Floor Statements

Mr. President, I thank the doctor from Oklahoma, my colleague, my friend. Let me say from the start, 3\1/2\ years ago, Tom Coburn and I sat down and realized health care was unsustainable at its current level of investment.

The American people have complained because they have seen a process that has gone too quickly. Well, in the Patients' Choice Act you find 3\1/2\ years worth of work--a bill that was designed to take 4 years before we thought we had the right information we needed to do health care reform adequately.

With the change in the administrations, the new President and his timeframe, we accelerated it. But let me say, right from the start, it is unsustainable at its current level of investment. It is 17 percent of our gross domestic product. Health care has to be reformed.

I personally believed the debate we were going to have in Washington was over what type of reform. Dr. Coburn raises a good point: cost. Where are we from the standpoint of our Nation?

I happened to gaze, as I was waiting for the last speakers to finish, on the page of this publication. It says: Baucus Bill Projected at $829 billion. In the small box down at the bottom of the page--CBO: Deficit Hits Record $1.4 trillion for Fiscal Year 2009.

Common sense would tell you that when you are in the type of financial shape the United States of America is in, not only do you stop spending, you begin to look for ways to curb spending and a way to invest to reduce the deficit. Because the deficit is what our children and our grandchildren will inherit. If you believe it is unsustainable at its current level of investment, then you sort of understand where Dr. Coburn and I are coming from.

The worst place we can start is: How much more money do we need to spend to do health care reform? But the truth is, the Baucus plan is not health care reform. It is health care expansion. The debate in Washington is not about how to reform health care. It is about how to expand health care. And once you determine the pool you are going to expand it to, the $64 million question is: How do we pay for it so the CBO says we have paid for it?

What I would like to do is spend a little bit of time exploring how the Baucus plan pays for it with the caveat up front of saying--as it relates to Dr. Coburn and myself--we don't believe we have to spend more to reform health care. I think from what he said about the Patients' Choice Act, we have made the point. We were the first two people in the Congress--House or Senate--to introduce comprehensive legislation. We cover the same amount of additional Americans that the Baucus plan covers. We do it without making additional taxpayer investments in the expansion of coverage. Why? Because in addition to expanding coverage, we reform health care. We actually bend the cost curve. We change the tax application to where it is fair and equal for all people.

What we have to realize is, the Baucus plan is a 10-year plan. We collect revenues for 10 years and we pay out for the expansion in 6\1/ 2\ years. Let me say it again. We are collecting tax revenues for 10 years, but we are only paying benefit expansions for 6\1/2\ years. We have to look at years 10 through 20 if you want to see 10 years' worth of revenue collection and 10 years' worth of expenses. As a matter of fact, if you took the first 10 years and you applied what is done in the bill and said: Well, if they started making payments in the first year, this bill would actually cost $1.8 trillion, not $829 billion but $1.8 trillion.

Incorporated in the Baucus bill are cuts to Medicare, cuts that equal $449 billion. Dr. Coburn talked about the imminent reduction to physician reimbursements: 21 percent projected. We all agree we are never going to make that. One of the attractions for health care professionals was the Baucus bill said in year one, we are not going to make those cuts. Well, they are going to cut Medicare over 10 years by $449 billion. This is giving with one hand and taking away with the other hand. Health care professionals around this country have realized that, even though their association that represents them doesn't.

The Baucus bill cuts $117.4 billion in Medicare Advantage. My colleagues are probably saying: What is Medicare Advantage? Well, it is the preferred plan of 20 percent of America's seniors. Twenty percent of our seniors on Medicare have chosen Medicare Advantage, a private sector option to traditional Medicare, where they have looked at the two and they said: I would rather have Medicare Advantage, because when I go in the hospital, Medicare is going to charge me a $750 deductible right off the bat. Medicare Advantage? Zero. For traditional Medicare, you are going to have to have Part A, Part B, Part D. Medicare Advantage, you get it all as one lump sum. You don't have to make separate selections. They provide you the doctor coverage, the hospital coverage, the drug coverage all in one plan.

Why is it under the target of some in Washington to cut $117 billion? They say it is because we pay 114 percent of Medicare per person allocations to Advantage, where we pay 100 percent in traditional fee for service. That is exactly right. I remember the debate we had in Washington when we did it. Because the objective then was: How do you get Medicare Advantage to offer this plan in rural America? To offer it in rural America meant you had to offer a greater reimbursement. This isn't reflective of a windfall for the insurance companies; it was an incentive to offer this choice not just to urban seniors but to seniors everywhere in America. In my State of North Carolina, 17 percent of all the Medicare beneficiaries are enrolled in Medicare Advantage. When anybody gets up and says pass this bill, the Baucus bill, and you can keep your health care if you like it, there is a caveat to that. Unless you are 17 percent of the seniors in North Carolina or you are 23 percent of the seniors nationally, you lose your plan. You are going to go back into traditional Medicare. You are going to go back to where, when you enter the hospital, they are going to say write me a check for $750 annually; where your Part B is a separate payment; where your Part D is something you have to figure out as to which plan you want versus something that is seamless and covers everything. I will assure everybody a $117 billion cut to Medicare Advantage will eliminate that product from the marketplace. Nobody will offer it. Twenty percent of America's seniors will lose the insurance they prefer, not keep it.

Medicaid expansion. It seems like a sensible way to go if you want to expand coverage, which is where the debate has been in Washington. Well, let's simply take a coverage tool that is out there today-- Medicaid--and let's raise the income limit so more people qualify for it. So instead of 100 percent of poverty, we raise it to 133 percent of poverty. It costs $345 billion. There is $33 billion in direct State spending. As Dr. Coburn said, four States are sort of split out of it, and they say: Well, we are not going to charge you because you are in tough economic times. Well, North Carolina is at 10.8 percent. Why aren't we included? Our cost, when the Federal Government makes North Carolina ante up, is going to be south of $1 billion a year for a State that had a $4 billion shortfall. Where is my Governor in her outrage at the proposal to expand Medicaid to 133 percent of poverty?

The tough thing is, this plan has been sold that it is not going to cost anybody anything, and the truth is it is going to cost seniors, it is going to cost taxpayers, it is going to cost the unemployed but, more importantly, it is going to cost people who have health care insurance today. People who have the money to purchase theirs and people whose employer offers them health care, their cost is going to go up because of the restrictions and the mandates that exist within the Baucus bill.

The Baucus bill would impose an annual $6.7 billion fee on insurance companies; $6.7 billion a year; over 10 years, $67 billion. So a $67 billion new fee on the insurance companies that we are trying to make the American people believe are going to reduce premiums, reduce costs, and we are sticking them with a $67 billion pricetag. There is nobody in America when they hear this who believes that health care is going to go down for the American people. For every person who currently has a plan today, I will assure my colleagues their premium will go up. They will pay more money, not less money.

We grow the IRS. There is something we haven't talked about because of the requirements in this bill to collect fees and to collect taxes. It is estimated by the Lewin Group that the IRS would need a 25-percent increase in their budget. The IRS currently gets $12 billion annually for their administrative costs. The administration costs for implementing the exchange subsidies would add nearly $40 billion from the Baucus bill. We have additional costs at the IRS because we have to increase by 25 percent the IRS requirements to go and collect and enforce this.

We tax the chronically ill. I thought this one was one of those myths that late night TV talks about. We tax the chronically ill in the Baucus bill. Let me explain what I mean. Current law says that if your health care charges exceed 7.5 percent of your annual income, then you can deduct that off your taxes. Clearly, the lower your income, the more likely you are to utilize the 7.5 percent exclusion. So what does the Baucus bill do to raise money? It raises the exclusion to 10 percent. Instead of at 7.5 percent of your adjusted gross income being able to deduct anything that exceeds that, it says you have to exceed 10 percent of your adjusted gross income. For somebody who makes $1 million a year, this is no big deal. They probably have more than enough insurance to take care of it. For somebody who is on a limited income; for somebody who maybe doesn't have all the insurance they need; for somebody who walks in and is chronically ill, has a chronic disease and they are making payments, they are covering their copays, they occasionally go to the hospital, they have that $50 charge for walking in the door, even though they have insurance. They are making it at the end of the year, even though they make $20,000 or $25,000 a year, and all of a sudden, 2\1/2\ percent of their adjusted gross income is no longer a deduction they get. What is that? That is taxing the chronically ill in this country.

Listen, I have to give them credit. They have left nobody out of this bill from taxes. They have left nobody out of this bill from instituting a new fee. As a matter of fact, some of it we are going to have to take for granted is going to be applied to us in an indirect way because incorporated in the Baucus bill we collect a new device tax. To the heart patient who goes in and gets a heart catheterization, to the senior who goes in and gets a hip replacement, it is a device. For any medical device that is used, there is a $40 billion device tax over 10 years.

What does that do for the innovation of new devices? Dr. Coburn can speak to it better than I can. When we were able to switch from open heart surgery to bypass surgery, we probably went from $40,000 or $60,000. When we were able to catheterize somebody and put a stent in, we reduced significantly the cost, we reduced significantly the invasion, we were able to raise the quality of life. We couldn't have done that if somebody hadn't innovated a cath and a stent. We would still be doing all bypass surgeries. You think through all the medical procedures we do in this country and you think about all the devices that have been created by companies and by doctors so they can be less invasive because they understand every time they go into somebody, every time they cut in, there is a fear of infection today; there is a consequence of recovery. It means a stay in the hospital is longer.

When you see a new device enter into the marketplace, you actually see a new efficiency come into health care. You see reduced health care costs because you are taking either somebody out of an inpatient setting and you are putting them in an outpatient setting, or you are taking an inpatient patient and you are getting them out of the hospital faster. Actually, you could make the case that innovation of medical devices is health care reform because it is driving down costs, because it is moving patients out, and the net result is the quality of life goes up. But, in this bill, we raise $40 billion over 10 years, or $4 billion a year on taxes on devices.

If you listen to the things I have talked about, you are probably sitting at home trying to figure this out: I am going to pay more in health care because they are taxing devices. I am going to pay more in health care if, in

fact, I have a chronic illness because I am not going to be able to deduct that out-of-pocket cost that is between 7\1/2\ percent and 10 percent of my adjusted gross income. I am going to have to cover, as a taxpayer, a 25-percent expansion in the IRS. They are going to impose a $6.7 billion so-called fee on the insurance industry, or $67 billion over 10 years, while I have an insurance policy, so that fee is going to be passed through to me as a covered life under the insurance plan.

