Floor Statements

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask unanimous consent that I be allowed to speak in morning business for approximately 10 to 12 minutes.

Mr. President, I have supporting material related to PEPFAR that I will ask to be printed in the Record, which I will deliver to the desk.

PEPFAR's unique contribution has been treatment. By any measure, PEPFAR has been a success. We have helped almost 2 million people with AIDS live longer. We have prevented millions of new infections. We have cared for millions of people more. And we have prevented hundreds of thousands of babies--newborn children--who were born to infected moms from being infected with the HIV virus.

PEPFAR was different from all our previous efforts precisely because we treated it like a disease rather than a development problem. We ran it like a medical program and not a foreign aid poverty program. Rather than funding the usual beltway contractors who like to write reports, give advice, and convene meetings, we put pills in the hands of doctors, nurses, and a legion of community-based health care workers riding out to the bush on mopeds with medicine in their backpacks. We treated people with HIV like patients we can save instead of victims. And we told them the truth about where HIV comes from.

If you go to Nairobi or Soweto or Kampala and ask people what PEPFAR is about, they will tell you it is about treatment. Have we spent billions on prevention? Yes. But ask anyone in Africa what PEPFAR is, and they will say: It is about HIV and AIDS treatment. It was AIDS treatment that was the innovation of PEPFAR. We had been funding prevention messages long before we had PEPFAR, although certainly not to the extent as we did after PEPFAR started. But what was new, what was miraculous, what rocked Africa, was the medical treatment.

And it has worked. It was not easy. With a tiny staff, the AIDS coordinator achieved the impossible--what many had said could not be done--bringing high-tech medical innovation to the lowest tech settings on Earth. It is still just as hard today as it was then, especially as we start in new countries.

The path of least resistance is always the status quo: contractors and ``social marketing'' and reports and ``technical assistance'' and ``capacity building'' and meetings. Without statutory mandates, that path will always look more appealing to people who have been asked to do the impossible. That is why PEPFAR reauthorization could not retreat on its mandated treatment priority.

Take it out of the law, and despite all the rhetoric and good intentions, it will always be easier to fund something else. Maybe treatment would not have been eliminated, but it would have taken a back street, maybe by small cuts, by not building new clinics in the harder places, by letting the shortage of doctors become an excuse to not get creative. The commitment to treatment would have eroded over time, and before we knew it, PEPFAR would have become just another failing foreign aid program like so many others.

It does not matter what people say their intentions are, because people come and go and promises are hard to keep. What matters is what the law requires, and so it is encouraging to be able to assure the American people today that PEPFAR's unique innovation--cutting-edge HIV/AIDS medical care--has been preserved in this bill.

For that, there are a lot of people to thank, starting first with the President and his staff, who first reached out to try to broker this critical compromise. Of course, the bill managers, Chairman Biden and Senator Lugar, and their staff were patient, constructive, and deserve all the thanks in the world. They were quick, thorough, honest, and at all times operated in good faith. Senators Enzi and Burr and their staff were incredible to work with, and their commitment to this cause is commendable.

The compromise language has a number of critical features that make it worthy of passage.

First and most important, the compromise restores the critical focus of PEPFAR on medical treatment. The House bill eliminated the provision in current law that required that 55 percent of all funding go to ``therapeutic medical care'' of people with HIV. The managers' substitute preserves this focus by requiring that ``more than half'' of the money goes to that medical care. This time, the law will also clarify what was meant by ``therapeutic medical care,'' so that there is no longer any confusion that this treatment money can be spent on ARV--antiretroviral--treatment, care for opportunistic infections, and medical monitoring of folks who do not yet need antiretroviral therapy.

Prioritizing treatment is not a radical policy. It is the same policy we have right here in the United States. In this country, this year, we are spending 63 percent of all domestic AIDS funding on treatment and 14 percent on prevention. Prevention is cheap, so you can still make prevention a big priority without spending nearly the money necessary for treatment.

The substitute also restores an ambitious target linked to funding. The original law had the 55-percent allocation, but it also had an ambitious target of treating 2 million people with antiretroviral drugs. The House-passed reauthorization only targeted 3 million people on treatment--a pretty underwhelming figure that meant adding only 1 million people on PEPFAR treatment rolls. That 1 million would have been a 50-percent increase in results, while funding was more than tripling in the bill.

Some have argued that this funding includes a lot of other things besides AIDS and so you cannot make that comparison. That is just not true. The original bill included malaria, it included TB, and it included the Global Fund. So it is an apples-to-apples comparison to say that the funding for AIDS, TB, malaria, and the Global Fund was $15 billion the first time this bill was authorized and that then, in this bill, $50 billion is authorized for those same things at this time.

That is a tremendous amount of money, and the targets for what we expect to achieve with that money must go up at the same rate the funding goes up. The compromise language appropriately links the target number to appropriations. As the funding goes up from the current funding level, the treatment target has to go up by the same percentage above the current goal of 2 million people. That means that if all the money authorized in this bill is appropriated, the number of people treated will exceed more than 5 million. Those extra millions of lives saved are a major accomplishment of the Senate bill. Those are lives. Those are individuals who would otherwise succumb to HIV.

However, the formula does not end there. Treatment costs per patient right now are fairly high--anywhere from $800 to $1,000 per patient. Some drugs are as low as $80 or at most around $200 per person, so we are talking 80 percent of the treatment costs that are not being spent on direct medical care now. That 80 percent represents overhead and infrastructure which should be reduced over time as the efficiencies are built in and clinics are expanded.

To account for that, the compromise language also requires that the target number for treatment increases by the same percent that cost- per-patient decreases over time. This ensures that the cost savings are reinvested right back into treatment rather than diverted to other activities.

Another key element of the compromise is the protection of PEPFAR patients from substandard medicines. From the earliest days of PEPFAR, there were some calling for the United States to buy cheap, copycat drugs for PEPFAR patients, including drugs that were not approved by the FDA or any other rigorous regulatory body of any country. These are drugs we would never treat our domestic patients with here in the United States. This is no abstract threat. Today, under the Orwellian named ``quality assurance'' process at the Global Fund, American dollars may be used to purchase drugs that have met no standard except that they have been put on an application for a WHO prequalification.

When this conflict arose shortly after PEPFAR was first authorized, the President rightly insisted that we would not treat the African AIDS patients like lab rats or guinea pigs. We would treat them with the same standards we treat American patients: They would only receive drugs with FDA approval or equivalent. To help expedite the approval of some international products that were likely safe and effective but had not been through the FDA process, the President established an emergency review process to speed up approval while still ensuring that PEPFAR patients get the same standard of care we expect for our domestic patients. Since then, others have generally agreed that all appropriate safe and effective drugs make it through this new process with proper and direct speed.

In direct contradiction of this more moral approach, the House bill took bilateral PEPFAR programs down the same scary path that the Global Fund has gone. It required that PEPFAR purchase the cheapest drugs available on the world market, without requiring any standard of safety and efficacy. Under such a provision, African patients would have been treated worse than lab rats--receiving drugs that the United States would never use for its patients, never purchase through Medicaid, Medicare, or the Ryan White Care Act.

The bill managers are to be commended for modifying this provision in their substitute to require that drugs purchased by PEPFAR have FDA approval or its equivalent in other developed countries. We can all breathe a little easier as we seek to put 5 million people on ARVs. We want those 5 million people to thrive as long as possible on first-line drugs before they experience a treatment failure. You should not be relegated to unsafe drugs just because you are poor and living in Africa.

There are quite a few other improvements in this substitute bill that the managers and the President helped to broker, but I will not take any more time. Suffice it to say that most of my outstanding concerns have been met through our negotiations, and I am confident that PEPFAR's success in the future is no longer in jeopardy.

PEPFAR was not broken. It did not need fixing. It just needed reauthorization. The managers' substitute does that. I am confident that lives are going to be saved because of the good faith in the bill and of the bill managers and the President and my other colleagues who are associated with it.

