Floor Statements

Mr. President, I rise today in support of the legislation introduced by Senator Wyden, of which I am an original cosponsor, the `Hospice Evaluation and Legitimate Payment Act.' The HELP Act.

The HELP Act does what the title says it does and takes initial steps in helping our hospices in Kansas and across the Nation continue to give the valuable care that patients and families need.

It is impossible to describe the value of hospice services to the patients and families for whom they provide selfless and compassionate care. Over the next 10 years hospice is facing drastic reductions in their reimbursements, negatively impacting at least 1.3 million patients and families, which is the number served by hospice programs in recent years.

The HELP Act sets realistic requirements for a face-to-face encounter. The Accountable Care Act included a requirement that a hospice physician or nurse practitioner should have a face-to-face encounter with hospice patients before their 180-day recertification and for each 60-day recertification period after that date, has caused a significant burden on our hospice communities, especially those in rural areas. The limits on who can conduct the face-to-face encounter and the timeline for compliance do not reflect the operational realities of hospice programs, especially for small and rural hospices. The HELP Act would allow Nurse Practitioners, Clinical Nurse Specialists and Physician's Assistants to conduct the face-to-face encounter, and that hospice programs be afforded 7 days after the election of services to fulfill the requirement.

The HELP Act would require the Secretary to establish a payment reform demonstration program to test any prospective payment revisions to hospice, and would include an evaluation period for data analysis; increase the frequency of hospice surveys to every 3 years; and would amend the new face-to-face encounter statutory framework to reflect operational realities for hospice programs, and the needs of the patients and families they serve.

Under this legislation the new payment methodologies for hospice must first be piloted through a 2-year, 15-site demonstration program to allow for any recommended payment reform schemes to be tested across a representative sample of the hospice community and to assess their impact on beneficiary access to hospice services.

The HELP Act also requires more frequent hospice surveys. A recent Office of the Inspector General's, OIG, report noted that CMS was remiss in its supervisory responsibilities by not regularly reviewing the operational and clinical delivery processes of the hospice community. OIG has recommended on numerous occasions that ``CMS should conduct more frequent certification surveys of hospices as a way to enforce the requirements.'' Accrediting organizations, such as the Joint Commission for the Accreditation of Healthcare Organizations, JCAHO, have set an industry standard of certification every 3 years for hospices. The HELP Act requires an initial survey for those seeking certification to be followed by a standard survey every 3 years.

While there is more work that needs to be done to address payment reductions for hospice providers, the HELP Act takes some initial steps to addressing these problems. I am grateful to my colleague Senator Wyden for introducing this legislation and I am happy to lend my support. I encourage all of my colleagues on both sides of the aisle to review and consider supporting this very important piece of legislation.

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

It is my understanding that at 2:15 morning business expires. I ask unanimous consent to proceed as in morning business for 15 minutes.

Mr. President, I rise today to once again speak out against what I consider to be and many others consider to be a regulatory assault on our Nation's economy. I have previously discussed my concerns with regulations having a negative impact on our agriculture community. That was last week. Earlier this week, I spoke about what I consider to be the egregious regulations that are being promulgated by the EPA, or what Senator Grassley calls the ``end of production agriculture agency.''

Today, I rise to talk about health care regulations that patients and providers have brought to my attention. I have listed a number of these regulations in a letter I sent earlier today to President Obama. I ask unanimous consent that it be printed in the Record.

As I have already discussed on the Senate floor, an Executive order was issued by the President on January 18. It was a good order. I applauded that order. It committed all Federal agencies to review regulations and then to try to remove any that placed unreasonable burdens on our Nation's businesses and/or impact the ability of our economy to grow, to recover.

I agree that, in light of our current economic crisis, establishing a regulatory environment that promotes growth and job creation should be the No. 1 priority for this Congress and the administration. I applaud what the President said when he issued the Executive order--that there are some regulations that are duplicative, costly, and unnecessary and, as he said, downright dumb. There was loud applause in farm country, manufacturing, health care, education--you name it. However, after reviewing the Executive order, I remind my colleagues that I was left-- and I hope if you read it you are left--with some larger concerns. Specifically, the order left open a number of very large loopholes. It was an Executive order without teeth.

When I was in Kansas over this last work period, I talked to virtually all of our Kansas patients, providers, and advocates about the President's Executive order and my legislation, which is called the Regulatory Reform for Our Economy Act. I held a stakeholder roundtable in Topeka. I held a roundtable in our State capitol, in order to get feedback from patients and provider groups on their thoughts related to health care reform. I was not surprised to hear that every representative at that meeting had a concern with regulations, but the sheer volume of regulatory concerns as seen by my staff and myself was truly extraordinary.

I was already aware of regulations, such as those put forth by the Department of Health and Human Services, along with the Department of Labor and Treasury, that have resulted in the child-only insurance market effectively disappearing in 20 States. Which I believe is the result of overregulation or overrequirements.

I have already sent letters to the administration detailing my concerns with regulations, such as--stick with me now--first, the 2011 Medicare physician fee schedule final rule, which requires that laboratory requisition forms are signed by the ordering physician. This rule could have potentially serious implications on patient care and business practice.

Second, on November 17, 2010, CMS, the Center for Medicare and Medicaid Services, issued a final rule which, as required by the new health care law--the acronym for that is PPACA--conditions payment for home health and hospice services based upon a face-to-face encounter between patients and their physicians or certain nonphysician practitioners prior to certification for home health or hospice services. On top of about a $11 billion cut to hospice, which is rather incredible, this is resulting in burdensome requirements for our rural home health and hospice patients. For those who need this help the most, this is truly hard to understand.

Third, the antiswitching rule in Medicare's competitive bidding program--the acronym is CBP; there is an acronym for everything--for durable medical equipment, prosthetics, orthotics, and supplies. Specifically, that proposal to enforce the rule in subsequent rounds of the competitive bidding program, but not round one, may compromise beneficiary access to appropriate diabetes testing supplies and leave beneficiaries vulnerable to pressure from suppliers to switch testing systems.

I am going to try to get rid of the gobbledygook and say that during the initial round of competitive bidding for medical equipment, some of the suppliers didn't even know there was an initial round of competitive bidding. In Kansas City, there were 424 suppliers, and 20 submitted bids this time around. We delayed it to this year because it was so onerous. Then this year came around and CMS selected 20. What happened to the other 404? What happened to the people who depended on pharmacists and home health care providers for that walker, that crutch, or whatever they need--or oxygen tank, for that matter? We are left with huge holes in the home health care industry and a need for providing DME equipment.

I was surprised to hear that every representative at this stakeholder meeting--and all representative groups were invited, including hospital administrators, doctors, nurses, pharmacists, and hospice folks. I believe it was the first time they met at the same time. I was surprised to hear that every representative at this stakeholder meeting to discuss the impacts of health care reform had concerns with regulations, some of which are buried in the volumes of regulations being put out every day, and many that defy comprehension.

When discussing the President's Executive order and regulations with my constituents and those representing the patient and provider community, the No. 1 concern I heard was a fear not just of the current regulations, which they are trying to keep up with, but of future regulations.

While there is considerable concern with the burden of regulations that have already been issued, I heard time and again that there is an even greater concern with the uncertainty of future regulations, especially those implementing the Patient Protection and Affordable Care Act, or PPACA, and their potential to have further and greater impact on jobs and the economy and health care--even greater than the impacts we discussed during the health care reform debate. At the stakeholder meeting we had meaningful dialog about that. This is akin to a second health care reform earthquake. If you are a health care provider, hang on.

Additionally, I have heard that the combination of the regulations being issued to implement the PPACA statute has resulted in an increase in premiums--to repeat that, an increase in premiums, not cost savings--for individuals and businesses, which, as you know, results in increased costs and very tough choices.

Related to this, I am concerned by reports that I am hearing that staff within the administration have signaled that regulations being issued to implement the PPACA statute already comply with the President's Executive order and would not need to be included in a review. Does that mean all the health care regulations pouring out of CMS are not going to be subject to the President's Executive order? What is that? This is one of the biggest worries we have throughout the country regarding health care, and the President issues an Executive order and says let's take a look. Do the costs outweigh the benefits? Are they duplicative, unnecessary, or just plain dumb?

Those are his words. CMS is exempted? Health care is exempted? That is unreal.

I believe otherwise, and this belief is being verified by personal stories from Kansans. In my letter to the President today, I strongly encouraged him to review all of the regulations that have been issued, past, present, and future, while considering their impact on the economy and jobs. Sure, it would be a tough job. It is time, with the ``Katrina'' of regulations pouring out of the various agencies in Washington.

Understanding this, last month, I, along with Senators Barrasso and Coats, and with the support of 38 Senate colleagues--have introduced the Regulatory Responsibility for Our Economy Act, S. 358. I urge my colleagues on the other side, who I am going to engage in the next week. We will go face to face and I will try to convince you.

My bill moves to codify and strengthen President Obama's January 18 Executive order that directs agencies within the administration to review, modify, streamline, expand, or repeal those significant regulatory actions that are, in the President's words, duplicative, unnecessary, overly burdensome, or would have significant economic impacts on Americans. I have given President Obama credit for saying that, but I don't give him credit for including the loopholes.

