Floor Statements

Mr. President, I ask unanimous consent for 3 minutes out of Senator Baucus's time to make a statement.

Mr. President, I know we are in the middle of a health care debate and I know we are focused on health care and we will be talking about that for several days, but I rise to congratulate the people of Washington State and the country on the 787 Dreamliner flight that took off from Paine Field, WA, just a few hours ago. Some people might think of that as just going to YouTube and looking at the video and seeing a plane take off and what is the significance. I tell you, there is great significance, not just for the State of Washington but for the country because this plane is a unique plane. It is a game changer as far as the market is concerned. But it is American innovation at its best. This plane, built now with 50 percent composite materials, is going to be a 20-percent more fuel-efficient plane. That is significant for our country. It is significant because it means the United States can still be a leader in manufacturing and it can still deal with something as complex as fuel efficiency in aviation.

What is prideful for us as Americans is, this is about American innovation at its best. What would Bill Boeing say about today? He would say we achieved another milestone, where we faced international competition. Yet the United States can still be a manufacturer. We can still build a product, still compete, and still win because we are innovating with aviation.

To the thousands of workers in the Boeing Company and in Puget Sound I say: Congratulations for your hard work--for the planning and implementation of taking manufacturing from aerospace with aluminum that had been the status quo for decades, to developing an entirely new plane, 50 percent with the new material.

I want the United States to continue to be a manufacturer, to still build products, to still say we can compete. So I applaud the name Dreamliner. Somebody in that company had a dream, and today it got launched when it took off from that runway. I wish to say that is the innovative spirit that has made this country great and that is the innovative spirit in which we need to invest.

Madam President, I have been on the floor now for about an hour listening to my colleagues on the health care debate. Certainly I want to express the opinion from many people in the Northwest. We know that doing nothing about health care certainly will guarantee that premiums will go up. We know it happened in the last 10 years; they have gone up 100 percent. We know that doing nothing now means they will go up 8 to 10 percent a year. We also know there is about $700 billion in waste in the system.

This is about what we can do to reform the system so we can stop the rise, the increase we are seeing in our premiums. There are many things in this legislation, changing fee-for-service systems so we are driving down the quantity of health care that is delivered instead of making sure that it is quality; making sure we make reforms in long-term care; making sure we give

the power to States to negotiate and drive down the costs. I know my colleague Senator Collins was on the floor with some of my other colleagues, the Senators from Oregon and Indiana, to discuss their ideas about how we improve cost containment.

I hope my colleagues in the next days will join us in the discussion about how we continually improve the bill to drive down costs, because doing nothing will not get us to that point.

(The remarks of Ms. Cantwell and Ms. Collins pertaining to introduction of S. 2827 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. President, I send to the desk legislation on my behalf and Senator Collins', the Senator from Maine, dealing with putting a market signal on carbon so we can get off of carbon and move forward on a green energy economy that will create millions of jobs in America.

I know we are still on health care so I am not going to take a lot of time right now to talk about this because we in the next several weeks and months ahead are going to have a lot of time to talk about this issue. But I do want to say for my colleagues, as we are introducing this legislation: The American people have been on a roller coaster ride with energy prices. I know the Presiding Officer knows this because she comes from the Northeast and knows what home heating oil costs have done to her State and surrounding States. I know my colleague from Maine knows this as well. That is part of her motivation in joining me in this cause, I am sure. The American public cannot sustain having oil prices wreak havoc on our economy for the next 30 years.

We know from economists that sometime in the next 5 to 30 years we will be at peak oil, and once we are at peak oil, the cost to the U.S. economy will be even more extravagant. The American people want to know what we are going to do to transition off of that and do so in a respectable way. What they are not so interested in is a proposal that would have Wall Street come up with a funding source by doing speculative trading to continue the games that have been played for the last year or 2 years on various commodities that drove the economy into the ditch.

