Floor Statements

Mr. President, after weeks of closed-door clandestine negotiations, Senator Reid finally emerged with a 383 page manager's amendment yesterday to the 2,074 page, $2.5 trillion tax-and-spend Washington takeover of our health care system.

Despite all the promises of ushering a new era of accountability and transparency in Washington by the President and the Democratic Party, the Reid amendment represents everything that Americans hate about Washington right now Chicago-style backroom buy-offs at the expense of American taxpayers.

At yesterday's press conference, when Democrats were asked about the Nebraska earmark for Medicaid funding, the majority leader simply replied, ``A number of States are treated differently than other States. That's what legislation is all about. That's compromise.''

So in addition to the Medicare Advantage deal to grandfather only Florida's seniors and the $300 million give-

away known as the Louisiana Purchase, we now know what the Democrats' version of compromise really looks like. In the Reid amendment, released yesterday, Vermont gets a 2.2-percent increase for 6 years in its Medicaid Federal match rate while Massachusetts gets a 0.5 percent increase for 3 years for its entire program. But the deal for the State of Nebraska takes the cake. Now we all know that any one Congress can't bind future Congresses but somehow Nebraska will receive a special carve out that would have the Federal Government pay for every dollar of its Medicaid expansion. The total cost of these Medicaid special deals--$1.2 billion.

So the next logical question is pretty straightforward--who will pay for these special deals? Well, the answer is simple. Every other State in the Union, including Utah, which are collectively facing $200 billion in deficits and are cutting jobs and education services to survive; our States will now pay to support these special deals for Nebraska, Massachusetts and Vermont.

According to the Congressional Budget Office, the Medicaid expansion in the Reid bill creates a $26 billion unfunded mandate on our cash- strapped States. Coincidentally, only one State avoids this unfunded mandate--Nebraska.

Let me now focus my attention on over a $\1/2\ trillion worth of new taxes, fees, and penalties on individuals, families, and businesses imposed by the Reid bill. The new fees begin in 2010, while the major coverage provisions do not start until 2014. Almost $57 billion in new taxes are collected before any American sees the major benefits of this bill, which are largely delayed until 2014. It is no wonder why this budget gimmickry creates an illusion of this bill reducing our national deficit.

Based on data from the Joint Committee on Taxation--the nonpartisan congressional scorekeeper--this bill would break President Obama's campaign promise by increasing taxes on 42 million individuals and families making less than $250,000 a year. This is even after taking into account the government subsidies provided to low- and certain middle-income individuals and families.

The Reid bill not only increases payroll taxes by nearly $87 billion but also imposes $28 billion in new taxes on employers who do not provide government approved health plans. These new taxes will ultimately be paid by American workers in the form of reduced wages and lost jobs.

According to a recent study of similar proposals by the Heritage Foundation, these new job killing taxes will place approximately 5.2 million low income workers at risk of losing their jobs or having their hours reduced and an additional 10.2 million workers could see lower wages and reduced benefits.

So with nearly $\1/2\ trillion in Medicare cuts and more than $\1/2\ trillion in new taxes, does the Reid bill actually do anything to control our Nation's skyrocketing health care costs? The answer, according to the Congressional Budget Office, is no. In fact, it will actually increase our national health care spending. I quote: ``Under the legislation, Federal outlays for health care would increase during the 2010-2019 period, as would the Federal budgetary commitment to health care. The net increase would be about $200 billion over that 10- year period.'' So what is the bottom-line? More taxes, more spending and bigger government.

Let me a take a moment to talk about the so-called abortion compromise in this bill. The language to prevent taxpayer dollars from being used to fund elective abortions in the Reid amendment is completely unacceptable. The new abortion provisions are significantly weaker than the amendment I introduced with Senator Ben Nelson to ensure that the Hyde amendment, which prohibits Federal dollars from paying for elective abortions, also applies to any new Federal health programs created by Congress. The Hyde amendment has been public law since 1976.

The Nelson-Hatch-Casey amendment, which is almost identical to the Stupak amendment that was included in the House-passed health reform bill in early November by a vote of 240 to 194; it is important to note that 64 of those Congressmen voting for the amendment were Democrats. Let me repeat that--the Stupak amendment was supported by 64 House Democrats. And, despite that vote and the support of seven Senate Democrats, the majority decided not to include this language in the Reid bill or the Reid managers' amendment. I find that absolutely outrageous.

Moreover, the Reid conscience protections are much weaker than those included in the House passed health reform bill. The House bill included the Hyde-Weldon conscience protections that have been included in the HHS appropriations bills since 2004; the Reid health reform legislation does not. The Hyde-Weldon language ensures that strong conscience protections are in place for medical providers who oppose abortion. These strong protections, which are currently Federal law, should also apply to the new programs created through the Reid managers' package.

The so-called abortion compromise does not stop there. The Reid amendment also creates a state opt-out charade. As noted by Cardinal Daniel DiNardo, the Archbishop of Galveston-Houston and the Chairman of the U.S. Catholic Conference of Bishops' Committee on Pro-Life Activities, allowing ``individuals to `opt-out' of abortion coverage actually underscores how radically the underlying Senate bill would change abortion policy. Excluding elective abortions from overall health plans is not a privilege that individuals should have to seek as the exception to the norm. In all other federal health programs, excluding abortion is the norm. And numerous opinion polls should that the great majority of Americans do not want abortion coverage.''

Additionally, this provision does nothing to prevent one State's tax dollars from being used to fund abortions in other States. In other words, tax dollars from Nebraska or Utah could be paying for abortions in California or New York.

The Reid amendment also creates a new public option that will be run by the Office of Personnel Management, OPM, which, for the first time, creates a federally funded and managed plan that will cover elective abortions. Should this legislation be signed into law, the Federal Government will be funding elective abortions for the first time in over 30 years, against the will of the vast majority of Americans. For these reasons, I believe that the Senate health reform legislation is far inferior to the House passed bill when it comes to protecting the sanctity of life. It should come as no surprise to anyone that pro-life organizations from the U.S. Conference of Catholic Bishops to the National Right to Life Committee and the Family Research Council have expressed their strong opposition to this so-called compromise.

Finally, let me take a moment to talk about the individual mandate tax which has almost doubled from $8 billion to $15 billion in the Reid amendment. I have long argued that forcing Americans to either buy a Washington-defined level of coverage or face a tax penalty collected through the Internal Revenue Service is unconstitutional. The Constitution empowers Congress to do many things for the American people. Just as important, however, is that the Constitution also sets limits on our power. We cannot take advantage of the power without recognizing the limits.

We hear a lot about how Senators on this side of the aisle are supposedly defending the big, evil insurance companies while those on the other side of the aisle are the defenders of American families. This insurance mandate exposes such partisan hypocrisy. Let me ask one simple question: who would benefit the most from this unprecedented mandate to purchase insurance or face a penalty enforced by our friends at the Internal Revenue Service?

The answer is simple. There are two clear winners under this draconian policy and neither is the American family. The first winner is the Federal Government, which could easily use this authority to increase the penalty, or impose similar ones, to create new streams of revenue to fund more out of control spending. Second, the insurance companies are the most direct winners under this insurance mandate because it would force millions of Americans who would not otherwise do so to become their customers. If you do

not believe me, then just look at the stock prices of the insurance companies that have recently shot to their 52-week highs.

Right now, States are responsible for determining policies that best meet the particular demographic needs and challenges of their own residents. Massachusetts, for example, has decided to implement a health insurance mandate while Utah has decided not to do so. This bill would eliminate this State flexibility so that the Federal Government may impose yet another one-size-fits-all mandate on all 50 States and on every American. I cannot think of anything more at odds with the system of federalism that America's founders established--a system designed to limit government and protect liberty.

As I have said all year long, ensuring access to affordable and quality care for Americans is not a Republican or Democrat issue--it is an American issue. Unfortunately, the majority's arrogance of power has forced us down a path where ideology has trumped policy and big government has trumped American families.

Town hall after town hall and poll after poll tell us that Americans want us to step back, start over and reform our healthcare system in a step-by-step, fiscally responsible manner. This is a moment for courage and leadership. All we need is one Democrat to listen to a growing chorus of concerns from Americans across this great nation and stand up against this bill. I am going to do everything possible to make sure that the voice of Utahns and Americans everywhere is heard loud and clear in this Senate Chamber.

A vote to move this bill forward will be one of the most important votes this body has ever taken--a vote that is bigger than our parties or our ideologies; a vote that will fundamentally change the American landscape for generations to come and restructure one-sixth of our economy; a vote that will determine if we will give our future generations the same opportunities and the same sense of pride that has been our privilege. Make no mistake, our actions on this vote will not be without consequences. History and our future generations will judge us on this vote.

Despite the harsh realities of skyrocketing deficits and an exploding national debt, the majority's insatiable appetite to spend has not changed. Last weekend was a perfect example. At a time when we are already debating a $2.5 trillion tax-and-spend Washington takeover of our health care system, the majority jammed through a $1.1 trillion appropriations bill with a 12-percent year-over-year increase in Federal spending. But this is only the tip of the iceberg. There is already talk of raising our Nation's debt limit by almost $2 trillion to accommodate Washington's out of control spending habits.

Enough is enough. It is time to stand up and do what is right and there is no better time to do it than to vote against moving forward on this health care bill. The time for courage is now.

The historic blizzard in Washington yesterday was a perfect symbol of anger and frustration brewing in the hearts of the American people against this bill. I urge the majority once again to listen to the voices of the American people. My Republican colleagues and I are united with the American people in our fight against this $2.5 trillion tax-and-spend bill. There is still time to step back and start over.

One last thing. When you have one-sixth of the American economy involved, it deserves a bipartisan vote. To be honest, almost every major reform we have ever passed--in fact, every one I can think of-- had a huge bipartisan vote. In this particular case, I don't know of one Republican who is going to vote for this. If you can't get 75 to 80 votes on something this important, this much of a reform, then we should start over and do it the right way.

I yield the floor.

Mr. President, I appreciate the comments of my colleagues. They are right-on. They know what they are talking about regarding the Medicaid program.

If this bill becomes law, the CBO estimates that by the year 2019, 54 million nonelderly, nondisabled Americans will be locked into Medicaid. Think about that.

Americans with incomes below 133 percent of the Federal poverty level are not eligible for tax credits to purchase private coverage through the exchange.

I will take a few minutes to read part of a letter I received from our Governor in Utah, Gary Herbert--who worked at almost every job from local government right up to Governor of the State--about the Medicaid expansion included in the Reid bill. My Governor is deeply concerned about the impact the proposed Medicaid expansion would have on individual States. Here is what he said:

In Utah, we have a good system of public medical programs

that provide for our neediest population.

The extension of Medicaid to additional populations, as

discussed in proposed Federal healthcare legislation, will

amount to an unfunded mandate that would create financial

havoc for our state.

While I understand the idea that everyone must ``share in

the pain,'' and appreciate the Administration's commitment to

reforming healthcare without increasing the size of the

federal deficit, to force Medicaid cost increases onto states

will simply shift massive cost increases to the states.

As we prepare the state's fiscal year 2011 budget, we face

continued cuts to agency budgets and reduced government

service on top of painful reductions made last year. The

unfunded mandate of a forced Medicaid expansion will only

exacerbate an already dire situation.

If required to increase our Medicaid program as envisioned

in Washington, Utah and most every other state will be forced

to fund the money to do so through other means. This will

require states to either raise taxes or continue to cut

budgets in areas currently suffering from a lack of funding,

such as public and higher education. We must work together to

ensure that no new requirements for states to fund healthcare

for additional populations pass.

In summary, I ask my colleagues, if the Reid bill is signed into law and the Medicaid expansions go into effect, what will the States do to make their budgets work? According to Utah Governor Herbert, States will be looking at a variety of options, such as cutting education programs and raising taxes. It would devastate the State, as Governor Barbour has said and as almost every Governor would say. I thought that was an important point to make.

Mr. President, yesterday the administration's own Department of Health and Human Services health analysis warned Americans about the impact of this bill. According to the official scorekeepers at CMS, the Centers for Medicare and Medicaid Services, the Reid health care bill will actually not only increase our national health care costs by $234 billion over the next 10 years but will also reduce access and cut benefits for our seniors. This nonbiased report simply proves what we have been saying all along: You cannot reform a $2.4 trillion health care system simply by spending another $2.5 trillion of hard-earned taxpayer money. Despite all the rhetoric from the other side about this historic legislation, the only thing this bill accomplishes, after imposing $\1/2\ trillion in new taxes and $\1/ 2\ trillion in Medicare cuts, is to simply bend our Nation's health care cost curve up.

As a longtime supporter of the Medicare Advantage Program, I offered an amendment on the Senate floor to strip nearly $120 billion in cuts to the Medicare Advantage Program that provides comprehensive health benefits, including vision, dental, and reduced cost-sharing, to almost 11 million seniors.

Unfortunately, despite statements from the Congressional Budget Office that these cuts would result in reduced cuts for seniors enrolled in Medicare Advantage, Democrats in the Senate voted to keep the cuts in the package to finance more Federal spending--$500 billion in cuts in Medicare. Whom are they kidding? Medicare has $38 trillion in unfunded liabilities.

This report is another reminder of why it was a mistake to not adopt my amendment. The CMS Actuary found that the cuts to the Medicare Advantage Program in the Reid bill would not only result in ``less generous benefit packages'' for our seniors but, more important, it would decrease enrollment in Medicare Advantage plans by 33 percent.

Clearly, health care spending continues to grow too fast. This year will mark the largest ever 1-year jump in the health care share of our GDP. This jump is a full percentage point to 17.6 percent. You can think of this as a horse race between costs and resources to cover those costs. The sad reality is that costs win year after year.

Growing health care costs translate directly into higher coverage costs. Since the last decade, the cost of health coverage has increased by 120 percent, three times the growth of inflation and four times the growth of wages. Rising costs is the primary driver behind why we continue to see a rising number of uninsured in our country

and why increasing numbers of businesses find it hard to compete in a global market.

Without addressing this central problem, we cannot have a real and sustainable health care reform bill. So what does this $2.5 trillion tax-and-spend bill do to address health care costs? Absolutely nothing. According to the Congressional Budget Office, the premiums for Americans who buy insurance on their own will actually increase by 10 to 13 percent, while premiums for small and large groups will largely remain unchanged and continue to rise between 5 to 6 percent a year.

Furthermore, according to the CMS report, the new fees on prescription drugs, medical devices, such as wheelchairs and hearing aids, and health care plans will not only increase overall health care prices but also health insurance premiums for millions of Americans.

Let me make this point as clearly as I can. This bill does not address the underlying problem of slowing down the growth of health care costs. It simply spends hundreds of billions of dollars in new subsidies to buy out the cost of these increases for families making up to $80,000 a year. Instead of fixing the real problems, this bill simply tries to spend its way out of the problems. Does that sound new to you? This administration seems to think that just throwing money at things is going to help.

We have been hearing a lot recently about how Democrats are throwing the government-run plan out of their bill to quickly jam this bill through the Senate before Christmas. The American people need to be careful about believing this propaganda. The Democratic solution to the government plan is a Ponzi scheme that would embarrass even Bernie Madoff himself.

I have to be fair here. I have to rely on news reports to discuss these provisions. You heard me right--news reports. Why is that? Because no one knows what is actually in the bill they have sent to the CBO. Not even my friends on the Democratic side, by and large, know. The Reid bill was put together by very few Democrats with the White House in the back rooms of the Capitol. Nobody really knew what they were doing until they came out with it.

Once we all saw it, we all realized what a mess that is. They found themselves in trouble, so they have gone and done another bill and submitted it to CBO, and hardly anybody on the floor knows exactly what the features are in that bill. No one knows actually what is in the bill. And despite the continuous claims of transparency our friends on the other side are always talking about, the real bill continues to change on a daily basis behind the closed doors of the majority leader's office.

I am really glad to know that it is not just the Republicans who are in the dark about what is actually in this bill. Democratic Members of Congress in this body are also in the same boat. It is really unbelievable. We are being asked to move forward on legislation that will reform one-sixth of the American economy and impact every American life and business without knowing what is actually in the bill. We have to rely on news reports. I have never seen anything like this in my 33 years of Senate service.

One proposal that has come to the floor in recent days is the idea of expanding Medicare to include coverage for Americans 55 and over. Currently, we all know Medicare is for Americans 65 and over. It is a bankrupt program. It is well intentioned, it does a lot of good, but it is bankrupt. It is a program that can barely pay for the benefits of the 40 million seniors in it today. Medicare is on a path to fiscal meltdown, with Part A facing bankruptcy by 2017. I don't think anybody denies that. It underpays doctors by 20 percent and hospitals by 30 percent compared to the private sector, forcing an increasing number of providers to simply stop seeing our Nation's seniors.

According to the June 2008 MedPAC report, 9 out of 10 Medicare beneficiaries have to get additional benefits beyond their Medicare coverage.

What is Washington's solution to address this problem and crisis? Take up to $500 billion out of this bankrupt program and at the same time push millions of Americans into it. Does that sound logical to you?

The CMS report states in clear terms that the Medicare cuts in this bill could jeopardize our seniors' access to care. The cuts would result in nearly 20 percent of all Part A providers, such as hospitals and nursing homes, operating in the red within the next 10 years as a result of these cuts. Twenty percent--that is a pretty big number.

It should come as no surprise that this proposal faces strong opposition from a wide variety of provider groups, from doctors and hospitals that are already under tremendous financial pressure due to underpayments from Medicare.

Keep in mind, the AMA here in Washington has backed this monstrosity. Now some people think that AMA represents all the doctors. It does not. The average doctor out there is incensed about this. Adding more lives to this insolvent Medicare Program will only further limit their ability to see all Medicare patients, not just the new ones.

Even more troubling is the impact of this expansion on the premiums of our Medicare seniors from this ill-conceived policy. This expansion would encourage an influx of sick Americans in private coverage into Medicare, which will simply raise premiums for seniors already enrolled in Medicare. So seniors, expect your cost of Medicare to go up.

So why are Democrats pushing this idea? Congressman Anthony Weiner said it best. I think he was very honest; very upfront. He said this:

Extending this successful program to those between 55 and

64, a plan I proposed in July, would be the largest expansion

of Medicare in 44 years and would perhaps get us on the path

to a single-payer model.

Well, the Democratic endgame on health care reform is crystal clear: Make as many Americans as possible dependent on the Federal Government programs. Democrats believe by making millions of Americans dependent on big government programs, on the backs of their grandchildren's future, they are taking a huge leap toward creating a permanent majority for themselves. Why, it would be a natural constituency for them.

Well, let me tell you this--America is built on the spirit of self- reliance, not government handouts. Poll after poll, especially the CNN poll, has said 61 percent of Americans are now opposed to the bill, and study after study is warning us this is the wrong solution for our Nation. This unknown bill, which continues to change by the day behind closed doors, is a direct violation of the President's own pledge to only support a reform that would reduce costs, protect benefits, and not raise taxes.

I sincerely hope the Democrats will step away from their arrogance of power and listen to the will of the American people. It is not too late for us to push the reset button and work on health care reform in a truly bipartisan manner. We are eager and willing, as we have been all year, to work on a responsible solution that every American can be proud of. There are all kinds of things we could agree on, that Republicans would work hand in glove with Democrats to solve, if they were willing to do it.

But keep in mind the HELP Committee bill was totally Democratic. Not one Republican was asked to help write it. The House bill, totally Democratic. Not one Republican was asked to help write it. I admit my friend, the Senator from Montana, Max Baucus, worked hard to try to get a bipartisan bill. But in the end, he did not have enough flexibility to reach a deal. All of a sudden, he finds his bill being put together--between the House bill and the HELP Committee bill--behind closed doors, with very few people involved--all Democrats and the White House and probably two or three or four or five from the Senate but no more than that.

Throughout this debate, I have heard a lot of rhetoric from the other side of the aisle how Republicans are opposed to this $2.5 trillion tax-and-spend bill because, as the Democrats incorrectly suggest, we want the status quo. Oh, give me a break. We all know this is completely false. We on this side of the aisle have asked the Democrats over and over again to step back and write a new bill with us. But they are so consumed with their arrogance of power that they simply want to push what they have always wanted; that is, more government and more government controls over all our lives. America is a

free nation, the greatest Nation in the history of mankind. What makes us great is not our reliance on the Federal Government but our individual resolve and strength. Americans want the Federal Government to help them, not support them.

Well, let me tell you the other side of this. In a recent Gallup Poll, Independents around this country opposed this bill 53 to 37. These are Independents. So it would be wise for my Democratic friends to realize America is not behind them; not behind this bill. It is time for them to listen to what the majority of Americans want and that is not this bill.

I cannot tell you the kind of opposition I have seen in my State to this bill. It is almost unprecedented. I read it in the letters, hear it in the calls. At airports and grocery store aisles and on the streets people stop me and say: Don't let that thing pass.

Absolute power corrupts, and that is what we are seeing in Washington today. Democrats control the White House, the House, they have a filibuster-proof Senate and they have used this absolute power to rubberstamp this administration's big-government agenda and have tripled our deficit within 1 year--1 year. We will run deficits of at least $1 trillion a year for the foreseeable future, while our national debt will triple. We are literally mortgaging the future of this country to foreign countries as we speak. Enough is enough. Let us step back and start over on a plan we can all be proud of and all work on.

We hear a lot about how the Republicans are simply standing for big and evil insurance companies and how the Democrats are the defenders of American families. Well, these days, nowhere is this Democratic hypocrisy more clear than the individual, mandated policy that is part of this tax-and-spend legislation.

Let's be very clear about who would benefit the most from this provision, which would, for the first time in our Nation's history, give the Federal Government the power to force Americans to either buy health insurance or face a tax penalty enforced by our friends at the Internal Revenue Service. There are only two clear winners under this policy, and it is not the American families. First, it is the Federal Government, that will now use this authority as a blank checkbook to increase the penalty in the future as a new revenue stream for its out- of-control spending habits; and, second, are the insurance companies, that will now reap the benefits of having Americans being forced to buy coverage at the decree of the Federal Government.

Right now, States are responsible for determining policies that best meet their unique demographic needs and challenges. Massachusetts, for example, has decided to implement an individual mandate, while Utah has decided not to. Under this bill, we are explicitly taking away this State flexibility and authority to give the Federal Government the authority to make this one-size-fits-all decision for all 50 States and every American. This is an unprecedented grab of State power by Washington--a fundamental threat to the very Federalist vision our Founding Fathers used more than 200 years ago to create the greatest Nation in the history of the world, in the history of mankind.

I am gravely concerned about the precedent this policy will set for us as a nation going forward. If the Federal Government can force us to buy health insurance, what else can it force us to do? The possibilities are endless, just like my concerns, which I share with millions of Americans, on Washington's growing role in our private lives and personal decisions. Think about it. Washington has become an unwanted houseguest in our homes and lives who will not leave. If it does not start listening to the families, it will get kicked out, sooner rather than later. Think about it.

A couple of our friends have even said: Well, it is similar to car insurance. The States require you to buy insurance for your car, and it is in the best interest of the community that you do so. Well, the reason they do is because you want to drive. It is an activity you want to participate in, and so they get away with it. Here, if they have an individual mandate, they are forcing you to buy policies that are defined by Washington. If you don't, you are going to be penalized.

This has never happened before in our lives. If they can get away with this, I have to tell you, they can get away with anything. The liberties of all Americans are going to be affected by it. This is not an activity. This is not something we choose to do necessarily. If we choose to do it on our own, that is great. But to have the government come in and say you have to buy this policy--for the first time in history--you have to do this, even though you don't want to buy it, is unprecedented.

Well, let me say, I think it is fair to see I am not very enthused about the health care ideas of our colleagues. But I do wish to end on a positive note. There are some good things we can all do, some of which are in the bill. It is not totally bad. It is only about 90 percent bad, but there is at least 10 percent we could build on; that we could work together on.

I am not just saying that. Look, I have been around here a long time. I can name all kinds of bills I have worked on with some of the most liberal people in the whole Congress to pass. Hatch-Waxman is a perfect illustration. That created the modern generic drug industry. Henry Waxman is as liberal as it gets but he was willing to face up to these realities with me, and we did Hatch-Waxman. I call it Waxman-Hatch when I am around him.

