage penalty. Marriage is a good and solid 
institution that helps so much in this Nation. Yet it puts in a 
marriage penalty, penalizes people for getting married; it is built 
into this legislation. These penalties can be so large that, in some 
cases, couples would have to forgo marriage in order to avoid thousands 
of dollars in new taxes. The penalties are significant. Low- and 
moderate-income families often have limited savings as well. Given the 
already significant marriage penalties in low-income benefit programs, 
it seems ironic that the government would create yet another program 
that penalizes low-income individuals for getting married.
  Currently, if they are on public assistance and they get married, 
their combined incomes often move a couple out of the support they 
receive for their families, whether it is health support, housing, or 
food support. By getting married, they often lose their benefits. 
Instead of taking them away, we ought to be helping them form solid 
families. That sort of disincentive is built into this health insurance 
plan as well, where you actually put in disincentives for low-income 
couples to get married. In other words, to be able to get the health 
insurance subsidy, they may have to forgo marriage. That is not the 
sort of incentive we want in the system and in the bill. We are trying 
to take it away in the welfare programs, but to add another piece to 
low and moderate-income couples is the wrong way for us to go.
  That the Democratic health care legislation would set the United 
States on a path to a single-payer government-run health insurance 
system of the sort found in Europe and Canada is bad enough, but even 
more troubling is the fact that these proposals would create a series 
of perverse incentives ultimately harmful to workers, businesses, and 
the entire economy. The Senate must reject this poorly conceived, 
ruinously expensive scheme and get back to the business of helping our 
economy recover.
  I have talked to many people across the United States and 
particularly in Kansas, many people who are deeply concerned about this 
economy and the perverse things coming out of Washington. While they 
might start considering investing in their small business, putting some 
income or something out to be able to grow and create jobs, people are 
holding back and saying: I don't know how many more taxes you will put 
on us or what the health insurance plan will look like. I don't know 
what cap and trade will do on raising energy costs.
  They are holding back. These perverse economic signals, and the 
discussion of them in Washington, is perversely affecting the economy. 
It is hurting the economic recovery. If you put these pieces into place 
statutorily, you are hurting savings, hurting hiring, hurting marriage 
formation, and you will further hurt an already very tentative recovery 
from taking place.
  This is a bad medicine for the economy. The idea that you would 
expand Medicare to take care of that is a terrible idea. You will be 
hurting a program that already is not financially solvent in the long 
term and is looking at something like $30 trillion of unfunded 
obligations already on its books. That alone, if you expand it back to 
age 55, plus the provider community--the American Medical Association 
and the American Hospital Association are opposed to this expansion of 
Medicare. They don't get full reimbursement of costs right now. With 
the talk about bringing it back to age 55, you will be sweeping a large 
number of people into Medicare, so you are sweeping in a lot of people 
who are already in private insurance plans. When they are pulled out of 
private insurance which pays at the full rate to the provider 
community, you are taking those resources away from the provider 
community, from doctors and hospitals. That is why you are seeing the 
American Medical Association and the American Hospital Association come 
out against this proposal on Medicare expansion. How on Earth would it 
ever be paid for, when the program is already not on a stable financial 
track?
  The Federation of American Hospitals stated this:

       The FAH is strongly opposed to this proposal. A Medicare 
     buy-in would involve Medicare rates, would be controlled by 
     CMS, and would crowd out older workers with private coverage 
     and may choose early retirement as a result. Such a policy 
     will further negatively impact hospitals.

  In my rural State, in particular, it would have a huge negative 
impact on a number of the hospitals in my State.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, is there a unanimous consent order of 
business?
  The PRESIDING OFFICER. There is not.
  Mr. DURBIN. Mr. President, I rise to speak as in morning business.
  I would like to say at the outset I respect very much my colleague 
from the State of Kansas. He and I have worked on many issues together. 
In fact, we traveled together to Africa, a memorable trip for both of 
us, I am sure, visiting the Democratic Republic of Congo, Rwanda, and 
meeting a lot of people in desperate straits. I thank him for that.
  I know he is now preparing for another public career in the State of 
Kansas, with the blessing of the Kansas voters. But in the meantime, he 
continues to be a very important, vital voice in the Senate. I thank 
him for that as well.
  We do disagree on health care reform. I know he has had a chance to 
explain his point of view. I will say I disagree with many of his 
conclusions about what we are about, what we are trying to accomplish.

[[Page 31495]]

  This is the bill that is before us when we return to the health care 
reform debate. It is 2,074 pages long. It is the product of 1 year's 
work by two major committees in the Senate. The House of 
Representatives spent a similar period of time in three different 
committees working on it to come up with their work product, which they 
passed just a few weeks ago.
  This is historic because we have been promising this and threatening 
this and talking about this for decades. It was Theodore Roosevelt who 
first raised the question about whether America could accept the 
challenge of providing health care for every citizen. That was over 100 
years ago. Then, of course, Harry Truman, who, in a more modern era, 
issued the same challenge. He was confronted by his critics who said: 
He is talking about socializing medicine. Must be socialism that Harry 
Truman is proposing. The idea died.
  Then, again, Lyndon Johnson raised it in the early 1960s. He was a 
master of the Senate, as he has been characterized in a book that has 
been written about him. He believed he had the power to make this 
happen to deal with the health care system across the board in America. 
It turned out he made a significant contribution with the enactment of 
Medicare and Medicaid but could not reach the goal of universal health 
care or comprehensive health care reform.
  This President, President Obama, came to us and issued the same 
challenge. He said we have reached a point of no return. The current 
health care system in America is unsustainable, it is unaffordable, and 
the cost of health care goes up dramatically. Ten years ago, a family 
of four paid an average of $6,000 a year, $500 a month for health care 
insurance. Now that is up to twice that amount, $12,000 average for a 
family of four, $1,000 a month. In 8 years, with projected increases in 
costs, we expect that the monthly premium for the family of four to go 
up to $2,000 a month, $24,000 a year. We know that represents 40 
percent of earnings for many people. That is absolutely unsustainable.
  What we have tried to do, first and foremost, is address 
affordability. How can we make health insurance protection more 
affordable for more families? How can we start lessening the annual 
increase in premiums and actually help people by substantially cutting 
the cost of premiums for many families? It is a big challenge, and we 
have, I think, risen to the challenge with this bill.
  The other side of the aisle has ideas, they have amendments, they 
have speeches, they have charts, but they do not have a comprehensive 
health care reform bill. They do not have a bill that has been sent 
over to the Congressional Budget Office, carefully read, and evaluated. 
It took weeks to do it. They do not have a bill that came back from the 
Congressional Budget Office, considered to be the neutral observer of 
action on Capitol Hill. They do not have a bill that came back from the 
CBO that has been characterized as actually reducing the deficit.
  This bill, according to the Congressional Budget Office, will reduce 
America's deficit over the next 10 years by $130 billion and over the 
following 10 years another $650 billion. It is not just dealing with 
health care reform; it is dealing with the costs of health care to our 
government and reducing our expenditures by significant amounts. It is 
the largest deficit-reduction bill ever considered on the floor of the 
Senate.
  Although the Republicans have many ideas, they do not have anything 
that matches this bill in terms of deficit reduction or bringing down 
the cost of health care. They have not produced a bill which will 
extend the reach of health insurance coverage to 94 percent of our 
people in this country, which this bill does.
  For the first time in the history of the United States of America, 94 
percent of our American citizens will have peace of mind knowing they 
have health insurance. Today, 50 million do not. This bill will take 30 
million off the uninsured rolls and put them in insurance plans that 
can protect their families, and it will help them pay for the premiums. 
If people are making less than 400 percent of poverty--which in 
layman's terms is about $80,000 a year in income. If your family makes 
$80,000 or less, we provide in this bill that we will help you pay for 
your premiums. The lower your income, the more we will help pay.
  If you are making, for example, as an individual, less than $14,000 a 
year, you will not pay for your health care. It will be covered by 
Medicaid, the program that is now nationwide, and you will not have to 
pay a premium. Then as you make more money, you will pay a little bit 
of a premium with help from this bill.
  The Republicans have not produced a plan of any kind that deals with 
helping families of limited means, modest means, pay for their health 
insurance premiums. We have. The Congressional Budget Office has scored 
it. One of the major provisions in this bill--and one I think most 
people will identify with quickly--is the fact that health insurance 
reform is included too. There is a Patients' Bill of Rights in this 
bill. It basically says we should bring an end to the discriminatory 
practices of health insurance companies against American citizens. We 
know what we are talking about.
  Friends of mine, a family I am closer to than any other family in 
Springfield, IL, has a son fighting cancer. He is a young man in his 
forties. He has young children in high school. He was diagnosed with 
melanoma just a few years ago. His oncologist has worked with him with 
chemotherapy and radiation and with the kind of treatment and drugs and 
surgeries he needed. As a result of it, he has gone through some tough 
surgeries and tough treatment. His oncologist said at one point: We 
have a drug we believe will help you. He gave him the drug, and the 
drug, in fact, arrested the development of his cancer.
  Shortly after the drug was prescribed and administered, his health 
insurance company that he paid into for years came back and said: We 
will not cover that drug. The drug costs $12,000 a month. It is 
impossible for him, as the coach of a baseball team at one of our 
universities, to come up with that kind of money. His family borrowed 
money to pay for one of the treatments, and now they are suing the 
insurance company in the hopes that they can get coverage.
  After all those years paying in, when they finally needed that 
coverage, they turned him down. I hope he wins that lawsuit. This is a 
very profitable insurance company. It is a company that should be 
paying, but they are not. That is one example of thousands we could 
talk about.
  The purpose of this bill is to make sure a friend of mine, his 
family, and other families just like his have a fighting chance against 
these insurance companies. We say in this bill we are going to provide 
a way for protection for people with a preexisting condition; that if 
you have a history of high cholesterol or high blood pressure, if you 
have some cancer in your family, it is not going to disqualify you. You 
are still going to be eligible for health insurance, a policy you can 
afford.
  We also say, when it comes to your children--you know how it is 
today, you learn the hard way--when your kids who are on the family 
plan reach the age of 24, they are off. We extend that to age 26, which 
I think is a little more peace of mind, particularly for students 
graduating from college looking for jobs these days. It is not easy. We 
want to make sure they are covered with health insurance while they are 
paying off their student loans and building their career. That is in 
this bill.
  There is not a bill from the Republican side of the aisle that deals 
with the Patients' Bill of Rights. In fact, it is a rare Senator on the 
other side of the aisle who even stands and is critical of health 
insurance companies in the way they are treating people in this 
country.
  I do not know if my friends on the other side of the aisle get back 
home enough to meet with some of these families. Surely they do. They 
must receive mail that tells them about these stories we have all heard 
about. You would think they would be endorsing our approach in this 
bill. Instead, they are critical of it from start to finish.

