Floor Statements

Mr. President, this weekend, millions of Americans watched in suspense as Anakin Skywalker was lured to the Dark side and became Darth Vader. What millions of those same Americans may not be aware of is another Darth Vader lurking in our tax code; that is, the Alternative Minimum Tax, or AMT.

The AMT has many of the same qualities as Anakin Skywalker. The AMT was supposed to bring order and fairness to the tax world, but it eventually got off on the wrong path and became a threat to middle- income taxpayers. Both Skywalker and the AMT started off with great intentions, but eventually they went astray. And now we have the Darth Vader of the Tax Code bearing down on millions of unsuspecting families.

That is why I am pleased to join with my friend and Chairman Chuck Grassley, and our fellow committee colleagues, Senators Wyden and Kyl, to introduce legislation today that will repeal the individual AMT. Our bill simply says that individuals beginning January 1, 2006 will owe zero, I repeat, zero dollars under the AMT. Further, our bill provides that individuals with AMT credits can continue to use those up to 90 percent of their regular tax liability.

If we do not act, CRS estimates that in 2006, the family-unfriendly AMT will hit middle-income families earning $63,000 with three children. What was once meant to ensure that a handful of millionaires did not eliminate all taxes through excessive deductions is now meaning millions of working families, including thousands in my home State of Montana, are subject to a higher stealth tax. It is truly bizarre, Mr. Chairman, that we have designed a tax deeming more children ``excessive deductions'' and duly paying your State taxes a bad thing. Already, 5,000 Montana families pay a higher tax because of the AMT. But this number could multiply many times over if we do not act soon.

Not only is the AMT unfair and poorly targeted, it is an awful mess to figure out. The Finance Committee heard testimony today from our National Taxpayer Advocate, who has singled out this item as causing the most complexity for individual taxpayers, and also from a tax practitioner who has seen first-hand how difficult this is for her clients. We heard also from other witnesses who said it is time for repeal of the AMT.

Of course, repeal does not come without cost and that cost is significant even if we assume the 2001 and 2003 tax cuts are not extended. We are committed to working together to identify reasonable offsets. Certainly, I do not think we want a tax system unfairly placing a higher tax burden on millions of middle-income families with children. But it does not serve those families either if our budget deficit is significantly worse.

Again, I look forward to working with my colleagues on this AMT repeal bill will put an end to the Darth Vader of the tax code, without any sequels.

Mr. President, last week on Wednesday, we evacuated the Capitol. At the instruction of the Capitol Police, more than a few Senators and staff actually ran from this building and surrounding offices in the very real fear that a plane was carrying a bomb to attack this building, the center of our democracy.

Sadly, Wednesday was not the first time, and Wednesday will likely not be the last time, that we guard against threats to our democracy by plane or by bomb.

But there are other threats to our democracy and our freedoms just as menacing, equally as dangerous.

Abraham Lincoln said:

America will never be destroyed from the outside. If we

falter and lose our freedoms, it will be because we destroyed

ourselves.

Former Librarian of Congress Daniel Boorstin said:

It is not slogans or bullets, but only institutions that

can make and keep people free.

And Baron Montesquieu wrote in ``The Spirit of the Laws'':

There is no liberty, if the judiciary power be not

separated from the legislative and the executive.

The effort to break the rules to allow the President more easily to appoint judges that undermine the independence of the Federal judiciary is no less than a threat to our democracy, a threat to our freedoms, and a threat to our liberties.

For two centuries, Democrats and Republicans alike have used the Senate's rules to protect our democracy, to protect our freedoms, and to protect our liberties. After two centuries, it would be a mistake to change those rules.

Unlimited debate allows Senators to protect minority freedoms. Unlimited debate helps to ensure that no one party has absolute power. Unlimited debate helps to give effect to the Founders' conception of checks and balances.

History will see the actions of this month as what they are: A threat to those checks and balances. History will see the actions of this month as a terrible attempt to diminish the Senate. History will see the actions of this month as an attempt to diminish our democracy.

If those who seek to change the rules succeed, especially by breaking the rules, it will be only a matter of time before the next step comes. It will be only a matter of time before some future Senate leader decides to once again to break the rules to change the rules, and abolish the filibuster altogether.

And what will the Senate look like then?

Then all our votes will be simple majority votes. Then lost will be a centuries-old check and balance. And then what will be left will be a vastly different Senate from the one to which I came in 1978.

The majority leader has proposed that debate on important judges be limited to a fixed number of hours, to 100 hours. That might sound like a lot of time.

But the point is not the number of hours. The point is that at the end of a set amount of time, no Member of the minority party need participate. At the end of a set amount of time, only the majority party will rule. At the end of that set amount of time, there would be no more check and balance.

If one wants to see what the Senate will look like then, look at budget resolutions. Like the majority leader's proposed rule, they allow for a long period of debate. The leader's proposal calls for 100 hours of debate on judges. The Budget Act calls for 50 hours of debate on budgets.

Look at the results.

Rarely do budget resolutions achieve consensus. Since 1992, only one budget resolution has received more than 55 votes on final passage.

This year, the vote on the budget resolution was 52-to-47.

Last year, the disagreements on the budget were so partisan that the majority was not able to bring the conference report on the budget resolution to the floor in the Senate.

In 2003, the vote was as close as it could get: 51-to-50. The Vice President had to break the tie vote.

In 2002, once again, divisions were so partisan that the majority was not able to secure a majority in the Senate.

In 2001, the vote was 53-to-47

In 2000, the vote was 50-to-48.

In 1999, the vote was 54-to-44.

In 1998, the majority was once again unable to adopt a budget resolution.

And 1997 was the exception that proved the rule. That year, the budget resolution achieved a broad consensus, receiving a vote of 76- to-22.

But in 1996, the vote was 53-to-46.

In 1995, the vote was 54-to-46.

In 1994, the vote was 53-to-46.

In 1993, the vote was 55-to-45.

And in 1992, the vote was 52-to-41.

Thus, over 14 years, under Republican Presidents and a Democratic President, over the course of nearly a decade and a half, only one budget resolution has been the product of consensus. Fourteen years, and only one budget with more than 55 votes.

The time limit on debate has not led to working together. The time limit on debate has caused partisanship. And three times in the last decade, the time limit on debate has led to complete failure.

That is what would happen to the Senate if we head down this road. Votes would become more partisan, if that is possible, but it would happen. And the products of those votes would become more extreme.

If we head down this road for the confirmation of judges, then judges will be more partisan. Judges will be more likely to uphold the powers of the President who appointed them. And judges will be less likely to defend individual freedoms and liberties against the powerful executive.

Just think about that for a moment. Under this rule change, judges will be less likely to defend individual freedoms and liberties against the powerful executive. Why? Because of the partisan nature under which a partisan President will have appointed them.

The Senate's role in protecting against extremism is particularly important in the context of nominations for the lifetime jobs of Federal judges. The Founders wanted the courts to be an independent branch of Government, helping to exercise the Constitution's intricate system of checks and balances. The Senate's involvement in the confirmation of judges has helped to ensure that the judiciary can be that more independent branch. And that independence of the judiciary, in turn, has helped to ensure the protection of our democracy, our freedoms, and our liberties.

In ancient Rome, when the Senate lost its power, and the emperor became a tyrant, it was not because the emperor abolished the Senate. In ancient Rome, when the Senate lost its power, it continued to exist, at least in name. But in ancient Rome, when the Senate lost its power, in the words of the Senate's historian, Senator Robert Byrd, the Senate became ``little more than a name.''

In ancient Rome, when the Senate lost its power, the Roman Senate was complicit in the transfer. The emperor did not have to seize all the honors and

powers. The Roman Senate, one after another, conferred greater powers on Caesar.

It was not the abolition of the Senate that made the emperor powerful. It was the Senate's complete deference.

Like the Roman Senate before us, we risk bringing our diminution upon ourselves. We risk bringing upon ourselves a hollow Senate, a mere shadow of its past self. And we risk bringing upon ourselves a loss of the checks and balances that ensure our American democracy.

This change, if it succeeds, will leave Senators, as T.S. Eliot described in his 1925 poem, as ``The Hollow Men.'' In that poem, Eliot wrote of a place like what the Senate would become. He wrote:

``Our dried voices, when

We whisper together

Are quiet and meaningless

As wind in dry grass

This is the dead land

This is cactus land

In this hollow valley

This broken jaw of our lost kingdoms

In this last of meeting places

We grope together

And avoid speech

Gathered on this beach of the tumid river

This is the way democracy ends; this is the way democracy

ends; this is the way democracy ends; not with a bomb, but a

gavel.''

I yield the floor.

Mr. President, I thank my good friend from Massachusetts.

The Book of Proverbs teaches:

Do not boast of tomorrow, for you do not know what the day

will bring.

In the play ``Heracles,'' the great playwright Euripides wrote:

All is change; all yields its place and goes.

And the Greek philosopher Heraclitus said:

Change alone is unchanging.

I urge my colleagues to bear the constancy of change in mind as they consider the proposal to break the rules to change the rules of the Senate. Many in the Senate's current majority seem bent on doing that. They seem quite certain that they shall retain the Senate majority for quite some time thereafter.

But as Bertrand Russell said:

Most of the greatest evils that man has inflicted upon man

have come from people feeling quite certain about something,

which, in fact, was false.

My colleagues do not need to strain their memories to recall changes in the control of the Senate. Most recently, the Senate changed from Democratic to Republican control as a result of the 2002 election. Democrats did control the Senate throughout the sixties and the seventies, but since then the Senate has governed under six separate periods of one party's control. The Senate switched from Democratic to Republican control in 1980, back to Democratic control in 1986, back to Republican control in 1994, back to Democratic control in 2001, and back to Republican control again in 2002.

Similarly, some in the Senate can remember the decade after World War II. The Senate switched from Democratic to Republican control in 1946, back to Democratic control in 1948, back to Republican control in 1952, and then back to Democratic control again in 1954. Senators who served from 1945 to 1955, a mere 10 years, served under five separate periods of one party's majority control.

One cannot always see that change is coming, but change comes nonetheless. For example, in November 1994, Washington saw one of the most sweeping changes in power in Congress of recent memory. Very few saw that coming. The majority in the House and the Senate changed from Democratic to Republican.

It is by no means easy to see that change coming. In March of 1994, just several months before the election, voters told the Gallup poll that they were going to vote Democratic by a ratio of 50 percent Democratic to 41 percent Republican. That same month, March of 1994, voters told the ABC News poll that they were going to vote Democratic by a ratio of 50 percent Democratic to 34 percent Republican. As late as September of 1994, voters told the ABC News poll that they were going to vote Democratic by a ratio of 50 percent Democratic to 44 percent Republican. On the first Tuesday in November 1994, however, more than 52 percent of voters voted Republican for Congress. Democrats lost 53 seats in the House and 7 seats in the Senate.

