Floor Statements

Mr. President, I ask unanimous consent that the Senate return to legislative session.

Mr. President, I ask unanimous consent to speak as in morning business for 10 or 12 minutes.

Mr. President, I have not listened to every speech on the Senate floor in the last week or so where there has been a lot of talk about secret holds and everything. But since I have been in the Senate working with Senator Wyden in a bipartisan way over the course of maybe a decade, not to do away with holds but to have a transparency of holds, and seeing those things compromised, and then particularly to see exception taken to what has happened when this side of the aisle has put on holds, and then considering when Senator Wyden and I did try to do something, that was gutted by people on the other side of the aisle. So I would appreciate it if Democratic Members of the Senate would listen while I explore some of the history so that they know this bipartisan effort, that if it had been done the way Senator Wyden and I did it before it was gutted, we would not have a lot of problems today that we have.

So I wanted to go into my remarks, but I preface it with what I just said. There has been a lot of talk recently on the Senate floor about secret holds. For a practice with so much bipartisan guilt to go around, it is interesting that the discussion has taken on a partisan tone. Republicans are being accused of being particularly egregious offenders when it comes to circumventing disclosure requirements.

Let me say that if any of my colleagues have holds on either side of the aisle, they ought to have the guts to go public and to go public the minute they put the hold on, not like the mysterious way it is done now, which amounts to nothing. It has been my policy for years to place a brief statement in the Congressional Record each time I placed a hold, with a short explanation of why I placed the hold. I did that before there was ever any Wyden-Grassley proposal. The current disclosure requirements for secret holds have been discussed quite a bit lately, as has bipartisan work with Senator Wyden to address the issue. It is important I give a little background about how we got where we are today.

After many attempts to work with various leaders over the years on policy to make all holds public, Senator Wyden and I decided the only way to settle this matter once and for all was for the full Senate to adopt a very clear policy. In the 109th Congress, Senator Wyden and I were successful in passing an amendment to the ethics reform bill by a very wide vote of 84 to 13 to require public disclosure of holds. That bill was never enacted, but the identical provision was included in the ethics bill passed by the full Senate at the very beginning of the 110th Congress. Members may recall the Democrats had just secured a majority in both houses of Congress. Then, in a process that has become all too familiar under the past two Democratic Congresses, there was no conference committee. Instead, in a twist of irony, the so-called Honest Leadership and Open Government Act was rewritten behind closed doors by the Democratic leadership. Lo and behold, the public disclosure provision Senator Wyden and I had worked so hard on, which the Senate had overwhelmingly adopted on that 84 to 13 vote, had been altered, and altered significantly. Keep in mind, under Article I, section 5 of the Constitution:

Each House may determine the Rules of its Proceedings . . .

That means that the House of Representatives has no say whatsoever about the Senate rules. When the full Senate speaks on a matter of Senate procedure, that should be the final word, particularly if it is 84 to 13. I want to be clear, the current weak disclosure requirements we now have are not the ones originally proposed by Senator Wyden and this Senator. In fact, at the time I came to the floor and criticized the specific changes, because I saw they would be ineffective. And ineffective they are.

Let me reiterate some of those criticisms I initially aired to the Senate on two occasions: August 2, 2007, and September 19, 2007. In the version the Senate originally passed, we allowed 3 days for Senators to submit a simple public disclosure form for the record, just like adding oneself as a cosponsor to a bill. This was intended simply to give time to perform administrative functions of getting the disclosure form to the Senate floor, not to legitimize secrecy for the period of 3 days. The rewritten provision gives Senators 6 session days. That might not sound so bad but wait to see how that actually works out in practice. First, it doesn't take a week to send an intern down to the Senate floor with a simple form saying one is putting a hold on a bill. The change I find most troubling is that the 6 days until the disclosure requirement is triggered begins only after a unanimous consent request is made and objected to on the Senate floor. That is too late. I will explain how that is ineffective. By that point, a hold could have existed for quite some time, perhaps without the sponsor of the bill even realizing it. In fact, most holds never get to the point where an objection is made on the floor, because the threat of a hold prevents a unanimous consent request from being made in the first place. So maybe this 6 days is never even triggered.

The original Wyden-Grassley provision required disclosure at the time the hold was placed. That is where it ought to be today. We have heard lately about how the minority party has used the weak disclosure requirements to avoid making holds public. However, this change made it far less likely that majority party holds would ever, in fact, become public. Since the majority leader controls the Senate schedule, he would hardly object to his own request to bring up a bill or nominee. He would simply not bring up a bill or nominee being held up by a member of his own party, and we might never know that there was a hold on it at all.

Why were these provisions changed? Simply, I don't know. I don't know who does know, because I can't be sure who it was who rewrote these provisions in secrecy behind closed doors. The majority party should be careful now, as they complain about Republicans exploiting loopholes in the disclosure requirements for holds. Both parties are guilty of using secret holds. But we can't blame Republicans for the fact that the current disclosure requirements are weak and ineffective. Again, there is plenty of blame to go around when it comes to using secret holds, but I am hopeful this recent attention to the problem can result in a bipartisan consensus to end secret holds once and for all. That is something we

hope, Senator Wyden and I, other people will talk to us about. We would like to move in this direction. I, for one, am happy to work with anyone on either side of the aisle to that end.

It should be stressed that this has been a bipartisan effort. Everybody in this body talks about bipartisanship. When this was watered down, it wasn't watered down in an environment that I know about where any Republicans were present.

Yes.

Mr. President, Senator Wyden is absolutely right. It is a very powerful tool.

Mr. President, Senator Wyden is correct. I would add this point, that not only is it transparency that is essential--and it happens that way--but also a lot of times holds are put on because there is something wrong. We have to know what it is somebody believes is wrong, if we are going to work out some sort of a compromise.

Mr. President, the Senator is correct. The present rules are practically not much better than what we have always operated under. So there isn't transparency, and it isn't done soon enough.