[[Page 31496]]

  They talk a lot about taxes. I want you to know, under this bill, if 
you have a small business with 25 or fewer employees, we actually 
provide tax breaks to help you provide insurance for your employees. 
There are a lot of businesses, mom-and-pop businesses, for example, 
that cannot afford health insurance that will have a chance now because 
of tax breaks here.
  Then, when it comes to paying for premiums, I mentioned earlier, if 
you make $80,000 or less, we provide tax breaks in helping you pay for 
it. The cost of it in tax breaks is $440 billion over 10 years. It is a 
huge amount of money we are providing to American citizens to give them 
a chance to pay for their health insurance premiums. All we hear from 
the other side is: Oh, this bill is going to raise taxes. It does raise 
some. It raises taxes on health insurance companies for what we call 
Cadillac health care policies.
  We can debate for a long time whether that level of policy, $25,000, 
is a reasonable level or should be something different. But the fact 
is, it is a tax on the health insurance company. It will likely result 
in fewer policies that are that grand and that expansive being issued.
  I think this is a bill that moves in the right direction. It is a 
bill that makes insurance more affordable. It is a bill that does not 
increase the deficit, it reduces it. It is a bill that gives people a 
fighting chance against health insurance companies that discriminate 
against their customers. It is a bill that extends the coverage of 
health insurance of 94 percent of Americans. It is a bill that looks at 
putting Medicare on sound footing. It adds 5 years of solvency to 
Medicare--5 years. There has not been a bill produced on the other side 
of the aisle that even adds 1 year, that I am aware of. It adds 5 more 
years of solvency. That is the reason why this bill has been supported 
by the American Association of Retired Persons. We have support of 
medical professionals, senior organizations, and consumer groups all 
across America. They know, as we do, we cannot wait any longer.
  I also wish to make the point that the Senate bill offers significant 
savings for seniors. The CMS Actuary projects a net $469 billion in 
Medicare and Medicaid savings over 10 years, slightly more than the 
Congressional Budget Office. It extends the life of the Medicare trust 
fund, according to the Office of the Actuary, by 9 years. That is 
longer than anyone has projected in previous forecasts, but it is a 
significant increase, almost doubling the life of the Medicare trust 
fund over what it currently would be.
  It reduces premiums by $12.50 a month by the year 2019 or $300 per 
couple per year. Slowing Medicare growth will lower health care costs 
for seniors as well as younger Americans. Not only will there be a 
premium savings, but coinsurance will fall as well.
  The Senate bill slows the growth of health care costs. The Actuary 
report we have, for example, says, `` . . . Reductions in Medicare 
payment updates for providers, the actions of the Independent Medicare 
Advisory Board, and the excise tax on high-cost employer-sponsored 
health insurance would have a significant downward impact on future 
health care cost growth rates.''
  The bend in the health care cost curve is evident. Health care costs 
under the Senate bill begin to decline as cost savings begin to kick 
in.
  I have not mentioned this bill focuses on prevention and wellness 
too. If there is one thing we need, it is to encourage people to take 
care of themselves and to get a helping hand for the tests they need to 
stay healthy and to monitor their conditions. This preventive care and 
wellness, though we have not been credited by the Congressional Budget 
Office, is an important element of this bill.
  I think there is one thing on which we should all agree. The cost of 
health care, particularly for small businesses, is very difficult. On 
the Senate floor, both Democrats and my friends on the other side of 
the aisle have recognized small businesses are struggling to pay for 
health insurance. But there is a real difference. We have offered a 
solution, one that is comprehensive and one that has been scored and 
carefully analyzed by the Congressional Budget Office.
  Unfortunately, that has not happened on the other side. Their 
approach is basically to criticize what we have proposed but to offer 
no alternative. If they are happy with the current system, I understand 
that. If they will concede that it is hard to produce a bill like this, 
I would understand that. But merely to criticize this without 
alternative, a comprehensive alternative that has been carefully 
analyzed, I don't think is a responsible approach to the serious 
problem that we face today.
  There are real-life stories of people who have contacted me. One of 
them I will tell you about involves a small business. Right now we know 
that one sick employee of a small business can drive the cost of health 
care for the whole company to limits where they just can't afford it. 
My friends, Martha and Harry Burrows, whom I have met, are small 
business owners in Chicago, and they have to wrestle with this problem 
and try to run a successful business at the same time. When they opened 
their toy store, Timeless Toys, 16 years ago, they promised to provide 
health insurance to their full-time employees. Martha Burrows said:

       Since we were covered, we wanted to offer the same benefit 
     to our employees.

  But as their health care premiums have skyrocketed with leaps of more 
than 20 percent at a time, the commitment has taken its toll on their 
business. Providing health insurance to their full-time staff of seven 
meant cuts not only to profits but also to the wages of their 
employees. In general, the older employees faced even higher costs. We 
shouldn't put our Nation's employers in a position where the health 
costs of an older worker can make such a huge difference.
  Marcia says:

       I don't like making decisions that way. I want to base 
     hiring decisions on the quality of the person.

