[Congressional Record (Bound Edition), Volume 155 (2009), Part 24]
[Senate]
[Pages 32983-33015]
[From the U.S. Government Publishing Office, www.gpo.gov]




             SERVICE MEMBERS HOME OWNERSHIP TAX ACT OF 2009

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of H.R. 3590, which the clerk will 
report.
  The legislative clerk read as follows:

       A bill (H.R. 3590) to amend the Internal Revenue Code of 
     1986 to modify the first-time homebuyers credit in the case 
     of members of the Armed Forces and certain other Federal 
     employees, and for other purposes.

  Pending:

       Reid amendment No. 2786, in the nature of a substitute.
       Reid amendment No. 3276 (to amendment No. 2786), of a 
     perfecting nature.
       Reid amendment No. 3277 (to amendment No. 3276), to change 
     the enactment date.
       Reid amendment No. 3278 (to the language proposed to be 
     stricken by amendment No. 2786), to change the enactment 
     date.
       Reid amendment No. 3279 (to amendment No. 3278), to change 
     the enactment date.

  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until expiration of cloture on amendment No. 3276 shall be equally 
divided and controlled between the two leaders or their designees.
  The Senator from Texas is recognized.
  Mrs. HUTCHISON. Mr. President, I will be taking the leader time on 
our side. How much time is there?
  The ACTING PRESIDENT pro tempore. Six minutes.
  Mrs. HUTCHISON. I thank the Chair.
  Mr. President, today we are taking another step toward passing a bill 
that has not seen the light of day for very long. It is a bill that is 
going to change health care policy in this country forever if it is 
finally coming to enactment. It will take effect in 2014. The reason we 
are talking about this bill and trying to let people know what is in it 
is because we hope there is still a chance this bill will not become 
law.
  This bill was drafted behind closed doors without Republican input. 
The votes are 60 to 40. Sixty Democrats and 40 Republicans make up the 
Senate, and that is what is providing cloture on this bill.
  This bill increases taxes by over $\1/2\ trillion over a 10-year 
period--that is over $500 billion--and $\1/2\ trillion in cuts to 
Medicare. This is a time when we should not be increasing taxes. Small 
businesses are burdened already. This adds to their burden. Families 
are trying to make ends meet. They are trying to pay their mortgage so 
they will not be thrown out of their homes. They are trying to pay 
their bills. They are trying to find jobs in the highest level of 
unemployment in our country since World War II, and we are going to 
heap taxes and burdens on them starting as early as next year--in 2 
weeks. This is not a time to raise taxes. We don't need a tax burden 
increase, we don't need Medicare cuts, and we do need health care 
reform that would lower the cost of health care. This is going to do 
the opposite. We are going to increase taxes and lower the service for 
Medicare in our country.
  I remember reading some of the history and the anecdotes about the 
vote on the constitutional amendment to

[[Page 32984]]

allow women the right to vote. There was a Congressman from Tennessee 
who was wavering. He said what finally made up his mind--and he was the 
Congressman who made the difference--was that his mother wrote him a 
letter and said: Vote for ratification.
  What is going to be said about this bill that changes health care 
policy for every American? What is going to be written about how the 
votes were brought together to have a bill that would tax our American 
people $\1/2\ trillion and take Medicare as the pay-for for this 
program is that there will be essential protection for seniors in 
Florida and New York to prevent them from suffering the cuts to 
Medicare Advantage but no other State. Insurance companies in only two 
States, Nebraska and Michigan, are exempt from the taxes that will take 
effect on insurance companies, raising the premiums for every insured 
person in this country. Changes to the language restricting physician 
ownership of medical facilities appear only to benefit a single medical 
center in Nebraska, and additional Federal payments to Louisiana, 
Massachusetts, Nebraska, and Vermont to expand Medicaid will cost 
taxpayers in every other State in America over $1 billion. This is part 
of the deal that was brokered to make sure 60 votes would pass this 
bill. The people of Nebraska will never pay a dime for Medicaid 
increases, whereas my State of Texas will carry a new burden of over $9 
billion, and every other State in America will eventually take the 
burden of the Medicaid increases but not Nebraska, not ever. Even the 
Governor of Nebraska has said he does not think that is fair.
  So I think we can do better. We can do better in this country than 
having the history of the overhaul of our health care system that is 
going to affect the quality of life and the tax burden on every 
American. I think we should have a better history.
  So I am asking my colleagues to think about this vote. We could 
change one vote, one person who says: I don't want the Senate to do 
something this way. I want the Senate to rise to the level that we know 
has been the tradition of this Senate for all of the years of our 
Republic, and that is that we would have an open, transparent process; 
that we would have bipartisan input; that a Republican amendment--one 
might have passed; that what we offer is what we promised the American 
people: lower costs in health care----
  The ACTING PRESIDENT pro tempore. The Senator's time has expired.
  Mrs. HUTCHISON.--and a way for people to have more affordable access.
  We still have a chance. That is why we are here today. And I hope we 
can turn away from this process and share the light of day with our 
colleagues and with America.
  Thank you, Mr. President. I yield the floor.
  The ACTING PRESIDENT pro tempore. The deputy majority leader is 
recognized.
  Mr. DURBIN. Mr. President, a famous Washington figure once wrote a 
book entitled ``Slouching Towards Gomorrah.'' If you were to describe 
what is happening in the Senate procedurally, we would call it lurching 
toward cloture. The cloture rules in the Senate require 30 hours 
between votes, and as a consequence we find ourselves in the early 
morning hours trying to finish this bill before the Christmas holiday, 
and it calls for the Senate to convene at extraordinary times, as we 
did this morning, but it is for a good purpose.
  This is to bring to a close a debate which has gone on for more than 
3 weeks. You have noticed more and more Republican Senators now coming 
to the floor with ideas and amendments, and the obvious question we 
have to ask is, Where have you been? For the first 21 days of debate on 
this bill, the Republicans offered four substantive amendments. They 
offered six motions to take the bill off the floor, send it back to 
committee, and quit the deliberations, but only four substantive 
amendments. Now they say they are just brimming with all of these 
notions and ideas that can improve this bill. They had the chance. In 
fact, they had more than a chance. They were invited into this process 
early on.
  I would say to the Senator from Texas, she knows that 3 of her 
colleagues met over 61 times with their Democratic counterparts trying 
to come up with a bipartisan approach, and they couldn't. We also know 
that in the Health, Education, Labor, and Pensions Committee, the 
Republicans came and engaged in more than 50 days of deliberations in 
that committee and offered and had accepted more than 150 Republican 
amendments to this bill. We were not excluding Republicans from the 
process; they excluded themselves. When it came time for a final vote 
in the Health, Education, Labor, and Pensions Committee, not a single 
Republican Senator would vote for it. Senator Coburn of Oklahoma 
offered and had accepted 38 amendments to this bill and wouldn't vote 
for it. Other Senators were the same. They had their chance, and they 
didn't use their chance. In fact, the record shows now that after 
almost a year of deliberations, we have one Republican Congressman from 
New Orleans, LA, who voted for the House health care reform proposal, 
and one Republican Senator, Ms. Snowe of Maine, who voted for the 
Finance Committee proposal. To say the Republicans have been actively 
engaged in this process is a misstatement.
  Here is why we have to go forward, even if we have to meet at 7 in 
the morning or even if we have to meet this Christmas week. When this 
bill is passed, we know from the CBO several things will occur. First, 
30 million Americans who currently don't have health insurance will 
have the peace of mind of knowing they have health insurance. Secondly, 
we know 94 percent of the American people will finally be insured--the 
highest percentage in the history of the United States. We know the 
rates for health insurance premiums will start to come down, as they 
must, so businesses and individuals can afford it. We know that, 
finally, consumers across America will be able to stand and fight back 
when health insurance companies turn them down in their moments of 
need.
  We say in this new amendment we are going to say to health insurance 
companies: You cannot deny coverage to anybody under 18, any child, for 
a preexisting condition. That is going to bring peace of mind to 
millions of American families who understand that without this they 
couldn't get the health insurance they absolutely need for their 
children.
  Let me address quickly this notion that this is somehow a mystery 
amendment. This amendment has now been before the American public for 
at least 70 hours on the Internet. The bill itself has been before the 
American public now for more than 3 weeks on the Internet. You can find 
it not only on the Democratic Senate Web site, you can find it on the 
Republican Web site. They put our bill on their Web site because they 
don't have a comprehensive health care reform bill. They put ours up 
for people to read. There has been ample opportunity for people to 
read, dissect, and to be critical of it and raise questions about it. 
Before our final vote, America will have had its chance to read and 
understand the import of this effort and this effort is substantial.
  This is something we have built up to for decades. To finally put the 
Senate on record as to whether we are endorsing the current health care 
system in America that is unaffordable, discriminates against people, 
and leaves so many behind, a system that currently rations care and 
says to 50 million Americans you have no coverage, and to millions of 
others that you have coverage that will not be there when you need it--
we have to bring that to an end.
  As Senator Harkin said the other day in closing the debate, this is a 
real debate over whether health care will be a right or a privilege in 
America. If you believe it is a privilege for those who are wealthy and 
well off, then, of course, you will vote against this. If you believe 
it is a right that should be extended to more Americans, I hope you 
will join us in supporting it.
  I yield the floor.
  Mr. REID. Mr. President, has all time expired?

[[Page 32985]]

  The ACTING PRESIDENT pro tempore. Forty seconds remain.
  Mr. REID. I yield back that time.
  The ACTING PRESIDENT pro tempore. The time is yielded back.
  Mr. REID. Mr. President, I move to table amendment No. 3278, and I 
ask for the yeas and nays.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second? There 
is a sufficient second.
  The question is on agreeing to the amendment.
  The clerk will call the roll.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Oklahoma (Mr. Inhofe).
  The PRESIDING OFFICER (Mr. Whitehouse). Are there any other Senators 
in the Chamber desiring to vote?
  The resulted was announced--yeas 60, nays 39, as follows:

                      [Rollcall Vote No. 386 Leg.]

                                YEAS--60

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCaskill
     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--39

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Isakson
     Johanns
     Kyl
     LeMieux
     Lugar
     McCain
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Thune
     Vitter
     Voinovich
     Wicker

                             NOT VOTING--1

       
     Inhofe
       
  The motion was agreed to.
  The PRESIDING OFFICER. The majority leader.


                      Amendment No. 3277 Withdrawn

  Mr. REID. Mr. President, it is my understanding that the second-
degree amendment has been withdrawn; is that right?
  The PRESIDING OFFICER. Under previous order, amendment No. 3277 is 
withdrawn.


                           Amendment No. 3276

  Mr. REID. Mr. President, I ask for the yeas and nays on amendment No. 
3276.
  The PRESIDING OFFICER. The yeas and nays were previously ordered.
  The question is on agreeing to amendment No. 3276.
  The clerk will call the roll.
  The assistant legislative clerk called the role.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Oklahoma (Mr. Inhofe).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 60, nays 39, as follows:

                      [Rollcall Vote No. 387 Leg.]

                                YEAS--60

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCaskill
     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--39

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Isakson
     Johanns
     Kyl
     LeMieux
     Lugar
     McCain
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Thune
     Vitter
     Voinovich
     Wicker

                             NOT VOTING--1

       
     Inhofe
       
  The amendment (No. 3276) was agreed to.


                             Cloture Motion

  The PRESIDING OFFICER. Pursuant to rule XXII, the Chair lays before 
the Senate the following cloture motion which the clerk will report.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the Reid substitute 
     amendment No. 2786 to H.R. 3590, the Service Members Home 
     Ownership Tax Act of 2009.
         Christopher J. Dodd, Richard Durbin, Paul G. Kirk, Jr., 
           Max Baucus, Claire McCaskill, Jon Tester, Maria 
           Cantwell, Barbara A. Mikulski, Mark Udall, Sherrod 
           Brown, Arlen Specter, Bill Nelson, Mark Begich, Sheldon 
           Whitehouse, Roland W. Burris, Kirsten E. Gillibrand, 
           Ron Wyden.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on 
amendment No. 2786, as amended, offered by the Senator from Nevada, Mr. 
Reid, to H.R. 3590, the Service Members Home Ownership Tax Act of 2009, 
shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Oklahoma (Mr. Inhofe).
  The PRESIDING OFFICER (Mr. Durbin). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 60, nays 39, as follows:

                      [Rollcall Vote No. 388 Leg.]

                                YEAS--60

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCaskill
     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--39

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Isakson
     Johanns
     Kyl
     LeMieux
     Lugar
     McCain
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Thune
     Vitter
     Voinovich
     Wicker

                             NOT VOTING--1

       
     Inhofe
       
  The PRESIDING OFFICER. On this vote the ayes are 60, the nays are 39. 
Three-fifths of the Senators duly chosen and sworn having voted in the 
affirmative, the motion is agreed to.
  The majority leader is recognized.


                           Amendment No. 2878

  Mr. REID. Mr. President, I ask the clerk to call and report amendment 
No. 2878.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Nevada [Mr. Reid], for Mr. Cardin, 
     proposes an amendment No. 2878.

  Mr. REID. I ask unanimous consent the reading of the amendment be 
waived.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in the Record of Thursday, December 3, 2009 
under ``Text of Amendments.'')
  Mr. REID. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?

[[Page 32986]]

  There is a sufficient second.
  The yeas and nays were ordered.


                Amendment No. 3292 to Amendment No. 2878

  Mr. REID. I now ask the clerk to report amendment No. 3292.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Nevada [Mr. Reid] proposes an amendment 
     numbered 3292 to amendment No. 2878.

  The amendment is as follows:

                (Purpose: To change the effective date)

       At the end of the amendment, insert the following:
       This section shall become effective 5 days after enactment.

  Mr. REID. Mr. President, it is my understanding--Senator McConnell 
and I have agreed--I should not say I understand--we have agreed that 
the time until 9:30 will be equally divided and controlled between the 
two leaders, and at 9:30 we will go, as we have worked in recent days, 
into having blocks of time until our caucuses, until 12:30.
  The PRESIDING OFFICER. The majority leader is correct. Under the 
previous order, until 9:30 the time is equally divided and controlled 
between the leaders or their designees, and under the previous order 
the time until 5:30 today will be divided into 1-hour alternating 
blocks of time, the majority controlling the first block.
  Mr. REID. Mr. President, I ask everyone to acknowledge that we have 
our regular weekly caucuses at 12:30. We will come back at 2:30, and we 
will be going back to blocks of time until 5:30 this evening.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I said when the Senate opened today and I 
will say again, because of the long hours we have spent here for weeks 
now, there is a lot of tension in the Senate. Feelings are high, and 
that is fine. Everybody has very strong concerns about everything we 
have done and have to do. But I hope everyone would go back to their 
gentlemanly ways. I was trying to figure out how to say this--
gentlemanly ways. We used to say in the House gentlewomen, so I guess 
it is the same here.
  Anyway I hope everyone has--I have said to a number of people--Rodney 
King--let's all just try to get along. That is the only way; we need to 
do it. This is a very difficult time in the next day or so. Let's try 
to work through this.
  For those of the Christian faith we have the most important holiday, 
and that is Christmas.
  I would hope everyone would keep in mind that this is a time when we 
reflect on peace and the good things in life. I would hope everyone 
would kind of set aside all the personal animosity, if they have any in 
the next little bit, and focus on the holiday.
  The PRESIDING OFFICER. The minority leader.
  Mr. McCONNELL. Mr. President, let me add, to my good friend the 
majority leader, he and I have an excellent relationship. We speak a 
number of times in the course of every day and have no animosity 
whatsoever. We are working on an agreement that will give certainty to 
the way to end this session. Hopefully, the two of us together can be 
recommending something that makes sense for both sides in the not-too-
distant future.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Montana.
  Mr. BAUCUS. What is the regular order?
  The PRESIDING OFFICER. The time until 9:30 is equally divided between 
the leaders or their designees.
  The Senator from Montana.
  Mr. BAUCUS. Mr. President, it has been more than a month since the 
majority leader moved to proceed to the health care reform bill before 
us today. At long last, the Senate is now in the final throes of 
passing this historic legislation.
  From the beginning, this Senator has sought out what Abraham Lincoln 
called ``the better angels of our nature.'' That is the way this 
Senator has always sought to legislate.
  A year and a half ago, I convened a bipartisan retreat at the Library 
of Congress. Half a year ago, I convened three bipartisan roundtables 
with health care experts. Half a year ago, the Finance Committee 
conducted three bipartisan walk-throughs of the major concepts behind 
the bill before us today.
  We went the extra mile. I reached out to my good friend, the ranking 
Republican member of the Finance Committee. I reached out to the 
ranking Republican member of the HELP Committee.
  We sought to craft a bill that would appeal to the broad middle. We 
sought to craft a bill that could win the support of Republicans and 
Democrats alike.
  We met, a group of six of us, three Democrats and three Republicans. 
We met more than 30 times. We met for months, encouraged by the 
President to do so. Our group met with the President several times. The 
President encouraged us to keep pursuing our negotiations, hoping to 
reach bipartisan agreements.
  No, we did not reach a formal agreement. The leadership on the other 
side of the aisle went to great lengths to stop us from doing so.
  But even though we did not reach a formal agreement, we came very 
close to doing so. The principles that we discussed are very much the 
principles upon which the Finance Committee built its bill. The 
principles that we discussed are very much the principles reflected in 
the bill before us today. Our work began much earlier than I have 
indicated. We met all the preceding year, held about ten hearings in 
the Finance Committee working toward health care reform. We also 
finished a white paper in November 2008. I say with trepidation that 
basically that is the foundation from which almost all ideas in health 
care reform emanated. To be fair, the ideas in that paper had been 
floating around, principles from the Massachusetts health care reform, 
for example. Most policy experts and health care economists who had 
been working on reform published their ideas. We sought the best, 
compiled them, and put together that white paper published in November 
of last year.
  From the debate that the Senate has conducted this past month, you 
would not know it. During this debate, some on the other side of the 
aisle have mischaracterized the bill before us. Some on the other side 
of the aisle have set about a systematic campaign to demonize this 
bill.
  Through bare assertion alone, with the thinnest connection to fact, 
they have sought to vilify our work. If one listened to their 
assertions alone, one would not recognize the bill before us.
  And so, let me, quite simply, state the facts.
  Some on the other side of the aisle assert that this bill is a 
government takeover of health care.
  The fact is that the nonpartisan Congressional Budget Office says 
that this bill would reduce the government's fiscal role in health 
care. Just 3 days ago, CBO wrote, and I quote:

       CBO expects that the proposal would generate a reduction in 
     the federal budgetary commitment to health care during the 
     decade following the 10-year budget window.

  Some on the other side of the aisle assert that this bill would add 
to our Nation's burden of debt.
  The fact is that the nonpartisan Congressional Budget Office says 
that this bill would reduce the deficit by $132 billion in the first 10 
years and by between $650 billion and $1.3 trillion in the second 10 
years. The fact is that this is the most serious deficit reduction 
effort in more than a decade.
  Some on the other side of the aisle assert that this bill would harm 
Medicare.
  The fact is that Medicare's independent actuary says that this bill 
would extend the life of Medicare by 9 years. The fact is that this is 
the most responsible effort to shore up Medicare in more than a decade.
  Some on the other side of the aisle assert that this bill does not do 
enough to ensure the uninsured.
  The fact is that the nonpartisan Congressional Budget Office says 
that this bill would extend access to health care to 31 million 
Americans who otherwise would have to go without. The fact is that CBO 
says, and I quote:


[[Page 32987]]

       The share of legal nonelderly residents with insurance 
     coverage would rise from about 83 percent currently to about 
     94 percent.

  Nothing that Senators on the other side of the aisle have proposed 
would come close. CBO estimated that the Republican substitute offered 
in the House of Representatives would have extended coverage to just 3 
million people. The fact is that CBO says of that plan, and I quote:

       The share of legal nonelderly residents with insurance 
     coverage in 2019 would be about 83 percent, roughly in line 
     with the current share.

  I would cite the facts about the Republican substitute in the Senate. 
But the fact is that there is no Republican substitute.
  Some on the other side of the aisle assert that they simply prefer a 
more modest reform of health care.
  The fact is that the Republicans controlled the Senate from 1995 to 
2001 and from 2003 to 2006. The fact is that before they took control, 
in 1994, 36 million Americans, 15.8 percent of nonelderly Americans 
were without health insurance coverage. In the last year of their 
control, in 2006, nearly 47 million Americans, 17.8 percent of non-
elderly Americans were without health insurance coverage. The legacy of 
Republican control was 10 million more Americans uninsured.
  Some on the other side of the aisle say that we are moving too fast.
  The fact is that it was 1912, when former President Theodore 
Roosevelt first made national health insurance part of the Progressive 
Party's campaign platform. The fact is that people of good will have 
been working at this for nearly a century.
  The fact is, health care reform for America is now within reach. The 
fact is, the most serious effort to control health care costs is now 
within reach. The fact is, life-saving health care coverage for 31 
million Americans is now within reach.
  Let us, at long last, grasp that result. Let us, this time, not let 
this good thing slip through our hands. And let us, at long last, enact 
health care reform for all.
  I suggest the absence of a quorum and ask unanimous consent that the 
time be charged equally to each side.
  The PRESIDING OFFICER (Mr. Whitehouse). Without objection, it is so 
ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. HUTCHISON. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. HUTCHISON. Mr. President, are we now in a period where we go 
back and forth without limit?
  The PRESIDING OFFICER. We are.
  Mrs. HUTCHISON. Mr. President, I ask to be notified after 5 minutes, 
after which Senator Vitter is going to speak.
  The PRESIDING OFFICER. The Chair will so notify.
  Mrs. HUTCHISON. Mr. President, we have talked a lot about what is in 
this bill, the massive tax increases, the massive cuts in Medicare. But 
there is another issue I think, looking down the road, we are going to 
need to pursue. We have talked about how groundbreaking this bill is. 
In fact, the majority calls it historic, and it is historic. We believe 
it is historic in the bad precedents it is setting, both in process and 
in substance. I think some of these precedents are going to be tested 
under the Constitution of the United States.
  I wish to start by talking about a couple of those. No. 1, in the 
effort to get the last vote, clearly there were deals made. There were 
deals that affect individual States and even one that affects two 
insurance companies that will have a different treatment from all the 
other insurance companies in America. It is said there will be two 
Nebraska insurance companies that will not have to pay the tax 
increases of the insurance companies that will be levied on all the 
other health insurance companies. This is an issue that must be raised 
under the Constitution, the equal protection clause of the 
Constitution. To take a set of companies in an industry, competitors--
and we value the free market system and the free enterprise system--to 
pluck out two competitors and say: You will be treated differently 
because we need your vote to pass this bill should be tested under the 
Constitution of the United States.
  It is my hope some insurance company that has standing to bring this 
suit will be able to test this precedent. It is a very bad precedent, 
and it is certainly bad policy to start passing laws that distinguish 
some parts of an industry versus other parts of an industry that would 
be treated in a different way. I hope we will do that.
  No. 2, I believe there is a 10th amendment issue. Here is my concern. 
Many States, including my State of Texas, have self-insurance plans for 
State employees. States with large numbers of State employees find that 
self-insurance is a better way to go than private insurance programs. 
In this bill, every insurance company that plans to increase its 
premiums must get approval from the Department of Health and Human 
Services first.
  Now, my State of Texas, with its self-insurance plan, then, has to go 
to the Secretary of Health and Human Services to ask permission to 
increase the premiums on their State self-insured insurance plan. That 
is a violation of the 10th amendment, as I see it.
  I am very concerned that a State that has State employees who accept 
a self-insurance plan would then be able to be told by the Federal 
Government that they cannot increase their premiums to cover the cost 
and keep the sound system that they have in place.
  Now, other States have self-insurance plans, so I believe they would 
also be very affected by this, and I believe there will be a standing 
for a State with this type of plan to be able to challenge this part of 
this bill and, hopefully, bring it down if it is a violation of the 
10th amendment.
  I want to talk about another area that I think is a stretch in this 
bill; that is, apparently the individual mandate is being justified by 
the commerce clause of our Constitution. Now, the commerce clause 
basically says no State may impede interstate commerce. You may say, 
out in America: I don't see the connection. I am going to be mandated 
to buy health insurance or be fined if I don't because States cannot 
impede interstate commerce?
  Well, I would agree with people out there that seems like a 
disconnect because, apparently, using the commerce clause, the majority 
is saying the Federal Government has the right to manage insurance, and 
that a requirement of an individual mandate is part of the Federal 
capability to manage insurance in this country, and you cannot impede 
that right by the Federal Government because you cannot impede 
interstate commerce.
  I think this whole individual mandate issue is going to be a center 
for discussion, debate, and opposition to the bill that is clearly 
moving down a track that we are trying to stop, but that train is 
moving. I think we are going to have to talk about the individual 
mandate. People are saying to me: How can the Federal Government tell 
me I have to buy insurance? I think they have a point.
  You have to buy automobile insurance because, but that comes with the 
right to drive. So you get the right, licensed by the State, to drive 
your car, and in exchange for that a State may require that you have 
collision insurance on your automobile, and many States do. But when 
you say you have to buy an insurance policy, I think that crosses a 
line where a person has a right to say: I am not going to buy insurance 
if I guarantee that I am not going to be a burden to the Federal 
Government or to the State government or to any other taxpayer. I think 
you should have that right, but that is not the way this bill is 
written.
  The bill is a Federal mandate that every person in America has to 
have health insurance or be fined if they do not. So at least if we 
were going to write such a provision, to keep the right of an 
individual not to have a mandate under the commerce clause of the 
Constitution, at least you ought to say that a person would have to 
sign something that says: I will give you a