I might add the orphan drug bill. We found there were only maybe two or three orphan drugs being developed. These are drugs to benefit population groups of less than 200,000. Well, it is clear the drug companies can't afford to do it for 200,000 people because it costs upward of $1 billion. Biological drugs cost even more than that, and they are not truly drugs. But the fact is, they cost even more than that. We came up with some very small incentives--but they were incentives with prestige--and some tax breaks and all of a sudden it was about a $14 million or $15 million bill, as I recall, in the early 1980s, when I was chairman of the Labor and Human Resources Committee. Today, we have well over 300 orphan drugs being developed, many of which have been developed, and from some of them blockbuster drugs have evolved.

Let's take the CHIP bill. That was the Hatch-Kennedy bill. Ted Kennedy, very liberal. He would have preferred to have the Federal Government do it all--just like our colleagues do today with this enormous number of 60 votes on their side--but he was willing to work with me. I went to him and said: Look, I had two families from Provo, UT, come to visit me--husbands and wives. In each family's case, both the husband and the wife work. Neither family's combined joint income is over $20,000 a year. At that time, it was too much to have their kids qualify for Medicaid and too little for them to be able to buy health insurance. I said: The only kids left out of the health care equation are children of the working poor. Teddy, we have to do something about that. He saw it, and he said yes.

He wasn't happy with the bill, in the end, because it was exactly what I told him it would be. It would basically be block-grants to states, where the States would handle it in accordance with their own demographics. It has worked amazingly well, until now. They are shoving more and more people into CHIP, other than the children of the working poor whom we originally decided to help.

Well, I could go on and on and on, on so many pieces of legislation, but I will just mention those few. I am very concerned because I actually believe that if we get what they are talking about on the other side, it will not only bankrupt the country, it will make more and more people dependent upon the Federal Government. Like I say, a natural constituency for the Democratic Party, but it is a matter of great concern to me.

Are our colleagues bad people? No. They simply believe the Federal Government can do it better. There are some things the Federal Government can do better, such as defending our national security interests, which is what the Constitution expects the Federal Government to do.

But even there, under this administration, we are not doing as well as we should. Although I commend the President for deciding to send the people to

Afghanistan and for standing on these issues. Once he saw the intelligence and the other information, it infused reality into his decision-making process. I give him credit. I am one who believes he deserves great credit for the decision he made. But even in that decision, he had to be very careful how he characterized when we are going to leave. He did leave it flexible. In that alone, he deserves a lot of credit because he knows there may not be enough time to do all we have to do to create the well-trained police and security forces that are necessary to keep Afghanistan free and to keep the world from allowing the Taliban and al-Qaida to obtain nuclear weapons.

Well, that is another subject for another day. I wish to end by saying I don't believe anybody on the other side is an evil person or a person who doesn't believe they are acting in the best interest of the country, but I do not see how--I do not see how they can continue to push what they are trying to push, I think to the detriment of this country.

I yield the floor.

On the CHIP bill I can't remember what the exact number was but I think it was between 70 or 80 votes. It was a bipartisan bill. In fact, on the Finance Committee when I brought it up only two Senators voted against it. It was like 19 to 2.

Every Republican except two, and every Democrat voted for it.

That was unanimous. If I recall correctly, I think it was done through a unanimous consent.

Yes.

They were all bipartisan. That is what gets me, because people know--people such as myself, such as the senior Senator from Kansas--we are willing to work on it with them. We know we can't get everything we want. Our colleagues have different viewpoints than we do. But tell me that I am wrong--I know you can't--that the HELP Committee bill was done solely between a few people at the White House and the Kennedy staff, and basically a few Democrats. That was it. No Republicans.

The House bill, I wish to ask the Senator, does he know of any Republican who was asked to participate in helping to develop that monstrosity they call the House bill?

After they came up with it, but how about the Reid bill? Does the Senator know if any Republicans were involved, able to participate in that bill, after the discussion between the White House and Senator Reid and a few Democrats?

None were involved. After they get it they say we want to work with you. After they get it done in the ways that I don't think any Republican can support, then they will say, yes, we would like it to be bipartisan. Has the Senator seen any acceptance of amendments here on the floor?

That is right. One thing I appreciated very much about Senator Kennedy, as liberal as he was--he was the leading liberal lion in the Senate, in the whole Congress, in my opinion--he knew unless we could get together in a bipartisan way we could not get the job done. This involves one-sixth of the American economy; one-sixth. We are being told take it or leave it. That is what I call an arrogance of power.

I don't want to be mean to my colleagues, I think many of them are very sincere, but it is an arrogance of power to not deal with the other side and to not even talk to us about it until after you have done what you want to do. I have to say, this is the worst I have seen it in the whole 33 years I have been in the Senate.

It is a western tie. I thought I would wear it out of loudness today.

I believe we could craft a bill that would get almost 100 votes. I think we would at least get between 70 and 80 votes and probably more if we worked together to do it. I don't think there is any question we could do that.

Look, we all want prevention, we want maintenance, we all want to cover as many people as we possibly can, we all want to correct some of the deficiencies that are in these bills, we all want to take care of people with preexisting illnesses. I could go on and on. Those are things we could build upon in ways that would work.

This bill is not going to work very well. But we could build upon that, bipartisan-wise, and build a complete bill We Republicans would not get everything we want. But I think there are Democrats who believe we ought to use the principles of federalism, have 50 State laboratories out there, let them work on their own problems in accordance with their own demographics. I know Kansas is not New Jersey. Neither is Utah. And New Jersey is not Kansas or Utah, to pick three States. You can do that with any three States. But we know one thing, if we follow the principles of federalism--that is what we did in CHIP, and CHIP worked well by anybody's measure--if we follow the principles of federalism we would be able to look and pick and choose from the various States what works and what does not.

You would have the usually big Democratic States that probably wouldn't function no matter what you do. But even they would benefit. Even they would benefit from looking at the other States and saying will that work in our State. Frankly, that is what made this country great.

There are friends on the other side who do not agree with me on that but there are friends over there who do agree with me on that, as you can see, getting 70 or 80 votes on the CHIP bill. There were other bills we put through by unanimous consent, because people recognized they were well intentioned, well written, had bipartisan support and nobody wanted to vote against them.

That is right. When Senator Kennedy and I did the CHIP bill, as an illustration, we had to go up and down this country giving speeches everywhere, building constituencies, working very hard together. It is no secret, in the end it was not everything he wanted. It wasn't everything I wanted either. He wanted the Federal Government in control of it. I wanted the States to be in control of it. But in the end I happen to know, as one of the dearest friends of Senator Kennedy, with all the differences we had--and we had plenty, we fought each other most of the time, but in the end he was as proud of that bill as any bill he passed or he worked on--even though it was put together in a way that brought a great number of Republicans on board.

Frankly, that can be done here. I have no doubt it could be done here. I look at the distinguished Senator in the chair. He is one of the brightest guys in the Senate. He has a lot of experience in this area. I personally believe the people such as the Senator from Rhode Island, the Senator from Kansas, myself--if we got together we could do things that our respective States would be proud of and would be pleased to work on--even though there would be some give and take, and that is what we need to do.

Look, I point out one more time, the HELP bill is totally Democratic, not one Republican, until they brought the bill to the committee. The House bill--totally Democratic, not one Republican was even asked to give input. And this bill, not one Republican. In fact, not many Democrats.

I made the point here a few minutes ago, most of the Democrats do not know what is in the bill that was submitted to the Congressional Budget Office. You heard the very competent minority--majority whip, the Senator from Illinois, say he did not know what was in the bill either. When the minority--excuse me, the majority; I have that in my mind, I think. If the majority whip didn't know, how in the world are we Republicans going to know? And how in the world are the rest of the Democrats going to know? These are things that worry me and bother me.

I believe they believed with President Obama's aura, with his strength in politics, with all of us wanting to help him and with their distinctive 60-person majority, that they could put over whatever they wanted to. This was their opportunity to go to a single-payer system-- or at least to move the whole system much farther toward a single-payer system than it even is today.

These things bother me a great deal. Frankly, I hope we can get our colleagues to sit down and work with us. I think both sides would have to give. Both sides would have to get together. But at least one-sixth of the American economy would be treated with respect rather than one side saying take it or leave it.

Mr. President, I appreciate the remarks of my distinguished colleague from Florida. People need to listen to him. I am grateful to have him in the Senate, a fine man he is and a good example to all of us. I appreciate his remarks.

I rise to explain why I believe the Reid health care bill is not only bad policy for this country but also undermines the Constitution and the liberty it makes possible. I urge my colleagues to resist two errors that can distort our judgment and lead us down the wrong path. Those errors are assuming that the Constitution allows whatever we want to do and ignoring this question altogether.

We have only the powers the Constitution grants us because liberty requires limits on government power and we have our own responsibility to make sure we stay within those limits.

James Madison said that if men were angels, no government would be necessary, and if angels were to govern men, no limits on government would be necessary. Because neither men nor the governments they create are angelic, government and limits on government are both necessary to protect liberty--not just government but limits on government as well. Those limits come primarily from a written Constitution which delegates enumerated powers to the Federal Government.

Here is how the Supreme Court put it just a few years ago. This is in United States v. Morrison in 2000, quoting Marbury v. Madison--one of the most important decisions ever by the Supreme Court, probably the single most important decision--back in 1803:

Every law enacted by Congress must be based on one or more

of its powers enumerated in the Constitution. ``The powers of

the legislature are defined and limited; and that those

limits may not be mistaken or forgotten, the constitution is

written.''

The important word there happens to be ``limits.''

No one likes limits, least of all politicians with grand plans and aggressive agendas. It is tempting to ignore or forget the limits the Constitution imposes on us by pretending the Constitution means whatever we want it to mean. But we take an oath to support and defend the Constitution, not to make the Constitution support and defend us. The Constitution cannot limit government if government controls the Constitution.

In April 1992, during a debate on welfare reform legislation, the senior Senator from New York, Mr. Moynihan, with whom I served, made a point of order that an amendment offered by a Republican Senator was unconstitutional. Here is what Senator Moynihan said:

We do not take an oath to balance the budget, and we do not

take an oath to bring about universal peace, but we do take

an oath to protect and defend the Constitution of the United

States.

Applying that sage advice today, we do not take an oath to reform the health care system or to bring about universal insurance coverage, but we do take an oath to protect and defend the Constitution of the United States.

For the past 8 years, my friends on the other side of the aisle insisted that the Constitution sets definite and objective limits that the President must obey. The Constitution, they said, does not mean whatever the President wants it to mean. Compelling circumstances or even national crises, they said, cannot change the fact that the Constitution controls the President, not the other way around.

It is easy to insist that the Constitution controls another branch of government, that the Constitution does not mean whatever another branch of government wants it to mean. The real test of our commitment to liberty, however, is our willingness to point that same finger at ourselves.

I ask my colleagues, is the Constitution rock solid, unchanging, and supreme for the executive branch but malleable, shape-shifting, and in the eye of the beholder for the legislative branch?

A principle applied only to others is just politics, and politics alone cannot protect liberty. We must be willing to say that there are lines we may not cross, means we may not use, and steps we may not take.

The Constitution empowers Congress to do many things for the American people. Just as important, however, is that the Constitution also sets limits on our power. We cannot take the power without the limits.

I want to address several constitutional issues raised by this legislation.

The first is the requirement in section 1501 that individuals obtain not simply health insurance but a certain level of insurance. Failure to meet this requirement results in a financial penalty which is to be assessed and collected through the Internal Revenue Code.

We hear a lot about how Senators on this side of the aisle are supposedly defending the big, evil insurance companies, while those on the other side of the aisle are defenders of American families. This insurance mandate exposes such partisan hypocrisy.

Let me just ask you one simple question. Who would benefit the most from the unprecedented mandate to purchase insurance or face a penalty enforced by our friends at the Internal Revenue Service? The answer is simple. There are two clear winners under this Draconian policy and neither is the American family. The first winner is the Federal Government, which could easily use this authority to increase the penalty or impose similar ones to create new streams of revenue to fund more out-of-control spending. Second, the insurance companies are the most direct winners under this insurance mandate because it would force millions of Americans who would not otherwise do so to become their customers. I cannot think of a bigger

windfall for corporations than the Federal Government ordering Americans to buy their products.

Right now, States are responsible for determining the policies that best meet the particular demographic needs and challenges of their own residents. That is the States. Massachusetts, for example, has decided to implement a health insurance mandate, while Utah has decided not to do so. This bill would eliminate this State flexibility so that the Federal Government may impose yet another one-size-fits-all mandate on all 50 States and on every American. I cannot think of anything more at odds with the system of federalism that America's Founders established, a system designed to limit government and protect liberty.

I can understand why this mandate is so attractive to those who believe in an all-powerful Federal Government. After all, raising the percentage of those with health insurance is easy by simply ordering those without insurance to buy it. But while government may choose the ends, the Constitution determines the permissible means. That is why one of the basic principles is that Congress must identify at least one of our powers enumerated in the Constitution as the basis for any legislation we ultimately pass.

The health insurance mandate is separate from the penalty used to enforce it. The only enumerated power that can conceivably justify the mandate is the power to regulate interstate commerce. For more than a century, the Supreme Court treated this as meaning what it says. Congress cannot use its power to regulate commerce in order to regulate something that is not commerce. Congress cannot use its power to regulate interstate commerce in order to regulate intrastate commerce.

In classic judicial understatement, the Supreme Court has said that ``our understanding of the reach of the commerce clause . . . has evolved over time.'' Indeed, it has. Since the 1930s, the Supreme Court has expanded the power to regulate interstate commerce to include regulating activities that substantially affect interstate commerce. That is obviously far beyond, by orders of magnitude, what the commerce power was intended to mean, but that is where things stand today, and some say it justifies this health insurance mandate in this bill.

Using the Constitution or even the Supreme Court's revision of the Constitution as a guide requires more than a good intention fueled by an active imagination. The Supreme Court has certainly expanded the category of activities--get that word ``activities''--that Congress may regulate. But every one of its cases has involved Congress seeking to regulate just that: activities in which people have chosen to engage. Even the Supreme Court has never abandoned that category altogether and allowed Congress instead to require that individuals engage in activities, in this case by purchasing a particular good or service. The Court has never done that.

Let me mention just three of the Supreme Court's commerce clause cases. In its very first case, Gibbons v. Ogden in 1824, Thomas Gibbons had received a Federal license to operate a steamboat between New Jersey and New York and wanted to compete with Aaron Ogden, who had been granted a steamboat monopoly by New York State. In Wickard v. Filburn, Roscoe Filburn used the winter wheat he planted on his Ohio farm to feed his livestock and make bread for his own dinner table. In the winter of 1942, he grew more wheat than allowed under the Agricultural Adjustment Act and challenged the resulting fine. And in Hodel v. Surface Mining & Reclamation Association, companies challenged a Federal statute regulating surface coal mining.

These cases have two things in common. The Supreme Court upheld Federal authority in each case, but each case involved an activity-- remember the word ``activity''--in which individuals chose to engage. There would have been no Gibbons v. Ogden if Thomas Gibbons had not chosen to operate a steamboat. Congress could regulate his activity but could not have required that he engage in it. There would have been no Wickard v. Filburn if Roscoe Filburn had not chosen to grow wheat. Congress could regulate his activity but not have required that he engage in it. And there would have been no Hodel case if companies had not chosen to mine coal. Congress could regulate their activity but could not have required that they engage in it.

The key word in the commerce clause is the word ``regulate,'' and the key word in every Supreme Court case about the commerce clause is the word ``activity.'' Regulating an activity in which individuals chose to engage is one thing; requiring that they engage in that activity is another.

The Congressional Budget Office examined the 1994 health care reform legislation which also included a mandate to purchase health insurance. Here is the CBO's, the Congressional Budget Office's, conclusion. This is August 1994, the Congressional Budget Office:

A mandate requiring all individuals to purchase health

insurance would be an unprecedented form of federal action.

The government has never required people to buy a particular

good or service. . . .Federal mandates typically apply to

people as parties to economic transactions, rather than

members of society.

That is pretty important language. In other words, Congress can regulate commercial activities in which people choose to engage but cannot require that they engage in those commercial activities.

Just a few months ago, as Congress once again is considering a health insurance mandate, the Congressional Research Service examined the same issue. Here is what the Congressional Research Service concluded. This was in July 2009. The CRS concluded:

Whether such a requirement [to have health insurance] would

be constitutional under the Commerce Clause is perhaps the

most challenging question posed by such a proposal, as it is

a novel issue whether Congress may use this clause to require

an individual to purchase a good or service.

Can Congress use this clause to require an individual to purchase a good or service?

One thing did change in the legal landscape between 1994, when CBO called the health insurance mandate ``unprecedented,'' and 2009, when CRS called it ``novel.'' The Supreme Court twice found that there are limits to what Congress may do in the name of regulating interstate commerce.

In United States v. Lopez, the Court rejected a version of the commerce power that would make it hard ``to posit any activity by an individual that Congress is without power to regulate.''

If there is no difference between regulating and requiring what people do, if there is no difference between incentives and mandates, if Congress may require that individuals purchase a particular good or service, why did we even bother with the Cash for Clunkers Program? Why did we bother with TARP or other bailouts? We could simply require that Americans buy certain cars or appliances, invest in certain companies, or deposit their paychecks in certain banks. For that matter, we could attack the obesity problem by requiring Americans to buy fruits and vegetables and to eat only those.

Some say that because State governments may require drivers to buy car insurance, the Federal Government may require that everyone purchase health insurance. That is too simplistic, that argument. Simply stating that point should be enough to refute it. States may do many things that the Federal Government may not, and if you do not drive a car, you do not have to buy car insurance. This legislation would require individuals to have health insurance simply because they exist, even if they never see a doctor for the rest of their lives.

The defenders of this health insurance mandate must know that they are on shaky constitutional ground. The bill before us now includes findings which attempt to connect the mandate to the Constitution. I assume they are the best arguments that this unprecedented and novel mandate is constitutional.

Those findings fail in at least four ways.

First, the findings say that the requirement to purchase health insurance will add millions of new consumers to the health insurance market. I cannot dispute the observation that requiring more people to purchase health insurance will result in more people having health insurance. I think that seems quite self-evident. But the question is not the effect of the mandate but the authority for the mandate. Liberty requires that the ends cannot justify the means. The findings

also fail to establish that the insurance mandate is constitutional by failing to offer a single example--a single precedent, a single case-- in which Congress has required individuals to purchase a particular good or service or the courts have upheld such a requirement. The cases I described are typical, and similar examples are legion. Every one involves--every one of those cases I have cited--the regulation of activity in which individuals choose to engage. Requiring that the individual engage in such activity is a difference not in degree but in kind.

The findings also fail to answer the question by observing that States such as Massachusetts have required that individuals purchase health insurance. As I noted regarding the example of car insurance, our Federal and State system allows States to do many things that the Federal Government may not. That is one of those limits on the Federal Government that is necessary to protect liberty.

The findings fail to answer the question by mistakenly focusing on whether Congress may regulate the sale of insurance. That misses the point in two respects. Simply because Congress may regulate the sale of health insurance does not mean that the Congress may require it. Simply because Congress may regulate the sale of health insurance does not mean that Congress may regulate the purchase of health insurance. This legislation requires you to believe that nonactivity is the same as activity; that choosing not to do something is the same as choosing to do it; that regulating what individuals do is the same as requiring them to do it. That notion makes no common sense, and it certainly makes no constitutional sense. If Congress can require individuals to spend their own money on a particular good or service simply because Congress thinks it is important, then the Constitution means whatever Congress says it means and there are and will be no limits to the Federal Government's power over each and every one of our lives.

That version of Federal power will be exactly what the Supreme Court in Lopez prohibited; namely, that there would be no activity by individuals that the Federal Government may not control. Neither the power to regulate interstate granted by the Constitution nor the power to regulate activities that substantially affect interstate commerce granted by the Supreme Court go that far. They don't go that far.

The American people agree. A national poll conducted last month found that 75 percent of Americans believe that requiring them to purchase health insurance is unconstitutional because Congress's power to regulate commerce does not include telling Americans what they must buy. By a margin of more than 7 to 1, Americans believe that elected officials should be more concerned with upholding the Constitution regardless of what might be popular than enacting legislation even if it is not constitutional.

Some defenders of this legislation such as the House majority leader have said that Congress may require individuals to purchase health insurance because it can pass legislation to promote the general welfare. The only thing necessary to dismiss this argument is to read the Constitution. Read the Constitution. That dismisses this argument. Just read it. Read the Constitution. Article I refers to general welfare as a purpose, not as a power. It is a purpose that limits rather than expands Congress's power to tax and to spend. The requirement that individuals purchase health insurance is not an exercise of either the power to tax or the power to spend, and so even the purpose of general welfare is not connected to it at all. Needless to say, it makes no sense to include in a written Constitution designed to limit Federal Government power an open-ended, catchall provision empowering Congress to do anything it thinks serves the general welfare.

If America's Founders wanted to create a Federal Government with that much power, they could have written a much shorter Constitution, one that simply told Congress to go for it and legislate well. That is what they could have done. They didn't do that, thank goodness.

The Heritage Foundation has just published an important paper arguing that this health insurance mandate is both unprecedented and unconstitutional. It is authored by Professor Randy Barnett, the Cormack Waterhouse Professor of Legal Theory at the George Washington Law Center; Nathaniel Stewart, an attorney with the prestigious law firm of White & Case, and Todd Gaziano, Director of the Center for Judicial and Legal Studies at the Heritage Foundation.

I ask unanimous consent to have the conclusion portion of the Legal Memorandum published by the Heritage Foundation printed in the Record.

I also wish to share with my colleagues a letter I received from Dr. Michael Adams and attorney Carroll Robinson. They are on the faculty of the Barbara Jordan Mickey Leeland School of Public Affairs at Texas Southern University. Mr. Robinson, a former member of the Houston City Council, was named by the Democratic Leadership Council in 2000 to its list of ``100 to Watch.''

I ask unanimous consent their entire letter, which is dated October 25, 2009, be printed in the Record following my remarks.

Let me share just an excerpt from these two people. This is an excerpt from Michael Adams, Ph.D., and Carroll G. Robinson, Esquire, from the Barbara Jordan and Mickey Leland School of Public Affairs, Texas Southern University:

Our reading of the Constitution and Supreme Court precedent

could not identify any reasonable basis, expressed or

implied, for granting Congress the broad, sweeping and

unprecedented power that is represented by the individual

mandate requirement. In fact, we could not find any court

decision, state or federal, that said or implied that the

Constitution gave Congress the power to mandate citizens buy

a particular good or service or be subject to a financial

penalty levied by the government for not doing so.

That is pretty impressive stuff.

It is certainly possible to achieve the goal of greater health insurance coverage by constitutional means, not unconstitutional means. I am quite certain, however, that those means are politically impossible.

Liberty requires that the Constitution trump politics, but in the legislation before us, politics trumps the Constitution.

Another provision in this legislation that is inconsistent with the Constitution is section 9001, which imposes an excise tax on high-cost employer-sponsored insurance plans differently in some States than in others. The legislation imposes a tax equal to 40 percent of benefits above a prescribed limit but raises that limit in 17 States to be determined by the Secretaries of the Treasury and Health and Human Services.

My colleague from Ohio, Senator Brown, spoke against this provision on policy grounds earlier.

The Constitution allows Congress to impose excise taxes but requires that

they be ``uniform throughout the United States.'' This is one of those provisions that will be dismissed with pejorative labels such as archaic by those who find it annoying. But it is right there in the same Constitution that we have all sworn to uphold. We have all sworn that same oath to protect and defend, and we are just as bound today to obey it.

Frankly, a good test of our commitment to the Constitution is when we must obey a provision that limits what we want to do.

The Supreme Court has had relatively few opportunities to interpret and apply the uniformity clause, but its cases do provide some basic principles which I think easily apply to the legislation before us today. The Court has held, for example, that a Federal excise tax must be applied ``with the same force and effect in every place where the subject of it is found.''