While I agree in principle with the President that we need to take a serious look at both current and proposed Federal regulations, I don't think his Executive order actually does what it purports to do. I have some loopholes listed. In Dodge City, where I come from, coming close to the truth is coming pretty close, but it still ain't the truth. I think this is where this fits.

The Executive order states--and I want everybody in the Senate, if you are listening, or if your staff is listening, provide this to your member. Figure this out:

In applying these principles, each agency is directed to

use the best available techniques to quantify anticipated

present and future benefits and costs as accurately as

possible.

That is a good thing.

Where appropriate and permitted by law, each agency may

consider (and discuss qualitatively)--

and this is the part where I had the most concern, and I hope somebody can explain it.

values that are difficult or impossible to quantify,

including equity, human dignity, fairness, and distributive

impacts.

What is that? ``But,'' as the Wall Street Journal captured so eloquently in their response to President Obama's editorial, ``these amorphous concepts are not measurable at all.'' They are not.

On the surface, I feel this language has the potential to be a very large loophole--probably is already. I believe this is the loophole being used to exempt the PPACA regulations from this review. That is unfortunate. In fact, upon reading and rereading it, it could be better described as gobbledygook.

As a matter of fact, it got my gobbledygook award of the month this past month. My legislation would close the loopholes in President Obama's Executive order and would close other existing loopholes, including those the administration has been using--or the Secretaries for the various agencies have been using--to bypass valuable stakeholder input on regulations. In fact, I hear often that patients and providers believe they do not have a voice in the regulatory process.

More specifically, I hear that a number of regulations are currently being issued through a shortened process which allows limited or no input from those most affected by the regulations prior to their implementation--that is wrong--and they may result in an even greater confusion and burden which then results in greater costs and economic impact, especially if changes are necessary based on later comments that the administration does receive.

It is my understanding the PPACA rules that have been issued as interim final rules and, therefore, with limited input--and they will probably become final--are the national provider identifier, Web portal requirements, Early Retiree Reinsurance Program, coverage of children to age 26. Underserved rural communities, grandfathered health plans, preexisting condition exclusions, preventive services, internal claims/ appeals and external review processes, Pre-existing Condition Insurance Plan Program, amendment to grandfathered health plans rule, and medical lost ratio requirements. That is a bunch of them--all regulations through a shortened process.

While there may have been instances in which a shortened process was necessary or appropriate, this lengthy list is why passage of my legislation is so critically important.

I ask the Presiding Officer if I have exceeded my time. If I have, I would like 2 additional minutes to close.

May I have 2 additional minutes, and I will close.

In my letter to the President today, I have encouraged the administration to limit the use of this shortened regulatory process and take every available opportunity to get feedback from those who would be most affected by these regulations--that just makes sense--and allow for ample time to review and consider that feedback prior to implementing the future regulatory priorities. We are going to have better regulations if, in fact, you ask folks: Is this going to work? Maybe tweak it, maybe repeal it. Who knows. The President himself said that.

In addition, I have encouraged the administration to review any comments received on these regulations that have already been issued for any concerns that indicate a potential to further our economic problems and crises.

In closing, I invite my friends on both sides of the aisle to sign on as a cosponsor of my legislation, realizing the immense opportunities it creates for meaningful review and possible revocation of regulations counter to our Nation's growth.

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

I will be delighted to.

Mr. President, I understand we are in morning business and that I am recognized for 10 minutes. I ask unanimous consent that I be recognized for 15 minutes. I will try to make it short. If it goes on any longer, I will ask unanimous consent for additional time.

Mr. President, I congratulate the Senator from Alabama for laying out exactly what we face when we have a vote tomorrow in regard to the future of the United States and whether we restore common sense to Federal spending and prevent the chaotic situation he so aptly described, not only in terms of our immediate future but for our children and our grandchildren.

That says it all in regard to we had a townhall meeting--Senator Jerry Moran, Congressman Kevin Yoder, and myself in Johnson County, KS. In that meeting, the first question out--it was 100 to 250 people who were so excited: When are you going to get control of this spending? They worry not just about themselves but their kids and grandkids.

As usual, we are going to have to dub the Senator from Alabama the watchdog of the Senate, but he so eloquently described what we face. I thank him for it.

Mr. President, I rise to speak out against what I consider to be a regulatory assault on our Nation's energy sector. That is pretty strong language, but I intend it to be.

I listed a number of these proposed regulations in a letter I sent earlier today to President Obama. I ask unanimous consent to have this letter printed in the Record.

We--myself, staff, others, a lot of people I have met with in Kansas, regardless what economic sector we are talking about, whether it is energy, which I wish to talk about today, whether it is agriculture, which we talked about last week, health care is coming, and then we are going to talk about the financial sector--we have talked about the President's initiative, his Executive order in which the President said rightly--and I applauded that statement that we have so many regulations pouring out of Washington and so many regulations on the books, we do not have a cost-benefit yardstick--that is my favorite term for it--to say: Does the cost exceed the benefit? Does it make sense?

The President himself said there are many that are duplicative and very costly and basically are stupid. That is exactly what the President said. I said ``egregious.'' That is the Senate word. The President said ``stupid.'' I think everybody understands that. He issued an Executive order, and he said to all the Federal agencies: Please, take a look at the regulations that are on the books and all the regulations that are coming out of your agency and see if you can make sense out of it and try to separate out the ones that are duplicative, costly, and, yes, stupid and the ones that are not and we can make some progress. I applauded the President's effort.

The problem is, it is an Executive order that has no teeth. There are three exemptions--and I will get into that in my prepared remarks, but basically the independent agencies are excluded. There are a bunch of them. There is language in the bill that says, if you are doing it for the public good, the Secretary can say: Oh, well, that does not apply to us. How many Secretaries around here--for that matter czars. I guess they are in the room. I don't know what they do. If there is a czar sitting there talking to schedule C appointees and says: Do you think our regulations serve the public good, of course, they think that. They would not have promulgated them or issued them or thought them up to begin with if they did not think it was for the public good. So they are exempt.

Then, we have a wonderful paragraph that I defy anybody to understand. They can also use that in regard to dodging around the President's Executive order. The President issued an Executive order, said some very good things to the American public, but it does not have any teeth.

I have a bill. We have 30 cosponsors. The bill says: Mr. President, you are right with your Executive order. We codify his order, but we take out the exemptions. What a day that would produce--or a year, for that matter--for all Federal agencies, if they truly had to adhere to the President's Executive order. I hope we get more cosponsors and we could actually consider it and actually pass it on the floor of the Senate.

We have several areas of our economy that are affected in a most egregious way by all these regulations. I talked about agriculture last week. We are talking about energy today. Health care is coming, and the financial institutions will be coming after that.

Even as the price of crude continues to climb above $100 this administration continues to promote domestic energy policies that are making it more expensive for Americans to put gas in their cars, heat their homes, power their businesses. Just yesterday in a townhall meeting in Johnson County in Kansas, I heard complaints about the rising gas prices and our dependence on foreign oil and the need to develop our own domestic resources--all those resources. But this vital goal is now extremely difficult on the administration's own policies, again affecting not only energy but agriculture and our financial institutions and health care. I call them the four horsemen of regulatory strangulation. That may be a little harsh, but I don't think it is.

As I said, last week, I came to the floor and highlighted a multitude of new overly burdensome and, in many situations, absurd EPA regulations that will have a significant negative effect on the ability of our farmers and our ranchers to produce the food and the crops necessary to compete in a global market and to feed a troubled and hungry world. Take a look at the coverage in regard to Libya and the news blip we saw on television where somebody was shouting and protesting and one of our newspeople stuck a microphone in front of his face and said: Are you trying to promote democracy? He said: No, I just want a loaf of bread. I will say to you that a hungry nation is a nation that does not have any possibility of economic opportunity. Well, unfortunately, as we all know, the EPA's reach goes well beyond the agricultural industry. Its regulations are moving to make the energy we rely on every day more expensive to produce, and many times without providing any appreciable benefits to the environment. Nobody wants to do anything that would endanger the public health. But I think we can take a good look at some of these regulations in regards to any appreciable benefits to the environment and find they are few and far between.

Since fiscal year 2010, 10 new regulations promulgated by the EPA have accounted for over $23 billion in new costs to the American taxpayer, costs which are even more painful for Americans as our Nation continues to struggle with an almost 9-percent unemployment rate. Unfortunately, with the number of proposed regulations currently before our domestic energy producers, if we do not take action--we meaning the Congress--2011 and beyond will be even costlier.

For example, EPA has proposed to amend the current national ambient quality standards for ozone to a range of 60 to 70 parts per billion. This is a range so stringent that recent analysis estimates hundreds of thousands of jobs would be at risk because of the inability of cities and counties to meet these attainment levels.

The EPA itself has estimated this new regulation would cost between $19 billion and $90 billion to fully implement. I am talking about the 60 to 70 parts per billion standard. It provides no rationale as to what new scientific data justifies updating a standard set as recently as 2008.

This proposed regulation is in addition to the recently enacted greenhouse gas regulations requiring application of the best available control technology. Who decides that? That is the Kansas Department of Health and Environment with the EPA looking over their shoulder, and it is the application of best available control technology for stationary sources of greenhouse gas emissions.

