[Congressional Record (Bound Edition), Volume 163 (2017), Part 7]
[Senate]
[Pages 10258-10261]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

                           EXECUTIVE CALENDAR

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to resume consideration of the Rao 
nomination, which the clerk will report.
  The bill clerk read the nomination of Neomi Rao, of the District of 
Columbia, to be Administrator of the Office of Information and 
Regulatory Affairs, Office of Management and Budget.
  The PRESIDING OFFICER. The Senator from Florida.
  (The remarks of Mr. NELSON pertaining to the introduction of S. 1521 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. NELSON. I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. CORNYN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Ernst). Without objection, it is so 
ordered.


                         Healthcare Legislation

  Mr. CORNYN. Madam President, I know we are all glad to be back in 
Washington, DC, at work after a few days back home, and I know many of 
us are eager to continue our work to rescue the American people from 
the failures of the Affordable Care Act, otherwise known as ObamaCare.
  The failures of ObamaCare are well documented, and while they don't 
necessarily apply to everyone, particular individuals and small 
businesses in the so-called individual market have seen a meltdown of 
the insurance exchanges. The Presiding Officer in her home State of 
Iowa, I know, has had insurance companies pulling out to the point 
where people can't even find an insurance carrier who will sell a 
policy that qualifies under the Affordable Care Act. That is because 
the Affordable Care Act was, unfortunately, a partisan exercise and a 
Big Government experiment that has failed.
  All you have to do is look at the promises that were made at the time 
that ObamaCare was being sold back in 2009 and 2010. The President 
himself said that if you like your doctor, you can keep your doctor. 
Well, that proved to be not true. He said that if you liked your 
policy, you can keep your policy. Well, that proved not to be true as 
well because people saw their policies canceled because they couldn't 
qualify under the new requirements of the Affordable Care Act.
  Perhaps the thing that stung the most was the fact that the President 
said back in 2009 and 2010 that an average family of four would see a 
reduction in their health insurance premiums by an average of $2,500. 
Well, what we have seen since 2013 is a 105-percent increase in 
insurance premiums under the Affordable Care Act, and so instead of 
seeing a cut in their out-of-pocket costs of $2,500, what people have 
experienced--families of four--is an insurance premium increase of 
$3,000. Now, some people may be able to absorb that cost, but most 
people I know cannot. What it has meant is, they have had to 
reprioritize their spending so they have less to spend on other things 
in their life.
  We do know, based on the promises made at the time the Affordable 
Care Act was being sold to the American people, that it has been a 
failed experiment. So the question is, What are we going to do about 
it? What are we going to tell the folks in Iowa who can't find an 
insurance policy or an insurance company who is willing to sell them an 
insurance policy on the individual market? What are we going to tell 
people in Texas who have seen their premiums go up by 105 percent since 
2013 and have been priced out of the market or who found that the only 
policy they can afford is one with deductibles that are so high that 
basically they are denied the benefit of their insurance at all? What 
are we going to do about it?
  A number of my colleagues have noted that even if Hillary Clinton 
were elected President of the United States, we would still have to be 
revisiting the failures of the Affordable Care Act because the failures 
are all too obvious and public and can't be denied, but despite that, 
and acknowledging many of ObamaCare's failings, many of our friends 
across the aisle--in fact, all of them so far in the Senate--have made 
clear they want nothing to do with providing any help or any aid to the 
people who are being hurt by the failures of ObamaCare. They don't want 
to lift a finger to help the people who can't find insurance, who can't 
afford it, and the policies they are forced to buy limit them in a way 
that they simply have decided to opt out.
  So instead of working together with us--you would think they would do 
that. It would just be a logical thing to do because their constituents 
are the ones who are being hurt, in many instances. Instead, they have 
fought us tooth and toenail to preserve the broken status quo in 
healthcare that has failed so many people across the country, and they 
have made dubious claims about our efforts to address the problem to 
the best of our ability.
  It reminds me of the old saying: Don't let the facts get in the way 
of a good story. Our friends across the aisle have simply washed their 
hands of any responsibility, even though they are the ones who passed 
the Affordable Care Act and created this failed experiment and put so 
many people in distress. Now they are in the process of