Mr. President, I ask unanimous consent to have the supplementary material I referred to printed in the Record.

Mr. President, I yield the floor.

Madam President, as a practicing physician in the Senate, I remember the last time a Medicare fix came through and we had the problems associated with it. I would make four points about what is going on here.

No. 1, if this bill goes through, 2.3 million senior citizens who are on Medicare Advantage will lose Medicare Advantage. Madam President, 2.3 million will lose. Not only will that happen, but also all Medicare patients will pay $200 million more per year in copays for durable medical equipment. So we have a bill that is supposedly going to do the doctor fix, but under the sleight of hand in the dark of night we are going to raise the fees on Medicare patients by $200 million for durable medical equipment, and we are going to tell 2.3 million Medicare patients who are very pleased with the program they have now that they cannot have that anymore.

We have two choices in health care in this country. We can let the Government run it all--which this is a step toward moving toward that-- or we can allow the ingenuity and creativity of this country through a market-based phenomenon--which is what Medicare Advantage is going to-- to create an allocation of scarce resources on the basis of quality, great outcome, and patient choice. There is very limited patient choice now because doctors do not want to take Medicare patients because the reimbursements are so low. Well, guess where they will take it. Where the reimbursements are higher because their costs are going like this, and their reimbursements are going down.

So remember this: If, in fact, you vote for this bill, 2.3 million Medicare patients on Medicare Advantage will lose that coverage, and $200 million in additional copays will fall to all Medicare patients across the board in terms of their copay for durable medical equipment.

We can fix this problem. We ought to fix it right. This is not the way to fix it.

I yield back.

``When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.''

``He has refused his Assent to Laws, the most wholesome and necessary for the public good.

``He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

``He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.''

``He has endeavored to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new Appropriations of Lands.

``He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

``He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.''

``For Quartering large bodies of armed troops among us:

``For protecting them, by a mock Trial, from punishment for any murders which they should commit on the Inhabitants of these States:

``For cutting off our Trade with all parts of the world:''

``For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

``For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.''

``In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free People.''

``We, therefore, the representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be free and independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.--And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.''

Mr. President, I plan to raise a point of order in a moment, but first I wish to make a statement.

The emergency spending bill being considered by the Senate would provide $210 million for the 2010 Census. No strings are attached to the funding, giving the Census Bureau freedom to spend the money in any way it chooses. While the mission of the Census Bureau is vitally important because of its role in apportioning the House of Representatives and the distribution of billions of dollars in federal grants, the agency has proved to be notoriously bad at spending taxpayer money--and the last thing Congress should do is provide more.

Emergency spending bills should be reserved only for true emergencies, and the 2010 Census is not one of them. The Census Bureau has spent hundreds of millions of dollars over the past 8 years preparing for the 2010 Census. Yet, even that much time and that much money has not been enough to prevent the Bureau from being woefully underprepared.

One of the top priorities for the 2010 Census was modernizing the method for collecting census data so that technology would replace the traditional pen and paper method. One former Director of the Census Bureau called the modernization effort a ``significant improvement'' over the way data had been collected in the past.

Modernization of the census would take two forms:

First, allowing citizens to fill out census forms over the Internet, rather than on paper only.

Second, equipping census workers who go door-to-door to collect information with handheld computers instead of paper forms.

Two contracts were awarded to build the technology: one to Lockheed Martin for, among other things, the development of an online system and a second to the Harris Corporation for the development of the handheld computers. Unfortunately, mismanagement and incompetence forced the Census Bureau to abandon both the Internet in March 2006 and the handheld computers in April 2008 as a means of collecting data. In place of technology, the Bureau has decided to revert back to an entirely paper-based system--exactly the same way census data was collected 200 years ago.

According to the Census Bureau, the reason for abandoning technology and reverting to paper was its own failure to communicate what it wanted to the contractors. The result was a great deal of confusion, schedule delays and irreversible cost overruns. According to the Government Accountability Office, the Census Bureau was warned repeatedly that problems would mount if it failed to define what it wanted the contractor to do. Instead of taking action, the Bureau kept changing its mind about what it wanted. As recently as January 16, 2008--nearly 2 years after the contract was awarded--the Census Bureau made 400 changes to the contract for handheld computers. To this day, the Census Bureau has still not finalized the handheld computer contract with the Harris Corporation and may not do so until September.

The Census Bureau's mismanagement of the handheld computer contract has become the poster-child for how not to run a large information technology contract. Poor management by the Bureau has diminished the role that technology will play in the 2010 census to the point of embarrassment. Americans will take their Census by paper at the same time that more than 80 million people are filing their Federal taxes online according to the Pew Internet and American Life Project, 75 percent of all adults are actively online. That percentage increases to between 85-90 percent for adults under the age of 50.

According to the Census Bureau, the impact of abandoning technology in the 2010 Census will be a $3 billion overrun. This would bring the total price tag of the 2010 Census to roughly $14.5 billion--or more than double the cost in 2000. Congress should not reward mismanagement at the Census Bureau with an additional $210 million in emergency funding for FY 2008. It is unfair that Congress would ask taxpayers to bail out the Census Bureau for its incompetence in light of the repeated warnings that cost overruns would result from its poor management.

Because the problems of the Census Bureau are of its own making, any additional funding needs for fiscal year 2008 should come out of the budget of the Census Bureau or the Department of Commerce. The real ``emergency'' with the 2010 Census is the failure, mismanagement and incompetence of the Census Bureau.

According to Congress' own rules, emergency spending is only allowed for needs that truly cannot wait until the next spending cycle. These rules are not difficult to understand and lay out clearly what is and what is not an emergency.

There are many activities funded in the bill that are not actual emergencies according to the rules, but at the top of the list of non- emergencies is the $210 million for the 2010 Census. The 2010 Census may go down in history as one of the worst managed and most expensive of all time, primarily because it saw enormous problems on the horizon and chose to ignore them--leading to the emergency today.

Problems at the Census Bureau have been obvious to auditors and to Congress for years, and the funding in this bill is nothing more than a taxpayer-subsidized bailout for a mismanaged and incompetent agency. The Senate should uphold a point of order against the $210 million included in this bill for the 2010 Census because it violates every definition of emergency spending and provides no accountability for how the money will be spent by an agency that has proven that it desperately needs accountability.

According to the rules, spending can only qualify as an emergency if it meets all of the following criteria:

It is a necessary expenditure--an essential or vital expenditure, not one that is merely useful or beneficial;

It is sudden--coming into being quickly, not building up over time;

It is urgent--a pressing and compelling need requiring immediate action;

It is unforeseen--not predictable or seen beforehand as a coming need, although an emergency that is part of an overall level of anticipated emergencies, particularly when estimated in advance, would not be ``unforeseen''; and

It is not permanent--the need is temporary in nature.

Not only does funding for the Census fall short of meeting all of the criteria for emergency spending, it actually fails to meet any of the criteria.

According to Senate Concurrent Resolution 21, any emergency funding for the Census would have to be ``necessary, essential, or vital--not merely useful or beneficial.'' The purpose of this rule is to separate true emergencies from needs that can wait for the regular appropriations process. An accurate count of the population is important for apportioning the House of Representatives, but that alone does not qualify it for emergency funding.

One of the best ways to determine whether funding is ``necessary'' or ``vital'' is to ask the following basic question: ``How does the Census Bureau plan to spend $210 million?'' If funding is truly necessary then there should be a clear answer to that question in the form of a specific plan stating the emergency and how the money would be spent. So, what is the money for? The answer is: no one knows.