This regulation currently only affects those stationary sources of energy emitting 75,000 or more tons of carbon per year and which are already subject to the prevention of significant deterioration--they call that PSD--permitting requirements for nongreenhouse gases--or

Mr. President, I ask unanimous consent to speak as in morning business for approximately 20 minutes, and I probably will not use all of that time and will yield back.

I thank the Chair.

Executive Order on Regulations

Mr. President, I rise today to speak again about President Obama's January 18 Executive order that directed all Federal agencies within the administration to review or repeal those significant regulatory actions that are duplicative, overly burdensome, or would have a significant economic impact on ordinary Americans.

The President went on to say--I am paraphrasing from his words--they are costly, they are duplicative, in many cases they aren't necessary, we need to review them, and in some cases, actually, they are stupid. That is a direct quote from the President. I am paraphrasing, but he did say the word ``stupid.''

Probably ``stupid'' would be the word, or maybe ``egregious'' or ``fed up'' that almost any group or any organization back home would use when you visit with them. I know Senators, on their past break or our work period, if you will, probably spoke to a lot of groups. I will tell you what happened to me.

I would walk into a group--any organization, be it farmers, ranchers, educators, health care, whatever--and they would say: Pat, what on Earth are you doing back there, passing all these regulations, a wave of regulations that do not make common sense and do not fit the yardstick, if you will, of cost and benefit? We can't even wake up any morning without some new regulation popping up across the desk, and we just don't have the people to do this. You are about to put us out of business.

The first thing I say is, I am not a ``you guy,'' I am an ``us guy.'' And I am very much aware of these regulations. We have to do something about it. I brought up the fact the President himself recognized these problems.

But I have to say that while I applauded this decision by the President, I noted there were some loopholes in his Executive order, and they are roughly these--if I could sort of summarize them: No. 1, if you are doing something for the public good--and, obviously, the secretary of any agency is going to say: Sure, we are doing something for the public good--well, then, you are exempt. That is a pretty big loophole to drive the truck through.

Secondly, it was if you are an independent agency. Well, let's try the IRS. I think more people than most would say: Yes, we have some regulatory problems with the IRS.

Several more, and I won't go into those. Then you have this paragraph, which I am going to read, that agencies can apply to their decision as to whether they are going to review the regulations they have on the books and regulations coming down the pike. They can apply this to see if they are exempt, and this is within the Executive order.

In applying these principles, each agency is directed to

use the best available techniques to quantify anticipated

present and future benefits and costs as accurately as

possible.

I can't imagine anybody being opposed to that.

Where appropriate and permitted by law, each agency may

consider and discuss qualitatively values that are difficult

or impossible to quantify--

I don't know how you do that--

including equity, human dignity, fairness and distributive

impacts.

That is about as amorphous as any language that I could possibly put together. If any secretary, or anybody in any agency who promulgates all the regulations they think they are forced to under some congressional act or perhaps an Executive order they are trying to issue applies this language, of course, they are exempt.

So there are loopholes, again, that you can drive trucks through in regards to the fact that this Executive order is basically not going to be adhered to because everybody will stand up and say: We are exempt. We are doing public good. We are doing this language--whatever that means.

So while I applaud the decision by the President, I decided last week I would introduce legislation to strengthen and codify his Executive order. All that means is, when I say we codify it, we say: OK, the Executive order stands but, sorry, no exemptions.

What a day that would bring to Washington, with all the Federal agencies saying: Whoa, stop. We are going to take a look at all the regulations we have out there now, and we are going to take a look at all the ones we are promulgating--which are hundreds of them. And, I might just note, there were 44 major regulatory decisions that cost the American business community $27 billion just last year, according to one study. We are finding more and more people coming to Washington who have an agenda in regards to these regulations, but the folks out there who are being impacted seem to be overlooked.

I have 30, 32, 35 cosponsors on this bill. I asked on both sides of the aisle for cosponsors. I think it is a good bill. It would be a brandnew day in Washington if every Federal agency had to stop and say: Whoa, wait a minute. Let's apply a cost-benefit yardstick. The Executive order sort of goes into what that would mean. They have one individual who is supposed to be doing all of this, so they could report to him, although that would be quite a load. My goodness, if all the Federal agencies stopped their regulatory process, there would be a cheer out in the hinterland in regards to every business I can think of.

Well, as the administration moves forward with this review, I am going to have something to say in several areas: health care, energy, and financing, to people who are lending agencies and the effect of the regulatory reform. But today I want to talk about agriculture.

Today I want to talk about the EPA and what is going on in regards to what I think is regulatory overkill for sure.

I am privileged to be the ranking Republican and to serve with the Senator from Michigan, our chairwoman of the committee, Senator Stabenow. Basically, as the administration moves forward with its review, I recommend the President and his advisers pay particularly close attention to the activities of three specific agencies when they are determining which proposed regulations will place the greatest burden on agriculture--a key component of our Nation's economy and the ability to feed this country and a troubled and hungry world--the Environmental Protection Agency, the Department of Agriculture, and the Commodity Futures Trading Commission.

Since fiscal year 2010, 10 new regulations promulgated--that is a fancy word in Washington which means issued--by the EPA have accounted for over $23 billion in new cost to the American taxpayer. Now, that is outrageous, and they are just getting started. The EPA has several new proposals, many of which will have immediate negative impacts on the ability of America's farmers and ranchers to continue to produce enough food to feed our communities, our States, our country, and, yes, the world. Think of how valuable that is as we look down the road with about a 9.3 billion increase in population compared to 6 billion today. We are going to have to double agriculture production, and I will talk about that a little later.

Why on Earth would we want to do anything to the farmer and rancher whose job it is to do that? That is beyond me. I will highlight two such proposals that many producers have brought to my attention. I just addressed the Commodity Classic in Kansas, in Great Bend, of about 200 farmers. Guess what their No. 1 concern was. Overregulation, regulation that could put them out of business. They are concerned about the farm bill and they are concerned about lending and they are concerned about debt. But first, in only 7 short weeks, the EPA will require farmers-- who are applying pesticide to kill pests so they can save the crop--to obtain a permit under the Clean Water Act, even though that activity is already highly regulated under the Federal pesticide law. The President said we don't need regulations that are duplicative. We don't need two agencies having a different agreement on one regulation. We probably don't even need that regulation because we have very strong regulations under the FIFRA act that we have right now.

Farmers and other pesticide applicators, under this regulatory impact, would not be facing these requirements if the administration had chosen to vigorously defend its longstanding policy that protections under the Federal pesticide law were sufficient to protect the environment.

Excuse me, Mr. President. That was probably a phone call from some farmer listening to this and saying: Go ahead and give them you know what, Pat.

Unfortunately, the administration chose a different path and now estimates suggest this duplicative regulation will require 365,000 individuals to get a Clean Water Act permit--365,000 individuals--a requirement that will cost $50 million and require 1 million hours per year to implement. Bottom line, it will not add any environmental protection.

This layer of redtape will place a huge financial burden on the shoulders of farm families all across the country, as well as State governments responsible for enforcement while at the same time facing dire budget situations. Last month, John Salazar, a former Member of the House of Representatives and newly appointed Colorado Commissioner of Agriculture stated in his testimony before the House:

It is no secret that States across the country face dire

budget situations and many have had to close State parks,

cancel transportation projects and cut funding to higher

education. It is very difficult to justify diverting even

more resources to manage paperwork for a permit that is

duplicative of other regulatory programs and has no

appreciable environmental benefits. However, if Colorado's

estimates are reflective of the situation in other States,

the true cost to States will quickly outstrip EPA's

estimates. More than 365,000 individuals, $50 million, and 1

million hours per year to implement on the backs of our

farmers and ranchers.

Mr. President, these expenses are not just limited to the cost of compliance and enforcement. The April 9 effective date is near. There is still significant confusion and uncertainty about what pesticide applications will fall under these new regulations. This means farmers and other pesticide applicators may very well find themselves subject to massive penalties. On top of the fact that they shouldn't be filling out the paperwork in the first place, if they do not, they could be held responsible for massive penalties for minor paperwork violations to the tune of--get this--$37,500 per day per violation. Unbelievable.

Beyond agency enforcement, they will also now be exposed to the threat of litigation under the clean water law's citizen suit provisions. With the volatile nature of agricultural markets and increased demand, these sort of risks and resulting costs are something that producers and the hungry mouths who depend on them simply cannot afford.

Next, EPA is undertaking an effort to control particulate matter-- this is a favorite of mine--otherwise known as dust. They call it rural fugitive dust. This is a dust-off of the old 1970s effort to control rural fugitive dust. I remember that. Somebody must have pulled it from the file. This is part of the EPA's review of the PM standard under the Clean Air Act.

The agency is currently considering the most stringent regulations on farm dust that have ever been proposed. I finally reached the person who, when they first proposed this, was in charge of promoting it, or she was going to promulgate these regulations on rural fugitive dust. Before I could get a word in--I finally reached the person in charge; it took me 3 days--finally, before I could get a word in, she said: Did you realize--at that point I was a Congressman, and she said: Do you realize, Mr. Roberts, you have a lot of dust in your part of the country?

I said: I think I know that. That is why we had the Great Plains Conservation Program. Each farmer has to have a conservation program if they are going to apply or for it to be applicable to the farm bill. We have a Conservation Reserve Program. We are doing everything we can to control dust, rest assured. Nobody likes that.