In 1980, the Senate changed hands from Democratic to Republican control, but in August of 1980, voters in States with a Senate election told the ABC News-Louis Harris poll that they would vote for Democrats for the Senate by a margin of 47 percent for Democrats and 45 percent for Republicans. And on the first Tuesday in November 1980, Democrats lost 12 seats in the Senate.

In November 2002, the voters gave the Republican Party victory in the Senate. But my colleagues in the majority would do well to remember.

After a victorious campaign, Roman generals used to be rewarded with a triumph--a triumphant parade through the streets of Rome. Citizens acclaimed them like gods. But tradition tells us that behind the general on his chariot stood a slave who whispered: Remember that you are mortal.

In the ceremony of a Pope's elevation, they used to intone: Sic transit gloria mundi: ``So the glory of this world away.'' At that very moment, they would burn a handful of flax. The burning flax would symbolize how transitory the power in this world is.

In an address in Milwaukee in 1859, Abraham Lincoln said:

It is said an Eastern monarch once charged his wisemen to

invent him a sentence, to be ever in view, and which should

be true and appropriate in all times and situations. They

presented him with the words: ``And this, too, shall pass

away.'' How much it expresses! How chastening in the hour of

pride! How consoling in the depths of affliction!

Mr. President, I urge my colleagues to remember that this Senate majority, too, shall pass away. This truth may console us in the minority, should the majority choose to break the rules to change the rules. But better still, better still would it be if the truth of constant change would chasten the current majority into abiding by the rules that protect Senators when they are in the majority and when they are in the minority alike.

We should protect the rules to protect minority rights, for no one can ``know what the day will bring.''

We should protect the rules that protect minority rights, for ``all yield [their] place and go.''

And we should protect the rules that protect minority rights, for it is true of majority control, as it is true of all things, that ``change alone is unchanging.''

Mr. President, I yield the floor and suggest the absence of a quorum.

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

Mr. President, I yield the remainder of time on our side. I understand we have an order to go to recess.

I want to first commend the Senator for his continued work on transportation issues. He is a real leader in this area and I appreciate his hard work on behalf of the State of Arkansas. I am aware of the Senator's requests and I understand the importance of these projects to Arkansas and the country. My colleague has been very persistent and we have worked hard to include a formula in the bill that provides a significant increase in funding to Arkansas so that the State may be able to accomplish this task. Specifically, Arkansas stands to gain over $550 million over the 5 years of this bill, a 30 percent increase from the levels they received under TEA-21. Would this amount be sufficient to make progress on the two important interstates Senator Pryor has mentioned?

The Senator is correct that the bill in the Senate does not have specific funding for projects. However, it is up to the State of Arkansas to make the decision on how to spend this increase in funding and the additional money to the State can certainly be used to make progress on these projects. I would expect that many States would consider projects such as the ones described in Arkansas that are nationally significant. It would be up to the State to set those priorities and move forward. I believe the projects in Arkansas, both 1-49 and 1-69, are in various stages of development and construction. It is my understanding that both projects are eligible for Federal funding under this reauthorization bill we have written.

Mr. President, I also join in thanking a lot of people who have worked very hard on this bill. Certainly the chairman of the committee, Senator Inhofe, deserves primary credit. It has been a long road, no fun. He has done a great job, and I commend him as well as the ranking Democrat of the committee, Senator Jeffords from Vermont. They worked very closely together. And that is what makes good legislation. This is not a partisan bill. This is a transportation bill. Of course, Senator Bond from Missouri has done yeoman's work, and I thank Senator Grassley, chairman of the Finance Committee.

I wish to make a few comments as we prepare to vote on final passage. I think that vote will occur in several hours. I start by congratulating all those who have worked so hard on this

issue, and I thank some people back in my home State of Montana.

Jim Lynch is director of the Montana Department of Transportation. He is a terrific director, a very good man. I have known him for many years. He has his heart and soul in this work. I also thank members of his team: Sandy Straehl, Jim Currie, Jim Skinner, Dick Turner, and Mike Tierney, just to name a few. They are terrific people, and many of them were also helpful in TEA-21. They know highways. They know this bill. They know the program. Believe me, they do a good job in helping us.

The bill we will vote on in a few hours is a good bill It is a solid bill. It is one that will move the country forward over the next 5 years. Every State will benefit from this legislation, the so-called donor States, donee States, urban, rural, large and small, every State.

In my state of Montana, this bill will provide $2.1 billion over the next 5 years. This is an increase in highway funding over $500 million of historic levels of TEA-21. This means that more than 16,500 good- paying jobs will be sustained in Montana each and every year of this bill. In many respects, this is our economic development program, the highway program. It provides so many good-paying jobs as well as excellent transportation.

I am very proud of the funding levels we have achieved working alongside my good friend from Iowa, Senator Grassley. I believe we developed a reasonable and fiscally responsible funding package. I am pleased that the Senate voted strongly to approve our efforts to increase the funding by $11 billion. The vote last week was 76 to 22 to waive the budget point of order, that is, in favor of that $11 billion. I hope the administration will take a long serious look at this. I hope they will reexamine their earlier opposition to increasing transportation investments. It is a good solid effort. The Senate has again publicly made its desires known with regard to funding levels. We did not go over the top. We could have gone with more, to 318, but we did not. We stayed under $300 billion--very responsible, very reasonable--and I hope the President will understand this is good legislation for the country, it helps our infrastructure, it is all paid for, and it is necessary to help America be competitive.

In a moment, we will vote on an amendment to reduce the funding in this bill by almost $11 billion. That is stripping away the funding that we worked so hard to identify and that the Senate voted to support.

I have here with me a stack of letters from a diverse group of organizations that strongly oppose the amendment being offered by the Senator from Alabama. I will not go through all of them, but it is really stunning, the number of organizations that have written us in opposition to the Sessions amendment. Every organization you can think of from the ACT--that is, the Association for Commuter Transportation-- the Transportation Construction Coalition, the Surface Transportation Policy Project, signed by Anne Canby, who is the President; AASHTO, signed by John Horsley, executive director, and many environmental organizations as well have written in opposing the Sessions amendment: National Association of Counties, National League of Cities, United States Conference of Mayors. It is just a representative sample of the large number of letters that have been written.

Mr. President, I ask unanimous consent to have some of them printed in the Record.

These groups are many. There are at least 28 national associations and construction unions that make up the Transportation Construction Coalition. I mentioned AASHTO. I didn't mention the Environmental Defense Fund and Sierra Club, which are also in opposition to the Sessions amendment. You don't see that many groups together, construction groups, unions, environmental groups, local governments, all standing together on the same amendment; that is, in opposition to an amendment, in this case the Sessions amendment. This is one such occasion.

I have heard it said that we should not increase funding for this bill because the House will not agree to it. I ask my colleagues, are we not a separate body? That can be turned around. The House should not pass something because we might not agree to it. They are a body, we are a body. We have just as much right as they to indicate what we should do.

As I have said in this Chamber many times, legislating is the art of compromise. It is time for the administration and the House to demonstrate a willingness to work with the Senate on this bill. We are now ready to go to conference. We have less than 2 weeks until the expiration of the current extension of these programs. We have to get moving. The only chance we have to get this bill done is if we act quickly, reach an agreement soon on the funding levels in this bill, that once we have reached an agreement on the funding levels, I think virtually everything else will fall into place.

I urge my colleagues in the House and in the Senate, also in the executive branch, to work with us, find an agreeable funding level for these programs. We cannot afford to argue for months about this issue. We have tough decisions to make, and the time is now to make them. We cannot afford to govern by extensions. States and local governments and the construction community are already feeling the pain from six extensions we have had to date. The time is now to roll up our sleeves, get to conference, and send a bill to the President. Then we can help the American people in doing so.

I yield the floor.

Mr. President, I yield 2 more minutes to the Senator from Maryland.

Mr. President, after nearly 3 years and 6 temporary extensions, the Senate is on the verge of passing a monumental highway bill. We will provide over $295 billion that will create thousands of jobs and keep our transportation infrastructure healthy.

This legislation did not happen by itself--it took hard work and perseverance. First, I want to thank Senator Inhofe and Senator Jeffords, from the Environment and Public Works Committee, as well as Senator Bond, the chairman of the Subcommittee on Transportation and Infrastructure. They provided excellent leadership and I know their staff stayed up many a sleepless night.

For Senator Inhofe's staff, I want to thank Ruth Van Mark, James O'Keeffe, Nathan Richmond, Angie Giancarlo, Andy Wheeler, Marty Hall, Greg Murrill, Alex Herrgott, Rudy Kapichak, John Shanahan, Frank Fannon and Michele Nellenbach.

For Senator Jeffords' staff, I want to thank JC Sandberg, Ken Connolly, Alison Taylor, Jo-Ellen Darcy, Chris Miller, Margaret Wetherald, Mary Francis Repko, Malia Somerville, and Carolyn Dupree.

And for Senator Bond's staff, I want to thank Ellen Stein, John Stoody, and Heideh Shamoradi.

Senator Shelby and Senator Sarbanes also deserve recognition. They played an important role developing the transit title in this bill. I also want to thank my good friend Senator Grassley, the chairman of the Finance Committee, for his commitment to the transportation program.

Let me take a moment and speak about the hard work of the Finance Committee staff. The House bill simply did not provide enough money for our highway infrastructure. The Finance Committee faced a difficult task. We needed to find additional revenue, but we also needed to pay for it. As is the rule on the Finance Committee, we worked in a bipartisan spirit to find an extra $7.8 billion for the highway trust fund, and all of it is paid for.

I also want to thank some staff members in particular. I appreciate the cooperation we received from the Republican staff, especially Kolan Davis, Mark Prater, Elizabeth Paris, Christy Mistr, Ed McClellan, Dean Zerbe, John O'Neill, and Nick Wyatt.

I thank the staff of the Joint Committee on Taxation and Senate Legislative Counsel for their service.

I also thank my staff for their tireless effort and dedication, including Russ Sullivan, Patrick Heck, Bill Dauster, Kathy Ruffalo- Farnsworth, Matt Jones, Jon Selib, Anita Horn Rizek, Judy Miller, Melissa Mueller, Ryan Abraham, and Wendy Carey. I also thank our dedicated fellows, Mary Baker, Jodie Cruz, Cuong Huynh, Richard Litsey, Stuart Sirkin, and Brian Townsend.

