Floor Statements

Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand adjourned until 10 a.m., later today, Thursday, June 7; that later today, on Thursday, following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, and the time for the two leaders reserved for their use later in the day; that the Senate then resume consideration of S. 1348 and there then be an hour of debate equally divided and controlled between the two leaders or their designees for debate to run concurrently with respect to the Coburn amendment No. 1311, as modified, and the motion to invoke cloture on the substitute amendment; that no amendments be in order to the Coburn amendment prior to the vote; and that upon the use or yielding back of time, the Senate proceed to vote in relation to the Coburn amendment No. 1311, as modified; that upon disposition of the Coburn amendment, without further intervening action or debate, the Senate proceed to vote on the motion to invoke cloture on the substitute amendment; that Members have until 10:30 a.m. to file any germane second-degree amendments.

Mr. President, if there is no further business today, I now ask unanimous consent that the Senate stand adjourned under the previous order.

Madam President, I ask unanimous consent to speak for 10 minutes as in morning business.

Madam President, in the last few days, I have come to the floor to speak about reform of our broken health care system: how to make that system run better, so that tens of billions of dollars are not wasted every year, so we no longer lose as many as 100,000 Americans every year to avoidable medical errors, so that we no longer spend vastly more of our GDP every year than any other industrialized nation for poorer health care outcomes.

I believe three central things need to be reformed. One is improving the quality of care in ways that drive down costs. I spoke about that on Tuesday and used the example of an intensive care unit reform in Michigan that saved $165 million in 15 months and saved over 1,500-plus lives. We need to encourage a lot more of that. The second major reform we need is of health information technology, and I spoke yesterday about the dire state of information technology in health care today-the Economist magazine reported that the health care industry was the worst of any American industry except the mining industry and the significant savings we could generate from expanding our use of health information technology. The RAND Corporation predicted that adequate health information technology would save us from $81 billion to $364 billion per year. We need desperately to capture those savings.

Today, I want to talk about the third piece of this reform: repairing our health care reimbursement system, the way we pay for health care, so that the economic signals we send into the system produce the care we want. Improving quality of care will be an uphill struggle until our payment system rewards it. Health information technology will lag behind other industries until the economics of investing in it makes sense for participants in the health care sector.

These problems can each be fixed, but the repair will work better if the three solutions proceed together, not necessarily as one, but staying close, because they are mutually reinforcing.

The payment system for health care expenditures today sends all the wrong messages: it rewards procedures rather than prevention; it rewards office visits more than email contacts; it neglects best practices and discourages innovation. To a large degree, the system has been co-opted by today's unfortunate business model for health insurance. This is a business model which seeks first to cherry-pick the healthy customers and abandon the sick ones, second to try to deny coverage if a customer does get sick, and third to try to deny claims whenever their sick customer's doctor tries to send in the bills. Health care economics gets in the way of the change we need, gets in the way of improved quality of care, gets in the way of investment in information technology and illness prevention, and gets in the way of lowered costs.

The problem is best exemplified by a tale from a book called ``Demanding Medical Excellence'' by Michael Millenson. Northfield, MN, Madam President, is a town I am sure you know. It is a town of only a few thousand people, but it was home to four very innovative doctors at Family Physicians of Northfield. They discovered they could reduce the average treatment cost of a urinary tract infection from $133 to only $39, a savings of nearly 70 percent, by changing their practice pattern. Instead of doing an office examination, a complete urinalysis and culture, sensitivity studies for antibiotics, prescribing ten days of antibiotics, and a follow-up culture, they attained the same results with a phone conversation with a patient, a complete urinalysis, and a prescription for three days of antibiotics. But pretty soon, the Family Physicians at Northfield were so good at treating their patients--for urinary tract infections and other diagnoses--that their

waiting room was empty. As a reward for their good work, the practice lost so much revenue, from never-performed lab tests and empty appointment calendars that, in 1995, Family Physicians of Northfield, was forced to close. These doctors were taught a harsh, and perverse, lesson by our present health care system, and that lesson is: reduce costs and improve care, and you will be punished.

In Rhode Island, our hospitals are pursuing quality improvement projects in every intensive care unit in the state, modeled on the Michigan program that saved $165 million in 15 months and over 1,500 lives as well. The Rhode Island intensive care unit program had a significant hurdle to overcome, however: the cost was expected to be $400,000 annually per intensive care unit, and the hospitals had to pay it. The savings were estimated to be $8 million, but those savings would not go back to the hospitals. The savings went to payers. So, for its $400,000 invested, a hospital actually stood to lose money, from shorter intensive care unit stays and fewer complications, so fewer procedures to remedy the complications. Truly pushing that quality envelope, and striving for zero tolerance in infections and errors, was against the hospital's best economic best interests. It took the special, collegial relationships developed within our Rhode Island Quality Institute to solve this payment dilemma between our hospitals and insurers.

A similar analysis pertains to prevention investments. The payer has to shoulder 100 percent of the cost today, but the savings in forestalled illness might not occur for years. Maybe by then the customer will be some other insurer's customer, then maybe Medicare's. If you are the insurer, why take the chance and assume that cost, if the savings will not accrue to you?

There are many ways to repair perverse incentives in the way we pay for health care, but one that makes sense to me and uses existing infrastructure would be the following. Let medical societies and specialty groups, who create ``best-practices'' within their specialty, submit those best practices--including cost-effective prevention programs--for approval by local health departments. If, after suitable administrative procedures, the best practices are approved, reward the effort by differentiating, in Medicare and Medicaid reimbursement rates, between care that follows the local best practices and care that does not. Reward the effort by forbidding any insurer operating in interstate commerce--any health insurer--from using ``utilization review''--that is their word for denying payment--for care that is delivered within these approved best practices. Require them to pay all those claims, in which the provider followed best practice protocols, within 30 days.

The legislation I have prepared will do just that.

This legislation sets a lot of good forces in motion. It encourages development and dissemination of best practices in medicine. It encourages doctors to follow those best practices, and discourages the wide and unjustifiable variations in medical treatment evident now. It encourages a sensible one-time debate in a professional, administrative forum at the time approval or amendment of the best practices is sought, and it discourages the wildly expensive payment battle now fought, claim by claim, between insurers and providers. I know from my experience as the insurance commissioner for Rhode Island how much time and money insurers and providers spend in claims administration. Studies have estimated that $20 billion is spent every year in this bitter and expanding arms race, both by insurers seeking to deny claims and doctors seeking to defend their claims, and every dollar of that fight is wasted. Doctors in Rhode Island tell me regularly that as much as half of their staff is engaged in this billing battle. Instead of in providing health care for their patients.

My legislation will engage the medical community in a thoughtful way. It will bring best practices to the forefront. There is a lot of discussion about comparative efficiency in health care today, debates over which treatments and methods are most effective--this legislation will provide a truly meaningful forum for those discussions. An example: Recently, the New York Times reported on a 40-step protocol implemented for bypass surgery patients by Geisinger Health Systems, which right now can be implemented only within Geisinger hospitals. This bill would allow these protocols, if pursued by the local cardiology association and approved by the State health department, to get favorable reimbursement statewide. I hope this bill will help the health insurance industry look to a new business model where your insurance company is looking out for you, is your advocate when you are sick, reminds you when testing or prevention is appropriate, helps you find the best practices or care, where your insurer is your navigator and your adviser in the health care system instead of your adversary.