I said: What would you have us do to comply with rural fugitive dust rules?

She said: You know the grain trucks at harvest go up and down gravel roads, and they cause a lot of dust.

No kidding.

I said: What would you have us do?

She said: Why don't you send out water trucks at 10 o'clock in the morning and 2 in the afternoon to every community in Kansas that has those gravel roads where you harvest wheat.

I said: Great idea. That would be marvelous. Maybe we could get a grant. Today, that would be a stimulus grant to small communities in regard to rural areas where we are doing the wheat harvest to, No. 1, buy the trucks and, No. 2, find the water.

That is just how ridiculous this is with rural fugitive dust. To put it simply, this defies common sense, whether it is cattle kicking up dust in a feedlot in Dodge City, KS, or Larned, KS, or anywhere in Kansas during harvest on a hot afternoon on the high plains in June. Dust is a naturally occurring event. Standards beyond the current limit would be impossible to meet, particularly in the western portion of the Nation where rainfall is often scarce. I don't even know why I am taking this seriously in regard to that kind of regulation.

In a bipartisan June letter, 23 Members of this body wrote a letter to express these concerns to Administrator Jackson stating:

Considering the Administration's focus on rural America and

rural economic development, a proposal such as this could

have a negative effect on those very goals . . . Common sense

requires the EPA to acknowledge that the wind blows and so

does dust.

As we think about EPA's actions impacting agriculture, it is critical to recognize that no one cares more about maintaining a clean environment than the American farmer and rancher. Producers across the country manage their operations responsibly because of their desire to keep farming and to one day pass along that ranch or field to their sons, daughters and grandchildren if

they can. They know firsthand that clean air and water and healthy soil go hand-in-hand with a healthy economy. Our producers deserve respect and appreciation from the EPA, not costly and redundant and yes, even ridiculous regulation.

Shifting departments now, the Department of Agriculture's Grain Inspection, Packers and Stockyards Administration--GIPSA--released a proposed rule that would dramatically increase the redtape governing the business relationships surrounding production and marketing of livestock in the United States. The rule was initially proposed last summer without the benefit of a meaningful cost-benefit analysis-- something we have been trying to get and something the administration should have included.

However, the proposal has since received significant criticism from ranchers, industry and members of Congress alike and is now being further evaluated by USDA officials.

As written, the proposal would dramatically reduce consumer choice and increase costs. The proposal exposes packers to liability for use of alternative marketing arrangements and other innovative procurement methods, thereby ultimately depressing the prices received for America's most efficient and successful producers while potentially reducing the quality available to consumers.

Further, the proposed rule would actually increase concentration in the sector as businesses are forced to change their current organizational structure--exacerbating the very issue the rule is allegedly designed to address. For example, in Kansas, we have a highly successful rancher-owned company made up of individual producers who own both cattle and shares in the company's processing infrastructure. Under this proposal, many of the individual members of the company may now be prohibited from selling cattle directly to other processors, creating the need for a middleman that would then lower the price the producer actually receives.

If implemented, the GIPSA rule poses a substantial threat to the continued viability of the domestic livestock sector. In Kansas, this industry contributes over $9.5 billion to our economy. With an economic footprint of this magnitude, the GIPSA regulation is a burden that Kansas and many other rural States and many of the livestock producers simply cannot afford.

Another agency falling through the President's Executive order loophole is the Commodity Futures Trading Commission. As a result of the Dodd-Frank Act, the CFTC is charged with developing dozens of new regulations impacting participants up and down the swaps and futures chain.

Shouldn't these regulations be held to the same standard of cost- effectiveness and undue burden as others? Yes--but no. I talked to Chairman Gensler in my office just a couple of days ago. He is a very nice man, very pleasant. He believes very strongly that the CFTC is exempt from the President's Executive order because the President said it was exempt. I indicated that I didn't think so, especially since the CFTC is presently pushing 40-plus rules out the door in 1 year with little or no priority.

We were told the intent of Dodd-Frank was to reduce systemic risk in the financial marketplace. However, several of CFTC's proposals appear to increase risk management costs on those who do not pose a systemic threat. The CFTC must be mindful that increased costs through high margin and capital requirements on certain segments of the marketplace may decrease a user's ability to use appropriate risk management tools.

A rigorous cost-benefit analysis is tailor-made for the CFTC's current situation: dozens of economically significant rules; the potential to negatively impact risk management costs of American businesses; and a simple question needing to be answered--do the benefits of this proposed regulation--we are talking about anywhere from 40 to 60 now--in the form of lower systemic risk in our financial system outweigh the increased costs on businesses?

Let me say something. In talking with Chairman Gensler--again, I really appreciate him coming by the office and talking. It became obvious to me that with all these regulations, maybe the first one ought to be a definition regulation. What is a swap? Who is a dealer? It has not been done yet. So we are going to propose 39 more regulations and we have not even defined whom the regulations will affect and what the subject matter is that they are going to regulate. That is really unbelievable.

We are going to have a hearing tomorrow in the Senate Agriculture Committee. Chairman Gensler will attend and give his testimony. We are going to be very welcoming to him in regard to the committee, but that is something I am going to ask him. Why on Earth are you going ahead with 40 regulations and you can't even define whom you are going to regulate or what you are going to regulate? There is no definition. That, to me, is pretty bad. You have the cart before the horse there.

In closing, I wish to make two points. First, in many rural areas of Kansas and the rest of the country, agriculture is the cornerstone of the economy. Second, in the coming decades we will be even more reliant on America's farmers and ranchers to feed an ever-growing world population. I said that before.

We must truly commit to a real and robust--here is a good Senate word--robust review and revocation of any and all unduly burdensome regulations that could inhibit American agriculture's ability to produce the safest, most abundant, and affordable food, feed, and fiber supply in the world. What are we talking about? We are talking about 9.3 billion people. What are we talking about? The ability for our agriculture--for everybody in agriculture to double our production, all the farmers and ranchers. Why on Earth would we want this whole business of regulatory impact--most of which is highly questionable, none of which fits the President's Executive order to take a look at the cost-benefit--why on Earth would we do this to the very person whose job it is to feed this country and the hungry world?

Look at the Mideast--in turmoil. I remember one interview on TV where somebody stuck a microphone in and asked one of the protesters in Libya: What are you protesting for? Democracy?

He said: No, a loaf of bread.

Where people are hungry and malnourished, you have no economic opportunity. Where you have people who are hungry, they will go and join extremist groups, even on over into terrorism groups.

I had the privilege of being the chairman of the Intelligence Committee here in the Senate. That was one of the big considerations we had in whole areas of the world where people do not have the ability to feed themselves, where they are in a food-deficient area. It really poses problems for the future of that part of the world. Yet here we ask our farmers and ranchers to double our ag production in a couple of decades. I don't know how we are going to do this with this regulatory nightmare.

Let's hope we wake up soon. I hope everybody will take a look at my bill to codify the President's Executive order--I give him credit for doing that--but not with all these loopholes that are going to drive us nuts out there in rural, smalltown America.

I yield the floor.

I suggest the absence of a quorum.

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

Madam President, I understand the time for morning business has come and gone, but I ask unanimous consent to speak as in morning business for 20 minutes.

Madam President, I recently introduced a bill called the Regulatory Responsibility for Our Economy Act of 2011--it is S. 358-- and I would urge my colleagues who would like to, after hearing my remarks, to cosponsor this. I realize the bill is a mouthful--the Regulatory Responsibility for Our Economy Act--but I think it is appropriate.

This bill would strengthen and codify President Obama's Executive order from January 18. In that Executive order, the President made a commitment to review, to modify, to streamline, to expand or repeal-- that is a lot of things, to review, modify, streamline, expand, and repeal--those regulatory actions that are duplicative, unnecessary, overly burdensome, or would have significant economic impacts on Americans. So the Regulatory Responsibility for Our Economy Act of 2011 would ensure just that.

My legislation would require that all regulations put forth by the current and future administrations--regardless of the President-- consider the economic burden on American businesses, ensure stakeholder input--i.e., the people who are affected--during the regulatory process, and promote innovation. Back on January 18, the President signed an Executive order to do precisely that, we thought. It was for ``improving regulation and regulatory review.'' But the President also released a factsheet on the intent for his regulatory strategy. It was in detail. Per the factsheet, ``In this Executive Order, the President requires Federal agencies to design cost-effective, evidence-based regulations that are compatible with economic growth, job creation, and competitiveness.'' My legislation would ensure that would actually happen.

In addition, the President published an op-ed in the Wall Street Journal detailing the administration's commitment to reviewing regulations. As part of this op-ed, the President stated:

We have preserved freedom of commerce while applying those

rules and regulations necessary to protect the public against

threats to our health and safety and to safeguard people in

business from abuse.

But he also noted that--and this is the key:

Sometimes those rules have gotten out of balance, placing

unreasonable burdens on business--burdens that have stifled

innovation and had a chilling effect on growth and jobs.

I must say I absolutely agree with the President. I was extremely pleased when he came out with the Executive order on January 16. And as I travel across my home State, I have heard Kansan after Kansan, regardless of the business, regardless of where they are on Main Street, who find themselves weighed down by the burden of too many regulations. As a matter of fact, I think if any Member of this Senate would like to get a standing ovation from even a group of five at a coffee shop or at a meeting of any organization that is business- oriented or just folks, you can talk about the debt, you

can talk about spending, you can talk about other issues, but the one that really grabs them is this business of overregulation.

