Medicare DSH Payments for Puerto Rico Hospitals Fairness Act of 2004

Mr. President, 15 years ago the U.S. Supreme Court, in a 5 to 4 decision, struck down a Texas flag protection statute. The Supreme Court ruled that burning an American flag was a form of ``speech,'' and therefore protected under the first amendment of the Constitution.

I disagreed with the Court's decisions then and I still do. I don't believe that the act of desecrating a flag is an act of speech. And I believe that our flag, as our national symbol, can and should be protected by law.

In the intervening years since the Supreme Court decision, I have supported Federal legislation that would make flag desecration illegal. Yet on several occasions, I have also voted against amendments to the Constitution to do the same.

I voted that way because, while I believe that flag desecration is despicable conduct that should be prohibited by law, I also believe that amending our Constitution is a step that should be taken only rarely, and then only as a last resort.

In the past year I have once again reviewed in detail nearly all of the legal opinions and written materials published by constitutional scholars and courts on all sides of this issue. After that review, I have concluded that there remains a way to protect our flag without having to alter the Constitution of the United States. So I am joining Senator Bennett today to introduce bipartisan legislation that accomplishes that goal.

The bill we introduce today protects the flag but does so without altering the Constitution. A number of respected constitutional scholars tell us they believe this type of statute will be upheld by the U.S. Supreme Court.

This statute protects the flag by criminalizing flag desecration when its intended purpose is to incite violence.

I know that supporters of a constitutional amendment will be disappointed by my decision to support this statutory remedy to protect the flag, rather than support an amendment to the U.S. Constitution. I know they are impatient to correct a decision by the Supreme Court that they and I believe was wrong.

I have wrestled with this issue for a long time, and I wish I were not, with my decision, disappointing those, including many of my friends, who passionately believe that we must amend the Constitution to protect the flag. But, in the end, I know that our country will be better served reserving our attempts to alter the Constitution only for those things that are, in the words of James Madison, ``extraordinary occasion.''

More than 11,000 constitutional amendments have been proposed since our Constitution was ratified. However, since the ratification of the Bill of Rights in 1791 only 17 amendments have been enacted. These 17 include 3 reconstruction era amendments that abolished slavery and gave African Americans the right to vote.

The amendments included giving women the right to vote, limiting Presidents to two terms, and establishing an order of succession in case of a President's death or departure from office. The last time Congress considered and passed a new constitutional amendment was when it changed the voting age to 18, more than a quarter of a century ago. All of these matters were of such scope they required a constitutional amendment to be accomplished. They could not have been accomplished otherwise.

But protecting the American flag can be accomplished without amending the Constitution, and that is a critically important point.

The bill we are introducing today, on a bipartisan basis, outlaws three types of illegal flag desecration.

First, anyone who destroys or damages a U.S. flag with a clear intent to incite imminent violence or a breach of the peace may be punished by a fine of up to $100,000, or up to 1 year in jail, or both. Second, anyone who steals a flag that belongs to the United States and destroys or damages that flag may be fined up to $250,000 or imprisoned up to 2 years, or both. And third, anyone who steals a flag may also be fined up to $250,000 or imprisoned up to 2 years, or both.

Constitutional scholars, including those at the Congressional Research Service, the research arm of Congress, and Duke University's Professor William Alstyne, have concluded that this statute passes constitutional muster, because it recognizes that the same standard that already applies to other forms of speech applies to burning the flag as well.

This is the same standard which makes it illegal to falsely cry ``fire'' in a crowded theater. Reckless speech that is likely to cause violence is not protected under the ``fighting words'' standard, long recognized by the Supreme Court of the United States.

So we are offering this bipartisan legislation with the confidence that its passage would meaningfully and effectively protect our cherished flag.

I believe that future generations, and our Founding Fathers, would agree that it is worthwhile for us to find a way to protect our flag without altering the Constitution. And so I ask those colleagues who, like me, care deeply about both our flag and our Constitution, to support this legislation.

I ask unanimous consent that the full text of the bill be printed in the Record following my remarks.

Mr. President, I rise today to introduce the Summer Operations and Services or ``SOS'' Relief and Reform Act, S. 2258.