I yield the floor.

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

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

Mr. President, first, I don't know what the order is for the Senate. I was going to speak on one of the nominations that will be before the Senate shortly. I wish to do that, if that is appropriate.

Yes, it is 3 o'clock now.

Reserving the right to object.

Mr. President, I wish to make very clear that I do not oppose this nominee, and I say to Senator Dorgan that I have no problem with what he is doing. I have been asked on the part of Senator Vitter to object, so I must object.

Mr. President, I ask unanimous consent that William Storm of my Finance Committee staff be granted privileges of the floor for the duration of the 111th Congress.

Mr. President, Medicare's payment system for physicians is flawed in many ways. One of those flaws has for many years given unfairly low payments to high quality areas like my own home state of Iowa and many other rural States. The new health care reform law makes some much-needed changes in that regard.

The legislation I am introducing today makes additional improvements in addressing unfair geographic disparities in payment. It is intended to provide more equitable rural health payments and improve rural access to care for all rural states.

As many of you know, Medicare payment varies from one area to another based on the geographic adjustments known as the Geographic Practice Cost Indices or GPCIs. These geographic adjustments are intended to equalize physician payment by reflecting differences in physician's practice costs.

But they do not accurately represent those costs in Iowa or other rural states. They have been a dismal failure in fact. They discourage physicians from practicing in rural areas like New Mexico, Arkansas, Missouri, and Iowa because they create such unfairly low Medicare rates.

I introduced legislation in the last Congress, and again last year, to correct these unwarranted payment disparities. Last fall, I offered an amendment in the Senate Finance Committee mark up of health reform legislation to reform the inequitable formula that has caused these unduly low payments.

My amendment provided more equity and accuracy in calculating this adjustment, and it provided a national solution to the problem. It was accepted unanimously by the Senate Finance Committee, and it was included in the Senate health reform bill, the Patient Protection and Affordable Care Act, that was signed into law.

But, unfortunately, the rural equity that would be achieved by that amendment has been endangered by another sweetheart deal that was added to the Senate health care reform bill that is now the law.

This special deal was added behind closed doors, that is, the closed doors of the majority leader. This special deal addresses geographic disparities but it helps just five states at the expense of the other 45 states.

It was included in the Senate health reform bill for two Democratic Senators from so-called ``frontier states.'' It's what I call the ``Frontier Freeloader.''

The Frontier Freeloader provision improves Medicare reimbursement in so-called frontier states by establishing floors for the hospital wage index and the physician practice expense GPCI.

A frontier state is defined as one with 50 percent or more frontier counties, defined as counties with a population per square mile of less than six.

The Frontier Freeloader deal ensures that higher payments go to just five states--North Dakota, South Dakota, Montana, Wyoming and Utah--at the expense of every other state.

It is another example of how the deals made behind closed doors to garner votes led to bad policies, like the Cornhusker Kickback, the Louisiana Purchase, and the Florida Gator-aid.

Now we have the Frontier Freeloader deal that became law when the President signed the health care reform bill.

Iowa provides some of the highest quality care in the country but it does not meet the definition of a frontier state. Certainly Iowa should have been helped since Medicare reimbursement for hospitals and physicians is lower in Iowa than in most of these so-called ``frontier'' states.

Medicare also pays much lower rates in other rural states, like Arkansas and New Mexico, but they don't benefit from the Frontier Freeloader because they don't meet the definition of a frontier state.

The Frontier Freeloader is even more egregious because Iowa--and other States like Arkansas and New Mexico that don't benefit--are paying for it! So, taxpayers in your state and mine--all the other 45 states--will kick in to pay the bill for these five states. And that's just the cost for the next few years.

This sweetheart deal is not time-limited. The Frontier Freeloader that benefits these five states continues forever while taxpayers in your State and mine--the other 45--continue to pay the bills.

The bill I am introducing today would repeal the Frontier Freeloader sweetheart deal.

We should improve physician payments for all rural states, not just a select few. It is unfair to improve hospital payments for just a few states. This bill would eliminate those special payment deals for just 5 States.

It would also improve physician payments for all rural states during the transition to more accurate data.

The new health care reform law requires the Secretary of Health and Human Services to limit the impact of the current unfair adjustments to \1/2\ of the current adjustment in 2010 and 2011. This bill would use some of the funds saved by repealing the frontier states deal to increase physician payments more in rural states next year.

That would mean higher payments for all rural States, not higher payments for just a few States.

Finally, the bill makes it clear that a side agreement reportedly made between House members and the Secretary of Health and Human Services for an Institute of Medicine study cannot interfere with the legislative changes to the geographic adjustment for physician practice expense that are now law.

My amendment in the Senate bill that became law improves the data that the government uses to calculate geographic physician practice costs.

The House health care reform bill called for a study by the Institute of Medicine to make recommendations on geographic disparities.

It is unclear what agreement was made between Secretary Sebelius and the House, since it was another backroom deal. It is also unclear what advantage it holds for rural health care equity for beneficiaries and physicians.

My amendment that is now the law requires Medicare officials to use accurate data.

The legislation that I am introducing today would ensure that the agreement

House members made with Secretary Sebelius--that somehow accompanies the House health-care reconciliation bill--cannot undo the actual legislative fix in the Senate health care bill that is now law.

If the Institute of Medicine comes up with different data or makes recommendations that are not consistent with the requirements for the geographic adjustments that are now law, we could be back where we started, or even worse off. So this legislation would ensure that HHS follows the legislative improvements just enacted to require more accurate data for calculating these geographic adjustments.

To summarize, the bill does three main things:

First, it eliminates the unfair $2 billion Frontier Freeloader carve- out for 5 States that ends up harming all the other rural States. As I said earlier, that extra spending would continue forever if the Frontier Freeloader is allowed to take effect.

Second, the bill helps provide greater rural health care access and payment equity in a way that is fair to all taxpayers and states.

It would provide additional payments for physicians in all rural States during the transition.