[[Page 32988]]

promissory note if I do not choose to buy insurance. But that is not 
the way this bill is written.
  So I think this, along with the State mandate on Medicaid--which, 
again, I think is an equal protection issue, and maybe that is a 
stretch--but that one State will not have to ever pay the State's share 
of the increase in Medicaid that is in this bill but the other 49 
States in America will is certainly a violation of our responsibility 
to treat all States equally or to have formulas that have some ability 
to say there is a standard that has been set that should prevail. But 
not in this bill.
  My State of Texas will have almost a $10 billion increase in its 
State's share of Medicaid because of the expansion in this bill. But 
there are States that are exempted from the increases and one State 
that is exempted forever because of a deal made to get that 60th vote 
to pass this bill.
  I think people are looking at this issue in America today and saying: 
What has gotten into the people in Congress who are voting for this 
bill?
  So, Mr. President----
  The PRESIDING OFFICER. The Chair apologizes. The Chair did not notify 
the Senator at 5 minutes. The Chair forgot. The Senator's 5 minutes has 
passed.
  Mrs. HUTCHISON. Mr. President, thank you for the notification.
  I think there are issues now that will be raised going forward in the 
future, and there is still time for one Senator in the 60 to change the 
vote. Therefore, I hope one will hear from his or her constituents 
enough that that person will say: It is time to slow this bill down. I 
am going to change my vote so people can see all the effects that we 
have not talked about yet, and let's do this right.
  We can lower the cost of health care, we can provide more access to 
more people to have health care coverage, which should be the goal of 
this legislation, this massive reform of a health care system that is 
working for many and has provided the best quality of health care in 
the world. We have a chance to keep it by slowing this bill down. That 
is why we are fighting. That is why we are still here talking 3 days 
before Christmas. We want to stop this bill and do it right. Doing it 
right is more important than doing it fast, and I think the American 
people believe that too.
  Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. VITTER. Mr. President, how much time remains on the minority side 
before 9:30 a.m.?
  The PRESIDING OFFICER. There is 24 minutes remaining on the minority 
side.
  Mr. VITTER. Thank you, Mr. President.
  Mr. President, since this latest version of comprehensive health care 
reform was unveiled a few days ago--a 2,733-page bill--I have been 
looking at it very carefully, particularly, of course, with the 
Louisiana perspective, and I want to share my strong concerns with that 
Louisiana perspective with my colleagues today.
  Of course, we have all heard this Senate health care reform bill 
referred to as the ``Louisiana purchase'' because of the special $300 
million provision in it related to our Medicaid match rate.
  Quite frankly, I do not much like that nickname for two reasons. 
First of all, the fact that we in Louisiana have to pay a higher 
Medicaid match rate under present law because of the hurricanes is a 
real inequity, which I support fixing. It is a shame the merits of that 
fix, which are very real, have been completely lost in this debate 
because of the way this Louisiana fix has been used and abused, quite 
frankly, in trying to pass this megabill.
  But, secondly, I do not like the phrase because it suggests that 
Louisiana in general would fare very well under the bill overall, and 
nothing could be further from the truth. This bill overall sells 
Louisiana short. It sells Louisiana out. In fact, rather than the 
``Louisiana purchase,'' I think the bill could be very accurately 
called the ``Louisiana sellout.''
  What are those costs and those serious problems for Louisiana I am 
talking about?
  Let's start with Medicaid, the program for the poor. Let's start with 
that $300 million fix. It is certainly true that fix is there--a $300 
million benefit to the State under our Medicaid Program--but that is 
not all of the picture. It is not even all of the Medicaid picture 
because besides that fix, in the bill overall there is a dramatic 
expansion of Medicaid--a huge expansion--and the Louisiana State 
government and Louisiana taxpayers have to help pay for that expansion. 
That extra cost to the State government, to the State taxpayer, is way 
more than the $300 million benefit.
  By very conservative estimates by the Louisiana Department of Health 
and Hospitals, it is at least $1.3 billion over 10 years of full 
implementation. So, sure, a $300 million benefit but, at least, 
minimum, a $1.3 billion cost--extra cost--to the State.
  Now, three things are important about these figures. One is obvious: 
$300 million is a whole lot less than $1.3 billion. But, secondly, this 
$1.3 billion over 10 years of full implementation is a very 
conservative estimate from the Louisiana Department of Health and 
Hospitals. And, No. 3, while this money, the $300 million, is one time, 
this other goes on forever. This $1.3 billion is the first decade cost, 
but it goes on forever from there; and every 10 years, this grows and 
is repeated.
  So what does that mean? That means in the first 10 years of full 
implementation, the net impact on the State is very negative, at least 
$1 billion, and it goes on from there.
  I am very concerned about a lot of other groups in Louisiana, not 
just the State government and State budget. I am particularly concerned 
about Louisiana seniors. Of course, Louisiana seniors, like seniors 
everywhere, depend on Medicare. They have paid into it their whole 
lives. This bill--it is a simple fact; it is confirmed by the 
Congressional Budget Office, nonpartisan--this bill cuts Medicare $466 
billion. Medicare now is already facing insolvency by 2017. So instead 
of fixing that in a real way, the bill steals almost $\1/2\ trillion 
from Medicare and uses it not within Medicare but to help pay for a 
brand-new entitlement.
  Mr. BAUCUS. Mr. President, will the Senator yield for a question?
  Mr. VITTER. I will not at this time. I will be happy to yield after 
my presentation.
  That means real cuts in terms of hospitals, home and hospice, nursing 
homes, and Medicare Advantage. There are over 151,000 Louisiana seniors 
on Medicare Advantage. They are going to be particularly hard hit. They 
like that choice now. They will not have that choice as it exists now 
under this bill.
  How about Louisiana taxpayers? I am also very concerned about 
Louisiana taxpayers. Again, according to the nonpartisan Congressional 
Budget Office, the bill contains $518 billion of tax increases 
nationwide--over $\1/2\ trillion of tax increases. As for that oft 
repeated promise that no one who earns under $200,000 will be affected, 
well, again, think again. The Joint Committee on Taxation--
nonpartisan--has said 42.1 million Americans earning below $200,000 
will get a tax increase over the next several years--42.1 million. That 
means hundreds of thousands of Louisiana taxpayers will be hit, will 
get a tax increase--I am talking about folks who earn well below 
$200,000--will also pay more in the form of higher insurance premiums 
because, again, the nonpartisan Congressional Budget Office has said 
this bill increases overall health care costs. It does not decrease 
those costs.
  Well, what about Louisiana small businesses? Surely, this bill 
protects them in the midst of this serious recession. Well, not 
exactly. The biggest impact on businesses is a brandnew mandate in the 
bill. Most businesses have to either provide a government-defined 
health insurance benefit or they have to pay a new tax to the 
government. NFIB, the National Federation of Small Business, says that 
is going to cost the Nation 1.6 million jobs. Translated to Louisiana, 
that is tens of thousands of additional lost jobs on top of our current 
high unemployment. Again, we are in the middle of a serious

[[Page 32989]]

recession. This will cost us jobs on top of that.
  There is also another big problem, which is an incentive for 
businesses to drop coverage. I mentioned that brandnew mandate: Either 
you provide a government-defined health benefit or you pay a new tax to 
the Federal Government. The other problem with that is, for a lot of 
business, it is going to be cheaper to drop coverage and pay the new 
tax. So many employees who have coverage now that they are reasonably 
satisfied with are going to lose it, and that is a big concern as well.
  Just for good measure, the bill forces pro-life taxpayers to, in many 
very meaningful ways, subsidize abortion. Louisiana is one of the most 
proudly pro-life States in the Nation, so that is particularly 
offensive. Everyone who cares about life, who has followed this issue, 
whether it is the Catholic Bishops, National Right to Life, and other 
organizations have said, clearly, the language in this bill doesn't 
protect against taxpayer-funded abortion. The language in this bill 
does not honor the Hyde amendment, which has been Federal law since 
1977. The language in this bill crosses an important line, does not 
offer the conscience protections we have depended on for years. So this 
sets radical new precedent in terms of taxpayer and Federal Government 
support of abortion. That is a big Louisiana concern as well.
  So what do we have? We have a 2,733-page bill, mega health care 
reform, with all these very serious problems for Louisiana and 
important Louisiana groups and important Louisiana citizens, including 
seniors, small business, taxpayers, and the State budget, which is 
already facing serious cuts and challenges.
  If we want to put Louisiana first considering all these costs, we 
have to say no to this bill. If we want to put America first 
considering all these unsustainable costs, we have to say no to this 
bill. But we can and we should say yes to the right kind of health care 
reform. This isn't a debate about yes or no, health care reform or not; 
this is a debate about what the right kind of health care reform is.
  To me, we need to start over with that right kind of reform. To me, 
that would mean something such as starting by passing five bills. Each 
one doesn't need to be longer than 25 pages. Each one would be focused 
like a laser beam on a real problem that affects real Louisianans, real 
Americans, offering a real, concrete, focused solution. My five bills 
would be this: Cover preexisting conditions. That is a real problem in 
Louisiana. That is a real problem in America. Let's have a focused bill 
that does that.
  Secondly, allow buying insurance across State lines. That would 
dramatically expand competition in the marketplace. That would lower 
premiums. That would give all folks wanting health insurance 
dramatically decreased costs than they have now.
  Third: Let's do something real about prescription drug prices. Let's 
not sell out to PhRMA and cut a special deal with the pharmaceutical 
industry, as the White House has. Let's pass reimportation and pass 
real generics reform.
  Fourth: Let's pass tort reform and take all that unnecessary cost out 
of the system. That doesn't provide better health care for anyone. It 
doesn't do anything positive for anyone except wealthy trial lawyers. 
Let's pass tort reform.
  And fifth: Let's allow small business to pool across State lines to 
form larger pools of insurance across State lines and gain from that 
extra buying power. Why shouldn't a restaurant in Baton Rouge that may 
only have seven or eight people to cover in health insurance, why 
shouldn't they be able to pool through the National Restaurant 
Association, create a pool of millions nationwide and enjoy the same 
buying power Apple Computers or Toyota has and get the same benefit in 
the insurance marketplace through that increased buying power and 
increased competition?
  So I urge all my colleagues to put their State first and vote no, to 
put our Nation first and vote no, and to start anew with the right sort 
of focused reform as I have outlined.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Mr. President, I just have a couple statements to make, 
points to make, in view of the last statement, to correct some 
misimpressions given by the last statement.
  The last speaker said Medicare cuts apply and this is going to cut 
Medicare. The fact is--I wish the previous speaker would stay on the 
floor, but he is fleeing the floor because he knows I am going to 
mention facts in total refutation to the assertions he is making. He 
leaves the floor. He will not stay with me to talk about what is going 
on. He makes statements that are misrepresentations and then he leaves 
the floor.
  Let me talk about some of the things he said which are incorrect. 
One, he basically says Medicare is going to be hurt by these huge cuts 
to Medicare. The fact is, we are helping the Medicare trust fund with 
this legislation. The fact is, the Chief Actuary at HHS has said this 
legislation before us will increase the solvency of the Medicare trust 
fund another 9 years. That is a fact.
  Second, he is trying to say there are a lot of big tax increases 
here. He is trying to direct the public away from what the fact is. The 
fact is, the Joint Committee on Taxation says there are $436 billion of 
tax cuts in this legislation, reductions in taxes; $436 billion in tax 
cuts in the form of tax credits for people who purchase insurance in 
the exchange. It is a tax cut of $436 billion of tax cuts in the 
exchange. I might say $40 billion of that is small business tax cuts. 
They are not increases, they are tax cuts for small business and the 
tax cuts for individuals is $436 billion.
  Frankly, I wish I had a lot of the data before me. I don't have it 
right now to refute other points he made. He talked about premiums 
going up. The Congressional Budget Office basically says 93 percent of 
Americans will find their premiums will come down because of this 
legislation, and for a certain class of individuals--those in the 
individual market and the small group market will get very significant 
reductions in premiums on account of this bill.
  It irritates me, frankly, when Senators come to the floor and make 
all these misstatements and they are not based at all on fact.
  In fact, what we need to do around here is get more and more 
institutions to objectively analyze policy so we know what the facts 
are. It is pretty hard to argue the facts. The CBO does a pretty good 
job. The Joint Committee on Taxation does a pretty good job. But if 
somehow this country could turn to an organization or organizations to 
find the facts--just the facts--I think it would help a little bit 
because it is hard to argue the facts. If you have good facts, you 
generally can create good policy.
  Back to premiums. CBO says 93 percent of premiums go down. Actually, 
for about five-sixths of those insured--that is, those who work for 
larger companies, it is called the large group markets--premiums will 
go down not a lot but a little. According to CBO, it is up to a 3-
percent reduction in premiums. They look at the year 2016 as a 
benchmark year, so CBO says that for those, about 70 percent of 
Americans who work for large markets, premiums will actually go down 3 
percent.
  What about 13 percent of Americans who work for small groups, small 
companies? Basically, CBO and the Joint Committee on Taxation say those 
could go up 1 percentage point as well as down 2 percentage points. It 
is about even. It is difficult to tell. But those who get credits in 
the small group market will find their premiums down by about 8 to 11 
percent. Those who work for small companies will find their premiums go 
down 8 to 11 percent.
  What about the nongroup market--individuals. Well, basically, if you 
compare today's insurance premiums with what it might be in the future, 
the premiums will go down 14 to 20 percent, but because of better 
benefits, premiums could go up 10 to 13 percent for 7 percent of 
Americans. As I mentioned earlier, 93 percent will find their premiums 
go down. For 7 percent they will

[[Page 32990]]

go up, but for those 7 percent, they are going to have a lot better 
coverage, a lot better insurance in 2016. All the insurance market 
reforms will have kicked in: denial of preexisting conditions, market 
status, health status and so on and so forth.
  Get this: For the nongroup market, 17 percent of Americans who buy 
insurance through the nongroup market, 10 percent of that 17 percent, 
because of tax credits, will find their premiums go down by--guess how 
much--56 to 59 percent. Once more: 17 percent of Americans buy 
insurance individually. Of those 17 percent, 10 percent of them will 
find their premiums will be reduced 56 to 59 percent. That is according 
to the Joint Committee on Taxation. Only one small group, according to 
the Joint Committee on Taxation, will find an increase in 2016. That is 
7 percent of Americans in 2016, but that will be compensated with a lot 
better insurance, high-quality insurance. No more rescissions. No more 
denial based on preexisting conditions. The rating reforms will have 
kicked in and the annual limits, the lifetime limits will have been 
repealed. It will be a heck of a lot better insurance. So maybe their 
premiums will go up a little bit, but they will get a heck of a lot 
better buy for what they are getting. It is similar to buying a new car 
instead of a used car--hopefully, a good new car. All in all, in a very 
real sense, all Americans are going to find his or her premiums will go 
down. Seven percent will find them go up a little bit, but they will 
get a heck of a lot better insurance for the premiums they will be 
paying.
  The previous speaker is wrong when he says it will increase premiums. 
The Joint Committee on Taxation says it will not. I didn't hear him 
quote the Joint Committee on Taxation saying premiums will go up. If 
you look at the actual analysis by the Joint Committee on Taxation, 
they find the premiums will go down.
  Seeing nobody who wishes to speak, I wish to address the question of 
the constitutionality of the individual mandate. Let me read into the 
Record an analysis by Mark Hall, prepared by the O'Neill Institute. 
Basically, he says the following:

       Health insurance mandates have been a component of many 
     recent health care reform proposals. Because a Federal 
     requirement that individuals transfer money to a private 
     party is unprecedented, a number of legal issues must be 
     examined. This paper analyzes whether Congress can legislate 
     a health insurance mandate and the potential legal challenges 
     that might arise given such a mandate. The analysis of legal 
     challenges to health insurance mandates applies to federal 
     individual mandates, but can also apply to a federal mandate 
     requiring employers to purchase health insurance for their 
     employees. There are no constitutional barriers for Congress 
     to legislate a health insurance mandate as long as the 
     mandate is properly designed and executed as discussed below. 
     This paper also considers the likelihood of any change in the 
     current judicial approach to these legal questions.
       Potential solutions. Congress's Authority to Regulate 
     Commerce: The federal government has the authority to 
     legislate a health insurance mandate under the Commerce 
     Clause of the United States Constitution. A federal mandate 
     to purchase health insurance is well within the breadth of 
     Congress's power to regulate interstate commerce. Congress 
     can avoid legal challenges related to the 10th Amendment and 
     states' rights by preempting state insurance laws and 
     implementing the mandate on a Federal level. If Congress 
     wants states to implement a federal mandate, it has the 
     following two options:
       Conditional Spending: Congress may condition federal 
     funding, such as that for Medicaid or public health, on state 
     compliance with federal initiatives. Conditional Preemption: 
     Congress may allow states to opt out of complying with direct 
     federal regulation as long as states implement a similar 
     regulation that meets Federal requirements.
       Congress's Authority to Tax and Spend for the General 
     Welfare: Congress also has the authority to legislate a 
     health insurance mandate under its Constitutional authority 
     to tax and spend.
       There are no plausible Tenth Amendment and states' rights 
     issues arising from Congress's taxing and spending power. 
     However, Congress's taxation power cannot be used in a way 
     that burdens a fundamental right recognized in the 
     Constitution's Bill of Rights and judicial interpretations by 
     the U.S. Supreme Court. Since there is no fundamental right 
     to be uninsured, no fundamental right challenge exists.
       Other Relevant Constitutional Rights: Challenges under the 
     First and Fifth Amendments relating to individual rights may 
     rise, but are unlikely to succeed. The federal government 
     should include an exemption on religious grounds to a health 
     insurance mandate as an added measure of protection from 
     legal challenges based on religious freedom. In the 
     alternative, the federal government can simply exempt a 
     federal insurance mandate from existing federal legislation 
     protecting religious freedom.
       Considerations: To avoid a heightened level of security in 
     any judicial review, the federal government should articulate 
     its substantive rationale for mandating health insurance 
     during the legislative process.

  It goes on, and it is probably too lengthy to read. Professor Hall 
wrote this. He is a professor at Wake Forest University.
  I will read the conclusion:

       The Constitution permits Congress to legislate a health 
     insurance mandate. Congress can use its Commerce Clause 
     powers or its taxing and spending powers to create such a 
     mandate. Congress can impose a tax on those who do not 
     purchase insurance, or provide tax benefits to those that do 
     purchase insurance. . . . If Congress would like the States 
     to implement an insurance mandate, it can avoid conflicts 
     with the anti-commandeering principle by either preempting 
     state insurance laws or by conditioning federal funds on 
     State compliance. A federal employer mandate for state and 
     local government workers may be subject to a challenge; 
     however, such a challenge is unlikely to be successful. 
     Individual rights challenges under the First Amendment's Free 
     Exercise Clause or RFRA are unlikely to succeed, although a 
     federal insurance mandate should include a statement that 
     RFRA does not apply or provide for a religious exemption. 
     Fifth Amendment Due Process and Takings Clause challenges are 
     also unlikely to be successful. A legal analysis presented is 
     likely to endure, as the Supreme Court's current position and 
     approach to interpreting relevant constitutional issues 
     appear to be stable.

  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. BURRIS. Mr. President, as this debate draws to a close and my 
colleagues and I prepare to vote on a health care reform bill, I 
recognize that long hours and tense negotiations have left some nerves 
and tempers frayed. That is why I come to the floor.
  Although our work keeps us away from our family and friends for much 
of this holiday season, I see no reason why we cannot share good cheer 
with one another right here in Washington.
  So in the spirit of the season, I would like to share my own version 
of a classic holiday story with my good friends on both sides of the 
aisle.
  It goes something like this:

     `Twas the night before Christmas and all through the Senate
     The Right held up our health bill, no matter what was in it.
     The people had voted--they mandated reform--
     But Republicans blew off the gathering storm.
     ``We'll clog up the Senate!'' they cried with a grin,
     ``And in midterm elections, we'll get voted in!''
     They knew regular folks need help right this second--
     But fundraisers, lobbyists and politics beckoned.
     So, try as they might, Democrats could not win
     Because their majority was simply too thin.
     Then, across every State there arose such a clatter
     The whole Senate rushed out to see what was the matter!
     All sprang up from their desks and ran from the floor
     Straight through the cloakroom, and right out the door.
     And what in the world could be quite this raucous?
     But a mandate for change! From the Democratic caucus!
     The President, the Speaker, and of course Leader Reid
     Had answered the call in our hour of need.
     More rapid than eagles the provisions they came,
     And they whistled, and shouted, and called them by name:
     ``Better coverage! Cost savings! A strong public plan!
     Accountable options? We said `yes we can!'
     ``No exclusions or changes for pre-existing conditions! Let's 
           pass a bill that restores competition!''
     The Democrats all came together to fight for the American 
           people, that Christmas Eve night.
     And then, in a twinkle, I heard under the dome--the rollcall 
           was closed! It was time to go home.
     Despite the obstructionist tactics of some, the filibuster 
           had broken--the people had won!
     A good bill was ready for President Obama, ready to sign, and 
           end health care drama.

[[Page 32991]]

     And Democrats explained, as they drove out of sight: ``Better 
           coverage for all, even our friends on the right!''

  And I say to all of my colleagues: In this season, Merry Christmas 
and a happy, happy New Year.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. ENSIGN. Mr. President, in a little while, I will be making a 
constitutional point of order against the substitute amendment. I won't 
make that now because we are working on an agreement on when we can 
have that vote.
  I want to start talking about the reason I believe this substitute 
amendment is unconstitutional--the individual mandate contained in it. 
I will be speaking for about 10 minutes now, and then I will resume my 
remarks at 9:30, after one of the Democrats comes down and uses their 
15 minutes.
  If this constitutional point of order is rejected and the health care 
reform bill is passed, I believe the Court should reject it on 
constitutional grounds.
  Some of my colleagues may not be aware of the Finance Committee's 
debate on the constitutionality of this health care reform bill. During 
the committee markup of its version of the bill, Senator Hatch raised 
some thought-provoking constitutional questions. He offered an 
amendment, which I supported, to provide a process for the courts to 
promptly consider any constitutional challenge to the Finance Committee 
bill. He chose the same language that was put into the bipartisan 
Campaign Reform Act. Unfortunately, the amendment was deemed 
nongermane.
  I am seriously concerned that the Democrats' health care reform bill 
violates the Constitution of these United States. As part of 
comprehensive health care reform, the Democrats would require every 
single American citizen to purchase health insurance. Americans who 
fail to buy health insurance that meets the minimum requirements would 
be subject to a financial penalty. This provision can be found in 
section 1501 of the Democrats' health care reform bill. It is called 
the ``requirement to maintain minimal essential coverage.''
  While this is a constitutional point of order, I feel it is important 
to note that in the Declaration of Independence, America's Founding 
Fathers provided that:

       We hold these truths to be self-evident, that all men are 
     created equal, that they are endowed by their Creator with 
     certain unalienable rights, that among these are life, 
     liberty, and the pursuit of happiness.

  What happened to life, liberty, and the pursuit of happiness? I guess 
Americans can only have them if they comply with this new bill and buy 
a bronze, silver, gold, or platinum health insurance program.
  America's Founders and subsequent generations fought dearly for the 
freedoms we have today.
  I question the appropriateness of this bill and specifically the 
constitutionality of this individual mandate. Is it really 
constitutional for this body to tell all Americans they must buy health 
insurance coverage? If so, what is next? What personal liberty or 
property will Congress seek to take away from Americans next? Will we 
consider legislation in the future requiring every American to buy a 
car, to buy a house, or to do something else the Federal Government 
wants?
  My friend and colleague, Senator Hatch, raised similar questions 
during the debate in the Finance Committee. In fact, he raised the 
following question:

       If we have the power simply to order Americans to buy 
     certain products, why did we need a cash for clunkers 
     program, or the upcoming program providing rebates for 
     purchasing energy efficient appliances? We can simply require 
     Americans to buy certain cars, dishwashers, or refrigerators.

  Where do we draw the line? Will we even draw one at all? The 
Constitution draws that line. It is called the enumerated powers. I 
don't think Congress has ever required Americans to buy a product or 
service, such as health insurance, under penalty of law. I doubt 
Congress has the power to do that in the first place.
  As the CBO explained during the 1990s:

       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 any good or 
     service as a condition of lawful residence in the United 
     States.

  Yet that is exactly what this health care bill would do. This bill 
would require Americans to buy a product many of them do not want or 
simply cannot afford.
  Some individuals have raised the example of car insurance in the 
context of this debate. But requiring someone to have car insurance for 
the privilege of being able to drive is much different from requiring 
someone to have health insurance. As Senator Hatch pointed out, people 
who do not drive do not have to buy car insurance. Senator Hatch is 
right. If you live in New York City, you probably rely on subways or 
some other form of mass transit. You probably do not own a car, so you 
have no reason to buy car insurance and you are not forced to do so. 
Yet this health care reform bill requires Americans to buy health 
insurance whether or not they ever visit a doctor, get a prescription, 
or have an operation.
  Under this bill, if you do not buy health insurance coverage, you 
will be subject to a penalty. Let's call this penalty what it really 
is--a tax. Even worse, this penalty operates more like a taking than an 
ordinary tax. If an American chooses not to buy minimal essential 
health coverage, he or she will face rapidly increasing taxes--up to 
$750 or 2 percent of taxable income, whichever is greater, by the year 
2016. There is no penalty for Americans who qualify for hardship or 
religious exemptions. There is also no penalty for illegal immigrants 
or prisoners.
  Americans typically pay taxes on a product or service they buy or on 
income they earn. For example, if you fill up your car at the pump, you 
pay a gas tax. If you earn income, you pay an income tax. Yet this bill 
creates a new tax on Americans who choose not to buy a service. It is 
very counterintuitive. This bill taxes Americans for not doing anything 
at all, other than just existing. This penalty is assessed through the 
Internal Revenue Code.
  Senator Hatch made the following statement:

       If this is a tax at all, it is certainly not an excise tax. 
     Instead, it is a direct tax. While the Constitution requires 
     that excise taxes must be uniform throughout the United 
     States, it requires that direct taxes must be apportioned 
     among the States by population. Just as the excise tax on 
     high premiums is not uniform, this direct tax on individuals 
     who do not purchase health insurance is not apportioned.

  I recognize that the authors of this health reform bill included an 
individual mandate in this bill based on the idea that health care 
costs would be spread among all Americans and would ultimately reduce 
their health insurance costs. The claim is, insurance costs will be 
lowered because cost shifting will be reduced. This cost shift arguably 
takes place because health care providers--doctors and hospitals--who 
provide free or uncompensated care to the uninsured, shift the cost to 
the insured or paying patients. The hospital or doctor then shifts the 
cost of that unpaid care to the insured patient in the form of higher 
charges in order to cover the cost of uninsured patients.
  I understand this concept, but I am incredibly concerned that the 
individual mandate provision takes away too much freedom and choice 
from Nevadans and from Americans across the country.
  I have read and studied multiple articles by scholars on the 
constitutionality of the individual mandate. I believe the individual 
mandate provision in this health care reform bill calls into question 
several provisions of the Constitution. I think the Congress does not 
have the authority, under the enumerated powers, to enact such a 
mandate.
  I know the supporters of the individual mandate have claimed the 
commerce clause and the taxes and general welfare clause in article I, 
section 8 of the Constitution provide authority for Congress to enact 
such a mandate. I wholeheartedly disagree with that assessment.
  According to the Constitution, the Federal Government only has 
limited

[[Page 32992]]

powers. Although the Supreme Court has upheld some far-reaching 
regulations of economic activity--most notably in Wickard v. Filburn 
and Gonzales v. Raich--neither case supports enacting the independent 
health insurance mandate based on the commerce clause. In these cases, 
the court held that Congress was allowed to regulate intrastate 
economic activity as a means to regulate interstate commerce in 
fungible goods. The mandate to purchase health insurance, however, is 
not proposed as a means to regulate interstate commerce, nor does it 
regulate or prohibit activity in either the health insurance or the 
health care industry.
  The mandate to purchase health insurance does not purport to regulate 
or prohibit activity of any kind, whether economic or noneconomic. 
Instead, the individual mandate provision regulates no action. It 
purports to regulate inactivity by converting the inactivity of not 
buying insurance into commercial activity. In effect, advocates of the 
individual mandate contend that under congressional power to ``regulate 
commerce . . . among the several states'' Congress may reach the doing 
of nothing at all.
  In recent years, the Supreme Court has invalidated two congressional 
statutes that attempted to regulate noneconomic activities. To uphold 
the individual mandate based on the commerce clause, the Supreme Court 
would have to concede that the commerce clause provides unlimited 
authority to regulate. This is a position that the Supreme Court has 
never affirmed and that it rejected in recent cases.
  Congress lacks the authority to regulate the individual's decision 
not to purchase a service or enter into a contract. Similarly, Congress 
cannot rely on its power to tax to justify imposing the individual 
mandate.
  In addition to being beyond the scope of Congress' enumerated powers, 
this individual mandate also amounts to a taking under the fifth 
amendment takings clause. I would like to take a moment to read the 
relevant parts of the fifth amendment. It says in part:

       No person shall be . . . deprived of life, liberty, or 
     property, without due process of law; nor shall private 
     property be taken for public use, without just compensation.