Finally, I thank our hardworking interns: Rob Grayson, Emily Meeker and Waylon Mathern.

This legislation really was a team effort. I hope that we can keep working together as we move to conference and hopefully get this legislation done before the end of the month.

I agree with the comments made by my colleague, the chairman of the Environment and Public Works Committee. I understand the concerns raised by the Senator from Michigan. I appreciate his leadership and knowledge of transportation issues and I will continue to work with him as this bill progresses.

household goods movers

Mr. President, how much time is remaining on this side?

Thirteen. I will be brief.

Mr. President, I thank all my colleagues. This was a consequence of both sides working together--big States, small States. It is now time to get to conference. It is also a good example of what we can do if we do not have this filibuster issue hanging over our heads. We can work together. We can get things done. I very much hope Senators recognize this because afterwards, it may not always be this way.

Mr. President, it is quite clear, especially based upon the vote on the point of order yesterday where 76 Members of this body voted to waive that point of order indicating their support for this program, that there is not a lot of controversy remaining on this bill. There are important amendments, clearly, that will be offered by Members, but I believe all of us in this body know that this bill must be passed and must be passed quickly. It should be passed today, and it probably will be passed today, both because it is important and also to avoid the May 31 date when current law expires. Hopefully, we will get a conference that will bring back a conference report so we can pass this legislation and send it to the President's desk by that time.

There is one point I wish to make, though. There is some concern that this bill is not fair to every State. We hear this in the committee. We who are managing this bill hear that statement often from a lot of Senators. I understand it. Every Senator is doing what he or she should do, and that is to fight for his or her State. I compliment those Senators. It is our job as managers of the bill and also our job as a body to do the very best we can to be as fair as possible to all concerned and get this legislation passed.

I will say a word or two in defense of the Western States that are large in area but small in population as to why this national highway program is fair to us--I represent the State of Montana--and why it is also fair to some of the more populous States.

We do not have a lot of people in Montana. Our population density is about six people per square mile. There are not very many States with a population density lower than ours. We are

a huge State in area. In fact, the length across our State of Montana is as great as the distance from Washington, DC, to Chicago. It is that far to drive across Montana. In addition, if one were to overlay Montana over the New England States, the State of Montana would include New York and all the other New England States, and also include Pennsylvania. I think it would include about half of New Jersey. So it is a large area but very low in population density. The State of Arizona, for example, has 45 people per square mile. Montana, as I mentioned, has about six people per square mile.

This is a national program. We are trying to get all States included. New Jersey, I might add, has a population density of about 1,100 people per square mile. New York has about 401 people per square mile. Again, Montana has six people per square mile. This is a national highway program. We want Americans to be able to travel freely across all States, the more populated States and also the less populated States. We want our commerce to travel nationwide, for truckers to be able to drive their vehicles across the United States virtually unimpeded. We do not want a situation where some States have the resources to build nice new highways and other States, just because there aren't any people there, do not have the resources to build highways, so it would be an uneven system.

Clearly, not everybody is unhappy. We have done the best we can to make this as balanced as it could possibly be. I think the vote yesterday, while it is not a direct vote, is an indirect indication that most Senators are pretty satisfied. When 76 Senators vote to waive the point of order that was made yesterday, that is a vote in favor of the highway bill. I think that is a pretty good indication this is a fair and balanced bill.

Different States have different State gasoline taxes to help pay for the highways in their States, matching along with the Federal contributions. We in the State of Montana pay a lot also per capita in our contributions to State and Federal highway trust funds, a lot more than most other States. In our State of Montana we spend about $360 per person per year in contributions to the highways. The national average is about $250 per person per year. We in Montana spend $360 per person per year. I point out that the folks in Arizona are actually below the average. The contributions the people in Arizona pay to the highway trust fund, both to the State and Federal highway trust funds, is about $235 per Arizonan per year. That is below the national average.

That is fine. That is a decision in large part the people in Arizona are making because of their State gasoline taxes. But it is also a consequence of a lot of other factors in the formula for the States. The long and short of it is Arizonans pay less than the national average per capita in their contributions to Federal and State highway funds, whereas folks in other States pay much more. Montanans, as I mentioned, pay $360. South Dakotans pay a lot more for highways, more than the national average. People in South Dakota pay about $312 per person. It is interesting--New Yorkers actually are very low. New Yorkers pay only about $152 per person in their contributions to the highways in the State of New York. That is half what it is in some other States.

Everybody can bring out figures and statistics. But I do think, for the sake of equity and fairness, it makes sense to get a good bit of these statistics out in the open, on the record, so we all understand and realize it is not a perfect bill, but it is a bill that by and large accomplishes what it is intended to accomplish--that is provide the resources so we can build and maintain our highways, our mass transit, and some of the other programs affiliated with the highway program.

I thank the chairman, who is doing a great job managing this bill. I also very much thank Senator Jeffords, the ranking member of the Environment and Public Works Committee, for excellent leadership. Also I give special thanks to my colleague on the Finance Committee, Senator Grassley. He and I have worked closely together to provide the revenue for this bill and it is basically through gasoline taxes and other excise taxes.

I remind my colleagues this legislation before us does not add to the Federal deficit, not at all. In fact, it reduces the Federal deficit. It reduces the Federal deficits; that is, our national debt, by about $14 billion over 10 years. We reduce the national debt--not by a lot, but we reduce it. We do not add to the debt. We reduce the debt by about $14 billion over 10 years.

Those who are concerned that this is a spending bill, that this bill adds to the national debt and deficit, that is not accurate. As a reminder, this bill does not add at all to Federal deficit, not one dime. It is all paid for.

I know a lot of proposals a lot of Senators have, either to lower taxes or spend money on something, are not paid for. This big highway program is all paid for. It is jobs for America. It is infrastructure for America so we Americans can live the life we want to lead, have the highways we want to have, and compete in the modern world and off in the future with a good highway system.

Mr. President, I yield whatever time the Senator from Minnesota desires.

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

Mr. President, I cannot commend the chairman of the Environment and Public Works Committee enough. He has worked extremely hard on this legislation. He is exactly right, if we are going to finish this bill, it is incumbent upon Senators to bring their amendments to the floor. It is the only way we are going to finish this bill.

As Mr. Inhofe, the Senator from Oklahoma, is imploring Senators to come down, I very much hope they heed his words. I thank him for those words because it is so important to get this legislation done now. It is Thursday afternoon, and it seems to me there is a lot of time to get most of this bill done today.

Rules Of The Road On Judicial Nominations

Mr. President, this Nation's fast transportation system works. Why does it work? Because every day millions of individuals choose to abide by the rules of the road. On our Nation's highways, millions of people safely move great distances, at great speeds, in no small part because drivers respect other drivers and abide by the rules that oblige them to stay within the white and yellow lines painted on concrete and asphalt.

When you stop to think about it, it is incredible. Here are thousands of pounds in one car and another car hurtling toward each other, at high speeds, yet they do not hit each other. They miss because the drivers know they must stay, in America, on the right side of the road, in their lane, which prevents a catastrophe. It is amazing when you stop to think about it.

When drivers come to an intersection with a red and white stop sign, what happens? Drivers stop. Those of us on a cross street depend on drivers stopping. The other cars at a stop sign on other streets of the intersection also depend on that.

When folks come to a red light, they stop. They wait for a green light. They let the cars come through from the other direction. Few things create more danger in traffic than running a red light.

Mr. President, the Senate works much the same way. The Senate gets things done because day in and day out Senators choose to abide by the Senate's rules. The Senate has rules. We abide by them, and that enables us to get things done.

Every year, the Senate confirms hundreds of nominations, addresses hundreds of amendments, and enacts hundreds of laws because Senators respect other Senators and abide by the rules of the road.

In the 108th Congress alone, the Senate confirmed nearly 1,800 nominations, agreed or disagreed to nearly 1,800 amendments, and enacted nearly 500 laws. Yet in the 108th Congress, the Senate conducted just 675 rollcall votes.

So what does that mean? That means in the 108th Congress alone, the Senate made more than 4,000 decisions with fewer than 700 rollcall votes. In the 108th Congress, the Senate made more than 3,300 decisions by voice vote or by unanimous consent.

These numbers demonstrate what most Senators know in their bones: Five times out of six the Senate gets things done not by confrontation but by Senators abiding by the rules of the road and cooperating with other Senators.

That is why it is so troubling that some in this Senate now threaten to try to change the Senate rules by breaking the rules. They plan to disregard the rules and disregard the precedents. They want to run the red light.

The Constitution gives the Senate the power to set its own rules. Article I, section 5, of the Constitution says:

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

.

The Senate has determined its rules through adopting the standing rules of

the Senate. The Senate has readopted or made general revisions of its rules only seven times since 1789. The most recent general revision was in 1979.

The standing rules of the Senate continue from Congress to Congress. As Senate rule V says:

The rules of the Senate shall continue from one Congress to

the next Congress unless they are changed as provided in

these rules.

Rule V: ``The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.''

Now, Senators have the right to debate changes to the rules. Standing rule VIII spells out that, even under circumstances where Senators may not normally debate:

motions to proceed to the consideration of any motion,

resolution, or proposal to change any of the Standing Rules

of the Senate shall be debatable.

Standing rule XXII provides the procedure for bringing debate to a close on:

any measure, motion, [or] other matter pending before the

Senate.

Senate rule XXII provides that ``any . . . matter'' includes nominations. That is how it is that Senators can debate at length any nomination that comes before the Senate, unless 60 Senators vote to bring that debate to a close.

And ``any measure . . . [or] matter'' within the meaning of rule XXII on debate also includes a proposal to change the standing rules of the Senate because rule XXII of the Senate's standing rules spells out the procedure for changing the standing rules. When it addresses bringing debate to a close through cloture, rule XXII says:

[O]n a measure or motion to amend the Senate rules . . .

the necessary affirmative vote shall be two-thirds of the

Senators present and voting.

That is rule XXII. That is in the Senate rules, which continue over from Senate to Senate.

The Senate's rules, thus, provide a procedure for changing the rules. That procedure involves the regular legislative process. That procedure involves fair and potentially extended debate. And that procedure requires, if it comes to extended debate, ``the . . . affirmative vote . . . [of] two-thirds of the Senators present and voting.''

That is the way Senators can change the rules, if they choose to respect other Senators, if they choose to abide by the rules of the road, if they choose not to run that red light.

But what some are talking about is very different. What some are talking about is using brute force to change the rules. What some are talking about is running the red light.

Here is what they would do. They would use the raw power of the Vice President to sit in the chair of the Presiding Officer. They would have the Vice President make a ruling that bypassed the Senate's rules for amending the Senate's rules. They would have the Vice President make a ruling that bypassed the Senate rules for how long Senators could debate. They would have the Vice President make a ruling that broke the Senate's rules.