This has been going on for too many years--too many decades. As a matter of fact, you can come into a meeting, and you will probably get the question--even the distinguished President pro tempore, the Senator from New York, would get the question, though probably a little nicer than I would get it, and certainly the other Senator from New York, who is now leaving the Chamber--the question usually comes as: Pat, what on Earth are you doing back there, saddling us with paperwork and regulations that are costly, burdensome, and that we don't even know about? All of a sudden, on a Wednesday morning we wake up and we face this regulatory dictate. It is counterproductive, and the cost outweighs the benefit. What is going on back there? What are you guys doing?

My response: Well, let's stop there for just a minute. I am not a ``you guy,'' I am an ``us guy.''

Clear back in the days when I was in the House of Representatives and I had the privilege of serving in that body, we were all trying to do something about unnecessary and burdensome regulations. So I have had a longstanding concern with the regulatory process, and that is the one issue that is a tinderbox issue. It is one where you really get an immediate response, with people saying: Amen. Somebody needs to do something about that. And they were so pleased with the President when he came out with the Executive order, saying: Hey, I am going to do something about this.

As of January 3, 2011, less than 6 months after the Dodd-Frank act was signed into law, regulators have issued over 1,000 pages of regulatory proposals and 360 pages of final rules. Talk about asking Senators whether they have read a bill, I know that nobody in the Senate has read over the 1,000 pages of regulatory proposals and 360 pages of final rules on the regulatory reform act. And many more pages of regulations--upwards of 5,000--are expected.

Regulations such as those put forth by the Department of Health and Human Services, along with the Departments of Labor and Treasury, have resulted in the child-only insurance market effectively disappearing in 20 States because of the regulations. The idea was to provide just the opposite but in 20 States today, that is not the case.

The Environmental Protection Agency began implementing its greenhouse gas regulations on stationary sources of energy that emit 75,000 or more tons of CO2 a year, which, on its surface, aims to only regulate those largest emitters, such as powerplants and oil refineries, but it is only a matter of time--it is only a matter of time--before stricter regulations are handed down that will impact every corner of commerce.

Let me just say that the EPA--knowing, of course, that Congress said no to cap and trade--is trying very hard to go around the Congress to try to put forth these regulations into compliance with the law.

Last year, the Grain Inspection, Packers and Stockyard Administration--and everything has to have an acronym in Washington, but the one for that is called GIPSA--published a proposed rule that would change longstanding rules governing the production and marketing of livestock. This is an agriculture thing. This proposed rule goes far beyond what was intended in the last farm bill. In fact, a number of items in the proposed rule were defeated here on the Senate floor, and yet they were put in the proposed rule.

A number of private economic studies show the loss of gross domestic product is in excess of $1 billion--much more costly than the $100 million threshold required for an economic analysis to be completed. Unfortunately, an economic analysis is yet to be completed.

So I was encouraged, Madam President. I was a happy camper there for a little bit by President Obama's commitment to a new regulatory strategy. But the devil is in the details, and with staff help, after reviewing the Executive order, I must say I was left with some larger concerns. I was upset.

The Executive order states:

In applying these principles, each agency is directed to

use the best available techniques to quantify anticipated

present and future benefits and costs as accurately as

possible.

Wonderful. We will have a cost-benefit yardstick applied to all of the regulations pouring out of all the agencies in Washington. The distinguished Speaker of the House said the other day that we had 200,000 more Federal employees in Washington than we did 2 years ago. I can assure you they are not twiddling their thumbs. They are issuing regulations, and they tend to be agenda-oriented, not really getting down to sound science or determining the unanticipated effects of their regulations.

Picking up again on what the President said:

Where appropriate and permitted by law, each agency may

consider and discuss qualitatively values that are difficult

or impossible to quantify, including equity, human dignity,

fairness, and distributive impacts.

The partridge in the pear tree was left out.

Let me read this again.

Where appropriate and permitted by law, each agency--

As they go through the regulations to determine which are counterproductive to this economy, costing billions in regard to manufacturing and businesses and harming our economy where it should not be harmed, they say, OK, but, but, but--

Where appropriate and permitted by law, each agency may

consider--

And this is the part where we ought to really take a look at it--

values that are difficult or impossible to quantify--

How are you going to do that? How are you going to quantify values that are difficult or impossible--

including equity--

Everybody is for that--

human dignity--

I don't know anyone who is against that--

fairness, and distributive impacts.

Now, try to figure that out if you are working in a Federal agency and you are trying to issue a regulation. If that isn't a loophole large enough to drive a truck through, I don't know what is.

As the Wall Street Journal captured so eloquently in their response to President Obama's editorial, ``These amorphous concepts are not measurable at all.'' You can't do it. You can't measure them.

On the surface, I think this language has the potential to be a very large loophole. This, coupled with an exception for independent agencies such as the FDIC, the SEC, or the EPA, has the potential to result in no changes at all. So we issue an Executive order saying: Let's take a tough look at the regulations that are so terribly counterproductive, and we may end up with nothing, more especially without the independent agencies. Note I said the FDIC. Note I said the SEC. Read Dodd-Frank, read financial regulatory reform. Read the reach into the small community banks and what they are going to have to put up with and hire a bunch of bad news bears--employees--to figure out and tell the rest of the employees how on Earth they are going to comply with these new regulations.

And my favorite, the EPA, which had the temerity and the unmitigated gall, after this loophole came out, to say: Well, none of our regulations even apply. Our regulations are just fine. I got news for the EPA. The chairwoman of the Agriculture Committee, Deborah Stabenow, and I have agreed to hold a hearing on this to determine just exactly where we are, and where we are is not good.

My legislation would close the loophole in President Obama's Executive order and would close other existing loopholes, including those that the administration has been using to bypass valuable stakeholder input on regulations. Again, there is that word-- ``stakeholder.'' That is a Senate word. Those are the people who are getting smacked right up alongside the face in regard to the regulations they do not even know adhere to their business or what they are about.

The President has also agreed--and here is the key word or phrase:

Sometimes, those rules have gotten out of balance, placing

unreasonable burdens on businesses--burdens that have stifled

innovation and have had a chilling effect on growth and jobs.

The President went on to say, ``At other times, we have failed to meet our

basic responsibility to protect the public interest leading to disastrous consequences,'' precisely what I am trying to demonstrate here. My legislation would assure a review of these regulations to assure fewer burdensome and economically irresponsible regulatory actions on struggling businesses in the United States.

President Obama's Executive order ``requires the Federal agencies ensure that regulations protect our safety, our health and environment while promoting economic growth.'' So does my legislation. ``And it orders a government-wide review of the rules already on the books to remove outdated regulations that stifle job creation and make our economy less competitive.''

That is what the President's Executive order does, and so does my legislation.

The President said, ``It's a review that will help bring order to regulations that have become a patchwork of overlapping rules, the result of tinkering by administrations and legislators of both parties and the influence of special interests in Washington over decades.''

The President was right. My legislation would do this but would add some teeth to the commitment--sharp teeth--by cutting out the loopholes, the very loophole I read. I am not going to read it again. I defy anybody to tell me what it means or how anybody could use that kind of language in determining the cost-benefit of any regulation.

The President has made it his ``mission to root out regulations that conflict,''--and I am quoting here--``that are not worth the cost or are just plain dumb.'' That is pretty clear, if the President says these regulations are just plain dumb. I said ``counterproductive.'' That is the Senate word. He said ``dumb.'' That is the Dodge City word and I think Dodge City would agree. I think my legislation is something the administration can support. So while the President believes his Executive order ``makes clear, we are seeking more affordable, less intrusive means to achieve the same ends--giving careful consideration to benefits and costs,'' and that it ``means writing rules with more input from experts, businesses and ordinary citizens,'' there were a number of loopholes in the Executive order I am happy to address with the administration in my legislation.

My bill would keep the President accountable for another promise to Americans, and I urge my colleagues to support this legislation, the details of which I am happy to share with my colleagues. I hope we get a great number of colleagues to help us codify the Executive order, put some teeth in it, make it work, and get at regulatory reform as opposed to being disingenuous. I think that is exactly what has happened in regard to this, what turned out to be a very noble effort, but the end result had so many loopholes in it as to be completely ineffective.

I yield any time I may have.

Mr. President, I ask unanimous consent that I may proceed for 10 minutes as in morning business.

Mr. President, I rise today to honor the hard work and dedication of our men and women in the U.S. Army and all branches of service.

Just a couple of weeks ago, I had the pleasure of attending the uncasing ceremony at Fort Riley, KS. It was an honor. For those who have not attended an uncasing ceremony, it symbolizes a homecoming, and certainly that was the case at Fort Riley. It signifies the presence of the command and resumption of that command's authority. It offers a time to reflect on the heroic efforts and the leadership of the men and women of the Big First.

Since returning to Kansas in 2006, the 1st Infantry Division's headquarters deployed to Iraq. But this was not the first time the division has uncased its colors at Fort Riley. In fact, it was the fifth time in 55 years.

During their time in Basra, Iraq, the men and women of the Big Red One assisted in completing many vital projects.