  The legislation on the floor, incidentally, deals with the rating of 
premium costs for senior citizens, for example, and makes a fairer 
rating system. Currently, health insurance companies in America are 
exempt from the antitrust laws. Under a bill known as McCarran-
Ferguson, passed in the 1940s, they are exempt, along with organized 
baseball, which means the insurance companies--health insurance 
companies and others--can literally sit down in a room and conspire, 
collude, agree on prices they are going to charge. If any other 
companies that were supposed to be competing did that in America they 
would be sued but not the insurance companies. So they can set premiums 
and agree on what the premiums will be, and they can divide up the 
market for the sale of their products, sending some companies to one 
town and some to another, making sure they do not compete against one 
another.
  That is the reality of health insurance today. What we provide in 
this bill is protection against the ratings which discriminate against 
people because they are elderly or because they are women. We put 
limits to the rating differences that will be allowed in health 
insurance policies. There is no bill I know of from the Republican side 
that even considers or addresses that problem.
  Mr. President, one of the issues that I have tried to focus on in the 
midst of this recession is our foreclosure crisis. Back in December of 
2006, when the housing markets were humming along and the bankers and 
brokers were raking in money, the Center for Responsible Lending 
published a report called ``Losing Ground.'' That report, in December 
of 2006, estimated that nearly 2 million homes would be lost to 
foreclosure in the coming years due largely to shoddy subprime 
mortgages.
  Here is what the Mortgage Bankers Association told the Washington 
Post when they heard of this study. It was authored by the Center for 
Responsible Lending.

       The report is `wildly pessimistic' because most homeowners 
     have prime loans and are not at financial risk.

  That is what a senior economist at the Mortgage Bankers Association 
said in December of 2006. He went on to say:

       The subprime market is a small part of the overall market. 
     Lending industry officials

[[Page 31497]]

     have said that regulatory action could injure the subprime 
     market.

  When he speaks of regulatory action, he means regulating these 
subprime markets.
  On the floor of the Senate, I was involved in a debate with a Senator 
from Texas named Phil Gramm. I offered an amendment to a bankruptcy 
bill which Senator Grassley and I worked on which said: If you are 
guilty of predatory lending, you will be precluded in bankruptcy from 
pursuing your claim. That was debated on the Senate floor, and debating 
on the other side against my amendment was Senator Phil Gramm of Texas, 
who said on the floor of the Senate:

       If the Durbin amendment passes, it will destroy the 
     subprime mortgage market.

  Well, my amendment failed by one vote, and the subprime mortgage 
market continued until it collapsed just a couple of years ago. I wish 
I had had another vote for my amendment.
  At the time this debate took place in December of 2006, about 25 
percent of home loans were subprime. So the mortgage bankers, 
unfortunately, misled the public about the state of the market at the 
time to wave away warnings about any crisis that might be following, 
and we all know what that has meant to this country.
  I go back to that episode now because 3 years later, in 2009, we have 
had more than 2 million foreclosures, something the Mortgage Bankers 
Association said wouldn't happen. In fact, the Mortgage Bankers 
Association has recently announced that in the third quarter of this 
year, nearly one in seven families paying mortgages in this country 
were either behind on their payments or already in foreclosure--one out 
of seven people holding mortgages today. It is hard to imagine. That is 
the highest it has ever been.
  The statement from the Mortgage Bankers Association said:

       Despite the recession ending in mid-summer, the decline in 
     mortgage performance continues.

  Three years ago, the rosy scenario they painted has now morphed into 
a much more serious situation which they cannot ignore. I have been 
talking about this foreclosure crisis since early in 2007. I stand here 
with some regret and say it is getting worse.
  In Illinois, foreclosure filings in the six-county region around 
Chicago went up 67 percent in the last quarter. This isn't just a 
problem for the city of Chicago. New filings in Cook County, mainly 
suburban areas, were down 4.6 percent last quarter. The problem, 
unfortunately, has migrated to the suburbs. All of the so-called 
``collar counties'' around Chicago have experienced massive increases 
in foreclosure activity. Kane County, a near-in county to the city of 
Chicago, saw foreclosure filings increase 97 percent in the last 
quarter over a comparable period last year.
  I know the administration is working on this. The Home Affordable 
Modification Program is helping some families. I know Treasury has 
stepped up naming and shaming and hoping that it will provide more data 
for the public on which banks are actually trying. Some are--not much 
but some are. Many are not trying at all to renegotiate mortgages for 
people facing foreclosure. But no matter how much the Treasury 
Department leans on these bankers, the big banks that service most of 
these troubled mortgages have simply not stepped up to the plate.
  Treasury reported yesterday that 3.3 million families are eligible 
for the Home Affordable Modification Program. Those are the families 
who are at least 2 months behind on their mortgages and in serious risk 
of being thrown out in the street. How many families, based on this 3.3 
million families eligible for this program, have been able to get a 
bank to commit to a permanent loan modification that will keep them in 
their homes? There were 31,000 out of 3.3 million; less than one-tenth 
of 1 percent of the families in trouble have been able to work out a 
permanent solution with their bankers. That is disgraceful.
  The big banks that created this mess continue to stand in the way of 
cleaning it up. They are making billions of dollars while foreclosing 
on millions of American families. Shaming the banks with speeches on 
the floor of the Senate isn't going to work. We have learned the hard 
way that many banks are beyond embarrassment. You can't embarrass 
bankers who take billions of taxpayer dollars to stay solvent and to 
overcome their bad banking policies, then turn around and pay millions 
out in bonuses to the officers of the same banks. You can't publicly 
shame bankers into doing something when they simply don't care.
  But let's be clear. Congress hasn't done its part either. We have not 
done enough to make these banks help the American people who need some 
help. I will continue to come to the floor to remind my colleagues that 
we must address this crisis far more aggressively than we have, and I 
will continue to look for ways to help.
  One last statistic. The Wall Street Journal ran a front-page story 
recently highlighting that one in four homeowners who are paying a 
mortgage today owes more on their mortgage than their house is worth. 
One in four homeowners is making house payments on a home that is now 
underwater. If you owe more than your house is worth and have no extra 
cash lying around, you are really vulnerable. If there is a sickness in 
your family, a health care emergency, a job loss, you could lose your 
home. If you are underwater, you are likely to stay there.
  The 10.7 million families who find their mortgages are higher than 
the value of their homes are at serious risk of foreclosure. Over 
400,000 of those families are at risk in my home State of Illinois. 
JPMorgan Chase estimates that home prices won't hit bottom until next 
year, so it is going to get worse before it gets better.
  So do we stand idly by and watch this--watch people lose their life's 
savings and their homes, watch these boarded-up homes spring up across 
our neighborhoods, around towns large and small across America and 
shake our heads and say it is inevitable? We don't have to. What we 
have to do is lean on these banks legally, with new laws that put 
pressure on them to make a difference. Don't appeal to their better 
nature. We have tried that, and it didn't work. We have to use the law. 
We have to stand up for this economy and putting it back on its feet, 
and we have to make the point of saying to these bankers that they have 
to negotiate these mortgages.
  We need to do our part in the Senate. As we focus on health care and 
jobs and the state of the economy, let's not lose sight of this 
foreclosure crisis that is devastating neighborhoods across the 
country. The economy will struggle to fully recover until more families 
are confident enough in their homes that they are willing to go out and 
go shopping again. We must do more.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I had a chance to listen to my good 
friend, the Senator from Illinois; his remarks about why the bill 
before the Senate is going to reduce costs and pay down on the national 
debt. Now, that is the Senator from Illinois. I am the Senator from 
Iowa. But I would like to not refer to my judgment about this bill 
right now. What I would like to refer to is the judgment outlined in a 
report that was issued today from the Chief Actuary of the Centers for 
Medicare & Medicaid Services in the Department of Health and Human 
Services, a professional person who calls it like it is. That is his 
responsibility.
  Remember, I am quoting from a report that was just given today about 
this 2,074-page bill we have before us, and that my friend from 
Illinois was just speaking very favorably about. So I am going to talk 
about somebody in the executive branch of government, under the 
President of the United States, who says this about this reform bill--
that it will cost more than the status quo. The Chief Actuary of the 
Centers for Medicare & Medicaid Services issued a report on Senator 
Reid's bill which shows that health care costs would go up, not down, 
under his bill. The Chief Actuary warned that the Democrats' health 
care bill would increase health care costs, threaten access to care for 
seniors, and force people off their current coverage.