Across our Nation, there are businesses, many of which are small, which look forward to the summer time each year as an opportunity to conduct their seasonal operations. From Utah to Alaska to New England and down to the Southern States, innkeepers, swimming pool operators, and fishermen rely on the income generated during the summer months to feed their families, employ their neighbors, and contribute to their local economies. Individually, these businesses may not be big operations, but collectively, they are an integral part of the American economy.

Because of the nature of our country's labor market, and perhaps because of the unattractiveness of seasonal versus permanent work, these operations have traditionally relied upon the H-2B visa program to bring needed workers from abroad. For those who may not understand the purpose for this program, let me explain it. An employer is only allowed to request an H-2B worker when no American worker is available for the same job. An employer is not allowed to pay lower wages to these foreign visa holders. Throughout our immigration history, the H- 2B program has remained noncontroversial.

This year, perhaps as a sign of our economy's increasing vitality, the H-2B annual cap of 66,000 visas has already been reached. Meanwhile, small businesses across the country warn that if Congress does not make some sort of accommodation, they stand to suffer immeasurable losses. Failing to act would not only be detrimental to these small businessowners, many of whom simply cannot afford to lose an entire year's worth of profit, but would hurt the Americans whose jobs also depend on the stability of these businesses. The negative impact upon the hospitality and tourism sectors would be severe as well. In other words, unless we act quickly and give these seasonal operations the resources they need, we are facing a very bleak summer for many hard-working Americans and entrepreneurs.

That said, as much as I want to do all that I can to save this summer of seasonal work, I also want to make sure that in our haste, we do not establish unsound policy and set a bad precedent for the future. Many immigration reformists oppose increasing numbers in any immigration program. I oppose simply raising the numbers indiscriminately. Instead, what we need is a program that is tied to the realities of our economy and our job market. The reform I propose in ``SOS'' will bring us closer to this ultimate goal.

Specifically, S. 2258 does not raise the visa cap number. Instead, it exempts those who were admitted on an H-2B visa during the past 2 fiscal years from the cap for the remainder of this year. This is a good reform approach for several reasons: First, the number of actual workers admitted will be dictated by the strength of the economy, and not by a random number that resulted from political compromise. Second, it gives preferential treatment to those who have used the program before, and who have complied with the law and returned to their home countries at the end of the season. Third and finally, it would allow the Secretary of Homeland Security to delegate to the Secretary of Labor the specific as well as inherent authority to investigate fraudulent immigration and employment practices. No immigration reform can be complete without addressing that issue. Of course, this bill does not represent all of the reforms that are needed, but is it a step in the right direction, while providing immediate relief for our seasonal businesses.

I thank Chairman Chambliss of the Judiciary Committee's Immigration Subcommittee for his valuable input and for being our lead cosponsor on this bill. I also want to thank the administration for its contribution and expertise in reforming the H-2B visa program in an administratively feasible manner. Finally, I would be remiss if I did not recognize the contribution made by the other original cosponsors, Senators Allen, Gregg, Collins, Murkowski, Warner, and Thomas.

Let me conclude by emphasizing that without our immediate attention to this pressing problem, local economies will face substantial losses. Let us work together to prioritize the health of America's seasonal businesses, and safeguard the livelihood of all the people who depend on them. I ask my colleagues for their bipartisan cooperation in the timely passage of this bill.

Mr. President, today we have an opportunity to reach out to the least developed country in the Western Hemisphere--we have an opportunity to reach out to the island nation of Haiti.

I am pleased to join Senators Graham of Florida, Lugar, Baucus, Chafee, Dodd, Voinovich, and Nelson of Florida in introducing the Haiti Economic Opportunity Act of 2004. I also would like to thank Representative Shaw, as well as our other House cosponsors, for their support of this bill.

Our bill would use trade incentives to encourage the post-Aristide government to make much needed reforms, while encouraging foreign direct investment--the most powerful, and yet underutilized, tool of development. The bill's provisions apply the least developed country provisions of the African Growth and Opportunity Act, AGOA, to Haiti-- the least developed country in our Hemisphere.

Specifically, our bill would provide duty-free entry to apparel articles assembled in Haiti contingent upon Presidential certification that the new government is making significant political, economic, and social reforms. The bill also caps the amount of duty-free articles at 1.5 percent of the total amount of U.S. apparel imports, growing to 3.5 percent over 7 years. Currently, Haiti accounts for less than one-half of 1 percent of all U.S. apparel imports, and although these provisions seem modest by U.S. standards, in Haiti they are substantial.