Approximately 850 soldiers deployed from Fort Riley in February of last year. The division's efforts were supported by other services and also government agencies. The mission was more offensive than defensive--a change for the men and women of the Big Red One.

To quote Fort Riley's outstanding commanding general, MG Vincent Brooks:

The Big Red One as U.S. Division-South was a trusted

partner to the Iraqi Security Forces, to 9 U.S. Provincial

reconstruction teams led by the U.S. Department of State,

with participants from other agencies of the U.S. Government,

and to other U.S. forces in Iraq, the Big Red One ensured

that the hard-earned stability emerging in Iraq would never

drift away. Their success was our success.

The accomplishments of the Big Red One are numerous and merit the attention of my colleagues.

The division assisted Iraqis in completing the Basra Children's Hospital, a cancer center noted as one of the most modern facilities in the Middle East.

I was fortunate to spend time at the ceremony with about 30 soldiers in the unit. One noncommissioned officer in particular stood out. I asked all of them how many deployments they had made to Iraq or, for that matter, Afghanistan, and the answers were two or three or four. But this one noncommissioned officer had five deployments. I asked him what on Earth was wrong with the deployment situation in his case. He said: Oh, no, I wanted to come back to my unit, to the Big Red One; I wanted to come back to Iraq and continue the work I thought was so important. I asked him what the difference was, and he said: Well, when I was here first in Iraq, we lost nine in our unit; nine paid the ultimate sacrifice. But in this deployment, no shots were fired.

If there ever was testimony from somebody on the front line, and obviously the NCOs run the Army, with due respect to the officers, but he summed it up pretty well: first deployment, nine fatalities; last deployment, no shots fired.

I am truly grateful that all of the soldiers deployed from the Big Red One's division headquarters returned safe this time around.

By the way, General Vincent Brooks, remember that name as I am sure you will hear it again, will soon be receiving his third star and will be reassigned to the Central Command. Anyone who knows General Brooks and his wife, Dr. Carole Brooks, is not surprised. This promotion in the new command comes as no surprise to anyone in the area, especially the people who served under General Brooks and have had the privilege of knowing him. Simply put, he is an inspirational leader with an outstanding record.

From the Kansas congressional delegation, General, well done, sir. You will be missed, but our pride in your success, your future success, and the job you have done and the job you will do make us all proud. It is a pride we all share.

I ask unanimous consent to have General Brooks's comments printed in the Record.

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

Mr. President, I thank my colleagues for their pertinent remarks.

The Senator from Iowa said in the past he had entered into a colloquy with colleagues on our side of the aisle where they wandered over into each other's pastures. I am going to put down this microphone for a moment and speak from here in a gesture of bipartisanship on how we can improve the Senate.

I know we have heard a lot of talk about Robert C. Byrd, a beloved individual. I know the Presiding Officer

was very close to the former Senator. The last time Bob Byrd spoke publicly was in the rules committee, when he rose to the occasion in a very passionate way. The chairman, of course, Chuck Schumer, the Senator from New York, with great deference recognized Senator Byrd. We were all on the edge of our chairs. The Senator from Tennessee has already gone over what Senator Byrd said at that time and previously. But I remember when I first came to the Senate, it was required that we go to school, so to speak, and Senator Byrd talked to all of the freshmen at that particular time.

The keeper of the institutional flame was the tag I put on Senator Byrd. My wife Franki and I became very close friends of the Senator. At any rate, he recounted the story attributed to Jefferson and Washington, he would tell every incoming class about the role of the people's House and perhaps what happened, when they put the coffee pot on in regards to legislation, that the coffee was so hot it would boil over, and it was the Senate's duty to act as the saucer, as folks did back in West Virginia in the earlier days, or Kansas or Iowa or Tennessee or Texas, that they would pour the coffee out in the saucer and let it cool off a little bit so they could put their biscuit in it and actually eat it, and then the legislation would pass.

The problem is, sometimes on our side maybe we want tea, maybe we want to start over. I think the Senator from Tennessee basically hit the nail on the head with the massive three. If we are going to talk about getting things done or not getting things done, there are three massive things that have happened with regard to legislation. I say ``massive'' because they were so overreaching, so overwhelming, we are now just learning what their implications are. The massive three are financial regulatory reform, the health care act, and the stimulus.

Now the health care act, I have a personal feeling about that in that I had 11 amendments, all on rationing.

By the way, the Senate never confirmed the nomination of Dr. Donald Berwick, the head of CMS, the Center for Medicare and Medicaid Services. We planned to ask a lot of questions to the doctor because of statements he made in the past. Obviously, that confirmation did not happen. He was a recess appointment. That is something I think we ought to deal with as well.

Now, the health care act, it was 12:30 in the morning in the Finance Committee. I had several amendments, all on rationing. Finally, we got to the last two. I said: Why don't we consider them en bloc? I had about a minute or two to explain each amendment. They were voted down automatically on a party-line vote. By the time we got to 12:30 or 1 o'clock and my amendments, I noticed Senator Schumer was in the room so I stuck on one of his amendments along with mine. It was defeated on a party-line vote. Then I let Senator Schumer know that we had defeated his amendment as well. He wasn't too happy with that.

I just showed that the process has broken down to the point that even in committee, if you had two amendments, if you had five, if you had one, you were simply ignored. Then the health care act came to the floor and worked its way. I think the Senator from Tennessee brought up the ``Grand Ole Opry.'' I saw it as making a bill behind closed doors. That is a famous country western song. We didn't like that process at all.

I finally had only one other recourse and that was to go to the reconciliation process, which I knew was not going to be successful, but I had several amendments, all were defeated. My main concerns about the health care bill were not allowed, as far as I was concerned, on the floor of the Senate, and that has happened a lot.

Now we are seeing an effort to repeal the health care act and also an effort to try to fix it, if we possibly can. I am not as upset about that as some people are because I think we could get the proper kind of debate, but the debate must proceed in regular order and under the standing rules of the Senate as a continuing body.

I am not going to go into the quotes by Senator Byrd. That has already been done by Senator Alexander. But I would like to quote Senator Dodd in his valedictory speech.

The history of this young democracy, the Framers decided,

should not be written solely in the hand of the majority.

This isn't about the filibuster. That is the most important statement he made.

What will determine whether this institution works or not

is whether each of the 100 Senators can work together.

How can we do that? Here is a classic example. Right before Christmas, there were several bills the majority wanted to pass without allowing the minority and the American people the right to debate or amend them. So the tree was filled, and that is the parliamentary language to say: I am sorry, we are going to cut off debate. In the first three years and four months of this majority, the use of filling the tree went up over 300 percent compared to the average for the previous 22 years. Ninety-eight times in the 110th Congress, cloture was filed the moment the question was raised on the floor. A debate was not even allowed to take place. So on one hand you can talk about filibusters; the other hand is filling the tree, or not allowing Members to offer amendments, and same day clotures.

The Senator from Tennessee offered the classic example. Let's go back to a few days ago, right before Christmas. The DREAM Act was a House bill. I know the Senate leadership wanted to pass it. It never had a legislative hearing in the House, never had a markup in the House. The Senate version of the DREAM Act had not had a markup since 2003. In sum, the DREAM Act, a controversial measure with very passionate beliefs on both sides of the aisle and within the parties as well had not had an amendment offered to it in either House of Congress either in committees or on the floor.

Some may believe the DREAM Act is perfect or certainly is the best bill possible and would not need any amendments to improve it. But, obviously, our constituents don't feel that way. It is a very controversial bill. Instead of addressing their concerns, the majority shut down debate and amendments and in the process shut down the rights of Americans to be heard. As a result, the minority refused to end debate and, obviously, there was a filibuster. It would be interesting to know, of the times that bills have been filibustered, what was being filibustered.

Contrast this with the approach taken on the 9/11 bill which the majority sought to pass just a few days later. The goal of providing help to the victims of 9/11 is one Members of both parties share, but Senate Republicans noted that the particular version of the bill Senate Democrats supported was problematic in regards to how much money we were spending and certainly would need improvement.

So we insisted on having our concerns addressed. Most of them were addressed with a revised bill on which we did provide input. That bill passed the Senate by unanimous consent, and even the proponents of the original legislation would admit that the final bill is a better one and now enjoys broader support due to the minority's input.

What I think the majority needs to do is involve the minority like it did on the 9/11 bill, not shut us out, not shut us down as it did on the DREAM Act and other acts.

If that happened, if we did not fill the tree, I think possibly 75 percent, 80 percent of the filibusters would go away. There are some who would like to filibuster anything, I know. But it gets back to what the Senator asked: Why are we here? It is important to pass legislation. But it is equally important to prevent bad legislation from passing or, if you have an alternative you would like to offer, to at least have the ability to do so.

In the last 2 years that process has simply broken down. Why can't we work together? That is what Senator Dodd said. He asked whether each of the 100 Senators can work together. That was on the question of filibusters.

We can stop this business of secret holds. It seems to me we could have a timely pace on nominations. It seems to me we could certainly end these recess appointments where people who should be confirmed have to go through the confirmation process instead of all of a sudden parachuting somebody in who is controversial and now we have over 100,000 regulations pouring out of the Department of HHS. Health care providers throughout the Nation--in Iowa, Tennessee, Kansas--are wondering what on Earth is happening.