The Congress has wide latitude in determining what to tax and may tailor a regional solution to a geographically isolated problem, but laws drawn explicitly in terms of State lines will receive heightened scrutiny. By the plain terms of the legislation before us, insurance plans providing a certain level of benefits in one State will be taxed while the very same plans providing the very same benefits in another will not be taxed. We do not yet know what States will be treated differently, but we do know, according to this bill, that 17 of them will. That actually makes the constitutional point more clearly by identifying the State-based discrimination more starkly. Congress may decide to tax insurance plans with benefits that exceed a particular limit, but the tax must have the same force and effect wherever that subject of the tax is found. That is the clear meaning of the constitutional provision and the clear holding of the Supreme Court's precedents. Taxing the same insurance plans differently in one State than in another is the opposite of taxing them uniformly throughout the United States.

I commend to my colleagues the work of Professor Thomas Colby of the George Washington University Law School, whose comprehensive work on the uniformity clause was published in volume 91 of the Virginia Law Review.

I asked the Congressional Research Service to look at this uniformity clause issue. Its report confirmed that this differential tax on high- cost insurance plans is drawn explicitly along State lines and that a court will more closely scrutinize the reasons for the State-based distinction. It also concluded that Congress has not articulated any justification for singling out certain States for different treatment. I have raised this issue over and over throughout the process of developing and considering this legislation. I serve on both of the Senate committees that are involved in this process. In fact, I can say I have served on three: not only the HELP Committee--the Health, Education, Labor and Pensions Committee--but also the Finance Committee, as well as the Judiciary Committee that, for some reason, has some great interest in the Constitution. I have never heard any justification for singling out certain States for different tax treatment.

The attitude seems to be that this is what the majority wants to do, so they are going to do it no matter what the Constitution says. That may be politically possible, but that does not make it constitutionally permissible.

Other legal analysts and scholars who are examining this health care takeover legislation are raising additional constitutional objections. Professor Richard Epstein of the University of Chicago School of Law, for example, focuses on provisions that restrict insurance providers' ability to make their own risk-adjusted decisions about coverage and premiums. He argues these restrictions amount to a taking of private property without just compensation and in violation of the fifth amendment.

Others have observed that the legislation requires States to establish health benefit exchanges. It does not ask, cajole, encourage, or even bribe them. It simply orders State legislatures to pass legislation creating these health benefit exchanges and says if States do not do so, the Secretary of Health and Human Services will establish the exchanges for them. How thoughtful.

But as the Supreme Court said in FERC v. Mississippi in 1982:

This Court never has sanctioned explicitly a federal

command to the States to promulgate and enforce laws and

regulations.

The Supreme Court reaffirmed a decade later in New York v. United States that ``the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.''

In that case, the Court struck down Federal legislation that would press State officials into administering a Federal program.

More recently, in Printz v. United States, the Supreme Court stated:

We have held, however, that State legislatures are not

subject to Federal direction.

Yet this legislation does what these cases said Congress may not do. It commands States to pass laws, it regulates States in their capacity as States, and it attempts to make States subject to Federal direction.

Let me return to the principles with which I began. Liberty requires limits on government power. Those limits come primarily from a written Constitution which delegates enumerated powers to Congress. We must be able to identify at least one of those enumerated powers to justify legislation, and those powers should not mean whatever we, in our delightful wisdom, want them to mean.

Those principles lead me to conclude that Congress does not have the authority to require that individuals purchase health insurance, and that Congress cannot tax certain health insurance plans in some States but not in others.

These, and the others I have mentioned, are only some of the constitutional issues raised by this legislation. Any of these, and others I have not mentioned, could well be the basis for future litigation challenging this legislation should it become law.

Writing for the Supreme Court in 1991, Justice Sandra Day O'Connor reminded us:

The Constitution created a Federal Government of limited

powers.

America's Founders, she wrote, limited Federal Government power to ``protect our fundamental liberties.''

Here is the way Justice O'Connor put it, writing for the Supreme Court in New York v. United States in 1992:

But the Constitution protects us from our own best

intentions: It divides power among sovereigns and among

branches of government precisely so that we may resist the

temptation to concentrate power in one location, as an

expedient solution to the crisis of the day.

That is a pretty remarkable statement. I could not have said it better myself. Those are either principles we must obey or cliches we may ignore.

If the Constitution means anything anymore, if it does what it was created to do by not only empowering but, more importantly, limiting government power, then now is the time to stand on principle rather than to slip on politics.

I yield the floor.

Exhibit 1

October 25, 2009.

Hon. Orrin G. Hatch,

U.S. Senator.

Dear Senator Hatch: We support reducing the cost of health

insurance and expanding access to quality, affordable

prevention, wellness and health care services for all

Americans. Despite our support for health care reform that

empowers consumers, we have serious concerns about the

constitutionality of the individual mandate requirement being

proposed by Congress.

At least one scholar has argued that the individual mandate

requirement is constitutional because Congress has unlimited

authority under the Commerce Clause to regulate the economic

activity of individual American citizens no matter how

infinitesimal.

We do not agree with that position. In Philadelphia, the

Framers established a federal government of limited powers.

If Congress has unlimited power under the Commerce Clause to

regulate the economic activity of citizens, then the

Constitution is no longer (and never was) ``a promise . . .

that there is a realm of personal liberty which the

government may not enter.''

We believe that this promise still exists and is not a

mirage. The Supreme Court said so, at least as recently as

2003.

It has also been argued that the individual mandate is

constitutional because citizens have ``no fundamental right

to be uninsured'' or ``to decline insurance.'' These are

strawman characterizations intended to distract attention

from the real constitutional question: Does Congress have the

power to mandate citizens buy a specific good or service or

be subjected to a financial penalty for not doing so?

Our reading of the Constitution and Supreme Court precedent

could not identify any reasonable basis, expressed or

implied, for granting Congress the broad, sweeping and

unprecedented power that is represented by the individual

mandate requirement. In fact, we could not find any court

decision, state or federal, that said or implied that the

Constitution gave Congress the power to mandate citizens buy

a particular good or service or be subject to a financial

penalty levied by the government for not doing so.

There are cases that say Congress can tell consumers what

products to buy if they choose to buy, but no cases that say

Congress can mandate that a citizen must buy a particular

good or service or be fined for not doing so.

The individual mandate requirement directly burdens the

fundamental meaning of being an American citizen as embodied

in the Ninth Amendment reaching back through the Declaration

of Independence to the Magna Carta and its expansion coming

forward from the 3/5ths Clause of Article I of the

Constitution and the Court's Dred Scott decision to the

Thirteenth, Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth

and Twenty-Sixth Amendments as well as through Supreme Court

decisions related to these amendments, legislation adopted

pursuant to them, the Bill of Rights and its penumbra.

The Supreme Court has ruled that freedom of speech,

expression and association are constitutionally protected.

Our right to freely move around the country is also

constitutionally protected. Congress can regulate the size of

political donations but has no authority to tell a citizen

which political candidate or party they can lawfully

contribute to.

Like political donations, how a citizen legally spends

their money in the market place is clearly a form of

expression and association that requires strict scrutiny, or

heightened, protection.

Calling the individual mandate a tax raises another

constitutional concern. Under the mandate, American citizens

are essentially subject to a financial penalty simply for

being a citizen of the United States residing in a state of

the Union. It is essentially an existence fee, a fee for

existing.

Under the Fourteenth Amendment, the definition of

citizenship does not include any requirement that Americans

pay a ``tax'' simply because we are citizens. In fact, the

Twenty-Fourth Amendment and related Supreme Court decisions

expressly prohibit financially burdening the rights of

citizens to prevent them from exercising a right of

citizenship. Citizens have a liberty interest in deciding

when to buy a good or service and which to buy form the

legally available options.

The Supreme Court has said, ``Had those who drew and

ratified the Due Process Clauses of the Fifth Amendment or

the Fourteenth Amendment known the components of liberty in

its manifold possibilities, they might have been more

specific. They did not presume to have this insight. They

knew times can blind us to certain truths and . . . laws once

thought necessary and proper in fact serve only to oppress.

As the Constitution endures, persons in every generation can

invoke its principles in their own search for greater

freedom.''

We believe that reducing the cost of health care insurance

and expanding coverage can be achieved without opening the

constitutional Pandora's Box of the individual mandate

requirement.

Sincerely,

Carroll G. Robinson, Esq.

Michael O. Adams, PhD.

Mr. President, I appreciate my colleague's great remarks. I rise today to discuss an important aspect of this multifaceted health care

reform bill that is now pending on the Senate floor. It is tax increases and who will bear the burden of those tax increases. I have actually heard some stand on the Senate floor and say there are tax reductions. Who are they kidding? The gargantuan piece of legislation laying before us provides plenty of fodder for debate and discussion. This debate and discussion is taking place all over the country among Americans everywhere: over the family breakfast table, during breaks at work around the water cooler, in corporate boardrooms, and bowling alleys, and during Christmas shopping trips.

Of course, right here in the Senate we have already had many hours of debate about the health care bill, with many more likely to come. As one peruses the 2,074 pages that comprise the Patient Protection and Affordable Care Act--this bill--it quickly becomes obvious that this bill encompasses many topics and touches on a comprehensive array of issues dealing with our health care system.

However, it is not until near the very end of the bill, starting on page 1,979, that we find title IX, which deals with revenue offset provisions. Perhaps it is because this title is near the end of this seemingly endless bill that we have heard relatively little discussion about the new taxes it creates or perhaps it is because the tax title is relatively short, a mere 67 pages.

No matter the reason, I believe it is vital that the American people understand something about these new taxes before we are asked to vote on this legislation, this gargantuan legislation.

Before I get into the specifics of the new taxes and tax increases in this bill, I need to inform my Utahns and Americans everywhere that they are being sold a bill of goods when it comes to these taxes.

Based on what President Obama promised during his campaign last year, every individual American taxpayer earning less than $200,000 per year, and every family making less than $250,000 per year is justified in believing that this health care bill, which has been endorsed by the President, would not raise their taxes. Here is the direct quote from candidate Barack Obama in New Hampshire on September 12, 2008:

I can make a firm pledge. Under my plan no family making

less than $250,000 a year will see any form of tax increase.

Unfortunately, this bill places the cost of health care reform squarely on the backs of the taxpayers and mostly on the 98 percent of Americans the President promised to protect from new taxes. That is what it said. President Obama's exact words were:

I can make a firm pledge. Under my plan, no family making

less than $250,000 a year will see any form of tax increase.

The President went on to promise:

Not your income tax, not your payroll tax, not your capital

gains taxes, not any of your taxes.

However, when one looks at the list of revenue offsets beginning on page 1,979, we see all but 5 of the 14 revenue raisers included there would hit families making less than $250,000.

There is a cornucopia of new taxes on middle-income Americans in this legislation: a limitation on itemized medical expense deductions for medical expenses; an excise tax on the high-cost health insurance plans; a new tax on medical devices such as wheelchairs, breast pumps, and syringes used by diabetics for insulin injections; a limit on contributions to flexible spending accounts; an increase on the penalty for unqualified distributions from a health savings account; an increase in the payroll tax, and on and on.

Look at all these taxes: itemized medical expense deduction, fees on drug manufacturers, high-cost plan tax--by the way those are passed on to you and me and every other consumer, most of whom are less than $250,000-a-year earners--fees on health insurers, nonqualified HSA distribution from 10 percent to 20 percent, fees on medical device manufacturers, fees on FSAs--a $2,500 cap on FSAs--people who have suffered from disabilities and other problems, they can't live with that kind of cap--and an individual mandate penalty excise tax, all of those. That is just mentioning a few of them. It goes on and on.

Some of these would directly hit many taxpayers who make less than $200,000, such as this 5 percent excise tax on cosmetic surgery, while others would in the form of higher fees and penalties that would ultimately be passed on to the consumer.

This is certainly the indication with the new ``industry fees'' that would be assessed on several sectors of the health care industry.

Who do they think is going to pay for those? It is you and me and everybody else. Look at this chart, the biggest single tax increase in this health care bill is also one of the most insidious. This is the 40-percent excise tax on high-cost insurance.

By 2019, 88 percent, or $30.5 billion will be borne by individual taxpayers. Eighty-four percent of those will be individuals who make less than $200,000 or families who make less than $250,000. That is according to the Joint Committee on Taxation, upon which I sit. It is a nonpartisan committee.

This is the 40-percent excise tax on health insurance coverage that exceeds $8,500 for single families or $23,500 for families.

The unions in this country are going crazy over that, and with good reason.

The proponents of this idea tell us it is necessary in order to ``bend the cost curve'' downward and get the cost of health care under control. However, in reality, this is simply a bastardized version of the concept that might have been effective in discouraging employees from bargaining for too much insurance because it is a tax-free benefit; that is, for corporations that provide it, a cap on the value of tax-free, employer-provided health insurance.

The original concept, which was discussed at length in the finance committee earlier in the process of developing health care reform legislation this year, has merit if done correctly. By providing a direct disincentive to the very individuals who would suffer the tax increase, this original idea would have discouraged purchasing or bargaining for higher cost insurance simply because of the tax benefit.

However, this bill and the one approved by the Finance Committee does not take this route. Instead, it takes the cowardly approach and applies the tax increase at the insurer level.

Why is this a bad idea? For one thing, the tax increase occurs at a level two steps removed from the individual employee, which is where the decision to buy a less costly plan is made. Rather, the tax is assessed on the insurance company which has no choice but to pass the cost of the tax on to the employer and the employee who, together, pay the cost of the policy.

Instead of providing a disincentive for purchasing more health insurance than is necessary, applying the tax at the insurer level simply increases the cost of insurance without the employer and employee necessarily even knowing why the cost has gone up.

You wonder why insurance costs go up?

So for the sake of avoiding what appears to be a direct tax increase on workers, this approach loses the benefit of the original idea of bending down the cost curve by providing a disincentive. But make no mistake, this increased cost of these insurance plans will be passed on to the employees.

``Forty percent excise tax on high-cost insurance''--which most people will have. This is not even--

. . . by 2019, 88 percent or $30.5 billion will be borne by

individual taxpayers; 84 percent of those will be individuals

who make less than $200,000 or families who make less than

$250,000. The Joint Tax Committee.

My gosh, when does it end?

Moreover this tax burden would not be just on those whom the President says he wants to target for tax increases, those making over $200,000 per year as individuals or $250,000 per year for families. Far from it.

Data from the staff of the Joint Committee on Taxation showed that only 16 percent of the $30.5 billion borne by individual taxpayers in 2019 would be paid by those making over $200,000 per year. This means that 84 percent or almost $26 billion for this 1 year only would be paid by those whom the President promised to protect against tax increases.

Unfortunately, the excise tax on high-cost insurance policies is not the only way the health care bill would increase the cost of health insurance. To add insult to injury, the bill also includes a $6 billion annual fee assessed on providers of health insurance.

I have heard the other side just condemn health insurers, day in and day out. Yet they are adding all these costs

to the health insurers that have to pass them on to the individual citizens, or insurees.

As I understand it, the rationale behind this misguided idea is that health insurance companies will be enjoying a windfall from this bill in that millions of new customers will become insured for the first time. Therefore, the reasoning goes, the health insurance industry will be earning billions of dollars that they would not have otherwise made, all because of the beneficial aspects of this health reform bill.

Therefore, since these companies will be reaping all of this extra profit, why should we not tax them on this windfall in the form of this annual fee as though those costs are not going to be passed on? This is a bad idea on so many levels. First, it assumes that the insurance companies will actually be gaining all of these new customers. Secondly, it assumes that the insurance companies will be making money from these new customers if they indeed gain them. Keep in mind, they are talking now in the back rooms. Nobody knows what they have concluded. They are talking about putting people into Medicare from 55 years old on, where today you have to be 65 years of age to be able to qualify for Medicare. Now they want to do that at 55. What does that mean? That means the sickest of the sick will go into Medicare. People are going to push them out of regular policies and others will go into Medicare, so these insurance companies aren't going to make all the money the Democrats say they are.

The third assumption is the most troubling. That is that it would be the insurance companies themselves that would bear the burden of these fees. These are all dangerous assumptions. The third one is downright fallacious. It assumes that corporations suffer the incidence of taxation. As anyone with a modicum of economic training knows, corporations do not bear the burden of taxes, people do. Specifically, it is the people who work for the corporation, who own the corporation, and who are the customers of the corporation who ultimately pay the tax. They are passed right on to the people. This is not the only dangerous new excise tax in this bill. We have a whole passel of them. A new excise tax on health insurance providers. Look at this, excise taxes in the health care bill, excise tax on health insurance providers, new tax on pharmaceuticals, a new tax on medical devices, a new tax on high-cost insurance plans, and a new tax on cosmetic surgery. In the case of competitive markets, an excise tax is generally borne by consumers in the form of higher prices in the long term. At least this is what the staff of the Joint Committee on Taxation said to me in a letter on these insurance industry fees, dated October 28, 2009. Why in the world would we want to add a fee to the health insurance industry when we know it will be passed right on to consumers of the health insurance in the form of higher insurance costs? That means you and me. That means the employee. That means the person who bears the burden. I thought the purpose of this health reform bill was to rein in health care costs.

How much does this so-called health care reform bill harm taxpayers and violate President Obama's promise not to raise taxes on the middle class? Let me tell you about one of the most egregious tax increases in this bill. I have always believed that one of the major purposes of health care reform is to lower the cost of medical expenses to American families and especially to vulnerable American families. Therefore, it makes no sense to me that this bill should include this next tax increase which would largely hit the sickest Americans. This proposal would increase the threshold for deducting medical expenses from today's level of 7.5 percent to 10 percent of adjusted gross income. This seemingly small change is projected by the Joint Committee on Taxation to cost taxpayers over $15 billion over 10 years. Which taxpayers would suffer this tax increase? The ones earning more than $250,000 per year that President Obama pledged would be the only Americans to be saddled with a tax hike under his administration? Hardly. Of the many millions of families affected by this change, only a few thousand have incomes over $200,000. Think about that. The vast majority of the victims of this tax hit would be below that figure, with many of them being far from wealthy. In fact, a high percentage of the taxpayers affected by this change make less than $75,000 per year.

Look at this. If your income equals $100,000, then you need to incur $10,000 worth of medical expenses before you become eligible for the deduction. Millions of taxpayers making less than $200,000 will be affected. The deduction for medical expenses has been in the Tax Code for decades. Its purpose is to provide relief to Americans who face catastrophic medical expenses in relation to the size of their income. It is designed so that an average or usual amount of health care costs will not trigger the relief. Like I say, a family earning $100,000 this year would have to have medical expenses exceeding $7,500 before the deduction kicks in. This does not count what insurance pays but only what the family would fork over in out-of-pocket costs.

Even for those with the most basic health insurance, 7.5 percent of family income spent for medical expenses is a large amount. In many cases, this much medical cost relative to income is caused by chronic health conditions or serious accidents or injuries, and this is exactly the point. The current tax law rightly says that if a family has to pay catastrophic or near catastrophic amounts for health care during the year, relief is available. By design this deduction is there only for those who need it. So the big question is: Why we would want to increase taxes on those with already high medical expenses by making it tougher for them to get relief from catastrophic medical expenses. But the real conundrum is why would we do this as part of a bill that is supposed to rein in health care costs.

It is no wonder my fellow Utahns and Americans everywhere are questioning the wisdom of this bill. As with so many other features of this so-called health reform plan, this doesn't make sense.

There is much more I want to say about the tax increases in this bill. American taxpayers need to know the truth about what is about to hit them, if the majority has its way. I have not yet mentioned the new industry fee on medical device companies. Because my home State of Utah has many such companies, I plan to address this new fee in a separate floor statement as this debate progresses.

Let me summarize by reminding my colleagues that the tax increases in this bill fly in the face of the promises made by the President, the leader of the majority party in Congress who has explicitly endorsed this legislation. The staff of the Joint Committee on Taxation recently conducted a distributional analysis of how four of these tax increase provisions affect American taxpayers. Under that analysis, in 2019, individuals making over $75,000 and families making over $75,000 will see their taxes increase under this bill. That is equal to 42 million middle-income taxpayers. Think about that: 42 million middle-income taxpayers all making less than $200,000 per year and all of them, told by the President that they would be protected from tax increases, will be hit and hit hard by this bill. This is after taking into account the tax effects of the advanced refundable tax credit for health insurance.

Think about this: Millions more middle-income taxpayers will be hit by indirect tax increases from the health industry segment fees included in this bill. There is no question that these fees and other excise taxes will be passed through to the individuals who are consumers of the health care products that are being passed. As we debate this health care bill, it is imperative that the American people know what is in the legislation and how it will affect them. It would be a travesty for us to vote on this before these things are fully understood and debated. This is one of those few bills that come along only once in a generation or so. It is one of those bills that has the potential to change our country forever, for good or bad. In this case, it is not for good.

The tax increases in this bill are unprecedented in many ways and not well thought out. They will have a devastating effect on the people the President has promised to protect. The tax increase aspect alone of this leviathan is enough to demand its defeat here in the Senate. But there are so many more ill-advised provisions in the other 2,007 pages as well.

I urge my colleagues to take a good and honest look at these tax increases and make sure they are ready to face the vast majority of their unsuspecting constituents once they discover what has been done to them with this bill, should it pass.

I am very concerned about this bill. The American people are very concerned about this bill. Polls show they don't support this bill. I can't believe my colleagues on the other side are trying to present it as though it is a tax deduction bill when, in fact, it raises taxes in billions and billions of dollars, most of which go to the middle class or lower in transferred payments, and causes other problems added to their woes in health care and their very lives, as we go through all of our lives here in the United States. I am very concerned about it. I think everybody ought to be concerned about it. This is one-sixth of the American economy. If we can't get 75 to 80 votes in a bipartisan way, you know it is a lousy bill. This is a lousy bill. From what I have heard of the one that even Democrats don't know what form it will be in, it is going to be even more lousy.

I yield the floor.

I thank the Senator so much.

The current Hyde language contained in the fiscal year 2009 Labor-HHS Appropriations Act says the following:

Sec. 507. (a) None of the funds appropriated in this Act,

and none of the funds in any trust fund to which funds are

appropriated in this Act, shall be expended for any abortion.

(b) None of the funds appropriated in this Act, and none of

the funds in any trust fund to which funds are appropriated

in this Act, shall be expended for health benefits coverage

that includes coverage of abortion.

I know a little bit about CHIP. That was the Hatch-Kennedy bill. I was one of the original authors of the program and insisted that the following language be included in the original statute:

limitation on payment for abortions

(A) In general.--Payment shall not be made to a State under

this section for any amount expended under the State plan to

pay for any abortion or to assist in the purchase, in whole

or in part, of health benefit coverage that includes coverage

of abortion.

(B) Exception.--Subparagraph (A) shall not apply to an

abortion only if necessary to save the life of the mother or

if the pregnancy is the result of an act of rape or incest.

That is what the CHIP bill said, and that was the Hatch-Kennedy bill.

The reason I mentioned Senator Kennedy is because he was the leading liberal in the Senate at the time, and yet he agreed to that language.

As to the Federal Employees Health Benefits package, the following language appears in the Financial Services and General Government Appropriations Act for fiscal year 2009:

Sec. 613. No funds appropriated by this Act shall be

available to pay for an abortion, or the administrative

expenses in connection with any health plan under the Federal

employees' health benefits program which provides any

benefits or coverage for abortions.

Sec. 614. The provisions of Section 613 shall not apply

where the life of the mother would be endangered if the fetus

were carried to term, or the pregnancy is the result of an

act of rape or incest.

You are absolutely right.

Let me read the language for you in the Nelson-Hatch-Casey amendment.

In general.--No funds authorized or appropriated by this

Act (or an amendment made by this Act) may be used to pay for

any abortion or to cover any part of the costs of any health

plan that includes coverage of abortion.

Right. The reason it is so critical we pass the Nelson- Hatch-Casey amendment is that it is the only way to guarantee that taxpayers' dollars are not used by the insurance plans under the Democrats' bill to pay for abortions. In other words, the Hyde language is in the appropriations process. We have to do it every year rather than making it a solid amendment. But this bill is not subject to appropriations. So if we leave the Hyde language out of this bill, the language we have in the amendment, the Nelson-Hatch-Casey amendment, then we would be opening up a door for people who believe that abortion ought to be paid for by the Federal Government to do so. And we should close that door because that has been the rule since 1977.