Now, article I, section 3, of the Constitution provides:

The Vice President of the United States shall be President

of the Senate. . . .

But that does not mean that the Vice President can make up the Senate's rules anew every day. The Vice President, just like any Senator, must abide by article I, section 5, of the Constitution, when it says:

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

.

And when the Vice President acts as President of the Senate, the Vice President, just like any Senator, must abide by the standing rules of the Senate. To do otherwise, would be an abuse of power.

Mr. President, I urge my colleagues to resist those who would break the rules to change the rules.

Sir Thomas More, the British statesman and Lord Chancellor, resisted King Henry VIII when More felt that Henry had broken the law. In Robert Bolt's great play about More called ``A Man for All Seasons,'' More speaks about the importance of abiding by the law.

The character William Roper asks More:

So now you'd give the Devil benefit of law?

More counters:

Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper replies:

I'd cut down every law in England to do that!

More responds:

Oh? And when the last law was down, and the Devil turned round on you where would you hide . . . , the laws all being flat? This country's planted thick with laws from coast to coast . . . and if you cut them down--and you're just the man to do it--d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

The Senate's rules protect us all. They protect the ability of the Senate to get things done through working together, not through majorities that cut down all the opposition.

For two centuries, the Senate's rules have protected the rights of the minority party, for Democrats and Republicans alike. After two centuries, it would be a mistake to cut down those rules.

At the center of that forest of Senate rules are two mighty oaks. But don't take my word for it. Let me quote the Senate majority leader.

In a forward that the senior Senator from Tennessee, the majority leader, wrote to a book published last year entitled ``Senate Procedure and Practice,'' the majority leader wrote:

[A]bove all, together the Senate's rules and practices form

a whole. It is a whole that faithfully reflects the Framer's

design and ambition for the body. It is a whole that remains

true to the Senate's two paramount values: unlimited debate

and minority rights.

``[U]nlimited debate and minority rights.''

``[U]nlimited debate'' allows Senators to protect ``minority rights.'' The Senate's rules thus help to protect personal rights and liberties. The Senate's rules help to ensure that no one party has absolute power. The Senate's rules help to give effect to the Framers' conception of checks and balances.

Even law school dean and former judge and special prosecutor Kenneth Starr told CBS News that changing unlimited debate might damage the Senate. He said:

It may prove to have the kind of long-term boomerang

effect, damage on the institution of the Senate that

thoughtful Senators may come to regret.

The Senate's right of unlimited debate is particularly important in the context of nominations for the lifetime jobs of Federal judges. The Senate's involvement in the confirmation of judges has helped to ensure that nominees have had the support of a broad political consensus. The Senate's involvement has helped to ensure that the President could not appoint extreme nominees. The Senate's involvement has helped to ensure that judges have been freer of partisanship and more independent.

The Framers wanted the courts to be an independent branch of government, helping to create the Constitution's intricate forest of checks and balances. The Senate's involvement in the confirmation of judges has helped to ensure that the judiciary can be that more independent branch. And that independence of the judiciary, in turn, has helped to ensure the protection of personal rights and liberties from the winds of temporary majorities.

It is easy to push down the accelerator and cross that white line of paint, running across the concrete or asphalt. It is easy to push down the accelerator to run through that stop sign. It is easy to push down the accelerator and run through that red light.

But once one has been hit by a car running a red light, can one ever look at an intersection the same way?

The Senate works because, day in and day out, Senators choose to respect other Senators and abide by the Senate's rules of the road. If and when the Vice President and Senators start breaking those rules to change the rules, the Senate will never be the same. Once they run that red light, the rule of the road can never be the same.

I urge my colleagues to slow down, take their foot off the accelerator, and stop, before it's too late.

I yield the floor and suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the privilege of the floor be granted to Emily Meeker, Rob Grayson, Waylon Mathern, and Jorlie Cruz for the remainder of the consideration of S. 732.

Mr. President, I rise today to join Chairman Grassley in introducing the Hospital Fair Competition Act of 2005.

This bill, based primarily on recommendations of the Medicare Payment Advisory Commission (MedPAC), will improve the accuracy of Medicare's inpatient hospital prospective payment system (PPS); prevent the establishment of new specialty hospitals to which physician-owners can self-

refer, while allowing existing physician-owned specialty hospitals to continue with restrictions; and allow ``gainsharing'' arrangements to foster improved physician-hospital efficiency. This legislation is important for patients, taxpayers, and the Medicare program, and I urge my colleagues to support it.

About 17 months ago, Congress passed the Medicare Modernization Act-- the MMA. This 400-page bill included many important provisions, including long-awaited outpatient drug benefits under Medicare.

The MMA also included a small provision--Section 507--related to the construction of physician-owned specialty hospitals. These facilities specialize in cardiac, orthopedic or general surgical care, and are partly- or wholly-owned by physicians. The provision was a response to growing concerns over physician self-referral, and placed a moratorium on the construction of new, physician-owned specialty hospitals, while ``grandfathering'' existing facilities and those in development.

Having reviewed several independent analyses on this issue, I believe Congress was right to place a moratorium on specialty hospital construction. And I also believe that moratorium should effectively be extended permanently, while allowing existing facilities to continue operating in their current capacity.

Some view specialty hospitals as innovative, focused factories for high-quality, specialized care. Advocates for these facilities say that by focusing on a limited number of services, specialty hospitals provide excellent care at a good price, while adding competition to the health care marketplace.

Others say specialty hospitals flourish because they exploit a Medicare loophole allowing physician-owners to select patients who are healthier and, therefore, more profitable.

For my part, I don't want to stand in the way of innovation or competition. For example, I'm glad that Congress brought innovation to Medicare in the form of outpatient drug benefits. That was long overdue.

And hospitals and physicians should work together in innovative ways to improve efficiency in health care. The U.S. spends twice as much--or more--per-person on health care compared to any other developed country. And yet, our health outcomes are worse than theirs. We should get a better bang for our health-care buck, and we can take steps to that end by encouraging quality and accountability in health care.

That's why I am pushing to advance incentives for quality improvement in Medicare, so patients--and taxpayers--get the most for their money. I introduced legislation last year to require that Medicare pay dialysis providers and Medicare managed care plans based on the quality of care they provide. And I am working on legislation to extend these principles of paying for quality to other parts of Medicare.

As for competition, I'm all for it--as long as it's carried out on a level playing field. But when it comes to physician ownership of specialty hospitals, I'm not convinced the playing field is level. That's because physicians alone choose where patients go on the playing field--either to community hospitals or specialty hospitals. Some liken physician-owners of specialty hospitals to coaches who choose the starting lineup for both teams--in this case, the specialty hospital team and the community hospital team.

And for the third time, a Federal agency has told us that the healthiest teams, that is, the most profitable patients, end up at physician-owned specialty hospitals.

In 2003, the non-partisan Government Accountability Office (GAO) reported that, by and large, specialty hospitals care for relatively healthier patients than their community hospital counterparts. GAO surveyed 25 specialty hospitals, and found that 21 of the 25 had a less acute mix patients than community hospitals. GAO determined that of the hospitals studied, 17 percent cardiac patients seen by specialty hospitals could be classified as severe cases, compared with 22 percent in general hospitals. And about 5 percent of orthopedic cases in specialty hospitals were severe, compared with 8 percent in community hospitals.

Earlier this year, on March 8, MedPAC issued its MMA-mandated report on specialty hospitals, and arrived at findings similar to those of the GAO. MedPAC found that despite shorter lengths of stay, physician-owned specialty hospitals are not more cost efficient than community hospitals. MedPAC found that specialty hospitals tend to treat lower shares of Medicaid patients than community hospitals. And, just as GAO did, MedPAC found that specialty hospitals treat patients who are generally less sick--and therefore, more profitable--compared to community hospitals.

And while the Department of Health and Human Services has not officially issued its MMA-mandated report on the topic--but is expected to shortly--HHS reported on March 8 that, based on the small number of facilities it studied, specialty hospitals tend to care for a healthier patient population than their community hospital counterparts.

I believe the phenomenon of specialty hospitals treating healthier patients is the result of a loophole in the Stark self-referral law. This loophole--related to the ``whole hospital exception''--is one that should be closed. If it is not closed, Congress will effectively sanction the practice of physician self-referral that has been prohibited for years.

In 1989, the HHS Inspector General reported that patients of referring physicians who owned or invested in independent clinical labs received 45% more lab services than Medicare patients in general.

In 1992, a study found that physical therapy visits per patient were 39% to 45% higher in facilities with physician ownership compared to those without. In short, the authors of the study found that utilization and charges per-patient were higher when facilities were owned by physicians with an ownership interest.

In response to these studies and others like them, Congress passed the Stark laws, to prevent physician self-referral, first in the area of clinical labs, and subsequently in 10 other areas, including physical therapy and certain imaging procedures.

But the Stark laws did not address the issue of physician self- referral to specialty hospitals. In part, that's because there weren't many specialty hospitals at the time. As the GAO pointed out in its 2003 report, the vast majority of specialty hospitals were built in 1992 or later.

Instead, the Stark law included a provision that has come to be known as the ``whole hospital exception.'' While the Stark law prohibits physicians with ownership interest in only a hospital department from referring patients to that department, the law does allow physicians to refer to a facility they partially own, under two conditions. First, the physician must have admitting privileges in that hospital. Second, the physician must have a financial interest in the ``whole hospital,'' not just a department of the hospital.

As the GAO explained in 2003:

``The premise [of the whole hospital exception] is that any

referral or decision made by a physician who has a stake in

an entire hospital would produce little personal economic

gain because hospitals tend to provide a diverse and large

group of services. However, the Stark law does prohibit

physicians who have ownership interest only in a hospital

subdivision from referring patients to that subdivision. With

respect to specialty hospitals, the concern exists that, as

these hospitals are usually much smaller in size and scope

than general hospitals and closer in size to hospital

departments, the exception to Stark could allow physician

owners to influence their hospitals'--and therefore their own

financial gain through practice patterns and referrals.''

The problem with the ``whole hospital'' loophole is that it treats a 10-bed surgical facility the same as a 500-bed community hospital, even though that 10-bed facility more resembles a department of the 500-bed hospital than it does the hospital itself. This loophole is unfair, and our bill closes it, by preventing the establishment of new specialty hospitals to which physician-owners can self-refer.

Let me note that our bill does nothing to prevent the construction of new specialty hospitals--as long as self-referral is not part of the business model. Hospitals specializing in one type of care or another have existed in this country for years, and should be encouraged--as long as their owners and referrers are not one and the same.