The Census Bureau has not requested any emergency funding from the emergency supplemental appropriations bill, nor has it provided a plan for how the money would be spent if received. At a March 6, 2008, hearing of the Senate Appropriations Subcommittee on Commerce, Justice, and Science, Chairman Barbara Mikulski directly asked both the Commerce Secretary, Carlos Gutierrez, and the Census Director, Steven Murdock, whether they needed emergency funding. Sen. Mikulski gave them a deadline of April 10 to make their request, but both the Secretary of Commerce and the Director of the Census Bureau declined to request any funding. In response, the Commerce Department stated that it did not need emergency money because plenty of funding was available within the department's existing budget. On April 3, 2008--a week ahead of Sen. Mikulski's deadline--Secretary of Commerce Gutierrez instead sent Congress a request to allow the Department to reprogram the department's existing funds to cover the cost overruns at the Census Bureau. Reprogramming existing funds would force the Department of Commerce to offset an increase in Census funding and to bear the burden of its own mistakes rather than placing the burden on taxpayers. On June 9, the President sent a letter to Congress asking for an increase to its fiscal year 2009 budget request for the Census, but also provides offsetting decreases to other programs. The Administration has stated that it would like for all Census money to come from non- emergency spending, which would ensure that the Census Bureau's needs are not paid for out of deficit spending.

Unfortunately, Congress has chosen deficit spending over fiscal responsibility by including $210 million in this bill for the Census. Congress would rather spend additional taxpayer

money than cut existing program budgets within the Department of Commerce. Including money in this bill for the census shows little regard for taxpayers, viewing them as a source of easy money rather than as people who work hard for their income. Congress is simply playing games with the budget rules and driving up the deficit.

Senate rules require that emergency spending bills be reserved only for needs that are ``sudden, urgent and unforeseen'' in nature. The United States has been conducting a census every 10 years since 1790 as required by the Constitution and therefore is never unforeseen.

The Census Bureau is, however, currently facing a likely $3 billion cost overrun for the 2010 Census because of its decision to abandon the use of handheld computers and rely exclusively on paper. Only by stretching the meaning of ``sudden, urgent and unforeseen'' beyond recognition can it be said that the Census Bureau did not see this problem coming. More than 18 months ago, the Census Bureau itself recognized that abandoning the handheld computers for paper would result in a cost increase for the 2010 Census of at least $1 billion.

On August 31, 2006, Former Census Director Louis Kincannon wrote a letter to the Subcommittee on Federal Financial Management with the following warning about reverting to a paper-based census:

``In addition to significant cost increases to the 2010 Census, reverting to a paper-based operation will compromise efforts to improving coverage . . . and will significantly increase the risk of operational failure during the 2010 Census.''

Even as that letter was written, the Census Bureau was being warned that its poor management of the handheld computer project could force the Bureau to revert to an all-paper census. The problems and cost overruns that are materializing today were predicted publicly for a long time, but the Census Bureau ignored the warnings and took no action to prevent the problems.

Chairman Henry Waxman, of the House Oversight and Government Reform Committee, has extensively documented the warnings that were given to the Census Bureau over several years. In addition, the Census Bureau was warned repeatedly by the Government Accountability Office, the Commerce Inspector General, the MITRE Corporation and Congress about its poor planning of the 2010 Census. Each step along the way, the Bureau systematically ignored every warning, leading to the schedule delays and cost overruns being experienced today. The following chronology shows clearly that the current problems being experienced by the Census Bureau are not ``sudden, urgent or unforeseen.''

January 2004--GAG recommended that the Secretary of Commerce develop a ``single integrated project plan'' for executing the 2010 Census, including how to incorporate technology. The Census Bureau ignored the recommendation and moved forward without a plan.

September 2004--The Commerce Inspector General warned that the Bureau should follow a number of key ``software engineering practices'' to avoid pitfalls with the handheld computers. These included doing a better job with ``system requirements'' and overseeing its contractor. The contract for the handhelds was awarded to the Harris Corporation with very few details about what should be produced--more than two years later the plans are still not finalized.

June 2005--GAG warned the Census Bureau that the agency was ``at increased risk of not adequately managing major IT investments and is more likely to experience cost and schedule overruns and performance shortfalls.'' GAO made several recommendations aimed at improving weaknesses in the Bureau's management of information technology. The Census Bureau failed to adequately respond to these recommendations.

March 2006--As the Bureau was getting ready to award the contract to the Harris Corporation, GAO warned that the agency did not have a ``full set of capabilities they need to effectively manage the acquisitions.'' Unless the problem was to be addressed, GAO warned that technology problems could lead to ``cost overruns, schedule delays, and performance shortfalls.'' The Census Bureau ignored the warnings and still has not addressed them more than two years later.

June 2006--The Senate Subcommittee on Federal Financial Management held a hearing on the Census and then-Director Louis Kincannon was asked about whether there was a backup plan if the handheld computers did not work. Even as the GAO was raising concerns that technology for the 2010 Census was in jeopardy, the Director said that no backup plan was needed since the computers were guaranteed to work, and said the following:

``You might as well ask me what happens if the Postal Service refuses to deliver the census forms.''

July 2006--GAO issued a report stating that if the Census Bureau did not do more to ensure the success of the handheld computers, it would be faced with the ``possibility of having to revert to the costly paper-based census used in 2000.''

April 2007--GAO testified before Congress that ``uncertainty surrounded'' the handheld computers because the devices were not being properly tested and The Census Bureau ignored the warnings.

June 2007--The Census Bureau's private, independent consultant--the MITRE Corporation--sounded a loud alarm and warned that the Bureau's continued refusal to make final specifications could put the entire census at risk of severe cost overruns. Census Bureau management dismissed the warning.

July 2007--GAO testified again before a Senate subcommittee that there were ``technical problems with the handheld computing devices'' and that ``risk management activities'' were ``imperative.'' Failure to address these concerns could threaten to overtake the handheld computer project.

October 2007--Once again GAO, with a rising sense of urgency, warned that the handheld contract faced ``an increased probability that decennial systems will not be delivered on schedule and within budget.'' The Census Bureau did not disagree with this assessment.

November 2007--MITRE Corporation executives called an emergency meeting with the Deputy Director of the Census to recommend that he develop a backup plan for paper because the problems with the handheld computers were so severe.

December 2007--In the last days of the year on December 11, the outgoing Director of the Census Bureau testified at a House hearing about the handheld computers and brushed off any concerns raised by Members. He denied that any serious problems existed or that there were any significant delays or cost overruns.

For years, there were warnings raised to the Census Bureau on nearly a monthly basis at times, but those warnings were patently ignored and disdained by Census management. Not until February 2008--when the media caught wind of the true situation--did the Census Bureau acknowledge publicly that there was a serious problem with the handheld computers and that large cost overruns were likely.

In testimony before the Senate Homeland Security Committee on March 5, 2008, the Secretary of Commerce, Carlos Gutierrez, took it one step further and accepted responsibility for failing to act earlier. He said:

``Clearly the problem was more significant than had been conveyed in the December 11 hearing.

In testimony before the Committee on April 15, Secretary Gutierrez admitted that the Bureau was aware of problems by early 2007, when he said:

``Concerns about the [handheld computer) program grew over time and Census and Commerce officials became increasingly aware of the significance of the problems through GAO and Office of Inspector General reviews, the 2007 dress rehearsal and internal assessments.''

None of these concerns were relayed to Congress until it was too late and emergency funding was the only recourse. With this chronology of events, it is simply not possible to claim that any problems with the 2010 Census being seen today are ``sudden, urgent and unforeseen.'' They have been just the opposite: unsurprising, longstanding and predictable.

Without diminishing the importance of the 2010 Census, the funding in this bill does not meet the definition of an emergency by a long shot. The problems surfacing today were not only

predicted many times in the past few years, but were documented publicly in numerous congressional hearings. A vote to waive the rules on emergency spending in this situation is a vote to render the emergency spending rules meaningless. A vote to waive the rules is also a vote to reward incompetent management at the Census Bureau despite its ignoring years of repeated warnings that problems were on the horizon.

In order to qualify for emergency funding, it must be proved that funding for the 2010 Census is ``temporary in nature.'' The rule is intended to ensure that needs that are long-standing or ongoing do not get funding under emergency rules. Rather, only those needs that are short-lived can qualify as an emergency.