I appreciate the Senator from Texas pointing this out. The current bill has language that looks like it is protective, but it is not. That is what we are trying to do: close the loophole in that language and get it so we live up to the Hyde amendment, which has been in law since 1977.

To be honest with you, I do not see how anybody could argue that the taxpayers ought to be called upon to foot the bill for abortions. Let's be brutally frank about it. The taxpayers should not be called upon to pay for abortions. The polls range from 61 percent of the American people, including many pro-choice people, who do not believe taxpayers should pay for abortions, to 68 percent. The polls are from 61 to 68 percent of those who do not believe the taxpayers ought to be paying for abortion, except to save the life of the mother or because of rape or incest. And we have provided for those approaches in this amendment. So anybody who argues otherwise is plain not being accurate.

Sure.

Well, the way we view the current language in the bill is that there is a loophole there whereby they can even use Federal funds to provide for abortion under this segregation language, and that is what we are concerned about. We want to close that loophole and make sure that the Federal funds are not used for abortion.

Like I say, there are millions of people who are pro-choice who agree with the Hyde language. All we are doing is putting the Hyde language into this bill in a way that we think will work better.

I would be happy to yield.

Madam President, I thank my colleague for bringing it forward. The segregation language is very problematic language. That is what we are trying to resolve. We basically have all agreed with the Hyde amendment, which is from 1977, and this would, in effect, incorporate the language in the bill.

Sure.

Let me respond to the distinguished Senator, although I am not going to ask him a formal question. If that is true, then why have the Capps language in there? Why don't we just take the Hyde language, which is what we are trying to do. It isn't true. We know in this bill there will be subsidization to help people pay for health insurance. In fact, the subsidization can go to people up to $88,000 a year, and that could be indirectly used for abortion. It is a loophole that Hyde closes.

If the distinguished Senator from Pennsylvania believes the Capps language does what Hyde meant to begin with and what it has been since 1977, what is wrong with putting the Hyde language in here and solving the problem once and for all? We see it as a loophole through which they can actually get help from the Federal Government directly and indirectly to pay for abortion.

Now, let's think about it. There are no mandates in this language that we have for elective abortion coverage. Plans and providers are free from any government mandate for abortion. There is no Federal funding of elective abortion or plans that include elective abortion except in the cases where the life of the mother is in danger or the pregnancy is caused by rape or incest. The amendment allows individuals to purchase a supplemental policy from a plan that covers elective abortion as long as it is purchased with private dollars. The amendment prohibits the public plan from covering elective abortions. It prevents the Federal Government from mandating abortion coverage by private health plans or providers within such plans. And insurance plans are not prevented from selling truly private abortion coverage, even through the exchange. This amendment doesn't prohibit that.

The bottom line: The effect on abortion funding and mandates is exactly the same as that of the House bill changed by the Stupak amendment.

Now, look, if the distinguished Senator from Pennsylvania believes the Capps language is the same as Hyde, he is wrong. And if he believes it does what Hyde would do, he is wrong there. Why not just put the Hyde language in once and for all, which has been there since 1977? That is what the Stupak language is.

The Hyde amendment specifically removes abortion from government programs, but the Reid bill specifically allows abortion to be offered in two huge new government programs. The Reid bill tries to explain this contradiction by calling for the segregation of Federal dollars when Federal subsidies are used to purchase health plans. This ``segregation'' of funds actually violates the Hyde amendment which prevents funding of abortion not only by Federal funds but also by State matching funds within the same plan. Simply put, today, Federal and State Medicaid dollars are not segregated. So that is the difference.

If the distinguished Senator from Pennsylvania believes the current language in the Reid bill meets the qualities of the Hyde language, then why not just put the Hyde language in once and for all since it has been in law since 1977?

It is important to note that today there is no segregation of Federal funds in any Federal health care program. For example, the Medicaid Program receives both Federal and State dollars. There is no segregation of either the Federal Medicaid dollars or the State Medicaid dollars.

With that, I know I have some colleagues who have asked for some time to speak, so I will yield the floor.

Mr. VITTER addressed the Chair.

Madam President, I am very appreciative of the Senator from Texas, the distinguished Senator from Louisiana, the distinguished Senator from Nebraska, and, of course, the distinguished Senator from Kansas and the distinguished Senator from South Dakota who are here on the floor and participating. I believe we have until 12:27, so I am going to relinquish the floor.

I am glad the Senator made that even more clear. Last night, a number of Democrats completely distorted this issue. If they think the Capps language equals the Hyde language, why not put it in? They want to be able to fund abortion any way they possibly can, to fund it in a variety of ways, with Federal dollars, if we don't put the Hyde language in. That is what this is about.

I am happy to.

That is what it will do here too. All this yelling and screaming when they say it equals the Hyde language--it doesn't. That is the problem. If they want to solve the problem, why not use the Hyde language that has been accepted by every Congress since 1977? The Senator is right that there were 300,000 abortions a year between 1973 and 1977 because we didn't have the Hyde language. We got tired of the taxpayers paying for them. Why should they pay for it? Why should taxpayers who are pro-life--for religious reasons or otherwise--have to pay for abortions, elective abortions by those who are not? They should not have to.

To be honest, the language in the current bill is ambiguous and it would allow that. Anybody who is arguing this is the same as the Hyde language hasn't read the Capps language. We want to change it to go along with Hyde. It doesn't affect the right to abortion, except that we are not going to have taxpayers paying for it.

Yes.

Madam President, I ask unanimous consent that Senator Cornyn be added as a cosponsor to the Nelson-Hatch-Casey amendment.

Mr. President, I had a longer statement I was going to deliver this afternoon, but after listening to my colleagues speak about the Nelson-Casey-Hatch amendment, I want to take my time to refute some of the arguments they are making about our amendment.

It does not even sound as though they are talking about the same amendment I filed with Senators Nelson and Casey. Our amendment does nothing to roll back women's rights. When my colleagues on the other side say that, they are simply mischaracterizing our amendment. Our amendment ensures that the Hyde language, a provision that has been in the HHS appropriations legislation for the last 33 years, will apply to the new health care programs created through this bill. We are applying current law

to these programs. That is it. The current Hyde language ensures that no Federal Government funds are used to pay for elective abortion or health plans that provide elective abortion. Today States may only offer Medicaid abortion coverage if the coverage is paid for using entirely separate State funds, not State Medicaid matching funds. They cannot do that under current law. This is a longstanding policy based on a principle that the Federal Government does not want to encourage abortion.

For example, Guttmacher studies show that when abortion is not covered in Medicaid, roughly 25 percent of women in the covered population who would have otherwise had an abortion choose to carry to term. I wanted to explain why the Reid-Capps language in the Reid bill is not the Hyde language. First, the Hyde amendment prohibits funding for abortions through Medicaid and other programs funded through the HHS appropriations bill. However, the public option is not subject to further appropriation and therefore is not subject to Hyde. Directly opposite of the Hyde amendment, the Reid-Capps language explicitly authorizes the newly created public option to pay for elective abortions. The public option will operate under the authority of the Secretary of HHS and draw funds from the Federal Treasury account. Regardless of how these funds are collected, these funds from the Treasury are Federal funds. Funding of abortion through this program will represent a clear departure from longstanding policy by authorizing the Federal Government to pay for elective abortion for the first time in decades.

The Nelson-Hatch-Casey amendment would prohibit funding for abortion under H.R. 3590 except in the cases of rape, incest, or to save the life of the mother. As is the case with the CHIP program and Department of Defense health care, the Nelson-Hatch-Casey amendment would be permanent law rather than an appropriations rider, subject to annual debate and approval. Any funding ban subject to annual approval will be in jeopardy in the future. Even if there are the votes to maintain the Hyde language, procedural tactics and veto threats could be employed and make it impossible to retain an annual ban.

Secondly, the Hyde amendment prohibits funding for health benefits coverage that includes coverage of abortion. This requirement ensures that the Federal Government does not encourage abortion by providing access to it. When the government subsidizes a plan, it is helping to make all of the covered services available. Federal premium subsidies authorized and appropriated in H.R. 3590 are not subject to annual appropriations and they are, therefore, not subject to the Hyde language. Directly opposite of the Hyde language, the Reid-Capps explicitly allows federal subsidies to pay for plans that cover abortion by applying an accounting scheme. Under the accounting scheme, the government is permitted to subsidize abortion coverage provided that funds used to reimburse for abortions are labeled ``private'' funds. This is an end run around the Hyde restriction on funding for plans that cover abortion.

Furthermore, under the accounting scheme, premium holders will be forced to pay at least $12 per year as an abortion surcharge to be used to pay for abortions. The Nelson-Casey-Hatch amendment would ensure that no funds under H.R. 3590 will subsidize plans that cover abortion. However, it does nothing to prohibit individuals from purchasing separate abortion coverage or from purchasing plans that cover abortion without a Federal subsidy.

Another issue I want to raise is the impact the Nelson-Hatch-Casey amendment would have on coverage of elective abortions by private health plans. I heard some of my colleagues say that our amendment would prohibit women from purchasing health plans with abortion coverage, even if they spend their own money. I understand there is a Politifact story with the headline ``Lowey Says Stupak Amendment Restricts Abortion Coverage, Even for Those Who Pay for Their Own Plan.''

That is simply not true. Our amendment would not prohibit the ability of women to obtain elective abortions as long as they use their own money to purchase these policies and not the money of the taxpayers of America, directly or indirectly. Again, our opponents will argue that it does, but if they take the time to read our amendment, they will note on page 3, line 6, that it ensures there is an option to purchase separate supplemental coverage or a plan with coverage for elective abortions. In fact, let me read it to my colleagues so we are all clear on what the language actually says. I am going to read it because I am tired of hearing some of the misrepresentations made on the floor by, I am sure, well-meaning people who are very poorly informed on this amendment. It is easy for me to see why they are poorly informed when I look at this itty-bitty bill.

My gosh, no matter how bright you are, who could know everything in this itty-bitty bill that will break the desk, if I drop it on it.

I am sorry. I scared the distinguished Senator from Iowa with this itty-bitty bill. I should have dropped it a little bit softly. I apologize.

Let me tell you what it actually says.

(2) Option to purchase separate supplemental coverage or

plan.--Nothing in this subsection shall be construed as

prohibiting any non-Federal entity (including an individual

or a State or local government) from purchasing separate

supplemental coverage for abortions for which funding is

prohibited under this subsection, or a plan that includes

such abortions, so long as--

(A) such coverage or plan is paid for entirely using only

funds not authorized or appropriated by this Act; and

(B) such coverage or plan is not purchased using--

(i) individual premium payments required for a qualified

health plan offered through the Exchange towards which a

credit is applied under section 36B of the Internal Revenue

Code of 1986; or

(ii) other non-Federal funds required to receive a Federal

payment, including a State's or locality's contribution of

Medicaid matching funds.

Under the Nelson-Hatch-Casey amendment, women are allowed to purchase separate elective abortion coverage with their own money. I wish they would not, but we allow it. Anybody who says otherwise is misrepresenting what this amendment does. I am sure they are not intentionally misrepresenting but nevertheless misrepresenting. So have fair warning.

It is also true that our amendment allows women to purchase a health plan that includes coverage of elective abortions in addition to the supplemental abortion policy as long as they pay for it with their own money. So when those who oppose our amendment say a woman would never want to purchase abortion coverage as a separate rider, they are truly misunderstanding that our language also permits women to purchase an identical exchange plan that includes coverage of elective abortions, in addition to other health benefits. To be clear, under our amendment, a woman may purchase with her own funds either a supplemental policy that covers elective abortions or an entire health plan that includes the coverage of elective abortions.

Today, Federal funds may not pay for elective abortions or plans that cover elective abortions. This is the fundamental component of the Hyde language. And to be clear, the Nelson-Hatch-Casey language does not prevent people purchasing their own private plans that include elective abortion coverage with private dollars.

In addition, our amendment explicitly states that these types of policies may be offered. In other words, our amendment does not restrict these policies from being offered. The only caveat is that they may not be purchased with Federal subsidies. We want to make that clear, and the Reid-Capps language does not.

Let me read that section of the Nelson-Hatch-Casey amendment for my colleagues. It may be found on page 4, line 3, of the Nelson-Hatch- Casey amendment.

(3) Option To Offer Supplemental Coverage Or Plan.--

Now get this:

Nothing in this subsection shall restrict any non-Federal

health insurance issuer offering a qualified health plan from

offering separate supplemental coverage for abortions for

which funding is prohibited under this subsection, or a plan

that includes such abortions, so long as--

(A) premiums for such separate supplemental coverage or

plan are paid for entirely with funds not authorized or

appropriated by this Act;

(B) administrative costs and all services offered through

such supplemental coverage

or plan are paid for using only premiums collected for such

coverage or plan; and

(C) any such non-Federal health insurance issuer that

offers a qualified health plan through the Exchange that

includes coverage for abortions for which funding is

prohibited under this subsection also offers a qualified

health plan through the Exchange that is identical in every

respect except that it does not cover abortions for which

funding is prohibited under this subsection.

Our amendment has the support of the U.S. Conference of Catholic Bishops, the National Right to Life Committee, the Family Research Council, the Ethics & Religious Liberty Commission of the Southern Baptist Convention, Concerned Women for America, the National Association of Evangelicals, and Americans United for Life Action.

Polls across the country indicate a majority of Americans do not want their tax dollars paying for elective abortions. According to a CNN/ Opinion Research Corporation survey, 6 in 10 Americans favor a ban on the use of Federal funds for abortion. Anybody who understands that figure knows there are pro-choice people who also favor a ban on the use of Federal funds for abortion.

It also indicates that the public may also favor legislation that would prevent many women from getting their health insurance plan to cover the cost of an abortion, even if no Federal funds are involved. This poll indicates that 61 percent of the public opposes the use of public money for abortions for women who cannot afford the procedure, with 37 percent in favor of allowing the use of Federal funds.

So my question to my fellow Senators is the following: When is this Congress going to start listening to the American people, people on both sides of this issue, who do not feel that taxpayers ought to be saddled with paying for abortion through their tax dollars, or in any other way, for that matter?

I urge my colleagues to support the Nelson-Hatch-Casey amendment. Do the right thing and support our amendment, which truly protects the sanctity of life and provides conscience protections to health care providers who do not want to perform abortions. That is an important aspect of this issue, and I have waited until the last minute to say something about that issue. Why should people of conscience be forced to participate in any aspect of elective abortions? They should not. People who have deep feelings of conscience should not be forced--that includes nurses, doctors, health care providers, hospitals--they should not be forced to do this, just because of the radicalness of some people who exist in our society today, and some think the radicalness of some in this body and in the other body. It is radical to expect the American taxpayers to pay for elective abortions, especially when such a high percentage--up to 68 percent, according to some polls, and I think even higher--do not want to have Federal dollars used for this purpose.

I appreciate my colleagues. I appreciate what my colleagues stand for. But this is very important stuff.

I ask unanimous consent that a number of constituent letters be printed in the Record.

Mr. President, I rise today to speak about the passing of Paula Hawkins, a former colleague of mine in the U.S. Senate and a very dear and close personal friend whose service to the Nation and her home State of Florida will endure for generations in the heads and hearts of her posterity, friends and legions of admirers.

In the ranks of those who greatly admire and will dearly miss Paula, I stand front and center today to salute this extraordinary woman for her accomplishments, outstanding public service, wonderful family and exemplary life. As I do so, I am humbled by the magnitude of the task. It is not easy to find the right words to do justice to such a unique and choice individual.

That said, I guess the first thing that comes to mind about Paula Hawkins is that, true to her Utah Mormon heritage, she was a pioneer--a real trailblazer who opened doors and windows of opportunity for others to follow.

Long before there was a Kay Bailey Hutchison, Dianne Feinstein, Olympia Snowe or Maria Cantwell in the U.S. Senate, there was Paula Hawkins. In 1980, she became the first woman elected to that august body for a full term without the benefit of family connections, and she was the first woman from Florida to serve as a Senator.

And to the surprise of no one who knew her, she was no shrinking violet in Washington once she arrived. The media may have dismissively billed her as that ``housewife from Maitland,'' but she quickly showed everyone that this was one tough homemaker who was acclimated to the political kitchen and could weather the heat that goes with it. I mean to tell you she was tough.

Anyone who knows Paula also knows that she was always impeccably dressed. Indeed, her appearance was so picture-perfect that she probably made many a Hollywood starlet feel shabby by comparison. To say she was dressed to the nines is like saying Jack Nicklaus was a fair golfer or that Shakespeare sort of had a way with words.

But Paula was more than a pretty face. Sure, she had perfectly coiffed hair and wore designer clothes and jewelry, but she had a razor-sharp mind to go with her smart appearance, and she quickly showed she was nobody's pushover. She could stand toe to toe and verbally slug it out with some of the most powerful and even most obnoxious Senators. In other words, she gave more than she got--and her opponents, more often than not, got more than they bargained for.

She was a great debater, a human dynamo who brought unrivaled energy and unbridled enthusiasm to the Senate. She was extremely intelligent and tremendously interested in politics--and she was very good at it. A quick look at her successful Senate campaign in 1980 attests to just how good she was.

By today's big-bucks standards, Paula's campaign was strictly bargain-basement. Fox News pundit Dick Morris, her pollster at the time, recalls the campaign being too cash-strapped to afford a teleprompter. Aides made do by writing scripts on paper towels and unrolling them as Paula spoke. In the end, her powers of persuasion and command of the facts carried the day with voters.

After stirring voters' hearts in Florida, Paula stirred things up in the Nation's Capital. Change was in the wind when she blew into wintry Washington in January 1981. For starters, she became the first Senator to bring her husband to Washington, which resulted in the Senate wives' club being renamed the Senate spouses' club. She helped spearhead legislation to help widows and women divorcees get back into the job market. She supported efforts to improve pensions for women and make them more equal to that of men. She further fought to get daycare for the children of Senate employees. Even the all-male Senate gym was no sweat for Paula, who forced her fellow Senators to wear swimming suits so that she could swim there as well.

To me, Paula was a ray of Florida sunshine that brightened my days during the years we served together in the Senate. She was a true blue conservative who was warm, witty and cracked wise. We shared many a joke and a laugh along with our commonly held moral, ethical and religious beliefs. And we became political allies and fast friends. In fact, Paula became and always remained one of my closest friends.

Both on and off Capitol Hill, she always could be counted on through good times and bad. I quickly learned that her word was her bond. Whenever I needed help, she was always there. And

I certainly hope the reverse was true--that I was there whenever she needed help.

Women, minorities, as well as the elderly with disabilities also learned they could count on Paula. She was a tireless advocate in their behalf--and they loved her for it. She also showed great political courage in 1984, when she disclosed during a hearing that she had been molested as a child. I am sure that horrific childhood experience, in part, informed her efforts to champion children's causes.

While her legislative accomplishments are too numerous to mention here, I would like to make mention of one in particular. Paula spearheaded the Missing Children's Act of 1982, the bill that instituted the National Center for Missing & Exploited Children. Thanks to that landmark legislation, the names of thousands of missing children are now part of the FBI's national crime database.

To secure the bill's passage, Paula personally lobbied President Reagan. As great a communicator as he was, the ``Great Communicator'' knew he had met his match in Paula and lent his support. Of course the President knew that Paula could always be relied on to help deliver a legislative win for ``the Gipper'' in the Senate--which she did many times.

As a staunch conservative, she found common cause with the President and other conservatives, including myself, on numerous issues. She was, for example, an ardent anti-communist who supported the President's hard line against Soviet expansionism. She also despised overly big government--and, there is certainly a lot to despise in Washington, especially these days.

Paula was an unwavering friend for those who shared her values and commitment, but she was an implacable foe of political corruption and to those who peddled illegal drugs on our streets and in our schools. She fought for legislation to cut foreign aid to nations that refused to reduce their export of harmful drugs. She further assisted in creating the Senate Caucus on International Narcotics Control and helped initiate the South Florida Drug Task Force.

I would be remiss if I didn't say something about Paula's stamina. She could endure as well as endear--often when she was in great pain. In 1982, she was knocked unconscious when a TV studio partition fell on her during an interview in Florida.

Those of us who worked closely with her know that the years that followed were often filled with crippling pain. Between votes on the Senate floor, she would often go to a room lent to her by Senator Strom Thurmond in the Capitol and lie in traction in a hospital bed.

Despite the immense pain stemming from her debilitating injury, Paula soldiered on during her 1986 bid for re-election. On campaign trips across Florida Paula would sometimes lay in the back seat moaning between appearances, according to Congressman John Mica, her aide at the time. While she lost that race to Bob Graham, it is amazing that she did so well and a testament to her courage and determination.

Paula's service did not end with her Senate term. Her contributions to her State, community, family and church over the past 23 years have been truly significant. She also didn't lose her sense of humor. When a Florida State senator told Paula several years ago that she was trying to do a good job, Paula smiled, grasped her hand firmly and said simply: ``Try harder, dear.''

As great a public servant she was, Paula was just as remarkable in her private life--as a wife, mother, grandmother and great-grandmother. She had a fierce love for each member of her immediate and extended family. And her husband Gene is no less remarkable. He is one of the kindest, most friendly, decent and honorable men I have ever known--and his love for Paula has always been uplifting to behold.

In every aspect of their lives, they have been an exemplary couple. They have been just as exemplary as parents. As members of The Church of Jesus Christ of Latter-day Saints, Gene and Paula took to heart the Mormon teaching that families are forever. They were determined to ensure that every family member worked hard toward achieving the goal of being able to be together in the hereafter. They have a great family and are well on their way toward achieving that lofty goal.

In the Old Testament book of Proverbs, we read:

Who can find a virtuous woman, for her price is far above

rubies. The heart of her husband doth safely trust in her, so

that he shall have no need of spoil . . . She stretcheth out

her hand to the poor; yea, she reacheth forth her hands to

the needy . . . Strength and honor are her clothing; and she

shall rejoice in the time to come . . . She looketh well to

the ways of her household, and eateth not the bread of

idleness. Her children arise up, and call her blessed; her

husband also, and he praiseth her . . . Favour is deceitful

and beauty is vain: but a woman that feareth the Lord, she

shall be praised. Give her of the fruit of her hands; and let

her own works praise her in the gates (Proverbs 31:10-31).

Today, I am honored to have the privilege of adding my voice to the chorus of praise for my dear friend, Paula Hawkins. I feel deeply that a loving Father in heaven and Jesus Christ have already embraced Paula and taken her into their care and treatment as one of truly great women who graced this Earth.

I truly loved Paula Hawkins. We were best friends. Like Gene and the Hawkins' three children--Genean, Kevin and Kelly--11 grandchildren and 10 great-grandchildren, my wife Elaine and I look forward to a joyous reunion one day with Paula on the other side of the veil.

In the meantime, it is my hope that all of us here in this chamber will reflect on her service and follow her advice to that State Senator: Try Harder!

I would be delighted to. To be clear, so-called overpayments to Medicare Advantage plans do not go to the plans. As a matter of fact, they go to the seniors in the form of extra benefits. That is a pretty important point a lot of people miss. Seventy-five percent of the additional payments to Medicare Advantage plans are used to provide seniors with extra benefits, including chronic care management--you would think you would want to do that--hearing aids, eyeglasses. The other 25 percent of any extra payments are returned to the Federal Government. I cannot imagine why anybody would not want to do that.

The Senator from Texas pointed out the Medicare trust fund is going broke. Yet what do we have on the other side? They take almost $500 billion out of Medicare. Trust me, I am deeply concerned about the solvency of the Medicare trust fund.

We are listening to only one of the two doctors in the Senate who knows, who has been on the ground, has met with the people, who understands what this means to senior citizens. One-quarter of them are on Medicare Advantage.

In the end, I believe we not only actually help seniors be more healthy but save a lot of money in the end. Trust me, I am deeply concerned about the solvency of the Medicare trust fund. We have been sounding that alarm for years. That is why it is so shocking we are debating a $2.5 trillion health reform bill that does almost nothing to make sure Medicare is sound and, in fact, does a lot of things to make it unsound, or almost nothing to make sure Medicare is around for future generations.