This legislation can help repair our health care system. It puts the priorities and incentives in the right place so market forces are unleashed in our favor. It uses existing structures, just in new ways. It is designed and mandated to be budget neutral. And it does no harm if it does not work right away, if doctors do not take it up, if health departments will not hold the hearings, no harm is done But let's give it a chance to work.

Let me close by saying how important this moment is. I serve on the Budget Committee and have heard the troubling facts about what the health care system will cost us in years to come. By the year 2050, the combined cost of Medicare and Medicaid will rise to eat up 22 percent of our gross domestic product. Further, as my friend Budget Chairman Conrad has noted, the 75-year net present value of the unfunded liabilities in Social Security and Medicare equal $38.6 trillion, and $33.9 trillion of this total is for Medicare alone. The health care system is eating up our economy, costing twice as much as the European Union average. There is more health care than steel in Ford cars and more health care than coffee beans in Starbucks coffee. It is significantly hampering our competitiveness. It is the number one cause of American family bankruptcies.

By acting now, by acting in advance, by bringing some sensible economics and some sensible management and some helpful incentives to our health care system, we can start to grapple with its cost. And if we take on that fight here and now, while time is still on our side, we can reduce costs in the best possible way: by improving the quality of care, by making Americans healthier, by preventing illness before we have to treat it, by avoiding expensive and often fatal medical errors, by giving our doctors the decision support other professionals have had for decades, in sum, by making our health care system better. Considering the stakes, shame on us if we fail in that duty.

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

Mr. President, I return to the floor to continue my series of remarks on health care reform.

As I have said, I recognize the difficulty of figuring out a better way to finance our health care system, a better way than part employer insured, part Government insured, and part uninsured. I am committed to working to achieve universal coverage for all Americans, but we have to recognize also that the underlying health care system itself is broken. It is broken in the way it delivers and pays for care, it creates massive costs and poor health outcomes, and those massive costs and poor health outcomes make the financing and access problems actually harder to solve. So I wish to focus now on system reform to give us a better operating health care system.

We have to start by recognizing that America's health care information technology is decades behind where it could be. The Economist magazine has described it as the worst in any American industry except one--the mining industry. As a result, we are losing billions and billions of dollars to waste, to inefficiency, and to poor quality care. Ultimately, and tragically, lives are lost to preventable medical errors because health care providers do not have adequate decision support for their decisions on treatment, medication, and other care.

Let us stop on the financial question for a moment. Some pretty respectable groups have looked at health information technology to see what they think it would save in health care costs, and here is what they report: RAND Corporation, $81 billion, conservatively, every year; David Brailer, former National Coordinator for Health Information Technology, $100 billion every year; and the Center for Information Technology Leadership, $77 billion every year. If you average the three, you get $86 billion a year. For RAND, the number I quoted was a conservative number. Their high-end estimate was a savings of $346 billion a year. So there is a huge amount of money at stake.

The question is: Are we making the investments we need to capture these savings? Well, say you are a CEO, and one of your division heads comes to you with a proposed investment to reduce production costs in your facility by $81 billion a year. How much would you authorize her to spend to achieve those savings? I suspect it would be quite a lot of money. Well, here is what we authorized ONCHIT to spend this year--the Office of National Coordinator of Health Information Technology. This Congress authorized $118 million. That is about 14 hours' worth of the $81 billion in annual savings conservatively estimated by RAND. Would it not be worth spending more to capture those savings?

You say, well, maybe the private sector will spend it for us. But look at the way our complex health care sector is divided into doctors, hospitals, insurers, employers, nurses, patients, and more. Which group do you expect to make the decisions about a national health information technology system? And they are not homogenous groups. Whom within them do you expect to make decisions about a national health information technology system?

Go back to imagining that you are a CEO. You want to install an IT system in your corporation. Your corporation has five major operating divisions. Would you pursue your corporate IT solution by waiting for each division to try to build the entire corporate IT system, without even talking to each other? Of course not. It would be a ridiculous strategy. None of your divisions would want to go first. Each division would like to wait and be a free rider on the investment of another division. Each one would face what I call the ``Betamax risk,'' that they will invest in a technology that proves not to be the winning technology, and each would have to figure out how to pay for the system, the whole system, out of only its own share of the gains. The result is the capital would not flow efficiently.

This pretty well describes where we are in America on health information technology. So here, in Washington, we have a job to do. First, we have to set some ground rules. In the old days, when our Nation was building railroads, the Government had a simple job to do: It had to set the requirements for how far apart the rails were going to be. That way a boxcar loading in San Francisco could get to Providence, RI, and know it could travel the whole way on even rails. The development of the rail system would never have happened without those ground rules.

In health information technology, there are ground rules we need to decide on, too, to get this moving--rules for interoperability among systems, rules for confidentiality and security of data, rules for the content of an electronic health record. All of that is the job of Government to organize.

The second job is to get adequate capital into the market. Software costs money. Hardware costs money. Entering data costs money. Most important, the disruption to the work flow of hospitals and doctors costs time and money, and it takes time and attention away from patients. So developing adequate health information technology is not going to be easy or cheap. But for savings of $81 billion a year, maybe $346 billion a year, it is worth a big effort.

So how do we get that capital flowing? Well, one could argue the way to solve this is to treat the health information highway similar to the Federal highway system--a common good that we pay for with tax dollars because it is so valuable to the economy to get goods cheaply and reliably from point A to point B. So maybe we should pay for this through taxes, similar to the national highway system. But a highway is pretty simple technology. Because the health information network is so much more complex, and because I think we need a lot more market forces at work and a lot more initiative and profit motive than the Federal highway funding model provides, I looked around for another model, a model that provides the central decisionmaking that is required to get the boxcars rolling, a model that provides access to capital, and a model that captures the vibrancy of the private sector.

I found one. We have actually been here before, or pretty close anyway. There was, some time ago, a new technology. Similar to health information technology, it would transform an industry; similar to health information technology, it would lower costs and expand service; similar to health information technology, it was a win-win situation for business and for consumers.

But the technology was, like health information technology, stuck in a political and economic traffic jam.

Our President at the time came up with the solution. The technology was communications satellites. The President was John F. Kennedy. The solution was COMSAT.

The COMSAT legislation broke the logjam. The COMSAT legislation created a publicly chartered corporation with a private board that raised the capital, launched the satellites, was profitable and successful for decades, and eventually merged into Lockheed-Martin--a true public-private success story.

My proposal, in a nutshell, is to create a not-for-profit, modern COMSAT for health information technology. Because of the complexity of the health care information puzzle, legislation is

too blunt an instrument to drive the details. But an organization like this can be flexible enough to meet market demands and can maintain the expertise to develop the details as the plan develops. American leaders could be recruited from the private sector to lead this board--CEOs from the IT sector, America's top retailers, manufacturers, and service providers; the champions of health information technology in the medical community; enlightened consumers and labor representatives.

I ask my colleagues to think of the caliber of just a few of America's leaders who have spoken to them about this issue, or spoken out publicly: Andy Stern at SEIU, Jim Donald at Starbucks, John Chambers at Cisco, or Lee Scott at Wal-Mart.

In conclusion, enormous cost savings, new technological horizons, empowerment of patients, better quality of care, more convenience and efficiency, and lives saved by improved information, error reduction, and decision support--what a rich area this opens up for American technological companies, for American health care providers, for American patients, and for American manufacturers now drowning under health care costs, if only we can break the logjam blocking this future now.