  Let me repeat the part of the fifth amendment that applies to the 
issue at hand. It says:

        . . . nor shall private property be taken for public use, 
     without just compensation.

  The bill before us today would require an American citizen to devote 
a portion of income--his or her private property--to health insurance 
coverage. There is an exception, of course, for religious reasons and 
for financial hardships.
  If one of my constituents in Nevada does not want to spend his or her 
hard-earned income on health insurance coverage and would prefer to 
spend it on something else, such as rent or a car payment, this 
requirement could be a taking of private property under the fifth 
amendment.
  As noted in a recent article coauthored by Dennis Smith and the 
former Deputy General Counsel of the Department of Health and Human 
Services, Peter Urbanowicz, requiring a citizen to purchase health 
insurance ``could be considered an arbitrary and capricious `taking' no 
matter how many hardship exemptions the federal government might 
dispense.''
  Some of my colleagues may also be familiar with David B. Rivkin and 
Lee A. Casey. They are attorneys, based in Washington, DC, who served 
in the Department of Justice during the Reagan and Bush 
administrations. In September, Rivkin and Casey published an op-ed in 
the Wall Street Journal entitled: ``Mandatory Insurance is 
Unconstitutional.'' I urge my colleagues to read this article and many 
others I will be submitting for the Record.
  Mr. President, I ask unanimous consent to have printed in the Record 
at the conclusion of my remarks this Wall Street Journal by David B. 
Rivkin, Jr., and Lee A. Casey.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. ENSIGN. In the op-ed, Rivkin and Casey argue that the health 
insurance mandate:

       . . . would expand the federal government's authority over 
     individual Americans to an unprecedented degree. It is also 
     profoundly unconstitutional.

  Continuing the quote:

       Making healthy young adults pay billions of dollars in 
     premiums into the national health-care market is the only way 
     to fund universal coverage without raising substantial new 
     taxes.
       In effect, this mandate would be one more giant, cross-
     generational subsidy--imposed on generations who are already 
     stuck with the bill for the federal government's prior 
     spending sprees.
       A ``tax'' that falls exclusively on anyone who is uninsured 
     is a penalty beyond Congress's authority. If the rule were 
     otherwise, Congress could evade all constitutional limits by 
     ``taxing'' anyone who doesn't follow an order of any kind.

  As the fourth Chief Justice of the Supreme Court, John Marshall, 
stated:

       The power to tax involves the power to destroy.

  Unfortunately, this could certainly be true in the context of this 
health bill.
  We in Congress must zealously defend our citizens' rights and prevent 
this from happening. I believe the legislation before us violates the 
greatest political document in the history of the world, the 
Constitution of the United States.
  I urge my colleagues to think very carefully about the constitutional 
issues I have raised. I know most people around here do not like to 
talk about whether something is constitutional. We just want to do what 
feels good because we think we are helping people. But our Founders set 
forth in the enumerated powers limits on what this body and this 
Federal Government could do.
  As Members of Congress, one of our most important responsibilities is 
to protect, to defend, and preserve the Constitution of the United 
States. In that light, it is not only appropriate but essential for 
this body to question whether it is constitutional for the Federal 
Government to require Americans to buy health insurance coverage.
  We should also question whether it is constitutional for the Federal 
Government to tell Americans what kind of health insurance coverage 
they have to purchase. So not only does this bill tell them they have 
to buy health insurance, it tells Americans what kind of health 
insurance must be purchased.
  Americans also deserve to know how the bill will impact their ability 
to choose the health insurance coverage that best fits their needs. 
That is exactly why I will raise this constitutional point of order. 
Freedom and choice are very precious rights. Let's not bury our heads 
in the sand and take away freedom and choice from American citizens. We 
need to think about this individual mandate very carefully.
  I have several articles, and I would like to read a couple of quotes 
from these articles. The first one is from the Washington Post. The 
article is entitled, ``Illegal Health Reform.'' It is written by David 
Rivkin and Lee A. Casey. It says:

       The otherwise uninsured would be required to buy coverage, 
     not because they were even tangentially engaged in the 
     ``production, distribution or consumption of commodities,'' 
     but for no other reason than people without health insurance 
     exist. The federal government does not have the power to 
     regulate Americans simply because they are there. 
     Significantly, in two cases, United States v. Lopez (1995) 
     and United States v. Morrison (2000), the Supreme Court 
     specifically rejected the proposition that the commerce 
     clause allowed Congress to regulate noneconomic activities 
     merely because, through a chain of causal effects, they might 
     have an economic impact. These decisions reflect judicial 
     recognition that the commerce clause is not infinitely 
     elastic and that, by enumerating its powers, the framers 
     denied Congress the type of general police power that is 
     freely exercised by the states.

  Mr. President, to read further from the article in the Washington 
Post:

       Like the commerce power, the power to tax is the Federal 
     Government's vast authority over the public, and it is well 
     settled that Congress can impose a tax for regulatory rather 
     than purely revenue-raising purposes. Yet Congress cannot use 
     its power to tax solely as a means of controlling conduct 
     that it could not otherwise reach through the commerce clause 
     or any other constitutional provision. In the 1922 case 
     Bailey v. Drexel Furniture, the Supreme Court ruled that 
     Congress could not impose a ``tax'' to penalize conduct (the 
     utilization of child labor) it

[[Page 32993]]

     could not also regulate under the commerce clause. Although 
     the court's interpretation of the commerce power's breadth 
     has changed since that time, it has not repudiated the 
     fundamental principle that Congress cannot use a tax to 
     regulate conduct that is otherwise indisputably beyond its 
     regulatory power.
       Of course, these constitutional impediments can be avoided 
     if Congress is willing to raise corporate and/or income taxes 
     enough to fund fully a new national health system. Absent 
     this politically dangerous--and therefore unlikely--scenario, 
     advocates of universal health coverage must accept Congress' 
     power, like that of the other branches, has limits. These 
     limits apply regardless of how important the issue may be, 
     and neither Congress nor the president can take 
     constitutional short cuts. The genius of our system is that, 
     no matter how convinced our elected officials may be that 
     certain measures are in the public interest, their goals can 
     be accomplished only in accord with the powers and processes 
     the Constitution mandates, processes that inevitably make 
     them accountable to the American people.

  I want to read from another article that was written by Randy 
Barnett, Nathaniel Stewart, and Todd Gaziano. This article is entitled, 
``Why the Personal Mandate to Buy Health Insurance is Unprecedented and 
Unconstitutional.''

       Members of Congress have the responsibility, pursuant to 
     their oath, to determine the constitutionality of legislation 
     independently of how the Supreme Court has ruled or may rule 
     in the future. But Senators and Representatives also should 
     know that, despite what they have been told, the health 
     insurance mandate is highly vulnerable to challenge because 
     it is, in truth, unconstitutional. And all other 
     considerations aside, the highest obligation of each Member 
     of Congress is fidelity to the Constitution.

  I ask unanimous consent to have printed in the Record, following my 
remarks, the articles I have before me.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit No. 2.)
  Mr. ENSIGN. Continuing to quote, Mr. President, from the Barnett, 
Stewart, and Gaziano article:

       A long line of Supreme Court cases establishes that 
     Congress may regulate three categories of activity pursuant 
     to the commerce power. These categories were first summarized 
     in Perez v. United States, and most recently reaffirmed in 
     Gonzalez v. Raich. First, Congress may regulate the channels 
     of interstate or foreign commerce such as the regulation of 
     steamship, railroad, highway or aircraft transportation or 
     prevent them from being misused, as, for example, the 
     shipment of stolen goods or of persons who have been 
     kidnapped. Second, the commerce power extends to protecting 
     ``the instrumentalities of interstate commerce,'' as, for 
     example, the destruction of an aircraft, or persons or things 
     in commerce, as, for example, thefts from interstate 
     shipments. Third, Congress may regulate economic activities 
     that ``substantially affect interstate commerce.''
       Under the first prong of its Commerce Clause analysis, the 
     Court asks whether the class of activities regulated by the 
     statute falls within one or more of these categories. Since 
     an individual health insurance mandate is not even arguably a 
     regulation of a channel or instrumentality of interstate 
     commerce, it must either fit in the third category or none at 
     all. . . . The Senate bill asserts (erroneously) that: 
     ``[t]he individual responsibility requirement . . . is 
     commercial and economic in nature, and substantially affects 
     interstate commerce. . . . The requirement regulates activity 
     that is commercial and economic in nature: economic and 
     financial decisions about how and when health care is paid 
     for, and when health insurance is purchased.''

  That is within the bill.
  Continuing to quote:

       The second prong of the Court's Commerce Clause analysis 
     requires a determination that a petitioner has in fact 
     engaged in the regulated activity, making him or her a member 
     of the regulated class. In its modern Commerce Clause cases, 
     the Supreme Court rejects the argument that a petitioner's 
     own conduct or participation in the activity is, by itself, 
     either too local or too trivial to have a substantial effect 
     on interstate commerce. Rather, the Court has made clear 
     that, ``where the class of activities is regulated and that 
     class is within the reach of federal power, the courts have 
     no powers `to excise, as trivial, individual instances' of 
     the class.'' Thus, for example, a potential challenger of the 
     proposed mandate could not argue that because her own 
     decision not to purchase the required insurance would have 
     little or no effect on the broader market, the regulation 
     could not be constitutionally applied to her. The Court will 
     consider the effect of the relevant ``class of activity,'' 
     not that of any individual member of the class.
       To assess the constitutionality of a claim of power under 
     the Commerce Clause, the primary question becomes, ``what 
     class of activity is Congress seeking to regulate?'' Only 
     when this question is answered can the Court assess whether 
     that class of activity substantially affects interstate 
     commerce. Significantly, the mandate imposed by the pending 
     bills does not regulate or prohibit the economic activity of 
     providing or administering health insurance. Nor does it 
     regulate or prohibit the economic activity of providing 
     health care, whether by doctors, hospitals, pharmaceutical 
     companies, or other entities engaged in the business of 
     providing a medical good or service. Indeed, the health care 
     mandate does not purport to regulate or prohibit activity of 
     any kind, whether economic or noneconomic. To the contrary, 
     it purports to ``regulate'' inactivity.

  In other words, not buying health insurance. Continuing once again:

       Proponents of the individual mandate are contending that, 
     under its power to ``regulate commerce . . . among the 
     several states,'' Congress may regulate the doing of nothing 
     at all! In other words, the statute purports to convert 
     inactivity into a class of activity. By its own plain terms, 
     the individual mandate provision regulates the absence of 
     action. To uphold this power under its existing doctrine, the 
     Court must conclude that an individual's failure to enter 
     into a contract for health insurance is an activity that is 
     ``economic'' in nature--that is, it is part of a ``class of 
     activity'' that ``substantially affects interstate 
     commerce.''
       Never in this Nation's history has the commerce power been 
     used to require a person who does nothing to engage in 
     economic activity.

  Let me repeat that. ``Never in this Nation's history has the commerce 
power been used to require a person who does nothing to engage in 
economic activity.''
  Let me close with this because I see the senior Senator from Utah is 
on the Senate floor, and he has argued eloquently on the 
unconstitutionality of this particular provision.
  Again, I am quoting:

       Today, even voting is not constitutionally mandated. But if 
     this precedent is established--

  That is the precedent in this bill is established--

       Congress would have the unlimited power to regulate, 
     prohibit, or mandate any or all activities in the United 
     States. Such a doctrine would abolish any limit on federal 
     power and alter the fundamental relationship of the national 
     government to the states and the people. For this reason it 
     is highly doubtful that the Supreme Court will uphold this 
     assertion of power.

  Mr. President, I reserve the remainder of my time, and I yield to the 
senior Senator from Utah.

                               Exhibit 1

             [From the Wall Street Journal, Sept. 18, 2009]

                Mandatory Insurance Is Unconstitutional

               (By David B. Rivkin, Jr. and Lee A. Casey)

       Federal legislation requiring that every American have 
     health insurance is part of all the major health-care reform 
     plans now being considered in Washington. Such a mandate, 
     however, would expand the federal government's authority over 
     individual Americans to an unprecedented degree. It is also 
     profoundly unconstitutional.
       An individual mandate has been a hardy perennial of health-
     care reform proposals since HillaryCare in the early 1990s. 
     President Barack Obama defended its merits before Congress 
     last week, claiming that uninsured people still use medical 
     services and impose the costs on everyone else. But the 
     reality is far different. Certainly some uninsured use 
     emergency rooms in lieu of primary care physicians, but the 
     majority are young people who forgo insurance precisely 
     because they do not expect to need much medical care. When 
     they do, these uninsured pay full freight, often at premium 
     rates, thereby actually subsidizing insured Americans.
       The mandate's real justifications are far more cynical and 
     political. Making healthy young adults pay billions of 
     dollars in premiums into the national health-care market is 
     the only way to fund universal coverage without raising 
     substantial new taxes. In effect, this mandate would be one 
     more giant, cross-generational subsidy--imposed on 
     generations who are already stuck with the bill for the 
     federal government's prior spending sprees.
       Politically, of course, the mandate is essential to winning 
     insurance industry support for the legislation and acceptance 
     of heavy federal regulations. Millions of new customers will 
     be driven into insurance-company arms. Moreover, without the 
     mandate, the entire thrust of the new regulatory scheme--
     requiring insurance companies to cover pre-existing 
     conditions and to accept standardized premiums--would produce 
     dysfunctional consequences. It would make little sense for 
     anyone, young or old, to buy insurance before he actually got 
     sick. Such a socialization of costs also happens to be an

[[Page 32994]]

     essential step toward the single payer, national health 
     system, still stridently supported by large parts of the 
     president's base.
       The elephant in the room is the Constitution. As every 
     civics class once taught, the federal government is a 
     government of limited, enumerated powers, with the states 
     retaining broad regulatory authority. As James Madison 
     explained in the Federalist Papers: ``[I]n the first place it 
     is to be remembered that the general government is not to be 
     charged with the whole power of making and administering 
     laws. Its jurisdiction is limited to certain enumerated 
     objects.'' Congress, in other words, cannot regulate simply 
     because it sees a problem to be fixed. Federal law must be 
     grounded in one of the specific grants of authority found in 
     the Constitution.
       These are mostly found in Article I, Section 8, which among 
     other things gives Congress the power to tax, borrow and 
     spend money, raise and support armies, declare war, establish 
     post offices and regulate commerce. It is the authority to 
     regulate foreign and interstate commerce that--in one way or 
     another--supports most of the elaborate federal regulatory 
     system. If the federal government has any right to reform, 
     revise or remake the American health-care system, it must be 
     found in this all-important provision. This is especially 
     true of any mandate that every American obtain health-care 
     insurance or face a penalty.
       The Supreme Court construes the commerce power broadly. In 
     the most recent Commerce Clause case, Gonzales v. Raich 
     (2005), the court ruled that Congress can even regulate the 
     cultivation of marijuana for personal use so long as there is 
     a rational basis to believe that such ``activities, taken in 
     the aggregate, substantially affect interstate commerce.''
       But there are important limits. In United States v. Lopez 
     (1995), for example, the Court invalidated the Gun Free 
     School Zones Act because that law made it a crime simply to 
     possess a gun near a school. It did not ``regulate any 
     economic activity and did not contain any requirement that 
     the possession of a gun have any connection to past 
     interstate activity or a predictable impact on future 
     commercial activity.'' Of course, a health-care mandate would 
     not regulate any ``activity,'' such as employment or growing 
     pot in the bathroom, at all. Simply being an American would 
     trigger it.
       Health-care backers understand this and--like Lewis 
     Carroll's Red Queen insisting that some hills are valleys--
     have framed the mandate as a ``tax'' rather than a 
     regulation. Under Sen. Max Baucus's (D., Mont.) most recent 
     plan, people who do not maintain health insurance for 
     themselves and their families would be forced to pay an 
     ``excise tax'' of up to $1,500 per year--roughly comparable 
     to the cost of insurance coverage under the new plan.
       But Congress cannot so simply avoid the constitutional 
     limits on its power. Taxation can favor one industry or 
     course of action over another, but a ``tax'' that falls 
     exclusively on anyone who is uninsured is a penalty beyond 
     Congress's authority. If the rule were otherwise, Congress 
     could evade all constitutional limits by ``taxing'' anyone 
     who doesn't follow an order of any kind--whether to obtain 
     health-care insurance, or to join a health club, or exercise 
     regularly, or even eat your vegetables.
       This type of congressional trickery is bad for our 
     democracy and has implications far beyond the health-care 
     debate. The Constitution's Framers divided power between the 
     federal government and states--just as they did among the 
     three federal branches of government--for a reason. They 
     viewed these structural limitations on governmental power as 
     the most reliable means of protecting individual liberty--
     more important even than the Bill of Rights.
       Yet if that imperative is insufficient to prompt 
     reconsideration of the mandate (and the approach to reform it 
     supports), then the inevitable judicial challenges should. 
     Since the 1930s, the Supreme Court has been reluctant to 
     invalidate ``regulatory'' taxes. However, a tax that is so 
     clearly a penalty for failing to comply with requirements 
     otherwise beyond Congress's constitutional power will present 
     the question whether there are any limits on Congress's power 
     to regulate individual Americans. The Supreme Court has never 
     accepted such a proposition, and it is unlikely to accept it 
     now, even in an area as important as health care.

                               Exhibit 2

       [From the Washington Post, Aug. 22, 2009]

                         Illegal Health Reform

               (By David B. Rivkin, Jr. and Lee A. Casey)

       President Obama has called for a serious and reasoned 
     debate about his plans to overhaul the health-care system. 
     Any such debate must include the question of whether it is 
     constitutional for the federal government to adopt and 
     implement the president's proposals. Consider one element 
     known as the ``individual mandate,'' which would require 
     every American to have health insurance, if not through an 
     employer then by individual purchase. This requirement would 
     particularly affect young adults, who often choose to save 
     the expense and go without coverage. Without the young to 
     subsidize the old, a comprehensive national health system 
     will not work. But can Congress require every American to buy 
     health insurance?
       In short, no. The Constitution assigns only limited, 
     enumerated powers to Congress and none, including the power 
     to regulate interstate commerce or to impose taxes, would 
     support a federal mandate requiring anyone who is otherwise 
     without health insurance to buy it.
       Although the Supreme Court has interpreted Congress's 
     commerce power expansively, this type of mandate would not 
     pass muster even under the most aggressive commerce clause 
     cases. In Wickard v. Filburn (1942), the court upheld a 
     federal law regulating the national wheat markets. The law 
     was drawn so broadly that wheat grown for consumption on 
     individual farms also was regulated. Even though this rule 
     reached purely local (rather than interstate) activity, the 
     court reasoned that the consumption of homegrown wheat by 
     individual farms would, in the aggregate, have a substantial 
     economic effect on interstate commerce, and so was within 
     Congress's reach.
       The court reaffirmed this rationale in 2005 in Gonzales v. 
     Raich, when it validated Congress's authority to regulate the 
     home cultivation of marijuana for personal use. In doing so, 
     however, the justices emphasized that--as in the wheat case--
     ``the activities regulated by the [Controlled Substances Act] 
     are quintessentially economic.'' That simply would not be 
     true with regard to an individual health insurance mandate.
       The otherwise uninsured would be required to buy coverage, 
     not because they were even tangentially engaged in the 
     ``production, distribution or consumption of commodities,'' 
     but for no other reason than that people without health 
     insurance exist. The federal government does not have the 
     power to regulate Americans simply because they are there. 
     Significantly, in two key cases, United States v. Lopez 
     (1995) and United States v. Morrison (2000), the Supreme 
     Court specifically rejected the proposition that the commerce 
     clause allowed Congress to regulate noneconomic activities 
     merely because, through a chain of causal effects, they might 
     have an economic impact. These decisions reflect judicial 
     recognition that the commerce clause is not infinitely 
     elastic and that, by enumerating its powers, the framers 
     denied Congress the type of general police power that is 
     freely exercised by the states.
       This leaves mandate supporters with few palatable options. 
     Congress could attempt to condition some federal benefit on 
     the acquisition of insurance. States, for example, usually 
     condition issuance of a car registration on proof of 
     automobile insurance, or on a sizable payment into an 
     uninsured motorist fund. Even this, however, cannot achieve 
     universal health coverage. No federal program or entitlement 
     applies to the entire population, and it is difficult to 
     conceive of a ``benefit'' that some part of the population 
     would not choose to eschew.
       The other obvious alternative is to use Congress's power to 
     tax and spend. In an effort, perhaps, to anchor this mandate 
     in that power, the Senate version of the individual mandate 
     envisions that failure to comply would be met with a penalty, 
     to be collected by the IRS. This arrangement, however, is not 
     constitutional either.
       Like the commerce power, the power to tax gives the federal 
     government vast authority over the public, and it is well 
     settled that Congress can impose a tax for regulatory rather 
     than purely revenue-raising purposes. Yet Congress cannot use 
     its power to tax solely as a means of controlling conduct 
     that it could not otherwise reach through the commerce clause 
     or any other constitutional provision. In the 1922 case 
     Bailey v. Drexel Furniture, the Supreme Court ruled that 
     Congress could not impose a ``tax'' to penalize conduct (the 
     utilization of child labor) it could not also regulate under 
     the commerce clause. Although the court's interpretation of 
     the commerce power's breadth has changed since that time, it 
     has not repudiated the fundamental principle that Congress 
     cannot use a tax to regulate conduct that is otherwise 
     indisputably beyond its regulatory power.
       Of course, these constitutional impediments can be avoided 
     if Congress is willing to raise corporate and/or income taxes 
     enough to fund fully a new national health system. Absent 
     this politically dangerous--and therefore unlikely--scenario, 
     advocates of universal health coverage must accept that 
     Congress's power, like that of the other branches, has 
     limits. These limits apply regardless of how important the 
     issue may be, and neither Congress nor the president can take 
     constitutional short cuts. The genius of our system is that, 
     no matter how convinced our elected officials may be that 
     certain measures are in the public interest, their goals can 
     be accomplished only in accord with the powers and processes 
     the Constitution mandates, processes that inevitably make 
     them accountable to the American people.
                                  ____


Executive Summary: Why the Personal Mandate To Buy Health Insurance Is 
                   Unprecedented and Unconstitutional

       (By Randy Barnett, Nathaniel Stewart, and Todd F. Gaziano)

       As the Congressional Budget Office explained: ``A mandate 
     requiring all individuals to purchase health insurance would 
     be

[[Page 32995]]

     an unprecedented form of federal action. The government has 
     never required people to buy any good or service as a 
     condition of lawful residence in the United States.'' Yet, 
     all of the House and Senate health-care bills being debated 
     require Americans to either obtain or purchase expensive 
     health insurance, estimated to cost up to $15,000 per year 
     for a typical family, or pay substantial tax penalties for 
     not doing so.
       The purpose of this compulsory contract, coupled with the 
     arbitrary price ratios and controls, is to require some 
     people to buy artificially high-priced policies as a way of 
     subsidizing coverage for others and an industry saddled with 
     the costs of other government regulations. Rather than 
     appropriate funds for higher federal health-care spending, 
     the sponsors of the current bills are attempting, through the 
     personal mandate, to keep the forced wealth transfers 
     entirely off budget.
       This takes congressional power and control to a strikingly 
     new level. An individual mandate to enter into a contract 
     with or buy a particular product from a private party is 
     literally unprecedented, not just in scope but in kind, and 
     unconstitutional either as a matter of first principles or 
     under any reasonable reading of judicial precedents.


                          The Commerce Clause

       Advocates of the individual mandate have claimed that the 
     Supreme Court's Commerce Clause jurisprudence leaves ``no 
     doubt'' that the insurance requirement is a constitutional 
     exercise of that power. They are wrong.
       Although the Supreme Court has upheld some far-reaching 
     regulations of economic activity, most notably in Wickard v. 
     Filburn and Gonzales v. Raich, neither case supports the 
     individual health insurance mandate. In these cases, the 
     Court held that Congress's power to regulate the interstate 
     commerce in a fungible good--for example, wheat or 
     marijuana--as part of a comprehensive regulatory scheme 
     included the power to regulate or prohibit the intrastate 
     possession and production of this good. In both cases, 
     Congress was allowed to reach intrastate economic activity as 
     a means to the regulation of interstate commerce in goods.
       Yet, the mandate to purchase health insurance is not 
     proposed as a means to the regulation of interstate commerce; 
     nor does it regulate or prohibit activity in either the 
     health insurance or health care industry. Indeed, the health 
     care mandate does not purport to regulate or prohibit 
     activity of any kind, whether economic or noneconomic. By its 
     own plain terms, the individual mandate provision regulates 
     no action. To the contrary, it purports to ``regulate'' 
     inactivity by converting the inactivity of not buying 
     insurance into commercial activity. Proponents of the 
     individual mandate are contending that, under its power to 
     ``regulate commerce . . . among the several states,'' 
     Congress may reach the doing of nothing at all!
       In recent years, the Court invalidated two congressional 
     statutes that attempted to regulate non-economic activities. 
     In United States v. Lopez (1995), it struck down the Gun-Free 
     School Zones Act, which attempted to reach the activity of 
     possessing a gun within a thousand feet of a school. In 
     United States v. Morrison (2000), it invalidated part of the 
     Violence Against Women Act, which regulated gender-motivated 
     violence. Because the Court found the regulated activity in 
     each case to be noneconomic, it was outside the reach of 
     Congress's Commerce power, regardless of its effect on 
     interstate commerce.
       To uphold the insurance purchase mandate, the Supreme Court 
     would have to concede that the Commerce Clause has no limits, 
     a proposition that it has never affirmed, that it rejected in 
     Lopez and Morrison, and from which it did not retreat in 
     Raich. Although Congress may possibly regulate the operations 
     of health care or health insurance companies directly, given 
     that they are economic activities with a substantial effect 
     on interstate commerce, it may not regulate the individual's 
     decision not to purchase a service or enter into a contract.
       If Congress can mandate this, then it can mandate anything. 
     Congress could require every American to buy a new Chevy 
     Impala every year, or a pay a ``tax'' equivalent to its blue 
     book value, because such purchases would stimulate commerce 
     and help repay government loans. Congress could also require 
     all Americans to buy a certain amount of wheat bread annually 
     to subsidize farmers.
       Even during wartime, when war production is vital to 
     national survival, Congress has never claimed such a power, 
     nor could it. No farmer was ever forced to grow food for the 
     troops; no worker was forced to build tanks. And what 
     Congress cannot do during wartime, with national survival at 
     stake, it cannot do in peacetime simply to avoid the 
     political cost of raising taxes to pay for desired government 
     programs.