I find it interesting that today in the newspapers coming from Copenhagen, now they have decided that up to 90 percent of all market activity in the European trading markets was related to fraudulent activity. That tells us that trading markets already existing on carbon futures have had great deals of problems with manipulation. I don't think we need to repeat that. What we want to do instead is say, we are going to make sure that consumers get a check back to help them with their energy bills. We want to say we are going to protect them from the skyrocketing prices of energy, but we are going to transition off of fossil fuels and onto new sources of energy, of biofuels, of alternatives such as wind and solar, of things such as plug-in electric vehicles, of an electricity grid that can be more efficient and a smart two-way communications system.

In the end, our economy is going to be better. We are going to create more jobs. We are going to make sure that consumers are not held hostage by future huge energy spikes. If we do that, we are going to leave to the next generation a better situation. We will leave the planet Earth in better shape. But most importantly, we are going to take the U.S. economy, struggling to move ahead, and we are going to create thousands of jobs in the short term and millions of jobs in the next several years. That is good news, to think that the United States could become a leader in energy technology, that we are not going to be as dependent upon the Chinese for battery technology of the future as we are right now on Middle East oil.

I introduce this legislation with the most respect for my colleagues, Senators Boxer and Kerry, Lieberman and McCain, many of my colleagues have been involved in this issue for many decades, but to work across the aisle. If health care shows us anything, we have to cut down the amount of time it takes to move these important pieces of legislation by working together in an effort to show that we do understand the needs of the American public. We have to drive down their costs, not just on health care but on fuel as well. We have to give them economic opportunity for the future. Sending this market signal is the best way to create jobs and help protect consumers for the future.

Objection.

Mr. President, I rise today to join my colleague, Senator Murray, in expressing my sorrow over the tragedy that struck Washington State and the law enforcement community. I extend the prayers and condolences of the Senate and the entire Nation to the families, loved ones, and colleagues of the four police officers who lost their lives in the line of duty Sunday in Lakewood, WA.

Those four officers, part of Washington's best, are SGT Mark Renninger, Officer Ronald Owens, Officer Tina Griswold, and Officer Greg Richards.

Collectively, they served for 47 years in the line of duty. As Lakewood Police Chief Bret Farrar describes them, they were ``outstanding individuals'' who brought a range of talents to a 5-year- old department.

These heroes, who put their lives at risk for our safety every day, will be deeply missed and never forgotten. The men and women in blue who keep our communities safe make tremendous sacrifices daily, and so do their families.

The senseless tragedy that claimed the lives of these four officers, as my colleague said, the deadliest attack in Washington State history, reminds us of the risk that police officers take every day when they put on their badges.

The risks that police take every day was driven home again today when a Seattle police officer on routine patrol confronted, shot, and killed the person believed responsible for this crime. And at a time when we are all in shock over the loss of these officers, the police remain vigilant. They did not stop doing their job, even when tragedy struck close to home.

I thank all those who participated in the law enforcement's response since this tragedy happened. I thank the Pierce County Sheriff's Office and Sheriff Paul Pastor for the investigation they have led. My heart goes out to the Lakewood Police Department and Chief Bret Farrar.

I also thank the efforts of the Seattle Police Department and the interim Chief John Diaz for his efforts and his agency's work.

In a matter of days, police and public safety officers from all around the country will converge on Puget Sound. They will form a long blue line in a show of respect for those who have fallen--Mark Renninger, Ronald Owens, Tina Griswold, and Greg Richards.

This moving ritual, which happens all too often in our country, speaks eloquently of the solidarity all of us feel with those who risk their lives to keep us safe. This tragedy also struck our State earlier in October when Officer Timothy Brenton was struck down randomly while sitting in his police car.

I hope everyone in this country will take time today and tomorrow and next week, if they see a police officer, to thank them. Thank them for their service. Express your appreciation for the job they do putting themselves at risk for all of us. We did not have enough time to thank Mark, Ronald, Tina, and Greg, but we are thanking them in our thoughts and prayers, and we are sending strength to their families with much love and appreciation for what those officers and their families have done to serve us and their communities.

I yield the floor.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, my colleague, Senator Landrieu, was going to be next, but I will switch times with her. She will join us on the floor shortly.