I hope my colleagues will consider seriously my legislation, proposing a nonprofit, privately led corporation that will help open the doors to that future.

I yield the floor.

Mr. President, on Tuesday, I came to the Senate floor to present ideas on health care reform, particularly on the problem of fixing the internal operations of our broken health care system so that it runs better, at less cost, and with improved care.

I suggested that three fundamental things are wrong with our health care

system: One, it doesn't adequately provide quality care or invest in prevention; two, the system doesn't have adequate information technology infrastructure; and, three, the way we pay for health care sends perverse price signals that misdirect market forces.

I am here today to speak about quality reform, about those areas in our health care system where improving the quality of care will lower the cost--let me repeat that--where improving the quality of care will lower the cost.

There is a lot at stake, in money and in lives. Up to 100,000 Americans die every year as a result of unnecessary and avoidable medical errors. By some measures these outcomes are even getting worse. A 2003 article published in the New England Journal of Medicine revealed that the rate of hospital-acquired infections has actually increased over 36 percent since 1999. This increase has occurred even though we have shortened the average length of stay in a hospital and decreased the number of inpatient surgeries. In other words, infection rates rose that much even though the opportunities for exposure decreased.

Pennsylvania has recently chronicled hospital-acquired infection data for its 168 general acute care hospitals. The numbers are staggering: 19,154 patients acquired an infection while in the hospital in 2005, resulting in average commercial insurance payments of $45,601 higher than for patients who did not contract infections. That is big money that could be saved.

Remember the example I gave on Tuesday from Michigan's intensive care unit reform. In a 15-month span between March 2004 and June 2005, the project saved 1,578 lives. It saved 81,020 days patients would otherwise have spent in the hospital, at great expense; and it saved over $165 million just in a 15-month period.

However, it is not easy to pursue these quality reform initiatives. Funding is scarce, collaboration is required in an environment where people are pretty mad at each other, and the economics are perilous. When doctors and hospitals go to the trouble to figure out quality reform and implement it and pay for it, the effect on them is lowered revenues. Investing time and effort and capital in projects that reduce your revenues is not a great business model, but that is our health care system.

Thankfully, efforts to pursue quality reform--in all these indicated States and locations on the chart--are flickering to life around the country, in local initiatives such as the Puget Sound Health Alliance in Washington, the Utah Health Information Network, the Indianapolis Network for Patient Care, and our own Rhode Island Quality Institute. These groups have gathered health care industry players together to seek the holy grail of improved care at lower cost.

The fact that this is happening is itself a small miracle. The health care system is acrid with soured, angry relationships. When I was attorney general of Rhode Island, negotiations took place between one of our major hospital chains and our major health insurer in my office. It was not because I was a great mediator or that there was a role for the attorney general in this, it was simply because they were so angry with each other that I needed to calm things down and keep them in the room so the negotiations could proceed. For a bunch of reasons, through our Government policy to shortchange providers, through the perverse reward structure of our health care system, and our HMO experiment, we have encouraged combat among hospitals, doctors, and insurers, each trying to push their costs onto somebody else rather than working together for the common good.

So these local health care quality initiatives from this toxic climate are as marvelous as that spontaneous Christmas truce in World War I, when the soldiers began singing Silent Night across the barbed- wire wasteland, as they came out from the cold, muddy trenches to share cigarettes and schnapps with the enemy, men they had just been mustard- gassing and machine-gunning.

Let me tell you about the Rhode Island Quality Institute. By the time I became attorney general, I was already deep into health care, having served as insurance regulator, hospital trust administrator, fraud prosecutor, and health care reformer. I had seen firsthand the anger and the vitriol in the system. I had been successful in reforming the workers' compensation system and was optimistic about what sensible reforms could do to repair a broken administrative system. I saw common ground on how quality could lower cost. In 2001, I began to pull doctors, nurses, insurers, regulators, pharmacists, academics, and hospital administrators together. Over many months, we developed a concept of a statewide collaboration that would focus on producing significant, measurable improvements in health care quality, safety, and value in Rhode Island. The Rhode Island Quality Institute was born.

Since then we have made significant progress in e-prescribing, electronic health records, ICU infection rates, and health information interoperability. This happened because the Quality Institute is a place where health care leaders can work through health care problems, despite economic signals that punish them for doing the right thing.

For example, in Rhode Island, our hospitals are pursuing a quality improvement project in every intensive care unit in the State, modeled on the Michigan program. The Rhode Island ICU program had a significant hurdle to overcome, however. The cost was expected to be $400,000 per year to be borne by the hospitals. The savings, estimated to be $8 million per year, went to the payers. For its $400,000 invested, a hospital actually stood to lose money from shorter intensive care unit stays and fewer procedures.

For hospitals, truly pushing that quality envelope and striving for zero tolerance in infections in errors was economically self-abusive behavior. It took the Christmas truce relationships developed within the Rhode Island Quality Institute to overcome that obstacle.

Now similar things are happening all over the country, in little flickering beginnings of reform. The easiest and best way to promote quality reform that lowers cost is to feed, with Federal grants, a little kindling into these flickering flames; to tend them gently with Federal encouragement and support, to network them together to share energy and information and ideas, to have Federal officials clear away regulatory obstacles to their initiatives, and to report on the best and brightest ideas and successes that emerge--in a nutshell, to create a MacArthur genius grant program to encourage these efforts and to clear the way for them through the bureaucracy.

My legislation proposes a Federal grants program to do just that. A little money will go a long way. The CVS/Caremark charitable trust just guaranteed the Rhode Island Quality Institute $500,000 per year for the next 5 years, a great expression of business support and confidence, and it has made a world of difference. Compare that half-million-dollar yearly investment to the savings from the Keystone project in Michigan over a little more than a year, 15 months--$165 million. What if every Quality Institute-type organization got a half million dollars? There are somewhere in the neighborhood of 50 such organizations around the country now. The total savings they can generate could be hundreds of millions, billions of dollars perhaps, based on a yearly investment of perhaps $25 million.

Don't forget, it is not just money. The Keystone project saved over 1,500 lives. Quality reform is already on the march in local communities. To make a significant difference, we need do no more on the Federal level than support these initiatives, encourage new ones, transmit best practices and ideas, and, when necessary, secure waivers for them to help realize the promise of quality reform in both lives saved and dollars saved.

I will close today by noting that if we can do three things together--quality reform, health IT investments, and reimbursement alignment--they will reinforce each other and compound the beneficial effects. Remember, health care is a dynamic system and cannot just be told what to do. We have to identify the problems, find their causes, and repair them. That is not a partisan or even a political effort; it is a repair job, and it has no more a Democratic or a Republican nature to it than an engine tune-up or a plumbing repair. We should work together on

this issue to get it right. Hundreds of billions of dollars are at stake, and terrible consequences await American families and businesses as health care costs mount if we fail in our duty. While we still have the time before the economic, fiscal, and health consequences become too urgent for deliberate action, let us not fail in our duty. Let us grasp the controls of change.

I yield the floor.