                     Other Constitutional Problems

       Senators and Representatives should also know that:
       There are four constitutionally relevant differences 
     between a universal federal mandate to obtain health 
     insurance and the state requirements that automobile drivers 
     carry liability insurance for their injuries to others on 
     public roads;
       A review of the tax provisions in the House and Senate 
     bills raises serious questions about the constitutionality of 
     using the taxing power in this manner; and
       Since there literally is no legal precedent for this 
     decidedly unprecedented assertion of federal power, it is 
     highly unlikely that the Supreme Court would break new 
     constitutional ground to save an unpopular personal mandate.
       Members of Congress have a responsibility, pursuant to 
     their oath, to determine the constitutionality of legislation 
     independently of how the Supreme Court has ruled or may rule 
     in the future. But Senators and Representatives also should 
     know that, despite what they have been told, the health 
     insurance mandate is highly vulnerable to challenge because 
     it is, in truth, unconstitutional. And all other 
     considerations aside, the highest obligation of each Member 
     of Congress is fidelity to the Constitution.

  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I rise to support the constitutional point 
of order raised against the legislation before us by the distinguished 
Senator from Nevada. I applaud the senior Senator from Nevada for 
taking this step so that all Senators can take a position on whether 
this legislation is constitutional, or whether this legislation is 
consistent with the Constitution each of us is sworn to protect and 
defend.
  The Senator from Nevada serves with me on the Senate Finance 
Committee, and he will remember that I started raising constitutional 
questions and objections against this legislation more than 3 months 
ago during the committee markup, and so has he.
  This body has spent its time debating the policy of this legislation. 
This is a terrible piece of legislation that will raise insurance 
premiums, raise taxes, and limit access to care.
  Mr. President, I ask unanimous consent that an editorial from 
yesterday's Wall Street Journal, titled ``Change Nobody Believes In,'' 
be printed in the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. HATCH. From the standpoint of policy, Mr. President, we should 
not pass this bill. Perhaps more importantly, from the standpoint of 
the Constitution, we may not pass it.
  Much has changed since the founding of this great country, but one 
thing has not: The liberty we love requires limits on government. It 
requires limits on government. It always has and it always will. 
America's founders knew that and built limits into the system of 
government they established. Those limits come primarily from a written 
Constitution that delegates enumerated powers to the Federal 
Government. We must point to at least one--at least one--of those 
powers as the basis for any legislation we pass.
  The Constitution and the limits it imposes do not mean whatever we 
want them to mean.
  This legislation brings America into completely uncharted political 
and legal waters and I will not be at all surprised if there is 
litigation challenging it on constitutional and other grounds. In the 
Finance Committee, I offered an amendment to add a procedure for the 
courts to handle constitutional challenges in an expedited fashion. The 
Finance Committee chairman ruled that amendment out of order so that it 
could not even be considered. That was his decision, but that means 
that any future challenges will be handled the old fashioned way, even 
if that means an extended, rather than an expedited, process.
  I ask unanimous consent that a memo prepared by the Conservative 
Action Project be printed in the Record following my remarks. Its 
signatories include former U.S. Attorney General Edwin Meese; former 
Congressman David McIntosh; Karen Kerrigan, President of the Small 
Business and Entrepreneurship Council; and Brian McManus of the Council 
for Affordable Health Insurance.
  The PRESIDING OFFICER. Without objection it is so ordered.
  (See exhibit 2.)
  Mr. HATCH. Let me briefly repeat the constitution objections I have 
been raising for the past few months and which the Senator from Nevada 
carefully raised this morning. First, the only enumerated power that 
conceivably can support the mandate for individuals to purchase health 
insurance is

[[Page 32996]]

the power to regulate interstate commerce. Since the 1930s, the Supreme 
Court has expanded this to include regulation of activities that 
substantially affect interstate commerce. But the key word is 
activities. Congress has never crossed the line between regulating what 
people choose to do and ordering them to do it. The difference between 
regulating and requiring is liberty. I agree with the 75 percent of 
Americans who believe that the insurance mandate is unconstitutional 
because Congress's power to regulate interstate commerce does not 
include telling Americans what they must buy.
  Second, the financial penalty enforcing the insurance mandate is just 
that, a penalty. It is not a tax and, therefore, it is constitutional 
only if the insurance mandate it enforces is constitutional. If it is a 
tax, it is a direct tax on individuals rather than an excise tax on 
transactions and, therefore, it violates article I, section 9, of the 
Constitution which requires that direct taxes be apportioned according 
to population.
  Third, the excise tax on high-cost insurance plans, which applies 
differently in some states than in others, is unconstitutional because 
it is not uniform throughout the United States as required by article 
I, section 8. The Supreme Court has said that to be uniform as the 
Constitution requires, an excise tax must have the same force and 
effect wherever the subject of the tax is found. Not only is this not 
the case with this tax, which makes it plainly unconstitutional, but 
that is exactly the design and intention of those who drafted this 
legislation.
  Fourth, the legislation orders states to establish health benefit 
exchanges which will require states to pass legislation and 
regulations. If they do not, or even if the Secretary of Health and 
Human Services believes they will not by a certain date, the Secretary 
will literally step into each state and establish and operate this 
exchange for them. This is a direct violation of the division between 
federal and state government power. The Supreme Court could not have 
been clearer on this point, ruling over and over that Congress may 
regulate individuals but may not regulate states. Congress has no 
authority to order states, in their capacity as states to pass 
legislation. We have encouraged states to pass legislation, we have 
bribed them, we have even extorted them by threatening to withhold 
federal funds. But this legislation simply commandeers states and makes 
them little more than subdivisions of the federal government. In 1997, 
the Supreme Court held ``state legislatures are not subject to Federal 
direction'' and reaffirmed ``categorically'' its earlier holding that 
``the federal government may not compel the states to enact or 
administer a federal regulatory program.'' That should be clear enough 
for Senators to understand here in this body.
  I was amazed to learn that when President Franklin D. Roosevelt chose 
Frances Perkins as his Secretary of Labor, they discussed social policy 
legislation including health insurance. As Secretary Perkins later 
described it, they agreed that such legislation would pose ``very 
severe constitutional problems,'' including fundamentally altering 
federal-state relationships. That is why the Social Security Act relies 
on the payroll tax. Even the Roosevelt administration, which oversaw 
the most dramatic expansion of Federal power in our Nation's history, 
would not go as far as the legislation before us today would go.
  Should this legislation become law, there would be nothing that the 
federal government could not do. Congress would be remaking the 
Constitution in its image, rather than abiding by the Constitution's 
limits as liberty requires. There must come a time when we say that the 
political ends cannot justify the constitutional means, that the 
Constitution and the liberty it protects are more important than we 
wonderful Members of Congress are. That time is now, and that is why we 
will vote to sustain this constitutional point of order.
  I wish to personally thank and congratulate the distinguished Senator 
from Nevada for his work on this issue, for his work on the committee, 
because he was one of the more energetic and more capable people on the 
committee in raising some of these very important issues such as this 
constitutional set of issues we have been discussing over this short 
period of time today. I am grateful for him, I am grateful he has 
raised it, and I am grateful to be able to be here on the floor to 
support him in his raising of this constitutional point of order when 
he chooses to do so.
  I yield the floor.

                               Exhibit 1

             [From the Wall Street Journal, Dec. 21, 2009]

                       Change Nobody Believes In

       And tidings of comfort and joy from Harry Reid too. The 
     Senate Majority Leader has decided that the last few days 
     before Christmas are the opportune moment for a narrow 
     majority of Democrats to stuff ObamaCare through the Senate 
     to meet an arbitrary White House deadline. Barring some 
     extraordinary reversal, it now seems as if they have the 60 
     votes they need to jump off this cliff, with one-seventh of 
     the economy in tow.
       Mr. Obama promised a new era of transparent good 
     government, yet on Saturday morning Mr. Reid threw out the 
     2,100-page bill that the world's greatest deliberative body 
     spent just 17 days debating and replaced it with a new 
     ``manager's amendment'' that was stapled together in covert 
     partisan negotiations. Democrats are barely even bothering to 
     pretend to care what's in it, not that any Senator had the 
     chance to digest it in the 38 hours before the first cloture 
     vote at 1 a. m. this morning. After procedural motions that 
     allow for no amendments, the final vote could come at 9 p.m. 
     on December 24.
       Even in World War I there was a Christmas truce.
       The rushed, secretive way that a bill this destructive and 
     unpopular is being forced on the country shows that 
     ``reform'' has devolved into the raw exercise of political 
     power for the single purpose of permanently expanding the 
     American entitlement state. An increasing roll of leaders in 
     health care and business are looking on aghast at a bill that 
     is so large and convoluted that no one can truly understand 
     it, as Finance Chairman Max Baucus admitted on the floor last 
     week. The only goal is to ram it into law while the political 
     window is still open, and clean up the mess later.
       Health costs. From the outset, the White House's core claim 
     was that reform would reduce health costs for individuals and 
     businesses, and they're sticking to that story. ``Anyone who 
     says otherwise simply hasn't read the bills,'' Mr. Obama said 
     over the weekend. This is so utterly disingenuous that we 
     doubt the President really believes it.
       The best and most rigorous cost analysis was recently 
     released by the insurer WellPoint, which mined its actuarial 
     data in various regional markets to model the Senate bill. 
     WellPoint found that a healthy 25-year-old in Milwaukee 
     buying coverage on the individual market will see his costs 
     rise by 178%. A small business based in Richmond with eight 
     employees in average health will see a 23% increase. 
     Insurance costs for a 40-year-old family, with two kids 
     living in Indianapolis will pay 106% more. And on and on.
       These increases are solely the result of ObamaCare--above 
     and far beyond the status quo--because its strict 
     restrictions on underwriting and risk-pooling would distort 
     insurance markets. All but a handful of states have rejected 
     regulations like ``community rating'' because they encourage 
     younger and healthier buyers to wait until they need 
     expensive care, increasing costs for everyone. Benefits and 
     pricing will now be determined by politics.
       As for the White House's line about cutting costs by 
     eliminating supposed ``waste,'' even Victor Fuchs, an eminent 
     economist generally supportive of ObamaCare, warned last week 
     that these political theories are overly simplistic. ``The 
     oft-heard promise `we will find out what works and what does 
     not' scarcely does justice to the complexity of medical 
     practice,'' the Stanford professor wrote.
       Steep declines in choice and quality. This is all of a 
     piece with the hubris of an Administration that thinks it can 
     substitute government planning for market forces in 
     determining where the $33 trillion the U.S. will spend on 
     medicine over the next decade should go.
       This centralized system means above all fewer choices; what 
     works for the political class must work for everyone. With 
     formerly private insurers converted into public utilities, 
     for instance, they'll inevitably be banned from selling 
     products like health savings accounts that encourage more 
     cost-conscious decisions.
       Unnoticed by the press corps, the Congressional Budget 
     Office argued recently that the Senate bill would so 
     ``substantially reduce flexibility in terms of the types, 
     prices, and number of private sellers of health insurance'' 
     that companies like WellPoint might need to ``be considered 
     part of the federal budget.''
       With so large a chunk of the economy and medical practice 
     itself in Washington's

[[Page 32997]]

     hands, quality will decline. Ultimately, ``our capacity to 
     innovate and develop new therapies would suffer most of 
     all,'' as Harvard Medical School Dean Jeffrey Flier recently 
     wrote in our pages. Take the $2 billion annual tax--rising to 
     $3 billion in 2018--that will be leveled against medical 
     device makers, among the most innovative U.S. industries. 
     Democrats believe that more advanced health technologies like 
     MRI machines and drug-coated stents are driving costs too 
     high, though patients and their physicians might disagree.
       ``The Senate isn't hearing those of us who are closest to 
     the patient and work in the system every day,'' Brent 
     Eastman, the chairman of the American College of Surgeons, 
     said in a statement for his organization and 18 other 
     speciality societies opposing ObamaCare. For no other reason 
     than ideological animus, doctor-owned hospitals will face 
     harsh new limits on their growth and who they're allowed to 
     treat. Physician Hospitals of America says that ObamaCare 
     will ``destroy over 200 of America's best and safest 
     hospitals.''
       Blowing up the federal fisc. Even though Medicare's 
     unfunded liabilities are already about 2.6 times larger than 
     the entire U.S. economy in 2008, Democrats are crowing that 
     ObamaCare will cost ``only'' $871 billion over the next 
     decade while fantastically reducing the deficit by $132 
     billion, according to CBO.
       Yet some 98% of the total cost comes after 2014--remind us 
     why there must absolutely be a vote this week--and most of 
     the taxes start in 2010. That includes the payroll tax 
     increase for individuals earning more than $200,000 that rose 
     to 0.9 from 0.5 percentage points in Mr. Reid's final 
     machinations. Job creation, here we come.
       Other deceptions include a new entitlement for long-term 
     care that starts collecting premiums tomorrow but doesn't 
     start paying benefits until late in the decade. But the worst 
     is not accounting for a formula that automatically slashes 
     Medicare payments to doctors by 21.5% next year and deeper 
     after that. Everyone knows the payment cuts won't happen but 
     they remain in the bill to make the cost look lower. The 
     American Medical Association's priority was eliminating this 
     ``sustainable growth rate'' but all they got in return for 
     their year of ObamaCare cheerleading was a two-month patch 
     snuck into the defense bill that passed over the weekend.
       The truth is that no one really knows how much ObamaCare 
     will cost because its assumptions on paper are so 
     unrealistic. To hide the cost increases created by other 
     parts of the bill and transfer them onto the federal balance 
     sheet, the Senate sets up government-run ``exchanges'' that 
     will subsidize insurance for those earning up to 400% of the 
     poverty level, or $96,000 for a family of four in 2016. 
     Supposedly they would only be offered to those whose 
     employers don't provide insurance or work for small 
     businesses.
       As Eugene Steuerle of the left-leaning Urban Institute 
     points out, this system would treat two workers with the same 
     total compensation--whatever the mix of cash wages and 
     benefits--very differently. Under the Senate bill, someone 
     who earned $42,000 would get $5,749 from the current tax 
     exclusion for employer-sponsored coverage but $12,750 in the 
     exchange. A worker making $60,000 would get $8,310 in the 
     exchanges but only $3,758 in the current system.
       For this reason Mr. Steuerle concludes that the Senate bill 
     is not just a new health system but also ``a new welfare and 
     tax system'' that will warp the labor market. Given the 
     incentives of these two-tier subsidies, employers with large 
     numbers of lower-wage workers like Wal-Mart may well convert 
     them into ``contractors'' or do more outsourcing. As more and 
     more people flood into ``free'' health care, taxpayer costs 
     will explode.
       Political intimidation. The experts who have pointed out 
     such complications have been ignored or dismissed as 
     ``ideologues'' by the White House. Those parts of the health-
     care industry that couldn't be bribed outright, like Big 
     Pharma, were coerced into acceding to this agenda. The White 
     House was able to, er, persuade the likes of the AMA and the 
     hospital lobbies because the Federal government will control 
     55% of total U.S. health spending under ObamaCare, according 
     to the Administration's own Medicare actuaries.
       Others got hush money, namely Nebraska's Ben Nelson. Even 
     liberal Governors have been howling for months about 
     ObamaCare's unfunded spending mandates: Other budget 
     priorities like education will be crowded out when about 21% 
     of the U.S. population is on Medicaid, the joint state-
     federal program intended for the poor. Nebraska Governor Dave 
     Heineman calculates that ObamaCare will result in $2.5 
     billion in new costs for his state that ``will be passed on 
     to citizens through direct or indirect taxes and fees,'' as 
     he put it in a letter to his state's junior Senator.
       So in addition to abortion restrictions, Mr. Nelson won the 
     concession that Congress will pay for 100% of Nebraska 
     Medicaid expansions into perpetuity. His capitulation ought 
     to cost him his political career, but more to the point, what 
     about the other states that don't have a Senator who's the 
     60th vote for ObamaCare?
       ``After a nearly century-long struggle we are on the cusp 
     of making health-care reform a reality in the United States 
     of America,'' Mr. Obama said on Saturday. He's forced to 
     claim the mandate of ``history'' because he can't claim the 
     mandate of voters. Some 51% of the public is now opposed, 
     according to National Journal's composite of all health 
     polling. The more people know about ObamaCare, the more 
     unpopular it becomes.
       The tragedy is that Mr. Obama inherited a consensus that 
     the health-care status quo needs serious reform, and a 
     popular President might have crafted a durable compromise 
     that blended the best ideas from both parties. A more honest 
     and more thoughtful approach might have even done some good. 
     But as Mr. Obama suggested, the Democratic old guard sees 
     this plan as the culmination of 20th-century liberalism.
       So instead we have this vast expansion of federal control. 
     Never in our memory has so unpopular a bill been on the verge 
     of passing Congress, never has social and economic 
     legislation of this magnitude been forced through on a purely 
     partisan vote, and never has a party exhibited more sheer 
     political willfulness that is reckless even for Washington or 
     had more warning about the consequences of its actions.
       These 60 Democrats are creating a future of epic increases 
     in spending, taxes and command-and-control regulation, in 
     which bureaucracy trumps innovation and transfer payments are 
     more important than private investment and individual 
     decisions. In short, the Obama Democrats have chosen change 
     nobody believes in--outside of themselves--and when it passes 
     America will be paying for it for decades to come.

                               Exhibit 2

                      Conservative Action Project

       The Conservative Action Project, chaired by former Attorney 
     General Edwin Meese, is designed to facilitate conservative 
     leaders working together on behalf of common goals. 
     Participation is extended to leaders of groups representing 
     all major elements of the conservative movement--economic, 
     social and national security.
       Edwin Meese, former Attorney General; Steven G. Calabresi, 
     Professor, Northwestern Law School; Mathew D. Staver, Founder 
     & Chairman, Liberty Counsel; Curt Levey, Executive Director, 
     Committee for Justice; Marion Edwyn Harrison, Past President, 
     Free Congress Foundation; Kenneth Klukowski, Senior Legal 
     Analyst, American Civil Rights Union; Wendy Wright, 
     President, Concerned Women for America; J. Kenneth Blackwell, 
     Visiting Professor, Liberty School of Law; Grover Norquist, 
     President, Americans for Tax Reform; William Wilson, 
     President, Americans for Limited Government; Matt Kibbe, 
     President, Freedom Works; Jim Martin, President, 60 Plus 
     Association; David McIntosh, former Member of Congress, 
     Indiana; Colin A. Hanna, President, Let Freedom Ring; Tony 
     Perkins, President, Family Research Council; Brent Bozell, 
     President, Media Research Center; Brian McManus, Council for 
     Affordable Health Insurance; Karen Kerrigan, President, Small 
     Business & Entrepreneurship Council; T. Kenneth Cribb, former 
     Counselor to the U.S. Attorney General; Richard Viguerie, 
     Chairman, ConservativeHQ.com; Alfred Regnery, Publisher, 
     American Spectator.


                         MEMO FOR THE MOVEMENT

     The Individual Mandate in ``Obamacare'' is Unconstitutional
       Re: The mandate under the Obama-Pelosi-Reid healthcare 
     legislation requiring American citizens to purchase health 
     insurance violates the U.S. Constitution.
       Action: We urge you to make this point to members of the 
     U.S. Senate--and if a bill passes the Senate to impress upon 
     members of both chambers of Congress--that the key provision 
     in the healthcare legislation violates the U.S. Constitution.
       Issue: Mandating that individuals must obtain health 
     insurance, and imposing any penalty--civil or criminal--on 
     any private citizen for not purchasing health insurance is 
     not authorized by any provision of the U.S. Constitution. As 
     such, it is unconstitutional, and should not survive a court 
     challenge on that issue. Supporters of the legislation have 
     incorrectly contended that the legal justification for the 
     mandate is authorized by the Commerce Clause, the General 
     Welfare Clause, or the Taxing and Spending Clause. Given that 
     this mandate provision is essential to Obamacare; its 
     unconstitutionality renders the entire program untenable.
       The individual mandate is unconstitutional unless there is 
     a specific constitutional provision that authorizes it. The 
     federal government is a government of limited jurisdiction. 
     It has only enumerated powers. Therefore unless a specific 
     provision of the Constitution empowers a particular law, then 
     that law is unconstitutional. There is no such authorization 
     for the mandate.
       The individual mandate is not authorized by the Commerce 
     Clause. Most of those advocating the Democrats' bill say that 
     Congress can pass this legislation pursuant to its power to 
     regulate interstate commerce. That argument is incorrect, 
     because there is no interstate commerce when private citizens 
     do not purchase health insurance.
       The Commerce Clause only covers matters where citizens 
     engage in economic activity. The last time the Supreme Court 
     struck down a law for violating the Commerce

[[Page 32998]]

     Clause, in United States v. Morrison (2000), the Court did so 
     on the grounds that the activity in question was not an 
     economic activity.
       The Commerce Clause only extends to persons or 
     organizations voluntarily engaging in commercial activity. 
     Government can only regulate economic action; it cannot 
     coerce action on the part of private citizens who do not wish 
     to participate in commerce. In the most expansive case for 
     Congress' power to regulate interstate commerce, Wickard v. 
     Filburn (1942), the Court upheld the agricultural regulation 
     in question against a wheat farmer who earned his entire 
     living from growing and selling wheat, making him a willing 
     participant in interstate commerce.
       The Commerce Clause requires an actual economic effect, not 
     merely a congressional finding of an economic effect. When 
     the Court struck down the Violence Against Women Act in 
     United States v. Morrison (2000), the Court noted that 
     although the statute made numerous findings regarding the 
     link between such violence and interstate commerce, it held 
     that those findings did not actually establish an economic 
     effect. Therefore the various interstate-commerce findings in 
     the Senate version of the ``Obamacare'' legislation do not 
     make the bill constitutional.
       The individual mandate is not authorized under the General 
     Welfare Clause. The Supreme Court made clear in United States 
     v. Butler (1936) and Helvering v. Davis (1937) that the 
     General Welfare Clause only applies to congressional 
     spending. It applies to money going out from the government; 
     it does not confer or concern any government power to take in 
     money, such as would happen with the individual mandate. 
     Therefore the mandate is outside the scope of the General 
     Welfare Clause.
       The individual mandate is not authorized under the Taxing 
     and Spending Clause or Income Tax. The Constitution only 
     allows certain types of taxation from the federal government.
       The Article I Taxing and Spending Clause permits duties, 
     imposts, excises and capitation taxes--duties, imposts and 
     excises are taxes on purchases. A capitation tax is a tax 
     that every person must pay, and the Constitution's 
     apportionment rule requires that every person in each state 
     must pay exactly the same amount. The Obamacare mandate is 
     imposed on people who are making no purchase, and is a tax 
     that some people in a state would pay, but others do not.
       The Sixteenth Amendment allows an income tax. An income tax 
     is imposed only on earnings, but people would have to pay 
     this tax even if they had no income.
       Therefore it cannot be any of these constitutionally-
     permitted taxes.
       The individual mandate is unconstitutional regardless of 
     whether there are criminal penalties involved. There is no 
     distinction between criminal and civil penalties for 
     determining the constitutionality of legislation, and the 
     penalty imposed in Wickard v. Filburn (1942) was not a 
     criminal penalty. Therefore even if the criminal sanctions 
     were removed from the legislation, the imposition of any 
     penalty or consequence for not purchasing insurance renders 
     the mandate unconstitutional.
       The individual mandate cannot be properly compared to 
     requiring auto insurance. President Obama said in a Nov. 9 
     interview on ABC television that requiring people to buy 
     health insurance and penalizing those that do not buy is 
     acceptable because people are required to buy car insurance. 
     That statement is untrue.
       Only state governments can require people to get car 
     insurance. While the federal government is limited to the 
     powers enumerated in the Constitution, the states have a 
     general police power. The police power enables state 
     governments to pass laws for public safety and public health. 
     The federal government has no general police power, and 
     therefore could not require car insurance.
       States do not require people to purchase car insurance. 
     Driving a car is a privilege, not a right. States require 
     people to get insurance only as a condition for those people 
     who voluntarily choose to drive on the public roads. If a 
     person chooses to use public transportation, or use a bicycle 
     instead of a car, or operate a car only on their own 
     property, they are not required to have car insurance, and 
     cannot be penalized for lacking insurance.


  FOR ADDITIONAL INFORMATION ON THE UNCONSTITUTIONALITY OF THE HEALTH 
               CARE MANDATE, PLEASE VISIT THESE WEBSITES

       http://www.washingtonpost.com/wpdyn/content/article/2009/
08/21/AR2009082103033.html
       http://www.politico.com/news/stories/1009/28463.html
       http://www.politico.com/news/stories/1009/28620.html
       http://www.politico.com/news/stories/1009/28787.htm1
       http://www.foxnews.com/opinion/2009/10/30/ken-klukowski-
open-letter-pelosi-gibbs-constitution-individual-mandate/
 http://www.washingtontimes.com/news/2009/nov/02/beware-the-
health-insurance-police/
 http://www.heritage.org/Research/LegalIssues/1m0049.cfm
       http://blogs.abcnews.com/politicalpunch/2009/11/interview-
with-the-president-jail-time-for-those-without-health-care-
insurance.html
       http://hatch.senate.gov/public/index.cfm?
 FuseAction=PressReleases.Detail&Press
     Release_id=097a758af3-1b78-be3e-e03a-c0eea6d515c.5

  The PRESIDING OFFICER. The Senator from Nevada is recognized.
  Mr. ENSIGN. Mr. President, I know we are waiting for the chairman of 
the Finance Committee to come. I ask unanimous consent to speak in the 
meantime, in these few seconds.
  I thank the senior Senator from Utah. He is one of the best 
constitutional scholars we have here in the Senate. I appreciate his 
words and analysis on why this bill is unconstitutional. I think his 
words this morning were eloquent. I appreciate his support as I raise 
this constitutional point of order.
  I yield to the Senator from Montana, the chairman of the Finance 
Committee.
  The PRESIDING OFFICER. The Senator from Montana is recognized.
  Mr. BAUCUS. Mr. President, I have a unanimous consent request that I 
understand has been cleared by both sides.
  I ask unanimous consent that after Senator Ensign raises the point of 
order that the Reid substitute amendment No. 2786 is in violation of 
the Constitution, the point of order be set aside to recur on 
Wednesday, December 23, at a time to be determined by the majority and 
Republican leaders.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The Senator from Nevada is recognized.
  Mr. ENSIGN. Mr. President, I rise to make a constitutional point of 
order against this bill on the grounds that it violates Congress' 
enumerated powers in article I, section 8 and that it violates the 
fifth amendment of the Constitution. I ask for the yeas and nays.
  The PRESIDING OFFICER. Pursuant to the unanimous consent, the point 
of order shall be set aside until a time tomorrow to be determined by 
the majority leader and the minority leader.
  Is there a sufficient second? There appears to be a sufficient 
second. The yeas and nays are ordered on the point of order.
  Mr. ENSIGN. 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. SESSIONS. 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. SESSIONS. Mr. President, I would like to share some thoughts on a 
central issue to this health care reform legislation. It is something 
that has gotten away from us. I do not believe we fully comprehended 
it. It is a critical issue.
  It seems to me we are double-counting the money. We are counting 
money twice--maybe the largest amount of money ever having been counted 
twice in the history of the world. It is very dangerous with regard to 
the financial viability of the legislation we are looking at today.
  It was promised by the President that this legislation would not add 
one dime to the national debt. He said yesterday that this legislation 
would strengthen Medicare. This is his quote:

       . . . and Medicare will be stronger and its solvency 
     extended by nearly a decade.