I want to join my colleagues this morning and talk about this important issue of controlling health care costs. That is why we are here. We know Americans are facing higher and higher health care costs and that we can do something to drive down the costs of our health care system. We know health care costs are not only strangling us, but they are impacting our constituents, our budget, and they are leaving 47 million Americans without insurance.

Our aim is to promote better quality care and get costs under control. Whether those costs be to consumers struggling to pay insurance premiums or to our government, we need to make sure we are doing all we can. Doing nothing in this debate is allowing health care costs to continue. I want to make sure my colleagues on the other side of the aisle who talk a lot about this legislation understand that if we do nothing, we are going to leave the American people and our budget in serious danger by not controlling health care costs.

As always, in this debate we must keep in mind Federal spending, and the numbers on Federal spending are stark.

In terms of doing nothing, if the U.S. Government does nothing, health care spending will double in the next decade. That is, we spend about $810 billion on health care. That is one-third of our total Federal budget. If we do nothing, Federal spending is going to go to $1.56 trillion. That is because we are not controlling health care costs, baby boomers are reaching retirement, and Medicaid and Medicare costs are ballooning. One-third of our Federal budget is a big enough bite. But if we do nothing, then our health care priorities are going to push out other priorities of our Federal Government.

The biggest area where we could control costs is in Medicare. Medicare is 57 percent of all Federal spending, and it is getting bigger. By 2020, Medicare spending alone will reach $1 trillion, doubling the $466 billion we spend today. That is to say that Medicare spending has been doubling in the last 10 years, and if we do nothing as our colleagues on the other side of the aisle are suggesting by not moving forward on this legislation, then it is going to double again. This is unsustainable because if we do not address this, Medicare is going to bankrupt us.

The prospects are just as daunting when it comes to our Medicaid budget because Medicaid spending over the next several years will also double, and it has doubled in the last 10 years. States are struggling, as many of us know, with what they can do to help sustain Medicaid since they pay for part of that for individuals.

So we see we are in a situation where doing nothing is an irresponsible way to go. In fact, for our constituents, they are seeing a 120-percent increase in insurance premiums. While we are worried about the impact on the Federal Government, they are worried about the impact on them, on their individual budgets. That means the average family today pays about $7,000 more per year for the same health care benefits than they did a few years ago. If you think about that, that means that is less money for them, less money for their families, less money to meet the other bills in the family.

Why has this happened? If we look at what has happened in our country, we see that wages have not gone up. In fact, during that same 10-year period of time, wages have only gone up 29 percent, health insurance premiums have gone up 120 percent. And where has the insurance industry been? The insurance industry has seen a 428-percent increase in profits over the last 10 years.

That is why we need to do something about controlling health care costs. We cannot let the American people continue to be subject to such huge increases in premiums and then have the insurance industry walk away with huge profits and American consumers make less and less.

What is going to happen if we do nothing, if we do not advance this bill to control health care costs? Those same premium increases we have seen in the last 10 years are also going to go up again. In fact, they are projected to go up another 7.9 percent in annual growth. That is, every year, they are going to go up another 8 percent. That is unsustainable. That means somebody is going to be paying $10,000 or more than what they are paying for their health insurance today for the same health care benefits. That is why doing nothing and not advancing this bill is just acquiescing to the fact that everybody is going to pay more for health care.

What makes this number so scary is that it is four times the rate of inflation over the same period. That means what we need to do is look at general inflation, which is usually about 2 percent. But health care inflation, as is shown on this chart, is more like 8 percent. If we do nothing to change this, Americans are going to continue to do with less because health care costs are demanding more and more of their budget.

What do we do about this? We certainly want to make sure that we change the system, and that is one of the reasons I support driving down costs by having a public option. We know that two factors are involved: We don't have enough competition and there are very concentrated markets in health insurance across the country. Many times there are only one or two insurance providers providing coverage in a market. They might have 94 percent of the market. It is too concentrated. We know if we provide an alternative in the marketplace, we can help drive down costs.