No activity of the U.S. Government has existed for a longer period of time nor has an activity of the government been as predictable as the decennial census. Article 1, Section 2 of the Constitution states that ``The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.'' With these words, the Founding Fathers established that a census of the entire population would be taken every ten years in perpetuity. Since the birth of the Nation more than 230 years ago, a census has been taken every 10 years--few things in government are as permanent as the census.

It should come as a surprise to no one that there will be a census in 2010, least of all to Congress and to the Census Bureau. $210 million in emergency spending should not be included in a bill that is intended only for measures that are ``not permanent'' or ``temporary.''

The Census Bureau finds itself today as the recipient of a bailout from Congress because it has been taught by past experience to expect a bailout whenever times get tough. The example of the 2000 Census provides an illustration of how the expectation of a congressional bailout drives up costs because it decreases concerns about getting the best price.

By the late 1990s, census planners were operating under the assumption that the 2000 Census would cost $4 billion--then the most expensive of all time. At the time, the Census Bureau was planning to use a method of data collection known as ``sampling'' during the 2000 Census. On January 25, 1999, only 15 months before Census Day 2000, the Supreme Court ruled that sampling was not allowable, and that the Census Bureau would have to redesign the 2000 Census.

Although the issue was highly controversial, and subject to a ruling by the Supreme Court, the Census Bureau failed to make any plans whatsoever in the event that sampling would not be allowed. In September 1999, GAO reported that: ``The bureau did not begin detailed budgeting for a nonsampling-based census until after the Supreme Court ruled that the Census Act prohibited the use of statistical sampling.'' Thus, poor planning and mismanagement forced the Census Bureau to request an additional $2.6 billion from Congress during the final year of preparations.

Congress was faced with the decision to either cut $2.6 billion from existing programs or designate the new funding as an emergency. Not surprisingly, Congress chose to designate the $2.6 billion as an emergency since it allowed the funding to get around the budget rules that would have otherwise required spending cuts. It is the worst kept secret in Washington that emergency spending is nothing more than a ploy by politicians to bust through the budget caps and spend more money. Although Members of Congress were spared from having to make any difficult choices, taxpayers were not so lucky.

Today, for the 2010 Census, Congress is once again facing a decision about how to come up with $3 billion. And, once again it wants to pay for it on the backs of the American people. Management at the Census Bureau is smart enough to know that Congress will never hold the agency accountable for its mismanagement of taxpayer dollars, as evidenced by the $210 million in this bill. Congress should begin holding the Census Bureau accountable today and sustain the point of order against emergency funding for the census in this bill.

members of congress have repeatedly noted that census problems were a

failure of management, not the result of an emergency

By providing $210 million to the Census Bureau, Congress is disregarding the findings of its own committees. There have been no fewer than five committee hearings in the past 3 months detailing the long-standing failures of the Census Bureau to properly manage the 2010 Census.

Several members of Congress from both parties and both houses have commented over the past several months about the poor management of the Census Bureau and the shocking indifference it showed towards those that tried to raise a warning. The following statements have been made in recent months by various Members of Congress.

On March 6, the Chairman of the Senate Commerce, Justice and State Appropriations Subcommittee, Senator Barbara Mikulski, said that it was ``shocking'' that the 2010 Census will be done the same way ``we've been doing censuses for 200 years.'' Senator Mikulski also stated that ``a paper census in America borders on a scandal.''

On June 18th, the ranking member of the CJS Subcommittee, Senator Richard Shelby, said that the $3 billion cost overrun is the result of ``gross mismanagement of the Census Bureau in acquiring hand held computers.''

In March 2008, Representative Carolyn Maloney called the management of the 2010 Census a ``mess'' and said that ``what we're facing is a statistical Katrina.'' In April 2008, upon hearing that the Census Bureau decided to abandon the handheld computers, she said: ``It brings little satisfaction to have been right about this, but we've said since last year the Census was in real peril.''

Representative Henry Waxman, Chairman of the House Oversight and Government Reform Committee, blamed the cost overruns on ``serious mismanagement'' and said that ``the costly decision to return to a paper census was avoidable.''

At a hearing in March, Senator Tom Carper, Chairman of the subcommittee with jurisdiction over the Census Bureau, said that ``the Census Bureau did not heed the warnings coming from GAO and others that their handheld project was troubled.''

Representative Lacy Clay, who chairs the House Census Subcommittee said, ``This appalling failure of management oversight by both the Census Bureau and Harris Interactive, combined with ridiculous cost overruns is totally unacceptable.'' Representative Clay also said: ``[Harris] is delivering half of the hand-held computers that the Census Bureau originally ordered. The machines can't do what we wanted them to do. And yet, Harris expects the taxpayers to provide more than $700 million more to pay for their failures. That is outrageous.''

Senator Joe Lieberman said that ``it is inexcusable that the Census Bureau must still rely on paper and pencils to perform its most important function.''

Senator Susan Collins, in discussing the management of the census, said that ``there is little to applaud and much to be concerned about.'' Senator Collins went to blame agency management for a ``combination of wishful thinking, lax management, and tunnel vision.''

Even the Secretary of Commerce, Carlos Gutierrez, who is ultimately responsible for the 2010 Census, said that the problems with the handheld computers are not the result of an unexpected emergency, but is ``a management problem.''

The Census Bureau has a poor track record of using taxpayer money

The Census Bureau has one of the worst track records of any federal agency when it comes to spending taxpayer money. Numerous accounts can be given to highlight the way in which the Census Bureau wastes money through negligence, mismanagement and incompetence. The $210 million in emergency funding in the bill is nothing more than rewarding bad behavior with more money and no accountability.

Consider the following ways in which the Census Bureau has done a poor job of controlling the cost of the census:

The cost of the census has doubled every time it has been taken since 1970.

In 1970, it cost only $248 million to count 200,000 American citizens, but in 2010, it will cost nearly $15 billion to count 300,000 citizens--that means it will cost 60 times more to count 1\1/2\ times as many people. In the 1990 Census it cost $10 per person to count the population--in the 2010 Census, it will cost at least $47 per person.

More recently, the Census Bureau awarded a $600 million cost-plus contract to the Harris Corporation for the development of handheld computers, which has skyrocketed above the original plan. The handheld computers were supposed to perform a number of functions, including two functions called Address Canvassing and Non-Response Follow Up:

Address Canvassing is the process of plotting every American household with a GPS coordinate.

Non-Response Follow Up is the process of collecting information door- to-door from households that don't respond to the census by mail.

Due to mismanagement by the Census Bureau, the project has not only been severely scaled back but the cost of the contract will likely double. In April, the Secretary of Commerce decided to eliminate Non- Response Follow Up from the list of functions that the handheld computer would perform, leaving only Address Canvassing. The Harris Corporation estimated that the impact of that decision so close to the 2010 Census would increase the cost of the contract from approximately $600 million to $1.3 billion--an overrun of $700 million to be funded by taxpayers.

According to estimates based on the new contract, the unit cost for each handheld computer would be $600 for a device that can do nothing more than plot homes on a map using GPS coordinates. This means that the Census Bureau will pay $600 for a custom-made handheld device that can do less than an off-the-shelf BlackBerry that costs $200 or an iPhone that costs $275.

One of the most glaring examples of wasted money at the Census Bureau is seen in the recent cost overrun for a technology help-desk planned for census takers going door-to-door in 2010. The original for the help desk--before the decision was made to abandon technology for a paper census--was $36 million. After the decision to use paper only, the estimated cost of the technology help desk increased to $217 million.

Some will argue that without immediate emergency funding, the Census Bureau will not be able to pull off the 2010 Census, putting apportionment and important programs in jeopardy.

This is not true. The next fiscal year is only 3 months away and any funding that the Census Bureau needs can be provided then. There is no compelling argument that emergency deficit spending on the 2010 Census is needed immediately. Perhaps the reason why $210 million is being included is because the Congress--like the Census Bureau--is once again mismanaging its constitutional duties to pass appropriations bills on time.