  I don't think that is accurate. We have had other Members of the 
Democratic leadership say that.
  What we know is we have, I think it is about $460 billion in tax 
increases and $490 billion in tax increases and a little less than 
that, $400-and-some-odd billion in savings to Medicare, and that 
accounts for the $871 billion the bill is supposed to cost in the first 
10 years. Of course, that is not an accurate ultimate cost since most 
of the benefits in the bill do not start until the fifth year. So when 
you go the first full 10 years of the bill, it costs $2.5 trillion. 
But, regardless, let's take this first 10 years. The assertion is that 
Medicare can be improved and that we can take money from it and that 
this is going to

[[Page 32999]]

make Medicare stronger and that somehow this is going to extend the 
solvency of Medicare, which is going insolvent by 2017. That is because 
more and more people are retiring and people are living longer, among 
other reasons. So the cost of Medicare goes up.
  I guess what I am framing now is what I believe to be a matter of the 
greatest importance. The argument is that somehow, by cutting benefits 
in Medicare by almost $\1/2\ trillion, we are somehow strengthening 
Medicare. That would be true if the money that was taken out of 
Medicare Programs and benefits and providers who are providing the 
benefits--if that money were maintained in Medicare.
  They go to the CMS, the institution that keeps up with Medicare 
costs, the Center for Medicare and Medicaid Services, the Chief Actuary 
there, Mr. Richard Foster, and they ask him: Won't these reductions in 
Medicare expenses extend the life of Medicare? And he said yes. OK. He 
said yes. He writes this:

       We estimate that the aggregate net savings to the Part A 
     trust fund under the PPACA--

  That is the health care reform bill--

     would postpone the exhaustion of the trust fund assets by 9 
     years--that is from 2017 under current law to 2026 under the 
     proposed legislation.

  Great. That is not a bad result. But then he goes on. I think he was 
simply asked: If you reduce spending in Medicare by effecting these 
cuts and reductions in Medicare, will it extend the life? And he said 
it would. However, I think he felt he might have been used, and so he 
didn't leave it right there. I think he believed there was something 
else afoot in this deal. He goes on to say this:

       In practice, the improved Part A financing--

  That is what he is talking about, these cuts--

     . . . the improved Part A financing cannot be simultaneously 
     used to finance other Federal outlays (such as the coverage 
     expansions under the PPACA)--

  The health care bill--

     and to extend the trust fund, despite the appearance of this 
     result from the respective accounting conventions.

  Maybe I am wrong about this. I am happy to have a lot of people look 
at it. Wait a minute, we have the President of the United States 
yesterday saying that Medicare will be stronger and its solvency 
extended for nearly a decade. We have Senator Durbin and I think 
Senator Baucus and others saying the same thing. We are talking about 
$400 billion.
  So I would think this Congress can get a straight answer somewhere. 
Don't you? Well, I have been asking staff, and they say it is double 
counting.
  I said: What do you mean it is double counting?
  Well, Senator Gregg, the ranking Republican on the Budget Committee--
former chairman of the Budget Committee--said it is double accounting. 
He offered an amendment, a simple amendment that said any money that is 
saved in Medicare stays in Medicare. Did that pass? No. They voted that 
down. That should be a signal, I submit. That should be a red flag.
  So now I am looking at this really, really hard because the way I see 
the financial accounting of the bill, perhaps the largest bogus part of 
it is to say that the money that is being saved from Medicare is going 
to create this new program and, at the same time, saying the savings in 
Medicare are going to be used to extend the life of Medicare. You 
cannot do both.
  That is what Mr. Foster said in his letter of December 10:

       In practice, the improved Part A financing--

  He is talking about the improved Part A financing of Medicare by 
these cuts--

     the improved Part A financing cannot be simultaneously used 
     to finance other Federal outlays (such as the coverage 
     expansions under the PPACA) and to extend the trust fund. . . 
     .

  All right. You got it? Let's go back and leave out the parentheses:

       . . . the improved Part A financing cannot be 
     simultaneously used to finance other Federal outlays . . . 
     and to extend the trust fund, despite the appearance of this 
     result from the respective accounting conventions.

  So they got CBO to score it as if the money is going into the new 
health care reform, and they got CMS to score it as if it is saving 
Medicare.
  Now, I was a Federal prosecutor for a long time. I know the 
responsibilities placed on presidents of corporations. If the president 
of a corporation were to issue a prospectus and ask people to invest 
money in his company and support his program, his agenda, and he said: 
I have $400 billion or $400,000 I am going to spend in it, and he knew 
the money was being spent on something else and he did not really have 
that money, that is a criminal offense, and people would go to jail for 
it.
  I am worried about it; I really am. This is unbelievable. So we are 
going to get to the bottom of this. If I am wrong, I would like to see 
where the money is coming from. So my question to my colleagues is--and 
apparently this has been asked by staff for weeks and they have never 
gotten a straight answer--where do you get this $871 billion? How much 
of that are you counting coming from savings in Medicare; and where, 
precisely, are you getting it from Medicare? If you are going to spend 
it on the new program, how are you going to say it is going to 
strengthen Medicare as to its insolvency problem?
  You cannot count the money twice, and I believe that is what Mr. 
Foster was suggesting; that you cannot simultaneously count the money 
``despite the appearance of this result from the respective accounting 
conventions.'' What he is saying is, CBO is following proper accounting 
conventions for their scoring and CMS is doing it their way and it 
gives the appearance that you have some money that can be spent twice. 
But he said you cannot simultaneously use the same money. Now, isn't 
that true? But in this body, I do not know.
  What is another fundamental matter of budgetary importance that goes 
with it? The President has repeatedly said that not one dime will be 
added to the national debt, and it should not be. We cannot continue to 
do that. So when this legislation started, the idea was we needed to 
reform a lot of problems in our health care situation.
  One of the problems everybody recognized was that the doctors are not 
getting paid in a proper fashion for the work they do. Under the 
Balanced Budget Act of 1997, we effected rules on how much doctors 
should be paid, and if those rules went into effect today, doctors 
would have a 21-percent pay cut on all Medicare work. Already Medicare 
physicians are leaving the practice because they get paid much less 
from the Federal Medicare Program than they do from private health 
insurance. So they would rather do private work than Medicare. But they 
do Medicare--most doctors do--but if you took them another 21 percent 
down, they would not.
  Every year, they come here and ask the Congress to waive this cut, 
and Congress--as part of the duplicity of this body that has gone on 
under both parties, but each year it gets worse and worse--we fix it, 
and we do not execute the cut. But we only do it for 1 year. So when we 
have a budget, it assumes a 10-year budget. As President Obama 
submitted it to us, it assumes in the first year you pay the physicians 
and you do not cut their pay. Then for 9 years you assume they get a 
21-percent reduction. It is a gimmick because you cannot cut the 
physicians 21 percent; and we know that. If we budgeted for the full 
amount, we are going to have to pay physicians, and we are going to pay 
physicians, then there would be a big hole because we do not have the 
money and we either have to cut something else, raise taxes, or raise 
the debt. What we have been doing is paying for it with more debt.
  Well, each year, the doctors get all upset because they are staring 
at a 21-percent pay cut. All their representatives in the AMA and 
everybody come up every year and tell us: Don't cut our pay, and we do 
not--1 year at a time.
  This is a misrepresentation. It hides the financial precariousness of 
our position. It is not good. It should never continue. It needs to be 
permanently fixed, and that was supposed to be part

[[Page 33000]]

of health care reform from the beginning. The President said that is 
what he was going to do. The leadership on the other side said that is 
what they were going to do.
  But what happened--when they met in their secret rooms, and they all 
wheeled and dealed and tried to add up these numbers and see how they 
could manipulate numbers and scores and accounting to make it add up so 
they could say it would not add one penny to the debt--they could not 
get around the $250 billion it takes to pay the doctors. They could not 
do it.
  They say, under this bill, there is a $130 billion surplus over the 
first 10 years. But it does not fix the doctor payments for Medicare in 
health care work, Medicaid. It does not fix it. So when you fix it, it 
costs $250 billion. There is no dispute about that. We have analyzed 
that. The accounting numbers are clear: $250 billion.
  So what the Democrats tried to do--it was a clever--Senator Ensign 
referred to it the other day as a shell game. They moved the doctor fix 
out of the health care reform--just took it out--and so, therefore, you 
do not have the $250 billion hole and you just put it over here. They 
thought they would be clever, they would just pass it, and we would add 
it all to the debt. They tried to do so, so they could tell the doctors 
they tried to vote to have a permanent fix of their payments. 
``Doctors, we are going to take care of it. We'll just pass it, and 
every penny of this will add to the debt.''
  Well, 13 Democrats would not swallow that, and I think every 
Republican opposed it, and it went down. So now I think we have a 2-
month fix. Two months is where we are working from today, so we would 
not have a slashing of payments to physicians by failure to fix it.
  So they just took it out, and I assume we are going to have some 
other gimmick to hide that $250 billion. So if you put the $250 billion 
cost into health care reform, you end up with a $120 billion deficit 
right off the bat. Then, when you get into this double accounting of 
$450 billion, you have really got a mess. They are estimating $871 
billion in income for the first 10 years of this plan. As I analyze it, 
you have a $250 billion hole from not paying the doctors, and then you 
have a $400-plus billion double accounting--the savings from Medicare.
  So it is just not good. I am telling you, we only have one President. 
He has a lot of things on his mind, and it is very frustrating. But I 
will say one more thing he said at that press conference. He said, and 
he has repeatedly stated: It is going to reduce health care premiums 
for your insurance. Right? This was yesterday, after this bill passed. 
He says he is tired of people carping about the cost of the bill. 
Remember him saying that--tired of these carpers? I guess he is talking 
about me because I have been carping about the cost of it for some time 
because the numbers do not add up.
  All right. They claim the legislation will reduce insurance costs. 
This is the score of the CBO about small businesses. What about 
insurance premiums? If you are small businesses, the average premiums 
today for a family is $13,300. If the Reid bill passes, by 2016 the 
premiums will be $19,200. Is that cutting premiums? Well, yes, it is 
because under the Reid bill it would increase, on average, 5.38 
percent. But if we did not pass any bill at all, it would increase it 
5.46 percent. So it saved money; it reduced your premium. It will be 
$19,200 instead of $19,300. That is for small businesses.
  What about for large businesses? Does it cut insurance premiums 
there? For large business plans, under the Reid bill, the increase, if 
we pass this legislation, would be 5.41 percent per year in your 
premiums. If you do not pass the bill at all, it would be 5.56 percent. 
Is that a savings? Very little. Instead of $21,100, under the Reid bill 
you would pay $20,300.
  Then, finally, the individual market--this is the people who already 
are the ones who are getting hurt because they are not in group plans; 
they don't have employers paying a third, a half, or whatever, for 
insurance; they don't get the same tax breaks. They are getting killed. 
Barbers, individual people who can't get into group plans, it is 
horrible for them. What happens to the individual market? Under the 
Reid bill, their premiums would go up 7.77 percent per year. They would 
go up more than the others. What about if we didn't do anything? How 
much would their bills go up then, their insurance bills? Only 5.51 
percent. Theirs go up more than 2 percent.
  So I am just saying this legislation may have a great vision, it may 
have a great idea about trying to make the system work better, but it 
doesn't. These are huge costs. It is not financially sound. It is not 
going to reduce our premiums. It is going to increase the percentage of 
wealth in America going to health care instead of reducing it as I 
thought we were supposed to do from the beginning.
  I see my colleague, Senator Kyl, here. I would just leave it at that. 
I thank my colleagues. But if I am correct about these numbers, we 
shouldn't vote for the bill. People should change their vote. If I am 
in error, I would like to be informed of how I am in error.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Burris). The Senator from Arizona.
  Mr. KYL. Mr. President, I listened carefully to what my colleague 
said, and as a member of the Finance Committee, I can tell him that he 
is not in error. What he said about premiums going up under this 
legislation is true. The promise was that premiums would not go up. 
Well, they continue to go up. In fact, in the case of the individual 
market, the legislation itself causes them to go up between 10 and 13 
percent. My colleague is not in error.
  If the Reid bill has a motto, it is ``in government we trust.'' With 
the turn of every page, it is no exaggeration to say the Reid bill 
creates a Washington takeover of health care, to wit, $2.5 trillion in 
new government spending; $494 billion in new taxes; $465 billion in 
Medicare cuts; 70 new government programs; and higher health insurance 
premiums for individuals, families, and businesses. It is packed with 
new Federal requirements and mandates that amount to a stunning assault 
on liberty. Even in the absence of a government-run insurance plan, 
this bill would give the government virtually total control over health 
care. The bill itself is the government option.
  Michael Cannon, a health policy expert at the Cato Institute, warns 
that the bill's linchpin, the requirement that all individuals buy a 
government-approved insurance plan, would be ``the most sweeping and 
dangerous measure in any of the bills before Congress.''
  Of course, if Congress mandates that every American purchase health 
insurance, then Congress gets to define exactly what that health 
insurance entails. Welcome to the future, where bureaucrats and 
politicians know what is best for families, small businesses, and 
seniors. For example, under this legislation the government would set 
new Federal rating rules. Rating rules dictate how insurers may 
calculate premiums, which experts estimate would increase premiums by a 
whopping 72 percent in my home State of Arizona. They would determine 
the coverage benefits for all plans regardless of consumer preferences 
or health care needs. The government would limit insurers to offering 
only four plans. You have to offer two; you can't offer any more than 
four. They would prohibit individuals over the age of 30 from enrolling 
in a catastrophic health care plan. And to highlight the magnitude of 
government interference and micromanagement, the bill even dictates the 
number of pages--by the way, it is no more than 4--and the font size--
no smaller than 12 point--of the summary of benefits. These are just a 
few examples of the heavyhanded government controls. Indeed, the word 
``shall'' appears 3,607 times in the Reid bill. I haven't had a chance 
yet to count how many more times it appears in the almost 400-page 
amendment that has been now filed.
  In my view, however, the most dangerous consequence of the Washington 
takeover of health care is the inevitable rationing that will result in 
the delay and denial of care. Ensuring access to the highest quality 
care and protecting the sacred doctor-patient relationship should be 
the fundamental

[[Page 33001]]

goals of any health reform effort. These intangibles are the 
cornerstones of U.S. health care, the very things Americans value most, 
that the Reid bill puts in jeopardy. Don't look for the words 
``ration'' or ``withhold coverage'' or ``delay access to care'' in the 
bill. Obviously, they are not there. Instead, contemplate the 
inevitable result of new Federal rules that aim to reduce health care 
costs but will inevitably result in delayed or denied tests, 
treatments, and procedures deemed to be too expensive. For example, the 
Reid bill would establish a Medicare Commission. This is an unelected 
body of bureaucrats with the task of finding, and I am quoting here, 
``sources of excess cost growth,'' meaning, of course, tests and 
treatments that are allegedly too expensive or whose coverage would 
mean too much government spending on seniors. The Commission's 
decisions will result in the delay and denial of care.
  Medicare already delays more medical claims than private insurers do, 
but this bill would redistribute Medicare payments to physicians based 
on how much they spend treating seniors. It would rely on 
recommendations from the U.S. Preventive Services Task Force--the 
entity, by the way, that recently recommended against mammograms for 
women under the age of 50--to set preventive health care benefits, and 
it would authorize the Federal Government to use comparative 
effectiveness research when making coverage determinations. It is this 
last issue--comparative effectiveness research--that I wish to discuss 
in more detail.
  The Reid bill would create a new entity called the Patient-Centered 
Outcomes Research Institute to conduct comparative effectiveness 
research. This research, which is already done in the private sector, 
compares the effectiveness of two or more health care services or 
treatments, and, of course, it is used to provide doctors with 
information as to what works best in most cases. The goal is to provide 
patients and doctors with better information regarding the risks and 
benefits of a drug, let's say, for example, versus surgery in a 
particular kind of case. The question before us is not as to the merits 
of the research but, rather, whether the research should be used by the 
government to determine the treatments and services covered by 
insurance.
  In a recent interview, President Obama said:

       What I think the government could do effectively is to be 
     an honest broker in assessing and evaluating treatment 
     options.

  The President believes the government should assess and evaluate 
health care treatments, and certainly that is how health care works in 
other countries such as Great Britain. For example, there, they have 
the National Institute for Health and Clinical Excellence; the acronym 
is NIHCE. NIHCE routinely uses comparative effectiveness research to 
make cost-benefit calculations. They don't even attempt to hide it. On 
its Web site, NIHCE says:

       With the rapid advancement in modern medicine, most people 
     accept that no publicly funded health care system, including 
     the National Health Service, can possibly pay for every new 
     medical treatment which becomes available. The enormous costs 
     involved mean that choices have to be made.

  Choices are made, and this is the key: They are made by the 
government, not by patients and doctors.
  The National Health Service, which runs Britain's health care system, 
has issued guidance known as the Liverpool Care Pathway whereby a 
doctor can withdraw fluids and drugs from a patient if the medical team 
diagnoses that the patient is close to death. Many are then put on 
continuous sedation so that they die free of pain. Doctors warn that 
some patients are being wrongly put on the pathway, which is creating a 
self-fulfilling prophecy that they would die because sedation often 
masks the signs of improvement.
  Also, due to excessively long waiting periods, the National Health 
Service launched what they call an End Waiting, Change Lives campaign. 
The goal here was to reduce patients' waiting times to 18 weeks from 
referral to treatment--18 weeks. That is supposed to be a good thing? 
That is 4\1/2\ months for an appointment. This is why many Europeans 
and Canadians visit the United States each year, places such as the 
Mayo Clinic in Arizona, for access to the treatments that are denied to 
them in their own countries.
  These are the dangers of a government-run health care system. The 
government, not the patients and doctors, makes the health care 
decisions. The government decides if your health care is an effective 
use of government resources, and the government inevitably interferes 
in your ability to access care. That is rationing, and it is wrong. 
This is not what Americans want or expected from health care reform. 
Yet it is precisely the path Congress is taking. Perhaps that is why 61 
percent of Americans disapprove of this bill.
  Nothing in the Reid bill would prohibit the Federal Government from 
using comparative effectiveness research, just as it has done in 
Britain, as a tool to delay or deny coverage of a health care treatment 
or service. The bill actually empowers the Secretary of Health and 
Human Services to use comparative effectiveness research when making 
coverage determinations. For example, on page 1,684 of the original 
bill, it says:

       The Secretary may only use evidence and findings from 
     research conducted under section 1181 to make a determination 
     regarding coverage . . .

  And so on.
  As the Washington Examiner notes:

       Health and Human Services Secretary Kathleen Sebelius would 
     be awarded unprecedented new powers under the proposal, 
     including the authority to decide what medical care should be 
     covered by insurers as well as the terms and conditions of 
     coverage and who should receive it. The Reid legislation 
     lists 1,697 times where the Secretary is given the authority 
     to create, determine, or define things in the bill.

  I know my colleagues will point to language that says: Well, the 
Secretary can't make these decisions on rationing care solely on the 
basis of comparative effectiveness research. Whoopee. I am not sure if 
that is a word we can use on the Senate floor, but big deal. You can't 
make it solely on that basis, but you can use comparative effectiveness 
research to ration care. That is wrong, and that is what this bill 
permits. And despite numerous times to get a simple amendment I offered 
to say no comparative effectiveness research can be used by a Federal 
agency to deny care or treatment--simple--the other side says: No, we 
already have it covered. It is good enough. Our language is fine. You 
don't need that simple statement that would prevent this research from 
being used in that fashion. I think it is pretty clear that the attempt 
here is to be able to do it.
  During the Finance Committee, I asked the majority counsel why they 
didn't bar the Federal Government from using comparative effectiveness 
research as a tool to ration care. The staff replied:

       The reason why we did not include an express prohibition is 
     we did not want to limit the institute from considering areas 
     of science that have a budgetary impact, if you will.

  That is, of course, precisely the problem. Americans do not want the 
Federal Government using this research as a cost-cutting tool.
  Regina Herzlinger, a professor at Harvard Business School, warns: CER 
could easily morph into an instrument of health care rationing by the 
Federal Government without the appropriate safeguards.
  That is why earlier this year I joined Senator McConnell and Senator 
Roberts and Senator Crapo in introducing the PATIENTS Act, and it 
creates this firewall to prevent the use of research for rationing. We 
filed it as an amendment, but, of course, we are not going to be able 
to vote on it now that cloture has been invoked. This is the third time 
this year we have tried to institute this pro-patient firewall, but 
obviously we are not going to be able to vote on it, as I said.
  From the very beginning of the health care reform debate, I have 
believed that any bill should be rooted in a simple yet fundamental 
principle: that very American should be able to choose the doctor, 
hospital, and health plan of his or her choice. No Washington 
bureaucrat should interfere

[[Page 33002]]

with that right or substitute the government's judgment for that of a 
physician. There is nothing more important to Americans, other than 
maybe their freedom, than the health of their family--and that does, by 
the way, include an element of freedom, obviously, the freedom to do 
what you think is best for your family. We would all do anything we 
could to help a loved one. We don't want Washington impeding our 
ability to do so.
  Maybe that is why this new Washington Post-ABC poll ``finds the 
public generally fearful that a revamped system would bring higher 
costs while worsening the quality of their care.'' Even, they say, 
those without insurance are evenly divided on the question of whether 
their care would be better if the system were overhauled.
  The American people get it. The bill itself is the government option, 
but in government, they do not trust.
  The PRESIDING OFFICER. The Senator from Louisiana is recognized.
  Ms. LANDRIEU. Mr. President, I come to the floor today in support of 
the Patient Protection and Affordability Act, and I wish to give some 
of the reasons why I am supporting this important piece of legislation.
  Before my colleague leaves the floor, I would like to respond to his 
last comment. One of the reasons the American people are having 
difficulty believing the government can do anything right is that he 
and his colleagues have spent the last several decades convincing them 
that the government is the problem and that the government can't do 
anything right.
  Even in the face of strong evidence that suggests otherwise, they 
continue that worn-out, tired mantra. People in my State and around the 
Nation are getting tired of it because they know that government must 
stand sometimes to protect them from abusive practices in the private 
marketplace, abusive practices of insurance companies, to try to level 
the playing field and set the rules. Of course, those on the other side 
don't believe in a level playing field and rules. They believe citizens 
in our country should be at the whim and mercy of the private market. 
That has been their philosophy for decades. That is not the philosophy 
of the Democratic Party. We believe in a public-private partnership. We 
believe in a level playing field. We believe in giving people the 
opportunity to earn their way, with fair rules in place. That party has 
never believed that, and that is at great issue in the underlying 
debate. They can continue to fabricate myths and lies about this bill, 
but those of us who support it will proudly continue to tell the truth 
about it.
  I have served in public office for 30 years as a State legislator, 
State treasurer, and now as a United States Senator. But it doesn't 
take 30 years to know the health care system our citizens live under 
and live with today is expensive, wasteful, and painfully inefficient.
  From my visits with doctors and nurses, to seniors on Medicare, to 
recent college graduates struggling to afford coverage, to dozens and 
dozens of small business owners who are frightened to death that they 
are not going to be able to continue in their business because of the 
rising cost of health care, it has become clear to me that the time for 
reform is now.
  In Louisiana, the average family spends more than $12,000 each year 
for health insurance. That is almost 100 percent of the earnings of a 
person who is working 40 hours a week at the minimum wage. Think about 
that. Only in one developed country in the world would we have a system 
that says if you go to work 40 or 50 hours a week, you have the 
privilege of taking all that money and having to purchase health care 
in the system that my colleagues on the other side want to advocate 
for. That is wrong. We must drive down the cost to the government, to 
businesses, and to families. This bill will begin to do that.
  Since 2000, the amount that working families are charged for health 
insurance has increased by 91 percent. That doesn't seem to concern my 
colleagues on the other side of the aisle. If this Congress stood by 
and did nothing, those costs would nearly double in the next 6 years, 
with economists predicting that families in my State will pay a 
whopping $23,000 for insurance in 2016--an 85-percent increase. To say 
that a different way, that means that if we do nothing, the average 
family in Louisiana will be paying 60 percent of their income for 
health care--if they can find it and if they can get around a 
preexisting condition--leaving only 40 percent of their wages to cover 
food, education, children, housing, transportation, and everything else 
families need their funds for.
  These skyrocketing costs are burdening families not just in Louisiana 
but in every State. We don't have a choice but to change. We cannot 
continue to rely just on the private market without reform, without 
guidelines, and without incentives to change. Our people will be priced 
out of the market. Maybe that is what my colleagues on the other side 
of the aisle want. That is not what I want.
  Small businesses are struggling to remain competitive and to turn a 
profit. In the face of highly unstable and unpredictable health care 
costs this is getting harder and harder. As chair of the Small Business 
Committee, I have held 23 hearings and roundtables just this year, and 
several of them have been focused on how the current health care system 
and volatile health care costs are hurting our Nation's small 
businesses.
  Today, small businesses are seeing their health care costs increase 
faster than the prices of the products and services they sell four 
times faster than the rate of inflation since 2001. Premiums for single 
policies increased by 74 percent for small businesses in the last eight 
years, according to a 2009 Kaiser Family Foundation survey. Nationally, 
40 percent of small businesses say that health care costs have had a 
negative impact on other parts of their business.
  What are we supposed to do, stand here and do nothing? No--that is 
why acting now is so important. That is why this bill is so important, 
because the status quo is unsustainable. It is unsustainable for our 
government and it is unsustainable for small businesses.
  Even though families, businesses, and government budgets are being 
squeezed by unsustainable costs, Senate Republicans are doing 
everything they can to argue for the status quo. Why? I don't know. 
Each day, they find a new excuse for their obstruction. I wish they had 
put the same amount of passion, energy, and creative thinking into 
contributing policies and ideas to this debate as they have into their 
delaying tactics. Every amendment they offered was to send the bill 
backward, not forward. They seem hell-bent on defeating and not 
improving this bill, contrary to their statements on the floor.
  The Republicans have charged that we are rushing in to vote for this 
bill. That is simply not true. We have been debating this issue on and 
off for the last 87 years.
  Republican President, Theodore Roosevelt, made national health 
insurance a plank in his party platform when he sought the Presidency 
in 1912. President Harry Truman, in 1945 and then again in 1948, called 
on Congress to pass reform legislation to expand quality health care 
coverage to more Americans. President Truman believed we needed a 
stronger system and that the federal government must play a role in 
establishing a more robust system of care. His critics called his 
approach ``socialized medicine.'' Sound familiar?
  Only in Washington would 87 years be considered rushing!
  This has been a debate that has gone on with particular intensity for 
the last 2 years, as our Presidential candidates took to the airwaves 
in debate after debate--Republican and Democratic--outlining their 
ideas for reform. This hasn't sprung up in the last 2 weeks. This 
hasn't sprung up in the last 2 months.
  Millions of Americans went to the polls, understanding, in large 
measure, what we needed to do to change the system. Despite the 
rhetoric from the other side, that is the reality, and the record will 
reflect that. Instead of coming to the table and working with Democrats 
to write a bipartisan bill, Republicans chose to put partisan party 
politics first. I listened to my