One provision in this bill of which I am very supportive is the basic health plan because it lets States negotiate with private insurers for lower costs. In my State, this program has been in place for 20 years. It has been able to provide those who participate in the program--about 70,000 people today--a 30- to 40-percent savings if they had to buy that plan as an individual from a private insurer. That is incredible success in driving down the cost.

Why? I call it the Costco model because like when you go to Costco and you buy in volume, the State of Washington, buying in volume on behalf of those individuals, was able to drive down the cost of health care for those individual citizens. They were able to choose between four different plans, and they were able to get access to a very good proposal for health care for them.

The underlying bill includes language that says you could provide this basic health plan if States opted into it and cover 70 percent of the currently uninsured in America. I like this proposal because it gets us cheaper insurance for that population.

Why subsidize insurance companies by giving tax incentives to buy more expensive insurance when what Americans want is to drive down the cost of health care by having the same negotiating clout that big businesses or other entities have?

I hope we can continue to work and maybe even expand this provision to make it even more robust and to drive down costs.

What is clear is that the cost of the uninsured is adding to our health care

costs. In fact, the fact there are people in America who are uninsured is adding about $1,000 to our health care premiums overall. That is about $43 billion a year to our health care system.

If we can change our health care system and get more people into something such as the basic health plan, we would be able to drive down costs, and that is why that plan is so valuable.

We should not forget that our current system, besides insurance reform, needs provider reform. The reason why provider reform is so important is because our current health care system is flawed. It is driving up the cost of Medicare and health care in general because of the payment system. Basically, the current payment system perpetuates more spending. In fact, there is something like $700 billion in waste in our current system. If you think about it, it is this fee-for- service loop that I call it where you order more and you end up having more waste in the system, you have more spending, you have more use, and it keeps going. That is primarily because we pay doctors on volume. We pay doctors for how many patients they see every day, and we pay them for how many tests they order. Consequently, the cost continues to spin out of control.

As I was saying, we spend about $700 billion on health care that we do not need to spend. That is in duplicated tests, unnecessary procedures, excessive insurance overhead, uncoordinated speciality care, and preventable hospitalization.

We heard from many people during the health care debate that we have to do something to change this system. In fact, one of the witnesses before the health care committee said:

We have to go after how we reimburse physicians. The

current system is the most broken part of Medicare.

What are we doing in this legislation to fix that? We are changing the way we reimburse for health care. In fact, we are going to look at how to get lower costs with better results. This is important because I don't think there is a person in America who doesn't know what it is like to go into a doctor's office and feel they are always in a hurry or feel as if the doctor didn't hear everything you had to say. This is about changing and rewarding physicians on the outcome of your health care so you can have shorter waiting times, better access to doctors, more coordinated care, and better outcomes.

We think if you change the health care system, which this bill does, to drive down costs and get better outcomes, we are going to have better health care in America.

We can continue on the path which I think my colleagues on the other side of the aisle want by not voting to move forward on this legislation, we can have less coordinated care, going from specialist to specialist without having that care coordinated and have unnecessary tests, but then everybody in America is going to be paying for those costs. Everybody is going to be paying higher health care premiums because of it.

What we need to do, which is what exactly this bill sets us on a course and path to do, is to pay for value not for volume, to pay physicians on the value they deliver and the outcome of their patients instead of volume.

If we did nothing else in health care reform but to change our payment structure to focus on this premise--paying for value and not for volume--then we would be delivering great long-term savings to our health care system.

We have other things we need to do, and that is in the area of long- term care and Medicaid because in our long-term care system, we are seeing a doubling in health care costs, primarily because of long-term care. When you think about our Medicaid budget, everybody thinks Medicaid is this program to help the low-income population. Medicaid is turning into a long-term care program for the elderly in America. That is, they cannot get long-term care access so they are spending down so they qualify under Medicaid to basically get on that system to cover their long-term care.

We can see that right now Medicaid is paying half of its funds, and that is an expense that is going to continue to grow.