Also, as I already stated earlier, it is not clear what this money would actually be used for and so it is impossible to say it is essential. It is incomprehensible why the Census Bureau needs an extra $210 million at this point when it is planning to spend an overall amount of $14.5 billion on the 2010 Census. That is more than twice as much as the cost of the 2000 Census that was done the exact same way-- by pencil and paper.

There are plenty of deficit-neutral options available to provide funding for the 2010 Census, including transferring money already available within the Department of Commerce. Or, Congress could cut or eliminate less important programs to free up money for the 2010 Census.

Furthermore, some may argue that the concerns about poor management at the Census Bureau can be dealt with another time--the most important thing is getting the 2010 Census done right and without delay.

I would respond by noting that this country is always in the middle of preparations for the next decennial census--if management concerns are always pushed back then they will never be addressed. Providing a bailout for the Census Bureau now is tantamount to excusing the poor management that has prevailed at the agency for the better part of a decade.

Report after report by the GAO and the Inspector General have called upon the Census Bureau to improve its poor management of the 2010 Census. Each of those reports and warnings were ignored because, ultimately, the agency knew that Congress didn't care about accountability. Congress should deal with the management concerns immediately and start by withholding the bailout money in this bill.

Mr. President, this is a simple point of order, but it has tremendous ramifications on whether we are going to effectively oversight the rest of the executive agencies.

Three and a half years ago, Tom Carper and I started oversight hearings on the census. At that time, GAO said: They are not going to make it. They are not doing what they need to do. It was totally ignored, both by the Census Bureau as well as the Department of Commerce. Now we find that even though they have had two contracts--one with Lockheed and one with another company--to put the census online-- we are going to be the only modern country that doesn't have the census online--they have totally withheld, totally canceled that contract, and totally didn't perform. The other, to do with electronic data collection, is now a flop, and they admit the reason it is a flop is because the Census Bureau did not communicate with the contractor.

In this bill is $210 million to say: Oh, we are sorry. We are going to give you more money because you didn't do it well.

Secretary Gutierrez says there is plenty of money in the Commerce Department to cover this cost, and I am going to raise a point of order that it is not an emergency. There is plenty of money there, and we are sending exactly the wrong message to every other agency in this Government by allowing an agency that is going to do the census the same way it did 200 years ago because of incompetency. We are going to give them $200 million on an emergency basis, and we are going to charge the next generation because we are not going to pay for it. We are going to borrow the money, and we are going to embrace and endorse incompetence.

So, Mr. President, I raise a point of order, pursuant to section 204(a)(5) of the fiscal year 2008 budget resolution, S. Con. Res. 21, against the emergency designation of $200 million for the Census Bureau in the message in the pending amendment, and I ask for the yeas and nays.

I am happy to yield to the Senator.

Reserving the right to object, I plan on speaking longer than that, so I will ask for unanimous consent after the fact.

Madam President, I rise today to highlight the difficulties caused by neurofibromatosis, NF, the work currently being done by the Federal Government to address this difficult disease, and the importance of awareness about NF.

NF is a genetic disorder of the nervous system, which causes tumors to form on the nerves anywhere in the body at any time. NF is a progressive disorder and is one of the most common genetic disorders in the United

States. An estimated 100,000 Americans have a neurofibromatosis disorder. About half of those affected with NF have a prior family history of the disease.

NF has two distinct forms, NF1 and NF2. NF1 is the more common version, occurring in 1 of nearly every 4,000 individuals in the U.S. It has varying manifestations and degrees of severity resulting from a mutation of the NFI gene. Symptoms include common skin abnormalities and are often evident at birth or shortly afterwards. NF1 can cause learning disorders, bone deformities, and may even be associated with cancer. NF2 is a much more rare condition, resulting from a mutation of the NF2 gene, that is most frequently associated with hearing loss and visual impairment.

The National Institutes of Health, NIH, supports critical research to fight NF, investing approximately $13 million a year. At NIH, the $1.5 billion National Institute of Neurological Disorders and Stroke, NINDS, supports research and clinical trials to understand normal and abnormal development of the brain and nervous system to improve our understanding of the disease and our ability to prevent, treat, and ultimately cure the NF disorders. Researchers have been able to locate the exact NF1 gene, which they found normally works as a ``molecular brake'' to keep cells from overmultiplying, and the NF2 gene, which they found normally helps suppress tumors. It is the mutations of these genes that cause the difficulties associated with NF. According to

We heard some reasons we should support the Baucus doctor fix. I happen to have been practicing in 2004 when the Senate did exactly what they are doing right now. This bill is going to guarantee the doctor fix is not done by July 1. That is what is going to happen with this bill.

Let me tell you, we are eventually going to fix the problem for the doctors for 18 months. There is no question. Everybody agrees to that. But what we are doing is, we are making sure we are going to add hundreds of thousands if not millions of dollars of cost in every State for every private physician that is practicing.

And the reason is because the bill is not going to get changed by July 1, and they are going to be under the 10.9-percent cut. Then they are going to come back, whenever we finally get it done. They are going to have to refile all of that, and Medicare is going to have to repay all of this.

So this exercise in political gamesmanship, of working only with one side of the aisle, not working with Senator Grassley, to truly get this done in a way that the President will not veto it and accomplish the purposes for which we all say we want, to eliminate the 10.9-percent cut for physicians, that is something we are going to lose grasp of, and we are going to create a hardship on every physician in this country because we are playing a political game with this rather than fixing the problem.

That brings me to my next point. Why is it every 18 months the physicians in this country have to come and beg Congress not to cut their fees when we are not cutting the fees for the rest of the providers throughout the Medicare Program?

What we have decided is that doctors make too much money. We have decided that when they work 80 hours a week, one and a half to two times what everybody else works in this country, they spend their time away from their families making great sacrifices, that we are going to fund increases in the care for our elderly and seniors in this country on the backs of physicians.

Now, I will not dispute the fact that there are some disparities in physician

pay in this country, with some physicians making too much and far too many making too little, especially primary care pediatricians, psychiatrists, and the like, those who are on the front lines. But this idea that we are going to fix temporarily, again, for 18 months, a problem that we have to fix, which is the other problem with the Baucus bill, the only thing great about Medicare that will get us out of the long-term costs is this idea of creating markets associated with choice and responsibility to give greater health care, greater choice, and greater benefits to Medicare beneficiaries through competition.

I am the first to say that the Medicare Advantage Program has lots of problems. But to get the Medicare Advantage Program, which is the one thing that tries to go toward market-oriented reform in Medicare, to pay for this is ludicrous.

Senator Grassley has a competing bill--we just heard the second reading objected to by the Senator from Michigan so we cannot have a side-by-side vote on it--does all of the things that the Baucus bill does except it does not gut Medicare Advantage.

Well, why do we want to take the one factor in Medicare that is based on markets, that is based on transparency, that is based on some personal responsibility, and throw it out and have another program that right now every family in this country is on the hook for over $300,000 in unfunded Medicare obligations, and the Baucus bill guts the only thing that helps us solve that?

So the President is right to veto this bill. Even if it passes, this bill will not be overridden. So we are ensuring the fact that doctors will experience, on July 1, a 10.9-percent cut. We do not have to do that. They know we cannot do this and have it go to the President and get it vetoed and come back and get everything else down before July 1.

So by voting for the Baucus bill, what you are actually doing is ensuring that every physician in this country that cares for Medicare patients is going to spend thousands and thousands of extra dollars, and that CMS is going to spend thousands and thousands and millions, perhaps $100 million, to come back and deal with the paperwork once this is finally fixed.

Nobody thinks about that around here. We are playing political games. How can you make Republicans look bad as they vote against a Baucus Medicare doctor fix? Everybody in this body wants to fix this payment system for doctors. There is one real reason we do; we want our seniors to be able to have physicians. And we know if an 11-percent cut goes through, many doctors will no longer be able to afford to care for Medicare patients, they will not be able to afford to. They cannot do it.