[[Page 10259]]

attacking those of us who are trying to help people who are hurting, 
rather than lending a helping hand and working together with us in a 
bipartisan way.
  Let me talk just a minute about Medicaid because this is one of the 
big attacks that is being made by our Democratic colleagues on our 
efforts to try to salvage healthcare for people who are hurt by the 
failures of the Affordable Care Act. Much of the conversation has 
revolved around Medicaid and rightly so.
  In my home State, 4.7 million folks currently rely on Medicaid. It is 
an important safety net program for people who are in low-income 
status--so for poorer folks. For those Americans, I want to make sure 
they understand, notwithstanding all the scare tactics, Medicaid is not 
going away.
  Now, one of the common refrains is that Medicaid spending is slashed 
in the Better Care Act, but the nonpartisan Congressional Budget Office 
estimates that Medicaid spending will grow by $74 billion over 10 
years. So when they have talked about it being cut, it actually grows 
by $71 billion over 4 years.
  I would also point out there are some who think the current rate of 
spending on Medicaid can go forward unabated without any changes, and 
that is simply not true. We know that according to the Congressional 
Research Service, Medicaid spending across the country totaled $494 
billion in 2014. I guess that was the last year for which full 
statistics were available--$494 billion. If we do nothing to check the 
rate of growth of Medicaid spending, in 2023, it will be $835 billion. 
So you go from $494 billion to $835 billion. We simply cannot keep up 
with that pace of spending.
  Many of us--the Presiding Officer being one of them--are concerned 
about cuts in our military, which is the one thing the Federal 
Government has to do because nobody else can do it. Right now, we have 
seen, during the last administration, cuts of about 20 percent in our 
defense spending.
  Well, when you have runaway spending in entitlement programs like 
Medicaid, where nobody is placed on a budget and forced to spend wisely 
and efficiently, essentially by forcing the Federal Government to spend 
$835 billion for Medicaid spending alone, that is going to crowd out a 
lot of other meritorious and important spending, including for defense 
spending as well.
  So we need to make sure Medicaid is there but that Medicaid is put on 
a responsible budget that grows year after year. In fact, during the 
life of this particular bill, over the next 10 years, it will go up $71 
billion.
  Here is another thing. Our friends across the aisle act like Medicaid 
is the very best program to come down the pike. Well, it is not, and 
there are a number of reasons for that. One is that Medicaid recipients 
don't always get the quality of care or the access to care we would 
hope for. That is because the States, which set the rate of 
reimbursement of doctors for Medicare beneficiaries, set it so low that 
it is roughly half the amount that is reimbursed based on private 
insurance. That is the reason why, in 2000, 67 percent of Texas 
physicians accepted new Medicaid patients. Today, it is 31 percent. So 
if you are on Medicaid, there is a two-thirds chance you will not be 
able to find a doctor to see you as a Medicaid beneficiary.
  What we have done, instead, in the Better Care Act--particularly for 
the single adult population between 100 percent and 135 percent of the 
Federal poverty level--is, we said we will give you a refundable tax 
credit you can use to buy private insurance. Private insurance is 
highly preferable to Medicaid because, for one thing, it reimburses 
physicians at a higher rate and gives people greater access to 
physicians, hospitals, and greater quality of care. In my State alone, 
in the State of Texas, according to the Kaiser Family Foundation, as 
many as 600,000 new low-income Texans will benefit from the provisions 
of the Better Care Act. It will help qualify them for a tax credit not 
available to them under ObamaCare.
  Simply throwing money at Medicaid will not help people at all. We 