The enactment of this legislation would promote employment in Haitian industry by allowing Haiti to become a garment production center again. Haiti has a labor advantage that makes it competitive compared to other countries in the region, and at one time several years ago over 100,000 people were employed in assembly jobs. Now, that number stands at just 30,000, and regional and global economic conditions are quickly converging to eliminate any chance of Haiti reestablishing a foothold in the garment production market.

Our window of opportunity to act expires at the end of the year, when quotas are phased out of the global market for textiles and apparel, and countries, such as China, are allowed to fully enter the market. In addition, Haiti has been largely left out of the Central American Free- Trade Agreement negotiations, gaining only small concessions for coproduction with the Dominican Republic. These concessions are necessary but far from sufficient for creating jobs.

I have traveled to Haiti 13 times, and there is no doubt that Haiti needs this opportunity. No other nation in our hemisphere is as impoverished. Today, at least 80 percent of all Haitians live in abject poverty, with at least 80 percent under- or unemployed. Per capita annual income is less than $400.

No other nation in our hemisphere has a higher rate of HIV/AIDS. Today, AIDS is the No. 1 cause of all adult deaths in Haiti, killing at least 30,000 Haitians annually and orphaning 200,000 children.

No other nation in our hemisphere has a higher infant mortality rate or a lower life expectancy rate.

And, no other nation in our hemisphere is as environmentally strapped. Haiti is an ecological disaster, with a 98-percent deforestation level and extreme topsoil erosion.

Despite this, U.S. assistance has reached its lowest level in over a decade. This needs to change. Haiti is in our backyard, inexorably linked to the United States by history, geography, humanitarian concerns, the illicit drug trade, and the ever-present possibility of waves of incoming refugees. Haiti's problems are our problems.

In an environment such as this, foreign assistance is not enough to create economic opportunities, promote development, and reverse these dire conditions. Economic development is the answer, bringing with it lower unemployment, increased infrastructure development, and spillover effects for the rest of Haiti's population.

This bill is not the ``silver bullet'' for Haiti, because there is no silver bullet. Rebuilding Haiti is going to require time, attention, and determination on the part of the people of Haiti, the countries in the region, and ultimately the entire international community. This bill would be a powerful indicator that Haiti has the support necessary to move forward. I encourage all of my colleagues to cosponsor this important piece of legislation.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I am introducing today the Medicare DSH payments for Puerto Rico Hospitals Fairness Act of 2004. This legislation seeks to provide fairness for Puerto Rico hospitals in their qualification for disproportionate share payments under the Medicare Program.

The primary purpose of the DSH program is to reimburse hospitals for the higher Medicare costs associated with treating low-income Medicare patients. Under current law, hospitals providing essential health care to low-income Medicare patients in Puerto Rico are effectively denied equitable reimbursement, because the law is being applied in such a way that a significant portion of the low-income population served by Puerto Rico hospitals is not allowed to count toward DSH calculations.

The legislation that I am introducing today would amend section 1886(d)(9)(D)(iii) of the Social Security Act to help ensure that Puerto Rico's low-income Medicare beneficiaries and hospitals that treat them have access to the same health care as the mainland.

I ask unanimous consent that the next of the bill be printed in the Record.

Mr. President, I am introducing today the Medicare DSH payments for Puerto Rico Hospitals Fairness Act of 2004. This legislation seeks to provide fairness for Puerto Rico hospitals in their qualification for disproportionate share payments under the Medicare Program.

The primary purpose of the DSH program is to reimburse hospitals for the higher Medicare costs associated with treating low-income Medicare patients. Under current law, hospitals providing essential health care to low-income Medicare patients in Puerto Rico are effectively denied equitable reimbursement, because the law is being applied in such a way that a significant portion of the low-income population served by Puerto Rico hospitals is not allowed to count toward DSH calculations.

The legislation that I am introducing today would amend section 1886(d)(9)(D)(iii) of the Social Security Act to help ensure that Puerto Rico's low-income Medicare beneficiaries and hospitals that treat them have access to the same health care as the mainland.

I ask unanimous consent that the next of the bill be printed in the Record.