Finally, the bill would ensure that Medicare officials use accurate data to calculate geographic adjustments as now required by the new health care reform law.

This legislation helps ensure that seniors in all of rural America continue to have access to needed health care.

It ensures rural health care equity nationwide.

Mr. President, Medicare's payment system for physicians is flawed in many ways. One of those flaws has for many years given unfairly low payments to high quality areas like my own home state of Iowa and many other rural States. The new health care reform law makes some much-needed changes in that regard.

The legislation I am introducing today makes additional improvements in addressing unfair geographic disparities in payment. It is intended to provide more equitable rural health payments and improve rural access to care for all rural states.

As many of you know, Medicare payment varies from one area to another based on the geographic adjustments known as the Geographic Practice Cost Indices or GPCIs. These geographic adjustments are intended to equalize physician payment by reflecting differences in physician's practice costs.

But they do not accurately represent those costs in Iowa or other rural states. They have been a dismal failure in fact. They discourage physicians from practicing in rural areas like New Mexico, Arkansas, Missouri, and Iowa because they create such unfairly low Medicare rates.

I introduced legislation in the last Congress, and again last year, to correct these unwarranted payment disparities. Last fall, I offered an amendment in the Senate Finance Committee mark up of health reform legislation to reform the inequitable formula that has caused these unduly low payments.

My amendment provided more equity and accuracy in calculating this adjustment, and it provided a national solution to the problem. It was accepted unanimously by the Senate Finance Committee, and it was included in the Senate health reform bill, the Patient Protection and Affordable Care Act, that was signed into law.

But, unfortunately, the rural equity that would be achieved by that amendment has been endangered by another sweetheart deal that was added to the Senate health care reform bill that is now the law.

This special deal was added behind closed doors, that is, the closed doors of the majority leader. This special deal addresses geographic disparities but it helps just five states at the expense of the other 45 states.

It was included in the Senate health reform bill for two Democratic Senators from so-called ``frontier states.'' It's what I call the ``Frontier Freeloader.''

The Frontier Freeloader provision improves Medicare reimbursement in so-called frontier states by establishing floors for the hospital wage index and the physician practice expense GPCI.

A frontier state is defined as one with 50 percent or more frontier counties, defined as counties with a population per square mile of less than six.

The Frontier Freeloader deal ensures that higher payments go to just five states--North Dakota, South Dakota, Montana, Wyoming and Utah--at the expense of every other state.

It is another example of how the deals made behind closed doors to garner votes led to bad policies, like the Cornhusker Kickback, the Louisiana Purchase, and the Florida Gator-aid.

Now we have the Frontier Freeloader deal that became law when the President signed the health care reform bill.

Iowa provides some of the highest quality care in the country but it does not meet the definition of a frontier state. Certainly Iowa should have been helped since Medicare reimbursement for hospitals and physicians is lower in Iowa than in most of these so-called ``frontier'' states.

Medicare also pays much lower rates in other rural states, like Arkansas and New Mexico, but they don't benefit from the Frontier Freeloader because they don't meet the definition of a frontier state.

The Frontier Freeloader is even more egregious because Iowa--and other States like Arkansas and New Mexico that don't benefit--are paying for it! So, taxpayers in your state and mine--all the other 45 states--will kick in to pay the bill for these five states. And that's just the cost for the next few years.

This sweetheart deal is not time-limited. The Frontier Freeloader that benefits these five states continues forever while taxpayers in your State and mine--the other 45--continue to pay the bills.

The bill I am introducing today would repeal the Frontier Freeloader sweetheart deal.

We should improve physician payments for all rural states, not just a select few. It is unfair to improve hospital payments for just a few states. This bill would eliminate those special payment deals for just 5 States.

It would also improve physician payments for all rural states during the transition to more accurate data.

The new health care reform law requires the Secretary of Health and Human Services to limit the impact of the current unfair adjustments to \1/2\ of the current adjustment in 2010 and 2011. This bill would use some of the funds saved by repealing the frontier states deal to increase physician payments more in rural states next year.

That would mean higher payments for all rural States, not higher payments for just a few States.

Finally, the bill makes it clear that a side agreement reportedly made between House members and the Secretary of Health and Human Services for an Institute of Medicine study cannot interfere with the legislative changes to the geographic adjustment for physician practice expense that are now law.

My amendment in the Senate bill that became law improves the data that the government uses to calculate geographic physician practice costs.

The House health care reform bill called for a study by the Institute of Medicine to make recommendations on geographic disparities.

It is unclear what agreement was made between Secretary Sebelius and the House, since it was another backroom deal. It is also unclear what advantage it holds for rural health care equity for beneficiaries and physicians.

My amendment that is now the law requires Medicare officials to use accurate data.

The legislation that I am introducing today would ensure that the agreement

House members made with Secretary Sebelius--that somehow accompanies the House health-care reconciliation bill--cannot undo the actual legislative fix in the Senate health care bill that is now law.

If the Institute of Medicine comes up with different data or makes recommendations that are not consistent with the requirements for the geographic adjustments that are now law, we could be back where we started, or even worse off. So this legislation would ensure that HHS follows the legislative improvements just enacted to require more accurate data for calculating these geographic adjustments.

To summarize, the bill does three main things:

First, it eliminates the unfair $2 billion Frontier Freeloader carve- out for 5 States that ends up harming all the other rural States. As I said earlier, that extra spending would continue forever if the Frontier Freeloader is allowed to take effect.

Second, the bill helps provide greater rural health care access and payment equity in a way that is fair to all taxpayers and states.

It would provide additional payments for physicians in all rural States during the transition.

Finally, the bill would ensure that Medicare officials use accurate data to calculate geographic adjustments as now required by the new health care reform law.

This legislation helps ensure that seniors in all of rural America continue to have access to needed health care.

It ensures rural health care equity nationwide.

Mr. President, I call up amendment No. 3569.

Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. President, this is about geographical equity for all States. The Senate health reform bill just signed into law includes a frontier sweetheart deal that improves Medicare payments for five rural States at the expense of the other 45. The special deal is for North Dakota, South Dakota, Montana, Utah, and Wyoming. The Washington Post calls these deals the ``Candy Land'' of the health care bill. Repealing this provision will not kill the bill because it has to go back to the House anyway.

My amendment also ensures that Health and Human Services cannot undo the formula fix that my amendment established in the Senate health care bill that is now law.

Mr. President, parliamentary inquiry.

Mr. President, I have submitted a list of provisions for review by the Chair. It is my understanding that these provisions of the bill have been reviewed and further, if points of order were raised against these provisions, the Chair would have ruled that the various points of order would not have been taken. Is this the opinion of the Chair?

I thank the Chair. I ask unanimous consent to have printed in the Record the list of provisions just referred to.

I wish to speak in support of Senator Inhofe's amendment No. 3588, which would be to exclude medical devices for children and persons with disabilities from a medical device tax.

I know that when you talk about a medical device tax and if it is on the manufacturers, you are going to say: Well, what should I be concerned about that for because some manufacturer is going to pay it. Well, don't fool yourself. You know, corporations do not pay taxes, only people pay taxes, and there are three categories of people who pay taxes: stockholders or employees or consumers. And I will bet in most cases consumers end up paying for that.

So this provision in this bill is much broader than the Inhofe amendment would apply to, but I think Senator Inhofe has picked out a very important aspect of adding taxes, the extent to which surely the vulnerable people whom you call children and persons with disabilities are consumers who shouldn't be paying for a tax to pay for a bill that 59 percent of the people in this country say they are against. But because the majority party and the President want to make history, just make history, don't worry about the people at the grassroots of America, what they think.

So there are all these taxes and all of these fees in here, and I compliment Senator Inhofe for his leadership in at least trying to reduce this burden on people who are very vulnerable, people with disabilities.

Of the many taxes in this bill, I am especially worried about the tax on medical devices. What will happen when the Democrats impose a new tax hike on $20 billion of these innovative medical devices? During the markup of the Finance Committee bill, I asked the question to the nonpartisan Congressional Budget Office and the nonpartisan Joint Committee on Taxation.

For people who might not understand the emphasis of ``nonpartisan'' about the Congressional Budget Office and the Joint Committee on Taxation, I would like to say it is very important that you understand that because everybody thinks everything connected with Congress is totally political. Well, these are professionals who are around here a lot longer than a lot of Senators and Representatives, and then their job is, in a professional way, to look at what things cost and how much money certain taxes will raise. So they are kind of like God around here. They are believed. If you want to overrule them, you know, it takes 60 votes. That is a lot of power when you have to have 60 votes to overrule something on a point of order.

So explaining what nonpartisanship is with the Congressional Budget Office and our constituents understanding that so they understand we are not quoting a Republican or a Democrat, we are quoting professionals, I think is very basic to understanding the points we individually make so that they are accepted as intellectually honest.

In this particular case where these two offices--both of them said these excise taxes will be passed on to consumers in the form of higher prices and higher insurance premiums. When I began my remarks, I said that is what is going to happen. Well, Chuck Grassley said that, but I want you to know that is what these professionals in the Joint Committee on Taxation and the Congressional Budget Office backed me up in saying.

Who are the consumers of these devices? I have the exact language here of how these things are going to be passed on to consumers so that you know, you see the document right here.

Who are these consumers of these devices who will bear the burden of the new medical device excise tax? I would like to tell the story of the Tillman family, a family who would bear the burden of this new medical device tax.

At only 5 months old, Tiana Tillman had her life saved by a medical device.

This story has received a lot of attention because Tiana's father is a professional football player for the Chicago Bears. However, lifesaving stories like this happen all across the country.

When Charles Tillman reported to training camp in 2008, it was not long before his coach told him his 5-month-old daughter Tiana had been rushed to the hospital. When Charles got to the hospital, Tiana's heart rate was over 200 beats per minute. The doctor told Charles and his wife Jackie that Tiana may not make it through the night.

Tiana survived the night, and after a series of tests, she was diagnosed with cardiomyopathy, that is, an enlarged heart that is unable to function properly. Her condition was critical, and without a heart transplant, she would not survive. But finding pediatric donors is very difficult, and many children do not survive that long wait time.

Tiana was immediately put on ECMO, a device that would help the functions of the heart while Tiana waited for a transplant. However, ECMO is an old device that has many shortcomings.

The Tillmans waited for one of two outcomes: either Tiana would receive the transplant or she would die waiting on ECMO.

If you want to know, ECMO is E-C-M-O, an acronym.

But then doctors told them about the new pediatric medical device called the Berlin Heart--the Berlin Heart is an external device that performs the function of the heart and lungs--the Tillmans decided to move forward with the Berlin Heart. After 13 days of being on ECMO without any movement, Tiana underwent surgery to connect the Berlin Heart. After the operation, you can see Tiana in that photo. It pumped her blood through her body--a job her heart could not perform on its own. Doctors said the Berlin Heart helped Tiana regain her strength because she was off the paralytic medication and finally moving.

Not long after Tiana connected to the Berlin Heart, a donor was found and Tiana underwent an 8-hour transplant surgery. The risky surgery was a success, thank God. Usually it takes some time for a new heart to start working, but doctors said that due to Tiana's strength, her new heart started working immediately.

So you see here Tiana today. She probably loves that football just like her dad loved the football. She is a happy and healthy 2-year-old girl. She enjoys playing on her swing and watching her dad play football.