Opponents of this bill will likely make at least three claims. First, they

will state that preventing the construction of new, physician-owned specialty hospitals is anticompetitive. Second, they will suggest that since the average physician-owner's share in a specialty hospital is small, economic incentives to self-refer are minimal. Third, they will claim the bill thwarts health care quality. Let me take these claims in turn.

As I stated previously, I am all for competition--as long as it's fair. But I don't think it's fair to further a system in which physician-owners can send healthier and more profitable patients to facilities they own, while sending sicker, less-profitable ones to hospitals they don't own. There's a reason Congress acted to mitigate the effects of physician self referral over 15 years ago, and I see no reason why that principle should not be extended to the specialty hospital setting.

On the issue of economic incentives, some argue that physician self- referral to specialty hospitals is a non-issue, since physicians typically own a very small share of a particular facility. In fact, MedPAC found that in about one-third of specialty hospitals they surveyed, the largest share owned by a single physician was just two percent. And as a group, physicians own just over a third of the typical heart hospital. But MedPAC also pointed out that about one- third of orthopedic and surgical hospitals were owned almost entirely by their physicians. Perhaps more important, MedPAC showed that even a relatively small ownership interest can reap large profits for an individual physician investor. Page 21 of MedPAC's March report on specialty hospitals says:

What is the order of magnitude of physicians financial

incentives to increase utilization when they own a hospital?

What follows is a hypothetical example of the marginal profit

associated with a group of cardiologists each referring just

one additional patient (above the current patient load) for

coronary artery bypass graft (CABG) surgery. In fiscal year

2002, the base payment for CABG surgery with cardiac

catheterization (DRG 107) was roughly $24,000. Our

examination of Medicare cost reports and hospital financial

statements suggests that variable costs equal approximately

60 percent of the DRG payment, roughly $14,400. Hence the

marginal profit--payments minus variable cost--would be

$9,600 per patient ($24,000-$14,400). If 10 cardiologists

owned a 3 percent interest each and they all induced one

additional surgery per year, each cardiologist's income would

increase by $2,880 ($9,600 3% 10).''

In other words, even a small ownership share--just three percent--can provide a strong profit motive--and a strong incentive toward self- referral.

Finally, let me address the third claim that will likely be made against this bill--that it thwarts the provision of quality care. Specialty hospital advocates claim that due to the focused nature of their mission, physician-owned specialty hospitals provide better quality and outcomes than their community hospital counterparts. But recently the New England Journal of Medicine published a study showing that patients undergoing certain heart procedures in specialty hospitals were less likely to have coexisting conditions than those being treated at general hospitals. The authors of the study stated, ``. . . given that we found no significant differences in outcomes between specialty and general hospitals with similar volumes or between specialty cardiac hospitals and specialized general hospitals, it could be argued that the specialty-hospital model itself does not yield better outcomes.'' They also said, ``. . . our study provides no definitive evidence that cardiac specialty hospitals provide better or more efficient care than general hospitals with similar procedural volumes.''

In short, there is solid evidence that despite being less efficient, physician-owned specialty hospitals care for healthier, more-profitable patients, leaving community hospitals to care for sicker, less- profitable ones. Economic incentives toward physician self-referral in specialty hospitals are significant. And there is slim evidence that specialty hospitals provide better care than community hospitals.

Given this evidence, it's clear that Congress should not facilitate the construction of more physician-owned specialty hospitals. And while we support ``grandfathering'' existing facilities, let me make clear that we do not intend to create another grandfathering period if the legislation is not enacted before June 8, 2005. The intent of this bill, even if it passes after June 8, is to effectively make permanent the MMA-mandated moratorium.

But this bill does more than simply prevent the establishment of new, physician-owned specialty hospitals. It also takes steps to mitigate ill incentives in the inpatient PPS, by making the PPS more accurate for all providers of hospital care--community hospitals and `grandfathered' specialty hospitals alike.

Medicare spends about $100 billion per year on inpatient hospital services, and it's important that this system be accurate. Accordingly, MedPAC recommended a number of steps to improve the accuracy of the Medicare inpatient payment system. These recommendations should mitigate incentives for all hospitals to choose healthy patients over sick ones, and to focus on some diagnoses at the expense of others.

Medicare pays hospitals for inpatient services based on roughly 500 Diagnosis Related Groups (DRGs), which bundle services needed to treat a patient with a particular disease. DRGs cover most routine operating costs attributable to patient care, including routine nursing services, room and board, and diagnostic and ancillary services. Under current law, just over five percent of the base payment for all DRGs is set aside for inpatient outlier payments, even though some DRGs have almost no outlier cases. The Hospital Fair Competition Act directs the Secretary to adjust the DRG relative weights to account for differences in the prevalence of high-cost outlier cases, thereby removing their disproportionate impact on the payment system.

The bill also improves accuracy of the DRG weights. Currently DRG weights are based on the national average of hospital charges for a particular DRG. The rate of growth for these charges may vary dramatically, depending on the service. For example, MedPAC has found that hospital markups for ancillary services (e.g., supplies, operating room time) tend to be higher than those of routine services (e.g., room and board, nursing care). As these ancillary and routine charges grow at different rates, the DRGs reflect that growth, gradually skewing the system away from the true costs of providing care. In short, a charge- based system causes Medicare to pay too much for some services, not enough for others. The Hospital Fair Competition Act directs the Secretary to substitute the charge-based system with one based on hospitals' costs, as well as base the DRG weights on the national average of hospitals' relative values in each DRG.

Mind you, we believe that the Secretary currently has the authority to make the payment changes outlined above. The Hospital Fair Competition Act simply directs the Secretary to do so. We also believe the Secretary has the authority to promulgate regulations defining what a ``whole hospital'' is. When Congress passed the ``whole hospital exception'', it did not intend to allow self-referral to facilities that are effectively the equivalent of a hospital wing or department. We believe the Secretary can and should exercise his authority to close the ``whole hospital'' loophole by regulation.

Mr. President, some say that the proliferation of physician-owned specialty hospitals is a function of physicians' desire for control over their workplace. They argue that physicians typically have no say in day-to-day hospital operations, and thus little incentive to improve the quality or efficiency of the care they provide in the hospital. MedPAC's recommendations for ``gainsharing'' stand to alleviate some of that concern, by giving physicians more control over their workplace.

Gainsharing arrangements allow physicians and hospitals to improve hospital efficiency without the undesirable effects of physician self- referral. In a gainsharing arrangement, hospitals and physicians share cost-savings gained by means such as streamlining the purchase of medical devices, substituting less-costly items used in surgical procedures, and maximizing operating room efficiency. While gainsharing arrangements must be developed carefully so as not to compromise quality of patient care, gain sharing has the potential to align physician-hospital incentives so that care

can be delivered in the most cost-effective manner.

I realize that gainsharing arrangements are not a panacea toward improving physician-hospital relations. We can and should do more to give providers of all types a better stake in improving their workplace and the quality of care they provide. That's why I am pushing initiatives to tie Medicare payment to quality, so that--unlike the current system--the best providers are not paid the same rates as mediocre ones. This system of paying for quality stands to improve accountability across the spectrum of Medicare provider types, and give both patients and the government more for their money.

We all know that Medicare's long-term fiscal future is much in doubt. Hardly a day passes without a warning about Medicare's finances and the retirement of the Baby Boom generation that will complicate the long- term financial picture of the program.

Given these warnings, it's imperative that we make the most of the resources at hand, and--where possible--make Medicare a better more responsible buyer of health care. By leveling the playing field regarding patient referrals; improving the accuracy of Medicare's inpatient hospital payments; and giving physicians a larger stake in their hospital workplaces, this bill stands to do that.

Chairman Grassley and I believe these changes will go a long way toward improving much of what ails hospital payment under Medicare, and we urge our colleagues' support for this important legislation.

Mr. President, I rise today to join Chairman Grassley in introducing the Hospital Fair Competition Act of 2005.

This bill, based primarily on recommendations of the Medicare Payment Advisory Commission (MedPAC), will improve the accuracy of Medicare's inpatient hospital prospective payment system (PPS); prevent the establishment of new specialty hospitals to which physician-owners can self-

refer, while allowing existing physician-owned specialty hospitals to continue with restrictions; and allow ``gainsharing'' arrangements to foster improved physician-hospital efficiency. This legislation is important for patients, taxpayers, and the Medicare program, and I urge my colleagues to support it.

About 17 months ago, Congress passed the Medicare Modernization Act-- the MMA. This 400-page bill included many important provisions, including long-awaited outpatient drug benefits under Medicare.

The MMA also included a small provision--Section 507--related to the construction of physician-owned specialty hospitals. These facilities specialize in cardiac, orthopedic or general surgical care, and are partly- or wholly-owned by physicians. The provision was a response to growing concerns over physician self-referral, and placed a moratorium on the construction of new, physician-owned specialty hospitals, while ``grandfathering'' existing facilities and those in development.

Having reviewed several independent analyses on this issue, I believe Congress was right to place a moratorium on specialty hospital construction. And I also believe that moratorium should effectively be extended permanently, while allowing existing facilities to continue operating in their current capacity.

Some view specialty hospitals as innovative, focused factories for high-quality, specialized care. Advocates for these facilities say that by focusing on a limited number of services, specialty hospitals provide excellent care at a good price, while adding competition to the health care marketplace.

Others say specialty hospitals flourish because they exploit a Medicare loophole allowing physician-owners to select patients who are healthier and, therefore, more profitable.

For my part, I don't want to stand in the way of innovation or competition. For example, I'm glad that Congress brought innovation to Medicare in the form of outpatient drug benefits. That was long overdue.

And hospitals and physicians should work together in innovative ways to improve efficiency in health care. The U.S. spends twice as much--or more--per-person on health care compared to any other developed country. And yet, our health outcomes are worse than theirs. We should get a better bang for our health-care buck, and we can take steps to that end by encouraging quality and accountability in health care.

That's why I am pushing to advance incentives for quality improvement in Medicare, so patients--and taxpayers--get the most for their money. I introduced legislation last year to require that Medicare pay dialysis providers and Medicare managed care plans based on the quality of care they provide. And I am working on legislation to extend these principles of paying for quality to other parts of Medicare.

As for competition, I'm all for it--as long as it's carried out on a level playing field. But when it comes to physician ownership of specialty hospitals, I'm not convinced the playing field is level. That's because physicians alone choose where patients go on the playing field--either to community hospitals or specialty hospitals. Some liken physician-owners of specialty hospitals to coaches who choose the starting lineup for both teams--in this case, the specialty hospital team and the community hospital team.