[[Page 31498]]

  In other words, the administration's own Chief Actuary conclusively 
demonstrates that the Democrats' rhetoric does not match the reality of 
the bill. The cost curve would bend up, not down. National health 
expenditures would increase from 16 percent of GDP to 20.9 percent 
under the Reid bill. The Chief Actuary concluded that the Federal 
Government and the country would spend $234 billion more under the bill 
than without it. The Chief Actuary also says that the bill 
``jeopardizes access to care for beneficiaries'' because of the bill's 
severe cuts in Medicare.
  Quoting the Chief Actuary:

       Providers for whom Medicare constitutes a substantive 
     portion of their business could find it difficult to remain 
     profitable and . . . might end their participation in the 
     program (possibly jeopardizing access to care for 
     beneficiaries).

  Then it speaks about the savings in the bill being unrealistic. The 
Actuary says that many of the Medicare cuts ``are unrelated to the 
providers' costs of furnishing services to beneficiaries.'' It is 
therefore ``doubtful'' that providers could reduce costs to keep up 
with the cuts.
  Then the Chief Actuary speaks about new taxes costing consumers $11 
billion per year. The new taxes in the Reid bill would increase drug 
and device prices and health insurance premiums for consumers. The 
Actuary estimates this would increase costs on consumers by $11 billion 
per year, beginning in 2011--that is 3 years before most benefits kick 
in.
  Then the Actuary speaks about health care shortages, that these 
health care shortages are ``plausible and even probable,'' particularly 
for Medicare and Medicare beneficiaries. Because of the increased 
demand for health care, the Actuary says that access-to-care problems--
again these words ``plausible'' and even ``probable'' under the Reid 
bill. The access problems will be the worst for seniors on Medicare and 
low-income people on Medicaid. The Actuary says ``providers might tend 
to accept more patients who have private insurance with relatively 
attractive payment rates and fewer Medicare and Medicaid patients, 
exacerbating existing access problems for the latter group.''
  Premiums for the government-run plan would actually be higher than 
under private plans. Agreeing with the Congressional Budget Office, the 
Chief Actuary said that because the government plan would not encourage 
higher value health care and it would attract sicker people, premiums 
for the government-run plan would be 4 percent higher than for the 
private insurers.
  Then there is a point about employers dropping coverage. The Chief 
Actuary concluded that 17 million people will lose their employer-
sponsored coverage. Many smaller employers would be ``inclined to 
terminate their existing coverage'' so their workers could qualify for 
``heavily subsidized coverage'' through the exchange.
  Then it speaks, lastly, about the long-term health care part of this 
bill called the CLASS Act. The CLASS Act stands for Community Living 
Assistance Services and Support, C-L-A-S-S.
  The Chief Actuary has determined that the CLASS Act long-term care 
insurance program faces ``a significant risk of failure'' because the 
high costs will attract sicker people and lead to low participation. 
Even though premiums would be $240 a month, the policy would result in 
``a net Federal cost in the long term.''
  I think quoting the Chief Actuary is a very good way to bring 
attention to the shortcomings that, on this side of the aisle, we have 
tried to discuss about the 2,074-page bill. Members on this side of the 
aisle have shown that the Reid bill will bend the health spending curve 
the wrong way over the next year and that the Reid bill cuts Medicare 
by $\1/2\ trillion and jeopardizes seniors' access to care. So, again, 
quoting from the Health and Human Services Chief Actuary's analysis 
confirms the dangerous consequences of the 2,074-page Reid bill.
  I would like to highlight some of the findings in a more encompassing 
way than I just did, quoting the Chief Actuary.
  First, contrary to what Members on the other side of the aisle claim, 
the Chief Actuary's report confirms that the Reid bill bends the cost 
curve the wrong way. According to the HHS Chief Actuary, over the next 
10 years--and this chart highlights it--``total national health 
expenditures under this bill would increase by an estimated total of 
$234 billion.'' And a good portion of the increase in national health 
expenditures would be caused by the so-called fees in this bill on 
medical devices and on prescription drugs and on health insurance 
premiums.
  Here we have a chart where the Chief Actuary found that ``. . . fees 
would . . . be passed through to health consumers in the form of higher 
drug and device prices and higher insurance premiums . . .'' This would 
result in ``. . . an associated increase of approximately $11 billion 
per year in overall national health expenditures.'' This refutes claims 
from the other side that the so-called fees won't be passed on to 
consumers. And this analysis clearly refutes claims from the other side 
that the Reid bill saves money.
  Next, the Chief Actuary also confirms that the Reid bill jeopardizes 
beneficiary access to care. The Chief Actuary tallied up around $493 
billion in net Medicare cuts, and he raised concerns in particular 
about two categories of these Medicare cuts.
  First, the report warns about the permanent productivity adjustments 
to annual payment updates. These productivity adjustments 
``automatically cut annual Medicare payment updates based on 
productivity measures for the entire economy,'' not just for that 
section of health care part of the economy.
  The Chief Actuary confirms that these permanent cuts would threaten 
access to care. Referring to these cuts, he wrote that ``. . . the 
estimated savings . . . may be unrealistic'' and ``. . . possibly 
jeopardizing access to care for beneficiaries.''
  ``It is doubtful that many could improve their own productivity to 
the end achieved by the economy at large.'' This is a direct quote from 
the Chief Actuary's report. He goes on to say, ``We are not aware of 
any empirical evidence demonstrating the medical community's ability to 
achieve productivity improvements equal to those of the overall 
economy.''
  In other words, basically he is saying this: If you are going to make 
a judgment that you are going to cut health care costs and that 
productivity has to be measured by the entire economy, you can't take 
the entire economy and apply it to a small segment of the economy--
health care--and expect it to be fair and expect that small segment of 
the economy to be as productive and equal the productivity of the 
entire U.S. economy.
  You have to listen to these people who are professionals in these 
areas. The Chief Actuary is a professional. In fact, the Chief 
Actuary's conclusion is that it would be difficult for providers to 
even remain profitable over time, as Medicare payments fail to keep up 
with the cost of caring for beneficiaries.
  Referring to this chart, ultimately, here is the Chief Actuary's 
conclusion: that providers who rely on Medicare might end their 
participation in Medicare, ``. . . possibly jeopardizing access to care 
for beneficiaries.'' That is right out of the Chief Actuary's report, 
is where that quote comes from.
  He even has numbers to back up these statements. His office ran 
simulations of the effect of these drastic and permanent cuts. Here we 
have the quote. Based on the simulations, the Chief Actuary found that 
during the first 10 years, ``. . . 20 percent of Medicare Part A 
providers would become unprofitable . . . as a result of productivity 
adjustments.
  This is going to be horrible on rural America where we already have 
difficult times recruiting doctors and keeping our hospitals open. As I 
said, it is difficult to keep up with these productivity adjustments by 
our providers. It is for this reason that the Actuary found that 
``reductions in payment updates . . . based on economy-wide 
productivity gains, are unlikely to be sustainable on a permanent 
annual basis.'' That is right out of the report of the Actuary.