So if you cut 11 percent of their fees on Medicare, which are already almost as low as Medicaid everywhere, which is about 40 percent less than they get paid for anything else, you are asking them to serve Medicare at half price. And what they are going to do is they are going to make a choice. They are going to say: I cannot take care of Medicare patients.

So what we are going to ensure with the Baucus bill is that doctors are going to get a pay cut, maybe for a short period of time, but the inconvenience of that, the cost of that for political gamesmanship, we ought to be ashamed of what we are doing. And it is exactly the reason we have a low rating with the American people.

We know Senator Grassley and Senator Baucus can work this out. We know it can happen. But the fact is, it was chosen to make it an issue, not work in a bipartisan fashion, not come up with something that the President can sign, but instead to slow down the works. And what they will do is markedly decrease availability of Medicare for seniors in this country because the doctors, when they first see this, if they see a 10.9-percent cut, some of them are going to abandon the Medicare Program, and you are ensuring, if you vote for the Baucus bill, that doctors will get a 10.9-percent cut for a short period of time.

You are ensuring that, in fact, what they are going to do is, they are going to have a whole lot more overhead because they are going to get a bill from the time it starts to the time it ends and finally gets corrected, they are going to bill it twice, once for the primary at a 10.9-percent cost, then they are going to get a bill again because it is going to be retroactively fixed. They are going to have to bill it all again. That is pure waste. That is typical government.

Why would we do that? What are we thinking? What we are thinking is short-term partisanship. And we ought to be ashamed of ourselves.

Global Warming

Now I want to spend a few minutes talking about the climate bill. I have been listening for 10 days on this issue. And I want to share some observations.

It was said on the Senate floor that nobody has scientifically disputed the underlying facts associated with climate change.

We cannot dispute underlying facts on climate change because climate changes. It always changes. We have a history of knowing it changes. We know that every 1,500 years we have global warming, whether we like it or not. It happens.

What we do not have is common sense and scientific methods looked at. I hear my friends, even on my side of the aisle, talk about anecdotal observations that things are different. Sure they are different.

As a matter of fact, we heard the leading German scientists on climate change saying we are going to have a 10-year break on global warming. So I guess that means for the next 10 years CO2 input is not going to have any effect on global warming. So we have conveniently changed the terms from global warming to climate change.

Well, I want Americans to ask themselves, what is climate change? The climate changes all the time. Last week, the majority leader, on the Senate floor, said the tornados that were in this area were related to climate change.

Like saying anecdotally we can prove there must be climate change because we saw tornadoes in the Washington, DC, area last week--do you know how many times there have been tornadoes in this month in Washington, DC, throughout the years? Hundreds. But now we are anecdotally, because we see something new to our experience, associating it with some phenomena. That is not science. That is ignorance. That is using science in a way that bastardizes it.

The second point is, if we really want to know how we affect climate, it takes a lot of years to find that out. There are retrospective studies we can do. As a matter of fact, they have been done. We have ice core drilling that goes back about 3,500 years. We know exactly what the temperatures were in the north and in the south based on both ice core drillings and ocean sediment drillings. We know that because we know that isotopes of both oxygen and nitrogen decay at different rates. When those are measured, we can have a pattern of what the Earth's temperatures were and what the cycles of climate were. Nobody wants to embrace that. That is real science. But we ignore that. That doesn't fit with the emotion that allows us to relate a policy that we want to enact in a way that disproves it.

There is so much yet to be known about climate. We can't even predict what the weather is going to be tomorrow. Yet we have this supposed settled science. The science isn't settled. The rhetoric is settled, but the science is far from settled.

What do we know? Here is what we know. The most recent examples of 1,500-year cycles are these: The Roman warming started in 200 B.C. Pared with its other half, the Dark Ages, it ended in 900 A.D. We know that historically. We know there was this warming cycle that came and went. The medieval warming period, the little ice age period cycle, lasted that period of time from A.D. 900 to 1850. The modern warming cycle, which started about 1850 to present, is probably the first half of the change. What happened during the medieval warming period? The Norse populated Greenland. They fished from its coast. They had over 60,000 cattle. They raised hay on what is now majority covered with ice.

So we have been there before. We don't like to look at the historical fact because it doesn't fit either our populace viewpoint or give us a reason to enact a bill which, in my estimation, is the greatest--will be, if we pass it--loss of freedom this country has ever experienced.

Freedom is directly related to the level and the amount of government we have. Under the climate bill Senator Boxer has put out, you can guarantee a loss of your liberty. Anybody with any common sense knows that. We are going to put all sorts of decisionmaking in the hands of bureaucrats. They are going to be deciding for you. So when bureaucrats start deciding for you, that means you don't. If you don't like the results, you have to prove your innocence. The onus becomes on you.

The unique thing about the American experience is that freedom is our basic model. Liberty is ours. When we grow the Government, through $6.4 to $6.9, all the way up to supposedly $10 trillion in a tax structure that is implemented through a great number of Government programs, Government boards, Government regulations, you can bet your freedom is going to be markedly limited.

The last thing I want to talk about is the very fact that we are talking about not using resources we have. Even if you buy everything that the alarmists with climate change and global warming would have you, and let's assume they are all right, everybody agrees it is going to take us 20 to 30 years to get off of hydrocarbons as a method of energy production, as a source of energy. We know that. If we were to start building nuclear plants today, we would have every alternative energy that we had, and it would still take us 15 to 20 years to start to begin to do that. So what is it that we fear about utilizing our own energy resources?

My senior Senator sitting on the floor--and I can tell you that both of us, coming from Oklahoma, love our land. We love our streams. We love our lakes. We love the wildlife that is everywhere you turn in Oklahoma. We drill all over the place. We don't contaminate our environment at all. But we have a level of ignorance about what exploration is for energy in this country. It is done in a fabulous, sophisticated way. We now drill 1 hole and create 8 to 20 wells out of 1 hole because the technology allows you to drill any direction you want at almost any depth you want. So what happens is, we allow people who are not aware of the technology of exploration to create a picture that says exploration can't be done in an environmentally friendly way. That is not true. We do it all the time in Oklahoma. Come visit.

Behind my home is a gas well. It was drilled 25 years ago. When they plugged it, everything about that was remediated. Do you know what is growing there right now is the most fabulous wild blackberries you ever tasted in your life. That is exactly the opposite picture that the alarmists want you to have about energy exploration.

The point I am making is, we have a hundred years, at a minimum, of hydrocarbons available to us that we could utilize in the next 5 to 10 years and not utilize foreign imported oil from people who have vowed to take away our freedoms. The fact is, that gets blocked all the time on the Senate floor on the basis of an irrationality that says you can't do it.

We have two of the largest domestic natural gas producers in the world in Oklahoma. In the Gulf of Mexico, you can't even see the rigs. In 8,500 feet of water, 20,000 feet below the surface of the ocean, they are drilling oil in a platform that is floating that moves less than 8 inches based on gyroscopes. They have not once in all the years had an environmental spill when they were doing that. That is how great the technology is. Yet we have this fear that you can't do something.

At the same time that we have this fear, what we are doing is embracing $4.35 gasoline. We are embracing the funding of terrorists by our purchase of oil moneys that then go to fund terrorists. We have become schizophrenic. We have lost it. When we would deny the ability to use resources in this country that would stop the upward trend on the price of oil, that would utilize oil shale to conversion for jet aviation fuel, that would utilize oil shale for heating oil, that we would not allow that, we will not allow the utilization of our own resources at our own negative benefit, what is the purpose of that?

I get written to all the time by constituents from Oklahoma about gas prices. Do you know what I tell them? I say: You should blame us. You should blame the Congress. It is absolutely our fault we are in the position we are in. We didn't act. From 1995 up through this year, every time we have had a chance to increase exploration in a safe, environmentally friendly way in this country, it has been blocked. So now we sit with the hardest of the hardest hit, the poor and less fortunate, trying to make a choice of whether they can even get to work, let alone buy their groceries, because gas now and their energy needs are such a large component of their family budget.