Mr. President, first of all, let me take a moment to acknowledge the senior Senator from

Pennsylvania, the Senator from Arizona, the Senator from Massachusetts, Mr. Kennedy, for their leadership and Herculean efforts on this legislation. In the spirit of praise I heard just a moment ago from the Senator from New Mexico on bringing judiciousness to this process, I rise in opposition to amendment No. 1166 offered by the very distinguished Senator from Iowa, Mr. Grassley. The amendment would eliminate judicial review of removal proceedings where revocation of a visa is the sole ground for removal. That may sound technical and complex, but the amendment is actually quite simple in the way it works. It means that if the State Department should wrongly decide to revoke a visa, whether through bureaucratic error or misjudgment, and then the Department of Homeland Security tries to remove you from the United States, you have no opportunity to have your case heard in Federal court; the case ends at the Board of Immigration Appeals.

It means a dissident lawfully admitted to the United States on a visitors visa could find himself giving a speech one day and then the very next day learn the Department of State revoked his visa based on false information provided by his home country. The dissident may even risk punishment upon return to his home country. But there will be no means to fight his removal in Federal court. The amendment means that when DHS invokes the ideological exclusion provision which allows the Government to exclude anyone from the country who endorses or espouses terrorism or persuades others to support terrorism, there is no judicial check to make sure that is, in fact, what is going on, and that great power is not being abused.

As U.S. district judge Paul Crotty wrote in an opinion last year, rejecting the Government's efforts to exclude a Swiss citizen who had a visa to teach religion, conflict, and peace-building at Notre Dame University.

While the Executive may exclude an alien for almost any

reason, it cannot do so solely because the Executive

disagrees with the content of the alien's speech and

therefore wants to prevent the alien from sharing this speech

with a willing American audience.

That is exactly the kind of case which would be barred by the amendment we are debating. What is the basis for this change? How can it be that review by a Federal court under these circumstances is such a serious burden to the Government that it must be eliminated? Are the courts clogged with these cases? Is it too much to require DHS to submit to a modicum of checks and balances before it exerts its power to expel someone under these circumstances? Judicial review of visa revocation is already severely limited--so severely limited, in fact, that the subject of this amendment is the only area remaining in which somebody can still seek judicial review of a removal order.

Too often, we are obliged to defend basic principles of American democracy--in other circumstances, the great writ of habeas corpus; here, the core principle of separation of powers and judicial review. We should not trample lightly on our founding principles.

I have said over and over that the cornerstone of any comprehensive immigration package must be strengthened security at our borders, enhanced workplace enforcement, and a sensible, practical solution for the 12 million people already living illegally in this country. But strong security means smart security, and smart security must include respect for the administration of justice, including our great American system of checks and balances, and a realization that sometimes the Government gets it wrong.

This amendment, by further limiting the authority of Federal courts to hear removal cases, goes too far. I ask my colleagues to oppose it.

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

Madam President, I would like to speak for 15 minutes.

I yield the floor.

Madam President, I rise today because I will be introducing my first bills as a Member of this esteemed body; legislation that I hope will provide a helpful step forward as we address one of the most significant challenges this Senate faces, reforming America's broken health care system.

I have heard from countless Rhode Islanders who have struggled to pay for their health care and who live in fear of losing coverage on which they and their families depend. I have met nurses frustrated and heartbroken that they must spend so much time coping with the paperwork and so little time caring for patients. I have talked with families whose lives and health were shaken by terrifying medical errors, lost paperwork, missed diagnoses that should have been totally avoided.

I believe our current health care system is too complex and costs so much, yet so often does not provide patients with the quality of care they should have. It does not have to be this way. I have seen firsthand that we can make the system work better for everyone, we can cut costs, save lives, and improve the quality of the health care we receive, a critical step toward ensuring that all Americans have health care they can afford.

In Rhode Island, we have been working and experimenting for years to find solutions to many of these challenges. I have been privileged to be part of much of that work, most directly when I founded the Rhode Island Quality Institute to focus on quality reforms in health care.

While we have a long way to go, so far we have been successful. It is that Rhode Island experience that I bring to you today. It is Rhode Island's good work that I hope will provide a good example.

Right now our health care system is a mess, such a mess that we should hesitate to call it a health care system. It yields unsatisfactory results at vast expense. What I wish to talk about today is not how you finance the health care system--that is an important issue--but it is a different issue. I don't even want to talk about how you get all Americans covered by our health care system. That is another important issue, but that is not the subject today.

The subject today is the issue of how the system itself runs, how it operates, put bluntly, how badly in America it runs. If we can reduce the cost of the underlying system by improving its performance, it will make solutions easier for financing our health care system and for finding a way to make sure every American gets health care coverage. Our health care system is a mess. The number of uninsured Americans is climbing and will soon reach 50 million. The annual cost of the system exceeds $2 trillion every year, and that number is expected soon to double. We spend more of our gross domestic product on health care than any other industrialized country in the world, 16 percent. That is double the European Union average.

There is today more health care in Ford cars than there is steel. There is more health care in Starbucks coffee than there are coffee beans. Worse still, for all this money we spend, we get a mediocre product. We have the best doctors, the best nurses, the best procedures and equipment, the best medical education in the world. Yet the system produces mediocre results. As many as 100,000 Americans are killed every year by unnecessary and avoidable medical errors. That is just the fatalities. Think how many people have to stay longer in the hospital and run up costs.

Life expectancy, obesity rates, and infant mortality rates are much worse than they should be in a country such as ours. We fail by most international measures. The system itself does not work. Hospitals are going broke. Doctors are furious, and paperwork chokes the system.

Quarrels between the providers and the payers drive up costs, while potential savings in billions of dollars are left lying on the table. More American families are bankrupted by health care costs than any other cause. It is a system in crisis.

I urge my colleagues to consider this point too. If we do not fix this system now, while we still can, if we don't get these savings now, then we are going to be forced to consider very tragic choices in the future: Cutting coverage for seniors now on Medicare, throwing children off S-CHIP or pushing more and more out-of-pocket costs onto families who need Medicaid in their struggle to get by.

Those will be tragic choices, awful choices, ones I hope we never have to deliberate. But if we end up having to make these choices because today we failed to do our duty, then shame on us.

I believe what is wrong with our system can be identified. The reasons for its failures can be identified. The causes of those failures can be corrected, and the failings can be cured.

In the days to come, I will speak at greater length on three critical areas of reform, one by one, and advance proposals for each one that will help provide a cure.

Today, I wish to highlight all three of the major failures, how they combine to worsen each other and keep our system broken, and how reforming those three areas can reinforce each other and repair our broken system.

Left unattended, these three conditions will continue to degrade our system. Properly reformed, they will begin to improve it. This is because what we are dealing with, in a nutshell, is market failure. Market forces are bottled up, logjammed, conflicted, and misdirected to push the health care system in a bad direction.

I trust market forces and I believe in market forces, but I see it as our job in Government to create the environment in which market forces operate in a healthy way to serve the public interest.

That is our job. It always has been. Where that healthy environment for market forces does not exist--which is the case right now in our health care system--Government must act. The market failure in health care has three core components: One, the American health care system does not optimize investment in quality of care, even where--indeed, particularly where--that quality investment in improving care would also lower costs; two, the system does not have the information technology infrastructure to support the improvements we need; three, the way we pay for health care sends perverse price signals that steer us away from the public interest.

These problems can each be fixed, but fixing each in isolation will not yield the change we need. Similar to three climbers roped together for an ascent, the three solutions need to track with each other, not necessarily in lockstep but staying close because each one reinforces the other.

Let me tell a story about each one of those problems to illustrate the three points. Let's look at the area where improved quality of care would lower costs. That intersection, where improved quality of care and lower costs converge, should be our Holy Grail. A good example comes out of the Keystone Project in Michigan, home to Senators Levin and Stabenow.