I am going to pick up, in the State in which I live, the increase in the limitations on Medicaid when we go from 100 percent of poverty to 133 percent of poverty. How can you make a claim that this bends the cost curve? If you tried to make the claim, it bends the cost curve up not down.

Dr. Coburn and I listened very intently as the President kicked off this debate: Create a program that provides coverage for as many Americans as we possibly could. We did that. Bend the cost curve down. Well, we make a direct investment in prevention, wellness, and chronic disease management--the only three direct areas of savings in health care. We can talk all night about tort reform and about different aspects. They are indirect and there are significant savings we can achieve by incorporating those reforms into health care.

In the Patients' Choice Act, we elected to keep it narrowly targeted, and we invest in prevention, wellness, and chronic disease management. Why? Because we went to States, businesses, and self-insured companies that went 4 years and didn't have an increase in health care costs. Why? Because they changed the lifestyle of their workers. They actually paid their workers, in some cases, to quit smoking, to lose weight, to get exercise, or to take an education program on a chronic disease they had to make sure they got the treatment they needed.

The net result? In every case, the per-enrollee savings were so significant that the companies continued to try to figure out how they could spend more to reduce health care costs. The quality of life for their employees was better. The productivity of the employees was better, and they had no annual increase in their health care costs.

We are sitting here ignoring everything that has been learned in America by private self-insured companies and by some insurers who are doing creative things, targeting chronic disease, and actually paying doctors to educate. We have ignored all of this. Why? Because we are having a debate in Washington with the Baucus bill about coverage expansion, not about health care reform.

Coverage expansion costs a lot of money--$829 billion. We are having that debate and telling the American people this is about reform. If you read the fine print, the bottom of the page, and if you read the part they don't want you to remember, it says this year alone there is a $1.4 trillion deficit. That is $1.4 trillion we didn't have that we had to borrow.

The last thing we need is more money in health care. It is 16 percent of our GDP, and we cannot maintain that level of investment. The challenge is on us to come up with the reforms that continue to invest and promote innovation, that expand coverage and, more important, reduce costs.

What do the American people want? They want health care costs to go down, and they want quality to go up. We don't accomplish that in the Baucus bill, but you do in the Coburn-Burr bill. It is not perfect, but it heads in the right direction.

I yield to my good friend from Oklahoma.

Mr. President, I thank Senator Coburn for yielding. Let me just say the reason he is gray is because he cares. This is a Member of the Senate who typically on Monday morning delivers babies, and all weekend long. Before he comes back to Washington, he practices medicine.

This institution looked at what he did and said: You can't charge for what you do even though it costs you $200,000 a year to keep your practice open, your license in place, to buy your liability insurance. They said that is illegal under Senate rules.

So Tom Coburn is a unique individual. He sees women who are pregnant. He delivers babies. But he doesn't take any payment for it. He keeps his license up to date. To some degree, it is charity care because he believes it is the right thing to do. More important, he understands that what we do here affects what our children and our grandchildren get in inheritance from us--not financial inheritance, in opportunity.

Why are we passionate about the debt? Why are we passionate about trampling on the Constitution? Because every time we do it, we take an opportunity away from the next generation. We reduce their ability to be successful, whatever their definition is.

Tom Coburn covered it very well. We are somewhat impassioned about our criticism toward the bills that passed out of the HELP Committee, the Finance Committee soon, and the three bills in the House. Why? Because we introduced our bill first. We laid our cards on the table. We offered to work in a bipartisan way with anybody, and we had no takers.

I believe when you lay it out there and you come up with a successful plan, you have every right to be critical. I do question the ones who do not offer an alternative. But we have offered a solution, and that solution was based on three fundamental principles:

One, it had to cover everybody. The way our bill is structured, every American receives the same financial stipend regardless of whether they work or whether they don't, regardless of where they live. We treat everybody the same.

Two, if you are going to get cost savings, then you have to make direct investments in prevention, wellness, and chronic disease management. The Patients' Choice Act makes direct investments in prevention, wellness, and chronic disease management.

Three, is it financially sustainable into the future? We probably should have started with this one versus save it for last. Why in the world would we create a health care system in America if it is not sustainable? If it is not financially sustainable, why would we even consider that legislation in the Congress of the United States? If it did not pass the test of time, why would it even be worthy of debate?

Unless we expect people outside of America to continue to finance our urge to spend, then I have to tell you, we are not going to have any money--either that or we are going to have to tax the American people to a point where they are not going to want to be successful, they are not going to want to work overtime, they are not going to want to switch jobs because the benefit to them of being successful is to be punished by taxes.

This bill is filled with new fees, new taxes. True reform that expands coverage would pay for itself. Think about that. If you truly reformed health care, would the reforms through savings not pay for the expansion? Shouldn't this be a net sum game?

We have left out of the bill shopping across State lines for insurance. It saves money. The American people are sitting there: Why aren't you doing this? Tort reform saves money. The American people are sitting there: Why aren't you doing this?

Let me end on one that I think the American people are really plugged into. Congress, which plan are you putting yourself under? You designed this plan for everybody in America. Is it the plan you are going to have? You know what, in the Finance Committee, in the HELP Committee, in the House committees, there have been amendments that said Congress has to take the plan they create for the American people. That government option, that is what Congress has to be under. It has been rejected every time it has been offered.

But you see, Dr. Coburn and I took a different approach because in the Patients' Choice Act, we had to set what the basic minimum plan was going to be. Do you know what we put? The Federal Employees Health Benefits

Program. We didn't put them into the FEHBP, but we said it had to be equivalent to what Members of Congress had. How could we ask the American people on a plan we create to have less than we have? The American people expect us to look after them, they don't expect us to give them less than we have.

It was rejected every time that was offered to move Congress to their plan. But I think it tells you a lot about the way Tom Coburn and I approached the bill we worked on because we never thought about taking us and putting us into their plan, we thought about taking them and raising them to our plan. There is a big difference in that. There is a big difference in looking at the American people and saying, you should be here; not the American people saying, you should be where we are.

We want people to be successful in this country. Tom Coburn said this is not a bipartisan bill. He is right. But I will end with this tonight: This is also not a reform bill. If you want to talk about expanding coverage, it does an equal job to what the Coburn-Burr bill does. If you want to judge it based upon reform, it accomplishes no reform.

I encourage those who are not satisfied with the options that have been presented in the House or the Senate or that will be debated, go on Tom's Web site, go on my Web site, Google ``Patients' Choice Act.'' Read the bill. It is only 200-some pages, it is not 1,000.

The truth is, if we have a real debate--at some point, we will have one about health care reform--I could suggest to the American people one word that would drastically reform health care, that could replace all 1,000 pages of a House or Senate bill. It is called portability. It is called the ability for an individual employee to take their insurance from one employer to another, not to be construed in any way because they have a preexisting condition, but also to recognize the fact that when you do portability, you change drastically the way insurers look at covered lives.

I think the American people would be shocked to know the average person is under a health care plan for an average of 4\1/2\ years right now. Ask yourself: If I am an insurer and I am going to invest in somebody's lifestyle changes and I am only going to have them 4\1/2\ years--how much are you going to invest? The answer is, probably very little. By the time they lose weight or quit smoking, you haven't reaped the benefits of those savings, and all of a sudden you create portability. That means a 24-year-old covered by an insurance company-- that insurance company has an opportunity to keep him until he is 64 years old, 40 years. How much are you going to invest in that insured if you are going to have them for 40 years? You are going to invest a heck of a lot because you will want to keep him well as long as you can. You are going to reimburse doctors to do the education; you are going to make sure you keep them out of the hospital; you are going to make sure that if they go into the hospital you get them the treatment they need to get them out as quickly as you can. You are not going to deny a prescription a doctor wrote for them. You are not going to question a treatment a doctor chose because all of a sudden the doctor is a partner to the insurance versus just a cost to the insurance.

You see, true reform has to change health care across the board. It has to change the relationship between patients and insurers, between doctors and insurers, between hospitals and insurers.

Ask yourself: Does the Baucus plan accomplish any of it? The simple answer is no, it does not. That is why it costs $829 billion, and that is why to pay for it you don't get it through savings, you get it through taxing and fees. You get it through the insurance costs of everybody who has it. You achieve the costs by cutting Medicare, by knocking seniors off the health care plan they prefer. You get there by increasing the income limitations on Medicaid, making States actually pay for the expansion of 11 million Americans who are going to be covered under the most inefficient health care system in the country, Medicaid, where only 60 percent of the health care professionals will even see Medicaid beneficiaries because the reimbursements are so low. But we are going to grow that population by 11 million people.

We are doing an injustice to these people to put them in a plan where only 60 percent of the health care professionals will see them. They will not get the education they need for chronic disease management. They will not make the lifestyle changes because Medicaid does not pay for prevention, wellness, or chronic disease management, nor does Medicare, nor does the VA, nor does Indian Health. Show me a government plan that pays for prevention, wellness, and chronic disease management, and I will quit coming to the floor and quit talking about the lack of reform.

The truth is, the Baucus plan tries to replicate what the Federal Government has, and it does not have prevention, wellness, and chronic disease management today. It will not have it tomorrow, and it will not have it next year.

Mr. President, I thank you for your patience. I assure you and our other colleagues that Dr. Coburn and I will be frequent visitors here as we get ready for this debate, as we have this debate, and probably after this debate is over, depending upon the outcome of it.

But let me make it perfectly clear, if any Member in this debate is looking to try to achieve a bipartisan solution to health care, you can sign Tom Coburn and Richard Burr up today to sit at the table with you, to forget about who is the author of legislation, to talk about real solutions to real problems that deal with health care. I am committed to doing it, but I am not committed to rolling over and just accepting another expansion of the Federal Government and Federal Government spending.

Mr. President, I yield the floor.

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

I ask unanimous consent that the Republican time for the next hour be allocated as follows: 15 minutes to myself, 15 minutes to Senator Martinez, 10 minutes to Senator Bond, and 20 minutes to Senator Cornyn.