We have made some reforms in the State of Washington to make that cheaper. We have said let's invest in home care instead. Instead of having everybody go to nursing homes, whether they need to be there or not, let's focus on the long-term care system reforms that keep people in their community and instead use the Medicaid budget to advance other things while keeping patients at home.

I think every senior in this country would rather have their health care delivered at home than in a nursing home, but our current Federal system continues to reward long-term care in nursing homes instead of in community-based care. This legislation starts us on a path to change that direction, to move closer to long-term care community services.

We did this in the State of Washington, again, over 20 years ago and have reaped huge benefits. If we took an individual in the system today, the cost is only about $22,000 per individual. If we had not reformed the system as we did 20 years ago, we would be paying $42,000 for that same individual. So we have been able to drastically cut the amount of money we are spending on long-term care.

This legislation includes the same kind of cost control reforms in long-term care as some States have already implemented. That is why we have to get at controlling health care costs. If we do not control health care costs in this area of long-term care, we are not going to control health care costs overall in America.

What does reform mean? Why are we here today to talk about the cost of health care and what we need to do? Why are we here talking about advancing this legislation so we can get this debate on the floor for the American people?

It is clear we need to have more competition through a public option, we need smarter reimbursement rates to incentivize value, and we need better use of Medicaid dollars.

I thank the Presiding Officer. I hope my colleagues on the other side of the aisle will consider the important cost controls in this measure.

I yield the floor.

Mr. President, I come to the floor to join my colleagues to talk about the rising cost of health care on small businesses. I thank the chair of the Small Business Committee, Senator Landrieu, from Louisiana. She has been an outspoken and articulate advocate for small business. She is constantly focusing on what we are going to do to help small businesses in America, and she wants to make sure any health care legislation that is passed out of the Senate focuses on that. That is very important because we know that when we talk about small businesses in this current environment, they are at a disadvantage when it comes to our health care system. That is to say they have long been the backbone of the American economy. Small businesses employ about 40 percent of our workforce. Even in a downturn, the job creation we are going to see is going to come from small businesses. If we can address their concerns in health care reform about the rising cost of health care, then we are going to be doing ourselves a favor because they are going to be able to grow more jobs and grow the economy.

I applaud the Senator from Louisiana for her efforts and join with my colleagues, Senators Warner, Udall, and Shaheen, in coming down here to describe why we think it is so important that we get health care reform and that we do something about this because we really do want to get our economy going, and we certainly want to control costs so that small businesses can grow jobs.

Why is this so important? We have seen a 120-percent increase in premiums over the last 10 years. That is to say, from 1999 to 2009, insurance premiums have increased 120 percent--120 percent. What family in America can sustain the constant increase in insurance premiums every year? The fact is, they cannot.

In my State, we have seen a sharp rise in those who are without health insurance because the premiums keep going up. More and more small businesses have to make choices between keeping employees on the rolls or cutting back on their health insurance. And they are making those choices. It puts all of us at a disadvantage.

What should we be doing instead about the rising costs of premiums in health care? We should be doing something to bend the cost curve. You will hear many of my colleagues, as you did this morning, talk about bending the cost curve and why it is so important. Right now, if we look at what is happening with health insurance, as I said, it already increased 120 percent over 10 years. The next 10-year period, it is supposed to increase in the same way, double in cost, increase about 7.9 to 8 percent a year. So that means if we do nothing, small businesses are going to continue to see this escalator of costs keep going up for, and that means they are going to employ fewer and fewer people because they cannot afford the health care coverage.

We see that general inflation is about 2 percent, but this increase in premiums is about, as I said, 7 to 8 percent. Why are we seeing this huge increase in the cost of premiums if general inflation is only about 2 percent? This, in my opinion, is what the health care debate should be about. This difference between general inflation and health care cost increases should be the entire debate. What are we going to do to drive down the costs so that health care costs are kept more in pace with inflation?

Why are these statistics so important? The issue is that, according to the National Small Business Association, only 38 percent of small businesses provided health insurance last year. That is down 61 percent from 1993. So we are continuing to see that shrinkage in people offering coverage. Of those who do offer coverage, 72 percent say they are struggling to continue to offer coverage to their employees.