The Keystone Project went into a significant number of Michigan intensive care units to improve quality and reduce line infections, respiratory complications, and other conditions that are associated with intensive care units. In a 15-month span, between March 2004 and June 2005, the project saved 1,578 lives, 81,020 days patients would otherwise have been spent in the hospital, and it saved--in that 15 months--over $165 million.

The Rhode Island Quality Institute has taken this model statewide in Rhode Island, with every hospital participating. Infections in patients with catheters decreased 36 percent from the

first quarter of 2006 to the fourth quarter. Eleven out of twenty-three participating intensive care units had zero infections for 12 months. Savings from the initiative are on track to produce $4 million annually. That is pretty good money in Rhode Island.

What is true in intensive care units in Michigan and Rhode Island is also true far more broadly in health care. There are many areas where significant savings can be achieved by making care better. There could be initiatives similar to Keystone throughout the health care sector. They do not necessarily have to be reforms of existing procedures and practices because Keystone was. Quality improvements, quality reform, could well involve improvements in prevention and detection of illness, stopping it before it even gets to the hospital. There are vast and unexplored horizons out there, rich with opportunity, and the Keystone story is one example of how improved quality of care can lower costs and save lives. This takes us to the second story, this one about the reimbursement problem. Why isn't this quality reform happening spontaneously all over the country if these big savings are there? Think of Michigan, $165 million in 15 months in one State. That is big money.

Why isn't it being pursued? Why aren't we all doing this? Well, primarily because the economics of health care pays providers not to and punishes providers who try. When a group of hospitals in Utah began following the guidelines of the American Thoracic Society for treating community-acquired pneumonia, significant complications fell from 15.3 percent to 11.6 percent, inpatient mortality fell from 7.2 to 5.3 percent, and the resulting cost savings exceeded half a million dollars a year. But net operating income of participating facilities dropped by over $200,000 per year because treating the healthier patients was reimbursed at roughly $12,000 less per case.

In Rhode Island, when we got into this intensive care unit reform, the Hospital Association estimated a $400,000 cost for $8 million in savings, a 20-to-1 return on investment. But all the savings went to the insurers and the payers, and the costs came out of the hospitals' pockets. Do you know a lot of businesses that invest money in order to reduce their revenue? I don't. How many businesses would spend $400,000 in cash to lose $8 million in revenues every year? With reimbursement incentives such as the ones we have, it is no wonder that quality investments face an uphill struggle.

The final problem is our health care information technology, which is inexcusably underdeveloped and underdeployed. It has been described by the Economist magazine as the worst information technology system in any American industry except one, the mining industry. We are leaving massive savings in health care costs unclaimed as a result.

Some pretty respectable groups have looked at health information technology to see what an adequate system would save in health care costs, and here is what they report: Rand Corporation, $81 billion per year conservatively. David Brailer, the former National Coordinator for Health Information Technology, $100 billion per year. The Center for Information Technology Leadership, $77 billion per year. That is a lot of savings to leave sitting on the table, savings desperately needed by American businesses and American families.

Here is my third story, about a courageous and passionate doctor in Rhode Island trying to build an electronic health record for patients in our State. By the way of context, Rhode Island may be the lead State in the country at developing health information technology. We have Patrick Kennedy in the House, our Representative, who has been an absolute leader on this issue; Lifespan and other hospitals are leaders in electronic physician order entry; the Rhode Island Quality Institute is a leader in e-prescribing, electronic health records and health information exchange; Rhode Island Blue Cross is beginning to fund innovations; all the local Rhode Island health care folks are active in this. It is very impressive. I mean no criticism by telling this story, only to illustrate what an uphill struggle it is.

The lead on developing electronic health records in Rhode Island is being taken by a very frustrated doctor, Dr. Mark Jacobs, who put his practice on hold, went out and looked at what was available, found an e-clinical works platform, had it modified to suit what he thought would be more useful for his needs, and is now raising capital and trying to recruit his colleagues to get around that system and get it up. It is his passion, and he is dedicating himself to it with energy and conviction.

What Dr. Jacobs is doing is heroic, but if you went to any business school and if they asked you, what is the best way to seize that $81 billion a year in savings that RAND Corporation has said is out there, and you had said: Well, we are going to wait until a doctor gets so frustrated he is willing to give up his practice and go out and try to learn about health care technology and do it on his own, you would be laughed out of that business school classroom. They wouldn't just say you flunked the course, they would suggest you should maybe look at another livelihood. But that is exactly the system we have right now.

If a truckdriver were to go out with a pick and shovel building bits of the interstate highway for us, that would be pretty heroic and noble. But all the way back to Dwight Eisenhower, people in Government knew that would be a pretty nonsensical way to finance the Federal highway system.

We have work to do in these three areas: fixing our information technology to increase efficiency and generate savings; improving health care quality and prevention in ways that lower costs; and repairing the reimbursement system so it does not discourage those reforms but encourages and rewards them.

In the coming days, I will expand on each of these problems, and I will propose solutions in those three areas that will unleash market incentives in positive directions. As I conclude, my message is this: The health care system that underlies all our health care financing and coverage problems is itself broken. The underlying health care delivery system is itself broken. It is administrative and bureaucratic machinery, but it is still machinery. It needs to be repaired the way any broken machinery does. Fixing it, however, will reduce costs, improve care, and make a badly operating system run better and move us a critical step forward to making sure every American family has access to health care they can afford.

I sincerely hope to work with all of my colleagues on solving this. Please think of it this way: If your car is not running right, there is no Republican or Democratic way to tune it up. There is just getting it working. If your plumbing is jammed and water is flooding out, there is not a Republican or Democratic way to fix that. It is either flowing properly or it isn't. If your electric system is sparking and short circuited, again, there is no Democratic or Republican way to solve that problem. It is working right or it is not. Our health care system is not working right, and it needs to be fixed. Because the health care system is a dynamic system, you can't tell it what to do. You have to take the trouble to identify what is wrong, identify why it is wrong, and correct the cause.

Madam President, I rise today because I will be introducing my first bills as a Member of this esteemed body; legislation that I hope will provide a helpful step forward as we address one of the most significant challenges this Senate faces, reforming America's broken health care system.

I have heard from countless Rhode Islanders who have struggled to pay for their health care and who live in fear of losing coverage on which they and their families depend. I have met nurses frustrated and heartbroken that they must spend so much time coping with the paperwork and so little time caring for patients. I have talked with families whose lives and health were shaken by terrifying medical errors, lost paperwork, missed diagnoses that should have been totally avoided.

I believe our current health care system is too complex and costs so much, yet so often does not provide patients with the quality of care they should have. It does not have to be this way. I have seen firsthand that we can make the system work better for everyone, we can cut costs, save lives, and improve the quality of the health care we receive, a critical step toward ensuring that all Americans have health care they can afford.

In Rhode Island, we have been working and experimenting for years to find solutions to many of these challenges. I have been privileged to be part of much of that work, most directly when I founded the Rhode Island Quality Institute to focus on quality reforms in health care.

While we have a long way to go, so far we have been successful. It is that Rhode Island experience that I bring to you today. It is Rhode Island's good work that I hope will provide a good example.

Right now our health care system is a mess, such a mess that we should hesitate to call it a health care system. It yields unsatisfactory results at vast expense. What I wish to talk about today is not how you finance the health care system--that is an important issue--but it is a different issue. I don't even want to talk about how you get all Americans covered by our health care system. That is another important issue, but that is not the subject today.