Mr. President, I rise to express my thoughts on the nomination of Judge Sonia Sotomayor to be a U.S. Supreme Court Justice.

Votes on Supreme Court nominees are among the most important cast by a Senator. These nominations warrant a full and in-depth debate. We are, after all, considering a lifetime appointment to the highest Court in the land.

I will not spend much time this morning going through the impressive background of Judge Sotomayor because I think all Members agree that her experience and her academic credentials meet the threshold of what the American people expect in a Supreme Court Justice.

As an alumnus of two of the most prestigious schools in the Nation with a lengthy judicial record, Judge Sotomayor is certainly a quality nominee for the post. I am also sure she has inspired many throughout her noble career.

More important than the Ivy League schools and the length of public service, however, is the judicial record of a nominee and the decisions she has made during her tenure on the bench.

While many see a lengthy judicial record as something that could only be considered a positive factor in determining a nominee's suitability to serve on the highest Court in the land, others, including myself and many of my constituents, see it as an opportunity for a panoramic view into the decisionmaking process of a nominee.

Just as I looked into the background and experience of Judge Roberts and Judge Alito, I did the same thing with Judge Sotomayor. With all the years she has served on the Federal bench, she has plenty of case material to examine and consider.

Among the most important factors in determining one's suitability for the High Court is the nominee's understanding and appreciation for the role they are about to take on. Other than having the ultimate say in the judicial branch's analysis of the case at hand, the proverbial last word, it is no different than a judge's role on any lower court.

I believe a judge's role is to adhere to the longstanding case precedent and to apply the law according to a strict interpretation of the Constitution. Let me say that again because I believe it is too important to go unheard.

I believe a judge's role is to adhere to the longstanding case precedent and apply the law according to the strict interpretation of the U.S. Constitution.

That is my understanding of the judge's role in our country. Others may have different views, and they certainly are entitled to them. As I have said, I am troubled by her decisions in cases where she has appeared to rely on something other than well-settled law to come to a decision. My fear is that she was unable to separate her personal belief system from that of the letter of the law.

In our one-on-one meetings, Judge Sotomayor gave me her assurances that she would stick to the letter of the law. Her judicial record indicates otherwise, particularly in a couple of very significant places and recent occurrences. While my colleagues have mentioned both of them prior to me stating them again, today I think they bear repeating. Both cases highlight how Judge Sotomayor adheres to applicable case precedent.

First is the Ricci case. I think it is important to take a close look at her decision in Ricci v. DeStefano. This is a case where she dismissed the claims of 19 White firefighters and one Hispanic firefighter who alleged reverse discrimination based on the New Haven, CT, decision not to use the results of a promotional exam because not enough minorities would be eligible for promotion. In the Ricci case, she rejected the firefighters' claim in a one-paragraph opinion. When questioned about it in the confirmation hearing, she maintained she was bound by precedent. A potentially and ultimately legal landmark case warranting a careful and thorough review of the facts at hand and the law to be interpreted, and Judge Sotomayor dismissed the claim in one paragraph. Clearly, a case with issues involving race and discrimination deserved more than a one-paragraph explanation and analysis.

Even the Obama Justice Department could not defend her actions and submitted a brief to the Supreme Court on the matter. In it, they agreed that the decision by Judge Sotomayor should be vacated and that further proceedings on the case were warranted. This is the Justice Department of the Obama administration.

When the Supreme Court issued their opinion in the case, they stated that the precedent relied on for her decision did not exist. When pressed in the confirmation hearing about her decision, she avoided citing the particulars and simply explained that she was following established Supreme Court and Second Circuit precedent. The most troubling thing for me to grasp about this response is the Supreme Court says, in their reversal of her decision, that precedent for Ricci did not exist at all. It was a 5-to-4 decision by the Supreme Court, but all nine Justices disagreed with her reasoning--a unanimous rejection of her argument by the Supreme Court. The Supreme Court said precedent did not exist.

Maloney v. Cuomo, a second amendment case, is another decision of Judge Sotomayor that troubles my impression of her ability to separate her own beliefs from that of the letter of the law. It was just decided this year--so recently, in fact, that it has not even had a chance to be reviewed by the Supreme Court.

Not to rehash the facts of the case in too much detail, but in Maloney v. Cuomo, Judge Sotomayor was faced with determining whether an individual right--in this case, the right to bear arms--could also be enforced against a State. She decided the Maloney case after the historic Heller decision specifically concluded, without any explanation, that the right to bear arms is, in fact, not a fundamental right--a conclusion no other court has ever reached. As a matter of fact, I cosponsored an amicus brief which supported the argument that the right to bear arms is a fundamental right and one that could not be taken away by government without the highest standard of review. This was the argument that ultimately favored the Supreme Court in their decision.

To me, a nonlawyer, her decision in Maloney stands directly contrary to what the Supreme Court had just concluded in the Heller case. So not only did the Supreme Court set the precedent, she ignored the precedent of Heller in the ruling of the Maloney case. How could Judge Sotomayor so distinctly and openly come to the conclusion that bearing arms was not, in fact, a fundamental right when the Supreme Court, just months before, ruled the opposite way? Where did her reasoning come from? I am troubled by the lack of deference and adherence to the High Court's decision, and it leads me to call into question the commitment she made to me in a one-on-one meeting.

Actions, in this case--actually, decisions--speak much louder than rhetoric. These are just two recent, clear examples of where her record as a judge, while lengthy, caused me to call into question her ability to apply case precedent to come to a decision that would affect the lives of North Carolinians and the whole Nation.

These two decisions I have cited are not examples of missteps early in her career or decisions based on lack of experience. These are decisions Judge Sotomayor made after 17 years of experience on the Federal bench. These are decisions made within the last year or so by a seasoned Federal judge who is being considered for a lifetime appointment to the Supreme Court of the United States.

My esteemed colleague from North Carolina mentioned in her speech supporting Judge Sotomayor that the late Senator Jesse Helms, who was a dear friend of mine, supported the nomination of Judge Sotomayor to be a judge on the Second Circuit Court of Appeals. What Senator Helms did not have when he reviewed her nomination, however, was the benefit of Judge Sotomayor's judicial record during her decade of service on the appellate court.

It is imperative that all Members of the Senate look at the cases judges have decided and not just say they have been through the confirmation process in the Senate, therefore it should be automatic the second time. Their decisions weigh on the relevance of their nomination and on their confirmation.

I am sure her impressive academic and professional resume influenced Senator Helms, and I am sure he gave her the benefit of the doubt without any reason to question how she might rule on the bench. I have, and the Senate has, the benefit of reviewing Judge Sotomayor's actual decisions as a circuit judge, in addition to her statements to the record. I have the benefit of seeing if she stuck to the letter of the law as she stated she would do in testimony when nominated for the appellate court in 1998. She has not stuck to the letter of the law.

In 1998, she said, in response to a question from the current ranking member of the Judiciary Committee:

Sir, I do not believe we should bend the Constitution under

any circumstance. It says what it says. We should do honor to

it.

Quite frankly, I believe she bent the Constitution when she ruled in the Maloney case that the right to bear arms was not a fundamental right of the American people.

I have repeatedly said that the decisions made by the Supreme Court affect the lives of every American. After taking into consideration Judge Sotomayor's answers to my questions, reviewing her decisions that appear to have departed from the normal principles of jurisprudence, I find little predictability in her decisions and the implications they might have. I am concerned by the several examples where I believe Judge Sotomayor strayed from the rules of strict statutory construction and legal precedence and went with her own deeply-held beliefs, while providing little in the way of explanations. Therefore, I am unable to support her nomination to the Supreme Court.

I realize, at the conclusion of the next several days, Judge Sotomayor has the votes to be a Justice. I will continue to watch the decisions she makes based upon the answers she provided to me. But as most, if not all, have stated, this is a lifetime appointment. The debate that happens over the next 48 hours will determine, in many cases, whether a change might happen in this nomination. We cannot end this debate without the realization that we will live for generations to come with the decisions of this Court, the next Court, and the next Court. It will be just as incumbent on Members of the Senate in the future to make sure that those nominees are debated thoroughly, that their records are reviewed in great detail, and that their pledge to protect the Constitution and to follow it as a Justice is upheld. My hope is that I am incorrect about how Judge Sotomayor will, in fact, use the Constitution. Today, I announce that I will vote against her.

I yield the floor.

Mr. President, I rise today to introduce legislation that will ensure the Department of Veterans Affairs provides health care to veterans and their families who were stationed at Camp Lejeune, North Carolina during the years when the base's well water was contaminated by numerous known and probable human carcinogens.

Thousands of Navy and Marine veterans and their families who lived on Camp Lejeune have fallen ill with a variety of cancers and diseases believed to be attributable to their service at the base in the years before the EPA designated the base as a Superfund site in 1988.

A recent National Research Council report on the contaminated water at Camp Lejeune assessed that there are numerous adverse health effects associated with human exposure to the chemicals known to have been in water at Lejeune that was used for drinking and bathing.

Many years have passed while Lejeune veterans and their families have waited for some hope of progress on this issue. Some have died waiting. Today, there is much that we now know that was not known in the past, especially a growing body of scientific information about the adverse effects these chemicals have on the human body.

The Lejeune veterans and their families deserve clarity on the cause of their conditions and closure on this tragic situation. It is vitally important we give those who are sick the benefit of the doubt. If a veteran or military family member was stationed at Camp Lejeune during the time the water was contaminated, they should be able to come in to a VA medical center for needed health care. This bill is a step toward providing the veterans of Lejeune and their loved ones with the respect they deserve. Quite frankly, it is the morally right thing to do.

Mr. President, I rise today to introduce legislation that will ensure the Department of Veterans Affairs provides health care to veterans and their families who were stationed at Camp Lejeune, North Carolina during the years when the base's well water was contaminated by numerous known and probable human carcinogens.

Thousands of Navy and Marine veterans and their families who lived on Camp Lejeune have fallen ill with a variety of cancers and diseases believed to be attributable to their service at the base in the years before the EPA designated the base as a Superfund site in 1988.

A recent National Research Council report on the contaminated water at Camp Lejeune assessed that there are numerous adverse health effects associated with human exposure to the chemicals known to have been in water at Lejeune that was used for drinking and bathing.