And for the third time, a Federal agency has told us that the healthiest teams, that is, the most profitable patients, end up at physician-owned specialty hospitals.

In 2003, the non-partisan Government Accountability Office (GAO) reported that, by and large, specialty hospitals care for relatively healthier patients than their community hospital counterparts. GAO surveyed 25 specialty hospitals, and found that 21 of the 25 had a less acute mix patients than community hospitals. GAO determined that of the hospitals studied, 17 percent cardiac patients seen by specialty hospitals could be classified as severe cases, compared with 22 percent in general hospitals. And about 5 percent of orthopedic cases in specialty hospitals were severe, compared with 8 percent in community hospitals.

Earlier this year, on March 8, MedPAC issued its MMA-mandated report on specialty hospitals, and arrived at findings similar to those of the GAO. MedPAC found that despite shorter lengths of stay, physician-owned specialty hospitals are not more cost efficient than community hospitals. MedPAC found that specialty hospitals tend to treat lower shares of Medicaid patients than community hospitals. And, just as GAO did, MedPAC found that specialty hospitals treat patients who are generally less sick--and therefore, more profitable--compared to community hospitals.

And while the Department of Health and Human Services has not officially issued its MMA-mandated report on the topic--but is expected to shortly--HHS reported on March 8 that, based on the small number of facilities it studied, specialty hospitals tend to care for a healthier patient population than their community hospital counterparts.

I believe the phenomenon of specialty hospitals treating healthier patients is the result of a loophole in the Stark self-referral law. This loophole--related to the ``whole hospital exception''--is one that should be closed. If it is not closed, Congress will effectively sanction the practice of physician self-referral that has been prohibited for years.

In 1989, the HHS Inspector General reported that patients of referring physicians who owned or invested in independent clinical labs received 45% more lab services than Medicare patients in general.

In 1992, a study found that physical therapy visits per patient were 39% to 45% higher in facilities with physician ownership compared to those without. In short, the authors of the study found that utilization and charges per-patient were higher when facilities were owned by physicians with an ownership interest.

In response to these studies and others like them, Congress passed the Stark laws, to prevent physician self-referral, first in the area of clinical labs, and subsequently in 10 other areas, including physical therapy and certain imaging procedures.

But the Stark laws did not address the issue of physician self- referral to specialty hospitals. In part, that's because there weren't many specialty hospitals at the time. As the GAO pointed out in its 2003 report, the vast majority of specialty hospitals were built in 1992 or later.

Instead, the Stark law included a provision that has come to be known as the ``whole hospital exception.'' While the Stark law prohibits physicians with ownership interest in only a hospital department from referring patients to that department, the law does allow physicians to refer to a facility they partially own, under two conditions. First, the physician must have admitting privileges in that hospital. Second, the physician must have a financial interest in the ``whole hospital,'' not just a department of the hospital.

As the GAO explained in 2003:

``The premise [of the whole hospital exception] is that any

referral or decision made by a physician who has a stake in

an entire hospital would produce little personal economic

gain because hospitals tend to provide a diverse and large

group of services. However, the Stark law does prohibit

physicians who have ownership interest only in a hospital

subdivision from referring patients to that subdivision. With

respect to specialty hospitals, the concern exists that, as

these hospitals are usually much smaller in size and scope

than general hospitals and closer in size to hospital

departments, the exception to Stark could allow physician

owners to influence their hospitals'--and therefore their own

financial gain through practice patterns and referrals.''

The problem with the ``whole hospital'' loophole is that it treats a 10-bed surgical facility the same as a 500-bed community hospital, even though that 10-bed facility more resembles a department of the 500-bed hospital than it does the hospital itself. This loophole is unfair, and our bill closes it, by preventing the establishment of new specialty hospitals to which physician-owners can self-refer.

Let me note that our bill does nothing to prevent the construction of new specialty hospitals--as long as self-referral is not part of the business model. Hospitals specializing in one type of care or another have existed in this country for years, and should be encouraged--as long as their owners and referrers are not one and the same.

Opponents of this bill will likely make at least three claims. First, they

will state that preventing the construction of new, physician-owned specialty hospitals is anticompetitive. Second, they will suggest that since the average physician-owner's share in a specialty hospital is small, economic incentives to self-refer are minimal. Third, they will claim the bill thwarts health care quality. Let me take these claims in turn.

As I stated previously, I am all for competition--as long as it's fair. But I don't think it's fair to further a system in which physician-owners can send healthier and more profitable patients to facilities they own, while sending sicker, less-profitable ones to hospitals they don't own. There's a reason Congress acted to mitigate the effects of physician self referral over 15 years ago, and I see no reason why that principle should not be extended to the specialty hospital setting.

On the issue of economic incentives, some argue that physician self- referral to specialty hospitals is a non-issue, since physicians typically own a very small share of a particular facility. In fact, MedPAC found that in about one-third of specialty hospitals they surveyed, the largest share owned by a single physician was just two percent. And as a group, physicians own just over a third of the typical heart hospital. But MedPAC also pointed out that about one- third of orthopedic and surgical hospitals were owned almost entirely by their physicians. Perhaps more important, MedPAC showed that even a relatively small ownership interest can reap large profits for an individual physician investor. Page 21 of MedPAC's March report on specialty hospitals says:

What is the order of magnitude of physicians financial

incentives to increase utilization when they own a hospital?

What follows is a hypothetical example of the marginal profit

associated with a group of cardiologists each referring just

one additional patient (above the current patient load) for

coronary artery bypass graft (CABG) surgery. In fiscal year

2002, the base payment for CABG surgery with cardiac

catheterization (DRG 107) was roughly $24,000. Our

examination of Medicare cost reports and hospital financial

statements suggests that variable costs equal approximately

60 percent of the DRG payment, roughly $14,400. Hence the

marginal profit--payments minus variable cost--would be

$9,600 per patient ($24,000-$14,400). If 10 cardiologists

owned a 3 percent interest each and they all induced one

additional surgery per year, each cardiologist's income would

increase by $2,880 ($9,600 3% 10).''

In other words, even a small ownership share--just three percent--can provide a strong profit motive--and a strong incentive toward self- referral.

Finally, let me address the third claim that will likely be made against this bill--that it thwarts the provision of quality care. Specialty hospital advocates claim that due to the focused nature of their mission, physician-owned specialty hospitals provide better quality and outcomes than their community hospital counterparts. But recently the New England Journal of Medicine published a study showing that patients undergoing certain heart procedures in specialty hospitals were less likely to have coexisting conditions than those being treated at general hospitals. The authors of the study stated, ``. . . given that we found no significant differences in outcomes between specialty and general hospitals with similar volumes or between specialty cardiac hospitals and specialized general hospitals, it could be argued that the specialty-hospital model itself does not yield better outcomes.'' They also said, ``. . . our study provides no definitive evidence that cardiac specialty hospitals provide better or more efficient care than general hospitals with similar procedural volumes.''

In short, there is solid evidence that despite being less efficient, physician-owned specialty hospitals care for healthier, more-profitable patients, leaving community hospitals to care for sicker, less- profitable ones. Economic incentives toward physician self-referral in specialty hospitals are significant. And there is slim evidence that specialty hospitals provide better care than community hospitals.

Given this evidence, it's clear that Congress should not facilitate the construction of more physician-owned specialty hospitals. And while we support ``grandfathering'' existing facilities, let me make clear that we do not intend to create another grandfathering period if the legislation is not enacted before June 8, 2005. The intent of this bill, even if it passes after June 8, is to effectively make permanent the MMA-mandated moratorium.

But this bill does more than simply prevent the establishment of new, physician-owned specialty hospitals. It also takes steps to mitigate ill incentives in the inpatient PPS, by making the PPS more accurate for all providers of hospital care--community hospitals and `grandfathered' specialty hospitals alike.

Medicare spends about $100 billion per year on inpatient hospital services, and it's important that this system be accurate. Accordingly, MedPAC recommended a number of steps to improve the accuracy of the Medicare inpatient payment system. These recommendations should mitigate incentives for all hospitals to choose healthy patients over sick ones, and to focus on some diagnoses at the expense of others.

Medicare pays hospitals for inpatient services based on roughly 500 Diagnosis Related Groups (DRGs), which bundle services needed to treat a patient with a particular disease. DRGs cover most routine operating costs attributable to patient care, including routine nursing services, room and board, and diagnostic and ancillary services. Under current law, just over five percent of the base payment for all DRGs is set aside for inpatient outlier payments, even though some DRGs have almost no outlier cases. The Hospital Fair Competition Act directs the Secretary to adjust the DRG relative weights to account for differences in the prevalence of high-cost outlier cases, thereby removing their disproportionate impact on the payment system.

The bill also improves accuracy of the DRG weights. Currently DRG weights are based on the national average of hospital charges for a particular DRG. The rate of growth for these charges may vary dramatically, depending on the service. For example, MedPAC has found that hospital markups for ancillary services (e.g., supplies, operating room time) tend to be higher than those of routine services (e.g., room and board, nursing care). As these ancillary and routine charges grow at different rates, the DRGs reflect that growth, gradually skewing the system away from the true costs of providing care. In short, a charge- based system causes Medicare to pay too much for some services, not enough for others. The Hospital Fair Competition Act directs the Secretary to substitute the charge-based system with one based on hospitals' costs, as well as base the DRG weights on the national average of hospitals' relative values in each DRG.

Mind you, we believe that the Secretary currently has the authority to make the payment changes outlined above. The Hospital Fair Competition Act simply directs the Secretary to do so. We also believe the Secretary has the authority to promulgate regulations defining what a ``whole hospital'' is. When Congress passed the ``whole hospital exception'', it did not intend to allow self-referral to facilities that are effectively the equivalent of a hospital wing or department. We believe the Secretary can and should exercise his authority to close the ``whole hospital'' loophole by regulation.

Mr. President, some say that the proliferation of physician-owned specialty hospitals is a function of physicians' desire for control over their workplace. They argue that physicians typically have no say in day-to-day hospital operations, and thus little incentive to improve the quality or efficiency of the care they provide in the hospital. MedPAC's recommendations for ``gainsharing'' stand to alleviate some of that concern, by giving physicians more control over their workplace.

Gainsharing arrangements allow physicians and hospitals to improve hospital efficiency without the undesirable effects of physician self- referral. In a gainsharing arrangement, hospitals and physicians share cost-savings gained by means such as streamlining the purchase of medical devices, substituting less-costly items used in surgical procedures, and maximizing operating room efficiency. While gainsharing arrangements must be developed carefully so as not to compromise quality of patient care, gain sharing has the potential to align physician-hospital incentives so that care

can be delivered in the most cost-effective manner.