The subject today is the issue of how the system itself runs, how it operates, put bluntly, how badly in America it runs. If we can reduce the cost of the underlying system by improving its performance, it will make solutions easier for financing our health care system and for finding a way to make sure every American gets health care coverage. Our health care system is a mess. The number of uninsured Americans is climbing and will soon reach 50 million. The annual cost of the system exceeds $2 trillion every year, and that number is expected soon to double. We spend more of our gross domestic product on health care than any other industrialized country in the world, 16 percent. That is double the European Union average.

There is today more health care in Ford cars than there is steel. There is more health care in Starbucks coffee than there are coffee beans. Worse still, for all this money we spend, we get a mediocre product. We have the best doctors, the best nurses, the best procedures and equipment, the best medical education in the world. Yet the system produces mediocre results. As many as 100,000 Americans are killed every year by unnecessary and avoidable medical errors. That is just the fatalities. Think how many people have to stay longer in the hospital and run up costs.

Life expectancy, obesity rates, and infant mortality rates are much worse than they should be in a country such as ours. We fail by most international measures. The system itself does not work. Hospitals are going broke. Doctors are furious, and paperwork chokes the system.

Quarrels between the providers and the payers drive up costs, while potential savings in billions of dollars are left lying on the table. More American families are bankrupted by health care costs than any other cause. It is a system in crisis.

I urge my colleagues to consider this point too. If we do not fix this system now, while we still can, if we don't get these savings now, then we are going to be forced to consider very tragic choices in the future: Cutting coverage for seniors now on Medicare, throwing children off S-CHIP or pushing more and more out-of-pocket costs onto families who need Medicaid in their struggle to get by.

Those will be tragic choices, awful choices, ones I hope we never have to deliberate. But if we end up having to make these choices because today we failed to do our duty, then shame on us.

I believe what is wrong with our system can be identified. The reasons for its failures can be identified. The causes of those failures can be corrected, and the failings can be cured.

In the days to come, I will speak at greater length on three critical areas of reform, one by one, and advance proposals for each one that will help provide a cure.

Today, I wish to highlight all three of the major failures, how they combine to worsen each other and keep our system broken, and how reforming those three areas can reinforce each other and repair our broken system.

Left unattended, these three conditions will continue to degrade our system. Properly reformed, they will begin to improve it. This is because what we are dealing with, in a nutshell, is market failure. Market forces are bottled up, logjammed, conflicted, and misdirected to push the health care system in a bad direction.

I trust market forces and I believe in market forces, but I see it as our job in Government to create the environment in which market forces operate in a healthy way to serve the public interest.

That is our job. It always has been. Where that healthy environment for market forces does not exist--which is the case right now in our health care system--Government must act. The market failure in health care has three core components: One, the American health care system does not optimize investment in quality of care, even where--indeed, particularly where--that quality investment in improving care would also lower costs; two, the system does not have the information technology infrastructure to support the improvements we need; three, the way we pay for health care sends perverse price signals that steer us away from the public interest.

These problems can each be fixed, but fixing each in isolation will not yield the change we need. Similar to three climbers roped together for an ascent, the three solutions need to track with each other, not necessarily in lockstep but staying close because each one reinforces the other.

Let me tell a story about each one of those problems to illustrate the three points. Let's look at the area where improved quality of care would lower costs. That intersection, where improved quality of care and lower costs converge, should be our Holy Grail. A good example comes out of the Keystone Project in Michigan, home to Senators Levin and Stabenow.

The Keystone Project went into a significant number of Michigan intensive care units to improve quality and reduce line infections, respiratory complications, and other conditions that are associated with intensive care units. In a 15-month span, between March 2004 and June 2005, the project saved 1,578 lives, 81,020 days patients would otherwise have been spent in the hospital, and it saved--in that 15 months--over $165 million.

The Rhode Island Quality Institute has taken this model statewide in Rhode Island, with every hospital participating. Infections in patients with catheters decreased 36 percent from the

first quarter of 2006 to the fourth quarter. Eleven out of twenty-three participating intensive care units had zero infections for 12 months. Savings from the initiative are on track to produce $4 million annually. That is pretty good money in Rhode Island.

What is true in intensive care units in Michigan and Rhode Island is also true far more broadly in health care. There are many areas where significant savings can be achieved by making care better. There could be initiatives similar to Keystone throughout the health care sector. They do not necessarily have to be reforms of existing procedures and practices because Keystone was. Quality improvements, quality reform, could well involve improvements in prevention and detection of illness, stopping it before it even gets to the hospital. There are vast and unexplored horizons out there, rich with opportunity, and the Keystone story is one example of how improved quality of care can lower costs and save lives. This takes us to the second story, this one about the reimbursement problem. Why isn't this quality reform happening spontaneously all over the country if these big savings are there? Think of Michigan, $165 million in 15 months in one State. That is big money.

Why isn't it being pursued? Why aren't we all doing this? Well, primarily because the economics of health care pays providers not to and punishes providers who try. When a group of hospitals in Utah began following the guidelines of the American Thoracic Society for treating community-acquired pneumonia, significant complications fell from 15.3 percent to 11.6 percent, inpatient mortality fell from 7.2 to 5.3 percent, and the resulting cost savings exceeded half a million dollars a year. But net operating income of participating facilities dropped by over $200,000 per year because treating the healthier patients was reimbursed at roughly $12,000 less per case.

In Rhode Island, when we got into this intensive care unit reform, the Hospital Association estimated a $400,000 cost for $8 million in savings, a 20-to-1 return on investment. But all the savings went to the insurers and the payers, and the costs came out of the hospitals' pockets. Do you know a lot of businesses that invest money in order to reduce their revenue? I don't. How many businesses would spend $400,000 in cash to lose $8 million in revenues every year? With reimbursement incentives such as the ones we have, it is no wonder that quality investments face an uphill struggle.

The final problem is our health care information technology, which is inexcusably underdeveloped and underdeployed. It has been described by the Economist magazine as the worst information technology system in any American industry except one, the mining industry. We are leaving massive savings in health care costs unclaimed as a result.

Some pretty respectable groups have looked at health information technology to see what an adequate system would save in health care costs, and here is what they report: Rand Corporation, $81 billion per year conservatively. David Brailer, the former National Coordinator for Health Information Technology, $100 billion per year. The Center for Information Technology Leadership, $77 billion per year. That is a lot of savings to leave sitting on the table, savings desperately needed by American businesses and American families.

Here is my third story, about a courageous and passionate doctor in Rhode Island trying to build an electronic health record for patients in our State. By the way of context, Rhode Island may be the lead State in the country at developing health information technology. We have Patrick Kennedy in the House, our Representative, who has been an absolute leader on this issue; Lifespan and other hospitals are leaders in electronic physician order entry; the Rhode Island Quality Institute is a leader in e-prescribing, electronic health records and health information exchange; Rhode Island Blue Cross is beginning to fund innovations; all the local Rhode Island health care folks are active in this. It is very impressive. I mean no criticism by telling this story, only to illustrate what an uphill struggle it is.

The lead on developing electronic health records in Rhode Island is being taken by a very frustrated doctor, Dr. Mark Jacobs, who put his practice on hold, went out and looked at what was available, found an e-clinical works platform, had it modified to suit what he thought would be more useful for his needs, and is now raising capital and trying to recruit his colleagues to get around that system and get it up. It is his passion, and he is dedicating himself to it with energy and conviction.