It is our fault, and we are going to sit around. We are going to dither, and gasoline is going to be $5.50 a gallon. The American public is going to react to that, and they are going to say: Maybe we ought to take another look at these good energy companies that do it environmentally well and supply us power and energy and do not fund the very people who want to take away our freedoms.

It is coming. This is part of the same rumble from the American public that says we do not get it on spending. I was enlightened today on a new bill that is getting ready to be introduced that I am going to try to keep from coming to the floor that is a yearly authorization for the Coast Guard. There is a 25-percent increase in it, but of that 25 percent, 80 percent is earmarks. We almost doubled the Coast Guard when we created the Department of Homeland Security. Yet this year we are going to come close to a trillion-dollar deficit--$3,000 for every man, woman, and child--and we still do not get it.

So the idea that Congress will not act to raise the level of supplies, that Congress will not take off the tariff on imported ethanol, refuses to take off the tariff on imported ethanol to protect a false economy associated with corn ethanol--when, in fact, we have a shortage, as manifested by the price of the fuels that drive our energy and yet we will not act--the American people have a right to be disgusted.

We are the reason gasoline is over $4. It is not the oil companies. It is not the Middle East. It is us. Because we could have done something. We still can do something. But we heard political speeches all today because what we want to do is sue OPEC and create an excess profits tax, and eventually a Btu tax, rather than increase the supply. What we should do is increase supplies. The American people get it. Somehow we do not.

My hope is that America will let us know. I think they are going to. My hope is we will listen.

With that, Madam President, I yield the floor.

Madam President, I appreciate the cooperation of Senator Harkin and Senator Chambliss on allowing us to have some discussion on the farm bill. The attempt was made to pass this by unanimous consent. Unanimous consent means that every Senator in the body agrees with the bill, agrees it should be passed, agrees it should not be amended, and should not be debated.

I will offer no amendments in working with Senator Chambliss and Senator Harkin. However, I think it is very important, especially in light of

the recent WTO ruling which allows Brazil to administer approximately $5 billion in punitive penalties on American products going to Brazil because we are WTO noncompliant. I come from a farm State and I want to tell you I think this bill is not good for my farmers. As a matter of fact, I know it is not good for my farmers, especially when we think out in the distance.

Input costs have more than doubled for production agriculture in this country and the assumption--not implicitly, but nevertheless in this bill is the assumption of good prices in the future. Anybody who has been around farm community for any period of time recognizes that farm prices are erratic. My thoughts are what do we have in the farm bill when corn prices are back at $3 a bushel, when wheat prices are back at $2.50 or $3 a bushel, and when soybeans are back down at $5 a bushel with input costs doubled? What we have done is we have cut $3.5 billion from the commodity title in this program.

The one thing that WTO says is compliant is direct payments. We have cut them by $313 million. I don't want farmers to get anything if they don't need it, but food is important to us and I do not disagree that we will use agriculture to help us in our energy needs. But I think in the long run we have not done what we need to do for the American farmer.

More importantly, and this is not to degrade the very hard work that was done by the Agriculture Committee and the conference committee, is that we have missed an opportunity to be good stewards with Americans' money. How can that be so? One is the bill extends ethanol provisions as livestock producers and consumers are struggling to pay for higher feed costs. It takes 2 pounds of feed to gain a pound of weight in a chicken. It takes 4 pounds of feed to gain a pound in a hog. So the input costs on food have risen dramatically.

We didn't eliminate the import duty on ethanol. If we think ethanol is an important aspect of our freedom in terms of energy independence, why do we have an import duty on ethanol coming into this country? Why did we not fix the dollar blending for biofuels, biodiesel? Now large quantities are coming into this country. A small quantity of diesel is being blended to it, they are collecting $1 from the Federal Government and shipping the biodiesel fuel to Europe where they can get more money for it. What in fact we did not eliminate is the subsidy to European biodiesel in this bill.

This is basically a food bill, it is not an agricultural bill. Madam President, 73 percent of this bill goes for food and there are absolutely no metrics on what we are doing in terms of our food programs. There is no measurement, there are no performance indicators, there are no qualifications as to are we meeting the needs? Is the money we are spending accomplishing our goal? We have no metrics in that. There are none.

The bill steals money, much to the chagrin of the leaders in the Senate, for true agricultural programs and puts it into things that are not agricultural at all. We took $250 million in an earmark in this bill for the Nature Conservancy to buy land in Montana for one person. We are constructing a Chinese water garden in Washington, DC, in the Arboretum, from a gift from the Chinese--but now we are going to pay for it. We are spending $3.7 million in a noncompetitive grant for the University of the District of Columbia to upgrade agriculture and food science facilities. Granted, it is a land grant college. Why should not it have to compete? How do we know that is the best place to spend the $3.75 million?

We are spending money, at a time we are going to come close to a $1 trillion deficit, on historic barn preservation? We are going to preserve falling-down barns at the time we add $3,000 per man, woman, and child in this country to their debt? We create a farm and ranch stress assistance network. After this bill they are going to need it. They are going to need it--especially if crop prices fall. The safety net is gone.

We have the highest prices historically we have ever had for asparagus and yet we put $15 million for asparagus prices from 3 years ago in this bill.

We have $50 million for the Sheep Industry Improvement Center that has two employees in Washington, DC. It halts a previous law that was going to privatize the center.

We also have a wonderful study to study methane release from livestock operations. I would like for us to know, in the natural physiologic condition of cattle, how we are going to eliminate flatulence? How we are going to spend money? We know it is there. We know how much is there based on how many head of cattle there is. We are going to spend money to study it.

More importantly, this bill offends one of the most cherished beliefs of farmers and ranchers, and that is property rights--a guaranteed right in this country is put at risk under this bill. In addition to the $250 million for the Nature Conservancy to buy more land, this bill authorizes the Community Enforced and Open Space Conservation Program, which will give grants to local governments--Federal money; we don't have it but we are going to give grants--and tribes, to buy up private forest land and put it into the hands of the Government. We are not going to have an option. We are going to let the Government agency give grants and we are going to take land away from private landowners. That is what we are going to do. That is ultimately what will happen.

We added 100 million acres in Government land in the last 5 years in this country. We added 100 million acres. What was the purpose for this? The guise of protecting water supply, hunting opportunities and, in the bill itself, preventing obesity. We are going to prevent obesity by buying land.

Finally, the bill fails to rein in the USDA. It is the fifth largest corporation in the world. It has 115,000 employees--11,000 here in DC. We are still going to have a top-heavy bureaucracy and we are going to spend money on the bureaucracy instead of on the production of food, efficiency in the farm, and guaranteeing that Americans will have a safe and secure food supply.

This is not to denigrate my colleagues. Most of this they didn't agree with. They had to trade to keep a half-way commonsense bill, so I don't want Senator Harkin or Senator Chambliss to think--and I know through my conversations with them that this is stuff they had to swallow, coming out of a conference committee. This bill was never going to be easy. Yet after nearly 2 years of debate, Congress is going to pass a bill that fails to prioritize agricultural spending in any meaningful way and what I believe, and it is my opinion, that what in the future will be is life very much more difficult for the American farmer and rancher.

Mr. President, Medicare and Medicaid cost the American taxpayers a combined $770 billion in 2007; Medicare costing $432 billion and Medicaid $338 billion. In 2007, the Federal Government's share of Medicaid expenditures was $190 billion and is expected to be $402 billion by 2017.

Medicare expenditures alone account for 3.2 percent of GDP. Over the next 75 years these expenditures are expected to explode to almost 11 percent of GDP. Every American household's share of Medicare's unfunded obligation is like a $320,000 IOU.