Many years have passed while Lejeune veterans and their families have waited for some hope of progress on this issue. Some have died waiting. Today, there is much that we now know that was not known in the past, especially a growing body of scientific information about the adverse effects these chemicals have on the human body.

The Lejeune veterans and their families deserve clarity on the cause of their conditions and closure on this tragic situation. It is vitally important we give those who are sick the benefit of the doubt. If a veteran or military family member was stationed at Camp Lejeune during the time the water was contaminated, they should be able to come in to a VA medical center for needed health care. This bill is a step toward providing the veterans of Lejeune and their loved ones with the respect they deserve. Quite frankly, it is the morally right thing to do.

What is the pending amendment?

Mr. President, I ask unanimous consent to set aside the pending amendment.

Mr. President, I call up amendment No. 1554, the Military Spouses Residency Relief Act.

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

Mr. President, this is a very simple amendment. Under current law, our military men and women, about every 3 years, are repositioned in the country or out of the country. Their orders change. When they make that change, it is beneficial to them, and I believe to society, that their spouses and children go with them.

Years ago, we made accommodations for those military personnel so they could pick a State of residency, even though they moved frequently. They could choose the State in which they grew up or the State they might retire in or a State they had visited during their assignments that they thought was the best or most advantageous place for them to claim residency. That provided that every State they went to, they didn't have to change their driver's license or voter registration or basically change everything in their lives.

Now with the size of our military and the constant deployments we are in--this continuation of every 3 years, getting reassigned to a different post--what we realized from a quality-of-life standpoint was that we forgot about the spouses as it relates to the accommodations of a new surrounding. When we think about it, spouses who leave and go with the servicemember, they go into a community unemployed. They have to look for a job. They have to go to the DMV, the department of motor vehicles, and get a driver's license and reregister to vote. I might also say their husband or wife could claim residency somewhere, and they may not be on the title of the house they own or the property they own.

The fact that the spouse cannot claim a State of residency consistent with the servicemember means they are at a tremendous disadvantage from the standpoint of what they own. It is easier to put it in the servicemember's name because they are protected regardless of where their orders send them.

Very simply, this amendment extends the same privilege to a spouse that it does to a servicemember, so they can claim that State of residency, keep that one constant driver's license, and they can pay joint taxes in a State versus being forced to file separate taxes where there may be tax implications so that those military families pay more taxes than if they could file jointly. They still have the challenge of walking into a community unemployed, and they might leave a business behind because they believe the fabric of their family is that important.

That is what we ask all of our military families to deal with. This is a simple way to make life a little easier on the spouses of our servicemembers and to make sure they don't have to change everything in their lives just because their spouse has been reassigned but only certain things that they will have to deal with.

I remind my colleagues there is a stand-alone bill, S. 475. It had a hearing in the Veterans' Affairs Committee. It was passed unanimously out of the Veterans' Affairs Committee. It is identical to my amendment today.

I urge my colleagues to support this amendment. With the Chair's agreement, I ask for a voice vote.

Mr. President, what is the pending amendment?

Mr. President, I ask unanimous consent to set aside the pending amendment and call up amendment No. 1519.

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

Mr. President, most Members don't know much about this amendment. If you are not from Virginia or if you are not from North Carolina or you are not on the Armed Services Committee, this amendment will probably not make a lot of sense. This is about the proposed acquisition of land in North Carolina for an outlying landing field for carrier-based aircraft to practice their touch and goes for the purposes of night takeoffs and night landings.

This is not new to North Carolina. Let me say to my colleagues, I don't think there is a State more friendly to the military than North Carolina. We are home to Fort Bragg, the Pentagon of the Army; we are home to Camp LeJeune, the east coast hub of the Marine Corps; Seymour Johnson Air Force Base. Our communities don't just welcome the military, they support the military. I think it is the most military- friendly State you can find. There is no military family that is stationed within North Carolina that has not been extended in-State tuition regardless of how long they are there or whether their kids are still in education once their parents might have been deployed elsewhere.

This is not an issue of ``not in my backyard.'' There are two proposed sites. One thing my amendment very clearly does is it prohibits the establishment of an outlying landing field at the proposed Hale's Lake, Camden County/Currituck County landing sites and the Sandbanks, Gates County sites in North Carolina. It says to the Navy: You have to take them off your list; you can't include them.

The Navy is proposing to construct an outlying landing field for their carrier-based fixed-wing aircraft squadrons stationed in Virginia Beach at the Naval Air Station Oceana. They propose to acquire 30,000 acres. So they get 30,000 acres to allow for the accommodation of fee- simple purchases, the purchase of restrictive use or through conservation easements.

Approximately 2,000 acres would be used for the core area, which would include an 8,000-foot runway. Think about 30,000 acres relative to the airport that is in your local community and you get an idea of how much bigger this footprint is.

I said earlier this is not about ``not in my backyard.'' As a matter of fact, North Carolina has proffered to the Navy currently a Marine air station in Cherry Point as a potential OLF site where we already have squadrons of Marine aircraft. We have the capacity and, more importantly, we have a community that wants to have this site. The Navy doesn't support the Cherry Point proposal, supposedly because it is considered to be in a location too far from Oceana. Well, let me describe for my colleagues, when you draw the line that says anything outside of this is too far, Cherry Point falls 20 miles outside of the line they have drawn. Twenty miles is the glidepath to land and the glidepath to take off. We are not talking about a big distance. It doesn't seem to make sense why the Navy is looking to condemn 30,000 acres for the purposes of constructing a new facility instead of using an existing facility, an existing military base that would be much more efficient and cost effective for the Navy and, more importantly, cost effective for taxpayers.

Why am I here? Why is Senator Hagan offering this amendment? Because the people in Gates County, in Currituck County, in Camden County, don't want it. The Navy went into this process saying: If people don't want us, we won't go there. The truth is it doesn't stop there.

I wish to enter into the Record, if I may--on May 27, 2009, the North Carolina General Assembly unanimously passed a bill, House bill 613, which states that the consent of the State is not granted to the Federal Government for acquisition of land for an outlying landing field in a county or counties which have no existing military base where squadrons are stationed. I ask unanimous consent to have printed in the Record this document, as well as a letter from the president of the North Carolina Senate.

Mr. President, an OLF at any of the proposed sites in North Carolina and Virginia would create 52 jobs. Fifty-two jobs, for a 30,000-acre footprint. The location at the Hale's Lake site is a 38,000-acre farm that currently employs 90 employees and has a local economic impact of approximately $6.5 million. Let me say that again. We are being asked to consider a 30,000-acre footprint at Hale's Lake where we are going to take 90 jobs and we are going to replace them with 52 jobs, where they have $6.5 million worth of economic impact and we are going to go to a situation where the Federal Government doesn't pay property taxes.

The core of the Sandsbank outlying landing field site contains 1,269 acres of wetland. Let me say this again. The core of the Sandsbank 30,000 acres contains 1,269 acres of wetlands. In October of 2007, the North Carolina Division of Water Quality recommended that the Sandsbank site not be pursued. Why? Because of the significance of wetlands.

I say to my colleagues--and I think we will probably lose this amendment and we will have a voice vote on it--I think it is important to understand, North Carolina has taken option after option after option to the Navy. As a matter of fact, this is our second round after they shortcut an environmental impact study and the courts got involved for a site they had picked and had already purchased the land. They are now in the unusual position of having a lot of land and they can't build the site there based upon where the environmental impact study sent them because they were trying to put it next to one of the largest migratory bird areas on the east coast. Not a smart thing when you want to have pilots taking jets in. It has to go through the environmental impact study whether they pick the Sandsbank site or whether they pick the Hale Lake's site. So I am not sure if the EIS will allow them to go to Sandsbank where there are 1,269 acres of wetlands that will be incorporated into this. Those are all out there.

We have communities today that are being affected. They are being affected by the fact that property can't sell, that people don't want to move there because they don't know whether there is going to be a naval jet base. They don't know whether there is going to be a 30,000- acre protected area where all night long you are going to have aircraft going in, and it only produces 52 jobs for the local community. Not a very good trade-off on the part of North Carolina. Not a very good action on the part of the military.

I ask my colleagues--I think we probably know the outcome of the vote, but

we have to be vigilant. North Carolina is an incredible State when it relates to our military. That doesn't mean that the military can walk in and make a decision that is inconsistent with what is good for our State, and potentially forces an adverse relationship between the State and the military. They pushed it in and that is why the General Assembly did what they did. It is my hope that as this bill moves through conference, since the House has this provision in it, at least this provision will prevail.

I thank my colleagues, I thank the Chair, and I thank the ranking member for their understanding and allowing me to bring this amendment up. It is important that every Member understand what is involved and at the core of this. It is the lives of the people in North Carolina. It is the ability to have predictability in the future and not necessarily a decision that may linger for 6 or 7 or 10 years with individuals not knowing what the disposition of the Navy decision is going to be and, therefore, a market for their property or the plans for the next generation of farmer as it might relate to Hale's Lake, not knowing exactly how to plan their lives.

I would suggest that we call the question on this amendment.

Madam President, the Senator is correct. I believe the Senator from Nebraska, as well. I ask unanimous consent to be recognized after the Senator from Nebraska, it is my understanding, for up to 10 minutes as in morning business.

Madam President, one of the privileges of being a Senator is that we have the opportunity to meet extraordinary people every day. Whether you are the Senator from Illinois or the Senator from Nebraska, extraordinary people walk through your door every day of the week. But sometimes we get to meet amazing individuals whom we can honestly call heroes, who lay their lives on the line for their country and sacrifice themselves for our freedom.

MSG Brendan O'Connor, a medic in the 7th Special Forces Group, is one of those very special people. In June of 2006, Master Sergeant O'Connor was deployed to Afghanistan in support of Operation Enduring Freedom. His group was stationed near Kandahar and charged with a variety of things, including security, training of the Afghan Army, and counterterrorism operations against a ruthless enemy.

We have all heard news reports and heard of suicide bombers driving cars loaded with explosives into markets and crowded areas killing innocent men, women, and children. We have all heard accounts of suicide bombers strapping explosives to their waists and walking through a market, intentionally killing individuals. All of these individuals have been branded as religious zealots willing to die for their cause. However, that is not always the case. Oftentimes, these Taliban warlords recruit suicide bombers in other ways. They go into small villages and they hold whole families hostage. They instruct the young men in the family that if they do not carry out a suicide mission, they are going to kill the rest of the family, or if they do, they will let them live.