An MIT study shows that the cost of health care to small business will more than double in the next 10 years, just as it has in the last 10 years, and that small businesses pay up to 18 percent more than the same coverage for larger firms. What that means is small businesses are being disadvantaged. They are being disadvantaged because they do not have the same clout in the marketplace as a large employer to negotiate benefits and drive down costs.

What do we want to do about that? What we want to do is give small businesses the same kind of negotiating power large companies have to negotiate for benefits. In fact, health care reform and helping small businesses should be able to negotiate with insurance companies to drive down the costs of their plans.

This is something that is already part of the underlying bill we passed out of the Finance Committee. I am sure that when we see legislation coming to the Senate floor this Friday, we will see the same kind of provision, at least with the basic health plan, a provision I helped coauthor in the legislation that would allow States to negotiate on behalf of the uninsured, allowing those who are employed in small businesses to help lower the costs. In our State, this plan has driven costs down 30 to 40 percent lower than what those individuals would be able to get in an individual market. That is amazing, the fact that they have been able to pool together 40,000 to 60,000 people, go to the marketplace, and say to insurance providers: If you want access to our insurance business, you have to

give us a discount. I call it the Costco model. I don't know how many people here this morning understand the Costco model, but the Costco model is something where you buy in bulk and you make large purchases. You should get a discount. That is what we are saying. We want to give small businesses the same kind of purchasing power large businesses have so they can drive down costs. That is going to be a critical component of this legislation, and this Senator, along with my colleagues who are out on the floor today, is going to make sure that negotiating power exists in a final bill for small business.

Second, we need to make sure we also have provider reform, that provider payments reward not just volume but value. Right now in our health care delivery system, there is a lot of focus given to what I would say is the quantity of health care that is delivered, the fee- for-service system that basically ends up having insurers paying physicians for the number of patients they have seen or the number of tests they have ordered but is not generated or focused on payment to a physician based on the outcome of the patient. There are provider reforms in this legislation that will also help drive down the cost to small businesses because those providers will be focusing on what it takes to deliver health care to those individuals.

Third, we need to have better transparency on drug pricing because transparency of cost is something that will help us in negotiating, as a government purchaser, better health care benefits. Right now, there is a lot of unknown about health care costs in drug pricing because middlemen basically negotiate discounts on behalf of their customers but end up pocketing some of those benefits.

We want to make sure all three of these points are part of vital legislation to help drive down the cost for small businesses.

I have many small businesses come into my office. I met with some in the State of Washington. We are very proud of the diverse array of companies that exist in our State. A lot of people look at some of the major employers such as Boeing or Microsoft or, as I mentioned, Costco, Starbucks. Washington State is home to many entrepreneurs. There are many great companies that may be the big companies of the future but are the small businesses today, and they need our help and assistance.

Two of those, Kent and Linda Davis, run a technology consulting firm and pay $1,500 per month for health insurance--$1,500 per month. They just learned that in 2010 their premiums will increase by another $300 per month. This is the third substantial increase they have had in a row. They want to hire more employees, but they cannot because of the cost of health care.

Another successful entrepreneur who has come into my office, Gene Otto, is the owner of the San Francisco Street Bakery. You might think the San Francisco Street Bakery is in San Francisco, but it is actually in Olympia, WA, and it employs 20 people. Over the past decade, the increases in health insurance premiums have forced them to take dramatic reductions in the level of benefits and the number of employees they can cover. This is a company that wants to grow. They want to expand. They have great products and great services.

It is people such as the Davises and Gene Otto who are the economic engine of our economy. They are going to continue to depend on us to make sure that in this legislation and in this legislative debate, we are going to do everything we can to help small businesses grow.

Small businesses cannot grow if health care costs are going to rise 8 to 10 percent a year. It will hamper the ability of those small businesses to meet the demands and challenges of their workforce and keep them healthy, facing an economy that has been certainly challenged by this big downturn we have seen but that needs to go back to growth in the future. They want to be part of that. They want to be part of that growth, and they want to be part of helping our economy recover. But to do that, we are going to have to do something to control health care costs.