What Dr. Jacobs is doing is heroic, but if you went to any business school and if they asked you, what is the best way to seize that $81 billion a year in savings that RAND Corporation has said is out there, and you had said: Well, we are going to wait until a doctor gets so frustrated he is willing to give up his practice and go out and try to learn about health care technology and do it on his own, you would be laughed out of that business school classroom. They wouldn't just say you flunked the course, they would suggest you should maybe look at another livelihood. But that is exactly the system we have right now.

If a truckdriver were to go out with a pick and shovel building bits of the interstate highway for us, that would be pretty heroic and noble. But all the way back to Dwight Eisenhower, people in Government knew that would be a pretty nonsensical way to finance the Federal highway system.

We have work to do in these three areas: fixing our information technology to increase efficiency and generate savings; improving health care quality and prevention in ways that lower costs; and repairing the reimbursement system so it does not discourage those reforms but encourages and rewards them.

In the coming days, I will expand on each of these problems, and I will propose solutions in those three areas that will unleash market incentives in positive directions. As I conclude, my message is this: The health care system that underlies all our health care financing and coverage problems is itself broken. The underlying health care delivery system is itself broken. It is administrative and bureaucratic machinery, but it is still machinery. It needs to be repaired the way any broken machinery does. Fixing it, however, will reduce costs, improve care, and make a badly operating system run better and move us a critical step forward to making sure every American family has access to health care they can afford.

I sincerely hope to work with all of my colleagues on solving this. Please think of it this way: If your car is not running right, there is no Republican or Democratic way to tune it up. There is just getting it working. If your plumbing is jammed and water is flooding out, there is not a Republican or Democratic way to fix that. It is either flowing properly or it isn't. If your electric system is sparking and short circuited, again, there is no Democratic or Republican way to solve that problem. It is working right or it is not. Our health care system is not working right, and it needs to be fixed. Because the health care system is a dynamic system, you can't tell it what to do. You have to take the trouble to identify what is wrong, identify why it is wrong, and correct the cause.

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

Mr. President, American troops must come home from Iraq. Because more than 3,000 of our men and women have lost their lives, and tens of thousands more have returned home wounded, American troops must come home from Iraq.

Because hundreds of billions of America's tax dollars have been sunk into the sands and marshes of Iraq, with much of that funding lost to waste, fraud, or abuse by those who have neither Iraq's nor America's best interests at heart, America's troops must come home from Iraq.

Because the public records of this conflict--reflected in the many retired generals who have spoken out against the conduct of the war, and the many books and articles chronicling its planning and execution--reveal catastrophic mistakes and misjudgments that have raised serious questions about this administration's very capacity for leadership, American troops must come home from Iraq.

Because that same administration misused and distorted intelligence, arguing that America should go to war on the basis of information that proved to be untrue or highly misleading, American troops must come home from Iraq.

Because despite the millions of Americans who joined together to call for a new direction in Iraq, this President chose instead to escalate the conflict, American troops must come home from Iraq.

Because the President and Vice President and their political allies would rather pick a political fight with this Congress, using false rhetoric, such as ``micromanaging'' and ``precipitous withdrawal,'' than answer tough questions from the American people, American troops must come home from Iraq.

Because the prospect of our troops' redeployment is the single most powerful force at our disposal to galvanize unity and cooperation among the Iraqi factions and effect real change, American troops must come home from Iraq.

And because even after all this, this President still refuses to listen to the American people and stubbornly fails to give this country the change of course it demands, it is up to this Congress to act to bring American troops home from Iraq.

Some claim this strategy is risky, but the greater risk by far would be to fail to seize the opportunity a redeployment of our troops presents us. To announce clearly to the world that American troops will soon leave Iraq will change the dynamic there in a positive way. It may be the only way we can change the dynamic there in a positive way. It will give us the chance to renew and rebuild diplomatic ties in the region and around the world that have been so badly damaged by this President and this President's war, and restore America's prestige and standing among our friends. It will send a signal to the insurgents who foment violence in Iraq that they will no longer be able to use the United States military presence as a recruiting tool for extremists, and it will motivate efforts by the Iraqis to secure and stabilize their Nation.

It will give the Iraqis the impetus to step forward and do the things our military leaders say they must do for the surge to succeed--things they have been disgracefully slow in doing, such as passing a hydrocarbon law to allow equal sharing of oil revenues among all Iraqis, and measures to facilitate elections, as an example.

It will give our country the time and resources to restore our extraordinary military to the strength and level of readiness our troops deserve. And it will give us the freedom and the resources to look to the many challenges that still confront us here at home, from soaring gas prices to a broken health care system.

To achieve all these things, we must take the first step. We must make it clear we will bring our troops home from Iraq. The measure offered by Senator Feingold, with the support of the distinguished majority leader, is a smart strategy. It has a responsible schedule and it will be an effective step to repair what the President has left broken.

It would require the President to redeploy our troops from Iraq by March 31, 2008. After that date, funds would only be available for three specific limited purposes.

Mr. President, I ask unanimous consent for an additional 15 seconds.

The limited purposes for funding would be: targeted counterterrorism operations, protecting United States infrastructure and personnel, and training and equipping Iraqi security forces.

This plan gives our troops in the field the resources they need today and a strategy that is worthy of their service as they look to tomorrow. I urge my colleagues to support the Feingold-Reid amendment.

Mr. President, I yield the floor.

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

Mr. President, competence, independence, and sound judgment are the lodestar of the administration of justice in this country. Unfortunately, over the past few months, I and many Americans have been forced to question on all three counts those whom this President has appointed to lead the Department of Justice. Indeed, with each passing day, we sense more and more that something is gravely wrong.

For example, we have learned about the misuse and abuse of the Department's power to issue national security letters under the PATRIOT Act--which, even under the most legitimate and benign circumstances, represents a truly imposing authority. As you know, a national security letter, or NSL, is a Government demand for private information, issued without a warrant to third parties such as banks, phone companies, and Internet service providers. In March, the Department of Justice's inspector general reported that NSLs were being ``seriously misused.'' Among other things, there were no clear guidelines for issuing national security letters. They were issued without proper authorization, there was sloppy recordkeeping by the FBI, and there were no procedures for purging a citizen's private information if the investigation was closed.

We have also, of course, learned about the unprecedented firings of eight U.S. attorneys--dismissals which seem to have been motivated by politics, marred by incompetence, or, more likely, both.

The details of the Department's misjudgments in this matter, and particularly the degree to which partisan politics has infiltrated this Department, become more numerous and more damaging to the Attorney General's credibility every day. But the politicization of the Department should come as no surprise when we examine how the rules governing initial contacts between the White House and the Department of Justice on non-national security-related investigations and cases-- traditional criminal cases--have changed since President Bush took office.

During previous administrations, there were strict rules governing contacts between the White House and the Department of Justice on investigations and cases--and for good reason. A strong firewall is necessary to prevent undue and untoward efforts to inject politics into the administration of justice. During the Clinton administration, this firewall was articulated in a September 1994 letter from Attorney General Janet Reno to White House Counsel Lloyd Cutler. It is my understanding that credit goes to Senator Hatch, then chairman of the Judiciary Committee, for his interest in seeing this policy confirmed in this way. So this has been a continuing and bipartisan concern, this question of the firewall between the White House and the Department of justice. The Reno letter stated:

Initial communications between the White House and the

Justice Department regarding any pending Department

investigation or criminal or civil case should involve only

the White House counsel or deputy counsel, or the President

or Vice President, and the Attorney General or Deputy or

Associate Attorney General.