Brendan's team was tracking one of these Taliban warlords, one of these thugs, outside of Kandahar, who was notorious for this type of ``recruitment.'' They tracked the terrorist to a small farming village surrounded by vineyards and orchards. Once in the area, Brendan's team set up a perimeter and defensive position to root out these warlords. They arrived late one evening and, working under the cloak of darkness, proceeded to sweep the village, hoping to surprise the local Taliban leader. However, their arrival was tipped off to the Taliban, and they had fled just minutes before U.S. soldiers arrived.

Having found evidence of the Taliban's existence, the soldiers knew it was only a matter of time before they engaged the enemy. That first skirmish started the next day at dusk. Brendan's team, about 70 soldiers comprised of 8 U.S. special ops and 60 Afghan soldiers, took some small arms and rocket propelled grenade fire, but it didn't last long. The Taliban attacked the U.S.-led forces several more times over the next day and night but never amounting to much. U.S.-led forces didn't even sustain a single injury during those firefights.

After having arrived on Wednesday evening and sporadically fighting the Taliban for 2 days, Brendan's team decided it was time to take the fight to the enemy. On that Saturday, MSG Tom Maholluck led a small recon group to a Taliban stronghold, which was just outside the village in a cluster of farm buildings. The team was comprised of four special forces operators and a dozen Afghan Army. Sergeant Maholluck was able to get in close enough to the compound without being detected. Once he assessed the situation, Sergeant Maholluck thought he could take the compound with a simple recon team. He ordered two of his soldiers--SSG Matt Binnie and SSG Joe Feurst--to take a fire suppression position and cover Sergeant Maholluck and the remaining Afghan Army contingency while they stormed the compound.

When the U.S.-led recon team launched its first attack on the Taliban compound, they were quickly greeted with heavy machine gunfire. The first fire expression team returned fire; however, the machine gun nest had a tactical advantage over the fire team--they had the higher ground. Matt was struck first by a bullet that grazed his neck and stunned him for a moment. Matt regained his senses, and he and Joe returned fire, as much as they could, but the Taliban had them pinned down. Then an RPG round came and struck Staff Sergeant Feurst directly in the leg. It didn't explode, thankfully, but badly wounded SSG Joe Feurst. As Staff Sergeant Binnie was tending to Joe's leg, he was shot through the shoulder. The only thing left of the fire suppression team was a young Afghan interpreter who had stayed with them. Master Sergeant

Maholluck was cut off from Staff Sergeant Binnie and Staff Sergeant Feurst, so he radioed for help.

Back at the main perimeter, Brendan O'Connor got the call and put a team together to go get his wounded soldiers. When Brendan's team got to the area, the Taliban had taken positions along the route to the wounded soldiers, leaving Brendan only one path--an exposed field. Brendan instructed his team to take up positions to support the wounded and started on his mission to save the lives of these soldiers.

At first, Brendan started crawling through an open field with his gear on. He quickly realized this wasn't going to work. So under a hail of small arms, RPG, and machine gun fire, Brendan removed all his armor and crawled through an open field to get to the two wounded. Brendan couldn't locate the two soldiers by sight, only by calling out. And as he heard them, he would get closer and closer.

When he arrived at the two wounded, he had to make a quick decision about Joe's injuries, which were life threatening. Brendan quickly got Staff Sergeant Binnie taken care of and instructed him to crawl through a culvert to get to safety. Staff Sergeant Feurst wasn't so easy. He was unconscious and unable to move. Brendan pulled him down as far as he could into the culvert. He started to drag him, but he realized he couldn't drag him the entire way.

As if the actions of Brendan and his team weren't heroic enough at this point, the next part of this account will send chills down your spine.

At this time during the fight, it was estimated that nearly 300 Taliban fighters had engaged the approximately 15-member U.S. force. I say approximately because several Afghan Army members who originally accompanied Brendan's team had fled by this point. As Brendan's natural cover was coming to an end, he pulled Joe on to his shoulder, and he ran across an area while 300 Taliban fighters were shooting at him. God was watching Brendan that day. God saw one man risk his life to save another, and he saw fit to keep Brendan from harm as he carried a wounded U.S. soldier to safety. Unfortunately, Joe Feurst died soon after Brendan got him back due to massive blood loss. SSG Matt Binnie survived because of Brendan's leadership and courage under fire.

The battle that had gone on for nearly 3 days was coming to an end at this point. U.S. forces had air support, which escorted them out of the area. All told, the U.S.-led force killed 125 Taliban fighters and only lost 2 of their own, with 1 wounded. They weren't able to capture or kill the warlord that time; however, due to the losses to the Taliban that day in that strike, U.S. forces got him several weeks later.

For their heroics in combat, MSG Tom Maholluck and SSG Matt Binnie were awarded the Silver Star. SSG Joe Feurst was awarded the Bronze Star. Brendan O'Connor was awarded the Distinguished Service Cross for his valor. It was the first time a member of the 7th Special Forces Group had been awarded the medal since 1964.

It is an honor to have Brendan and his family in Washington today. He is joined by his beautiful wife Meg and their children, Ryan, Colin, Darby, and Dillon.

It is this type of story that we rarely hear about on the nightly news, but this story was so amazing that ``60 Minutes'' felt compelled to do a piece on it after the soldiers arrived back home. MSG Brendan O'Connor is a person held in the highest regard by other warriors who have proudly served this country. He is a soldier who truly understands the price of freedom. The Senate salutes MSG Brendan O'Connor today.

I thank the Chair, and I yield the floor.

Mr. President, I ask unanimous consent to speak for up to an hour as in morning business.

Mr. President, I came to the floor last week for north of 5 hours and spoke about the bill that will be disposed of as this week goes on and, specifically, on an amendment that, though nongermane postcloture, the majority leader has agreed to hold a vote on. To me, this will be one of the most important votes Members in this body cast this year.

Again, I believe this is one of the most important votes Members in the Senate will cast this year. Let me try to say why. This is a debate about the regulation of tobacco and, to start with, Members need to be reminded that today this is not an industry without regulation. This is the current charted Federal regulation of the tobacco industry before we do anything. I point out that included in that regulatory structure is the Department of Transportation, Department of Treasury, Department of Commerce, Department of Justice, Office of the President, Department of Health and Human Services, Department of Education, Department of Labor, General Services Administration, Department of Veterans Affairs, Federal Trade Commission, Department of Agriculture, Environmental Protection Agency, U.S. Postal Service, and Department of Defense.

One, no Member can come to the floor and claim this is not a regulated product. It is the most regulated product sold in America today. I think there is consensus, and I agree, that we can do better than this maze of regulatory oversight in jurisdiction that is currently structured within the Federal Government, because it has been cobbled together as the Federal Government has grown, as new areas saw they had a piece of this pie, and they wanted some jurisdiction. We are throwing this regulatory structure away, and the proposal in the base bill, H.R. 1256, is to centralize this regulation of tobacco within the

Mr. President, I ask for the yeas and nays.

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

Mr. President, I understand we are in morning business.

Mr. President, I ask unanimous consent to speak for up to 30 minutes.

I thank the Presiding Officer.

Mr. President, later this morning, today, we will go back on the tobacco FDA bill. As one who has tried to educate Members on why this is a flawed bill, let me state I am fighting an uphill battle. I have been all week.

I wish to thank my friends and colleagues who have come to the floor over the last days to support their belief that this is misguided, not the regulation, but the fact that we are concentrating this in the Food and Drug Administration, an agency that has the trust and confidence of the American people that the gold standard of proving safety and efficacy for all drugs, devices, biologics, and cosmetics, and food safety is their No. 1 mission. But my colleagues know this has been an uphill fight, too. I have tried over the course of those days to highlight for the American public why it is bad policy. I have highlighted portions of the bill that I thought were flawed. I haven't come out and said this is the wrong thing, even though, let me remind my colleagues, this is the current flowchart for the Federal regulation of tobacco before we do anything. So for Members who come and say this industry is underregulated, let me remind them it is the Department of Transportation, the Department of the Treasury, the Department of Commerce, the

Department of Justice, the Office of the President, the Department of Health and Human Services, the Department of Education, the Department of Labor, General Services Administration, the Department of Veterans Affairs, the Federal Trade Commission, the Department of Agriculture, Environmental Protection, U.S. Postal, and the Department of Defense. Now we are going to take all of those areas of Federal regulation and we are going to condense them all into the Food and Drug Administration, which has a mission statement of proving the safety and efficacy of every product over which they have jurisdiction.

Twenty-five percent of the U.S. economy is currently regulated by the Food and Drug Administration. Americans go to bed at night after taking pills prescribed by a doctor and filled by a pharmacist with the comfort of knowing they have been approved to be safe and effective. Through this bill, we are going to dump on the Food and Drug Administration a product that is not safe and it is certainly not effective.

I have tried to point out the flaws. Heck, I have tried to point out the good things in the bill. I haven't been one-sided on it. But every time one of my colleagues from the other side of the aisle has come to speak, we have either seen charts that are 10 years old or data that is 10 years old. We have seen products that they have painted in a light that didn't even exist 10 years ago. I haven't heard a single question I have asked in this debate answered by the other side or even their opinion of what is wrong with the substitute. It has all been rhetoric.

I wish to share a story with my colleagues. This story is a news report. It was a report CNN ran on a product that is new to the market. It is called Camel Orbs. It is not a cigarette, and it is really not smokeless tobacco; it is a dissolvable tablet.

As I pointed out to my colleagues yesterday when I showed them the chart for continuum of risk, nonfiltered cigarettes have a 100-percent risk factor and filtered cigarettes have a 95-percent risk factor. As you introduce new products into the marketplace that allow individuals to move from cigarettes to other products, you reduce the risk. You reduce the risk of death and disease, and that is one of the three objectives of tobacco legislation. Youth usage should go down. Death and disease should be reduced from the standpoint of risk.

Let me come all the way over here on the chart to dissolvable tobacco. The risk is 2 percent. To bring these to market is to reduce the risk from 100 percent to 2 percent--98 percent better.