[[Page 33003]]

friend, Max Baucus, this morning. I, myself, who thought I had followed 
carefully the work of the Senate Finance Committee, was actually moved 
to hear the number of meetings--dozens and dozens, maybe hundreds and 
hundreds of meetings--he attempted to have in a bipartisan way months 
ago, years ago, with Republicans. Then, at some point, they decided 
they thought that politics was more important than policy. I think they 
made the wrong choice.
  They fabricated death panels, distorted Medicare cuts, and undermined 
and disrespected the role of government in protecting its citizens. 
They have engaged in a relentless misinformation campaign, aimed solely 
at using fear to sway public opinion against this bill.
  Recently--just yesterday--Senator John McCain, our colleague from 
Arizona, claimed that the American people are opposed to reform, and he 
speaks about the will of the majority. I remind my colleague from 
Arizona that the will of the majority spoke loud and clear last year 
when they elected President Obama to be President and decided not to 
elect him. The President is carrying out the will of the majority of 
the people by trying to provide for them hope and opportunity in an 
area that has eluded us for 87 years.
  This is a good effort, a strong effort, and I most certainly believe 
that the will of the American people is being heard. The other side has 
tried to paint a picture of a nation opposed to health care reform. 
Recent polls show otherwise. When we cut through the misinformation and 
scare tactics, when Americans hear what is in the bill, they 
overwhelmingly support it.
  According to a recent CNN poll, 73 percent of Americans support 
expanding Medicaid for the poor. Americans know what most of us know: 
Most people on Medicaid are the working poor. These are people who wake 
up early in the morning, work hard all day, and they go back home at 
night, often by taking public transportation because they don't have an 
automobile. They work hard. They are American citizens. But they don't 
have enough money to spend 60 percent or 80 percent of their income on 
health insurance in a broken, unbridled, unfixed private market. So we 
join together with our States to provide them access to care through 
the Medicaid system. I support that. And in this bill, the Federal 
Government will pick up a large share of the cost of expanding 
coverage.
  That same poll showed that providing subsidies for families that make 
up to $88,000 a year is favored by 67 percent of Americans. Additional 
regulations on insurance companies, such as banning denial of coverage 
for those with preexisting conditions are favored by 60 percent of the 
American people.
  I am one of the Democrats who didn't want to eliminate insurance 
companies. I believe in private markets. But there have to be certain 
rules and regulations in order for the private market to work for 
everyone, and not just for those with wealth or those with the inside 
scoop on how private markets work.
  So we are incentivizing a healthier insurance industry--not coddling 
it but encouraging it to be competitive and to provide services and 
coverage for more people in our country.
  A recent poll by the Mellman Group shows that support for this bill 
exists in all States. In my home State of Louisiana, when the 
provisions of the bill were actually read to voters, 57 percent of 
Louisianians supported the bill, with 43 percent strongly supporting 
the reform effort. And most importantly, 62 percent of Louisianians 
oppose using the filibuster to stop health care reform.
  I will read the language used in the poll because people say you can 
say anything in polls, which is true. If pollsters are not reputable, 
they can twist and distort. I will read the language used by the poll 
to describe the plan:

       The plan would require every American citizen to have 
     health insurance and require large employers to provide 
     coverage to their employees. It would require insurance 
     companies to cover those with pre-existing conditions and 
     prevent them from dropping coverage for people who get sick, 
     while providing incentives for affordable preventive care. 
     Individuals and small businesses that do not have coverage 
     would be able to select a private insurance plan from a range 
     of options sold on a National Insurance Exchange. Lower and 
     middle income people would receive subsidies to help them 
     afford this insurance, while those individuals who like the 
     coverage they already have will be able to keep their current 
     plan.

  This is a very accurate description of this bill before us--the 
Patient Protection and Affordable Care Act. It is not a government 
takeover. There is no public option. There is a national plan available 
now to every American, just like the Members of Congress and the 
Federal employees have. There will be exchanges--similar to shopping 
centers--and Americans will be go to the exchanges and choose from a 
number of insurance options. The prices will be more transparent. 
Administrative costs will be lowered. You will not need a Ph.D. to be 
able to read these policies--they will be written in plain English.
  Again, this is not a government takeover, as the other side claims. 
That is why 57 percent of people in Louisiana, when given the right 
information, without the rhetoric, without the railing, without the 
distortions, say: Absolutely, I am for a public-private partnership.
  The American people elected President Obama to bring about change. A 
big part of the change President Obama and Democrats promised during 
the campaign was improving health care for all Americans. Thanks to the 
President's leadership and the leadership of Senator Reid and many 
others, we are taking several meaningful steps toward fulfilling that 
promise.
  With the exception of two colleagues, Republicans have failed to 
negotiate in good faith. I want to say how much I respect our two 
colleagues from Maine, Senator Snowe and Senator Collins. I have been 
in dozens of meetings with both of them and know that they struggled 
mightily to find a way to work with us and to support this bill. I have 
not spoken with them in the last few days, so I will not discuss their 
reasons for withholding their support. I am sure they will express 
those on the floor. But I can say that they are the exception to the 
rule. I know Senator Grassley, Senator Graham, Senator Bennett, and a 
few others engaged early on. I want to acknowledge them and I 
appreciate their good will. But, unfortunately, the leadership of the 
Republican Party chose politics over policy. I am disappointed that not 
a single Republican could support an end to the filibuster. I suppose 
it is easy to stay unified when the only word in your vocabulary is NO. 
Although Democrats did not initially agree on exactly how to get there, 
we were united in saying yes to the common goal of delivering 
meaningful health care reform to America's families and small 
businesses. It has been difficult. Some of us come from very 
conservative States. Some of us come from liberal States. We have 
diverse populations in our States that have different needs and 
different views. It has not been pretty, but it has been a practical 
and hopefully a positive exercise that will bring comfort, support, and 
strength to the American people and to our economy.
  I do hold out hope that when we take our vote on final passage, 
Republicans will recognize this historic opportunity and vote in favor 
of this bill that will reduce costs and increase access to health care 
for millions of Americans.
  Last month, I stood here on the floor of the Senate to announce my 
intention to vote in favor of bringing Senator Reid's melded bill to 
the floor. At the time, I was very clear that my vote was not an 
indication that I supported that particular version of the bill. My 
vote was to bring that bill to the floor so that we could do the 
legislative work the American people sent us here to do.
  After weeks of floor debate and amendments and round-the-clock 
negotiations, that work has been completed. We produced a health care 
bill that is significantly improved from the one that came to the 
floor. I would like to share a few thoughts about why, in my view, it 
is improved.
  Through tough negotiations, Senate Democrats have developed a 
consensus

[[Page 33004]]

that blends the best of public and private approaches to reduce costs, 
expand coverage, and increase choice and competition for Americans and 
have done so without a government-run public option.
  Since I continue to hear distortions from my colleagues on the other 
side, let me be clear: there is no government-run public option in this 
bill. Instead, we reached an agreement to provide private health 
insurance plans to be sold nationwide. The Office of Personnel 
Management will negotiate lower premiums, just as they negotiate the 
plans currently available to Federal employees and to Members of 
Congress. Importantly, we ensured that at least one nonprofit plan will 
be offered in every State exchange and that the States cannot opt out 
at the whim of every Governor and legislature. For the first time in 
our Nation's history, Americans will have an opportunity to have the 
same kind of insurance that federal employees, including Members of 
Congress, have.
  In addition, there has been a lot of talk about the cost of this bill 
to the government and to taxpayers. There have been a number of false 
claims about how this bill will add to the deficit and be a burden to 
our children and grandchildren. The fact is, this bill is completely 
paid for and it will reduce the deficit by $132 billion over the next 
10 years and as much as $1.3 trillion in the following 10 years.
  Based on our efforts, the Congressional Budget Office and the 
Nation's premier economists have confirmed that premiums will go down 
over time or remain stable so that wages for millions of Americans can 
increase. When this bill is passed, 3l million uninsured Americans will 
have access to quality health coverage.
  This bill is a big step toward fiscal responsibility and a stronger 
economy. It aims to achieve these goals by streamlining the health 
insurance market, ensuring efficiency, and limiting insurance company 
administrative costs, and to some degree, their profits.
  It also imposes an excise tax on insurance companies with high-cost 
plans. This will encourage employers to be more value-conscious 
purchasers of health insurance. Employers are expected to choose 
cheaper plans, and as less capital is spent on health care, wages will 
go up for hard-working families. Economists predict that this could 
give American workers a $223 billion pay raise, amounting to $660 per 
household.
  I strongly urge that this provision be included in the final 
legislation. I know that there is fierce opposition to this on the 
House side. But--and the President has said this publicly and privately 
to us--this is one of the most significant provisions that will help 
drive down costs for the entire health care system. It cannot be 
jettisoned at this point in the debate. This provision must be in the 
bill for me to give my final support.
  We have also created administrative savings through insurance 
exchanges, and during Senate consideration of the bill we strengthened 
the Independent Medicare Advisory Board to find more ways to reduce 
cost growth and improve quality.
  The final Senate bill includes a substantial investment in community 
health centers and will provide funding to expand access to health care 
in rural communities and under-served urban areas as well. In 
Louisiana, federally-supported health clinics have saved the state over 
$354 million in emergency room visits by the uninsured. The legislation 
also expands access by increasing funding for rural health care 
providers and training programs for physician and other health care 
providers.
  There are many parts of the current bill that I am proud to have 
fought for. The bill creates health insurance exchanges that will 
provide individuals, families, and small businesses with a wide variety 
of affordable choices and ensure that they will always have coverage, 
whether they change jobs, lose a job, move or get sick. These state-
based exchanges will enable consumers to comparison shop online for 
health insurance which will drive down costs by increasing choice and 
competition.
  The exchange will help the uninsured obtain needed coverage and will 
also help the more than 200,000 Louisiana residents who currently do 
not have insurance through their employer to get quality coverage at an 
affordable price. Many of these Louisianians in the exchange will 
qualify for a tax credit to help them purchase the insurance of their 
choice.
  For example, in Calcasieu Parish, the median household income is 
$39,713. In the exchange created by this bill, the average family in 
Calcasieu would receive an affordability credit that limits what they 
spend on their premium to around 5.6% of their income or $2,225. 
Considering, right now the average Louisiana family is spending up to 
28% of their income on health care, this is a huge improvement.
  This version of the bill that we improved on the Senate floor now 
includes additional much-needed help for small business owners, led by 
Senator Lincoln, Senator Stabenow, myself, and other members of my 
committee. Senator Shaheen, Senator Cardin, Senator Hagan, Senator 
Bayh, and others worked very diligently on these provisions.
  While small businesses make up 74 percent of Louisiana's businesses, 
only 37 percent of them offered health coverage benefits in 2008. Of 
those, 62 percent say they are struggling to do so. Of the 64 percent 
who don't provide insurance, 87 percent say they can't afford it.
  I worked closely with Senator Stabenow to improve affordability and 
choices for small businesses and amended the bill to make the bridge 
credit available immediately to help small businesses afford health 
insurance for their employees, and improve the tax credits for small 
businesses. This means that small businesses who want to offer quality 
health insurance to their employees will get tax breaks right away, 
rather than waiting until 2011. I also worked with Senator Lincoln to 
expand the number of small businesses that will be eligible for tax 
credits so that more small businesses get help in offering health 
insurance coverage for their employees--allowing more small business 
workers to benefit. In all, these changes bring an additional $13 
billion in tax relief--on top of the $27 billion already in the bill--
to small businesses.
  If you own a small business of 25 or less employees here is how 
reform will help you: Businesses with 25 or less employees whose 
average annual wages are less than $50,000 will get immediate help 
through a three-year bridge credit. The creation of exchanges and a 2 
year exchange tax credit will lift the burden of excessive paperwork 
administrative costs. The exchanges will create more stable, secure 
choices for your employees
  In Louisiana, more than 50,000 small businesses could be helped by 
this small business tax credit proposal!
  This will help small business owners such as Mary Noel Black and her 
husband, who own a UPS franchise store in Baton Rouge. They offer their 
four employees group coverage and are willing to pay half the cost, but 
the premium rates have gone up so much that neither the workers nor the 
business can afford to pay the $3,600 a year per employee for 
insurance. To help Mary pay for the health insurance of each employee, 
beginning in 2011, Mary could get a $1,260 bridge credit per employee 
under this bill for 3 years. Then, in 2014, if she purchases coverage 
through the exchange, her business is eligible for an exchange credit 
of $1,800 per employee for an even more generous tax credit for another 
2 years. This savings could mean the difference between offering 
insurance or dropping coverage because instead of costing her business 
$14,400 a year now for her four employees--a cost that is just 
unaffordable--the tax credit could initially bring her cost down to 
$9,360 and later to $7,200.
  Through our work on the Senate floor during this public debate, we 
have made this good bill better for small business. Not only have we 
extended and expanded the small business tax credits, the legislation 
includes several amendments I authored to ensure small businesses 
continue to have a seat at the table once this bill is implemented.
  The bill requires that small businesses receive information regarding

[[Page 33005]]

reinsurance for early retirees, small business tax credits, and other 
issues specifically for small businesses regarding affordable health 
care options.
  It lists Small Business Administration resource partners as eligible 
recipients of exchange public awareness grants and will include all 
Small Business Administration partners in the program, including 
Women's Business Centers, SCORE, Minority Business Centers, Veteran 
Business Centers, and others.
  The bill now requires the Government Accountability Office to 
specifically review the impact of exchanges on access to affordable 
health care for small businesses to ensure that exchanges are indeed 
making a difference for small business owners.
  It also clearly states that agencies cannot waive the Federal 
acquisition regulation, which requires them to report small business 
contracting numbers and meet small business contracting goals of 23 
percent.
  There is a provision that modifies the definition of a full-time 
employee to take into account fluctuation in employee hours, and reduce 
the impact of employer responsibility requirements for industries with 
high turnover and that rely on part-time employees.
  The bill eliminates penalties for businesses that wait up to 60 days 
to provide health insurance to their full-time employees.
  Finally, the Patient Protection and Affordable Care Act establishes a 
national workforce commission to gather information on the health care 
workforce and better coordinate and implement workforce planning and 
analysis. The managers' amendment ensures that small businesses and the 
self-employed will be represented on the commission.
  These are important considerations for small businesses and I was 
proud to ensure these concerns were addressed through the amendment 
process.
  Despite claims from opponents of the bill, we have taken important 
steps to strengthen Medicare, not weaken it. The Senate health care 
reform bill creates an independent Medicare advisory board to find ways 
to reduce cost growth and improve quality and moves to a system that 
rewards quality over quantity. It reduces payments for preventable 
hospital readmissions in Medicare, and cuts waste, fraud and abuse by 
enhancing oversight, identifying areas prone to fraud and requiring 
Medicare and Medicaid providers and suppliers to establish compliance 
programs.
  As much as our Republican colleagues have tried to scare seniors into 
opposing this bill, the fact is that Louisiana's 650,000 Medicare 
beneficiaries stand to gain from this health care reform bill. The AARP 
and many seniors' organizations are continuing to support this bill 
because they know it improves care for our seniors.
  The bill lowers premiums by reducing Medicare's overpayments to 
private plans. All Medicare beneficiaries pay the price of excessive 
overpayments through higher premiums--even the 78 percent of seniors in 
Louisiana who are not enrolled in a Medicare Advantage plan. Without 
reform a typical couple in traditional Medicare would pay nearly $90 in 
additional Medicare premiums next year to subsidize these private 
plans.
  Our bill extends the life of the Medicare Trust Fund by 9 years and 
lays the groundwork for a more sustainable health system. Thanks to 
these reform efforts, there will be no additional cost for preventive 
services under the Medicare program. This includes a free wellness 
visit and personalized prevention plan designed to help give 
beneficiaries the resources they need to take better care of themselves 
in these important years.
  This legislation puts taxpayers' dollars above insurance company 
profits by forcing insurers to bid competitively for the business of 
Medicare beneficiaries and makes changes to the Medicare Advantage 
payment structure that will give insurers an incentive to deliver more 
value.
  Another critical aspect of the bill is that it increases the amount 
of coverage Medicare Part D beneficiaries receive before they begin to 
pay out of pocket for their prescriptions. Right now, roughly 116,000 
Medicare beneficiaries in Louisiana hit a wall in Medicare Part D drug 
coverage that will cost some of them an average of $4,080 per year. 
This reform legislation will provide a 50 percent discount for brand-
name drugs.
  Some of the bill's most important provisions will benefit the most 
important population--children.
  The underlying bill includes a provision allowing children to remain 
on their parents' plans up until the age of 26. I have children. I 
would like to think that by 22 or 23, they will be on their own, they 
will be gainfully employed and off my payroll. But any of us who have 
raised children know that sometimes it takes a little more time to 
launch our children. I see Senator Shaheen, who is nodding. She has 
done this herself. It takes a little time to launch them. According to 
the latest data from the Census Bureau, in 2007 there were an estimated 
13.2 million uninsured young adults. So the bill includes this 
important provision to allow kids to stay on their parents' insurance 
for a bit longer as they transition into adulthood.
  But my question was, where do the young people who age out of the 
foster care system sign up, because they do not have parents? I was 
proud to work on a provision that Leader Reid included in this bill to 
ensure that every young person who ages out of the foster care system 
will be able to stay on Medicaid until the age of 26 starting in 2014. 
Almost 30,000 young people age out of the foster care system every 
year, having never been adopted or reunified with their birth parents. 
The fact that they aged out is our failure as government. We have 
failed them once and we just can't fail them twice. We must support 
their transition to adulthood, and guaranteeing access to quality 
health care will help with that transition.
  When this legislation is signed into law, insurance companies will 
not be able to drop children for preexisting conditions beginning 
immediately. This is crucial for families with children who have 
battled cancer or diabetes. When a parent loses a job, they may 
struggle to get insurance when they find new employment. Once this bill 
becomes law, no insurance company will be able to deny a child with 
preexisting conditions.
  This health care reform bill holds insurance companies' feet to the 
fire to ensure they are accountable to their customers. By 2014, 
insurers will not be able to deny coverage due to preexisting 
conditions. That means they will not be allowed to drop you from 
coverage if you get sick or are in an accident.
  Because of the good work of my colleagues Senator Rockefeller and 
Senator Ben Nelson, this bill requires insurance companies to disclose 
the pricing of their benefits to ensure that premiums are spent on 
health benefits not profits and gives consumers rebates, putting the 
insurance companies' excessive profits back into your pockets. It 
contains new requirements ensuring that insurers and health care 
providers report on their performance, empowering patients to make the 
best possible decisions. Under this bill, a health insurer's 
participation in the exchanges will depend on its performance. Insurers 
that jack up their premiums before the exchanges begin will be 
excluded--a powerful incentive to keep premiums affordable.
  Finally, I was also proud to work with Leader Reid and Finance 
Committee Chairman Max Baucus to address an inequity in the formula 
that determines the federal match of Medicaid dollars. As we all know, 
in 2005 Hurricanes Katrina and Rita ravaged the Gulf Coast and 
destroyed homes, neighborhoods, and even full communities throughout 
South Louisiana. In an effort to aid the recovery, Congress approved a 
much-needed aid package for Louisianians that infused grant dollars and 
direct assistance to speed our recovery.
  Some of the necessary one-time recovery dollars were calculated into 
our state's per capita income. In addition, labor and wage costs 
increased because there was heightened recovery activity

[[Page 33006]]

and a constriction in the market. Consequently, Louisiana's per capita 
income was abnormally inflated and put us in a category with richer 
states.
  The result is that our federal match for Medicaid is scheduled to 
drop pretty dramatically. I worked with my colleagues to correct this 
formula. I never asked for special treatment for Louisiana, but only 
for understanding of our state's unique situation. We only wanted to be 
treated fairly and not to get penalized because we have been forced to 
rebuild following the worst natural disaster in the United States' 
history. Our federal Medicaid match rates should reflect that the 
reality on the ground in Louisiana, not the cold calculations of 
inflexible federal formulas.
  An important note is that this Medicaid funding fix was supported by 
every Member of our Congressional Delegation, and specifically and 
repeatedly requested by our Republican Governor Bobby Jindal. Some 
politicians in my state may run and hide when the heat gets turned up, 
but that's not the way I was raised. I never have and never will run 
from what I think is right. I was sent here to fight for my state and 
that is exactly what I'm doing.
  Those who have dubbed this provision the ``Louisiana Purchase'' know 
little about lawmaking and even less about my views on health care 
reform. This Medicaid fix alone would not have been enough to earn my 
vote on this legislation. This was one of literally a dozen priorities 
I had as the Senate considered health care reform. I am voting for this 
bill because it achieves the goals I laid out at the beginning of this 
debate: it drives down costs and expands affordable health care choices 
for millions of families and small businesses in Louisiana and around 
the nation. Any claim to the contrary, is a pathetic lie meant to 
derail this bill, a tactic that was all too common during this debate.
  Today, we stand on the verge of history, with an opportunity to 
support a bill that will provide health insurance to 31 million more 
Americans, reducing the deficit by $132 billion over the next ten 
years.
  The bill is not perfect. It is not the exact health care bill that I 
would have written. I think the same could be said for each of my 
colleagues. It was a long, difficult process and during the course of 
completing this landmark bill there were a lot of twists and turns. 
But, as former President Clinton was fond of saying, we should never 
let the perfect become the enemy of the good.
  And through hard work and good faith and tough negotiations and 
keeping our eye on the ball, Senate Democrats have actually crafted, in 
my view, an extraordinary piece of legislation that will go a long way 
to providing comfort and security to the American people who elected us 
to do so.
  It will provide comfort and security for the local grocery store 
owner in Jennings, the 22-year-old in Lake Charles who has just left 
the foster care system, the single mother of three in Monroe, the 9-
year-old boy in Natchitoches who was just diagnosed with diabetes, and 
the 70-year-old Medicare beneficiary in Houma who worked for three 
decades in the offshore oil industry.
  The Patient Protection and Affordable Care Act will make a difference 
in these lives and millions more across America, and I urge my 
colleagues to support it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mrs. SHAHEEN. Mr. President, I ask unanimous consent that the 
remaining Democratic time be divided equally between myself, Senator 
Stabenow, and Senator Bingaman.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. SHAHEEN. Mr. President, I wish to begin by congratulating 
Senator Landrieu and thanking her for all the hard work she has done on 
this bill--first of all for small business. I think we have 
significantly, with her leadership, improved this legislation for small 
business so that many of the small businesses in this country--many in 
my home State of New Hampshire--will now be able to get help as they 
try to cover their employees for health care. I also wish to 
congratulate her for all her good work to help children in the foster 
system. It is significant they will be able to get health insurance 
once they age out of the foster system and, of course, to help those, 
as she has pointed out, who have children who are in their early 
twenties and who are still trying to get settled in a profession.
  My daughter was fortunate enough to have health insurance last year 
in her first job out of college. But now she is going to a new job that 
doesn't have health insurance, and so she will be able to be covered 
once this legislation is passed under our plan. As Senator Landrieu 
points out, it is going to make a real difference for families and for 
small business.
  I am very pleased to be here today to support this legislation and 
also to try to dispel some of the myths we have heard from our 
colleagues on the other side of the aisle about what is actually in 
this legislation. Despite what many of our colleagues may want us to 
believe, passing this bill is the fiscally responsible thing to do. Our 
current health care system is a threat to the security of our families, 
our small businesses, and the entire economy of this Nation. The costs 
of health care in America make up almost 18 percent of our economy--our 
gross domestic product. That is more than any other industrialized 
country. Health care costs are rising three times faster than wages. 
The leading cause of about two-thirds of the bankruptcies in America is 
medical bills. Our current health care system is simply not 
sustainable.
  The Patient Protection and Affordable Care Act moves us in a new 
direction--a direction that is fiscally responsible because this bill 
is fully paid for. In fact, according to the Congressional Budget 
Office, the Patient Protection and Affordable Care Act would reduce our 
Federal deficit by $132 billion over the next 10 years. In fact, this 
legislation represents one of the largest deficit-reduction measures we 
have seen certainly in many years and possibly ever.
  Small businesses in my home State of New Hampshire and across this 
country are going to benefit from this legislation. We heard Senator 
Landrieu talk about many of the provisions she worked on--and many of 
which I cosponsored--to help improve the legislation for small 
business. The fact is, the steep annual increases in the cost of health 
insurance have been forcing more and more businesses to make the very 
difficult decision to either drop coverage for their workers or to 
increase their employees' contribution to the point that too many 
workers have had to decline coverage.
  I have heard from a number of businesspeople in New Hampshire, and I 
wish to read what a couple of them have said.
  A young woman named Adria Bagshaw testified this summer at a Small 
Business Committee field hearing we held in New Hampshire. Adria and 
her husband Aaron own the W.H. Bagshaw Company. It is a fifth-
generation small manufacturing company in Nashua, NH. There aren't a 
lot of those fifth-generation companies left that are owned by the same 
family. They offer health insurance to their 18 employees and cover 
anywhere between 10 to 25 percent of their monthly premium. But now the 
premiums are $1,100 per month per family, and Adria is afraid she will 
have to cut back on the quality of their health insurance plan or the 
amount the company covers to make ends meet. The sad thing is that she 
says right now they are spending more on health insurance than they are 
for raw materials to make their products.
  I also heard from a man named John Colony, who is a small business 
owner in the small, very picturesque town of Harrisville, NH. He e-
mailed me saying:

       The cost of health insurance is the biggest problem that 
     our small business faces.

  He has 24 employees. He went on to say:

       The present system is expensive, inefficient and broken. I 
     can't tell you how the 20

[[Page 33007]]

     to 35 percent annual rate increases depress us all and there 
     is no end in sight. Over the past five years, most of our 
     employees have had to drop coverage because they simply can't 
     afford to pay their share of the premium. I really believe 
     that the time has come to put the existing system out of its 
     misery.