[[Page 31499]]

  The second category of Medicare cuts the Chief Actuary raises 
concerns about would be imposed by the new independent Medicare 
advisory board created in this 2,074-page bill. This new body of 
unelected officials would have broad authority to make even further 
cuts in Medicare. These additional cuts in Medicare would be driven by 
arbitrary cost growth targets based on a blend of general economic 
growth and medical inflation. This board would have the authority to 
impose further automatic Medicare cuts, even absent any congressional 
action.
  The Chief Actuary gives a reality check to this proposal. He shows 
how tall an order the Reid bill's target for health care cost growth 
actually is.
  Again quoting the Actuary:

       Limiting cost growth to a level below medical price 
     inflation would represent an exceedingly difficult challenge.

  He points out in this analysis that Medicare cost growth was below 
this target in only 4 of the last 25 years. Just think--what this 
2,074-page bill is trying to accomplish is something that has been 
accomplished in only 4 out of the last 25 years.
  The Actuary also points out that the backroom deals that carved out 
certain types of providers would complicate this board's effort to cut 
Medicare. So, to this analysis:

       The necessary savings would have to be achieved primarily 
     through changes affecting physician services, Medicare 
     Advantage payments, and Part D.

  So providers, such as hospitals, will escape from this board's cut at 
the expense of doctors, Medicare Advantage plans, and higher premiums 
imposed on beneficiaries for their Medicare drug coverage, Part D of 
Medicare. If we survey the Nation's seniors, I doubt very much they 
would say that raising their premiums for Medicare drug coverage is 
what they would call health care reform.
  This board, which can cut reimbursements, is guaranteed to have to 
impose these additional Medicare cuts. In other words, they can do it.
  According to the Chief Actuary's analysis of the Medicare cuts in the 
Reid bill, even though the Medicare cuts already in the Reid bill are 
``quite substantial,'' they would--the savings ``would not be 
sufficient to meet the growth rate targets.'' This means the board will 
be required by law to impose even more Medicare cuts, in addition to 
the massive Medicare cuts already in the bill.
  This bill imposes a $2\1/2\ trillion tab on Americans. It kills jobs 
with taxes and fees that go into effect 4 years before the reforms kick 
in.
  It kills jobs with an employer mandate. It imposes $\1/2\ trillion in 
higher taxes on premiums, on medical devices, on prescription drugs and 
more. It jeopardizes access to care with massive Medicare cuts. It 
imposes higher costs. It raises premiums. It bends the growth curve the 
wrong way; in other words, up instead of down. This is not what people 
have in mind when they think about health care reform.
  There is another aspect to this bill that I wish to go over. I hope 
the third time is the charm. I hope this time the other side of the 
aisle will understand that the Reid bill increases taxes on middle-
income families, individuals, and single parents. That is because 
contrary to the claims made by the other side of the aisle, the Reid 
bill clearly raises taxes on middle-income Americans. We have data, not 
from this Senator, but as I quoted previously the expertise of the 
Chief Actuary, I want to quote the expertise now of the Joint Committee 
on Taxation, professionals who are blind to politics, who judge things 
and call them like they see them. Yesterday I pointed out how the same 
Joint Committee on Taxation data led my Democratic friends to proclaim 
that the Reid bill provided a net tax cut to all Americans. We have 
this distribution chart I used previously to show that that net really 
is not net.
  There is no question that the bill does provide a tax benefit to a 
group of Americans, a relatively small group. A much larger group, 
however, will see their taxes go up. Most, if not all in this group, 
will not benefit from the government subsidy for health insurance. That 
is part of this 2,074-page bill. As a result, the generous subsidy that 
is in that bill that is going to a small group of Americans cannot be 
used by this larger group to offset their increased tax liabilities. 
The other side, however, wants to spread the large tax benefit that is 
going to this small group of Americans to everybody; in other words, 
all Americans, even among those Americans who are not eligible to 
receive the subsidy, and then somehow claim that all Americans are 
receiving a tax cut. How can a person receive a tax cut if they are not 
receiving some type of tax benefit?
  Yes, the data shows that some will receive a benefit, but the data 
also shows that the others will see a tax increase. I have highlighted 
in yellow these various figures, individuals and families who will see 
a tax increase. In general, these individuals and families are not 
receiving the subsidy for health insurance. This means they have no 
government benefit to offset their new tax liability. The most 
important point I want to make--for the third time--is that these tax 
increases fall on individuals making more than $50,000 and families 
making more than $75,000. Again, I highlighted this group on the Joint 
Committee on Taxation chart.
  The Joint Committee distributed in this chart three separate tax 
provisions: the high-cost plan tax, the medical expense deduction 
limitation, and the Medicare payroll tax. Among these tax provisions, 
the high-cost plan tax seems to be garnering the most attention and 
also tremendous opposition. I don't have to explain who the opponents 
of this tax increase are. Everybody knows. In fact, yesterday I had 
representatives of the Iowa Education Association, the teachers of 
Iowa, saying they are against that high plan tax because it is going to 
hurt Iowa teachers. So if this provision, the high-cost plan tax, were 
to drop out of the Reid bill for one reason or another--and this bill 
is still being written in secret or at least changes in this 2,074-page 
bill are being written in secret so who knows what is going to happen 
to this highly controversial thing--if it is taken out, some Members 
may feel they have successfully shielded the middle class from a tax 
increase. Unfortunately, for those Members who may be hopeful of this, 
lesser known tax provisions that are likely to stay in the changes that 
come through the Democratic health care reform product would still 
raise taxes on the middle class.
  Again, don't take my word for it. The Joint Committee on Taxation 
tells us so. Specifically, that committee sent a letter to Senator 
Crapo stating that tax provisions such as the cap on flexible savings 
accounts, the elimination of tax reimbursements for over-the-counter 
medicines and, most importantly, the individual mandate excise tax 
penalty will increase taxes on people making less than $250,000. That 
happens to be middle-class individual, middle-class families, and 
middle-class single parents.
  I ask unanimous consent to have printed in the Record that letter.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                    Congress of the United States,


                                  Joint Committee on Taxation,

                                 Washington, DC, December 9, 2009.
     Hon. Mike Crapo,
     U.S. Senate,
     Washington, DC.
       Dear Senator Crapo: This letter is in response to your 
     request of December 8, 2009, for information regarding the 
     ``Patient Protection and Affordable Care Act,'' as introduced 
     by Senator Reid. In particular, you requested that we provide 
     you with information on the provisions in the bill that would 
     increase tax liability for taxpayers with adjusted gross 
     income (``AGI'') under $200,000 ($250,000 in the case of a 
     joint return).
       In previous correspondence with you, we provided a 
     distributional analysis of the bill. In estimating the 
     distributional effects of the bill, we distributed items that 
     have economic incidence on individuals, including some items 
     that do not have statutory incidence. We are enclosing a copy 
     of that distributional analysis for reference. Included in 
     the distribution table are the following items that would 
     have statutory incidence as well as economic incidence on 
     individuals and are likely to increase tax liabilities for 
     some taxpayers with AGI below $200,000 ($250,000 in the case 
     of a joint return):
       1. Raise the 7.5 percent AGI floor on medical expenses 
     deduction to 10 percent; and

[[Page 31500]]


       2. Additional 0.5 percent hospital insurance tax on wages 
     in excess of $200,000 ($250,000 joint).
       You asked us to enumerate items that we have not previously 
     distributed and that we believe could affect the tax 
     liability of taxpayers with AGI below $200,000 ($250,000 in 
     the case of a joint return). Below is a list of the 
     provisions that we have not previously distributed and that 
     have statutory incidence on individuals, with some of those 
     individuals likely to have income below your threshold:
       1. Conform definition of medical expenses for health 
     savings accounts, Archer MSAs, health flexible spending 
     arrangements, and health reimbursement arrangements;
       2. Increase the penalty for nonqualified health savings 
     account distributions to 20 percent;
       3. Limit health flexible spending arrangements in cafeteria 
     plans to $2,500;
       4. Impose a five-percent excise tax on cosmetic surgery and 
     similar procedures; and
       5. Impose an individual mandate penalty.
       I hope this information is helpful to you. If we can be of 
     further assistance in this matter, please let me know.
           Sincerely,
                                               Thomas A. Barthold.
       Enclosure.