I applaud my colleagues who I know share these same issues and concerns: the Senator from Virginia, who has been very outspoken on the fact that we have to change our system to make sure we are bending the cost curve and focusing on driving down costs with provider reforms; my colleague from Louisiana, who is focused on making sure small businesses have clout and access to small business negotiations that large companies have; my colleague Senator Shaheen, who also has been a big supporter of making sure we have provider reform in the system; and Senator Udall, who comes from a State that knows health care costs are a key component. If we want our economy to grow, we have to drive down health care costs.

Two of our former colleagues have been on the floor in the last few minutes--the Vice President of the United States and the Secretary of Interior. We are glad they have come up to Capitol Hill to continue discussions with us about how important this legislation is. I thank them for that. I thank them for their service to our country and for their willingness to serve in the administration. We certainly miss them in the Senate. But I think it emphasizes the urgency of the health care legislation, that our economy is struggling, that we want it to grow, that we think small businesses are going to be a key component of that, but we have to give them negotiating power. We have to give them the ability to negotiate with insurance plans to drive down the costs, and we have to do better at reforming the system so we can see that growth happen in America.

I yield the floor.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, as in executive session, I ask unanimous consent that on Thursday, November 19, at 2 p.m., all postcloture time be yielded back, except for 30 minutes, and that the time be equally divided and controlled by Senators Leahy and Sessions or their designees; that at 2:30 p.m., the Senate proceed to vote on confirmation of the nomination of Judge Hamilton; that upon confirmation, the motion to reconsider be laid upon the table, no further motions be in order, the President be immediately notified of the Senate's action, and the Senate then resume legislative session.

Mr. President, I ask unanimous consent that on Thursday, November 19, following the period of morning business, the Senate proceed to the consideration of Calendar No. 190, S. 1963, and that the bill be considered under the provisions of the order of November 17; further, that upon disposition of the Hamilton nomination and the Senate resuming legislative session, there be 2 minutes of debate prior to a vote in relation to the Coburn amendment, No. 2785; that upon the use of that time, the Senate proceed to vote in relation to the amendment; that upon disposition of the amendment, the Senate then proceed to passage as provided under the order of November 17.

Mr. President, I ask unanimous consent that the Senate proceed to a period of morning business, with Senators permitted to speak for up to 10 minutes each.

Mr. President, I ask unanimous consent that the HELP Committee be discharged from further consideration of S. Res. 353 and the Senate proceed to its immediate consideration.

I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table, with no intervening action or debate, and any statement related to the resolution be printed in the Record.

Mr. President, I ask unanimous consent that when the Senate completes its business today, it adjourn until 9:30 a.m. tomorrow, Thursday, November 19; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, the time for the two leaders be reserved for their use later in the day, and the Senate proceed to a period of morning business for 1 hour, with Senators permitted to speak therein for up to 10 minutes each, with the time equally divided and controlled between the two leaders or their designees, with the majority controlling the first half and the Republicans controlling the final half; that following morning business, the Senate proceed to the consideration of Calendar No. 190, S. 1963, the Caregivers and Veterans Omnibus Health Services Act Of 2009, as provided for under the previous order.

Mr. President, at 2:30 p.m. tomorrow the Senate will proceed to a series of three rollcall votes. The votes will be on the confirmation of the nomination of David Hamilton to be a U.S. circuit judge for the Seventh Circuit; in relation to the Coburn amendment No. 2785, relating to spending priorities; and passage of S. 1963, the Caregivers and Veterans Omnibus Health Services Act, as amended, if amended.

Finally, I ask unanimous consent that following the remarks of Senator Sessions, Senator Harkin, and Senator Alexander, the Senate adjourn under the previous order.

Mr. President, I rise today to introduce the Commodities Market Manipulation Prevention Act of 2009.