When I go home, I don't get the question of why a bill didn't pass. I get the question: What on Earth are you guys doing back there passing all the legislation with all the regulatory stuff that I have to put up with, taxes I have to pay, et cetera, et cetera?

As a matter of fact, when they pose that question, I say: I am not a you guy; I am an us guy. Then we have a debate, but it is a debate that should have taken place on the floor of the Senate instead of on the plains of Kansas. Unfortunately, because of the majority, we were not able to have that debate here, on the floor.

The question I have for the distinguished Senator from Iowa--and I appreciate his reference to our work in previous farm bills. We were able to work it out. Sometimes it was very contentious, and sometimes the farm bill would come to the floor, and it would take a week and a half. Then we would have an appropriations bill, and then the appropriators would think they could rewrite the farm bill and take another week and a half. But we worked through it. Nobody filled the tree and said: I am sorry, you can't have that amendment.

I am making a speech instead of asking the question. I apologize for that.

I am in agreement on secret holds. I think there should be timely pace on nominations. I do think we should go through the regular confirmation process.

But I do feel exactly as the Senator from Tennessee has put out, that once you get on this business of ending the filibuster or going down on the number of requisite votes, you are on a slippery slope, and then you are into the tyranny of the majority, and that is not what the Senate is all about.

I will stop at this point and ask the Senator from Iowa if he has any comments.

If the Senator will yield, I think the Senator is exactly right. I am on the HELP Committee, as the Senator may recall, and I was trying to get one amendment to say that we would prohibit the use of rationing to achieve cost containment, and it involved several of the commissions that have been in the bill. I regret that bill sort of sat somewhere and collected dust. We never got a score. I thought it was, quite frankly, a better bill than the one in the Finance Committee.

I say to the Senator, you recognized me, and I had an opportunity to offer some amendments. At least there was some debate. And I think it was a much more bipartisan effort. So I give the chairman----

Senator Cornyn wants to be heard, so I am going to be quiet and listen to you.

I will answer the question, no. I do not think we are doing the job we could do, and we should do better, and I stand ready to work with all concerned to see if we can do that.

But my time is up, and I am going to cease here and allow the Senator from Texas to be recognized.

Mr. President, I rise today to honor the service of my friend and colleague Sam Brownback. Sam was elected to the House of Representatives in 1994 during the Republican Revolution and was subsequently elected to the Senate 2 years later when former majority leader Bob Dole made his bid for the White House.

It has been both a privilege and a pleasure serving alongside Sam during these past 16 years. All of us who seek public service want to make a difference, and most certainly, Sam Brownback has done that. In these endeavors I have enjoyed working with Sam in achieving some note worthy accomplishments for our State of Kansas. As I reflect upon our mutual efforts, it is hard to figure out who was driving the stage and who was riding shotgun. Simply put, it has been a team effort, and I have been both humbled and proud to work with my colleague who has provided unique and respected leadership. Sam's record speaks for itself: bringing the Big Red One back home to Fort Riley, KS, where it started and now belongs; bringing the National Bio- and Agro-Defense Facility, NBAF, to Manhattan, KS; ensuring fair treatment of the general aviation industry in FAA bills; and working together to rebuild Greensburg, KS, after 95 percent of the community was literally blown away by an EF5 tornado.

But beyond our work together on State specific issues, it is Sam's Federal legislative initiatives that I think will have the longest impact on the Senate and the lives of so many people, pot only within Kansas and our Nation but, indeed, around the world.

Since the late 1970s, the term ``compassionate conservative'' has been tossed around quite a bit to describe a philosophy--a philosophy that states by applying conservative ideals, our government can best improve the welfare of our society. I think many of my colleagues would agree that if anyone in public service over the past 30 years embodies this philosophy, it would be Sam Brownback.

What is unique about Sam and his approach to politics these past 16 years is that his ideas went beyond words and rhetoric. The Sam Brownback approach was simple but effective. He applied his beliefs to action, reflected by the many legislative accomplishments he championed during his tenure in the Senate.

Sam is a big believer in forgiveness and second chances. How to put that belief into action? Sam introduced a bill that really shows his heart for those in society who many times are not given an opportunity to make amends: the Second Chance Act.

Signed into law during the Bush administration, this act created a grant program for State and local governments to fund job training and family mentoring programs to help reintegrate past offenders as they are granted release back into society.

But Sam's legislative victories did not focus solely on domestic issues. Sam has a great love for the continent of Africa.

Serving on the Senate Foreign Relations Committee, he traveled to Africa on multiple occasions to gain a better understanding of how he could help provide relief to those most vulnerable. His experiences led him to champion the Darfur Peace and Accountability Act of 2006. Enacted that same year, this law created sanctions against individuals and groups responsible for the terrible crime of genocide in Darfur, while establishing measures to protect civilians and humanitarian efforts within the borders of Sudan.

The more Sam did, the more he felt called to do, and no one did more for the protection of victims of human trafficking than Sam. In 2000, he helped enact the Trafficking Victims Protection Act. This law created criminal punishments for individuals caught in the United States operating as traffickers. It established an annual reporting mechanism to help track individuals engaged in sex trafficking and created a new immigration status for victims of sex trafficking.

Lastly, I believe Sam's prominence during his time in the Senate had a great deal to do with his willingness to work across party lines on issues where he could seek and find common passion and ground.

The legislative item I think will leave the largest impact on many of us in the Senate is the bill upon which he worked tirelessly with the late Senator Ted Kennedy.

Signed into law by President Bush, the Prenatally and Postnatally Diagnosed Conditions Act provides those families with children diagnosed with Down Syndrome the support services and networks they need to help them deal with the unique challenges they face. Put another way, what better legislation to help protect the lives of those in our Nation uniquely challenged but who deserve every right to the same opportunities we all enjoy everyday.

I could easily and proudly recount many more of Sam's achievements during his time in the Senate, but I would do so in danger of Sam saying ``enough'' and giving me ``the hook.'' I have often said that the high road of humility is not often bothered by heavy traffic in Washington, but in Sam Brownback, we have indeed enjoyed the friendship of a humble man.

In closing, I leave my colleagues with one of Senator Brownback's favorite quotes that I think sums up the man that Sam is and the love he has for all people, regardless of their nationality or place in society.

Sam likes to say: `` I am pro-life and whole-life. Applying this belief to the child in the womb and to the child in Darfur. It includes the man in prison and the woman in poverty. It does not fail to cherish the child with Down syndrome or stand for the inherent dignity of the immigrant.''

Sam, I remember the first campaign rally we attended together. The featured guest speaker, Senator Phil Gramm of Texas, introduced me as one who made significant changes in the House of Representatives and then introduced Sam as: ``One who not only wants to change things, but to make the right changes.''

Sam, you have done just that and it has been an honor to serve with you over these past 16 years. I thank you for your courtesy, cooperation, leadership, example and your friendship and support. As you head west, my friend, to lead our beloved State of Kansas, I look forward to continued cooperation and success. The people of Kansas are in good hands. God bless.

arlen specter

Madam President, I ask unanimous consent that I may proceed for 15 minutes.

Madam President, health care--big issue. The health care reform bill that is current law--big issue. A lot of talk about repeal, fix what is wrong in the bill, what is right in the bill, depending upon your personal opinion.

I think that the Senate--more especially the committees of jurisdiction, and I am talking about the Senate Finance Committee--has a unique obligation, especially at this time, to conduct its oversight responsibility. Unfortunately, that was not the case as of yesterday.

One of the major problems with the new health care law is the huge amount of power and authority it grants to one man, the Administrator, perhaps we should call him the czar, of the Centers for Medicare and Medicaid Services, CMS. Rest assured, every health care provider in the country knows what and who CMS is.

The Administrator is Dr. Donald Berwick. One of the major problems with Dr. Berwick is his longstanding, well-documented support for government rationing as a means of controlling health care costs--not my words, his.

Yesterday, the Senate Finance Committee finally had our very first chance to question Dr. Berwick. I say finally, because for months my colleagues and I have requested this opportunity, a request which was denied when President Obama provided a recess appointment for Dr. Berwick. So yesterday's hearing was a hollow one of sorts, since Dr. Berwick had already been installed at CMS, or maybe parachuted in would be the right way to describe it, in that he has made many controversial comments about his love for the British health care system and for rationing and other comments that certainly deserve a hearing in regards to a confirmation process. That did not happen.

He was also installed pretty much after the debate that we had on health care. Now, unfortunately, we were only given 5 minutes each yesterday to question the most important man in American health care as of today. This was 5 minutes, sandwiched in between lengthy remarks by the chairman, the witness, and the floor votes we had yesterday.

I was not able to question Dr. Berwick on many things. I asked unanimous consent of the chairman if I could submit questions for the Record. Obviously he agreed and that was it. But when Ranking Member Grassley asked Dr. Berwick if he would commit to appearing before the committee again--which I think the doctor would; he is a very affable and personal man. I do not agree with him, but he is affable and personable--so we could continue our oversight, Chairman Baucus interrupted his response and refused to make any further commitments.

How is that for transparency? How is that for finally getting to a hearing about the man who is the most important man today in regards to the new health care law and implementing it?