[[Page 31501]]

     
     

[[Page 31502]]



[[Page 31503]]

  Mr. GRASSLEY. In closing, let me turn to one more chart the Joint Tax 
Committee has provided. This chart shows the effect on the medical 
expense deduction limitation. This tax increase is just one of the many 
tax increases likely to stay in the new Democratic proposal. On this 
chart, which is for the year 2019, because that is when this bill is 
fully implemented, we see positive dollar figures. I have highlighted 
these dollar figures in yellow. For those who may not be able to see, I 
will reiterate that this chart only has positive dollar figures on it. 
But remember, as I explained yesterday, when we see positive dollar 
figures from the Joint Committee on Taxation, that committee is telling 
us that taxes for these people are going to go up. That means for all 
of the tax returns listed on this chart, taxes will be going up for 
each. And this tax increase, the medical expense deduction limitation, 
reaches as low as someone making $10,000 a year.
  Maybe some of these low-income individuals and families who will see 
a tax increase under this provision will receive a subsidy for health 
insurance. These people may be able to offset this new tax liability. 
But you can bet your bottom dollar that a large portion of the middle-
income individuals and families are not receiving a subsidy. This means 
that this tax liability highlighted in yellow cannot be offset by the 
government benefit.
  My Democratic friends cannot escape that fact. Even if my friends 
drop some of the tax provisions in the current Reid bill, many tax 
provisions will most likely remain. And those tax provisions will 
increase taxes on middle-class Americans. This not only breaks 
President Obama's pledge, but it will arbitrarily burden middle-class 
Americans for years to come.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Udall of Colorado). The Senator from New 
Jersey.
  Mr. MENENDEZ. What is the pending business before the Senate?
  The PRESIDING OFFICER. The conference report to accompany H.R. 3288.
  Mr. MENENDEZ. I thank the Chair.
  I rise about a program funded in that conference report. It is a 
program that we put under the framework of Cuba broadcasting. It is 
surrogate broadcasting into a closed society, a society for which the 
State controls all information or attempts to control all information 
to its 11 million citizens. It is a part of a long tradition of the 
United States with the Voice of America type of broadcasting, the 
effort to try to bring a free flow of information into countries in the 
world which are governed by despotic rulers. We did this successfully 
in the former Soviet Union. We did it successfully in Eastern Europe 
and during the changes in the Czech Republic, then Czechoslovakia, 
Poland, the Solidarity movement, and many others. We have been proud of 
that history of bringing the free flow of information. We now try to 
use it in different parts of the world based on the new challenges we 
have.
  One of those places in the world in which we do this surrogate 
broadcasting is into the island of Cuba, because it has a repressive 
regime that will not allow the free flow of information to go to its 
people. We have a program called Radio and Television Marti. Marti is 
sort of like the George Washington of Cuba. It is named after him.
  In 1983, Congress passed the Radio Broadcasting to Cuba Act to 
provide the people of Cuba, through Radio Marti, with information the 
Cuban Government would try to censor and keep from them. Subsequently 
in 1990, Congress authorized U.S. television broadcasting to Cuba 
through Radio and Television Marti to support the right of the Cuban 
people to receive information and ideas they would not normally 
receive. It opened radio and television broadcasting to Cuba, provided 
a consistently reliable and authoritative source of accurate, 
objective, and comprehensive news commentary and other information 
about events in Cuba and elsewhere. It did so to promote the cause of 
freedom inside of Cuba.
  We know there is a long history of repressive regimes trying to block 
our surrogate broadcasting around the world. They just don't simply sit 
back and say: Send it all in. Let me accept whatever it is you are 
sending in. That is not their effort. Their effort is to block. And our 
difficulty with broadcasting has never been a justification for cutting 
funding for these programs. We have never submitted to the proposition 
that when a regime tries to block our surrogate broadcasting--whether 
it was Voice of America, Radio Free Europe, all of those efforts, there 
was always blocking taking place--that that is a cause or justification 
for cutting funding. It should not be a different standard now.
  I ask, when it comes to Cuba broadcasting, why the double standard? 
In fact, especially now when change is coming to Cuba, it is in our 
interest to have the capacity to broadcast information to the Cuban 
people.
  I want to show one of the charts that may be a little difficult back 
at home, but these are actual photographs which came from a January 
2009 Government Accountability Office report which were provided by an 
organization that reports on Cuban affairs. It depicts evidence of 
Cubans' ability to watch Television Marti despite Cuban jamming 
efforts. These pictures were taken from inside of Cuba. They may not be 
the best picture quality, although I doubt they have digital television 
inside of Cuba. But nonetheless, they have the ability to see it.
  There are other pictures of Cubans. Here is a picture of a group of 
individuals who, in fact, are part of an effort to create a library 
system, something as fundamental in the United States as a free public 
library. There isn't that in Cuba, at least not a free public library. 
They control what books might be found there.
  So these groups try to create information. One of the things they do 
is, again, to be able to have access--as shown in this picture. This is 
a panel that is talking on Television Marti. Here, in this picture, is 
a young child watching a Marti program inside of Cuba. You can see the 
logo here of Marti TV.
  As shown in this picture, this was a special that was broadcast into 
Cuba and was seen in Cuba on the Reverend Dr. Martin Luther King on the 
whole issue of peaceful, nonviolent change--as a message to the Cuban 
people that, in fact, these things could be achieved.
  Now, you can see at the bottom of these pictures--it is a little hard 
to see--but here is the Marti logo that is seen on the bottom right-
hand corner on several of these photographs.
  This came from that Government Accountability Office report. A 
January 2009 report by the Government Accountability Office noted the 
following:
  The Broadcasting Board of Governors--which is the oversight we have 
as the Federal Government--and the Office of Cuba Broadcasting and the 
U.S. Interests Section in Havana--which, in essence, is, we do not have 
an Embassy there because we do not have relations, but we have an 
Interests Section there--that Cuba officials emphasized that they face 
significant challenges in conducting valid audience research due to the 
closed nature of Cuban society.
  U.S. government officials stationed in Havana are prohibited by the 
Castro regime from traveling outside of Havana.
  We know it is difficult to travel to Cuba for the purpose of 
conducting audience research. We know the threat of Cuban Government 
surveillance and reprisals for interviewers and respondents raises 
concerns about respondents' willingness to answer sensitive questions 
frankly.
  In this January 2009 Government Accountability Report, U.S. officials 
indicated that research on Radio and TV Marti's audience size faces 
significant limitations. For example, none of the data is 
representative of the entire Cuban population. Telephone surveys are 
the only random data collection effort in Cuba, but it might not be 
representative of Cuba's media habits for several reasons. But here are 
two of the main ones.
  First, only adults in homes with published telephone numbers are 
surveyed. According to Broadcasting Board of Governors documents, 
approximately

[[Page 31504]]