Instead, we are just creating another Federal entitlement program that we cannot afford while Medicare has $38 trillion in unfunded liabilities.

That is right. Go ahead.

We are taking $\1/2\ trillion out of a program that is going to be insolvent before the end of this decade and we are giving it to another program that is already insolvent.

That will be insolvent. It is almost insane what they are doing. And they wonder why the American people are having such a difficult time, why we have 10 percent unemployed, why the underemployment is 17 percent in this country. Those are people who are trying to get part-time jobs because they can't get full-time jobs. So 17 percent is the real number.

This whole program is about helping low-income people and minorities, when you stop and think about it. That is what Medicare Advantage does. As the distinguished Senator from Arizona has said, they can't afford these supplemental policies on which AARP will make a lot of money if they can kill this program. There are a lot of gaps in traditional Medicare benefits, including high cost sharing and no out-of-pocket limits. That is why 89 percent of seniors have some form of supplemental coverage on top of Medicare. For many low-income Americans and minorities, Medicare Advantage is the only way they can afford the supplemental coverage.

I compliment all of my colleagues here on the floor--the distinguished Senator from Arizona; the distinguished Senator from Idaho; the distinguished Senator from Texas; our only

doctor on the floor right now and one of only two in the Senate, Senator Barrasso from Wyoming; and, of course, our leader in the Senate, both on the Budget Committee, Senator Gregg and, of course, Senator Alexander. You guys have really summed this up.

A lot of seniors are going to be badly hurt by these cuts, no question, and the poor.

And a lot of them are minorities, by the way. This is amazing to me, how we go through all kinds of demagoguing about low- income people and minorities, and yet they are going to take one of the most important benefits away from them. That benefit is mentioned in the Medicare handbook for 2010, yet they act as if it is not part of Medicare. I can't believe some of the arguments that have come from the other side.

Will the Senator yield on that point?

The Senator has pointed out he does not believe they can afford all these programs. The Senator is not suggesting this is a game, is he?

Mr. President, we are talking right now about a program that was well thought out, that was meant to help the poor and minorities. It was a bipartisan effort by Democrats and Republicans, and has worked amazingly well and is available to all recipients of Medicare.

Medicare Advantage came about in a bipartisan way to solve real problems. We were not getting health care to rural America. We were not getting health care, in many respects, to some of the poorer, some of the minority folks in our country.

I want to read a special letter here. Let me read this letter. I know it may have been read before, but I am going to read it again. It is dated September 30, 2003. ``Dear Medicare Conferees.'' I happened to be a member of that conference. I was one of those in there who led the fight for Medicare Advantage.

We are writing to ask you, as a member of the Medicare

conference committee, to ensure the final Medicare bill

includes a meaningful increase in Medicare+Choice--

That is the predecessor to Medicaid Advantage--

funding in fiscal years 2004 and 2005. While the Senate

bill makes a modest step toward this goal, we hope the

stronger provisions in the House bill will be preserved in

conference.

For nearly 5 million Medicare beneficiaries across America,

Medicare+Choice [the predecessor] is an essential program

that provides high quality, comprehensive, affordable health

coverage. These seniors and disabled Americans have

voluntarily chosen to receive their health coverage through

Medicare HMOs and other private plans because of their

excellent value. To preserve this important option for

seniors across the country, bipartisan legislation was

introduced in the Senate as S. 590, the ``Medicare+Choice

Equity and Access Act.''

That became Medicare Advantage.

Co-sponsored by Senators Schumer and Santorum, S. 590

sought to increase reimbursement rates and add new

reimbursement options for Medicare+Choice programs.

It goes on to make a compelling case for what came from that conference as Medicare Advantage, and that was utterly pleasing to everybody who signed this letter.

By the way, let me just mention the Democrats who signed this letter, who wanted Medicare Advantage: John Kerry, Arlen Specter, Dianne Feinstein, Joe Lieberman, Patty Murray, Charles Schumer, Frank Lautenberg, Hillary Rodham Clinton, Ron Wyden, Mark Dayton, Mary Landrieu, Maria Cantwell, and Christopher Dodd. Fourteen Democrats signed this letter, along with a number of bipartisan Republicans, who believed we really needed to include Medicare Advantage.

Now, to take advantage, our colleagues on the other side want to do away with Medicare Advantage, except in 3 States that are, for the most part, Democratic States, leaving all the other 46 States high and dry.

Let me just say that this letter is in response--it was a letter given to the Medicare modernization conference committee. This conference committee gave them everything they wanted for Medicare Advantage. This legislative grant of power gave the signatories the Medicare Advantage Program, which now 11 million senior citizens enjoy today.

Now those on the left want to do away with this important program that benefits seniors and minorities in an amazing set of ways. I am against that effort. I hope our colleagues on the other side will realize what they are doing. It just is not right. Vision care and dental care and so many other approaches that really work for this program will be taken away from these people. They are going to have to spend $175 to $200 a month to get what they got for an average of about $54 a month. These are people who need our help.

Let me change the subject for a minute because I understand my colleague from Oregon was discussing Medicare Advantage and talking about some Medicare Advantage companies living ``high off the hog'' and inferring that is a rationale for $120 billion in Medicare Advantage cuts. I have two responses to my colleague from Oregon. This is not about Medicare Advantage insurance companies, this is about preserving the choice of coverage for seniors.

I ask for another 2 minutes.

He also said that under the Reid bill, Medicare Advantage beneficiaries will be able to keep what they have. You know, he is right about some Medicare Advantage beneficiaries being able to keep what they have due to the Nelson grandfathering amendment passed by the Senate Finance Committee this fall. But those protections primarily apply to Medicare Advantage beneficiaries in Florida, Oregon, and New York--beneficiaries living in other parts of the country. Rural areas will not be protected.

So let's be clear when we say Medicare Advantage beneficiaries' benefits will not be cut. These extra benefits include lower premiums, deductibles, and copayments, dental coverage, and hearing aids, to name only a few.

Bottom line: Most Medicare Advantage beneficiaries may not keep what they have, contrary to the President's promise to them.

Mr. President, I urge my colleagues to support my motion to commit.

Simply put, this motion protects Medicare beneficiaries participating in the Medicare Advantage Program by eliminating the $120 billion in cuts to the Medicare Advantage Program in the Reid bill.

Let me make this point as clearly as I can. A vote against my amendment is a vote for slashing benefits for 11 million seniors and low-income Americans, including vision benefits, dental benefits, home care for chronic illness, wellness programs, disease management programs, limits on cost sharing for primary care physician visits, reduced premiums for Part B, reduced premiums for Part D, reduced cost sharing for breast and prostrate cancer screening.

When we did this, 14 Democrats, many of whom are sitting here in the Senate right now, supported this development of Medicare Advantage.

Have no doubt, when you vote against my amendment, you will be voting to cut these lifesaving and life-enhancing benefits. The choice is yours and the choice is clear. Our Nation's seniors are watching.

Mr. President, I thank my friend and colleague who has been making these extraordinary arguments on the Senate floor. I will spend a little bit of time chatting about those in just a minute.

Motion to Commit

Mr. President, I send a motion to commit with instructions to the desk and ask for its immediate consideration.

Mr. President, I always enjoy my colleague from Illinois. He is as good a populist speaker as we have in the Senate. No matter what comes up, he can talk about it.

I get a big kick out of him saying there are not any Republican bills. Well, there are six of them. You can get a hold of those bills. The problem is, we only have 40 votes, and we know it.

The fact is, the more I thought about it, I thought to myself, where are the printed bills that we always have on our desks? Where is the Democratic printed bill? I am sure it is somewhere. Usually when we debate any bill on this floor, we have the bill printed and put on our desks. Maybe it has been printed, but it isn't on our desks, and I think there is a good reason for it. It is 2,074 pages long. It is enough to make you barf.

When you stop and think about it, why do we need 2,074 pages when 85 percent of persons basically like the health insurance they have? The other 15 percent, if you break it down, you get down to about 7 million to 15 million people who need our help.

By the time you knock off those who work for a company that provides health insurance but they don't choose to take it because they would rather have the money or you take the approximately 11 million people who qualify for CHIP, the Child Health Insurance Program, or Medicaid, but aren't enrolled; or you take those who earn over $75,000 a year and just won't buy it but can afford it, or you take those undocumented workers or others who are legal aliens who for some reason do not have coverage, you get down to about 15 million people, at most. We can subsidize them, and we wouldn't have to throw our whole system out into the trash can--a system that 85 percent of the American people basically thinks is working relatively well for them.

It seems crazy to me. Why are we doing that? Fifty percent of the people in this country basically don't pay

Federal income taxes as we sit here. The upper 50 percent pay 97 percent of all income taxes. The bottom 50 percent pay about 3 or 4 percent, at the very most. Think about that. What are we going to do-- go to 60 percent so that one side can keep the numbers here so they can stay in majority control? Are we going to get people to be more responsible for their own health care?

On top of it all, they want a government plan. Why do they want that? Medicare is the government plan. For all intents and purposes, it is very well-intentioned, but it has $38 trillion in unfunded liabilities as we sit here--mainly because the Federal Government is running it. If the State governments ran it and we had 50 State laboratories, I doubt seriously we would be in this terrible fix. We are saddling our children and grandchildren and great-grandchildren with tremendous debt. What is their answer? We are going to take $464 billion--almost $500 billion--out of Medicare, and we are going to put it towards making our health plan deficit neutral.

They have used every accounting and budgetary gimmick they can to get this plan below $1 trillion, because they charge taxes from the day it is passed, but the plan is not implemented for 4 years--until 2014. That way, they can try to indicate to the American people that they are bringing the cost of the bill in at under $1 trillion. That is a lot of money because today we are spending $2.4 trillion on health care, run primarily by the Federal Government--two-thirds of which is run by the Federal Government. I might add that there are estimates that $1.2 trillion of that $2.4 trillion is wasted money. Yet we are going to add another $2.5 trillion, which is what this bill really costs if you extrapolate it out over 10 years and not just from 2014 to 2020. We are going to spend another $2.5 trillion, if you extrapolate it out. No wonder the American people are so up in arms. They ought to be. We are going to be spending $5 trillion on health care if my friends are successful in what they are doing. They know we have 40 votes, at most.

I have been here a long time. Senator Lugar and I are the most senior Republicans on the floor of the Senate. We came at the same time. I have to say that, having been here all these years, we have never really had a fiscally conservative majority in the Senate, except through great Presidential leadership--Reagan, Bush 1, even President Clinton on occasion, and Bush 2. We have always had enough liberals on our side to go with the liberal Democrats so we have never really had a fiscally conservative majority. It would take 60 votes to get this country under control, from a spending standpoint.

I appreciate the comments of my friend from Illinois about Medicare Advantage, but he is just plain wrong. Medicare Advantage has made a tremendous difference in the lives of almost 11 million Medicare beneficiaries. He failed to mention that the program has given choice to every Medicare beneficiary across the country, regardless of where they live. Medicare Advantage saves beneficiaries' dollars. Seniors have lower copayments, cost sharing, and deductibles through Medicare Advantage Programs. That is why many lower income seniors participate in the Medicare Advantage Program. Up to 25 percent of all seniors participate. Why? Because it works for them.

I was on the Medicare modernization conference committee. We came up with it because beneficiaries living in rural America did not have access to Medicare HMO plans before Medicare Advantage was created. If my friends will take the time to listen to my statement on Medicare Advantage, I believe they will find it insightful and it will rebut most everything they are saying.

Mr. President, the motion I just sent to the desk is to commit the Reid health care bill to the Finance Committee in order to eliminate the Medicare Advantage cuts of $120 billion contained in this legislation.

I know I mentioned this point over and over again, but it bears repeating. Throughout the health care debate, we have heard the President say he is not going to mess with Medicare. Unfortunately, that is not the case with the Reid bill we are currently considering. To be clear, the Reid bill cuts Medicare by $465 billion to fund a new government program. Unfortunately, our seniors and the disabled will suffer the consequences as a result of these reductions.

Throughout my Senate service, I have fought to strengthen, preserve, and protect Medicare. I think most Republicans have, in spite of what my colleagues say on the other side. Unless we are pouring money down the drain, they do not believe we are doing anything. Medicare is already in trouble today. The program faces serious challenges in the future. The Medicare trust fund will be insolvent by 2017. The program has more than $37 trillion in unfunded liability. The Reid bill will make this situation much worse.

Look at the cuts to Medicare. Hospitals, cut $134.7 billion in this bill. Where are they going to get that money? How are we going to keep hospitals going in the future? Hospices, cut $7.7 billion. Nursing homes, cut $14.6 billion. I have been to all kinds of nursing homes in this country, and they have a rough time. We are going to take over $14 billion from nursing homes, and they are critical to our senior citizens. For Medicare Advantage, $120 billion is coming out of the program. Home health agencies, $4.1 billion. So there is $135 billion from hospitals, $120 billion from Medicare Advantage, about $15 billion from nursing homes, more than $40 billion from home health care agencies, and close to $8 billion from hospice providers.

These cuts will threaten beneficiaries' access to care as Medicare providers find it more and more challenging to provide health services to Medicare patients. And what is their argument? They say it is the awful insurance companies causing these problems. No, it is the awful Federal Government causing these troubles. It is the awful bureaucracy and the awful Federal Government that dominates all of our lives. If this bill passes, ``Katy, bar the door.'' Our lives will be completely controlled by the Federal Government on one-sixth of the American economy.

Today, I want to focus my comments on the Medicare Advantage Program. It has been totally distorted by my colleagues, in my opinion--I am sure not intentionally. They would never do that.

By the way, here is the bill. This is not the printed version; this is the bill. It is no small bill. It is one of the largest I have seen in my time here.

Mr. President, I am strongly opposed to the deep cuts--$120 billion over 10 years--that the Reid bill would impose on the benefits of almost 11 million Medicare beneficiaries, Medicare beneficiaries who currently are enrolled in the Medicare Advantage Program.

While they knock Medicare Advantage, they are pushing people toward the AARP Medigap insurance program. AARP makes hundreds of millions and billions of dollars off senior citizens. It is small wonder that AARP supports this monstrosity of a bill. It is in their best financial interest.

As we consider the serious threat these cuts pose to seniors, I want to point out that during the Finance Committee markup this fall, we saw Senator Bill Nelson from Florida, and other Democrats, work to partially mitigate the impact of the bill's Medicare Advantage funding cuts. This effort, while taking very small steps, clearly demonstrated that a number of our Democratic colleagues recognize the value offered by Medicare Advantage plans and the danger of enacting the deep cuts proposed by the pending bill. Unfortunately, only a limited number of States would benefit from the Nelson amendment, so most Medicare Advantage beneficiaries are not protected from the cuts. But they recognize how important this program is.

I also recall that 6 years ago, when Congress enacted the Medicare Modernization Act, we intentionally provided new funding to stabilize the Medicare health plan program. This was one of the few issues on which there was strong bipartisan agreement during the 2003 Medicare debate. I was here. I was on the conference committee. I happened to bring about that Medicare Modernization Act. In fact, in June 2003, several of our colleagues, including the Senator from New York and Senator Kerry from Massachusetts--great Democrats--offered a bipartisan amendment on the Senate floor to provide additional funding for benefits under the Medicare Advantage Program. Why would they do that if it

is such a lousy program? Now, all of a sudden, it is a lousy program because they want the money to be used for a massive, new government- run program. Back then, they wanted additional money for Medicare Advantage, recognizing how important the program was.

Later that year, as the Medicare conference committee completed its deliberations, a bipartisan group of 18 Senators signed a letter urging the conferees to provide a meaningful increase in Medicare Advantage funding. This letter was signed by a diverse group of colleagues, including Democratic Senators such as Dianne Feinstein from California, Christopher Dodd from Connecticut, Ron Wyden from Oregon, Frank Lautenberg from New Jersey, Patty Murray from Washington, Arlen Specter from Pennsylvania, Mary Landrieu from Louisiana, and Maria Cantwell, just to mention a few. It was bipartisan. They recognized how important this program was, and they recognized we were trying to solve major problems for people, especially in rural areas.

I think it would be worthwhile to reflect back on the 2003 debate and remember the reasons this issue inspired such strong bipartisan consensus. You don't hear it at all from that side at all--after the program has proven its efficacy and that it works. We supported the Medicare Advantage plan 6 years ago. It was the right thing to do for beneficiaries. The same logic holds true today.

We owe it to the beneficiaries to provide a strong, adequately funded program that provides them with high-quality health care choices. Every Medicare beneficiary can go into Medicare Advantage if they desire, under current circumstances.

During the Finance Committee's consideration of the Baucus health bill, I offered an amendment to protect extra benefits currently enjoyed by Medicare Advantage beneficiaries. Unfortunately, the amendment was defeated. In other words, the President's pledge assuring Americans they would not lose their benefits was not met by either the Finance Committee bill or the Reid bill currently being considered by the Senate.

Here is how supporters of the Finance bill justified the Medicare Advantage reduction: They argued that the extra benefits that would be cut, such as vision care and dental care for these poor people, reduced hospital deductibles, lower copayments and premiums, were not statutory benefits. They claim they were not statutory benefits offered in the Medicare fee-for-service program.

Therefore, those extra benefits did not count, although a quarter of the Medicare beneficiaries were getting them from Medicare. But try telling them that they did not count to a Medicare Advantage enrollee who has been receiving these additional benefits.

I want to talk about the differences between fee-for-service Medicare and Medicare Advantage. Because of the gaps in traditional Medicare, it is incumbent for most beneficiaries to buy a Medigap policy which wraps around the Medicare benefit. Guess who provides these Medicare policies, among others, but really in a big way. Why, the AARP.

On average, these policies cost a couple hundred dollars a month. In comparison, the average monthly premium in a Medicare Advantage plan is $54 in 2009. These plans also fill in the coverage gaps of Medicare.

Moreover, almost half of all Medicare Advantage beneficiaries are in plans that charge no monthly premium. Let me say that again. If you have to buy a Medigap policy for traditional fee-for-service Medicare, you will have to buy a policy that costs a few hundred dollars a month compared to Medicare Advantage plans which cost beneficiaries on average $54 a month in 2009. This is why several studies have shown that Medicare Advantage is one of the most popular choices for the low- income elderly because they do not have to buy a Medigap policy.

This week we have had Members on the other side of the aisle claim that Medicare Advantage is not part of Medicare. That is how far they have gone to distort the record. Again, I hope nobody was doing that intentionally and that it is a lack of knowledge about the Medicare program. Keep in mind, we have Members on the other side of the aisle who claim Medicare Advantage is not part of Medicare. It is absolutely unbelievable. I invite every Member making this claim to turn to page 50 of the 2010 Medicare handbook. It expressly says:

A Medicare Advantage Plan . . . is another health coverage

choice you may have as part of Medicare.

That argument has been not only fallacious but should never have been made. The bottom line is simple. If you are cutting Medicare Advantage benefits, you are cutting Medicare. I raised this point yesterday, but I want to raise it again.

Yesterday the distinguished Senator from Connecticut, my friend Senator Dodd, mentioned that the bureaucrat-controlled Medicare commission will not cut benefits in Part A and Part B. Once again, my friends on the other side are only telling you half the story. So much for transparency. On page 1,005 of this bill I can hardly lift, it states in plain English:

. . . include recommendations to reduce Medicare payments

under C and D.

Let me translate that in English for everybody. That means the commission can cut Medicare Advantage, which is Medicare Part C, and the Medicare prescription drug benefit which is Medicare Part D.

Making sure that we take enough time to discuss a 2,074-page bill that will affect every American life and every American business is the sacred duty of every Senator in this Chamber. We must take the time to fully discuss this bill, and it is going to take some time, believe me.

I have heard several Members from the other side of the aisle characterize the Medicare Advantage Program as a giveaway to the insurance industry. Let me say a few words about the creation of Medicare Advantage.

I served, as I said, as a member of the House-Senate conference committee which wrote the Medicare Modernization Act of 2003. So did the distinguished Senator from Montana, Mr. Baucus. Among other things, this law created the Medicare Advantage Program. When conference committee members were negotiating the conference report, several of us insisted that the Medicare Advantage Program was necessary in order to provide health care coverage choices to Medicare beneficiaries.

At that time, there were many parts of the country where Medicare beneficiaries did not have adequate choices in coverage. In fact, the only choice offered to them was traditional fee-for-service Medicare, a one-size-fits-all government-run health program, which I might add, did not work well. By creating the Medicare Advantage Program, we provided beneficiaries with choice in coverage and then empowered them to make their own health care decisions as opposed to the Federal Government. We gave them the empowerment to make their own decisions. That is unique around here. There will not be any empowerment if this bill passes. In fact, there are almost 2,000 decisions that the Secretary of Health and Human Services has the authority to make. You might like the current Health and Human Services Secretary today, but what if a good conservative gets in that position? Of course, it is very difficult because a good conservative would be filibustered.

Today every Medicare beneficiary may choose from several health plans because of what we did through the Medicare Modernization Act of 2003. We should have learned our lessons from legislative changes made in the Balanced Budget Act of 1997 when we cut payments for Medicare HMOs. These plans collapsed, especially in rural areas, because Washington-- our wonderful people here in Washington--decided to set artificially low payment rates. In fact, in Utah, all Medicare HMOs eventually ceased operations because they were operating in the red.

I fear history could repeat itself if we are not careful. During the Medicare Modernization Act conference, we fixed the problem. We increased reimbursement rates so that all Medicare beneficiaries, regardless of where they live, be it in Fillmore, UT, or New York City, had choice in coverage. Again, we did not want beneficiaries stuck with a one-size-fits-all government plan which, by the way, this monstrosity is.

Today Medicare Advantage works. Every Medicare beneficiary has access to a Medicare Advantage plan if they

so choose. One-quarter of them have so chosen, and it has worked amazingly well. Close to 90 percent of Medicare beneficiaries participating in the program are satisfied with their health coverage, but that could all change should this health care reform legislation currently being considered become law. Choice in coverage has made a difference in the lives of more than 10 million Americans nationwide. Beneficiaries in every State have benefitted from Medicare Advantage.

Let me show you some things here. Since this is very difficult to read on television, let me go through all these States. These charts show the number of Medicare Advantage beneficiaries in each state.

Alabama has 181,304 people on Medicare Advantage; Alaska, 462; Arizona, 329,157; Arkansas, 70,137; California, 1,606,193; Colorado 198,521; Connecticut, 94,181; Delaware, 6,661; the District of Columbia, 7,976. How about Florida--946,836, almost 1 million people on Medicare Advantage. Good reason. It works. Georgia, 176,090; Hawaii, 79,386; Idaho, 60,676; Illinois, 176,395; Indiana, 148,174; Iowa, 63,902 people enrolled in Medicare Advantage.

Let's proceed further. Kansas, 34,867 people enrolled in Medicare Advantage; Kentucky, 110,814; Louisiana, 151,954; Maine, 26,984; Maryland, 56,812; Massachusetts, 199,727; Michigan, 406,124; Minnesota, 284,101; Mississippi, 44,772; Missouri, 195,036; Montana, 27,592; Nebraska, 30,571; Nevada, 104,043; New Hampshire, 13,200; New Jersey, 156,607; New Mexico, 73,567; look at New York, 853,387; North Carolina, 251,738 people enrolled in Medicare Advantage who love the program; North Dakota, 7,633; Ohio, 499,819. Gee whiz, that is a lot of people who are satisfied with Medicare Advantage. Oklahoma, 84,980; Oregon, one of the most liberal States in the Union, 249,993; Pennsylvania, 864,040; Puerto Rico, even 400,991; Rhode Island, 65,108; South Carolina, 110,949--these are senior citizens--South Dakota, 8,973; Tennessee, 233,024; Texas, 532,242; my own State of Utah, 85,585; Vermont, only 3,966, but 3,000 people, 4,000 people in Vermont; Virginia, 151,942; Washington, 225,918; West Virginia, 88,027; Wisconsin, 243,443; and Wyoming, 3,942.

These are people who benefit from Medicare Advantage who would not like to lose their current health coverage.