When bad-actors like Enron and Amaranth Advisors, LLC, manipulate commodities prices, it means that Americans pay more for commodities like oil, gasoline, heating oil, food, and natural gas. Unfortunately, current law does not protect our economy with a tough enough standard to prevent, deter, and enforce illegal market manipulation in critical commodity futures markets.

Current law makes it very difficult for the Commodities Futures Trading Commission to prosecute market manipulation cases. This is because current law requires the CFTC to meet a more rigorous standard to prove market manipulation than other financial market regulatory agencies such as the Securities and Exchange Commission, the Federal Energy Regulatory Commission, and the Federal Trade Commission.

Specifically, the Commodities Exchange Act requires the CFTC to prove ``specific intent'' to manipulate. That is a very difficult standard to reach. You would have to have a pretty dumb individual to, for example, write in an e-mail that you specifically intend to manipulate prices. But that's what current law currently requires the CFTC to prove.

In addition, CFTC case law also requires that it prove an artificial price exists, that the defendant had market power to move the price, and that he or she actually did cause the artificial price. Particularly in today's complex markets, proving ``artificial price'' can be a daunting task, which more often than not comes down to a ``battle of the experts'' in court. Because these requirements are so onerous, the CFTC often ends up moving to a lesser charge of ``attempted manipulation,'' which requires only proving intent and some act showing that intent. This is still a high standard, but is much easier than proving a full manipulation case.

As a result, Federal courts have recognized that, with the CFTC's weaker anti-manipulation standard, market ``manipulation cases generally have not fared well.'' In fact, the standard is so weak that in the CFTC's 35-year history, it has only successfully prosecuted and won one single case of manipulation. That case is currently on appeal in Federal court.

The Securities and Exchange Commission, on the other hand, under section 10(b) of the Securities and Exchange of 1934, has a different, easier-to-prove manipulation standard that it has employed successfully for over 75 years. Basically, the SEC does not need to prove specific intent, as the CFTC does. The SEC just has to prove that the defendant acted ``recklessly.''

This legislation would give the CFTC the same anti-manipulation standard currently employed by the SEC. This means that the CFTC would be empowered to prove a manipulation case under the same ``reckless conduct'' standard that the SEC, FERC, and FTC employ, in contrast to its current difficult-to-prove ``specific intent'' standard. That is, this legislation will repeal the affirmative rule that says you are allowed to act recklessly in the commodity futures markets as long as you have no specific intent to do harm.

Congress also recently granted this same authority to the FERC in 2005 and the FTC in 2007 in legislation I wrote that carefully tracked section 10(b) of the Securities and Exchange Act of 1934 to ensure the FERC and FTC would interpret and enforce their new market manipulation authorities consistent with the SEC. This legislation also carefully tracks section 10(b) of the Securities Exchange Act of 1934 in part because Federal case law is clear that when the Congress uses language identical to that used in another statute, Congress intended for the courts and the Commission to interpret the new authority in a similar manner.

In the words of the Supreme Court from the 1904 case of Kepner v. United States, ``when a statute uses words whose meaning under the judicial decisions has become well-known and well-settled, it will be presumed that the Legislature used such words in the sense justified by long judicial sanction.'' In the 75 years since the enactment of the Securities and Exchange Act 1934, a substantial body of case law has developed over the last half century around section 10(b). This will provide certainty in how this legislation will be interpreted and applied by the Courts and the CFTC.

In fact, the Supreme Court has compared this body of law to ``a judicial oak which has grown from little more than a legislative acorn.'' So it's worth noting that courts have held that the SEC's manipulation authority is not intended to catch sellers who take advantage of the natural market forces of supply and demand; only those who attempt to affect the market or prices by artificial means unrelated to the natural forces of supply and demand.

In this country, our current standard in the futures arena just isn't working. It is not sufficient to fully prosecute and deter abuses in the markets. We need to get the right standard to prevent, deter, and enforce market manipulation in these markets.

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

Mr. President, I move to reconsider the vote, and I move to lay that motion on the table.

The motion to lay on the table was agreed to.

I suggest the absence of a quorum.