CNN ran this article on Orbs. It is a smokeless product, but I will get into that in a few minutes. For now, what you need to know is Orbs falls under the same age restrictions all tobacco products do. That means it contains no cartoon images. It must be shelved behind the counter where it is out of reach of children. Heck, it is out of reach of adults. They have to physically ask for the product. By the way, you must show photo ID to buy tobacco products today. Let me say that again. You must show a photo ID to purchase tobacco products.

When CNN did their story, take a guess on the angle they took. They labeled it as candy--candy--even though it is not candy flavored. They said it was candy. They didn't mention death or disease. You would think a story on tobacco would lead with that. I haven't been shy to come to the floor and say that is the result of tobacco usage. But they didn't even go to death and disease. No, they said it was candy. That is how they labeled it.

Even though they mischaracterized the product and took people down the path they wanted to go, that wasn't the bad news of this story. The bad part of the story was they took tins of the product and they actually placed them in the candy aisle at the convenience store, right there beside the Reese's Cups and the chewing gum. Then they took footage of a young boy, I think, reaching over and picking up one of the Camel Orbs, even though this is highly illegal. Even though the convenience store could be prosecuted, and therefore they don't put tobacco products in the candy section, still CNN wanted to make their point. What a better way to make the point than to stage what the picture was. Let me say that again. What a better way to make the point than to stage that every retailer in the world out there is putting Orbs, a tobacco product, in its candy section. They portrayed Reynolds America as being deceptive and luring children. No candy. It is not going in the candy section. It is in the tobacco section where smokeless and stick smoke products are.

That is why it is so difficult. That is why the job I am on a quest for is an uphill battle. It is because nobody on that side wants to come down and talk about the policy.

The bill we are considering was written 10 years ago. No wonder we are using 10-year-old charts and 10-year-old statistics. The truth is, if you look at the statistics today, if you want to address death and disease, then accept the fact that there has to be an opportunity to reduce the risk. But what my colleagues need to know is that H.R. 1256 gives the FDA full jurisdiction over tobacco products, and it takes this category right here and it locks it in. It cements it because it grandfathers FDA from ever doing anything on the existing products that are in the marketplace: filtered cigarettes and nonfiltered cigarettes. FDA is forbidden from changing anything. The products that were sold continue to be sold. No new products can be sold.

They say there is a pathway for these products to come to market. It is a three-pronged test they have to meet. I won't dwell on the first two prongs. Let me dwell on the third one. The third one is this: You have to prove that people who don't use tobacco products aren't likely, when this new product is introduced, to actually use this product. But the way the bill is crafted says this: You can't communicate with the public unless you have an approved product. So I ask my colleagues, if you can't communicate with the American people to find out whether they are likely to buy a product that is new to the market until that product is actually approved, then how can you fill out an application and make the claim that the American people aren't likely to use that product when they don't use tobacco products? So it is disingenuous to suggest that there is a pathway for reduced-risk products when, under the construction you make anybody go through, you can't possibly make the claim they ask you to make because you can't communicate with non- tobacco users as to whether this product would be something they would choose to use. So any claim based upon that, that this is a bill which addresses death and disease, is disingenuous at best because what it does is it locks this category. It cements those people who currently use smoke products--cigarettes--the 19.8 percent of the American people who currently smoke.

So far in this debate, I have seen charts, like everybody else, that would make your skin crawl and I have heard stats that would make your head spin. I even heard Senator Sanders come to the floor yesterday and say tobacco manufacturers want to get you addicted to heroin. I think he misspoke, but I have to tell my colleagues I am not absolutely positive of that.

All of this follows the same conclusion: Under H.R. 1256, which is the base bill, the sponsors claim that the FDA will stop everything, that all of this will go away. And let me concede for a minute that maybe they are right, then they would have to concede that I am right-- with the exception of locking this product in forever. If you lock that product in forever, then you can't make the claim that you are reducing death and disease.

I think, as I have gone through this debate and pointed out that when you look at the CDC study of 50 States and you look at the percentage of smoking prevalence in our youth, what you find is that in 48 States out of 50, the prevalence of marijuana usage is higher than the prevalence of smoking. Let me say that again. In 48 out of the 50 States, the prevalence of marijuana use is higher than the prevalence of smoking. One would conclude from that, since marijuana is illegal-- it is not age-tested; it is illegal--that the usage prevalence among youth would be zero. Well, the American people aren't that foolish. They realize nothing goes to zero. But they also realize it is foolish to suggest that if you concentrate tobacco jurisdiction at the FDA, the smoking prevalence is going to go below that of marijuana because marijuana is illegal.

The fact is, putting tobacco regulation at the FDA is not going to have any impact on youth usage. What is going to have an impact on it? Actually taking the master settlement dollars from 1998, the $280 billion the tobacco industry committed to the States, all 50 of them, for two things: one, to defray their health care costs, and two, to fund the programs of cessation to get people to quit smoking and fund the programs to make sure children never take it up. But as I pointed out, we have some States that, when the CDC annually makes its recommendations, spend as little as 3.7 percent of what the CDC told them they needed to spend of this tobacco money to make sure kids got an educational message: ``Do not smoke. It kills.'' Now we are blaming it on the fact that they are not regulated enough today and that we can concentrate this under one Federal agency, the Food and Drug Administration, and by some magical, mythical thing that happens, youth prevalence of smoking is going to go down. No. It is going to go down when States take the money the tobacco industry gave them and they actually use it to reduce the youth usage, to make sure they never take up tobacco products, to make sure people switch from smoking products to some other form that has a better effect on death or disease.

I would love to say that my State of North Carolina devotes 100 percent of what the CDC recommends to use on cessation and youth education, but we only spend 17.3 percent of what the CDC recommended of the money we got. When you look at all of the States, though, 17 percent is pretty good. I don't know whether it was used in other States for sidewalks or for greenways. I know one thing for certain: It didn't go to try to educate young people in this country not to use tobacco products. If we want to get the youth usage down, then we have to use the tools we know work; that is, education.

I have listened to my colleagues come to the floor for weeks and make unbelievable statements. All of this has followed the same conclusion: FDA will stop all of this and FDA will put the evil tobacco out of the hands of kids. I think I have made a pretty good case that it is not going to happen, not with this legislation. The sad reality is, maybe Congress could pass a bill that does all that. That is why Senator Hagan and I have offered a substitute. That substitute will be debated over the first half of this afternoon, and every Member will have an opportunity before the afternoon is over to vote on that substitute.

I encourage all Democrats, Republicans, and Independents to read the bill. You will find that it provides all the regulation in H.R. 1256, and more. The base bill limits print advertising to black-and-white ads. What does our substitute do? It eliminates print advertising. That magazine that mom buys that a 14- or 16-year-old daughter may like to look at in the afternoon--under our substitute, they cannot advertise there anymore. Under H.R. 1256, they are allowed to advertise, but in black and white. In some way, they believe kids cannot read in black and white, they can only read in color. That probably tells you more about how misguided the legislation is. It is not solving the problems--death, disease, and usage. The tools are in place. We can reinforce them in a more effective way. That is what the substitute amendment, I believe, will do.

My friend from Connecticut yesterday stated that I was misguided in my belief that the FDA was not the right agency to regulate tobacco. He said the FDA was the only agency in America that had the scientific expertise to do the job. I only have one question: Does the FDA have the expertise to make tobacco safe? Again, does it have the expertise to make tobacco safe? I think the answer is, no, it doesn't. Therefore, it doesn't meet the mission statement of safety and efficacy. But that is what they are vested to do. That is what the American people believe the FDA accomplishes. To suggest that we would regulate a product that doesn't meet that threshold is, to some degree, disingenuous to the American people.

My friend from Connecticut also pointed out that my downplay of CBO's estimate on smoking reduction was misplaced. He said that while I kept using the 2-percent figure--which is all the population over 10 years-- and CBO had estimated that if we pass the bill, we will reduce smoking by 2 percent over 10 years--that was 900,000 fewer smokers over 10 years, and that number was impressive. I agree that it is impressive. I think he said there would be tremendous health care savings with 900,000 fewer smokers. I am not sure if Senator Dodd heard the statistics I gave that were the result of the CDC study. I said numerous times that the CDC said that if we do nothing, there is a reduction in smoking of between 2 and 4 percent per year--not over 10 years, but per year.

I ask my friend from Connecticut, what is more impressive, 900,000 or 9 million fewer smokers? By doing nothing, as CDC has said, we eliminate 9 million smokers. By passing this legislation, CBO says we eliminate 900,000 smokers. Nine million fewer smokers is what we would have if we pass the substitute, but it is not what we would have if we pass the base bill. I ask my friend from Connecticut to truly think about the health savings realized without passing the base bill and realize that, with the substitute, we might actually get to more than 9 million.

My colleague went on to say that I purposely ignore CBO's estimate that youth smoking rates will reduce by 11 percent over the next 10 years under the bill. That is the CBO projection.

Obviously, he didn't hear me earlier in the morning on this issue. I think it is great that smoking rates would decline by 11 percent over the life of the bill. I think it is much better that they would reduce 16 percent if, in fact, the bill weren't enacted. That is what the CDC says--16 percent if you do nothing, and 11 percent if you pass H.R. 1256.

We are not saving lives with this bill. We are not reducing youth usage. If you want to save lives, you need to follow where Senator Hagan and I are and create a harm reduction center--one that will promote harm reduction products.

If we go back to the continuum of risk chart, if you look at the 100 percent risky and 90 percent risky, it is hard to believe you reduce death and disease. The only way to do that is if you get people to give up these products and you make available products that are on this chart, but also some products that are not on this chart. In the absence of doing that, there is no way you can claim that you have actually affected death, disease, or the cost of health care.

I listened to my friend from Oregon make statement after statement about those dissolvable tobacco products that I pointed out in the CNN expose on tobacco. He repeatedly called it candy, also, even though you cannot buy it unless you are 18, and it cannot be put in the candy section--unless you are CNN and you are doing a story. He said the packaging was intentionally shaped like a cell phone to attract kids. If a cell phone doesn't work, children don't want it, let me assure you. But I will make the pledge to him today that if he will offer an amendment to outlaw any packaging that looks like a cell phone, I will cosponsor it with him. If he were right, I think every manufacturer of anything in the United States would make it look like a cell phone today, if it were that effective.