Without the Berlin Heart to keep her alive and help her to gain strength, she might not, in fact, be alive. Democrats would increase costs for families such as the Tillmans with this tax, particularly. But it will be relieved somewhat if we adopt the Inhofe amendment. In fact, the Democratic bill would tax most pediatric medical devices. I wish to make clear that any vote against the Inhofe amendment is an endorsement of the tax on devices such as the Berlin Heart and many others children across this country rely upon. Not only that, it would also probably have a great impact upon research that brings about some of these miracle medical devices that make a difference. Taking money away from research at businesses is going to delay the miracle things that come along, whether they are pharmaceuticals or medical devices.

We should not be discouraging that. In the rest of the world, there has not been as much research done in the rest of the world as is done in the United States. Maybe go back 50 years ago and you had Germany and other European countries very much involved. But their government taking over everything and their high rates of taxation are drying up resources used for research. So the United States has been the beneficiary of that. Our pharmaceutical industry and medical device

industry have taken advantage of it. So much new development around the world in the enhancement of these devices as well as pharmaceuticals have come because of the research we do. This tremendous tax burden that the American consumer is going to feel from the massive money coming in to fund this bill, which isn't going to drive down health care costs, is going to stymie a lot of innovation we should not want to stymie.

May I ask the Chair how many minutes my side has remaining?

I will take that 3\1/2\ minutes to comment on another aspect of the bill. This is not on the Inhofe amendment, at this point. It is something unrelated to health care, but in a sense it is related to health care. This is the nationalization of the student loan program. For a long time, colleges on behalf of their students have had the benefit of going with a direct student loan from the government or getting it through the banks. They have voted by their feet, by the overwhelming amount of them going to the banks to get their student loans. Now this reconciliation is going to nationalize student loans, have just direct loans. There are about 31,000 people around the country who have something to do with student loans. Those people are going to be out of work at a time when we are all talking about jobs. We need to do something for jobs. So we're going to nationalize education loans and have that unemployment and then take four call centers around the country to take its place. Do you think college students are going to get the service they get when they have to deal with the Federal bureaucracy redtape? I don't believe so. But there's supposedly a certain amount of savings in this. I don't know whether it is real savings, but the CBO, which I say is God around here, scored it as a certain amount of savings, even considering the fact that the government is going to have to borrow $\1/2\ trillion to get this program underway. They are going to use those supposed savings from the student loan program to fund this bill, the health care bill.

We are in a situation that is just something that common sense Americans in the Midwest are not going to understand. But it is something, I suppose, you would expect to happen in Washington, DC, which is an island surrounded by reality, that you are going to have college students who are going to pay 6.75 percent interest on their loans to the Federal Government that the government only pays 2.75 percent to borrow, that you are going to be taxing college students to pay for health care. It doesn't add up, at the very same time that too many of us in this body are complaining about the increased cost of education.

I hope the college students will speak up in this particular instance about what is being done, that college students should not be taxed to provide health insurance. But this whole health care bill taxes everything. It just seems like everything.

How many minutes are remaining?

I agree with the chairman.

Mr. President, my amendment would require the President, the Vice President, Cabinet members, and White House staff to use exchanges created in this bill. It would also fix a loophole so that the committee and leadership staff are also required to obtain coverage in these exchanges.

Today, after seeing my amendment, the White House announced that President Obama will voluntarily participate in the health insurance exchange that starts in 2014.

This is a little presumptuous since he has another election before 2014, but it is still effectively an endorsement of my amendment to make sure that political leaders live under the laws they pass for everyone else. But the principle should not be voluntary for political leaders. Congress and President Clinton confirmed that in 1995 by enacting the Congressional Accountability Act that Senator Lieberman and I sponsored. It is a matter of not having a double standard.

I urge my colleagues to support my amendment and make sure we are living under the same laws.

Mr. President, pursuant to section 904(c) of the Congressional Budget Act of 1974, I move to waive section 313 of the Budget Act for the consideration of the pending amendment.

I send an amendment to the desk and ask for its consideration.

I ask unanimous consent that reading of the amendment be dispensed with.

This amendment is based largely on the extenders package that passed the House last week. It includes a 30-day extension for unemployment insurance, COBRA coverage, and the SGR Medicare physicians payment fix. It includes provisions on Federal poverty guidelines, national flood insurance, satellite television and compensation for highway programs.

There is one very important difference between my amendment and the House bill. My amendment is fully offset. We can do this without adding to the deficit. I urge its passage and reserve the remainder of my time.

Do I have time left?

Yes? Mr. President, let's wake up. This has to be passed. It has to be passed before the end. One of the problems we always have is that it is not offset. It was included in the Baucus- Grassley bill way back in February. The leader had the chutzpah to dump his own chairman aside and go ahead with a partisan bill. Then the other side complained about the Bunning filibuster, and we have an opportunity now to avoid all that. We ought to avoid it and move on.

Mr. President, pursuant to section 904 of the Congressional Budget Act of 1974 and section 4(G)(3) of the statutory pay-as-you-go act of 2010, I move to waive all applicable provisions of those acts and applicable budget resolutions for purposes of my amendment and ask for the yeas and nays.

Mr. President, I ask unanimous consent that Brittney Balduf of my staff be granted floor privileges for the duration of the debate.

Madam President, I ask unanimous consent to speak as in morning business for 20 minutes.

Madam President, there is finally some sunshine on the Capitol dome today, and it is a welcome change from all the snow we have had this winter, so it is appropriate that this is Sunshine Week. But that is not a reference to the weather. Sunshine Week is a nonpartisan, open-government initiative led by the American Society of News Editors.

It is a good time, then, to talk about congressional oversight and the need for Congress to keep a watchful eye on the executive branch. That is what oversight is all about--checks and balances in government.

I would like to refer to the President's inaugural address and use it as a benchmark for measuring sunshine in government. President Obama promised in the inaugural address to bring more sunshine to the Federal Government, and I want to quote him.

Those of us who manage the public's dollar will be held to

account, to spend wisely, reform bad habits, and do our

business in the light of day, because only then can we

restore the vital trust between a people and their

government.