This choice in coverage has made a difference in the lives of more than almost 11 million people, 11 million individuals nationwide and families who benefit from this program. The extra benefits I mentioned earlier are being portrayed as gym memberships as opposed to lower premiums, copayments, and deductibles.

Let me read some letters from my constituents. These are real lives being affected by the cuts contemplated in this bill. You should see some of the beautiful handwriting. Some of it is very shaky but beautiful, to me anyway.

From Cedar City, UT:

Senator Hatch, I am writing you to request your help in

preserving our Medicare Advantage plans from being cut.

My Medicare Advantage plan provides me with benefits and

savings that traditional Medicare did not provide.

I like my plan very much. It allows me my choice of

Doctors, Hospitals and various specialists if needed.

I do not want to see a single national Health Care Plan.

I do not want cuts in Medicare Advantage Programs.

Senator Hatch, when you go to Washington, DC, please do not

cut our Medicare Advantage Programs.

Vote to maintain our present system. Thank you for your

service.

Sincerely. P.S.--I speak for my husband, too.

I bet.

Here is another one:

Honorable Senator Hatch: Please do not vote for any bill

which would compromise my Medicare Advantage plan. I am 92

years old, and of necessity worked until I was 87, and have

taken pride in being self supporting. I had to retire six and

a half years ago because of pancreatic cancer. Amazingly, I

recovered and live an active, useful life. My Medicare

Advantage plan makes the difference between living with self

respect and having to depend on others. Once again, I beg of

you--don't deprive me of my self respect. Let me keep my

Medicare Advantage plan. Sincerely.

Here is another one:

Dear Senator, we understand our President and Congress

wants to eliminate the Medicare Advantage program for the

elderly.

We were both on Blue Cross/Blue Shield program for several

years, costing us hundreds of dollars each year. Since we

joined the Medicare Advantage program it provides dental,

fitness, vision, and full medical coverage. The cost of this

program has saved us hundreds of dollars.

Please don't let them take this program from the elderly

who are on low fixed incomes and will cause us further

problems. We ask you for your support to save the Medicare

Advantage program.

Here is another one:

Dear Senator Hatch, it has again been brought to my

attention that the Administration is seriously considering

cutting the funding to the Medicare Advantage program. I

would like to encourage you to oppose these funding cuts

because of the negative repercussions seniors and those with

disabilities will suffer if they lose a program due to

insufficient funding.

[Medicare Advantage] health plans give individuals the

freedom to afford the care they need. The premiums and out-

of-pocket costs are allowing recipients to save money on

regular doctor visits as well as medication. These savings

are essential for someone on a low fixed income like many of

the individuals who participate in the program.

If Congress continues to cut the [Medicare Advantage]

program, beneficiaries will not only be forced to pay higher

premiums and higher out of pocket costs but will also lose

the unique benefits that the [Medicare Advantage] health

plans offer, such as disease management and preventive care,

which reduce their daily discomforts and help them avoid

unnecessary hospital visits.

What about this one?

As a retired voter in your state, I would ask you to please

do all that you can to eliminate the proposed cut in Medicare

Advantage funds in the proposed Senate bill. You have

demonstrated the sensitivity for the elderly in our state. I

hope you continue to take our needs as fixed income residents

into consideration.

How about this?

I am greatly concerned about efforts to reduce benefits to

the Medicare Advantage plans. I am a member of the Humana

plan. It has been working for me because of the low premiums,

low deductibles and co-pays, wellness and enhanced preventive

benefits, and coordinated care and disease assistance

programs. I have been unemployed for over a year now for

several reasons, among them my age, I am sure. I received a

monthly $527 social security check as my only income. I can

survive only because I am living with my son and family.

Please do what you can. Thanks so much.

Here is another one:

Dear Senator, I realize times are tough, but my medicare

advantage plan through DMBA is a real blessing to me. I'd

like to think that with all the talk of health care change,

that plans that are working now would not be abandoned, or at

least replaced with something as good, or better. Please

think carefully and with sincere prayer, about the

consequences to old retired people like me, before you vote

on these issues. Thank you.

He recommends that I pray--which I do--about this.

Here is another one:

We like the Medicare Advantage Plan. Seniors need to have a

choice in health care, and help in keeping that program.

Medicare seems to always be cutting benefits for seniors.

Have you talked to seniors lately? Doctors are not accepting

anyone on Medicare and turn them away. This is an issue that

needs to be addressed in health care. Keeping the Medicare

Advantage Plan helps doctors accept a patient that has

Medicare. Without an additional supplemental plan, seniors

are in trouble with health care physicians. Please don't

cause more suffering for seniors by cutting the Medicare

Advantage programs.

Here is one:

Senator, we implore you to not allow the Medicare Advantage

Plan to be compromised. As seniors, on fixed incomes, my

husband and I find the monies, which have soared in 2009/2010

to allow us to participate in the Medicare Advantage Plan.

Please see that this plan will remain available to all

seniors with the same coverage. Sincerely.

Here is one:

As retired, fixed income, senior citizens we benefit by and

rely on a Medicare Advantage Plan. We cannot afford the

premiums that the Medigap insurance would cost if the

Advantage Plans were not available. If not for our Advantage

Plan, we would now be financially destitute because of the

cost of my husband's health care these last 2 years. Without

our Advantage Plan, we would not be able to afford yearly

physical exams and preventive care. We also benefit from the

Silver Sneakers exercise program as part of our plan. Senator

Hatch, we urge you in any new health care plan, to: Keep

Medicare Advantage Plans available; provide no government

option/single payer; give no health care for illegals; fix

the existing health system before adopting something new.

Here is another one:

Medicare Advantage Plans work great. Please don't let

President Obama take them from us.

Here is another one:

We are Republicans from the State of Utah. Our concerns

have to do with the

Medicare Advantage Program as offered currently to senior

citizens and participants in Medicare. Part of this plan

includes our participation in the Silver Sneakers Program

which gives us the opportunity to use the local recreation

center in Roy, UT. Our current Medicare Advantage Program

covers the cost of the Silver Sneakers Program. Daily use of

the Roy Recreation Center would be prohibitive to us if we

had to carry the burden of the cost of this program. Thus, we

encourage you to keep in mind these concerns as any health

plan is proposed in Congress over the next few months. Thank

you for your consideration in this matter. Please let us know

your position in this matter.

How about this one?

I would like you to support the medicare advantage system

and vote against any cuts to the advantage system. I am a

member of the Humana Advantage program and very happy with

the program. They provide additional benefits over Medicare

with no additional cost, which is a direct financial

advantage to seniors.

Let me just read one more. I have so many of these I could go on for hours, but let me just read one more.

I'm very concerned about the President's determination to

do away with ``Medicare Advantage.'' My coverage is with

DMBA, which is a nonprofit. It is my understanding DMBA

actually pays some medical expenses over and above what

Medicare authorizes. In addition, they administer the whole

plan, which means I don't have to deal with Medicare

directly. I feel that the amount of premium I pay to DMBA is

worth these benefits. I'm willing to bet that Medicare costs

will increase, if they have to start spending time dealing

with seniors who currently have this kind of third party

intervention. If there are really 10 million seniors who have

``Medicare Advantage,'' how can any of the members of

Congress vote to eliminate it? Thanks, so much, for your time

and efforts.

Well, I think that last letter kind of sums it up. How can anybody vote to do away with the Medicare Advantage Program?

Just to be clear, the SilverSneakers Program--which has been much maligned by the other side, who helped to enact the program, and who talk about prevention and care all the time--is one that has made a difference in the lives of many seniors because it encourages them to get out of their homes and remain active. It has been helpful to those with serious weight issues and valuable to women suffering with osteoporosis and joint problems.

In fact, I have received several hundred letters telling me how much Medicare Advantage beneficiaries appreciate the program. I would like to read a couple of those letters at this time, if I can. I will just read a few of them because there are many letters.

I recently have suffered from a heart attack and now

receive treatment as a member of the Silver Sneakers. Being a

part of the Silver Sneakers has helped my life immensely. The

treatment I receive at the Silver Sneakers has readily

increased my quality of life after my heart attack. I hope

the funding for Silver Sneakers is not cut.

Well, that is Medicare Advantage. Here is the last I will read on the list.

I would like to express to you the need for the

SilverSneakers program to continue. I have participated in

this program for about 3 years now. I cannot begin to tell

you the difference it has made since joining the program. I

have not felt better health wise since joining the

SilverSneakers program. My overall wellbeing both physically

and mentally have improved. I go to the gym 3 times a week. I

look forward to this physical activity. I feel physically

better and my joints and body are in better shape than ever.

I feel I have improved my immune system and go to the doctor

less than when I did not participate in this program. I am

retired with a fixed income and it would be difficult for me

to have to pay for a gym membership if this program were to

be eliminated. So I ask you to please consider keeping this

program.

Look, the SilverSneakers Program is a prevention and wellness program, and almost all of us--if we are really honest about it--would admit that if we could get our seniors out there walking and exercising and doing the things that will help them to stay vibrant, alert, and physically well, it would save us billions of dollars. It is a very well-thought-out program, but it is a small part of Medicare Advantage. I thought I would cover it since it has been so maligned by some. If you read at least the HELP bill, there are a lot of provisions on wellness and prevention.

Well, in conclusion, I cannot support any bill that would jeopardize health care coverage for Medicare beneficiaries, and I surely believe if the bill before the Senate becomes law, Medicare beneficiaries' health care coverage could be in serious trouble.

I have been in the Senate for over 30 years. I pride myself on being bipartisan. I have coauthored many bipartisan health care bills since I first joined the Senate in 1977. As much as anyone in this Chamber, I want a health reform bill to be enacted this year. Every Republican does. But we want it to be bipartisan. We want it to be something both sides can support, such as the CHIP bill, which had a huge bipartisan vote. This is one-sixth of the American economy. If it doesn't get 75 to 80 votes, it is a lousy bill. I want it to be done right. History has shown if it is done right, it needs to be a bipartisan bill that passes the Senate with a minimum of 75 to 80 votes.

We did it on the CHIP bill and on Hatch-Waxman. We did it on a whole raft of bills in which I have been a major player. There has never been a bill of this magnitude affecting so many American lives that has passed this Chamber on an almost straight party-line vote, or maybe just a straight party-line vote.

The Senate is not the House. This body has a different constitutional mandate than the House. We are the deliberative body. We are the body that has, in the past--and should today--worked through these difficult issues to find clear consensus. True bipartisanship is what is needed. In the past, the Senate has approved many bipartisan health care bills that have eventually been signed into law. I mentioned a few: the Balanced Budget Act of 1997 which included the CHIP program--that was a Hatch-Kennedy bill--the Ryan White Act, I named the bill after Ryan White who died from AIDS, with his mother sitting right in the audience. I stood on the Senate floor and named it the Ryan White Act. And the Orphan Drug Act, the Americans with Disabilities Act, the Hatch-Waxman Act, which created the modern generic drug industry. These are just a few of the success stories. I could go through many, many others.

If the Senate passes this bill in its current form with a razor-thin margin of 60 votes or thereabouts, this will become one more example of the arrogance of power being exerted since the Democrats secured a 60- vote majority in the Senate and took over the House and the White House.

I dream someday of having the Republicans having 60 votes. I tell you one thing, I think we would finally have the total responsibility to get this country under control, and I believe we would be successful. There are essentially no checks or balances found in Washington today, just an arrogance of power with one party ramming through unpopular and devastating proposals one after the other.

Let me talk now about other negative impacts of this bill, at a time when we are in a terrible recession, with the current unemployment rate at 10.2 percent. And if you take away some of the part-time and some of the other statistics, we are at an effective 17 percent unemployment rate.

The Reid bill is a job killer. It has a disproportionate impact on small businesses. This 2,046-page bill contains nearly one-half trillion dollars in new taxes, fees, and penalties that will disproportionately affect small businesses, which are the job-creating engine and the lifeblood of our economy. Seventy percent of all jobs are created by the small business sector, and actually more if you really look at it.

According to a recent National Federation of Independent Businesses Survey, at least 50 percent of small businesses pay taxes at the individual level through owners that report income of more than $200,000 and will be hit hardest under the Democratic tax-and-spend plan with their mandate--their job-killing employer mandate--in this bill. This is small business. This is not the large corporate world. It is small business where most of the jobs are generated. Every dollar lost to new taxes on these businesses will be a dollar taken away from job creation.

The Reid bill includes a job-killing employer mandate. More specifically, it contains a $28 billion new tax penalty on employers for failing to provide coverage. Economists and CBO both agree that this will hurt employee wages and job creation. That is economists and CBO--the Congressional Budget Office. According to the Congressional Budget Office, although this new tax is levied on the employers, it is the ``workers in those firms who would ultimately bear the burden of those fees'' in the form of reduced compensation.

The Center on Budget and Policy Priorities has stated that the employer mandate will have a disproportionate impact on hiring practices for low- and moderate-income families. This is the most important segment in need of help.

The Reid bill increases the Medicare payroll tax. In fact, it imposes a $54 billion payroll tax increase at a time when we as a nation are struggling with an unemployment rate of 10.2 percent and an underemployment rate that I have been speaking about of 17.5 percent.

In addition, the Reid bill fails to lower premiums. Instead of lowering skyrocketing health care premiums for small businesses across the Nation, this $2.5 trillion bill, according to the Congressional Budget Office, will largely maintain the status quo of 5 percent to 6 percent yearly increases in premiums for small businesses. Why? A combination of heavyhanded regulations and a laundry list of new taxes on everything from health plans to prescription drugs, to medical devices which, according to the Joint Committee on Taxation, will simply be passed on to the consumers.

The Reid bill creates another brandnew Washington-run plan. This Washington-run plan comes at a time when families and businesses with private insurance are already paying as much as $1,800 a year more in premiums, which is nothing more than a hidden tax to make up for the underpayment by government programs such as Medicare and Medicaid to health care providers. It is no secret some doctors are not willing to take Medicare patients and even Medicaid patients because of the reimbursement rates, among others things, because of the bureaucracy-- the bureaucratic problems. Creating another government-run program will only increase this hidden tax on families and small businesses to keep the private coverage of their choice, and I believe it is important for my colleagues to hear what businesses are saying about the Reid bill.

The National Federation of Independent Business, the premier small business organization in the country, says:

The Senate Bill Fails Small Business.

The U.S. Chamber of Commerce:

U.S. Chamber stresses disappointment with Senate health

bill.

The National Association of Wholesaler-Distributors:

Wholesaler-Distributors say ``No'' to the Reid Health Bill.

The Small Business Entrepreneurship Council:

Small Business Group Says Reid Health Bill More of the

Same: More Taxes, Mandates, Big Spending and Nothing to Help

Lower Health Insurance Costs.

The Associated Builders and Contractors--great employers in this country:

ABC Critical of Senate Democratic Health Care Bill.

The National Association of Manufacturers:

NAM says Congress is Taking Health Care Reform in the Wrong

Direction.

The Independent Electrical Contractors sent a letter of opposition to every Senator.

The International Franchise Association:

Franchise Businesses Oppose Senate Healthcare Reform

Efforts.

There is a better way to handle health care reform. For months, I have been pushing for a fiscally responsible and step-by-step proposal that recognizes our current need for spending restraint, while starting us on a path to sustainable health care reform. There are several areas of consensus that can form the basis for sustainable, fiscally responsible, and bipartisan reform. We have a lot ideas over here for reforming the health insurance market for every American by making sure no American is denied coverage simply based on a preexisting condition; protecting the coverage for almost 85 percent of Americans who already have coverage they like by making that coverage more affordable. This means reducing costs by rewarding quality and coordinated care, giving families more information on the costs and choices of their coverage and treatment options, discouraging frivolous lawsuits, and promoting prevention and wellness measures.

By the way, the other side is not willing to do anything on tort reform that some estimate may be costing us as much, in unnecessary costs, as $300 billion a year.

Giving States flexibility to design unique approaches to health care reform. Utah is not New York and New York is not Utah.

As we move forward on health care reform, it is important to recognize that every State has its own unique mix of demographics and each State has developed its own unique institutions to address its challenges and each has its own successes. I believe in 50 State laboratories, where the States may be given the money by the Federal Government, but they solve their own problems with their own demographic needs and fitting their own demographic needs, rather than a one-size-fits-all big Federal Government program which is what this bill creates.

There is an enormous reservoir of expertise, experience, and field- tested reform in the States. We should take advantage of those experiences by placing States at the center of health care reform efforts so they may use approaches that best reflect their needs and challenges.

My home State of Utah has taken important and aggressive steps toward sustainable health care reform. The current efforts to introduce a defined contribution health benefit system and implement the Utah health exchange are laudable accomplishments. A vast majority of Americans agree that a one-size-fits-all Washington solution is not the right approach. That is what this bill is bound to foist on us.

Unfortunately, the path we are taking in Washington right now is to simply spend another $2.5 trillion of taxpayer money to further expand the role of the Federal Government. I do not know many people who believe that is what we should do. I wish the majority would take a step back, put their arrogance of power in check, and truly work on a real bipartisan bill that all of us can support, or at least a good percentage of us can support--not just one or two Republicans.

The first step in achieving bipartisanship is to support my motion to commit this bill so Medicare Advantage beneficiaries may keep the benefits they currently enjoy through Medicare Advantage plans. To me, it is only fair that the legislation we are currently considering hold true to the President's promise to the American people that if they like what they have they may keep it.

I urge my colleagues to support my motion to commit so that promise will also apply to Medicare Advantage beneficiaries who have benefitted greatly from what we did in a bipartisan way just a few years ago. I might add, some of these outside groups have a stake in killing it because they can make more money on senior citizens. It is not hard to see why they are behind this great big, huge 2,074-page monstrosity of a bill. No wonder they don't place this bill on every desk. Maybe they will. When they do, they will probably put two pages on one sheet so it will look a little bit smaller.

But it ought to be on every desk. We can even thumb through it while we are debating and while others are talking. Think what that would do for all of us Members of the Senate if we thumbed through some of the things we are doing to America. Remember, this is one-sixth of the American economy. We could wreck our country with this bill if we pass it. By passing it, we would turn our future 100 percent over to the Federal Government that has already put these two wonderful programs, Medicare and Medicaid, almost in bankruptcy. Those programs can be better, there is no question. But they are run by Washington, so naturally we are going to call on taxpayers, over and over again, to fund the excesses these bureaucracies in Washington impose on all of us.

I yield the floor.

Will the Senator yield for a second?

I would like to have a few minutes to wrap up.

I think I can do it in less than 5 minutes.

Surely.

I thank my colleague. I appreciate the eloquence of my dear friend. I am going to find fault with some of the things he said, but I have to say I am grateful to have the distinguished Senator from Rhode Island with us. He is one of the great additions to the Senate, in my opinion, a

very good lawyer who has had tremendous experience in State government. It is amazing to me that he is supporting this awful bill, this monstrosity of a bill. But I can live with that. I have seen a lot of decent, honorable people be deceived by their desire on the Democratic side to continue to build the Federal Government at the expense of the States and everybody else. I will say this: I really enjoy my colleague. I have a lot of respect for him.

I have to take issue with his ``Harry Potter'' comments. Just think about that. I like the fact that the distinguished Senator from Rhode Island compares this bill here to a ``Harry Potter'' novel. That is, perhaps, pretty appropriate because both of them are what I consider to be works of fantasy and fiction. This thing has 14 pages as a table of contents alone. Notice how my voice goes up as I am holding it; it puts that much pressure on your speech diaphragm. I just wish it was as valuable and would be as valuable to the American people as the ``Harry Potter'' novels have been.

Let me say one last thing before I close and leave the floor. I appreciate my colleague. I appreciate his graciousness in all ways. We have worked closely together on the Intelligence Committee and the Judiciary Committee and in many other ways. I think he is one of the great additions to the Senate. In spite of his dogged determination in support of this awful bill, I still think greatly and very highly of him.

Let me make a few things clear to my Democratic colleagues. I am not a great believer that we should follow polls at all, but I think it is interesting to see what the American people are thinking. My colleagues seem to think that some of these people who did the tea parties and some of these other things are rightwing crazies. I know a lot of them. They are really good people. They are up in arms, and they are really upset. They are people from all walks of life. Some of them are very far right. Some of them are far left. The fact is, they are sincere. They feel what is going to happen here is a denigration of the country.

Unfortunately, I feel the same way. The more we rely totally on the Federal Government, the worse off this country will be. My colleagues love the Federal Government. I love it too. I would love to keep it in its place. It is much easier to control things when you control them through Washington. However, it is also a way of stifling good ideas if you do not have the best benefits of the 50 State laboratories that our Federalist system actually provides.

I noticed in a recent Gallup poll, 53 percent of the Independents are opposed to this bill. Gallup has been polling for years, is it not Republican or Democratic. These are Independents. Thirty-seven percent support the bill. These are not radical Americans, these are Independents. They are just tired of the tax-and-spend policies of Washington, DC. There are people in both parties who are guilty of pushing for those types of policies.

I have to say Democrats are much better at spending Federal dollars than Republicans in the sense that they spend a lot more of them. Democrats are not better in watching them either.

Even a Kaiser poll, which is anything but conservative, had 59 percent of the people in this country opposed to this bill.

If I were a Democrat, I would be a little concerned about the Independents. They are not crazies. They are not people who are out of line. And neither are these conservatives who are up in arms.

I recently met with a number of the tea party representatives in Utah. They are fiscal conservatives. They are very concerned. I also met with representatives of the so-called 912 Group. They are more concerned with social issues as well as economic issues. They are well- intentioned, well-thought-out people who are sick and tired of what is happening here in Washington. The only way they can really get their ideas heard is by raising cane about it. Frankly, I think they are right to do so.

We all better stop and take a look at these things and see if we can, as honest, decent Democrats and honest, decent Republicans, get together to come up with a bill that has broad bipartisan support of at least 75 to 80 Senators. I would like it to be more. But that is what we need to do. This current bill is not the way to get there.

I thank my colleague for his gracious remarks about me. I feel exactly the same about him. He is a good colleague, a wonderful attorney, and a great addition to the Senate. I intend to work with him in every way I can. I just think if he would just tell his side: We are going to sit down, we are going to work this out, I think we would get it done.

Mr. President, I rise today to pay tribute to PFC Kimble A. Han who made the ultimate sacrifice for his country on October 23, 2009, in Afghanistan. According to initial reports, Private First Class Han died of injuries sustained when an improvised explosive device detonated near his vehicle.

Private First Class Han was assigned to the 569th Engineer Company, 4th Engineer Battalion, Fort Carson, CO.

Private First Class Han enlisted in the Army in January of 2008 and by December was assigned to the combat engineers. He exhibited an astounding sense of devotion to duty in service to our great Nation. He received numerous recognitions, medals and ribbons for his service, including the National Defense Service Medal, the Afghanistan Campaign Medal with Campaign Star, the Global War on Terrorism Service Medal, Army Service Ribbon, Overseas Service Ribbon and Combat Action Badge. As a result of his heroic service, Private First Class Han was posthumously promoted to specialist. The selfless courage Kimble displayed in the service to our country will not be forgotten. We are forever in his debt.

Mr. President, let us not forgot the sacrifice of PFC Kimble A. Han. I am filled with deep gratitude for his service and pray for his family and friends throughout this difficult time. I know that I am joined by all my colleagues in the Senate in mourning the loss of PFC Kimble A. Han, our Nation's protector and hero.

Sergeant James Michael Nolen

Mr. President, I rise today to pay tribute to SGT James Michael Nolen who was killed in the line of duty on November 23, 2009, in Zabul, Afghanistan. Sergeant Nolen sustained fatal wounds when enemy forces attacked his vehicle with an improvised explosive device.

SGT James Nolen served with the 2nd Battalion, 508th Parachute Infantry Regiment, 4th Brigade Combat Team, 82nd Airborne Division, Fort Bragg, NC.

Sergeant Nolen truly exemplified the qualities of a dedicated soldier and hero. A fellow paratrooper conveyed that ``Sergeant Nolen was a true soldier. Nothing could take away from his warm personality. His caring smile and willingness to help others were his most identifiable features.''