My friend went on to call Camel Orbs dangerous. He had no scientific basis for that claim. He quoted an 8-year-old Surgeon General warning on smokeless tobacco that said it caused cancer, but the last time I checked, Camel Orbs didn't exist back then. He said that I called harm reduction products, such as Camel Orbs, safe.

I have been on the floor 4 days, and I spoke for 2 hours 37 minutes yesterday. I might have slipped, but I don't believe I have ever referred to any tobacco product as ``safe.'' If I did, let me retract it. I have frequently said there are products that are ``less harmful.'' I have constantly described and made the point that if you don't move people from cigarettes to other tobacco products that allow them to make that transition, you will not reduce death and disease.

I don't think tobacco is safe, but I do believe there are products that are safer than smoking. I believe that for adults who choose to use tobacco products, they should have every option available to make sure that that product is something they can access. Compared to smoking, they do reduce death and disease.

Camel Orbs and Sticks represent a 99-percent reduction in death and disease associated with tobacco use compared to cigarettes. They don't cause lung cancer, cardiovascular disease, emphysema, or COPD.

The American Association of Public Health Physicians states that those Orbs are the most effective way to fight death and disease associated with current tobacco users. Yes, much to my amazement, the American Association of Public Health Physicians came out and endorsed the substitute to H.R. 1256. Again, yesterday, the Association of Public Health Physicians endorsed the substitute amendment to this bill.

Unlike my friend from Oregon, I have the science to back up my claim. I have the studies from Sweden, and I have looked at the documented evidence. Alternative tobacco products work in harm reduction. I will tell you what doesn't work--current cessation programs, especially the ones that are not funded in that money that was supplied to the States. The current cessation programs don't work; they have a 95-percent failure rate. So 95 percent of the people return to smoking.

Why in the world would we continue to support that as a pathway for reducing death and disease? Why wouldn't we acknowledge the science that currently exists and accept, in new policy, a policy that would in fact embrace this?

May I inquire how much time I have left?

Senators come to the floor and speak about the $13 billion in marketing the tobacco industry spends. They fail to tell you that 95 percent of that money goes to retailers and coupons against the competition and to make them more attractively priced at retail. Only 3 percent actually went to advertising in adult venues and point of sale displays. That doesn't make it a good point.

What makes it a good point is that the tobacco industry spends a tremendous amount of money making sure that their industry is protected for those who choose to use it and are of legal age.

Last year, we taxed the tobacco industry to fund the children's health insurance program. There is a proposal on the table to tax them to pay for universal health care. Senator Dodd admitted yesterday that the industry would be taxed to pay for this bill.

But that is not a good story. A good story is placing tobacco products in the candy aisle by a news organization just to make a point and then portray to the American people that these are the tactics of the tobacco industry.

I have, over 4 days now, come to the floor not to defend the tobacco industry, but to defend the FDA, because I don't believe the American people deserve us to discredit the gold standard of the FDA by putting this product under their jurisdiction and asking them to do something they have never, ever done.

When I showed the flow chart of jurisdictions, the one missing out of the current regulatory architecture for tobacco is the FDA. Nobody can claim to me they have done this before and, therefore, this is an appropriate thing to do again. Simply, I have come to the floor in the last 4 days to debate the policy. At the end of the day, I hope Members of the Senate will weigh the policy, the points that I have made, the statistics I have produced, the evidence I have brought to the table, and if, at the end of the day, what you are attempting to do is reduce death and disease, reduce youth usage, I hope I have made the case to you that you should not pass H.R. 1256.

This afternoon, before there is an opportunity to vote, I hope to make the case that you should support the Hagan-Burr substitute. I hope I have made the case to most that even if the choice comes down to passage of H.R. 1256 or nothing, that the CDC report says if you want to address a reduction in death and disease, the fastest way to get there is to do nothing if, in fact, your only choice is to pass H.R. 1256.

Once again, I thank my colleagues for their patience as I come to the floor to try to educate and provide facts.

I yield the floor.

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

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

I ask unanimous consent to be recognized for 30 minutes.

Mr. President, we are desperately working to try to make sure we can move to amendments on H.R. 1256, a bill that attempts to consolidate the regulatory responsibility for tobacco products under the FDA.

This is being sold as a public health bill. I have been now to the floor for over 3.5 hours in the balance of this week suggesting it does not meet that threshold and that, at some point today, I would have the opportunity, along with Senator Hagan, my colleague, to give, in some detail, what is in the substitute amendment.

I am going to attempt to do that now, even though we have not moved to the consideration of the other pending amendments. But let me start with a chart I had used earlier today. The reason I make the claim that this is not a public health bill is from this chart that shows the continuum of risk of tobacco products.

It starts on my right, your left, with nonfiltered cigarettes. The baseline we use is that is 100 percent risky. The industry, at some point, probably before I was born, all of a sudden created a filter that went on the end of an unfiltered cigarette.

Because of that filter, it eliminated, it removed some of the constituencies of the combustion of tobacco. That made it 10 percent less risky. The risk went from 100 to 90 percent. Then in the 1990s we had a new product that was never marketed except in test markets. It was a tobacco-heating cigarette, where it did not actually burn the tobacco, it heated the tobacco. It extracted the nicotine, delivered the nicotine in the system but never produced smoke.

That product was considered to be about 45 percent risky but, clearly, a reduction at the time of 45 percent. All of a sudden, in the past 12 months, 18 months, we have seen a new product called an electronic cigarette. Again, no tobacco is burned. It is a fairly expensive product, it is popular outside the United States, not as popular or readily available in the United States. But that electronic product that has a cartridge you replace actually brought the risk level down to about 18 percent. Some might be catching on. As we have introduced new products, we have brought the risk down, the health risk, the risk of disease, of death.

Now we are over here to U.S. smokeless tobacco, a product that most Americans understand. It is not the old snuff our parents and grandparents grew up with, it is ground tobacco. All of a sudden, we realize we reduced even further the health risk. It is now down at the 10-percent risk level, 90 percent below where we started decades ago with an unfiltered cigarette.

Now introduced in the marketplace in the past year is something I referred to as Swedish smokeless snus, it is now on the market. It is sold, it is pasteurized, it is spitless. It was not something the United States or U.S. tobacco companies created, it is something the Swedes created.

Part of what I will get into is how the Swedes have used this product and

other innovative products, other new products, in the marketplace to move smokers from very risky products to less risky products. In the case of Swedish snus, you see a risk level of about 2, maybe 3 percent.

Then we get over to a product that has yet to hit the market except for test markets, the one I covered in great detail several hours ago on the floor, a dissolvable tobacco product, one that was covered by CNN as a candy, one that still meets the age requirements and proof of ID for somebody to purchase.

But to magnify CNN's report, they actually took that product from behind the counter and put it in the candy section next to Reese's cups and gum and had an underage person come up and take one as CNN filmed to make it even more appealing from a standpoint of a story.

But this is the product. This is the product some have come to the floor of the Senate and said looks like a cell phone. I am not sure. It does not look like my cell phone. Maybe it looks like someone's cell phone but not mine. It is not a product that is accessible for anybody who does not produce an ID and does not meet the minimum age requirements of that State.

Risk? About 1 or 2 percent. We are actually getting better with every product that is innovative: therapies, gums, patches, lozenges, pharmaceuticals, negligible, if any, risk.

Let me explain why I started with this because the base bill that is being considered, 1256, takes these categories right here, nonfiltered cigarettes and filtered cigarettes, it locks them in forever. The legislation says to the FDA: You cannot change these categories unless you find some specific thing that would cause you to alter it. It forbids the FDA.

Even though H.R. 1256 creates a pathway to less-harmful products, it is a pathway that cannot be met because one of the conditions of new products entering the market is, you have to prove that people who don't use tobacco products will not be enticed to use these products. It also says you can't communicate with anybody in the public unless you have a product that is approved.

I ask: How do you meet the threshold of proving that somebody who doesn't use tobacco products is not going to use this product, if you can't communicate with them until you get the product approved by the FDA? I have come to the conclusion, since nobody who is a cosponsor or author of the bill has come up with an answer, it can't be done.

To claim that this is a public health bill, one would have to make a reasonable claim that these products are going to be available and maybe potentially more products in the future. But what H.R. 1256 does is, it cuts off availability of product right here. It says, on this side of the line, we have constructed a pathway that nothing will pass. I don't believe you can make a genuine claim that this is a public health bill when you have locked every user into the 90- or 100-percent category of risk.

Senator Hagan and I have offered a substitute amendment. That amendment will be voted on about 4:30 today, if things go according to schedule. It is absolutely essential that Senators listen to their staffs who have read the bill, read the substitute amendment, listened to the debate. I know there are a lot of things that go on during the day. It doesn't allow Members to sit down and listen to what Richard Burr is going to say. Hopefully, staff has looked at the statistics I have presented, the facts I have brought to the table, the claims I have made, and understands I am right. H.R. 1256 is not a public health bill.

The substitute does allow this to happen. We allow it to happen because the substitute doesn't concentrate regulation in the Food and Drug Administration, an agency that, by their mission statement, is required to prove safety and efficacy of all products they regulate. Pharmaceuticals, biologics, medical devices, food safety, cosmetics, products that emit radiation--that is the world of the FDA. They regulate 25 cents of every dollar of the U.S. economy. They are the gold standard for every American. When they get a prescription and go home to take it, they never wonder whether it is safe or whether it will work because the gold standard in the world is the Food and Drug Administration. When they go to a doctor's office and they get ready to use a device, they don't question whether it was something the doctor made in the back room. They know that device was approved by the FDA. Up until recently, they had every assurance when they bought food that that food was not contaminated, that it wouldn't hurt them or kill them. But as we know over the past several years, we have had things that have slipped through, and Americans have died. The FDA is struggling today to make sure that, in fact, they meet the demands of the regulation they have in place.

What I am saying is, don't concentrate this regulation at the FDA. Don't jeopardize the gold standard. Employees work there with a complete understanding that if it doesn't pass safety and efficacy, it does not receive approval of the FDA.