So let's just see how what has taken place in the last 15 months measures against this very good standard the President set in the inaugural address. I couldn't agree more with the President on what he said. The government should do its business in the light of day. Unfortunately, in my work, I have noticed no improvement in the openness of the Federal Government.

One vital step the President could have taken to ensure greater transparency would have been to order agencies to be more forthcoming in responding to requests from Congress--not just from this Senator but from any Senator. He could have instructed them to review and revise some of the secretive policies that have developed over the years. These policies are not required by law and simply serve to frustrate the ability of Congress to gather information we need in order to act as a check on the power and responsibilities of the executive branch. However, the President has apparently not taken that step because the agencies have been as aggressive as ever in withholding information from Congress.

Throughout my career here in the Senate, I have actively conducted oversight of the executive branch, regardless of who controls Congress or the White House. So that means, for me, as a Republican, I feel I have been just as aggressive, or more so, with a Republican President as with a Democratic President because it is our constitutional duty as legislators to do this.

These issues are typically about basic good government and accountability. They are not about party politics, and they surely aren't about ideology. The resistance is often fierce--resistance from the bureaucracy, that is--protecting itself in what the bureaucracy does best. It loves to protect itself from scrutiny, and it works overtime to keep embarrassing facts from Congress and, in turn, from public scrutiny.

When the agencies I am reviewing get defensive and refuse to respond to my requests, you know what. It makes me simply wonder what they are trying to hide. They act as if documents in government files belong to them. These unelected officials seem to think they alone have the right to decide who gets access to that information--collected, by the way, at taxpayers' expense. Well, I have news for them. These documents in the government files belong to the people, and the elected representatives of the people have a right to see them. That right is essential to carry out our oversight functions under the Constitution.

I had hoped President Obama's commitment to a more open government would mean major changes that would enable more effective congressional oversight. As he said in his inaugural address, those who manage public dollars ought to be held to account and do business in the light of day. But actions always speak louder than words. Given my experience in trying to pry information out of the executive branch, I am disappointed to report that the principles the President articulated so well are not being put into practice.

The administration seems to act as if government officials ought to be held

to account and do business in the light of the day except when they do not want to. There are too many exceptions to count, and I am just going to list a few. Let's contrast the President's words with the agencies' actions. The President's words say that government should do business in the light of day. The agencies' actions say except when it comes to improper payment of Medicare.

As a part of my oversight function of Medicare, Congress reviews annual reports that the administration is required to produce. One of these reports is on improper Medicare payments. That was due last November. Congress is still waiting to see the numbers for improper payments made to specific types of health care providers and for specific services. Improper payment rates vary widely among different types of providers and, of course, services. So this information would help us to determine where to focus our efforts. We have not received such breakdowns of improper payments since the year 2007. We need these numbers to evaluate how the Federal Government is addressing fraud, waste, and abuse and to inform our discussions on legislation about health care financing.

Let's go to another example because I want to repeat the President's words: Government should do business in the light of day. Their actions say: Except when it comes to potential Medicaid fraud. Overutilization of health services and health care fraud play a significant role in the rising cost of our health care system.

I wrote to the Department of Health and Human Services and the Centers for Medicare and Medicaid Services 3 months ago about what they are doing about overutilization of health care services. I specifically asked about a Medicaid prescriber in south Florida who--now hear this-- who wrote over 96,000 prescriptions for mental health drugs, nearly twice the number written by the second highest prescriber. It was just a simple question about one Medicare prescriber, and I am still waiting for a response.

On another example--his words would say government should do business in the light of day. The actions of the administration say except when it comes to protecting the privacy of an al-Qaida terrorist.

Listen to this. In preparation for a hearing on Christmas Day bombing attempts, my Republican colleagues and I on the Judiciary Committee requested a copy of something very simple, a copy of the bomber's visa application. We wanted to learn more about why he was given permission to enter the United States in the first place, and why his visa wasn't revoked after his father warned the U.S. officials that he might be planning something.

The State Department first tried to withhold the document on grounds that it might be evidence in a criminal proceeding. But after the Justice Department said that was not an issue, you know what. The State Department comes along and tries to not cooperate. The State Department changed its position and claimed that a provision in the immigration law required them to protect the al-Qaida terrorist's privacy by withholding documents about how he was given permission to enter the country.

After going through all that, all I can say is--transparency, on a little simple visa application, and it cannot be given to us?

On another example, the President says: Government should do business in the light of day. Their actions say: Except when it comes to information about how Treasury officials allowed AIG executives to make off with millions of taxpayer dollars. Since last December, I have exchanged a series of letters with Treasury Secretary Geithner and his staff. I have some detailed questions about exactly which executives received which kind of payments under which contracts, and then why the Treasury Department did not do more to stop those payments. I even addressed the issue directly with Secretary Geithner at a Finance Committee hearing. He promised that I would get the information I was seeking. Yet Treasury Department lawyers are still withholding the documents on the grounds that they have to protect the privacy of AIG executives.

Is government doing its business in the light of day? No. They are still refusing to answer questions about why Treasury regulators allowed AIG to make large severance payments, even though the statute provided the authority to stop those payments.

On another example, and to repeat the President's words: Government should do business in the light of day. What do the actions show? Except when it comes to allegations of misconduct in the Department of Justice.

When Attorney General Eric Holder and I met during his confirmation process, I provided him with a binder that thick full of unanswered letters that I had written regarding the FBI and Justice Department oversight issues in the Bush administration. I was trying to give the Attorney General an opportunity to clear the deck so somehow it was not mixed up with the new administration. I had promises of renewed efforts to accommodate my information requests. The Department has not altered its policies of withholding documents relating to personnel matters and any other matter that might be the subject of internal reviews in the Justice Department.

For years I have been seeking internal Justice Department e-mails related to the FBI's use of so-called exigent letters, together with telephone records of Americans, without a subpoena, and even when there is no legitimate emergency. At first the excuse was that the Congress had to wait for the inspector general to finish a review, but that review is complete at long last. Yet the documents that were supposed to be provided are still being withheld.