need to reform Medicaid and make it more efficient. Frankly, one of the 
things I did back when we were debating the Affordable Care Act in the 
Senate Finance Committee, I actually filed an amendment that said 
Members of Congress would go on Medicaid. Well, it failed, but the 
point I was trying to make is that if Members of Congress were on 
Medicaid, we would fix Medicaid. Right now, it is substandard 
healthcare for the reasons I mentioned. Two-thirds of the doctors in my 
State alone refuse to see a new Medicaid patient because it pays them 
so far under the standard of private insurance or even Medicare.
  By providing low-income Americans access to private insurance instead 
of Medicaid, we can assist those who were previously left out of the 
healthcare market and will now be able to purchase a plan of their 
choice perhaps for the first time. Unless we act, we are going to 
continue to see skyrocketing premiums and deductibles and lost 
coverage.
  The American people were told time and time again that under 
ObamaCare costs would go down and they would be able to keep their 
doctor, which has proven not to be the case.
  I mentioned before on the floor of the Senate that in my previous 
life as attorney general of Texas, we had something called the Consumer 
Protection Division, and if some business made false claims about a 
service or product to the American people when it came to their 
healthcare, the U.S. Government would take them to court and we would 
win because it is simply a deceptive trade practice in that context. It 
is deception. It is deceit. Unfortunately, the American people were 
bamboozled by promises that were not kept.
  We also know that about $1 trillion in ObamaCare taxes--new taxes 
that were imposed to pay for ObamaCare--have ultimately been saddled on 
American families with higher costs for healthcare. When ObamaCare was 
passed and all these new taxes were passed, my friends across the aisle 
acted as though they would simply be absorbed by somebody, but we all 
know that simple economics means that ultimately the consumers are the 
people who actually pay the tab. They are the ones who end up paying 
the taxes.
  Some of our colleagues on the other side recognized the destructive 
nature of the Affordable Care Act tax scheme. For example, five 
Democratic Senators, including my colleagues from Minnesota, voted to 
repeal the medical device tax just 2 years ago. The medical device tax 
was a draconian form of taxation. It wasn't based on income--in other 
words, where you could deduct your expenses and just pay taxes on your 
net income--it was a gross receipts tax. In other words, it said in 
effect that everything you have earned before you deduct your costs of 
doing business is going to be taxed at a given rate, and that was true 
of the medical device tax.
  Perversely, a tax on medical devices meant not only did the jobs to 
produce those medical devices move offshore, in the case of one Texas-
based company, they moved their business essentially to Costa Rica in 
order to avoid the taxes because they simply couldn't afford to pay 
them and stay in business and keep the jobs they had.
  It was also a tax on innovation, and that is the reason we saw a 
bipartisan response to repeal the medical device tax just 2 years ago, 
because this tax has chased away jobs and innovation in the medical 
sector and saddled consumers with higher costs.
  By repealing those taxes in the Better Care Act, we not only will 
lower the bill at the pharmacy or the doctor's office, but we encourage 
competition, and that is common sense and ultimately benefits 
consumers.
  Our plan also protects consumers from government mandates requiring 
them to buy insurance that they don't want and can't afford. This way, 
families can choose what works best for them, free from the penalties 
by the government. Some individuals may choose to go with no plan at 
all.
  The dirty little secret about the Affordable Care Act is that it 
can't work without a government mandate that you buy government-
approved health