  Well, I am happy to tell John we are about to do that, because under 
this legislation, beginning next year, we provide significant tax 
credits for small businesses to help them pay for the cost of coverage 
for their workers. This bill contains a number of significant measures 
to rein in runaway health care costs--measures such as creating a new 
pathway for biologic drugs so we can get biologic generic drugs to the 
market and help lower costs for people. There are measures in this bill 
that will eliminate waste, fraud, and abuse--something that takes too 
big a chunk out of our health care dollar. There are also measures in 
here that will get rid of the subsidies the government pays to 
insurance companies for Medicare Advantage plans. These are all 
commonsense actions that will save the government and health care 
consumers money over time.
  In addition, this bill makes significant improvements to our health 
care delivery system. That is the way we provide health care for 
people. It injects more competition into the health care marketplace. 
Controlling health care spending is critical to address the fiscal 
health of this Nation--no pun intended. This legislation takes a very 
important first step in slowing down the growth.
  I am sure every Member of the Senate--Republican and Democratic 
alike--has heard heartbreaking stories from our constituents about 
health care--stories about being denied health insurance, about having 
to stay at a job they do not like because of the fear of losing 
coverage, about frustration over the lack of choice and who provides 
their health insurance or a lack of understanding about their plan's 
limits until it is too late and they are facing financial peril. Well, 
this bill will, I am happy to say, change that. Not only do we ensure 
coverage for an additional 31 million people----
  The PRESIDING OFFICER. The Senator's time has expired.
  Mrs. SHAHEEN.--but we eliminate the abuses of the insurance 
companies.
  I will be back to talk about some of these other areas.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Ms. STABENOW. Mr. President, first, I wish to thank my friend from 
New Hampshire for her advocacy on health care reform in general, but 
specifically working together on the areas that affect small business, 
I very much appreciate, and we are so pleased to have her in the 
Senate.
  I come to the floor to join my colleagues. I know the chair of the 
Small Business Committee, Senator Landrieu, has been here and others 
will be here--Senator Lincoln, who has played such a critical role in 
putting together the small business provisions in the bill.
  I am very pleased to have authored one of the provisions in the 
managers' amendment that will guarantee that small businesses get 
immediate help starting next year--tax cuts to help them pay for the 
cost of health insurance. Michigan has close to 200,000 small employers 
that represent about 96 percent of the employers in our State.
  Most folks who think of Michigan think of large employers, large 
manufacturers. But, in fact, the majority of our employers, as in the 
majority of each of our States, are small businesses. That is where the 
majority of the new jobs are being created. We have just 41 percent of 
our firms that have fewer than 50 employees who actually are able to 
offer health insurance. So less than half our small businesses are able 
to offer health insurance, which is why we are focused on small 
businesses in this reform bill.
  The majority of people in this country who don't have insurance are 
actually working. The majority of us--about 60 percent--have insurance 
through our employers. We have about another 20 percent or so who 
receive their insurance through Medicare or Medicaid or the Veterans' 
Administration or some other public entity and then 15 to 20 percent of 
the people overall in America who don't have insurance are 
predominantly small businesses--people working for small businesses or 
they are self-employed or they are working one, two, or three part-time 
jobs just to try to hold things together. So that is a major focus of 
the health care reforms that are in the legislation that is before us.
  I am very pleased we have been able to put together a package that 
has $40 billion in direct tax cuts--$40 billion in direct tax cuts--for 
small businesses across America to help them afford health insurance 
going forward, rather than waiting for the new insurance pooling--the 
exchange--which will provide additional help for small businesses. This 
help, this tax cut, starts right away. We will see 3.6 million small 
businesses that could qualify for the tax cuts in this bill that will 
begin next year.
  In my State, that means over 109,000 small businesses that could be 
helped by the small business tax cuts that will make premiums more 
affordable. So I am very pleased to be part of a group of Members who 
came together and worked very hard to focus on the fastest growing part 
of the economy, which are our small businesses.
  I will just share one story, and this was from Crain's Detroit, a 
highly respected business publication in Michigan. Mark Hodesh, who is 
the owner of an Ann Arbor home and garden store, said he has seen his 
health insurance premiums go up more than 300 percent since 1997. In 
1996, he paid $132 in health care premiums a month per employee; and 
this year, regular premium increases have led him to pay upward of $375 
per month for each employee. So that is a 300-percent increase. He 
says:

       I have been in small business for 40 years, and my 
     conclusion is that without health care reform, these 
     increasing costs will put me out of business.

  That is the reality for businesses across this country. I do believe 
health care reform is directly tied to jobs, whether it is large 
businesses competing internationally that make a determination to move 
their facility because of health care costs, whether it is small 
businesses going out of business or having to decide if they keep 
people working or pay for health insurance or whether it is the self-
employed person out on their own, in their own enterprise--maybe it is 
local realtor. We know realtors have struggled for years because they 
haven't been able to buy through a large insurance pool. That is what 
this reform is all about. That is what this legislation is all about, 
to help small businesses, people who are working out of their homes, 
who are self-employed, as well as people who have lost their job and 
then lost their insurance. That is what this is all about.
  When we look at this legislation, according to the Small Business 
Majority, without health insurance reform that is in this legislation 
the annual costs of health benefits will more than double in less than 
a decade. They will more than double. We know, because we have seen the 
statistics, that when we talk about doubling health care costs for 
businesses in the next 10 years, it is estimated to equal another 3.5 
million jobs.
  We cannot afford to lose another 3.5 million jobs because of the 
doubling of health care costs in America. We are focused on creating 
more jobs. We need to be laser focused--certainly, I am, coming from 
Michigan--on creating jobs not losing jobs. According to the economic 
analysis of the Small Business Majority, health insurance reform could 
save up to 72 percent of small business jobs otherwise lost to a 
continuing rise in health care costs. We need those jobs.
  Again, health insurance reform is all about saving lives, saving 
money, saving Medicare, and it is certainly about saving jobs. That is 
why I am so pleased we have made small businesses a major priority in 
this legislation--both through $40 billion in tax cuts for small 
businesses, creating the new insurance pool through which small 
businesses can get the same kind of deal,

[[Page 33008]]

have the same kind of clout as a large business today in being able to 
negotiate with private companies, and other provisions that are in the 
bill as well.
  There are many reasons to support health insurance reform. Standing 
up for small businesses is certainly at the top of the list.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Gillibrand). The Senator from New Mexico 
is recognized.
  Mr. BINGAMAN. Madam President, over the past few weeks we have heard 
a lot of heated debate about this health care proposal. Much of it has 
concentrated on a few key issues: whether there should be a public 
option, whether there should not be. Of course, much of that debate was 
on the Democratic side among Members with strongly held views on both 
sides of the issue.
  The question of whether we should try to allow people 55 and older to 
buy into Medicare was also debated. There were strongly held views on 
that issue.
  It is clear now we have a bill before us that will do neither one of 
those things but which I think will accomplish very major health care 
reform for the country. I want to just concentrate for a few minutes on 
some of the other policies that are contained in this legislation that 
have received much less attention but which clearly are very 
constructive proposals that will dramatically improve the health care 
delivery system in the country.
  I can remember when we started these discussions early in the spring 
and summer and had many meetings and hearings and workshops both in the 
HELP Committee and in the Finance Committee, there were statements made 
that--on the Democratic and Republican side--we can agree upon maybe 
80, maybe 85 percent of the changes we ought to embrace in health care 
reform. The question is, What about the other 15 to 20 percent? I think 
we need to spend more time focused on that 80 to 85 percent, and let me 
do that for just a minute.
  This Patient Protection and Affordable Care Act which Senator Reid 
and others have introduced and is in the House legislation as well, 
both pieces of legislation do contain very important policies. Let me 
talk a minute about some of those.
  First, this act before us includes long overdue reforms to increase 
the efficiency and the quality of the U.S. health care system while 
holding down the growth in costs. For example, the legislation includes 
payment reforms--I have championed those for a long time; others in 
this body have championed them as well--to shift from a fee-for-service 
payments system to a bundled payments system. This will reshape our 
health care reimbursement system to reward better care and not simply 
more care as the system currently does.
  The legislation also includes broad expansion of quality reporting 
and pay-for-performance reforms that will further incentivize quality 
and efficiency. The legislation also puts in place the framework for a 
national quality strategy and several new key Federal oversight bodies 
to allow both providers and consumers to have unbiased information 
about whether health care treatments and devices and pharmaceuticals 
are effective and efficient.
  We have heard a lot of charges made that trying to find out what is 
effective and efficient is objectionable somehow because it might lead 
to rationing of care. There is no rationing of care contemplated in 
this legislation. But how anyone could come to the Senate floor and 
argue against providing good, scientifically based information both to 
providers and the consumers about which treatments, which devices, 
which pharmaceuticals are effective and useful is hard for me to 
understand.
  Second, this Patient Protection and Affordable Care Act includes a 
broad new framework to ensure that all Americans have access to quality 
and affordable health insurance. It includes the creation of new health 
insurance exchanges which will provide Americans a centralized source 
of meaningful private insurance, as well as refundable tax credits to 
ensure that the coverage they need is affordable. These new health 
insurance exchanges will help improve the choices that are available to 
Americans by allowing families and businesses to easily compare 
insurance plans and prices and the performance of those plans. This 
will put families rather than insurance companies or insurance 
bureaucrats or government bureaucrats in charge of health care. These 
exchanges will help people to decide which quality, affordable 
insurance option is right for them.
  On the issue of cost, the nonpartisan Congressional Budget Office 
forecasts that this legislation would not add to the Federal deficit. 
In fact, the latest estimate they have given us is that it would reduce 
the deficit by $132 billion by 2019 and well over $1 trillion in the 
second 10-year period; that is, the period from 2020 to 2029.
  On the subject of premium costs, which all of us care about, all 
Americans care about, CBO has also found that in the individual market 
the amount that subsidized enrollees would pay for coverage would be 
roughly 56 percent to 59 percent lower, on average, than the premiums 
they are expected to be charged when this law takes effect in the 
individual market under current law.
  Among enrollees in the individual market who would not receive new 
subsidies, average premiums would increase by less than 10 to 13 
percent--this, again, according to the Congressional Budget Office. The 
legislation would have smaller effects on premiums for employment-based 
coverage. Its greatest impact would be on smaller employers qualifying 
for new health insurance tax credits. For these businesses and their 
employees, the Congressional Budget Office predicts that premiums would 
decrease by somewhere between 8 and 11 percent, compared with the costs 
that they would have to pay under current law.
  These estimates by the Congressional Budget Office are consistent 
with the estimates of the impact in my home State of New Mexico, where 
average families may see a decrease in premiums of as much as 60 
percent from what they might otherwise have to pay. This is families, I 
am talking about, who would be eligible for these advance refundable 
tax credits.
  In addition, about two-thirds of the people in my State of New Mexico 
would potentially be able to qualify for subsidies or for Medicaid. In 
fact, a quarter of our population in New Mexico is at an income level 
that would allow them to qualify for near full subsidies if they bought 
insurance through an insurance exchange or for Medicaid itself.
  An overall decrease in premium costs also is consistent with the 
experience that the State of Massachusetts had after they enacted 
similar reform to what is now being considered in the Senate. There has 
been a substantial reduction in the cost of nongroup insurance in that 
State. In fact, the average individual premium in Massachusetts fell 
from $8,537 at the end of 2006 to $5,142 in mid-2009. That is a 40-
percent reduction in premium for that coverage. This was at a time when 
the rest of the Nation was seeing a 14-percent increase.
  Finally, much of the debate on health care reform has focused on 
insurance coverage. It is important to recognize that as we expand 
coverage to include more Americans, the demand for health care services 
is going to increase as well. A strong health care workforce is, 
therefore, essential for successful health reform. Within this country, 
approximately 25 percent of the counties are designated as health 
professional shortage areas. That is a measure that indicates that 
there are insufficient medical staff to properly serve that geographic 
area.
  This problem is even more apparent in rural States such as mine, such 
as New Mexico. For example, 32 out of the 33 counties in our State--we 
have just 33 counties--32 of those counties have this shortage 
designation--health professional shortage area designation. As a 
result, New Mexico ranks dead last compared to all other States with 
regard to both access to health care and the ability to utilize 
preventive medicine.
  This Patient Protection and Affordable Care Act also contains key 
provisions to improve access and delivery of

[[Page 33009]]

health services throughout the Nation. These provisions include 
increasing the supply of physicians and nurses and other health care 
providers, enhancing workforce education and training, providing 
support for the existing workforce--health care workforce, increasing 
the support for community health centers.
  I applaud Senator Reid and Senator Baucus and Senator Dodd and 
Senator Harkin and many other colleagues in the Senate who worked so 
hard on this bill. The legislation represents major health care reform. 
It is time for the Senate to enact this critical and long overdue 
legislation. There will be chances and opportunities to improve on this 
legislation in the future. I hope to participate in some of those.
  Nothing that is passed into law in this Congress or any Congress that 
I have served in is what it should be in all respects. But this 
legislation is extremely important and significant health care 
legislation. It will do a tremendous amount of good for a vast number 
of Americans and it will do that ``good'' in a very responsible way.
  I urge my colleagues to support passage of this legislation so we can 
get on with a conference with the House of Representatives and finally 
settle on a bill that could be sent to President Obama for his 
signature.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. Madam President, I know our leader is coming to speak, 
but prior to him coming, I will take a portion of my time that has been 
allotted to me by my side.
  I sat here with great interest listening to the Senator from New 
Mexico. He referenced the State of Massachusetts. I entered into the 
Record yesterday the 21 percent of the people under the plan who could 
not get care in Massachusetts because they could not afford the copay 
and the deductible. This is basically a copy or model off of that.
  He also discussed the fact that this shows a $132 billion savings 
over the next 10 years. That is provided you do not think you are going 
to allow any increase in doctor payments and you are not going to 
reverse the 21-percent cut.
  Madam President, my leader is here, and I will be happy to yield to 
him at this time.
  The PRESIDING OFFICER. The Republican leader is recognized.
  Mr. McCONNELL. Madam President, I thank my friend from Oklahoma. I 
will be very brief.
  Madam President, Americans woke up yesterday stunned to read that 
Democrats had voted to end debate on the latest version of this massive 
bill while they were sleeping. They will be stunned again when they 
learn about this second early-morning vote to advance a bill that most 
of them oppose. Americans are right to be stunned because this bill is 
a mess. And so was the process that was used to get it over the finish 
line.
  Americans are outraged by the last-minute, closed-door, sweetheart 
deals that were made to gain the slimmest margin for passage of a bill 
that is all about their health care. Once the Sun came up, Americans 
could see all the deals that were tucked inside this grab bag, and they 
do not like what they are finding. After all, common sense dictates 
that anytime Congress rushes, Congress stumbles. It is whether Senator 
so-and-so got a sweet enough deal to sign off on it. Well, Senator so-
and-so might have gotten his deal, but the American people have not 
signed off.
  Public opinion is clear. What have we become as a body if we are not 
even listening to the people we serve? What have we become if we are 
more concerned about a political victory or some hollow call to history 
than we are about actually solving the problems the American people 
sent us here to address? This bill was supposed to make health care 
less expensive. It does not. Incredibly, it makes it more expensive.
  Few people could have imagined that this is how this debate would 
end--with a couple of cheap deals hidden in the folds of this 2,700-
page bill and rushed early-morning votes. But that is where we are. 
Americans are asking themselves: How did this happen? How did a great 
national debate that was supposed to lead to a major bipartisan reform 
lead to a bag full of cheap legislative tricks inside a $2.3 trillion, 
2,733-page bill that actually makes health care costs go up?
  This legislation will reshape our Nation in ways its supporters will 
come to regret. But they cannot say they were not warned. The verdict 
of the American people has been clear for months: They do not want it.
  Madam President, I thank my friend from Oklahoma, and I yield the 
floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. Madam President, I would just follow with one comment to 
my leader as far as his comments.
  In 2007, we passed a bill called the Honest Leadership and Open 
Government Act of 2007. That act requires the posting of any earmarks 
or direct benefits for Senators in any bill. It has to be posted. We 
have not seen that with this bill, though we know there are numerous 
and sundry specific earmarks for Members.
  So my hope is that sometime during this process, we will take up the 
violation of this very law by the leader of this Chamber in terms of 
ignoring it and flaunting it. What he said, when we passed it, was it 
was a needed change, and now we see it ignored as they bring this bill 
to the floor.
  Mr. McCONNELL. I thank my friend from Oklahoma.
  One thing about rushing, not only is there a potential violation of 
the provision the Senator from Oklahoma mentioned, but we are learning 
more about this bill every day as we scrub it and try to understand it 
and figure out what all is in it. All of that, of course, is made more 
possible by rushing things through in sort of an expedited, hurried 
fashion to get it by the American people before Christmas in the hopes 
they will not notice.
  Mr. COBURN. I thank the leader.
  I want to spend my time this morning kind of talking about how you 
control health care costs in our country. My experience, just from my 
qualifications--I have 9 years of experience in manufacturing medical 
devices. I did that as a young man, had hundreds of employees and a 
fairly large business. I left that business to become a physician. The 
call of my life was to help people directly rather than indirectly 
through my medical device association.
  So I want to lay out the two different ways, the two different 
arguments for how we control health care costs because everybody in 
this Chamber wants to control health care costs. All the Democrats and 
all the Republicans do. We have 11 studies that say premiums are going 
to rise and one that says they are not under this bill. So that is not 
going to control costs.
  But I want to read a story that a lady from my district wrote me 
because I think it is very important in us considering which way we go.

       Dr. Coburn,
       I hope you don't mind a personal story, but as I listen to 
     the health care debate, I can't help but think constantly of 
     my middle daughter. I am convinced that Chloe would have lost 
     her chance for a normal life, had these policies--

  In this new health care bill--

     been in effect two years ago. No government agency could 
     possibly have understood Chloe's unique needs or her 
     extremely rare condition.
       After a perfectly healthy childhood, my seventeen-year-old 
     showed me that her left arm was twitching and wouldn't stop. 
     Within weeks, the entire left side of her body was jerking 
     constantly, every waking moment of every day. Her MRI 
     revealed more than one periventricular heterotrophic nodule--

  That is a growth around the ventricular system, the fluid system of 
the brain--

     but her first two neurologists weren't sure there was a 
     connection between the [changes in her movement and the 
     movement disorder and the symptoms and the nodules]. They 
     certainly had nothing useful to offer in terms of treatment. 
     But I made the rash promise to my daughter that someone, 
     somewhere, knew what to do, and that we would not stop 
     looking until we found that person. Unlike mothers in a 
     government run system, I was free to research the options and 
     apply where I wanted. Our search took less than three months.
       Chloe's pediatric movement disorder specialist at Mayo 
     Clinic called her condition ``unique'' and unclassifiable. He 
     had to debate her case with his neurology team, but

[[Page 33010]]

     in the end they were willing to try an unprecedented series 
     of brain surgeries. Chloe was desperate to live a normal life 
     again, so my husband and I agreed, though perhaps you can 
     imagine what an excruciating decision that was. Today, Chloe 
     twitches a little, but anyone who didn't know her history 
     would think she is just fidgeting. She is an honors 
     linguistics student at OU, and she even takes dance lessons. 
     She recently started driving again. She said once, ``Mom, 
     without the surgery, I would be strapped into a wheelchair 
     now.
       I know that Chloe would never have had the unique care she 
     needed, if we had been required to petition a government 
     agency for permission. A less dedicated person than her 
     subspecialist would have tried to classify her condition and 
     restrict her to known treatments. In fact, other 
     subspecialists wanted to make those same restrictions. 
     Chloe's doctor learned how to treat her by spending a great 
     deal of time with her, by talking to her and to us for hours 
     at a time, and by observing her in multiple contexts. I fear 
     for the next mother whose child has an unclassifiable 
     condition, and whose treatment is planned by a faraway 
     committee with a diagnostic manual open on the table. Chloe 
     won't be in that manual.

  The thing that keeps people from getting health care in America today 
is the cost of health care. We have had all sorts of attempts of, how 
do we do that? We have had the Massachusetts model, and, as entered 
into the Record yesterday, they have insurance reform. Almost everybody 
in Massachusetts is covered. Yet last year 21 percent of those people 
who were covered could not get care because they could not afford the 
deductibles and copays. So expanding insurance and expanding the model 
does not solve it.
  So you can either approach controlling costs or you can ration care. 
What has happened in this bill, as it comes through, is we have chosen 
to ration care. My colleagues are going to dispute that, but I want to 
offer significant evidence to offset that and discuss what is in the 
bill and to also discuss what is not in the bill.
  What is not in the bill is a prohibition against rationing, which all 
of my colleagues on both the Finance Committee and the HELP Committee 
voted against, which means you are for rationing if you vote against, a 
prohibition. The leader denied an amendment on the floor of the Senate 
to eliminate rationing, so we do not get to see where everybody stands. 
But we understand the intent. So there is no question that the way we 
are going to control costs is to limit your access by rationing health 
care.
  The other side of controlling costs is to incentivize the prevention 
of disease and incentivize payments for good outcomes when we manage 
chronic disease that is there in an efficient and effective way. That 
is not in the bill. That is not anywhere in the bill. What we have to 
do is incentivize an insurance company to invest in the management of 
chronic disease rather than to pay for the consequences of the chronic 
disease. That is not in the bill either.
  So we get two choices.
  Now, what do we find in this bill? We find a Medicare advisory 
commission. They actually dropped the name ``Medicare'' from it, but we 
find an advisory commission that is going to tell us how much money we 
have to cut from Medicare, and we either have to cut that amount or 
make some cuts somewhere else.
  We have the U.S. Preventive Services Task Force, and we have already 
seen during the debate on this bill when they do something that is 
based on cost alone--not clinical; breast cancer screening for women 
between the ages 40 to 50--when they do something on the basis of cost 
instead of clinical, we run in and jump and say no, but we are going to 
pass a bill that is going to totally empower that. Seventeen times in 
this bill is the U.S. Preventive Services Task Force referenced in what 
it is going to tell us what to do, and it is not going to tell us just 
in Medicare and Medicaid, it is going to tell us in every area what we 
are going to do. But because there was such a reaction to the first 
recommendation based on cost--and let me explain what that was. They 
said that if you are age 50 and over, the incidence of finding somebody 
with breast cancer is 1 in 1,470 people, but if you are between the 
ages of 40 and 50, it is only 1 in 1,910 people; therefore, it is not 
cost-effective. So it does not matter if you have breast cancer between 
the ages of 40 and 50, we do not think the government ought to be 
paying for your mammogram and we do not think anybody ought to have 
one. Well, that is fine for all those people who do not have breast 
cancer. It is terrible for the people who do have breast cancer and it 
could be found early with a mammogram.
  So we rushed in here and we offset what that task force did. But they 
are going to be doing it time and time again. And is the Congress going 
to truly--every time they make a decision based on cost-effectiveness, 
not clinical effectiveness, are we going to reverse it? We are not. So 
there is another proof that we are, in fact, going to use the rationing 
of care to control costs.
  Mr. BURR. Madam President, will my colleague yield for a question?
  Mr. COBURN. I would be happy to.
  Mr. BURR. If, in fact, the Congress did reverse the decision of an 
advisory board, what does that do to the budget deficit? And what does 
it do to the claims that this current bill being considered is paid 
for?
  Mr. COBURN. I am not sure I can answer the question. But it would 
make it less effective in terms of supposed claims.
  Mr. BURR. So if the authors of this bill never intended to make cuts, 
then it blows the budget neutrality that is portrayed in this bill. But 
if they use all the mechanisms that are in place to make sure 
reimbursements are cut or the scope of coverage is affected by a 
decision to limit one's care, then we could see prevention cut, 
wellness programs cut, or even the preventive diagnosis such as for 
breast cancer limited to a much smaller group.
  Mr. COBURN. I think the Senator from North Carolina is really going 
to where I am going to get to later; that is, what is the motivation 
for the decisionmaking? I think my colleagues on the other side of the 
aisle are well intended, but I don't think they are well informed about 
the consequences of their intentions.
  So if you set up the Task Force for Preventive Health Services and 
say you are going to rely on it, but we know they are going to make the 
decisions based on cost-effectiveness, not clinical effectiveness, what 
we are going to see is the American Cancer Society coming again and 
again and again because what we are going to do is we are going to 
cover those where it is cost-effective but not clinically effective. 
For 80 percent of Americans, they are not going to notice the 
difference, but one out of five Americans is going to notice the 
difference.
  The second area, which I wish to spend some time on because we have 
actually modeled it after England, is cost comparative effectiveness. 
We ought to talk about what is comparative effectiveness research 
because there is nothing wrong with the research. It is health care 
research comparing various drugs, devices, and treatments head to head, 
and the whole goal of that is to find out what works best and what 
costs the least.
  The assumption in this bill is, we can have 24 or 36 people in 
Washington decide that. In the Framingham studies they have been 
running for over 50 years on heart disease, we still don't have the 
answers and we have been studying it for 50 years. But we are going to 
be making decisions on cost, not on clinical effectiveness, which is 
going to limit your ability to have what you and your doctor think you 
need.
  So we are going to pull out clinical experience of individual 
physicians. We are going to eliminate the heart of medicine, which is 
the combination of vast experience, gray hair, long years of training, 
family history, clinical history and physical exam and we are going to 
say: No, it doesn't matter. We are going to say: Here is the way you 
are going to do it.
  Who uses comparative effectiveness research? Well, several countries 
do. When I share with my colleagues the stories about how it is used, 
you are going to get a real vision of what is coming with this bill--a 
real vision.
  This bill creates a new agency called the Patient-Centered Outcomes 
Research Institute to perform comparative effectiveness research. I 
have already said the idea behind it is good. I