Congress is not the only one from whom the executive branch is withholding information. I asked the Government Accountability Office in September about its difficulties in obtaining access to records and other information from the Federal agencies over the last year. As an investigative arm of Congress, the Government Accountability Office investigates how the Federal Government spends taxpayers' dollars, and in order to do that work the GAO requires access to agency documents.

So what has been the record of the Government Accountability Office? They have told me that it generally receives good cooperation, but it has and continues to have access issues at certain agencies such as the Department of Homeland Security. According to the Government Accountability Office, Homeland Security has ``posed continual access challenges for GAO since the department began operations in 2003.''

The Government Accountability Office also indicated that access to information at the Justice Department and the FBI is also particularly problematic. Despite a bipartisan request--get this--a bipartisan request from both the House and Senate Judiciary Committees to audit the FBI's human capital management of its counterterrorism division, the Government Accountability Office has been stonewalled by the Justice Department with new and unprecedented claims that the FBI's intelligence-related functions are off-limits for GAO review.

Understand this: This is the top Republican, top Democrat on the House Judiciary Committee and counterparts on the Senate Judiciary Committee. So it is bipartisan and it is bicameral. Even the Government Accountability Office has trouble getting the information.

The public has also been stonewalled when making requests for records under the Freedom of Information Act. When he first took office, the President back-issued a memo on the Freedom of Information Act to the heads of executive agencies. Listen as I quote. Who is not going to agree with this? The President is doing what a President who campaigned on openness and transparency in government and accountability should be doing. He is doing what he said he was going to do in the campaign. But having it come out the other end of the pipeline, it doesn't seem to work that way.

The Government should not keep information confidential

merely because public officials might be embarrassed by

disclosure, because of errors and failures that might be

revealed, or because of speculative or abstract fears.

Then he goes on to instruct the executive agencies to:

. . . adopt a presumption in favor of disclosure, in order

to renew their commitment to the principles embodied in the

Freedom of

Information Act, and to usher in a new era of open

government.

I compliment the President of the United States. Such a good statement, and just what government ought to be standing for because the public's business ought to be public.

The President may have issued a pledge of openness and transparent government, but this week we had the National Security Archive release findings of its Freedom of Information Act audit and found that the administration ``has not conquered the challenge of communicating and enforcing that message throughout the Executive Branch.''

Particularly, the organization found that requests as old as 18 years still exist in the freedom of information system. Somebody made a request 18 years ago, and it has not been granted? Probably the guy who asked for it, or whoever asked for it, is dead and buried now. Why can't something like that be done? It does not meet the commonsense test that we are interested in bringing to Washington--Washington, an island surrounded by reality. And only in the unreal world could there be a freedom of information request 18 years old that has not yet been granted.

This organization also found that five agencies appear to be releasing less and withholding more information, even since this President's Executive order has been in place. How can people thumb their noses at the President of the United States if they are working under his direction? The White House has said it is committed to more open and transparent government. In his memo to the heads of the executive agencies, the President said ``openness will strengthen our democracy and promote efficiency and effectiveness in government,'' and that ``transparency promotes accountability.''

Again--extreme compliment to the President of the United States for setting a standard. That is absolutely in the spirit of representative government. But somehow the message has clearly not gotten through.

It comes back to us and our constitutional responsibilities of checks and balances. It is our job in Congress to ensure that agencies are more transparent and responsive to the people we represent. Congress is not doing its job if we do not hold agencies accountable and ensure that executive policies reflect the interests of our constituents. In other words, the public's business ought to be public.

I will continue doing what I can to hold feet to the fire. It would be helpful if the President would use his authority to require agencies to change their actions to be consistent with his words.

I do not get a chance to compliment this President very much, but he surely has set the standard here that we ought to have in our Government. It just proves, if he really wants it to happen, even if you are President of the United States, it is difficult to get people down in the bowels of the bureaucracy to carry out what you want.

You wonder why people in this country are cynical. That is one reason. But the President can do it. He ought to call all these birds in that are frustrating his principles and look them in the eye and tell them: Either do what I want or get out of government.

I yield the floor.

Mr. President, one of the provisions the Democratic leadership decided to put in this HIRE bill is the expansion of Build America Bonds. Build America Bonds is a very rich spending program; however, it is

disguised as a tax cut. One Democratic Senator was asked why the Build America Bonds program is viewed differently than appropriations, and she replied: It has a good name.

Ironically, the Finance Committee is returning to its roots of doing appropriations bills. When our committee was established in 1816, the Finance Committee handled the major appropriations bills that came before Congress.

Mr. President, I ask unanimous consent that a portion of the document outlining the history of the Finance Committee be printed in the Record.

Bloomberg News reported that large Wall Street investment banks were charging 37 percent higher underwriting fees on Build America Bond deals than on other tax-exempt bond deals. Therefore, American taxpayers appear to be funding huge underwriting fees for large Wall Street investment banks as part of the Build America Bonds.

The Wall Street Journal article, dated March 10, 2010, stated, Wall Street investment banks have made over $1 billion in underwriting fees on Build America Bonds in less than 1 year.

The Wall Street Journal article, based on data from Thomson Reuters, stated underwriting fees on Build America Bond deals are higher than those for tax-exempt bond deals. That sounds like a great deal for the high rollers on Wall Street. But how about the taxpayers back on Main Street America who have to pick up this tab?

The Democratic leadership has said the Build America Bonds program is about creating jobs. But I wish to know whether it is about lining the pockets of Wall Street executives.

Recently, I asked the CEO of a large Wall Street investment bank a number of questions about these larger underwriting fees that are subsidized by the American taxpayers. He confirmed that the underwriting fees for Build America Bond deals are larger than those of tax-exempt bond deals.