[[Page 10260]]

insurance or else you pay a penalty. I can't think of any other 
instance where the government says ``You do what we say, or we are 
going to punish you and penalize you,'' as the Affordable Care Act 
does.
  Even with the individual mandate and this threat of a penalty, we 
know that about 28 million Americans are currently not covered by 
insurance. Many of them are covered by so-called hardship exceptions. 
About 6.5 million of them just pay the penalty because it is cheaper to 
pay the penalty than it is to buy the insurance because the prices are 
so high.
  When some of the critics say that without this economic gun to the 
head of a penalty, people will choose not to buy insurance for 
themselves, that is a choice they will make as Americans. We believe in 
freedom of choice, and when the marketplace provides a product that 
they believe adds value at a price they can afford, that is when 
consumers buy a product or a service. But they shouldn't have to do it 
because the government forces them to do so and penalizes them if they 
don't. The Better Care Act gives people the ability, free from a 
government mandate, to choose not to buy something they don't want. The 
Washington-forced mandates are gone.
  The nonpartisan budget office has estimated that under our plan, 
average premiums will decrease by nearly one-third in 3 years.
  These are some of the important facts we need to be debating, not the 
misrepresentations that unfortunately seem to fill the void.
  I have shared multiple stories from my constituents back home in the 
last few weeks on the floor, and I plan to keep doing that as we 
continue our work on this legislation. The stories that I and my 
colleagues have heard are what have inspired me and motivated me from 
the beginning of this entire process. In fact, it is our job to 
represent our constituents. I would encourage all of our colleagues to 
listen to their own States and to share the trials of their 
constituents as well because the status quo is simply unacceptable. The 
Democratic leader has said as much. He said that if we set aside the 
Better Care Act and are actually interested in helping ``fix'' 
ObamaCare, they are willing to do that. But do you know what that is? 
Basically, what that represents is a huge, multimillion-dollar bailout 
of insurance companies without any other reform. That is what our 
Democratic colleagues are supporting by their failure to engage with us 
in making sure there are reforms in addition to the other things that 
we do.
  The other alternative plan--you might ask: Well, if Obamacare didn't 
work as was advertised--which it clearly hasn't--and something needs to 
be done, what does that something look like?
  In the case of our friend the Senator from Vermont, Mr. Bernie 
Sanders, he said: I have an idea. Let's just make the Federal 
Government provide insurance coverage for everybody, single-payer.
  Well, that is simply a solution we can't afford when we look at the 
tradeoffs. It would essentially supplant all the private insurance that 
people get from their employers and require incredible increases in 
taxes in order to do that across the board. So I don't think that is an 
alternative our friends across the aisle want to support. They love the 
mandate, they love penalizing free American citizens when they don't 
purchase a product the government mandates, but they are not going to 
defend that. They are not going to defend that. They certainly won't 
advocate, at least openly here on the floor, for a single-payer system.
  We saw one committee of the legislature in California recently vote 
out a single-payer system. This was just one committee, I think, in one 
house. The estimated cost of a single-payer system in California alone 
was double the annual budget of the entire State. You can imagine what 
the numbers would be here at the national level.
  Like any piece of legislation, our draft bill can be strengthened, 
and we would invite anyone in good faith who is interested in 
strengthening the bill to work with us to do so. We are going to 
continue to talk and listen and exchange ideas on how we can continue 
to make improvements, but in the end, the choice is clear: You either 
ultimately support ObamaCare and the status quo, or you are willing to 
try to work with us to produce something better that provides more 
affordable healthcare from the doctor and healthcare provider of your 
choice. That is simply the choice people are going to have. A ``no'' 
vote against the alternative is simply a vote for the status quo for 
ObamaCare, and we know where that is going to lead--it is going to lead 
with a big, multibillion-dollar bailout of insurance companies without 
any reform. That is what our Democratic colleagues are hoping for if we 
are unsuccessful. But we think there is a better way to approach this, 
one that brings down cost and maintains choices and the freedom of 
choice for the individual consumer.
  We will continue to plow ahead with or without their help because we 
think it is our duty to do so, and we have confidence that, working 
together, we can come up with a better care plan that suits the needs 
of Americans when it comes to their healthcare.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Ms. WARREN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. WARREN. Madam President, from day one, this administration, 
President Trump, and congressional Republicans have attacked rules that 
protect working families.
  Just 1 hour after taking the oath of office, President Trump 
indefinitely suspended a plan that made it easier for working families 
to be able to afford a mortgage. Ten days later, he issued an Executive 
order that requires agencies to identify and eliminate two rules for 
every one new rule they issue, and that was just the beginning. 
Congressional Republicans spent the first few months of the year 
eliminating rules that protected workers, students, and families. They 
killed a rule that required companies in dangerous industries to track 
when their employees were injured. They even killed a rule that helped 
keep guns out of the hands of the mentally ill.
  These rules all had one thing in common--they all made sure the 
public health, safety, and security of Americans came ahead of 
industry's bottom line.
  Oh, and there was a second thing in common for these rules: Industry 
hated them. With President Trump in office and Republicans in the 
majority in Congress, those industries were ready to cash in, and they 
had their wish list ready.
  Although the attack on public-centered rules has increased in 
intensity during this administration, I just want to say it is not new. 
Powerful companies have long understood that the fight in Congress is 
just the first of many battles. If Big Business can't weaken or kill 
bills they don't like in Congress, they turn their attention to the 
agencies tasked with implementing those laws, working to tilt the 
rulemaking process in their favor, and they don't waste any time 
getting started.
  Long before rules are even announced, giant corporations intensely 
lobby agencies--setting up meeting after meeting--to make sure the 
agencies will prioritize corporate interests. As rules wind their way 
through the rulemaking process, the lobbying intensifies. Companies 
bury agencies in mountains of expensive, industry-funded comments. They 
cite sham research and bought-and-paid-for experts. If, at the end of 
that long, arduous process, a strong, public-centered rule is published 
anyway, those companies sue, looking to busy judges who are unfamiliar 
with the issues to overturn the decision of expert agencies.
  There are no two ways about it. The rulemaking process is broken. 
There are far too many opportunities for giant corporations to 
influence the rulemaking process, and there are far