I realize that gainsharing arrangements are not a panacea toward improving physician-hospital relations. We can and should do more to give providers of all types a better stake in improving their workplace and the quality of care they provide. That's why I am pushing initiatives to tie Medicare payment to quality, so that--unlike the current system--the best providers are not paid the same rates as mediocre ones. This system of paying for quality stands to improve accountability across the spectrum of Medicare provider types, and give both patients and the government more for their money.

We all know that Medicare's long-term fiscal future is much in doubt. Hardly a day passes without a warning about Medicare's finances and the retirement of the Baby Boom generation that will complicate the long- term financial picture of the program.

Given these warnings, it's imperative that we make the most of the resources at hand, and--where possible--make Medicare a better more responsible buyer of health care. By leveling the playing field regarding patient referrals; improving the accuracy of Medicare's inpatient hospital payments; and giving physicians a larger stake in their hospital workplaces, this bill stands to do that.

Chairman Grassley and I believe these changes will go a long way toward improving much of what ails hospital payment under Medicare, and we urge our colleagues' support for this important legislation.

Mr. President, I am very pleased to join in offering the substitute amendment to this bill. This bill is called SAFETEA. It culminates many months of hard work. I commend the chairman, Chairman Inhofe, and Senator Bond, chairman of the transportation subcommittee, and especially the chairman and ranking member of the full committee, Senator Grassley and Senator Jeffords, for their hard work.

I especially thank my good friend, Senator Grassley. He is a good man. He is good to work with. He is pragmatic, practical, he cares, he wants good solutions, and he wants to advance the ball. The people of Iowa are very lucky to have him as their Senator. Senator Harkin is another great Senator from Iowa, but I particularly enjoy working with Senator Grassley. We have a strong working relationship and it means a lot to me personally.

This legislation is critical for Montana and also for the country as a whole. I cannot think of any other legislation that would have such a substantial effect on our Nation's economy. The current transportation program expired in September 2003. Since then, regrettably, Congress has had to enact extensions. We could not come up with a solid 6-year bill. We have had six extensions to the highway program--the most extensions in the history of the program.

Frankly, in addition to all of the substantive good provisions of the bill, it is very important to enact a full 5-year bill rather than going down the road with more and more extensions. The current extension expires at the end of this month, about 3 weeks from now. If we fail to meet the deadline, the program lapses and States will no longer receive their funds. We should not let that happen. We can and should do our work right away. We have already seen an entire construction season go by without a long-term bill. In Montana, we have a very short construction season. Winter weather prevents us from working on our roads all year long. We cannot afford any more delays.

Because Congress has not acted, States are letting fewer bids; it is that simple. Because Congress has not acted, contractors, suppliers, and other construction businesses have less business. Transportation projects are very complex. Any bumps along the way only compound them over time.

Another extension is not a solution. We need to act; we need to act right away. We should act on this bill and head to conference. By approving the substitute amendment and adding funding to the bill, we can speed the process to complete the conference.

While I supported reporting this bill out of the Environment and Public Works Committee because of a commitment made by others to the Republican leader, it was with the firm understanding I would offer an amendment to make substantial improvements to this bill, working in conjunction with other Senators.

That is why we are here today offering this important amendment, which is part of the underlying bill, to increase the authorization and spending levels in this bill.

Chairman Grassley and I have been working for 3 years to develop the financing for the Transportation bill. It is not a simple task. I am pleased to say the chairman and I have proposed a package that does several things.

First, we shore up the highway trust fund to ensure solvency during the life of this bill by providing over $7 billion in additional receipts during the authorization period.

Second, using these receipts, we increase investments in this Nation's infrastructure by $8.9 billion for the highway program and $2.3 billion for the transit program.

Third, we fully pay for the additional highway spending in this amendment. Repeating that, we fully pay for highway spending in this amendment. We do so in a responsible manner.

Let me take a couple moments to comment on the misperceptions and, frankly, outright distortions that I have heard about this amendment.

First, we do not raise gas taxes in this amendment. I will repeat that. We do not raise gasoline taxes.

We can increase resources to the highway trust fund without raising taxes. It is that simple. Don't be fooled by the hysteria of some who flatout oppose more funding for transportation and will say almost anything to defeat our efforts.

I have also heard people say this amendment transfers general fund money to the highway trust fund. That, too, mischaracterizes our proposal.

The other day, Secretary of Transportation Mineta made a very interesting statement. When he described our amendment to raise the investment in transportation, he said: ``There is a dark cloud looming on the horizon.''

But when his own Department estimated the unmet transportation needs in this country, the Transportation Department said there are more than $325 billion in unmet needs. That figure grows each and every day that we forego maintenance of the transportation system.

This amendment is no dark cloud. Rather, adopting this amendment will part the clouds that others have created over this bill and allow the sun to shine on this bill.

Let me lay out the facts.

The President's 2006 budget submission increased the funding proposed for this bill. While I believe that those levels are still artificially low, I want to acknowledge that effort.

Two efforts by the Finance Committee made possible the President's increased funding in its February budget. The administration's reliance on these developments then makes its criticism of this amendment now ring hollow.

The first reason the President was able to increase his highway funding request was the Finance Committee's work last year on fuel fraud and the ethanol credit.

The President's budget proposal depends on the increased dollars from the fuel fraud provisions and the volumetric ethanol credit that Congress enacted as part of the JOBS Act last year.

Over the years, the Senate spent many hours debating the merits of ethanol incentives. I believe the incentives are good agricultural policy and good energy policy.

But whether you favor the incentives or not, last year, Congress broadly agreed that the highway trust fund should not bear the burden of that subsidy. The volumetric ethanol tax credit in the JOBS bill eliminated that problem, and we do so here again today.

The Finance Committee also developed proposals to reduce fuel tax evasion. We tightened the rules for fuel transfers and increased penalties for noncompliance with the tax laws.

When Senator Grassley and I first introduced the ethanol changes and fuel fraud provisions, we heard some of the same comments and criticisms we hear today.

Yet enactment of these provisions has added more than $17 billion to the highway trust fund for the years 2005 through 2009. The President and the House could not have funded their current $284 billion proposals without those dollars.

Second, the President's 2006 budget submission also included what some call ``the refund proposal.'' This provision relates to the amount currently refunded to States, cities, and schools that are exempt from paying the Federal gas tax.

States, cities, and schools do not pay the Federal fuel tax. They are exempt. That is appropriate. They should be. Right now, when a State, city, or school fills its vehicle with taxed fuel, the organization is entitled to get a refund of the Federal excise tax. They get that refund.

Currently, the general fund pays that refund. Then the highway trust fund repays the general fund. That doesn't make sense.

All we are saying in this amendment is that the highway trust fund should not have to reimburse the general fund for the amount of the refund. It is that simple. Those are vehicles traveling on the highways. We do not raise taxes on State and local governments, not one penny.

Vehicles used by State and local governments still cause the same wear and tear on our roads as vehicles owned by entities that pay Federal gas taxes. So the highway trust fund should not have to bear the burden of the exemption.

Some in the administration, and others, call this an ``accounting gimmick.'' That is flatly not the case. The administration uses the same refund mechanism to pay for the President's Transportation bill.

If it was not an ``accounting gimmick'' in February, when the President submitted his budget, then it is not an ``accounting gimmick'' for Congress to use the same mechanism now. It is not a gimmick anyway.

In addition to the elements contained in the President's budget, let me briefly describe the other provisions that increase receipts in the highway trust fund.

The amendment will increase collections of present-law fuel taxes. The amendment will improve tax compliance with respect to blend stocks used in gasoline.

The proposal prevents the blending of untaxed chemicals with gasoline by imposing the Federal excise tax when blendstocks are removed from the bulk system.

We make sure that kerosene used on the highways is taxed as diesel fuel, and we improve the rules for tax-free fuel purchases by requiring appropriate certification that an entity is exempt from the fuel taxes.

The amendment also dedicates the gas-guzzler tax to the highway trust fund. Today this transportation excise tax goes to the general fund. That does not make any sense. It belongs in the highway trust fund. After all, these are vehicles that travel on the highways. It belongs in the highway trust fund with the rest of the Federal excise taxes that are imposed on vehicles and fuels. This proposal does not take current dollars out of the general fund, but when the guzzler tax is paid in the future, it will go to the highway trust fund.

The amendment maintains the integrity of the highway trust fund. The highway program will be paid entirely by transportation excise taxes to the highway trust fund. But because more transportation taxes will now rightfully go to the highway trust fund, there will be a gap to fill in the general fund.

We make the general fund whole by including revenue-raisers that are not related to highways. These are good policy loophole closers. Everybody would want to vote for these regardless, just standing alone. They are the sort of provisions the Senate has passed before.

All in all, it is a win-win situation. This bill pays for highways legitimately and replenishes the general fund legitimately.

On April 27, the majority leader stood on the Senate floor and said this about the Transportation bill:

I am confident by working together we can get this done,

and we can demonstrate reasonable fiscal restraint.

At the Finance Committee markup, I made that same statement that we would be responsible in this new funding amendment. We have done that. We have been responsible.

I commend my colleagues who voted for the Talent-Wyden amendment to this year's budget resolution. That amendment firmly stated that new receipts to the highway trust fund should be available and spent in this bill. Eighty-one of us supported that amendment. That is an overwhelming majority of the Senate supporting additional transportation funding in this bill, all paid for.

Mr. President, I say to my colleagues, this amendment provides the funding they voted for in the budget resolution. Each of the 81 Senators who supported the budget resolution amendment should support this new money.

Why are we working so hard to increase the funding in this bill? Let me explain why we have not just given in and gone along.

Every billion dollars in infrastructure investment creates nearly 47,500 jobs--every billion dollars. That is important. Over the life of the bill, we will sustain more than 2 million good-paying jobs.

Highway jobs are jobs that stay in the United States. You cannot export highway jobs. You cannot outsource highway jobs. They are not shipped overseas. This bill will affect all Americans whether they build the road or drive on the road.

Our economy could sure use a boost, and one certain way is to produce jobs through this bill. It is a jobs bill.

This bill is an economic engine for my State of Montana. The last Transportation bill, TEA-21, provided more than $1.2 billion in my State and helped sustain more than 11,000 jobs. With the increased funding in this substitute amendment, Montana and every other State in the country will receive a much needed increase in economic growth and development, all paid for.

This amendment will also allow us to make some modest changes to the formulas in the SAFETEA bill. We made changes for both donor and donee States. For the donee States, we have increased the guaranteed funding from 110 percent of TEA-21 levels up to 115 percent each year of the bill--each and every year. From a 110-percent increase to a 115-percent increase--that is for the donee States.