James exhibited an astounding sense of devotion and duty to our great Nation. He received numerous recognitions, medals and ribbons for his service including the Bronze Star Medal, the Purple Heart Medal, the Army Commendation Medal, the Army Achievement Medal, the Army Good Conduct Medal, the National Defense Service Medal, the Global War on Terrorism Service Medal, the Army Service Ribbon, the Overseas Service Ribbon, the NATO Medal, the Combat Infantryman Badge and the Basic Parachutist Badge.

Mr. President, I express my deepest appreciation for the selfless dedication this soldier proudly exhibited in service to our country. He courageously put himself in harm's way to defend us, and for that we owe him an infinite debt of gratitude. I offer my deepest condolences and prayers for James' family and friends during this difficult time. I know that I am joined by all my colleagues in the Senate in mourning the loss of SGT James Michael Nolen, our Nation's protector and hero.

Mr. President, I ask unanimous consent that my health policy fellow, Dr. Janet Phoenix, have floor privileges throughout the consideration of this debate on H.R. 3590.

Will the Senator yield?

What is the current cost of our health care across the board in this country, without this bill?

That is $2.5 trillion?

The Senator is saying they are going to add, if you extrapolate it out over another 10 years, $2.5 trillion.

If I understand my colleague correctly, he is saying, to reach this outlandish figure of $843 billion, literally they do not implement the program until 2014 and even beyond that to a degree, but they do implement the tax increases?

Is that one of the budget gimmicks my colleague is talking about?

Am I correct that the Democrats have said--and they seem to be unified on this bill--that literally this bill is budget neutral? But as I understand it, in order to get to the budget neutrality, they are socking it to a program that has about $38 trillion in unfunded liabilities called Medicare--to the tune of almost $500 billion or $\1/ 2\ trillion in order to pay for this? Am I correct on that? No. 2, who is going to lose out when they start taking $500 billion out of Medicare? And what are they going to do with that $500 billion? Are they going to put it into something else? Are they using this just as a budgetary gimmick? What is happening here? As the ranking member on the Budget Committee today, you really could help all of us understand this better.

How many people on Medicare are on Medicare Advantage?

That will be what percentage of people on Medicare?

How does that affect the doctors?

Am I wrong in saying Medicare is already headed toward insolvency and that it has up to almost $38 trillion in unfunded liability over the years for our young people to have to pay for?

Then how can our friends on the other side take $\1/2\ trillion out of Medicare, which is headed toward insolvency, to use for some programs they want to now institute anew?

I heard someone say today on the floor--I don't know who it was, I can't remember--that Medicare Advantage really isn't part of Medicare. Is that true?

I was there in the Medicare modernization conference, along with the distinguished chairman of the committee, Senator Baucus, and others, when we did that because we were not getting health care to rural America. The Medicare+Choice plan didn't work. Doctors would not take patients. Hospitals could not pay; they could not take patients. There were all kinds of difficulties in rural America. So we did Medicare Advantage, and all of a sudden we were able to take care of those people. Yes, it costs a little more, but that is because we went into the rural areas to do it.

But this would basically decimate Medicare Advantage, wouldn't it, what is being proposed here? And that is part of Medicare.

No question about it.

How can they take $\1/2\ trillion out of Medicare? That is not all Medicare Advantage. Medicare Advantage is only part of that, the deductions they will make there. But how can they do that and still run Medicare in a solvent, constructive, decent, and honorable fashion?

You mean they are not using this $500 billion to shore up Medicare and to help it during this period of possible insolvency with a $38 trillion unfunded liability? They are not using it for that purpose?

For what purpose are they using it?

You were going to talk about the CLASS Act.

Mr. President, I thank my colleague. There is no question he is a great Senator. I have always enjoyed working with him and we have done an awful lot together. I want to compliment Senator Whitehouse too, a terrific human being and great addition to this Senate and I have a lot of respect for him. He gives me heartburn from time to time, as does Senator Dodd. On the other hand, they are great people and very sincere. Our chairman of the committee, Max Baucus, is a wonderful man. He is trying to do the best he can under the circumstances. I applaud him for it. Senator Stabenow from Michigan and I have not seen eye to eye on a lot of things, but we always enjoy being around each other.

This is a great place, there is no question about it. We have great people here. But that doesn't make us any less unhappy about what we consider to be an awful bill.

But right now, today, let me talk about a few specific things. Today the senior Senator from Illinois came to the floor and spoke about my efforts to reduce the costs associated with medical malpractice liability. I don't think his statement should go unanswered. Not only were a number of his statements simply incorrect as factual matters, but some of them even bordered on being offensive. I am not offended, I can live with it, I can take criticism, but some of them I think were a little bit over the top.

First of all, he referred to the recent letter I received from the CBO which indicated that the government would realize significant savings by enacting some simple tort reform measures. I don't know anybody in America who has any brains who doesn't realize we have to do something about tort reform when it comes to health care. According to the CBO, these measures would reduce the deficit by $54 billion over 10 years. That is a lot of money. Private sector savings would be even more significant. According to the CBO, we would likely see a reduction of roughly $125 billion in private health care spending over the same 10-year period, and that, in my view, is a low estimate. Democrats apparently want the American people to think these numbers are so insignificant that this issue should be ignored in this health care bill, and I have to respectfully disagree.

I may be one of the few Senators in this body who actually tried medical malpractice cases. I actually defended them. I defended doctors, hospitals, nurses, health care practitioners. I understand them.

There are cases where there should be huge recoveries. I would be the first to admit it. I saw the wrong eye taken out, the wrong leg taken off, the wrong kidney. You only have two of each of those. You bet your bottom dollar we settled those for significant amounts of money. But I also saw that the vast majority of the cases were frivolous,

brought to get the defense costs which then only ranged from $50,000 to $200,000, depending on the jurisdiction. If a lawyer can get a number of those cases they can make a pretty good living by bringing those cases just to get the defense costs, which of course adds to all the costs of health care. There is no use kidding about it.

Furthermore, Senator Durbin, the distinguished Senator from Illinois, cited the same CBO letter in order to claim that the tort reform measures supported by many on my side of the aisle would cause more people to die.

Give me a break.

I can only assume he is referring to the one paragraph in the CBO letter that addresses the effect of tort reform on health outcomes. In that single paragraph the CBO referred to three studies. One of these studies indicated that a reduction in malpractice lawsuits would lead to an increase in mortality rates--one of the three.

The other two studies cited by the CBO found that there would be no effects on health outcomes and no negative effects could be expected. So, let's be clear, the CBO did not reach a conclusion in this case. These studies were cited only to show that there is disagreement in this area and, once again, the majority of the studies cited said there would be no negative effects on health outcomes. Apparently, omitting data and studies that disagree with your conclusions is becoming common practice among policy makers these days.

In his speech earlier today, the distinguished Senator from Illinois also discounted the prominence of defensive medicine in our health care system, saying only that ``some doctors'' perform unnecessary and inappropriate procedures in order to avoid lawsuits. Once again, the facts would contradict this generalization. A number of studies demonstrate this. For example, a 2005 study of 800 Pennsylvania physicians--where I used to practice law--in high-risk specialties found that 93 percent of these physicians had practiced some form of defensive medicine. That was published in the Journal of the American Medical Association, June 1, 2005.

In addition, a 2002 nationwide survey of 300 physicians--this is the Harris Interactive ``Fear of Litigation Study''--found that 79 percent of physicians ordered more tests than are necessary. Think about that. If 79 percent are ordering more tests than are necessary, you can imagine the multibillions of dollars in unnecessary defensive medicine that comes from that. But that is not the end of that ``Fear of Litigation Study.'' Seventy-four percent of physicians referred patients to specialists who, in their judgment, did not need any such referral. Think about it--referring people to specialists that they knew they didn't need. Think of the cost, the billions of dollars in cost. Fifty-two percent of physicians suggested unnecessary invasive procedures. The word ``invasive'' is an important word. Fifty-two percent. Why? Because they are trying to protect themselves by making sure that everything could possibly be done. Forty-one percent of physicians prescribed unnecessary medications. This is a nationwide survey of 300 physicians.

The costs associated with defensive medicine are real--I would say unnecessary defensive medicine because I believe there are some defensive medicine approaches that we would want the doctors to do but not to the extent of these doctors ordering more tests than are necessary, ordering more specialists than are necessary, suggesting unnecessary invasive procedures, unnecessary medications. This is the medical profession itself that admits this.

In another study Pricewaterhouse found that defensive medicine accounts for approximately $210 billion every year or 10 percent of the total U.S. health care cost. Here are some more facts from the Pricewaterhouse study. Of the $2.2 trillion spent every year on health care in the United States, as much as $1.2 trillion can be attributed to wasteful spending--$1.2 trillion of $2.2 trillion. Yet, the Democrats want to deny that unnecessary defensive medicine is being utilized to a significant extent. According to this study, defensive medicine is the largest single area of waste in the health care system. It is on par with inefficient claim processing and care spent on preventable conditions.

Yet, despite these overwhelming numbers--and I know some Democrats will say that is Pricewaterhouse and they must have been doing it at the expense of somebody who had an interest. Pricewaterhouse and other accounting firms generally try to get it right. They got it right here. Those of us who were in that business can attest to it.

Yet, despite these overwhelming numbers, my friends on the other side have opted to overlook them and instead relate horrific stories associated with doctors' malpractice, apparently trying to imply that Republicans simply don't care about these truly tragic occurrences. However, nothing could be further from the truth. In fact, in all the proposals that have been offered during this debate, there has not been a single suggestion to prevent plaintiffs from obtaining the compensation for actual losses they have incurred, not one suggestion that they should. Instead, we have sought to impose some limits on the noneconomic damages. All economic damages damages awarded for actual loss, past, present, and future--are fine, fair game. We've sought only impose some limits on the noneconomic damages in order to define the playing field, encourage settlement, and introduce some level of predictability to the system.

It is no secret that personal injury lawyers--some of them--are prolific political contributors to those politicians who fight against tort reform. With a Democratic majority and a Democrat in the White House, their lobbying efforts during this Congress have reached unprecedented levels. Given this reality, it is obvious why trial lawyers have not been asked to give up anything in the current health care legislation.

Supporters of this health care bill will be asking the American people to pay higher health care premiums, for seniors to give up Medicare Advantage, which 25 percent of them have enlisted in, for businesses to pay higher taxes, for medical device manufacturers to pay more just to bring a device to the market that may save lives or make lives more worth living. The only group that has not been asked to sacrifice or change the way they do business happens to be the medical liability personal injury lawyers.

I would hope we would focus our efforts more on helping the American people than on preserving a fund-raising stream for politicians. Sadly, that doesn't appear to be happening in the current debate.

As I said, there are some very honest and decent attorneys out there who bring cases that are legitimate where there should be high rewards. But the vast majority, I can personally testify, are less than legitimate and the resulting costs are costing every American citizen an arm and a leg. It is something we ought to resolve. We ought to resolve it in a way that takes care of those who truly have injuries and get rid of these frivolous cases driving up the cost for every American.

Not too long ago, I talked to one of the leading heart specialists in Washington. He acknowledged, we all order a lot of tests and so forth that we don't need, that we know we don't need. But we do it so that the history we have of the patient shows we did everything possible to rule out everything that possibly could occur, even though we know we don't need to do it. To be honest, under the current system of lawsuits, I don't blame them. They are trying to protect themselves.

We should also discuss the shortage of doctors we have going into high-risk specialties. We have areas in this country where you can't get obstetricians and gynecologists to the people. Law schools will tell you, at least the ones I know, that there aren't that many young people going into obstetrics and gynecology today because they may not make as much money and the high cost of medical liability insurance is so high that they really can't afford to do it. And, of course, they don't want to get sued.

So much for that. I love my distinguished friend from Illinois, and he knows it. I care for him. But let me tell you, I think he knows better. He knows that I know better. I would be the first to come to bat for somebody who was truly injured because of the negligence of a physician. I don't have any problem with that at all.

I just thought I would make a few comments about this but, again, say

that I understand some of the excesses that go on on the floor. But that was an excess this morning, even though I know my dear friend is sincere and dedicated and one of the better lawyers in this body. Having said that, I will end on that particular subject.

Let me once again take a few minutes to talk about the Medicare provisions in this Democratic Party health care bill.

Throughout the health care debate, we have heard the President pledge not to ``mess'' with Medicare. Unfortunately, that is not the case with the bill before the Senate. To be clear, the Reid bill reduces Medicare by $465 billion to fund a new government program. Unfortunately, seniors and the disabled in the United States are the ones who suffer the consequences as a result of these reductions. Everyone knows Medicare is extremely important to 43 million seniors and disabled Americans covered by the Medicare Program.

Throughout my Senate service, I have fought to preserve and protect Medicare for both beneficiaries and providers. Medicare is already in trouble today. The program faces tremendous challenges in the very near future. The Medicare trust fund will be insolvent by 2017, and the program has more than $37 trillion in unfunded liabilities. This is going to be saddled onto our children and grandchildren.

The Reid bill will make the situation much worse. Why is that the case? Again, the Reid bill cuts Medicare to fund the creation of a new government entitlement program. More specifically, the Reid bill will cut nearly $135 billion from hospitals--where are they going to get this money?--$120 billion from Medicare Advantage, almost $15 billion from nursing homes, more than $40 billion from home health care agencies, and close to $8 billion from hospice providers. These cuts will threaten beneficiary access to care as Medicare providers find it more and more challenging to provide health services to Medicare patients. Many doctors are not taking Medicare patients now because of low reimbursement rates.

Let me stress to my colleagues that cutting Medicare to pay for a new government entitlement program is irresponsible. Any reductions to Medicare should be used to preserve the program, not to create a new government bureaucracy.

As I just said, the President has consistently pledged: We are not going to mess with Medicare. Once again, this is another example of a straightforward pledge that has been broken over the last 11 months. Maybe you cannot blame the President because he is not sitting in this body. The body is breaking it.

This bill strips more than $120 billion out of the Medicare Advantage Program that currently covers 10.6 million seniors or almost one out of four seniors in the Medicare Program. According to the Congressional Budget Office, under this bill the value of the so-called ``additional benefits,'' such as vision care and dental care, will decline from $135 to $42 by 2019. That is a reduction of more than 70 percent in benefits. You heard me right: 70 percent.

During the Finance Committee's consideration of health care reform, I offered an amendment to protect these benefits for our seniors, many of whom are low-income Americans and reside in rural States and rural areas. However, the majority party would not support this important amendment. The majority chose to skirt the President's pledge about no reduction in Medicare benefits for our seniors by characterizing the benefits being lost--vision care, dental care, and reduced hospital deductibles--as ``extra benefits.''

Let me make the point as clearly as I can. When we promise American seniors we will not reduce their benefits, let's be honest about that promise. So we are either going to protect benefits or not. It is that simple. Under this bill, if you are a senior who enjoys Medicare Advantage, the unfortunate answer is, no, they are not going to protect your benefits.

All day today, we had Members on the other side of the aisle claim that Medicare Advantage is not part of Medicare. This is absolutely--I have to tell you, it is absolutely unbelievable. I would invite every Member making this claim to turn to page 50 of the ``2010 Medicare and You Handbook.'' It says:

A Medicare Advantage is another health coverage choice you

may have--

Get these words--

as part of Medicare.

Let me repeat that:

A Medicare Advantage is another health coverage choice you

may have as part of Medicare.

Hey, that is the Medicare ``2010 Medicare and You Handbook.'' Who is kidding whom about it not being part of Medicare?

So the bottom line is simple: If you are cutting Medicare Advantage benefits, you are cutting Medicare.

I also heard the distinguished Senator from Connecticut this morning mention that the bureaucrat-controlled Medicare Commission will not cut benefits in Part A and Part B. Well, once again, my friends on the other side are only telling you half the story. So much for transparency. On page 1,005 of this bill, it states in plain English:

Include recommendations to reduce Medicare payments under C

and D.

I am just waiting for Members on the other side of the aisle to come down and now claim that Part D is also not a part of Medicare. We all know it is.

It is also important to note that the Director of the nonpartisan Congressional Budget Office has told us in clear terms that this unfettered authority given to the Medicare Commission would result in higher premiums.

It is important details such as these that the majority does not want us to discuss and debate in full view of the American people. They call it slow-walking. They call it obstructionism. Making sure we take enough time to discuss a 2,074-page bill that will affect every American life and every American business is the sacred duty of every Senator in this Chamber. We will take as long as it takes to fully discuss this bill, and you can talk for a month about various parts of this bill that are outrageous and some that are really good, too, in all fairness--not many, however.

I have heard several Members from the other side of the aisle characterize the Medicare Advantage Program as a giveaway to the insurance industry. You know, when you cannot win an argument, you start blaming somebody else. So they want a government insurance company to take the place of the insurance industry. Well, maybe that is too much. They want it to compete with the insurance industry. But how do you compete with a government-sponsored entity? And there are comments that the so-called government plan will cost more than the current insurance businesses they are so criticizing. I am not happy with the insurance industry either, but, by gosh, let's be fair.

Let me give everyone watching at home a little history lesson on the creation of Medicare Advantage. I served as a member of the House- Senate conference committee which wrote the Medicare Modernization Act of 2003. The distinguished Senator from Montana would agree with me, it was months of hard, slogging work every day to try to come up with the Medicare Modernization Act of 2003. Among other things, this law created the Medicare Advantage Program. It gives people vision care, dental care, et cetera.

When conference committee members were negotiating the conference report back then, in 2003, several of us insisted that the Medicare Advantage Program was necessary in order to provide health care coverage choices to Medicare beneficiaries. At that time, there were many parts of the country where Medicare beneficiaries did not have adequate choices in coverage. In fact, the only choice offered to them was traditional fee-for-service Medicare, a one-size-fits-all, government-run health program.

By creating the Medicare Advantage Program, we were providing beneficiaries with choice in coverage and then empowering them to make their own health care decisions as opposed to the Federal Government making them for them. Today, every Medicare beneficiary may choose from several health plans.

We learned our lessons from Medicare+Choice, which was in effect at the time, and its predecessors. These plans collapsed, especially in rural areas, because Washington decided--

again, government got involved--to set artificially low payment rates. In fact, in my home State of Utah, all of the Medicare+Choice plans eventually ceased operations because they were all operating in the red. You cannot continue to do that. It was really stupid what we were expecting them to do. I fear history could repeat itself if we are not careful.

During the Medicare Modernization Act conference, we fixed the problem. We increased reimbursement rates so all Medicare beneficiaries, regardless of where they lived--be it Fillmore, UT, or New York City--had choice in coverage. Again, we did not want beneficiaries stuck with a one-size-fits-all, Washington-run government plan.

There were both Democrats and Republicans on that committee, by the way, and the leader was, of course, the distinguished Senator from Montana. I admire him for the way he led it, and I admire him for trying to present what I think is the most untenable case here on the floor during this debate. He is a loyal Democrat. He is doing the best he can, and he deserves a lot of credit for sitting through all those meetings and all of that markup and everything else and sitting day-in and day-out on the floor here.

Today, Medicare Advantage works. Every Medicare beneficiary has access to a Medicare Advantage plan, if they so choose, and close to 90 percent of Medicare beneficiaries participating in the program are satisfied with their health coverage. But that can all change should this health care reform legislation currently being considered become law.

In States such as Utah, Idaho, Colorado, New Mexico--just to mention some Western States--Wyoming, Montana--you can name every State--rural America was not well served, and we did Medicare Advantage.

Choice in coverage has made a difference in the lives of more than 10 million Americans nationwide--almost 11 million Americans. The so- called ``extra benefits'' I mentioned earlier are being portrayed as gym memberships as opposed to lower premiums, copayments, and deductibles.

To be clear, the Silver Sneakers Program is one that has made a difference in the lives of many seniors because it encourages them to get out of their homes and remain active. It is prevention at its best. It has been helpful to those with serious weight issues, and it has been invaluable to women suffering from osteoporosis and joint problems. In fact, I have received several hundred letters telling me how much Medicare Advantage beneficiaries appreciate this program. They benefit from it. Their lives are better. They use health care less. They do not milk the system. They basically have a better chance of living and living in greater health.

Throughout these debates, throughout these markups, throughout these hearings that have led us to this point, every health care bill I know of has a prevention and wellness section in the bill that will encourage things such as the Silver Sneakers Program that has benefited senior citizens so much and was not one of the major costs of Medicare Advantage.

Additionally, these beneficiaries receive other services such as coordinated chronic care management, which is important, coordinated chronic care management for seniors; dental coverage--really important for low-income seniors; vision care--can you imagine how important that is to people over 60 years of age? How about those who are over 70 or 80 years of age? And hearing aids--can you imagine how important that is to our senior citizens? This program helps these seniors, and it helps them the right way.

Let me read some letters from my constituents. These are real lives being affected by the cuts contemplated in the bill.

Remember, there is almost $500 billion cut by this bill from Medicare, which goes insolvent by 2017 and has an almost $38 trillion unfunded liability.

Let me read this letter from a constituent from Layton, UT:

I recently received my healthcare updater for 2010. I am in

a Med Advantage plan with Blue Cross/Blue Shield. Thanks to

the cuts in this program by Medicare, my monthly premiums

have risen by 49% and my office visit co-pay has increased

150%. Senator Hatch, I am on a fixed income and this has

really presented a problem for me and many others I know on

the same program. And, at my age I certainly can't find a job

that would help cover the gap. I worked all my life to enjoy

my retirement and thanks to the current economy I've lost a

lot of those monies that were intended to help supplement my

income.

This letter is from a constituent from Logan, UT, where the great Utah State University is:

Please stop the erosion of Medicare Advantage for seniors.

Very many of us are already denied proper medical and dental

care not to mention those who cannot afford needed

medications. Hardest hit are ones on Social Security who are

just over the limit for extra help but cannot keep up with

the rising medical costs that go way beyond the so-called

``cost of living increases'' which we are not getting this

year anyway. If those in government who make these decisions

had to live as we do day to day, I think we would find better

conditions for seniors. The difference in decision making

changes when you are hungry and cold your own self.

Here is a constituent from Pleasant Grove, UT:

Please do not phase out the Medicare Advantage program,

senior citizens need it. Our supplement insurance rates go up

every year and our income does not keep pace with the cost of

living.

Here is a constituent from Salt Lake City, UT:

We met with our insurance agent this morning about the

increased costs of our Medicare Advantage plans due to the

health care reform bill now before Congress.

Our premium costs have already been significantly increased

with the coverage substantially decreased. We are in our 80s

and cannot afford these increases and are hurt by the

decreased coverage. We are writing to you to have you stop

the cuts and restore the coverage to Medicare Advantage

plans. This is an issue that is very important and very real

to us at this point in our lives. Please stop the cuts and

restore coverage.

I can't support any bill that would jeopardize health care coverage for Medicare beneficiaries. I truly believe if this bill before the Senate becomes law, Medicare beneficiaries' health care coverage could be in serious trouble.

I have been in the Senate for over 30 years--33 to be exact. I pride myself on being bipartisan. I have coauthored many bipartisan health care bills since I first joined the Senate in 1977. Almost everyone in this Chamber wants a health care reform bill to be enacted this year. I don't know of anybody on either side who would not like to get a health care bill enacted.

On our side, we would like to do it in a bipartisan way, but this bill is certainly not bipartisan. It hasn't been from the beginning. We want it to be done right. History has shown that to be done right, it needs to be a bipartisan bill that passes the Senate with a minimum of 75 to 80 votes. We did it in 2003 when we considered the Medicare prescription drug legislation, and I believe we can do it again today if we have the will and if we get rid of the partisanship. I doubt there has ever been a bill of this magnitude affecting so many American lives that has passed this Chamber on an almost--or maybe in a complete--straight party-line vote. The Senate is not the House of Representatives. This body has a different constitutional mandate than the House. We are the deliberative body. We are the body that has in the past and should today be working through these difficult issues to find clear consensus. True bipartisanship is what is needed.