The Senate and House have recently passed different versions of the bill we are currently debating which includes a provision that expands the Build America Bonds program created in the stimulus bill. One would assume it was just a temporary provision and extend that to four types of tax credit bonds. I will give those four types. Before I do, I remind my colleagues that this is another example that the word ``temporary'' does not apply to very many things in Washington, DC, because it does not take long for a temporary program to become a permanent program.

I talked about four types of tax credit bonds. They are the qualified school construction bonds, qualified zone academy bonds, clean renewable energy bonds, and qualified energy conservation bonds.

The Build America Bonds program contains an option for the issuer of bonds which is a nontaxpaying entity to receive a check from the Treasury Department based on a percentage of the interest cost incurred by the issuer. Some refer to this option as the direct pay option.

The percentage of the interest costs on the four tax credit bonds subsidized by the American taxpayers under the direct pay option in the Senate bill is a whopping 45 percent and is increased to 65 percent for small issuers. ``Small issuers'' are defined as those issuing less than $30 million in bonds per year.

The House version increased the direct payment subsidy to 100 percent for qualified school construction bonds and qualified zone academy bonds, and increased the subsidy to 70 percent for clean renewable energy bonds and the qualified energy conservation bonds.

Let me put this in context.

The Build America Bonds program created in the stimulus bill contains a 35-percent direct pay subsidy, and the President has proposed in his fiscal year 2011 budget that it be lowered to 28 percent.

It was reported in the March 11, 2010, Bond Buyer article that a senior House staffer asserted that no issuers would opt to issue direct pay bonds under the lower Senate rates of 45 and 65 percent.

When I read that assertion, I asked the Finance Committee Republican staff to reconcile that assertion with the scoring of the Build America Bonds proposal in the Senate-passed bill.

The Republican staff of the Finance Committee reviewed the Joint Committee on Taxation's final estimate of the Senate-passed bill and found that the senior House staffer's assertion was directly contradicted by the estimate provided by the Joint Committee on Taxation, which everybody knows is the nonpartisan official scorekeeper for Congress on any tax matters. In fact, footnote 2 of the estimate of the Senate Build America Bonds provision states that the Joint Tax Committee's estimate of the Senate direct pay bonds option includes an increase in outlays of--let's say $8 billion. This means the Joint Committee on Taxation estimates assumed that a large number of issuers would elect to use

the direct pay option, contrary to that House staffer's assertion.

The Bond Buyer--that is a publication--the Bond Buyer also reported that the senior House staffer stated:

There is nobody that I know who does not view the Build

America Bonds program as an enormous success, with the

possible exception of one person.

I assume that staffer was referring to me. There are many Federal taxpayers who do not view the Build America Bonds program as an enormous success. To understand why, let's see which States benefit the most from the Build America Bonds.

In looking at data from Thomson Reuters on the 10 largest Build America Bonds deals, California alone issues 73 percent of those bonds. Between California and New York, those two States alone issue 92 percent of the bonds from the 10 largest Build America Bonds deals. California and New York are the biggest winners under the Build America Bonds, while American taxpayers from the remaining 48 States subsidize these States.

As Senator Kyl pointed out in his ``Dear Colleague'' letter on Build America Bonds circulated on March 15, the Build America Bonds program actually rewards States for having a riskier credit rating by giving them more money. Build America Bonds creates a perverse incentive that causes State and local governments to borrow more than they otherwise would borrow. This is especially true regarding the school tax credit bonds.

This bill creates incentives where States and local governments should not even care what the interest rate is. The American taxpayers are picking up 100 percent of the interest cost. Actually, the cost borne by the American taxpayers is, in fact, more than 100 percent. At least with tax credit bonds, the taxpayers include the amount of the tax credit in income and the Federal Government collects taxes on that income. The only purchasers of tax credit bonds are those who have tax liabilities; otherwise, it makes no sense to buy tax credit bonds. However, Build America bonds are technically taxable bonds. But most of the investors do not pay tax on these bonds.

For example, under our tax rules, if a foreign person or a pension fund or a tax-exempt entity buys a Build America Bond, they do not pay tax on the interest they receive. Thus, the Federal Government not only cuts a check for 100 percent of the bond's interest cost, but it also loses most of the revenue it would have collected from the tax credit bonds.

State and local governments can view this Federal money as what it really is--free money--because they do not have to collect it from their residents. Therefore, of course, State and local governments turn out to be very big fans of the Build America Bonds program. They get Federal money that they do not have to pay back. The large Wall Street investment banks love Build America Bonds. Why? Because they are getting richer off those bonds.

However, we all know there is no such thing as a free lunch. Washington is an island surrounded by reality. Consequently, everybody in this town thinks there are free lunches, and the common sense of the rest of the country has difficulty getting inside this island. It is our responsibility to point out that in this city, this District--the only real industry is government--you cannot have everybody in the wagon. In this town, everybody is in the wagon. Everybody outside the District is pulling the wagon. That cannot go on very long.

There is no such thing as a free lunch. Federal taxpayers are footing the bill for this big spending program, which only gets bigger every time Congress touches it. This legislation before us is just an example. As this program that started out as a little program in the stimulus bill--and presumably the word ``stimulus'' means temporary, doesn't it? But this is not turning out to be temporary and it is not turning out to be small because it has just been enhanced greatly in the other body. The American taxpayers are the ones we ought to be looking out for, and a temporary program ought to be temporary and a stimulus program ought to be stimulus and nothing else. And here we are expanding it.

The American taxpayers are the ones who, in the words of the senior House staffer, do ``not view the Build America Bonds program as an enormous success.''

I urge my colleagues to look beyond the fancy, well-funded lobbying campaign for this rich subsidy. Take a look at who wins. The winners are big Wall Street banks. Maybe a small number of governments will issue bonds they otherwise would not. Main Street is not helped very much by this program. The only certainty is that the Federal taxpayers are on the hook for the interest costs.

With record budget deficits under this Congress and administration, we cannot casually look away as new, open-ended subsidies are proposed.

I yield the floor.

I agree with the chairman.

I suggest the absence of a quorum.