[[Page 33011]]

strongly support medical research. I strongly support helping doctors 
and their patients choose the best research and the best treatment. The 
problem is, this bill doesn't do that. On the contrary, this bill will 
empower the government to decide which treatments you can have and 
which ones you cannot have. That is what this does. This removes the 
judgment of the doctor and replaces it with the judgment of the 
bureaucracy in Washington. It is not a hypothetical concern, it is a 
real-world problem.
  In Britain, they control health care costs by denying or delaying 
access to expensive therapies. That is one of the reasons this country 
has one-third better survival for every cancer you can imagine over 
Great Britain because we don't do that. As a two-time cancer survivor I 
am acutely aware as a patient, not as a doctor, in that I want to make 
sure for my family and my patients they have the best alternatives, not 
the cheapest, because the cheapest alternatives are the ones that take 
years away from your life.
  I am going to go through some examples. Nobody can dispute this is 
what is happening now and what will happen under our program. To 
Senator Baucus's credit, he had a bill that wasn't cost comparative 
effectiveness; he had one based on clinical comparative effectiveness. 
That is not in here. What is in here is cost comparative effectiveness. 
Senator Baucus knew you don't want to use cost as the main thing; you 
want to use clinical outcomes as the No. 1 deciding agent in how we 
approach health care--not cost--because if you only look at cost, 
nobody in this country would get a mammogram between 40 and 50. But 
this bill is different from what Senator Baucus had offered in his 
Finance Committee markup.
  There is an agency in Great Britain called the National Institutes 
for Health and Clinical Excellence. It is pronounced NIHCE. Here are 
some of the decisions of NIHCE in the most recent years. They have a 
problem in England with cost, too, and they have a single-payer, 
government-run system. They have the government running it, but they 
still can't control their costs, so what have they done? They have 
repeatedly denied breast cancer patients breakthrough drugs. They have 
forced patients with multiple sclerosis to wait 2\1/2\ years to receive 
new innovative treatments that people in this country are getting as 
soon as they are available. They have denied early stage Alzheimer's 
patients medication, requiring their condition to worsen before they 
give them the medicine. What do we know about the medicine? It works 
best when you have the slightest symptoms of Alzheimer's, not when you 
get worse. But that is the bureaucratic thinking: We will save money 
rather than practice good medicine.
  They deny life-prolonging treatments to kidney cancer patients. They 
denied new medicine to all but a small percentage of patients with 
osteoporosis and then only as a last resort. In other words, you have 
to about have your bones breaking by standing before you get medicine 
for osteoporosis in Great Britain. In this country, we have prevented 
millions of hip fractures through effective medicines to restore the 
calcium and bone matrix in seniors' bones. But we have Medicare now 
saying you are doing too many tests to check on that, so you can only 
do it every 2 years. So we are going to use rationing, and we are.
  They denied access to the only drugs available to treat aggressive 
brain tumors. They denied effective drugs to bowel cancer patients, 
colon cancer.
  Macular degeneration is something that affects a large number of 
people in this country. That is where the macula--the area that 
actually allows you to see and concentrate your vision--as we age, we 
have what is called cystoid macular degeneration or dry degeneration. 
That is a disease of the eye where it causes vision loss. NIHCE 
required patients suffering from macular degeneration to go blind in 
one eye before they could have the medicine that almost every American 
who has macular degeneration in this country has. She had to go blind 
first in one eye before you could ever get the medicine. That is a 
bureaucrat making this decision or a bureaucratic committee because it 
was cost-effective to allow you to live with one eye. Elderly patients 
went to court to fight for drugs to keep them from going blind. Twenty-
two thousand Britains became totally blind through that ruling by the 
NIHCE. In one case, an 88-year-old World War II veteran and former Air 
Force pilot sold his house to pay for the drug after the government 
said they weren't going to pay for it. The Royal National Institute of 
Blind People said that as a result of NIHCE's decision, countless 
people have either been stripped of their sight or stripped of their 
life savings to pay for private treatment.
  For Alzheimer's, they ruled that three drugs, common to many people 
who are listening today--Aricept, Reminyl, and Exelon--were not cost-
effective for patients with early Alzheimer's disease. Well, those are 
the only ones they work effectively on. One hundred thousand 
Alzheimer's patients a year were denied treatment that could have 
slowed the progress of their disease. The British Alzheimer's Society 
said this decision was disgraceful and victimized the most vulnerable 
in our society.
  Brain cancer. Gliadel and Temodal were not cost-effective for 
treating brain tumors and severely restricted their access to them. A 
47-year-old woman sold her house to buy the drug the government refused 
to provide. They have been held as the biggest breakthroughs in 
treating brain tumors in the last 30 years. Finally, in April of the 
year before last, they finally relented and allowed brain cancer 
patients to have the drugs that were available on the market.
  Erbitux, very effective in resistant colon cancers. In 2006, denied. 
Seventeen thousand Britons a year get the sort of advanced colon cancer 
that Erbitux is designed for. Yet they can't have it.
  Mr. BURR. May I ask a question of my colleague? Listening to this 
list of products that have been denied people in Great Britain, and 
certainly this is true in some other countries, makes me look at the 
Medicare population in this country with the realization that the way 
Medicare was constructed, a senior can't pay out of pocket because no 
provider can receive a payment from a senior. If for some reason this 
bill were passed and you took part of the arsenal of drugs away from 
seniors or procedures away from seniors, how can a senior get a benefit 
if no provider can receive an out-of-pocket payment from a senior?
  Mr. COBURN. That is the problem with our system today. What we are 
going to hear them say is the insurance companies do this now. At 
first, for new treatments, until they are proven effective, most 
insurance companies don't cover them, but they cover them much sooner 
than Medicare does today. Today, Medicare is the last to approve the 
drugs.
  We are going to hear that is not any different than the limitations 
from insurance. That is true. We need to change that. But the fact is, 
we are getting ready to put all these people into insurance programs, 
and then we are going to have the Federal Government, which is just as 
bad or worse than the insurance company, making those decisions.
  I wish to finish my point on cost. We get two ways for fixing cost 
because that is what is keeping people from getting access. We can 
either ration it--and there are three methods to rationing in this bill 
which will be used--or we can incentivize outcomes and we can 
incentivize prevention and we can pay, based on the transparency of 
outcomes and quality. We haven't done any of that in this bill. We have 
said we have, but when you look at how do you prevent it--and the model 
is the 200,000 employees at Safeway and what they have been able to do 
in using their incentive systems to pay for prevention, to use 
competitive purchasing to reconnect the employee with the purchase of 
health care.
  I understand my colleague from Nebraska is here, and I will yield to 
him because I understand he was a unanimous consent request.
  The PRESIDING OFFICER. The Senator from Nebraska is recognized.

[[Page 33012]]


  Mr. JOHANNS. Madam President, I appreciate the courtesy extended by 
the Senator from Oklahoma.
  I ask unanimous consent that the pending substitute amendment be 
modified to delete the following special carve-outs: eliminating or 
reducing the Medicaid unfunded mandate on Nebraska, Vermont, 
Massachusetts; exempting certain health insurance companies in Nebraska 
and Michigan from taxes and fees; providing automatic Medicare coverage 
for anyone in Libby, MT; earmarking $100 million for a health care 
facility, reportedly, in Connecticut; giving special treatment to 
Hawaii's disproportionate share of hospitals; boosting reimbursement 
rates for certain hospitals in Michigan and Connecticut; and mandating 
special treatment for hospitals in frontier States such as Montana, 
South Dakota, North Dakota, and Wyoming.
  The PRESIDING OFFICER. Is there objection?
  Mr. BAUCUS. Madam President, I appreciate the Senator's desire to 
want to cut the payments to his own State, but I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. JOHANNS. Thank you. I yield to the Senator from Iowa.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Madam President, we had a very early vote, and it 
brings the health care reform bill obviously one step closer to final 
passage--at least it looks obvious that is going to happen. Regardless 
of whether the other side has 60 votes, my friends on the other side 
still have a problem they want to not have the public concentrate on; 
that is, that the pending bill still raises taxes on middle-income 
Americans. The Reid modification did nothing to reverse this fact.
  I will take a few moments to illustrate the winners and losers under 
the bill. We start with a question: If a person is not receiving a 
subsidy for health insurance under the bill, then how can the person 
receive a tax cut? This is a relevant question because the White House 
and the majority leadership continue to proclaim that the bill is a 
``net tax cut'' for middle-class Americans. For example, on Wednesday, 
December 16, a senior White House aide wrote:

       The bill being considered represents a substantial net tax 
     cut for middle income families.

  So I think that statement begs more questions. Who do you believe? 
The White House, on the one hand, or on the other hand, the nonpartisan 
independent experts upon whom we on Capitol Hill rely for judgment--the 
people who are not political, the Joint Committee on Taxation?
  This committee tells us that in 2019, a little more than 13 million 
individual families and single parents would receive the government 
subsidy for helping people under 400 percent of poverty buy health 
insurance. The Joint Committee also tells us that the number of tax 
filers in 2019 will be 176 million people. If people are wondering why 
we talk about 2019, it is the budget window from now until the end of 
the 10-year period of time that we call a ``budget window.'' That means 
out of--comparing this 13 million to the 176 million taxpayers, 13 
million people receiving the subsidy and 176 million tax filers--that 
means out of that 176 million individuals, families, and single 
parents, only 13 million of them would receive a government subsidy for 
health insurance. That is only 7 percent of the tax filers. It is 
pretty important to understand that only 7 percent of Americans will 
benefit from the subsidy for health insurance.
  We have a pie chart so people can see exactly what I am talking 
about. This says 176 million taxpayers, with 13 million receiving the 
subsidy. This means 163 million families, individuals, and single 
parents--or 93 percent of all taxpayers--will receive no government 
benefit under the Reid bill. What does that mean? It means there is a 
small beneficiary class under the Reid bill--7 percent. Thirteen 
million people will receive benefits under the Reid bill. A very large 
nonbeneficiary class--93 percent--will not benefit.
  This nonbeneficiary class is affected in other ways. Yes, while one 
group of Americans in this class would be unaffected, another group of 
Americans will see their taxes go up. This group would not have a tax 
benefit to offset the new tax liability. That means these Americans 
will be worse off under the Reid bill.
  It is legitimate to ask, for these 93 percent of the people, what 
happened to their net tax cut? What they will see instead is a net tax 
increase. Based on the Joint Committee's data, in 2019 42 million 
individuals, families, and single parents with incomes under $200,000 
will see their taxes go up. This is even after taking into account the 
subsidy for health insurance. Again, this is on a net basis.
  If we were to identify those Americans who are not eligible to 
receive the tax credit and those whose taxes go up before they see some 
type of tax reduction from the subsidy, this number will climb to 73 
million Americans. The first bar on the chart illustrates what we have 
already established but looks at Americans earning less than $200,000. 
Right here, 13 million families and single parents and individuals 
would receive the subsidy.
  The middle bar on the chart shows the net tax increase number of 42 
million Americans under $200,000-a-year income. Finally, when we 
identify those Americans who get no benefit under this bill, and those 
Americans who see a tax increase, we find that there are 73 million 
individuals, families, and single parents under the $200,000 category. 
That is this group.
  I want to close by referring to a final chart that illustrates the 
winners and losers under the Reid bill. What we see is that there is a 
group of Americans who clearly benefit under the bill from the 
government subsidy for health insurance. This group, however, is 
relatively small--8 percent of Americans, if you look at those earning 
less than $200,000.
  There is another much larger group of Americans who are seeing their 
taxes go up. This group is not benefiting from the government subsidy, 
this group on the chart. There is another group of taxpayers who are 
generally unaffected, this 82 million here. The Joint Committee on 
Taxation tells us this group may be affected by tax increases that are 
not included in this study, like the cap on flexible savings accounts 
and the individual mandate tax that people are going to pay if they 
don't buy health insurance.
  The bottom line is this: My friends on the other side of the aisle, 
first, cannot say that all taxpayers receive a tax cut; two, they 
cannot say the Reid bill does not raise taxes on middle-income 
Americans because we have the professionals who are nonpolitical at the 
Joint Committee telling us differently. No one can dispute that data.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. 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. GRASSLEY. Madam President, my friends on the other side of the 
aisle continue to argue that the Reid bill eliminates the so-called 
hidden tax. They argue that this would reduce the cost of health care. 
For example, on Wednesday, December 16, a senior White House aide 
wrote:

       Even if you believe that some of the tax on insurance 
     companies is passed along, it would be more than outweighed 
     by the benefits middle-class families would get from reducing 
     the hidden tax they currently pay for the uninsured.

  I don't believe the fees on health insurance companies will be passed 
through to the policyholders. I think it is just idiotic not to think 
they would not be passed through.
  I want to flatout state I know they are going to be passed through. 
My authority for this is the Congressional Budget Office and the Joint 
Committee on Taxation telling us that fact. The CBO and the Joint 
Committee on Taxation told us that these fees will actually increase 
health insurance premiums. Premiums will go up because

[[Page 33013]]

the companies are paying increased taxes under this bill. For insurance 
premiums to go up, under a title of a bill that encompasses health care 
reform, that is going in the wrong direction. Also, for argument's 
sake, let's assume my Democratic colleagues are correct and this so-
called hidden tax that results from uncompensated care equals $1,000. 
The pending health care reform bill still leaves a large number of 
Americans uninsured. Specifically, the Reid bill leaves 23 million out 
of 54 million without health insurance at the end of this budget 
window, 2019. So, at best, the Democrats' reform cuts the hidden tax in 
half--in this case, to about $500 a family.
  To add insult to injury, however, the bill adds new hidden taxes. 
These taxes are the fees imposed on health insurance. CBO and the Joint 
Committee on Taxation--two respected organizations--say this will 
increase costs. If you check the report, no one can dispute that. These 
fees go into effect in 2011--still 3 years before any of the major 
reforms under the pending bill kick in.
  That means this hidden tax will increase premiums in 2011, 2012, and 
2013. That is before there is any government assistance for health 
insurance being provided to families that need it. The new hidden tax 
is also created as a result of the Medicaid expansion on the one hand, 
and Medicare cuts on the other hand, a major cost shift in health care 
derived from government programs--Medicare and Medicaid--which 
reimburse providers at rates roughly 20 percent to 40 percent lower 
than private providers.
  President Obama understands that paying doctors below market rates 
leads to cost shift. This is what he said at a townhall meeting on 
health care reform:

       If they are only collecting 80 cents on the dollar, they 
     have to make that up someplace else, and they end up getting 
     it from people who have private insurance.

  The Medicare and Medicaid cost shift will be increased significantly 
under the pending health care reform bill. According to the CBO 
estimate, Medicaid will be increased by more than 40 percent, from 35 
million to 50 million people. Additionally, the bill includes almost 
$\1/2\ trillion in Medicare cuts that will result in lower payments to 
providers.
  Increasing the current Medicare and Medicaid cost shift as a result 
of the Democrats' health reforms would add even more costs to a 
family's health insurance policy. The easier cost shift to address 
would be the $1,700 cost shift from defensive medicine. The Democrats 
do not address the cost shift from defensive medicine which former CMS 
Director Mark McClellan has estimated adds $1,700 in additional cost 
per average family.
  Addressing this reform alone could save more than covering all of the 
uninsured in America.
  So, you see, my friends on the other side say their bill will 
eliminate the so-called hidden tax. My friends seem to come up short on 
that one. Also, they add new hidden taxes that will burden middle-class 
Americans.
  I think in the present situation, the legislation before us and the 
language used by debaters on the other side, they should be transparent 
when they are talking about getting rid of the hidden tax. The pending 
health care reform bill makes things from these three perspectives 
work.
  Madam President, I will be happy to yield the floor for a minute for 
the purpose of a colloquy with Senator Baucus on another subject.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Madam President, I would like to address a colloquy with 
Senator Grassley, as he said, on another subject that is not related to 
this bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                        Expiring Tax Provisions

  Mr. BAUCUS. Madam President, the Senate is wrapping up legislative 
business shortly, but there are a few expiring tax provisions that have 
unfortunately not been extended. These provisions include tax benefits 
for individuals and businesses. These provisions would help teachers 
who purchase supplies for their classrooms and families with college 
students.
  Further, a great number of U.S. businesses rely on important tax 
benefits, such as the research and development tax credit and the 
active financing exception, both of which expire at the end of this 
year. The energy industry also relies on several provisions that expire 
on December 31. Unfortunately, this is not the first time we have 
allowed important tax benefits to expire. As soon as the Senate 
reconvenes next year, my intention is that we take up legislation to 
extend these important provisions.
  That is why Senator Grassley and I have written a letter to the 
Senate leadership. I ask unanimous consent to have this letter printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,


                                         Committee on Finance,

                                Washington, DC, December 22, 2009.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate, Washington, DC.
     Hon. Mitch McConnell,
     Republican Leader, U.S. Senate, Washington, DC.
       Dear Majority Leader Reid and Republican Leader McConnell: 
     We write to inform you that early in the next year, we intend 
     to address the extension of various tax provisions expiring 
     on or before December 31, 2009. We intend to extend the 
     provisions without a gap in coverage, just as the House did 
     on December 9th of this year. The legislation will extend 
     several important tax benefits to individuals and businesses. 
     The legislation will also extend a number of energy tax 
     provisions, including the biodiesel tax credit, and natural 
     disaster relief.
       These provisions are important to our economy--not only 
     because they help create jobs, but also because they are used 
     to address pressing national concerns. We understand that the 
     expiration of these provisions creates uncertainty and 
     complexity in the tax law.
       Taxpayers need notice of the availability of these 
     provisions to fully and effectively utilize the intended 
     benefits. We hope to address this issue as soon as possible 
     to cause the fewest disruptions and administrative problems 
     for taxpayers and also generate the greatest economic and 
     social benefit.
           Sincerely,
     Max Baucus,
       Chairman, Senate Committee on Finance.
     Chuck Grassley,
       Ranking Member, Senate Committee on Finance

  Mr. BAUCUS. Madam President, the letter states our intention to work 
together to get the extenders done as quickly as possible in the new 
year.
  Senator Grassley and I both understand that expiration of these 
provisions creates uncertainty and complexity in the tax law. Taxpayers 
need notice of the availability of these provisions to fully and 
effectively utilize their intended benefits. Finally, we must act 
quickly to cause the least disruptions and administrative problems for 
the Internal Revenue Service.
  I hope when the Senate convenes early in 2010, we can address these 
expiring provisions as soon as possible. I wonder if that is also the 
intention of the my good friend from Iowa, Senator Grassley.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Madam President, I would like to add to what Senator 
Baucus said by speaking positively on this issue and to remind my 
colleagues who maybe have been watching in the last 3 weeks and have 
seen Senator Baucus and I on opposite sides of the issue of health care 
reform--it is uncharacteristic for us to have different points of view 
on legislation. In the 10 years he and I have been leaders of the 
Finance Committee, most of the issues coming out of our committee have 
been very bipartisan. What he just talked about and what I am going to 
respond to is one of those issues.
  I agree with Chairman Baucus that we should retroactively extend the 
expiring tax provisions as soon as possible after Congress reconvenes 
in 2010.
  As chairman of the Finance Committee in 2005, I worked with then-
Ranking Member Baucus, and we authored the biodiesel tax credit.
  The biodiesel tax credit is a tax credit that is needed to be 
extended before

[[Page 33014]]

the end of the year to prevent the U.S. biodiesel market from grinding 
to a halt on January 1, 2010. This tax credit differs from other tax 
provisions in that the price of biodiesel will be $1 higher on January 
1, 2010, as a result of the tax credit not being extended before that 
date. That means people will simply buy petroleum diesel rather than 
biodiesel come January 1, 2010.
  I point out that support in Congress for extending the biodiesel tax 
credit, I think, has been and still is robust, bipartisan, and 
bicameral, and that it has not been extended prior to January 1, 2010, 
due solely to issues unrelated to the merits of the biodiesel tax 
credit.
  I want everybody to know that I agree with Chairman Baucus that the 
expiration of these tax provisions creates uncertainty and complexity 
in the tax law. I also agree that the taxpayers need notice that these 
tax provisions will be in place so they can plan their personal and 
business affairs to fully and efficiently use the intended tax 
incentives.
  In addition, extending the tax provisions as early as possible in 
2010, as we intend to do, will minimize the administrative problems 
created for the Internal Revenue Service.
  I look forward to working with Chairman Baucus to retroactively 
extend these provisions as soon as possible when the Senate reconvenes 
in 2010.
  Mr. BAUCUS. Madam President, I thank the Senator for his statement. I 
look forward to working with him and other Senators so we can pass this 
legislation as soon as possible next year.
  Again, I commend my colleague and friend. It is true that much more 
often than not we are working on the same side of an issue. Even on the 
few occasions when we are on the opposite side, I do say we do it 
agreeably. I wish more of the Senate would act the same way.
  Mr. HARKIN. Madam President, I thank the Senators. The delay in the 
passage of the Tax Extenders Act of 2009 will cause problems for a wide 
variety of groups, as the distinguished Senators from Montana and Iowa 
have outlined. I believe the negative impact of our failure to act this 
year will be felt first, and felt most strongly, by manufacturers of 
biodiesel. Without the immediate passage of legislation to extend the 
biodiesel tax credit, a large number of biodiesel manufacturing plants 
are likely to close down because they do not have the resources to 
operate without the financial benefit of the credit.
  Biodiesel is a key part of our Nation's success in biofuels. These 
biofuels, produced here in our own country, are helping to reverse our 
near-total dependence on petroleum for transportation in this country. 
The hard truth is that we get about 70 percent of our petroleum from 
other countries, and many of those countries are unstable or are 
unfriendly to the United States or both. So biodiesel is helping us 
restore national energy security.
  Biodiesel is made from vegetable oils or animal fats. The biodiesel 
industry employed over 50,000 workers and added over 600 million 
gallons of biobased fuel last year to help power the diesel engines 
across our Nation and throughout the economy.
  However, this is still a very small and struggling industry. It is 
absolutely dependent on continuation of the biodiesel tax credit. 
Without this credit, most of the biodiesel plants in this country will 
simply be forced to shut down, thus idling important domestic fuels 
production capacity as well as putting as many as 20,000 employees out 
of work. We can't let that happen. And, if for any reason the credit 
was not made retroactive, bankruptcy would in a good number of 
instances be a quick result.
  I do appreciate the efforts by the chairman and ranking member to 
move forward with this badly needed legislation at the first 
opportunity.
  Ms. STABENOW. Madam President, as we work toward economic recovery, 
it is imperative that we act quickly to extend critical tax provisions 
scheduled to expire this year that promote research and development, 
spur community development, support the deployment of alternative 
vehicles and fuels, and provide certainty for businesses and families.
  Knowing these tax provisions are in place allows Americans to plan 
for the upcoming year. The longer we wait to pass this legislation, the 
more uncertainty we place on businesses during a time when they are 
starting to recover. Many of these tax provisions encourage investment, 
the development of new technologies, and business growth, which allow 
our companies to be competitive in a global marketplace.
  Delaying the extension of the research credit could put more than 
100,000 jobs and billions of dollars in economic activity and Treasury 
revenue expected in 2010 in jeopardy, according to estimates from 
TechAmerica. If the credit is renewed, the association estimates that 
120,000 jobs would be generated and/or sustained, there would be an 
additional $16 billion in additional research and development and other 
economic activity and $13 billion in Federal tax revenue over the 
course of 2010. However, for every day that the credit is left expired, 
there is the potential to lose 331 jobs, $45 million in economic 
activity, and $37 million in tax revenue.
  Another important tax provision set to expire this year allows 
businesses to write off the expenses of cleaning up brownfields, 
industrial land that would otherwise continue to be a blight on our 
communities and harm our environment. In my home State of Michigan, 
these credits will be needed more than ever to address the brownfields 
that have been left behind as a result of the restructuring of the 
automotive industry. Revitalization of these brownfields will be 
critically important to communities throughout the State and the 
Midwest.
  It is also imperative that we restore the estate tax retroactively to 
January 1, 2010. I am extremely disappointed that an extension was 
blocked and that the estate tax will be allowed to expire in 2010. 
Contrary to Republicans' claims, more heirs of farm and business 
estates will be hit with a tax increase than if we extended the estate 
tax at current levels. If the 2009 rules are retroactively applied, 
then only approximately 6,000 estates would pay the estate tax each 
year; however, if the estate tax expires, then it is estimated that 
61,000 estates could be hit with the capital gains tax. It is critical 
that we extend the estate tax under the 2009 parameters to protect 
small businesses and family-owned farms, continue the incentive that 
the estate tax provides for charitable giving, and provide certainty 
for the heirs of farm and business estates.
  During one of the most challenging economic times our country has 
faced, dragging our feet on these tax extensions could have a 
substantial impact on our Nation's businesses and families at a time 
when we should be doing all we can to help them succeed. I look forward 
to working with Chairman Baucus and Ranking Member Grassley to 
retroactively extend expiring tax credits expeditiously when we return 
next year.
  Mr. GRASSLEY. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  Mr. GRASSLEY. 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. GRASSLEY. Madam President, there was a report released recently 
by the Chief Actuary, Rick Foster. I hope this report will once and for 
all put an end to any serious consideration of the CLASS Act. The CLASS 
Act is going to be in the bill, if this bill passes Congress. But it 
should not be in it, and we should have had a long discussion on this 
provision because it is simply fiscally unsustainable.
  The information the Chief Actuary's letter provides is ample evidence 
of why the CLASS part of this bill cannot work. Quoting from page 13 of 
the Chief Actuary's letter:

       We estimate that an initial average premium level of about 
     $240 per month would be required to adequately fund CLASS 
     program costs for this level of enrollment, antiselection, 
     and premium inadequacy for students and low income 
     participants.

  So who would enroll in the CLASS program? An American making 300 
percent of poverty has a gross income of

[[Page 33015]]

$32,490. If the CLASS premium is, as the Chief Actuary predicts, $240 
per month--that is $2,880 per year--and an individual at 300 percent of 
poverty would have to commit 8.9 percent of their income to join the 
program. That is simply not possible, nor is it plausible to argue that 
young, healthy persons will commit almost 9 percent of their income to 
long-term care insurance policy.
  The people who will enroll then are those who have real expectations 
of using the long-term care benefit. People who join the CLASS program 
with the expectation of needing the benefit become the Bernie Madoffs 
of the CLASS Act Ponzi scheme.
  An individual becomes eligible for the CLASS program after paying 
premiums for just 5 years. If a person pays premiums of $2,880 per year 
for 5 years, they would have paid a total of $14,400 in premiums for 
that program. That person can then begin collecting a benefit of $1,500 
per month. In 10 months, the person will have recouped their 5 years' 
worth of premiums.
  This simple explanation should make it crystal clear why the CLASS 
Act is a fiscal disaster waiting to happen, not based on our 
determination but based on the determination of the Chief Actuary. The 
premium will be too expensive to entice young, healthy people to 
participate. The benefit payout is very enticing for people who know 
they will need the benefit. Healthy people do not participate; sicker 
people will. This adverse selection problem will send the program into 
the classic insurance death spiral.
  The Chief Actuary concluded on page 14 of his report with this one 
sentence:

       There is a very serious risk that the problem of adverse 
     selection would make the CLASS program unsustainable.

  If the CLASS Act becomes law, the Federal taxpayers are at very 
serious risk of paying a price to clean up the fiscal disaster when the 
CLASS Act fails.
  I yield the floor and 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. BAUCUS. 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. BAUCUS. Madam President, this chart shows very graphically--this 
is data put together by the Joint Committee on Tax, combining all the 
various provisions in the bill. Basically, it shows that in 2015--that 
is the bar on the far left--there will be a $26.8 billion net tax cut 
for individuals--net tax cut. Two years later in 2017--that is the 
middle vertical bar--there is a net tax cut of $40 billion for all 
Americans--a net tax cut. Not for all Americans. Some will not get it, 
but most Americans by far will. Then, of course, 2 years later in 2019, 
there is a net tax cut of $40.8 billion.
  I wanted to make it clear that there is a net tax cut in this bill, 
according to Joint Tax. This is the distribution over 3 different 
years--2015, 2017, and 2019. That is information prepared by the Joint 
Committee on Tax. I want Americans to know there are tax cuts in this 
bill, and they are very significant.
  Madam President, I yield the floor.

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