In the past, the Senate has approved many bipartisan health care bills that have eventually been signed into law. I know a lot of them have been mine, along with great colleagues on the other side who deserve the credit as well. The Balanced Budget Act in 1997 included the Hatch-Kennedy SCHIP program. How about the Ryan White Act. I stood right here on the Senate floor and called it the Ryan White bill. His mother was sitting in the audience at the time. How about the Orphan Drug Act. When I got here we found that there were only two or three orphan drugs being developed. These are drugs for population groups of less than 250,000 people. It is clear that the pharmaceutical companies could not afford to do the pharmaceutical work to come up with treatments or cures for orphan conditions. So we put some incentives in there; we put some tax benefits in there. We did some things that were unique. If I recall it correctly, it was about a $14 million bill.

Today we have over 300 orphan drugs, some of which have become blockbuster drugs along the line. They wouldn't have been developed if it

hadn't been for that little, tiny orphan drug bill. That was a major bill when I was chairman of the Labor and Human Resources Committee. They now call it the Health, Education, Labor, and Pensions Committee.

How about the Americans With Disabilities Act. Tom Harkin stood there, I stood here, and we passed that bill through the Senate. It wasn't easy. There were people who thought it was too much Federal Government, too much this, too much that. But Senator Harkin and I believed--as did a lot of Democrats and a lot of Republicans, as the final vote showed--that we should take care of persons with disabilities if they would meet certain qualifications.

How about the Hatch-Waxman Act. We passed that. Henry Waxman, a dear friend of mine, one of the most liberal people in all of the House of Representatives and who is currently the very powerful chairman of the Energy and Commerce Committee over there, we got together, put aside our differences, and we came up with Hatch-Waxman which basically almost everybody admits created the modern generic drug industry.

By the way, most people will admit that bill has saved at least $10 billion to consumers and more today, by the way, every year since 1984.

I could go on and on, but let me just say I have worked hard to try and bring our sides together so we can in a bipartisan way do what is right for the American people.

Let me just tell my colleagues, if the Senate passes this bill in its current form with a razor thin margin of 60 votes, this will become one more example of the arrogance of power being exerted since the Democrats secured a 60-vote majority in the Senate and took over the House and the White House. There are essentially no checks or balances found in Washington today, just an arrogance of power, with one party ramming through unpopular and devastating proposals such as this, one after another.

Well, let me say there is a better way to handle health care reform. For months I have been pushing for a fiscally responsible and step-by- step proposal that recognizes our current need for spending restraint while starting us on a path to sustainable health care reform. There are several areas of consensus that can form the basis for sustainable, fiscally responsible, and bipartisan reform.

These include:

Reforming the health insurance market for every American by making sure no American is denied coverage simply based on a preexisting condition. Some of my colleagues on the other side have tried to blast the insurance industry, saying they are an evil, powerful industry. We need to reform them, no question about it, and we can do it if we work together.

Protecting the coverage for almost 85 percent of Americans who already have coverage they like by making that coverage more affordable. This means reducing costs by rewarding quality and coordinated care, giving families more information on the cost and choices of their coverage and treatment options, and--I said it earlier--discouraging frivolous lawsuits that have permeated our society and made the lives of a high percentage of our doctors, especially in those very difficult fields of medicine, painful and those fields not very popular to go into today. And, of course, we could promote prevention and wellness measures.

We could give States flexibility to design their own unique approaches to health care reform. Utah is not New York, Colorado is not New Jersey, New York is not Utah, and New Jersey is not Colorado. Each State has its own demographics and its own needs and its own problems. Why don't we get the people who know those States best to make health care work? I know the legislators closer to the people are going to be very responsive to the people in their respective States. I admit some States might not do very well, but most of them would do much better than what we will do here with some big albatross of a bill that really does not have bipartisan support.

Actually, in talking about New York, what works in New York will most likely not work in Colorado, let alone Utah. As we move forward on health care reform, it is important to recognize that every State has its own unique mix of demographics. Each State has developed its own institutions to address its challenges, and each has its own successes. We can have 50 State laboratories determining how to do health care in this country in accordance with their own demographics, and we could learn from the States that are successful. We could learn from the States that make mistakes. We could learn from the States that cross- breed ideas. We could make insurance so that it crosses State lines.

Can you imagine what that would do to costs? We could do it. But there is no desire to do that today with this partisan bill.

There is an enormous reservoir of expertise, experience, and field- tested reform. We should take advantage of that by placing States at the center of health care reform efforts so they can use approaches that best reflect their needs and their challenges.

My home State of Utah has taken important and aggressive steps toward sustainable health care reform. They already have an exchange. They are trying some very innovative things. By anybody's measure the State of Utah has a pretty good health care system. Is it perfect? No. But we could help it to be, with a fraction of the Federal dollars that this bill is going to cost. This bill over 10 years is at least $2.5 trillion, and I bet my bottom dollar it will be over $3 trillion. That is on top of $2.4 trillion we are already spending, half of which they claim may be not well spent. We know a large percentage of that is not well spent.

Like I say, my home State of Utah has taken important and aggressive steps toward sustainable health care reform. The current efforts to introduce the defined contribution health benefits system and implement the Utah health exchange are laudable accomplishments.

A vast majority of Americans--I believe this to be really true--agree a one-size-fits-all Washington government solution is not the right approach. That is why seniors and everybody else except a very few are up in arms about these bills. That is what this bill is bound to force on us: a one-size-fits-all, Washington-run, controlled government program. I am not just talking about the government option. That is a small part of the argument today. If we pass this bill, we will have Washington governing all of our lives with regard to health care. I can't think of a worse thing to do when I look at the mess they have made with some very good programs.

Unfortunately, the path we are taking in Washington right now is to simply spend another $2.5 trillion of taxpayer money to further expand the role of the Federal Government. I just wish the majority would take a step back, keep their arrogance of power in check, and truly work on a real bipartisan bill that all of us can be proud of. They have the media with them selling this bill as less than $1 trillion. Give me a break. Between now and 2014, yes, they will charge everybody the taxes they can get and the costs they can get, but the bill isn't implemented until 2014, and even some aspects not until 2015. That is the only way, with that budgetary gimmick, they could get the costs to allegedly be down below $900 billion. But even the CBO--certainly the Senate Budget Committee--acknowledges that if you extrapolate--I think my colleagues on the other side acknowledge that if you extrapolate it out over a full 10 years, you have at least $2.5 trillion and in some circumstances as much as $3 trillion.

How can we justify that? With the problems we have today, a $12 trillion national debt, going up to $17 trillion if we do things like this? How can we justify it? How can we stick our kids and our grandkids and our great grandkids--my wife and I have all three, by the way, kids, grandkids, and great-grandkids. How can we stick them with the cost of this bill? This is just one bill. I hate to tell you some of the other things that are being put forth in not only this body but the other. How come we do it on bills that are totally partisan bills?

If we look at what has happened, the HELP Committee, the Health, Education, Labor and Pensions Committee, came up with a totally partisan bill. Not one Republican was asked to contribute to it. They just came up with what they wanted to do. It was led by one staff on Capitol Hill. It is a very partisan bill. Then the House came up with their bill. Not one Republican, to

my knowledge, had even been asked to help, and it is a tremendously partisan bill--both of which are tremendously costly too.

Then the distinguished Senator from Montana tried to come up with a bill that would be bipartisan in the Finance Committee, but in the end, even with the Gang of 6--and I was in the original Gang of 7, but I couldn't stay because I knew what the bottom bill was going to be, and I knew I couldn't--I couldn't support it. So I voluntarily left, not because I wanted to cause any problems but because I didn't want to cause any problems. I found myself coming out of those meetings and decrying some of the ideas that were being pushed in those meetings. I just thought it was the honorable thing to do to absent myself from the Gang of 7. It became a Gang of 6 and then the three Republicans finally concluded that they couldn't support it either.

But I will give the distinguished chairman from Montana a great deal of credit because he sat through all of that. He worked through all of it. He worked through it in the committee, but then it became a partisan exercise in committee by and large.

Yes, there were a couple of amendments accepted: My gosh, look at that. Then what happened? They went to the majority leader's office in the Senate, and they brought the HELP bill and the bill from the Finance Committee, and they molded this bill, this 2,074-page bill with the help of the White House. Not one Republican I know of had anything to do with it, although I know my dear friend, the distinguished majority leader, did from time to time talk with at least one Republican, but only on, as far as I could see, one or two very important issues in the bill. There are literally thousands of important issues in this bill, not just one or two. There are some that are more important than others, but they are all important.

I am not willing to saddle the American people with this costly, overly expensive, bureaucratic nightmare this bill will be. I hope my colleagues on the other side will listen, and I hope we can start over on a step-by-step approach that takes in the needs of the respective States that is not a one-size-fits-all solution, that both Republicans and Democrats can work on, which will literally follow the principles of federalism and get this done in a way that all of us can be proud of.

I don't have any illusions and, thus far, it doesn't look like that will happen. But it should happen. That is the way it should be done. I warn my friends on the other side, if they succeed in passing this bill without bipartisan support--if they get one or two Republicans, I don't consider that bipartisan support. You should at least get 75 to 80 votes on a bill this large, which is one-sixth of the American economy, 17 percent of the American economy. You should have to get 75 to 80 votes minimally. It would even be better if you can get more, as we did with CHIP and other bills. On some we have gotten unanimous votes--on bills that cost money, by the way. Republicans have voted for them, too. Republicans will vote for a good bill even if it costs some money. We are not about to vote for something costing $2.5 trillion to $3 trillion. I don't think the American people are going to stand for it.

Beware, my friends, of what you are doing. I can tell you right now this isn't going to work. I want to make that point as clear as I can.

With that, I yield the floor.

Mr. President, I rise and offer my congratulations to the Real Salt Lake soccer team, the newly crowned champions of Major League Soccer. While Utah has a number of sports teams with proud traditions-- both collegiate and professional--Real Salt Lake has brought to my home State its first major professional championship since 1971, when the Utah Stars won the ABA title. Fans throughout Utah are thrilled.

Real Salt Lake came to Utah in 2004 and faced difficulties during its first three seasons. In just its fourth season, however, Real Salt Lake made an improbable run to the Western Conference Finals, despite only sneaking into the playoffs on the last day of the regular season. They eventually lost that game by a score of 1-0, but with their first playoff appearance, and opening their new world class soccer-specific stadium, their future was filled with promising signs.

In 2009 Real Salt Lake delivered on that promise. Once again, it was the last team to qualify for the playoffs and was the lowest overall seed. Despite barely squeaking into the playoffs, this team of overachievers sure made some noise once they got there. They quickly reeled off a string of consecutive upsets against glitzier opponents with established stars, dispatching top-seeded and defending MLS champion Columbus and then powerhouse Chicago and its star Cuauhtemoc Blanco.

On November 22, the title game in Seattle pitted the little-known upstarts of Real Salt Lake against the Western Conference champions, the Los Angeles Galaxy and its mega-stars Landon Donovan and David Beckham. After 90 minutes of regulation play and 30 minutes of overtime, the game remained tied at 1-1. In the penalty kick shootout, Real Salt Lake emerged victorious 5-4 as Donovan's potential game-tying spot kick sailed harmlessly over the crossbar. Real Salt Lake had delivered the first championship of its kind in Utah in nearly four decades--and it couldn't have come in a more exciting fashion or to a more deserving group of athletes.

In the end, it wasn't the Galaxy of stars that prevailed; it was Real Salt Lake with its philosophy that mirrors the words emblazoned on the sign in its home locker room: ``THE TEAM IS THE STAR.'' That teamwork was certainly on display in the title tilt against Los Angeles. It was reflected in Real Salt Lake Robbie Findley's breakout 64th-minute strike that knotted the score at 1-1 and made the team's overtime and penalty kick heroics possible. It was reflected in the play of Salt Lake goalkeeper and Cup final MVP Nick Rimando, who turned away penalties from L.A.'s Jovan Kirovski and Edson Buddle before besting Donovan. Finally, RSL's determination to overcome the odds also mirrors that of its owner, Dave Checketts, coach Jason Kreis and general manager Garth Lagerwey--all of whom turned the team into a champion despite the naysayers who said it couldn't be done.

No, Real Salt Lake's roster did not have the league's biggest stars. But in the words of midfielder Clint Mathis, better known as Cletus, RSL was ``the better team in every game.'' As much as anything else, that explains why champion Real Salt Lake is now the brightest light in MSL's firmament.

Once again, I congratulate Real Salt Lake on this accomplishment. Senator Bennett and I have introduced a resolution expressing the Senate's congratulations for Real Salt Lake and I urge my colleagues to offer their support.

Mr. President, I am honored to be able to speak on the floor on this very important set of issues. I rise in support of Senator McCain's motion to recommit in order to eliminate the Medicare cuts contained in the legislation.

I do have to say, having listened to my friend from Michigan--and she is a good person and good friend of mine--I have to say I do not see how in the world taking $500 billion from Medicare is good for the Medicare Program. When you start talking about: We are going to find it in fraud, waste, and abuse, that is the biggest dodge that has been used for years and years. Frankly, it is not good for the Medicare Program, it is not good for Medicare beneficiaries, and it is simply not true. How can cuts of that magnitude, $500 billion, $\1/2\ trillion, be good for the program?

I support Senator McCain's motion to recommit the Reid health care bill in order to eliminate the Medicare cuts contained in this legislation. Throughout the health care debate, we have heard the President pledge not to ``mess'' with Medicare. Unfortunately, that is not the case with the bill before the Senate, H.R. 3590, the Patient Protection and Affordable Care act. Interesting name. To be clear, the Reid bill cuts Medicare by $465 billion to fund a new government program. Unfortunately, our seniors and the disabled are the ones who suffer the consequences as a result of these reductions. Medicare is very important to the 43 million seniors and disabled Americans covered by the program. Throughout my Senate service, I have fought to preserve and protect Medicare for both beneficiaries and providers. Medicare is already in trouble today. The program faces tremendous challenges in the very near future. The Medicare trust fund will be insolvent by 2017, and the program has more than $37 trillion, almost $38 trillion in unfunded liabilities. So we are going to take $500 billion more out of Medicare? That doesn't make sense. Every senior in this country ought to be up in arms about it.

The Reid bill is going to make a bad situation much worse. Why is that the case? Again, the Reid bill cuts Medicare to create a new government entitlement program. More specifically, the Reid bill will cut nearly $135 billion from hospitals, $120 billion from Medicare Advantage, and almost $15 billion from nursing homes, more than $40 billion from home health care agencies, and close to $8 billion from hospice providers. How can that be good for our seniors? These cuts will threaten beneficiary access to care, as Medicare providers find it more and more challenging to provide health services to Medicare patients. How can cutting $465 billion, almost $500 billion, out of Medicare strengthen the program? It defies logic. I do not know how people can stand on this floor and make that statement. The people out there have caught on to it. Senior citizens have caught on to it. All across the country they are up in arms, and they should be.

In addition, the proposed legislation permanently cuts all annual Medicare provider payment updates. Hospitals, home health agencies, and hospice facilities would face even more annual reductions over the next 10 years. Advocates of these reductions, known as ``productivity adjustments,'' will argue that today Medicare is overpaying certain providers because current payment updates do not take into account increases in productivity which actually reduce the cost of providing beneficiaries health care services. Come on. To me these permanent productivity adjustments will make it harder for Medicare providers to remain profitable, as Medicare payments fail to keep up with the cost of providing these health care services.

As a result of these payment reductions, I believe many doctors and other Medicare providers will stop seeing Medicare patients. In my home State of Utah, low Medicare reimbursement rates are already a serious problem for beneficiaries and their health care providers. These additional reductions will only make it more difficult. I want to stress to my colleagues that cutting Medicare to pay for a new government program is irresponsible. Any reductions to Medicare should be used to preserve the program, not create a new government bureaucracy or a new entitlement program. I believe it makes more sense to target the Medicare savings towards paying off Medicare's unfunded liabilities or preventing the program's future insolvency.

I wish to take a few minutes to talk about the Medicare Advantage Program and how it is affected by the Reid bill. As I stated previously, the Reid bill reduces Medicare by close to $500 billion. Almost $120 billion comes out of the Medicare Advantage Program. During the Finance Committee's consideration of the Baucus health bill, I offered an amendment to protect extra benefits currently enjoyed by Medicare Advantage beneficiaries. Unfortunately, my amendment was defeated. In other words, the President's pledge assuring Americans that they would not lose benefits was not met by either the Finance Committee bill or the Reid bill currently under consideration in the Senate. Here is how supporters of the Finance Committee bill justified the Medicare Advantage reductions. They argued the extra benefits that would be cut, such as vision care, dental care, reduced hospital deductibles, lower copayments, and premiums, were not statutory benefits offered in the Medicare fee-for-service program. Therefore, these benefits did not count. Well, they counted for the seniors receiving those benefits.

A few weeks back our President once again assured the American people

that they could keep their current health plan. Here is what he said:

The first thing I want to make clear is that if you are

happy with the insurance plan that you have right now, if the

costs you're paying and the benefits you're getting are what

you want them to be, then you can keep offering that same

plan. Nobody will make you change it.

I believe that promise should apply to all Americans, including those participating in the Medicare Advantage Program. Congress is either going to protect existing benefits or not. It is that simple. Unfortunately, under the Reid bill, if you are a beneficiary participating in Medicare Advantage, that promise does not apply to you.

I have some history with the Medicare Advantage Program. I served as a member of the House-Senate conference, as did the distinguished chairman of the Finance Committee. We both served as members of the Senate conference committee which wrote the Medicare Modernization Act of 2003. Among other things, this law created the Medicare Advantage Program. We did it because we wanted to provide health care choices to beneficiaries living in rural America. And it did. Medicare+Choice didn't do it. We knew it wouldn't do it. When conference committee members were negotiating the conference report, several of us insisted that the Medicare Advantage Program was necessary in order to provide health care coverage choices to Medicare beneficiaries. At that time there were many parts of the country where Medicare beneficiaries did not have choice in coverage. In fact, the only choice offered to them was traditional fee-for-service Medicare, a one-size-fits-all government-run health program.

By creating the Medicare Advantage Program, we provided beneficiaries with a choice in coverage and then empowered them to make their own health care decisions as opposed to the Federal Government making those decisions for them. Today every Medicare beneficiary may choose from several health plans for his or her coverage. Medicare Advantage works. It has worked. It will work in the future, if we don't louse it up with this bill.

On the other hand, Medicare+Choice and its predecessors did not, because many plans across the country, especially in rural areas, were reimbursed at very low rates by the Medicare Program. I fear history could repeat itself if we are not careful. Let me take a minute to talk about Medicare+Choice. I represent a State where Medicare managed care plans could not exist due to low reimbursement rates. To address that concern, Congress included language which was signed into law establishing a payment floor for rural areas, but it was not enough. In fact, in Utah all of the Medicare+Choice plans eventually left because they were all operating in the red. This happened after promises were made that Medicare+Choice plans would be reimbursed fairly and that all Medicare beneficiaries would have access to these plans.

So during the Medicare Modernization Act conference, we fixed the problem. First, we renamed the program Medicare Advantage. Second, we increased reimbursement rates so that all Medicare beneficiaries, regardless of where they lived, be it in Fillmore, UT or New York City, had choice in coverage. Again, we did not want beneficiaries stuck with a one-size-fits-all government plan. Today Medicare Advantage works. Every Medicare beneficiary has access to a Medicare Advantage plan. Close to 90 percent of Medicare beneficiaries participating in the program are satisfied with their health coverage. But that could all change should the health care reform legislation currently being considered become law. Choice in coverage has made a difference in the lives of more than 10 million individuals nationwide. The extra benefits I have mentioned are being portrayed as gym memberships as opposed to lower premiums, copayments, and deductibles. To be clear, the Silver Sneakers program is one that has made a difference in the lives of many seniors, because it encourages them to get out of their home and remain active. It has been helpful to those with serious weight issues, and it has been invaluable to women suffering from osteoporosis and joint problems. In fact, I have received several hundred letters telling me how much Medicare Advantage beneficiaries appreciate this program.

Additionally, these beneficiaries receive other services such as coordinated chronic care management, dental coverage, vision care, and hearing aids.

In conclusion, I cannot support any bill that would jeopardize health care coverage for Medicare beneficiaries. I truly believe that if the bill before the Senate becomes law, Medicare beneficiaries' health care coverage could be in serious trouble. We owe it to the 43 million Americans, seniors and disabled who depend on Medicare, to reject the nonsensical Medicare cuts included in the Reid bill. We must have better solutions that will not hinder their ability to see the doctor of their choice.

I have been in the Senate now for 33 years. I pride myself for being bipartisan. I have coauthored many bipartisan health care bills since I first joined the Senate in 1977.

Let me be clear: I want a health reform bill to pass this Chamber, but I want it to be a bipartisan bill that passes the Senate by 70 to 80 votes. If a bill involving one-sixth of the American economy cannot get 70 to 80 votes, that bill has to be a lousy bill, especially if it is a partisan bill, like this one.

If we could do it in 2003, when we considered the Medicare prescription drug legislation, we can do it today. There has never been a bill of this magnitude affecting so many American lives that has passed this Chamber on a straight party-line vote. In the past, the Senate has approved many bipartisan health care bills that have eventually been signed into law. The Balanced Budget Act in 1997, which included the Children's Health Insurance Program; the Ryan White Act; the Orphan Drug Act; the Americans with Disabilities Act; and the Hatch-Waxman Act are a few of these success stories, and I was a prime sponsor of every one of those bills. If the Senate passes this bill in its current form with a razor thin margin of 60 votes--or even 61, to be honest with you--it would be so partisan it wouldn't even be funny. This would be yet one more example of the arrogance of power since the Democrats have secured a 60-vote majority in the Senate.

There is a better way to handle health care reform. First and foremost, it must be bipartisan. We stand ready and willing to work on a bipartisan bill, without the restrictions that were placed on the distinguished Senator who chairs the Finance Committee. It should be bipartisan. Second, we cannot erode the existing system that has provided quality and affordable health care to most Americans for decades. While we all agree that the current system should be improved, this bill is certainly not the answer. If the Senate passes the McCain motion to recommit, we can begin to work on a bipartisan health bill that will eliminate the overwhelming Medicare payment reductions and at the same time address the serious issues facing the Medicare Program in the near future.

Look, we know that insurance should cover preexisting conditions. We know if we use 50 State laboratories by giving the States the money to address health care in accordance with their own demographics, not only will states resolve their own health care issues but we also will be able to learn from the successes of these States.

We all know if we address medical liability reform and eliminate approximately 90 percent of the frivolous cases that are filed--costing anywhere from $54 billion to $300 billion a year in unnecessary costs-- we know those savings would help us pay for this bill.

We know there are so many things we could do on wellness and prevention that will work. I think all of us agree on most of these issues. Democrats could never agree on medical liability reform because the personal injury lawyers--and there is a limited group in what used to be the American Trial Lawyers Association--are high funders of Democratic races. So they are not willing to do anything about it. In fact, in the House bill, if you do not cooperate with the personal injury lawyers, you lose your money. It is unbelievable.

We know there are a number of other things we could do that both sides could agree on that would cut costs. We are currently spending in this country, without this bill, $2.4 trillion on

health care, all told. This bill will add, over a true 10-year period, another $2.5 trillion to the cost. So it will result in almost $5 trillion in health care spending. Why don't they admit it is going to be at least $2.5 trillion? They do not admit it because for the first 3 or 4 years they count the taxes that are charged, but they do not implement the program until 2014 in the Reid bill. It is 2013 in the House bill, and even 2014 in some aspects of the House bill. That is the only reason they can say it is about $1 trillion. It is actually $2.5 trillion according to figures from the Senate Budget Committee, using the figures of the Congressional Budget Office.

I hate to see $500 billion come out of Medicare, at a time when Medicare is going to go insolvent by 2017 or 2018. I think it is absurd. I think it is ridiculous. I do not blame the seniors for being upset, and they are very upset throughout this country. They have reason to be upset. I urge my colleagues to support the McCain motion to commit this bill, and let's get working on a truly bipartisan bill.

There are some of us who have the reputation of working with the other side in a bipartisan way. We want to do it. We want to get it done. We want the vast majority of the people in this country happy with the final bill. We want to have between 75 and 80 votes, as a minimum, to pass this bill. That way, there would be at least some assurance that it was a bipartisan bill and it might have a real chance to work. But if we pass this bill 60 to 40, let's be honest about it, you know it is a lousy bill.

Mr. President, I yield the floor.