Let me say it as I said it a couple hours ago. Tobacco products are not safe. Tobacco products cause disease and death. There is no way the Food and Drug Administration, on their current mission statement, can regulate a product they can't prove safe and effective. If you try to put a square peg in a round hole, you will have reviewers at the FDA who say: The gold standard is no longer important because Congress has legislated that it is important. If I turn my head on tobacco products, I can turn my head on this medical device because it doesn't look like it is going to be dangerous. All of a sudden, something is going to slip through, a pharmaceutical product that kills somebody, a device that does somebody damage, because we lowered our guard. We lowered the threshold that every product must meet to get FDA approval.

I am not advocating for the Federal Government to sit back and do nothing with respect to tobacco. I am advocating that we craft a bill that will achieve the real goals of what Federal regulation should accomplish: To reduce death and disease associated with tobacco and to reduce youth usage of tobacco products. That is exactly what our substitute amendment does. It is designed to keep kids from smoking. But you can't keep kids from smoking if you are not willing to limit advertising.

In the base bill, H.R. 1256, they limit print advertising to black and white. In the substitute amendment, we eliminate print advertising. Let me say that again. In the current base bill, they restrict print advertising to black and white only. In the substitute amendment, we eliminate the ability for print advertising. The substitute amendment is actually tougher on advertising than the base bill.

Specifically, the Burr-Hagan amendment bans outdoor advertising, youth-organized sponsorships, usage of cartoon characters, sponsorship of events that youth attend, and many other provisions, all designed to limit children's exposure to tobacco advertising.

Our amendment does not stop at print advertising. The amendment codifies the other youth marketing restrictions contained in the Master Settlement Agreement of 1998 and makes it a crime for underage youth to possess tobacco products. Let me say that again. In 1998, all the tobacco companies got together, responding to State concerns that health care costs were out of control and that tobacco contributed to it. They provided $280 billion to all 50 States for two things: Cost share of their health care and so they could create cessation programs to get people to quit.

I covered in great detail over the last couple days that even with this money available, one State only spent 3.7 percent, not of their total money, of the amount of money CDC said was an adequate number to spend on cessation programs. No State hit 100 percent. There are some that deserve gold medals for the fact that they were higher than others.

I pointed out one yesterday. I will point it out again. The State of Ohio is a large State. Of the amount CDC recommended Ohio should take of the tobacco money and devote to cessation programs, Ohio spent 4.9 percent. When you hear these numbers, no wonder we are not doing better at moving people off cigarettes to other products or getting them to quit altogether. It is because the effort we have made through education has been pitiful. As a matter

of fact, 21.6 percent of the youth in Ohio have a prevalence to smoke; 45 percent have a prevalence to alcohol; 17.7 percent have a prevalence to smoke marijuana. Yet some come to the floor and claim that if we give this to the FDA, youth smoking, youth usage will go away. If that claim were even partially correct, the marijuana usage would be zero because it is illegal. There is no age limit.

Some will claim we don't address labeling. We address labeling on packages of cigarettes to discourage children from even looking at them. We require warning labels on the front and the back. We require graphic warning labels that show gruesome and tragic cases of mouth cancer, lung cancer, and other pictures designed to deter children from smoking. As my colleagues can see, keeping kids from tobacco advertising is a key component to the Burr-Hagan substitute amendment. Compare that with the underlying bill, and they will not see the same commitment to limit advertising that children see. The underlying bill contains graphic warning labels but doesn't limit print advertising. Tobacco companies would still be able to advertise in magazines such as People, U.S. Weekly, and Glamour--clearly, purchased by their parents but accessed by their kids, and they can then see the black-and-white ads.

Maybe in some weird way the authors of this bill thought children can't read black and white, that they can only read color. That is why they chose to limit it just to black-and-white advertising.

The only stipulation is, the ads would be in black and white. We can do better. We can absolutely do better than this. Keeping children from using tobacco products must be the first accomplishment of Federal regulation. The Burr-Hagan amendment accomplishes that goal with a two- pronged attack. First, our amendment encourages States to use more of their MSA payments on cessation, putting billions of dollars into the effort. In the last 10 years, States have used just 3.2 percent of their total tobacco-generated money for tobacco prevention and cessation. In 2009, no State is funding tobacco prevention programs at CDC-recommended levels. Our amendment would change this by requiring States to comply with the CDC-recommended spending levels on cessation programs. It would no longer be voluntary.

In the case of Ohio, instead of spending 4.9 percent, Ohio would be obligated by law, if we pass the substitute amendment, to spend 100 percent of what the CDC said needed to be spent for us to successfully make sure our Nation's children were given the message that the use of tobacco products is not an advantageous thing.

Studies show that when States commit the money to cessation, youth smoking and smoking in general declines. Unfortunately, the underlying bill, H.R. 1256, contains no cessation program. Even though the bill requires the manufacturers to pay up to $700 million a year, it contains no cessation program. How can you call this a public health bill? How can we suggest this is going to reduce the risk of death or disease? How can we make the claim we are going to reduce youth usage, when there is no commitment, no requirement to cessation?

Secondly, our amendment assists current smokers who are unable and unwilling to quit by acknowledging a continuum of risk of tobacco products, what I showed here. More specifically, our amendment does not preclude reduced exposure products from entering the marketplace. The piece over here, they lock this in. We try to pull all the 100 percent, 90 percent over here to less harmful products because the objective in this bill should be to reduce death and disease.

There is a great debate underway in the academic world on tobacco controls. Some advocate abolishment of tobacco. Straight abolishment is hard to achieve and can bring many unintended consequences such as elicit trade, and we all know that. Since abolishment is not an effective solution at this point, the question remains: How do we lower death and disease rates associated with smoking? Nicotine therapy has proven to be a failure. NIH states that patches and lozenges and other things have a 95-percent failure rate. They fail because smokers don't physically use these products as they do cigarettes. They are marketed poorly and are not designed to be a long-term solution. Under H.R. 1256, the base bill, that trend continues.

Also, H.R. 1256 does not give manufacturers of nicotine products the regulatory framework needed to market and enhance smoking replacement products appropriately. Since we have scratched current nicotine therapy products and abolishment as an effective means to stop smoking, that leaves us with very few options. The most promising option the Federal Government can help perpetuate to reduce death and disease associated with smoking is low-nitrosamine smokeless tobacco products.

Until recently, the academic community resisted the fact that smokeless products could aid in tobacco harm reduction. Skeptics, many of whom helped write the underlying bill, stated that smokeless tobacco products are gateway products that will lead to more children smoking.

Experience and data shows differently. Over the last 20 years, Sweden has allowed tobacco manufacturers to promote low-nitrosamine snus, a smokeless tobacco product, as an alternative to smoking.

This quote is from the Royal College of Physicians dated 2007:

In Sweden, the available low-harm smokeless products have

been shown to be an acceptable substitute for cigarettes to

many smokers, while ``gateway'' progression from smokeless to

smoking is relatively uncommon.

You get where I am going. The data is out there. I never dreamed we would use Sweden as an example of where the United States would go. But when the focus is on how you reduce the risk of disease and death, they never lost focus of what that was. They were not clouded as to the introduction of new tobacco products in a blinded effort to lock in what existed. They experimented and found new products that would actually entice smokers to switch.

The claim that in some way, shape, or form these products are gateway products, that they will take nonsmokers and turn them into smokers-- for the Royal College of Physicians, in 2007: ``relatively uncommon.''

No statistic is perfect, and I am sure there are some who might have made a decision to use one of these products. But as you saw on the chart before, had they decided to use it, the risk of that Swedish snus was not 100 percent, it was 3 percent. There was no risk of heart disease, COPD, lung cancer, the things that one might get from these products, as shown on the chart over here, that the base bill H.R. 1256 locks in.

As a matter of fact, let me bring this other chart up: Harm Reduction: Smokers, Quitters, Switchers. The question we have to ask is, do we want people to be smokers? Do we want them to be quitters? Or do we want them to be switchers? Because this graph clearly shows you that there is a reduction--quite dramatic--in the relative risk for quitters and switchers in relation to smokers. What every Member will have to ask themselves, as they get ready to decide what they are going to do on this legislation, is: Do we want the American people to be smokers? Do we want them to be quitters? Or do we want them to be switchers?

If the answer is, you want them to be quitters or switchers, then it is very easy. Support the Burr-Hagan substitute. Because the base bill, H.R. 1256, does not create any effort to have quitters or switchers. All it does is lock in smokers. And if the bill's intent is to reduce the risk of death and disease, common sense tells you, without creating quitters and switchers we are not going to do a very good job of reducing the risk of death and disease.

Mr. President, how much time do I have left?

I thank the Presiding Officer.

Mr. President, you see the chart behind me. The Lancet supports the goal of harm reduction. I will be honest with you, I do not know what the Lancet is. But I have been told it is a very reputable health publication. But let me quote it:

We believe the absence of effective harm reduction

strategies for smokers is perverse,

unjust, and acts against the rights and best interests of

smokers and the public health.

A reputable health publication that basically says: The absence of effective harm reduction strategies acts against the rights of smokers and public health. But the base bill, H.R. 1256, has no effective harm reduction strategy, no pathway to harm reduction products. But they claim it is a public health bill. A health care publication says that cannot happen. It is ``perverse.'' It is ``unjust.'' Well, they said it. I did not. But I think what they mean is, that to consider passing H.R. 1256, with the knowledge that has been given, would be perverse, unjust.

I am not going to have an opportunity to talk fully at this time because I have a colleague who will take the floor. But let me say, I talked earlier about Camel Orbs and the way CNN portrayed this product as candy and staged a news event--well, ``news'' would be--let's say ``entertainment'' event by taking this from behind the counter in a convenience store and putting it in the candy section and having a kid go up and pick the Orbs up out of the rack to say that it was candy.

Orbs represents a 99-percent reduction in death and disease associated with tobacco use compared to cigarettes.

I ask my colleagues, if the objective of Federal legislation is to reduce the risk of death and disease--with nonfiltered cigarettes, it is 100 percent; with filtered cigarettes, it is 90 percent; and with Orbs, it is 1 percent--isn't it perverse and unjust not to allow the American consumer to have this product to switch from cigarettes? I think the answer to the question has already been answered.

I yield the floor.

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

Mr. President, I ask unanimous consent to be recognized for up to 30 minutes.