For the donor States, we have provided funding to bring every donor State to 91 cents on the dollar beginning in 2006, with an additional guarantee of 92 cents in 2009.

I know this is not what everybody wanted, but we have limited funds. We cannot do everything for everyone. I hope that as this debate continues, my colleagues will understand the very difficult task of drafting a national formula. We must work together. Prior transportation bills have never been partisan fights. It is very important. There is no such thing as a Republican road or a Democratic road; they are American roads.

I remember fondly working with Senator Daniel Patrick Moynihan on ISTEA in 1991. We had good debates on the future of transportation policy. He had such vision, and ISTEA reflected that vision.

In 1998, I worked closely with two dear friends developing TEA-21-- the late Senator John Chafee of Rhode Island and Senator John Warner of Virginia. We worked side by side through many long nights and hours of discussions. Each of us brought a different perspective to the table. I represented the needs of rural and Western and Midwestern States, Senator Chafee represented the Northeastern States, and Senator Warner represented the donor States, generally Southern States. Each of us recognized that with a national transportation program, we had to balance the needs of each constituency. I believe we put together a good product in TEA-21. Was it perfect? Of course not, but it moved our country forward. Did I get everything I wanted for my State? No. We did not get to write legislation in a vacuum. We had to work together.

The bill before us is balanced. We have worked hard to balance the needs of the various States, each with different interests but with a common purpose. We have worked hard to balance the needs of highways and transit. It is time for us to finish the job. We have substantial differences with the House. We need to get this bill to conference so we can iron those differences out.

Legislating is the art of compromise. I have been fortunate to represent the people of Montana in this Capitol for the last 30 years. In that time, I have worked on hundreds of pieces of legislation that have become law. To craft these measures, I have worked with Members on both sides of the aisle--with Members on my side and Members of the other side--because, after all, we all are Senators. I have not received everything I wanted. I have had to give a little bit. That is what we all do around here. We are a nation of 50 States with different needs. I hope my colleagues will continue to work with us on the Senate floor with that in mind. There are small States, there are large States, there are urban States, there are rural States, there are donor States, and there are donee States. We have done our very best to balance the various needs.

Our ability to address many of the outstanding issues depends on the added funding this amendment provides. We could not balance them without this added funding. Without additional funding in this bill, we cannot make further changes. It is that simple.

To my friends who have come to me over these past weeks asking for more money for their States, I simply say: Now is the time to stand and be counted. Now is the time to complete action on this bill and invest in our future. Let us not allow gridlock in Congress to cause gridlock on the main streets of America. Let us adopt this amendment and provide the funding our transportation system needs. Let us move this bill to help get our economy moving.

Mr. President, I again thank all those concerned. I yield the floor.

Mr. President, I understand there is no further debate on the amendment. I see the Senator from Texas wishing to urge the adoption of this amendment. We have no objection. It is a good amendment and I urge its passage.

Mr. President, I move to reconsider the vote.

Mr. President, I thank my colleague from Montana for doing something about this problem. It is a huge problem. He has identified it. He has some solutions, he has some ideas, and we will work with him, as I am sure other Senators will in States also affected by this problem. I compliment him for raising the issue and finding a solution.

I ask unanimous consent the following fellows of the Finance Committee be granted the privilege of the floor for the duration of the debate on the Transportation reauthorization bill: Mary Baker and Stuart Sirkin.

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

Mr. President, inscribed on the Justice Department building are the words: ``No free government can survive that is not based on the supremacy of law.''

Aristotle said: ``Where the laws are not supreme, there demagogues spring up.''

And Balzac wrote: ``The soul of liberty is love of law.''

It is a free and independent judiciary that ensures the supremacy of law. It is a free and independent judiciary that guards against the demagogue. It is a free and independent judiciary that protects the soul of liberty.

As Montesquieu wrote in The Spirit of the Laws: ``There is no liberty if the judiciary power be not separated from the legislative and the executive.''

And as George Washington wrote to John Jay in 1789, when Washington invited Jay to be Chief Justice: ``The Supreme Court must be recognized as the keystone of our political fabric.''

The effort by some to abridge the Senate's role in the confirmation of judges is nothing less than an effort to diminish the independence of the judiciary. That is the bottom line.

The Senate's rules and its paramount value of unlimited debate are central to preserving that independence of the judiciary. The Senate's involvement in the confirmation of judges helps to ensure that nominees have the support of a broad political consensus. The Senate's involvement helps to ensure that the President cannot appoint extreme nominees. The Senate's involvement helps to ensure that judges are more independent.

The Framers wanted the courts to be an independent branch of government, helping to exercise the Constitution's intricate system of checks and balances. The Senate's involvement in the confirmation of judges helps to ensure that the judiciary can be that more independent branch. And that independence of the judiciary, in turn, helps to ensure the protection of personal rights and liberties.

Just witness the Bill of Rights and the Constitution and the degree to which the court protects the Bill of Rights against improper encroachment by the legislative branch and in some cases by the executive branch.

The current fight over allowing the President to more easily gain confirmation of Supreme Court Justices and Appellate Court judges recalls another such effort by a President to affect the independence of the judiciary. It was in 1937, when President Franklin Roosevelt tried to pack the Supreme Court.

Roosevelt's effort to pack the Court failed in 1937 because enough Senators from his own party stood up to their President. They stood up for the Constitution that they loved.

One of those Senators was Montana's Burton K. Wheeler.

Until then, Burt Wheeler, a Democrat, had been an ardent champion of New Deal causes. But that changed with Roosevelt's effort to pack the Court.

In his book about Lyndon Johnson, Master of the Senate, the historian Robert Caro recounts what happened:

Burton K. Wheeler of Montana, long a leader in Senate

fights for liberal causes, was coming to see that the Court

plan implied an alteration in the whole balance of

governmental power in favor of the White House. What, he

wondered, would come next? He refused to fight for this

cause. Wheeler was a senator other senators followed.

Roosevelt sent his aide Thomas G. Corcoran to him with an

offer. Its details would be a matter of dispute; at a very

minimum, Wheeler would be allowed to give `advice' on the

nominations of two of the six justices. Wheeler had accepted

other offers from Corcoran before, but he refused to do so on

the Court-packing plan. I'm going to fight it with everything

I've got,' he told Corcoran. The President hurriedly invited

his old friend Burt to dine at the White House that evening;

the Senator replied that the President had better `save the

plate for someone who persuaded more easily'.

And on the Senate floor, Senator Wheeler said:

I am saying to the Senator now that those connected with

the administration have said that they wanted six men upon

the Supreme Court whom they could trust, that they wanted men

on the Court who would decide cases as they wanted them to be

decided. That is the issue. It can be camouflaged as much as

one wants to attempt to camouflage it, but the truth is that

it is impossible to get away from the fact that this is a

proposal to make the Supreme Court of the United States

subservient to the executive branch of government.

Similar words could be said about the current effort to abridge the Senate's involvement in securing the independence of the Court. There are those connected with the current effort who want people ``on the Court who would decide cases as they want them to be decided.'' And it is impossible to deny that the effect of the current proposal would be ``to make the Supreme Court of the United States [more] subservient to the executive branch of government.''

There is no doubt about it. That is the intent. That is the result.

On the Senate floor, Senator Wheeler also said:

I say the step proposed is one of the most dangerous ever

suggested, and it will set the most dangerous precedent of

which I can conceive. You can bring political pressure to

bear on me, you can say, `You you have to go along because of

the fact that the administration wants it.' You can say that

the privilege of appointing postmasters will not be accorded

me; you can say that I will get no more projects for my

State, worthy or unworthy; you can say what you please; but I

say to Mr. Farley [the Postmaster General and Chairman of the

Democratic National Committee] and to everyone else that, so

far as I am concerned, I will vote against this proposal

because it is morally wrong, morally unsound. It is a

dangerous precedent, . . . it gets us nowhere, it is an

expedient, it is a stopgap and dictatorial, and so far as I

am concerned, if I am the only man in the Senate to do so, I

shall vote against it.

Once again, similar words could be said about the current effort to abridge the Senate's involvement in securing the independence of the Court. ``[T]he step proposed is one of the most dangerous ever suggested.'' ``[I]t will set the most dangerous precedent . . . .'' ``[I]t is morally wrong, morally unsound.'' ``[I]t gets us nowhere . . . .'' ``[A]nd so far as I am concerned, if I am the only man in the Senate to do so, I shall vote against it.''

I only hope that enough Senators from the majority will have the courage that Burt Wheeler had, to stand up to their President, and stop this effort to undermine our Nation's cherished checks and balances.

In the latter half of the 19th Century, James Bryce was the Ambassador of the United Kingdom to the United States. In 1888, he wrote of America's independent judiciary:

The Supreme Court is the living voice of the Constitution .

. . . It is the guarantee of the minority who, when

threatened by the impatient vehemence of the majority, can

appeal to this permanent law, finding the interpreter and

enforcer thereof in a Court set high above the assaults of

faction.

For two centuries, the Senate's rules have protected the rights of the minority party, Democrats and Republicans alike, and thereby protected the independence of the judiciary. After two centuries, it would be a mistake to change those rules.

As the Senior Senator from Tennessee, the Majority Leader, wrote in a forward to a book published last year entitled Senate Procedure and Practice, and I quote:

[A]bove all, together the Senate's rules and practices form

a whole. It is a whole that faithfully reflects the Framer's

design and ambition for the body. It is a whole that remains

true to the Senate's two paramount values: unlimited debate

and minority rights.

[U]nlimited debate and minority rights.

That is what the leader wrote just a year ago: unlimited debate is one of the paramount values in the Senate's rules. Minority rights is the other one.

``[U]nlimited debate'' allows Senators to protect ``minority rights.'' The Senate's rules help to protect the independent judiciary. The Senate's rules help to ensure that no one party has absolute power. The Senate's rules help to give effect to the Framer's conception of checks and balances to protect the rule of law.

John Locke wrote in The Second Treatise on Government:

Wherever law ends, tyranny begins.

John F. Kennedy said:

Law is the strongest link between man and freedom.

And the Greek philosopher Heraclitus of Ephesus wrote:

The people should fight for their law as for their city

wall.

I urge my Colleagues on the other side of the aisle to fight for this city wall. I urge them to defend the independence of the judiciary. One hallmark that sets the United States apart from most countries in the world is a strong, independent judiciary: not bullied by the legislative branch, not bullied by the executive branch; an independent judiciary.

I urge my colleagues to defend that independence and I urge them to reject this effort to overturn the Senate's rules.

Mr. President, I suggest the absence of a quorum.