Because I was not able to ask Dr. Berwick my questions yesterday, I am forced and am asking them here on the Senate floor. Dr. Berwick knows my No. 1 concern with President Obama's health care law is the enormous potential for the government to interfere in the treatment decisions of the doctor and the patient. Dr. Berwick has a long history of statements supporting government control of treatment decisions, or what I would call ``rationing.'' I know some would say that is not the case. But Dr. Berwick has said that:

Most people who have severe pain do not need advanced

methods; they just need the morphine and counseling that have

been around for centuries.

A most unique statement, to say the least. He has publicly stated an aversion to new medical technology and health care advances, saying:

One of the drivers of low value in health care today is the

continuous entrance of new technologies, devices, and drugs

that add no value to care.

That is in his eyes. He refers to this as an ``excess supply'' of health care. And, of course, we have his infamous quote that ``the decision is not whether or not we will ration health care. The decision is whether we will ration care with our eyes open.''

It should then come as no surprise that CMS under Dr. Berwick's leadership has embarked upon a path of increasing government control, centralized decisionmaking, and top-down mandates that treat doctors as nothing more than cooks practicing ``cookbook medicine'' and patients as nothing more than numbers, despite their individual needs and desires.

One example: attempts by CMS to restrict the number of times seniors with diabetes can test their blood sugar by limiting them to one test strip per day, regardless of what the doctor recommends. Doctors understand that diabetes care is an exceedingly complex and personalized enterprise. My question that I could not ask yesterday: Why is CMS replacing the judgment of a doctor on how many times their patient should test their blood sugar with a CMS-knows-best approach?

An even more egregious example of the government getting in between patients and doctors is Dr. Berwick's recent investigation into Medicare coverage of the life-extending prostate cancer therapy Provenge. Provenge is a therapeutic vaccine approved by the Food and Drug Administration to treat late-stage prostate cancer through an innovative process that removes immune system cells from patients and exposes them to cancer cells and an immune system stimulator and then injects them back into the patient. Provenge has been shown to increase life expectancy by an average of 4 months but sometimes longer, with one patient living an additional 7 years. In addition, Provenge is special because of its lack of side effects as compared to the traditional chemotherapy methods. So not only can patients live longer, but their quality of life will be better.

Medicare coverage for FDA-approved drugs is usually automatic. My next question to Dr. Berwick would have been, had I had the opportunity in the committee yesterday but was denied because of scheduling: Why did you initiate a coverage investigation so soon after Provenge was approved? Why is CMS seeking to substitute its judgment for not only patients and doctors but for the FDA, the gold standard for drug approval worldwide? Are you questioning the FDA's decision? When drug companies and research folks produce after many years of research and effort and cost, are they going to have to go through two hurdles-- first, the FDA, which can take years, and then CMS--as to whether Medicare will approve it? It seems that is where we are headed.

I know or I think I know the answer as to why Dr. Berwick decided to conduct this investigation.

It is cost--$93,000 for a complete cycle of Provenge was the driving factor behind this investigation.

The good news is that yesterday an advisory committee recommended that CMS cover Provenge. But I am very concerned about the precedent this sets not only for other cancer regimens such as the promising breast cancer drug Avastin but for all new medical innovations.

Some may say that an extra 4 months of life is not enough to justify this high price tag. It is a high price tag. First, the government should not be in the business of placing dollar values on life, period. That is what Great Britain is trying to move away from. That is why David Cameron made the unique statement that maybe we ought to have a system that puts the choice between doctors and patients. What a novel idea.

Secondly, the traditional chemo and all of its associated side effects costs Medicare upwards of $110,000 per patient per year. So Provenge is actually a cost saver when viewed in that context.

Third, this is exactly the type of innovative approach we need to win the fight against cancer. Medical advances don't come in giant leaps; they more often occur at the margins. We should not deny patients and doctors treatment options simply because they don't offer a complete cure. That is shortsighted, not to mention cruel.

Finally, if we want companies and investors to continue to pour their dollars and efforts into developing a cure for cancer, this is the wrong approach. The investment into researching and developing Provenge approached $1 billion over 15 years, 15 clinical trials. Refusing to allow a return on this huge investment will send a chilling effect across the health research industry, resulting in less investment, less innovation, and worse care for patients. Maybe less innovation is actually the goal of this administration and of Dr. Berwick, who has targeted the ``entrance of new technologies, drugs, and devices'' as ``one of the drivers of low value in health care today.'' Value is a subjective concept.

Another question I have for Dr. Berwick: I prefer that the value of health care be determined by the patient and doctor, not the government. Would you agree?

Finally, from yesterday's news, I have been shocked by the number of ObamaCare waivers coming out of the Department of Health and Human Services. According to the New York Times today, 111 waivers have been granted to employers to allow them to avoid the new health care mandates. The only thing more shocking than the number of waivers is who is getting them. Would you believe that they are some of the most ardent supporters of health care reform? Unions such as the Service Employees International Union, the United Federation of Teachers, and the Transport Workers Union have all applied for and been granted waivers from the rules. They don't have to follow the rules. They don't have to follow the mandates. Guess who are the strongest supporters of health care. The fact is, ObamaCare is bad for business, bad for workers, bad for seniors, bad for taxpayers.

My question to Dr. Berwick: When will the American people get a waiver from ObamaCare? Of course, that decision would be under the purview of the Secretary of the Department of Health and Human Services, Kathleen Sebelius, whom I know as a personal friend.

Kathleen, Kathleen, Kathleen, you are granting all these waivers to people in regard to the mandate on health care. When will the American people get a waiver from some of the things they choose not to take part in? This is, indeed, shocking news.

I yield the floor.

Mr. President, I rise in support of Senator Enzi's resolution of disapproval and thank him for that. It seems every day a new story comes out about the negative consequences of the health care reform law, and I cannot keep up with them. I know people involved in the health care industry are having a very difficult time also.

Do you remember the campaign pledge that health care reform would immediately reduce family's premiums by $2,500? Well, last week a slew, a slew of new mandates on health insurers, including coverage of preventative services without any cost sharing, restrictions on annual limits on coverage, and coverage of children up to age 26--I guess a child 25 is a child--took effect.

Many of them, in fact, may be beneficial to some Americans, but they will not come free. Health insurers have begun alerting their customers to the fact that these new mandates cost money, money that has to be charged in additional premiums. I think most Americans understand you cannot get something for nothing.

But instead of admitting that their policies are causing health insurers to raise their rates, the Obama administration has unleashed Health and Human Services Secretary Kathleen Sebelius to silence its critics by intimidation.

In a letter to America's health insurance plans, the Secretary explicitly threatens health insurers that do not toe the line on ObamaCare with exclusion from the State health insurance exchanges, which start in 2014. ``There will be zero tolerance for this type of misinformation and unjustified rate increases,'' she has warned. ``We will also keep track of insurers with a record of unjustified rate increases: those plans may be excluded from health care exchanges in 2014.''

Well, let's be clear about what the Secretary, on behalf of the President, is saying. She is threatening to shut down private companies for exercising their first amendment right to free speech, and she is keeping a list. Some have called this gangster government in the press. As a former newspaper man, I am shocked. I am stunned by my former Governor's actions. First, it was the gag order on Humana Insurance for daring to describe the consequences of slashing more than $100 billion from Medicare Advantage to the customers, now this.

This administration says it wants transparency. Well, transparency is a two-way street. It does not mean muzzling dissenting opinions or inconvenient facts because they are not advantageous to the administration. As the Wall Street Journal opinioned: ``They're more subtle than this in Caracas, Venezuela.''

Not only are the actions of the Obama administration unconstitutional, they are also extremely hypocritical in light of their own highly misleading rhetoric. For example, the President and Secretary Sebelius have been touting the recent decision of health insurer Blue Cross Blue Shield in North Carolina to issue rebates to its customers in the individual market as a supposed ObamaCare victory.

President Obama claimed this victory at a recent campaign stop in Virginia, saying that the insurance commissioners are newly empowered to look after consumers, that we are already seeing ObamaCare's new levels of accountability pay off.

Well, aside from the fact that most State insurance commissioners have had the ability to review rate increases for years, a fact that Secretary Sebelius, as a former Kansas insurance commissioner, knows all too well, they are leaving out another very important fact, the rest of the story.

What they are not telling you is, the reason why the insurer is paying out rebates is, because of ObamaCare, their plans in the individual insurance market will cease to exist in 2014. This means the reserves they have stored to protect their solvency are no longer necessary.

That is where the rebates are coming from, not some well of hidden profits. The insurer is paying the rebates out of their reserves because the plans will no longer exist. This is hardly a victory for the thousands of people enrolled in those plans. If that is not misleading, I do not know what is.

What about the Secretary's taxpayer-financed mailer regarding Medicare Advantage that was recently sent to seniors all across the country? This mailer misleadingly claims that Medicare Advantage enrollees will not see any changes to their benefits under ObamaCare. That is a claim that is demonstrably false.

Already we are seeing insurers such as Harvard Pilgrim drop their Medicare Advantage plans altogether as a result of these huge cuts. So actually thousands of seniors will see changes in their benefits. They will not have any. I urge the President and the Secretary to reconsider their use of these tactics which only serve to further erode the government's credibility with the American people and to insult their elected representatives.

In the United States of America, private citizens are not only allowed to disagree with the government, it is a cornerstone of our democracy. So I say to the Department of Health and Human Services and the administration, stop the gag orders and the intimidation. To HHS, do not tread on the first amendment.

I yield the floor.