That policy is represented by this chart. On the White House side, the only people authorized to have these initial discussions on criminal cases are the President, Vice President, Deputy White House Counsel, and the White House Counsel. Within the Department of Justice, it is only the Attorney General, Deputy Attorney General, and the Associate Attorney General--a grand total of seven people.

As I noted during the Attorney General's testimony before the Judiciary Committee last month, that rule was changed in an April 2002 memo from Attorney General Ashcroft. The new policy permits initial communications on cases and investigations between the Office of the Deputy Attorney General and the office of the counsel to the President, and it also states that staff members of the Office of the Attorney General, if so designated by the Attorney General, may communicate directly with officials and staff of the Office of the President, the Office of the Vice President, and the office of counsel to the President.

The new rule is represented by this other chart. There are over 400 people in the White House now authorized to have those conversations with the Department of Justice, where before it was 4. Before, it was the very top administration officials in the White

House--the President, Vice President, Attorney General, White House Counsel, and Deputy White House Counsel. Who knows who all these other folks are. One of these boxes is Karl Rove. That makes you wonder. Down here, these are all the staff now within the Department of Justice who are authorized to have those communications, whereas before it was limited to the Attorney General, Deputy Attorney General, and Associate Attorney General.

These charts demonstrate the extraordinary latitude now permitted the White House and Department of Justice to discuss sensitive investigations and prosecutions. With the clear exception of discussions related specifically to national security, where one can understand you might want to have discussion also with the White House when it is a national security issue that would involve the military and other agencies of Government, for regular criminal cases and for prosecutions, I am hard-pressed to imagine any reason the Clinton-era rule needed expansion. Indeed, when I put this question to Attorney General Gonzales when he was before our committee, he had no answer.

These are not just bureaucratic niceties. Rules governing conduct within organizations have an obvious and direct effect on the conduct of people within those organizations. Clearly, the politicization of the Department has been either a byproduct or a cause of this changed rule. After all, the more political people you allow to weigh in on sensitive investigations and cases, the more you run the risk--or, indeed, make it possible--that those investigations and cases become inappropriately politicized.

So this brings us to FISA, the Foreign Intelligence Surveillance Act. Given all this, perhaps I should not have been surprised when I reviewed the administration's proposed Foreign Intelligence Surveillance Act ``modernization'' bill and compared it to the current FISA statute.

Under the current statute, title 50 of the U.S. Code, section 1804, passed in 1978, each application for a court order approving electronic surveillance under FISA must include the approval of the Attorney General, plus a number of required statements and certifications. One of those is a certification that information sought is ``foreign intelligence information'' and that such information ``cannot be reasonably obtained by normal investigative techniques.'' That certification--a critical proceeding with a FISA application--can currently be made by only a few people:

The Assistant to the President for National Security

Affairs or an executive branch official or officials

designated by the President from among those executive

officers employed in the area of national security or defense

and appointed by the President with the advice and consent of

the Senate.

That is actually a grand total of nine people, all senior level, all with a lot at stake in making sure they do the right thing. This makes perfect sense, given the importance of such a certification.

Now, let's take a look at the administration's proposed FISA ``modernization.'' That bill will allow the following people to certify applications for court orders under FISA:

The assistant to the President for National Security

Affairs or an executive branch official or officials

designated by the President to authorize electronic

surveillance for foreign intelligence purposes.

So any executive branch official or officials designated by the President can now authorize--or could if this passed--electronic surveillance for foreign intelligence purposes.

According to the Congressional Research Service, the most conservative estimate of the number of people who could be called ``executive branch officials'' under this definition is 9,050. The number is actually probably greater than that. So, in other words, if the administration had its way, more than 9,000 people would be eligible for designation by the President to certify an application for a warrant to the FISA Court. That is what this chart demonstrates.

Just to give you an idea, over here on this chart, we are talking about individuals--each block represents a person. Here, because the numbers are so big, we have divided by nine. This block represented the existing FISA certification authority to the nine Presidentially appointed and Senate-confirmed individuals who qualified, and we reduced it to one. Each one of these blocks would also represent nine, so multiply by nine. I am probably stretching my limits on the floor by using two charts at the same time. If I had to represent this with 9 people here and 9,000 here, I would have charts up to the ceiling of this room. That is the scale they are trying to change this to. By the way, one of these people, again, would be Karl Rove.

What we have is another example of the Bush administration trying to break down established barriers that defend fair, professional, and responsible decisions in national security and in the administration of justice.

Making matters worse, the administration's FISA bill would greatly expand the powers of the Attorney General in a number of key areas.

I don't think I need to say again that this Attorney General has thoroughly and utterly lost my confidence. I think he has also lost the confidence of this Chamber and of the American people. In my view, he does not merit any greater authority, particularly where that authority involves the power of the Federal Government to invade personal privacy for the purpose of secret wiretaps. We gave him that kind of authority when we gave him the authority with the national security letters. Look what he did with it. That authority was ``seriously misused.'' This is the man who has proven he cannot be trusted with these authorities.

The administration's bill would give the Attorney General expanded powers to hold on to information that was obtained without a warrant or obtained unintentionally. It would grant blanket immunity to any person or company that, from September 11 on, provided the intelligence community with any records, facilities, or assistance purportedly intended to protect against a terrorist attack. This blanket immunity power would allow the Attorney General to shut down a number of lawsuits and State investigations looking into whether and how companies provide detailed records about their customers' private communications.

It would allow powers to transfer any case before any court challenging the legality of classified communications intelligence activity, or any case in which the legality of such activity is even an issue, from the court it is filed in to the secret Foreign Intelligence Surveillance Court. This would be an extraordinary and unprecedented power for the Attorney General to forum-shop by grabbing cases out of open court and placing them before the secret FISA Court.

Finally, it would authorize the Attorney General to conduct surveillance directed toward foreign powers with fewer safeguards to ensure the surveillance will not capture the contents of Americans' communication.

This is just a sampling of the ways in which this bill would expand the Attorney General's authority under that FISA statute. We count at least 10 expansions of power.

Mr. President, the Department of Justice wields some of the most powerful tools held by any Federal agency.

The prosecutive power is probably the most severe power the Government holds. Among these powers is included the power to issue national security letters, the power through U.S. attorneys to prosecute criminal cases, and the power to help administer the Foreign Intelligence Surveillance Act.

These awesome powers must be used with competence, independence, and sound judgment. I am afraid the current Attorney General has not lived up to those high standards, and for that reason, I cannot support legislation that would increase this Attorney General's authority.

For that reason, I also call on him again to step down so we can begin to put this sad episode in the history--the proud history--of the Department of Justice behind us.

The Attorney General's resignation will not solve all the problems at the Department of Justice or the White House, but, regrettably, I have come to the conclusion it is a necessary first step.

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

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

Madam President, I ask unanimous consent that the Judiciary Committee be discharged from further consideration of S. Con. Res. 29, and that the Senate then proceed to its consideration.

Madam President, I ask unanimous consent that the concurrent resolution be agreed to; that the amendment to the preamble, which is at the desk, be agreed to; that the preamble, as amended, be agreed to; that the motions to reconsider be laid upon the table; and that any statements relating to the concurrent resolution be printed in the Record.