[[Page 10261]]

too few opportunities for meaningful public participation, but 
Republicans don't want to fix this problem--no way. They want to make 
the rulemaking process work even better for their corporate buddies and 
work even harder against American families.
  And, boy, did they pick the right person to lead the charge. 
President Trump nominated Neomi Rao--a law school professor who 
advocates for weakening and handcuffing agencies--to run the Office of 
Information and Regulatory Affairs known as OIRA.
  OIRA is a small, little-known but intensely powerful office that 
renews economically significant Federal rules. Before the Department of 
Labor can issue a rule on workplace safety, for example, or the 
Environmental Protection Agency can issue a rule restricting water 
pollution or the Department of Education can issue a rule protecting 
students from shady, for-profit colleges, that rule must be submitted 
to OIRA to sign off. If OIRA doesn't like the rule, it can change the 
rule or hold it up for months at a time. When a rule finally makes it 
out of the OIRA ringer, chances are that any changes will be slanted in 
favor of corporate interests.
  Professor Rao's view of agencies makes her the wrong person to lead 
this powerful agency. She believes judges should pay less attention to 
the conclusions of experts at Federal agencies, and Professor Rao is 
especially critical of the Consumer Financial Protection Bureau--the 
CFPB. This is the agency that has forced the biggest corporations and 
banks in this country to return more than $12 billion directly to 
Americans they have cheated and held big banks like Wells Fargo 
accountable when they have ripped off customers.
  Professor Rao says the CFPB's problem is its independence--seriously. 
Maybe Professor Rao thinks that little agency just doesn't kowtow 
enough to the big banks. If Professor Rao had her way, independent 
agencies like the CFPB would be handcuffed by OIRA, the agency she 
wants to run. It is no surprise that the Wall Street giants that have 
been trying to take down the CFPB for years love Professor Rao's views.
  If confirmed, Professor Rao will be perfectly positioned to put her 
theories into practice. She will head the Trump administration's 
efforts to toss out the rules big businesses don't like. She will 
determine whether rules go through the slanted OIRA process. She will 
have a chance to gut strong rules that help working families.
  The rulemaking process is broken, and there is a lot Congress should 
be doing to fix it, to try to make it work better for people all across 
this country--for workers and for families and for people who get 
cheated, but the Trump administration wants to go in the opposite 
direction.
  Any Senator who believes corporations need more say in the rulemaking 
process should vote for Neomi Rao, but anyone who thinks we are 
supposed to be here to work for the American people will vote to reject 
her nomination.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. STRANGE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Moran). Without objection, it is so 
ordered.
  Under the previous order, all postcloture time is expired.
  The question is, Will the Senate advise and consent to the Rao 
nomination?
  Mr. STRANGE. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Alaska (Ms. Murkowski), the Senator from Ohio (Mr. 
Portman), the Senator from Alaska (Mr. Sullivan), and the Senator from 
North Carolina (Mr. Tillis).
  Further, if present and voting, the Senator from North Carolina (Mr. 
Tillis) would have voted ``yea'' and the Senator from Alaska (Ms. 
Murkowski) would have voted ``yea.''
  Mr. DURBIN. I announce that the Senator from New Mexico (Mr. Udall) 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 54, nays 41, as follows:

                      [Rollcall Vote No. 156 Ex.]

                                YEAS--54

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Capito
     Carper
     Cassidy
     Cochran
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Donnelly
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heitkamp
     Heller
     Hoeven
     Inhofe
     Isakson
     Johnson
     Kennedy
     King
     Lankford
     Lee
     Manchin
     McCain
     McCaskill
     McConnell
     Moran
     Paul
     Perdue
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Scott
     Shelby
     Strange
     Thune
     Toomey
     Wicker
     Young

                                NAYS--41

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

                             NOT VOTING--5

     Murkowski
     Portman
     Sullivan
     Tillis
     Udall
  The nomination was confirmed.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. BARRASSO. Mr. President, I ask unanimous consent that with 
respect to the Rao nomination, the motion to reconsider be considered 
made and laid upon the table and the President be immediately notified 
of the Senate's action.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________