17 percent of Cuban adults live in households with published household 
numbers. That means that 83 percent of the population does not have a 
published telephone number.
  Second, the Board of Governors and the Office of Cuba Broadcasting 
officials noted that because individuals in Cuba are discouraged or 
prohibited by their government from listening to and watching U.S. 
international broadcasts, they might be fearful of responding to media 
surveys and disclosing their media habits.
  If I am told that it is illegal for me simply to watch the 
programming of some international organization, and that I can go to 
jail for listening to that programming, then ultimately--then 
ultimately--am I going to be truthful to some telephone survey about: 
Did I watch TV Marti? Did I listen to Radio Marti?
  Mr. President, I know about this personally. Years ago, when I was in 
the House of Representatives, while I had an aunt who was still alive 
at the time, who I had asked never to acknowledge me as her nephew--
which she agreed to--in my second term, however, she was listening to 
me on Radio Marti, and in a moment of pride, she said: ``Oh, that 
Menendez is my nephew.''
  Unfortunately, she said it in front of some visitors who she thought 
were her friends. One of them was part of El Comite de Defensa de la 
Revolucion, which means ``The Committee to Defend the Revolution,'' a 
block watch organization in every city, in every village, in every 
hamlet inside Cuba, whose only job is to go and spy on their neighbors 
and tell the state security who speaks ill or does something against 
the regime.
  Unfortunately, for that simple act of speaking out, saying to a 
friend: ``Oh, that Menendez is my nephew,'' my aunt suffered serious 
consequences.
  So the audience size might very well be larger than the survey 
results would indicate because people are fearful to say: Yes, I am 
listening to Radio and Television Marti, because I cannot do that and 
not face the consequences of a regime that would arrest me.
  Radio and TV Marti have a larger audience in Cuba. Why do I say that? 
Because a 2007 survey that the Office of Cuba Broadcasting 
commissioned, intended to obtain information on programming preferences 
and media habits, also contained data on Radio and TV Marti's audience 
size.
  While the survey was not intended to measure listening rates or 
project audience size, this nonrandom survey of 382 Cubans, who had 
recently arrived in the United States--so now they were free to say 
what they actually did back at home because they were not subject to 
being arrested simply for listening to Radio and Television Marti--
found that 45 percent of all of those respondents reported listening to 
Radio Marti and that over 21 percent reported watching TV Marti within 
the last 6 months before leaving Cuba.
  So I rise because I want to bring this data, this information, this 
perspective to the debate.
  I am happy to see the very deep cuts that were made to the Office of 
Cuba Broadcasting that contains both Radio and Television Marti have 
largely been restored. That is one of the reasons I felt willing to 
vote to proceed with the omnibus bill.
  One of the body's greatest strengths is the ability to freely debate 
issues in an open format, issues on which, in the end, we might 
completely disagree, but issues that need to be brought into clear 
focus for the American people.
  However, when I see my colleagues drawing conclusions on their own, 
without reasonable data to support those conclusions, I feel compelled 
to come and present an alternative perspective of the facts.
  Why is this important to us. The United States is a beacon of light 
of freedom and democracy around the world. The promotion of democracy 
and human rights has always been one of the pillars of our foreign 
policy.
  Yesterday was Human Rights Day, which is the day that marks the 
anniversary of the United Nations Assembly's adoption of the Universal 
Declaration of Human Rights in 1948. It is recognized every year on 
December 10.
  Yesterday, in the midst of the recognition of this day in Havana, we 
saw the brutal Castro regime cracking down on people just because they 
were trying to exercise their right for peaceful demonstration. We saw 
people beaten, arrested, and forcibly detained.
  There is a group of ladies; they call themselves the Ladies in White. 
They are mothers and sisters and friends of jailed dissidents inside of 
Cuba. So these are people of imprisoned family members--their son or 
their daughter, their brother or sister, their friends--and the only 
reason those people are in jail is because they have pursued peaceful 
means to try to create change inside of their own country. They may 
have said something. They may have worn a white band that says 
``cambio,'' which means ``change.'' They may have simply uttered the 
fact that: What we need is change inside of Cuba.
  So these Ladies in White--they dress fully in white so that, in fact, 
it is a form of being noticed, but, again, a peaceful form--held long-
stem flowers and miniature Cuban flags. They were attacked by hundreds 
of angry pro-government demonstrators who sought to drown out their 
chants of ``freedom'' by yelling ``this street belongs to Fidel.''
  Now, in Cuba, these groups are not spontaneous. It is not the 
citizenry. It is something called ``rapid response brigades.'' They are 
state security dressed as civilians, whose purpose is to make it seem 
that the populous is against the human rights activists and political 
dissidents. But, ultimately, they are state security agents who act in 
a way to make it seem quite different. But they are thugs.
  Mr. President, the reason the regime organizes protests in this way 
is so if you orchestrate a protest, where it looks like its citizens 
are protesting against each other, then the regime can deny, in fact, 
any role in the event.
  However, we know very well the role the Castro regime plays in these 
demonstrations. Especially in light of the events of yesterday and 
today, we know the Castro regime is a brutal totalitarian dictatorship 
that continues to violate the most basic human rights, continues to 
crush debate and crush dialog.
  Yesterday, I came to the floor as part of my concerns and I spoke 
about this gentleman and his wife, as shown in this picture. I spoke 
about Jorge Luis Garcia Perez ``Antunez.'' This is a gentleman who 
said, while standing in a plaza in his hometown, which is in the center 
of Havana--it is not where the tourists go, not on the beaches of 
Havana; it is in the heart of Havana--he said what we need is the type 
of change we saw in Eastern Europe.
  For that simple statement, he was thrown into jail for 17 years--17 
years. He came out a couple years ago, but he has not changed. He has 
not changed his views or his effort to create human rights.
  He issued a public letter that I read yesterday, an English 
translation, of a public letter he wrote to the present dictator, Raul 
Castro, the brother of Fidel Castro, and he said many things. I am not 
going to read the whole letter again, but he said things like: Let me 
ask you a few questions that I think are important.

       With what right do the authorities, without a prior crime 
     being committed, detain and impede the free movement of their 
     citizens in violation of a universally recognized right?

  The very rights that are being observed in that international Human 
Rights Day of the Universal Declaration of Human Rights.

       What feelings could move a man like Captain Idel Gonzalez 
     Morfi to beat my wife, a defenseless woman so brutally 
     causing lasting effects to her bones for the sole act of 
     arriving at a radio station to denounce with evidence the 
     torture that her brother--

  Her brother; this is his wife shown in the picture--

     received in a Cuban prison.

  I spoke about him yesterday and his letter. What happened today, Mr. 
President?
  Today, the day after Human Rights Day, and the day after I read his 
letter into the Record, and 2 days after he presented that letter to 
Raul Castro, he was arrested again by the regime and arbitrarily 
detained with his wife and another activist.

[[Page 31505]]

  What is his crime? That I read a letter in the U.S. Senate about his 
calls for freedom and democracy? And the day after the recognition of 
international human rights, he gets arrested today, and his wife gets 
arrested today--or detained today. I am not sure. He got arrested for 
sure.
  TV Marti is one of the many efforts the U.S. Government rightly 
invests in to try to reach the Cuban people with information, to try to 
reach the people who were beaten today and yesterday and, for decades, 
simply for trying to demonstrate peacefully, to speak their mind, to 
walk in peace and in remembrance of their loved ones they lost under 
the clenched fists of this regime.
  I feel badly that the day after I spoke about Mr. Antunez, he ends up 
in jail. So we need to have a spotlight, just as we did for Aleksandr 
Solzhenitsyn in the Soviet Union; just as we did for Vaclav Havel as he 
was trying to create change for the Czech Republic; just as we did with 
Lech Walesa when he was having the Solidarnosc Movement inside Poland.
  For some reason, I can't get anybody to come to this floor and talk 
about the human rights violations inside Cuba. I hear a lot about: 
Let's trade with Cuba, let's do business with Cuba, let's travel to 
Cuba but, God, I never hear anyone talking about these human rights 
activists like the Lech Walesas, the Vaclav Havels, the Aleksandr 
Solzhenitsyns of that other time.
  This man got arrested today simply because yesterday we made his 
letter public. That is the Castro regime that I know, not the 
romanticism of what some people have about what goes on at that island.
  So I am pleased the Office of Cuba Broadcasting has made efforts over 
the last year to reevaluate the programs they are carrying out and 
carefully consider creative ways to reach the Cuban people. They have 
done this with Television Marti. They will continue to do this with 
other programs. I would expect nothing less. The kind of evaluation 
should continue. We should constantly strive to tailor our programs so 
our investments are reaching those who truly need our help, investments 
that are advancing U.S. foreign policy interests, the national 
interests of the United States, and the national security interests of 
the United States.
  I have a declaration that came out of Cuba of over 100 human rights 
activists inside Cuba who are in support of the efforts of the United 
States as it relates to the surrogate broadcasting that goes into Cuba 
from Radio and Television Marti. This broadcasting provides some free 
flow of information of what is happening in the rest of the world, as 
well as what is happening inside Cuba. Because that is part of what we 
help here, to let those who otherwise would not know because of a 
closed society and a dictatorship that rules with an iron fist what is 
happening even inside their own country, what is happening to people 
such as Mr. Antunez, what is happening to the ladies in white who are 
protesting peacefully about their loved ones in jail.
  With that letter of over 100 human rights activists is the 
recognition that we will not let up for Mr. Antunez and the recognition 
that there are voices who will continue to speak out for the human 
rights.
  The last point I wish to make, imagine if you were sitting in a gulag 
somewhere, if you were beaten simply because you had a few words to say 
about creating change peacefully in your own country; imagine if you 
could be swept away by security police and taken to some jail and maybe 
not seen for years after that. Would you not want someone somewhere in 
the world to be standing and speaking for you? I would, and that is 
what I try to do on this floor.
  With that, I yield the floor.
  Mr. FEINGOLD. Mr. President, the massive, unamendable spending bill 
before the Senate includes three bills that the Senate never had a 
chance to consider, and is chock-full of earmarks. At a time of record 
budget deficits, we should be showing our constituents that we are 
serious about fiscal responsibility. Instead of controlling spending, 
this bill represents business as usual in Congress.
  Mr. DeMINT. Mr. President, I rise today to address a question 
submitted to me from the good Senator from Illinois as to whether the 
DC Opportunity Scholarship Program will in fact end after this year. In 
order to respond to my colleague, I would like to highlight a 
particular section of the Financial Services and General Government 
Appropriations Act of 2010 that funds the District of Columbia's 
budget.
  In title IV, which explains how the District of Columbia is funded, 
it states that $13.2 million will indeed be provided for opportunity 
scholarships for existing students in the DC Opportunity Scholarship 
Program. However, the very next line clearly states that the funds are 
to ``remain available until expended,'' which means that the program 
will eventually be phased out and terminated once the funding for 
current students is exhausted. Students in the program will slowly be 
phased out over time, unable to avail themselves of future educational 
opportunities currently given to them through this program.
  The DC Opportunity Scholarship Program, which has the overwhelming 
support of DC residents, parents, Mayor Adrian Fenty, Chancellor 
Michelle Rhee, former Mayor Anthony Williams, and a majority of the DC 
City Council, has now been mandated a slow death by House and Senate 
appropriators. This scholarship program, which gives students of 
Washington, DC's poorest families a chance at a quality education, has 
now effectively been terminated since there is only funding available 
for existing scholarships and existing students, and not for future 
scholarships and future students.
  By funding this program in such a manner in the omnibus, Congress is 
ultimately signaling the beginning of the end for this scholarship 
program. By disallowing future students to take part, the size of the 
program will shrink year after year, and will deny entry to siblings of 
existing participants--punishing many who have been waiting in line for 
this tremendous opportunity. Additionally, the federal evaluation of 
this program will be compromised as the numbers of participants 
diminishes, making it difficult for administrators to evaluate the 
effectiveness of the program.
  The fact that this administration continues to claim that the DC 
Opportunity Scholarship Program is not being terminated is yet another 
act of deception on their part to the American people. The President, 
who himself is a recipient of a K-12 educational scholarship, has 
refused to stand up for children in our Nation's Capital and fight for 
the same educational opportunities afforded to him and his family--a 
right he exercises now as he practices school choice with his own 
children.
  Mr. JOHNSON. Mr. President, working families are struggling to pay 
the costs of health care in this country. As the debate over health 
care reform progresses, we must keep in mind that Americans need and 
deserve quality, affordable health care. All too often families learn 
that the plan they could afford was not adequate when they needed it 
most.
  I recently heard from Cory and Erin in Lake Herman, SD. They shared 
the story of their daughter's birth and how they discovered the 
inadequacies of their seemingly affordable health insurance policy. 
When Cory and Erin's daughter Katarzyna was born in 2006, Cory was 
working as an English and math teacher. At the time, the family health 
insurance plan available to him through the school district cost nearly 
50 percent of his monthly salary. Cory chose instead to buy a 
catastrophic, high-deductible policy on the individual market for just 
over 10 percent of his income. Cory and Erin were healthy adults and 
had no major medical issues until the birth of their daughter. Their 
insurance policy did not cover prenatal or maternity care.
  Wanting to be smart health care consumers, Cory and Erin shopped 
around for the best and most affordable hospital to welcome the birth 
of their first child and decided on their nearby community hospitial. 
However, when Katarzyna was born, she had a lung infection that 
required immediate action. Exhausted and worried for the

[[Page 31506]]

health of their new baby girl, Cory and Erin had only moments to decide 
whether to airlift Katarzyna to a hospital with specialized care. At 
that moment, the last thing they could think about was the cost.
  Katarzyna spent 3 nights in the Natal Intensive Care Unit of one of 
the State's largest hospitals, where she received top-notch care and 
survived the near-fatal pneumonia. The total cost came to $24,000, of 
which Cory and Erin's high-deductible insurance policy covered only 
$12,000. For the next several months, the family faced not only the 
challenges of a new baby but significant debt and a drawn-out struggle 
with their insurance company. They found a mistake with nearly every 
bill they received. Since this experience, Cory and Erin have purchased 
a new policy but worry that the insurance they can afford is not 
adequate in the face of another unforeseen medical emergency.
  Like many Americans, Cory and Erin have health insurance. Despite 
their limited income, they took the responsibility to buy their own 
policy and tried to be smart health care consumers. Their experience, 
however, illustrates the vulnerability of Americans who purchase 
insurance on the individual market, as well as the limits to which it 
is possible for Americans to be informed health care consumers.
  The health care market does not function like other consumer markets. 
Ask your neighbor what a gallon of milk costs and they could tell you. 
Ask them how much it costs to have a baby and you would likely get a 
variety of answers, based entirely on their own experience with this 
important life event. The fact is the cost of having a baby depends. It 
depends on how much you pay for health insurance, what your insurance 
policy will cover and how much of that cost is your share. It depends 
on where you live, what complications may arise and whether the 
hospital nearby is equipped to handle an emergency.
  The Patient Protection and Affordable Care Act will guarantee 
families access to affordable health insurance and coverage for 
essential benefits, including prenatal and maternity care. New health 
insurance exchanges in every State will provide a menu of quality, 
affordable health insurance plans for the self-employed and those who 
can't afford the coverage offered by their employer. Families who need 
assistance will be eligible for tax credits to make the plan of their 
choice affordable. Most importantly, families like Cory, Erin and 
Katarzyna's will have health insurance that covers life's essential 
needs. The birth of a child should not be a time to worry about what 
your health insurance will pay for or whether you can afford the 
treatment you need. Health care reform will give American families one 
less thing to worry about with the security of quality, affordable 
health care.
  Mr. MENENDEZ. Mr. President, I ask unanimous consent that after any 
leader remarks on Saturday, December 12, the Senate then resume 
consideration of the conference report to accompany H.R. 3288, and that 
at 9:30 a.m., the Senate proceed to vote on the motion to invoke 
cloture on the conference report, with the time until 9:30 a.m. equally 
divided and controlled between the leaders or their designees; further, 
that if cloture is invoked, then postcloture time continue to run 
during any recess, adjournment, or period of morning business; that on 
Sunday, December 13, all postcloture time be considered expired at 2 
p.m., and the Senate proceed to vote on the adoption of the conference 
report to accompany H.R. 3288.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.

                          ____________________