The Medicaid Program, because of the promise of a generous Federal match of State Medicaid dollars, has given States heavy incentive to increase their State Medicaid spending. Medicaid spending now accounts for 26.3 percent of state budgets, up from just 6.7 percent in 1970. In some States, as much as half of all new revenues will go to Medicaid in the coming years.

We have heard a lot of talk about bi-partisan commissions on entitlement reform come out of the Budget Committee, but the least that we can do is to stop blatant fraud and abuse in the mean time. Eliminating waste, fraud, and abuse is a baby step in addressing entitlements. The Centers for Medicare and Medicaid Services, CMS, has worked over the last 5 or so years to curb waste, fraud, and abuse. They have done work on a State-specific basis and also by promulgating detailed regulations so that States have the clarity they need. Over the years, Medicaid has proven to be a program susceptible to fraud, waste, and abuse. Many States have pushed the limits of what should be allowed to maximize the Federal dollars sent to them.

The Government Accountability Office, GAO, put Medicaid on its ``high risk'' report a few years back because of questionable financing and the lack of accountability.

According to the Wall Street Journal:

The GAO and other federal inspectors have copiously

documented these ``creative financing schemes'' going back to

the Clinton Administration. New York deposited its proceeds

in a Medicaid account, recycling federal dollars to decrease

its overall contribution. So did Michigan. States like

Wisconsin and Pennsylvania fattened their political

priorities. Oregon funded K-12 education during a budget

shortfall.

According to the Wall Street Journal:

The right word for this is fraud. A corporation caught in

this kind of self-dealing--faking payments to extract

billions, then laundering the money--would be indicted. In

fact, a new industry of contingency-fee consultants has

sprung up to help states find and exploit the ``ambiguities''

in Medicaid's regulatory wasteland. All the feds can do is

notice loopholes when they get too expensive and close them,

whereupon the cycle starts over. No one really knows how much

the state grifters have already grabbed, though the

Congressional Budget Office estimates that the Administration

remedies would save $17.8 billion over five years and $42.2

billion over 10. We realize this is considered a mere

gratuity in Washington, but Medicaid's money laundering is

further evidence that Congress isn't serious about spending

discipline.

Examples of fraud in the Medicaid Program are plentiful. One dentist billed medicaid 991 procedures in a single day. According to the New York Times, a former State investigator of Medicaid abuse estimated that as much as 40 percent $18 billion of New York's Medicaid budget was inappropriate. New York spent $300 million of its Medicaid money on transportation.

In 2005, Congressional testimony showed that 34 States hired contingency-fee consultants to game Federal Medicaid payments.

Medicaid regulations by CMS are efforts to provide clear guidance in critical areas where there have been well-documented problems and result from years of work on the part of CMS and myriad reports by the GAO and the Office of the Inspector General, OIG, at the Department of Health and Human Services, HHS.

When CMS doesn't know how a State is billing for a service and States don't have clear guidance for how they should, neither Medicaid beneficiaries nor the taxpayers are well served. The Medicaid regulations fix that problem.

According to the Congressional Budget Office, CBO, the regulations would save the Medicaid Program $17.8 billion over 5 years and $42.2 billion over 10 years by eliminating wasteful and fraudulent Federal payments to the program.

The Federal Government will spend $1.2 trillion over the next 5 years on Medicaid, so the regulations save only about 1 percent of Federal spending on Medicaid. If Congress is afraid of taking on these very modest changes to Medicaid, does it really have the will to take on the special interests that is necessary to truly address entitlement reform?

The very purpose of these regulations is to build accountability into the Medicaid Program that is long overdue. The proposed delay is a budgetary gimmick to avoid paying for the real costs of delaying the Medicaid regulations.

CBO estimates that delaying the rules until April 1, 2009 would cost $1.65 billion. However, if the rules were withdrawn or permanently delayed--as it is likely they would be under the next administration-- the CBO estimates a 5-year year cost of $17.8 billion and a 10-year cost of $42.2 billion. Even if the regulations should be delayed, a war supplemental is the wrong place to include Medicaid policy changes. The war supplemental is given expedited consideration procedures because funding our troops is an urgent matter. The Medicaid regulations have been considered for years, and Congress has already put one 6-month delay on them. This isn't a new or urgent issue that justifies inclusion in a war supplemental.

If ensuring that America's safety net programs are adequately funded is such an important issue, it deserves the full debate and consideration of the Senate. Burying a flat-out moratorium of Medicaid regulations on a war supplemental appropriations bill isn't being honest with the American people. Congressional leaders put a moratorium on the Medicaid regulations last year and are poised to do so again. If Congress truly opposes the regulations, then it should repeal them instead of pretending to ``study them'' a little longer. However, Congress is avoiding that kind of honesty because it will cost ten times the amount of a moratorium.

Instead of blaming the Bush administration, Congress needs to decide for itself how it will address waste, fraud, and abuse in the Medicaid Program. The Bush Administration has taken its turn and taken a stand to protect the integrity of one of our largest entitlement programs. Now it is Congress's turn.

This is no longer about the Bush administration. This is now about Congress. Congress needs to decide whether or not it will ignore years of GAO and HHS OIG reports. Congress needs to decide whether it will listen to their State Medicaid directors and Governors or whether it will safeguard taxpayer dollars.

States have had their turn and demonstrated that they will take advantage of loopholes, ambiguities, and lack of clarity. Congress is the one ultimately responsible for these programs. Congress is elected to set policy and fund priorities.

By imposing another moratorium, Congress is failing to live up to its responsibilities. Congress is running away from them. Congress has closed its eyes and ears to the abuses that have been going on. By stopping the regulations from going into effect, Congress is simply giving more sugar to a diabetic. It may feel good for a moment, but it is not good in the long run. Congress doesn't really need another year to deal with these issues. These abuses have been going on for a long time. The GAO and the OIG have been issuing audits and reports on the abuses for years.

Problems with the regulations themselves warrant a conversation not a moratorium. There have been very few substantive policy disagreements with the administration's regulations. The Finance Committee hasn't engaged the administration on specific problems with the regulations. There have been no hearings over the last 6-month delay. The only ``hearing'' that has occurred is the parade of Governors and providers pleading to not turn off the funding.

The rule to impose a cost limit on government providers--CMS-2258--is commonsense and good government. The cost rule saves $9 billion over five years and $22 billion over 10 years by ending creative State financing schemes. First, it requires that providers, like hospitals and nursing homes and physicians, receive and retain the total computable amount of their Medicaid payments for the services they provided. Why would Congress object to that? It seems simple that if you provided a service, you should get to keep the money.

During the 1990s, States figured out creative ways to pass off their obligations to providers. That was wrong and unfair. Each time Congress stopped one financing practice, a new financing scheme popped up.

In 1991, Congress cracked down on loopholes in provider taxes. States opened up new loopholes. In 1997, Congress cracked down on abuses in the disproportionate share hospital, DSH, payments program. In 2000, it tried to stop the abuses in upper payment limits, though it failed to close them completely.

In 2003, the Bush administration put new emphasis on ending these schemes through the State plan amendment review process. This strategy proved to be effective and many States ended their ``recycling'' arrangements. But some States complained to Congress.

In July 2004, Senator Baucus wrote the Administrator of CMS:

As you know, and as I indicated to you in those

conversations, I feel strongly that any new CMS policy on

intergovernmental transfers (IGTs) must be implemented in a

manner that is transparent, that is applied equally to all

states, and that responsibly takes into account the

potentially serious financial consequences of eliminating a

source of state funding on which some states have a

longstanding reliance. Based on my understanding of current

law and practice, with respect to IGTs, and on my interest in

promoting public confidence in government decision-making

judgment that a rulemaking or legislative process is

warranted in these circumstances. Accordingly, I urge you to

develop rules or a legislative proposal as soon as possible

on this issue.

The current chairman of the Finance Committee requested Medicaid regulations nearly 4 years ago. The administration has responded to that request by promulgating regulations. As soon as the regulations left the desk of the CMS Administrator, Congress blocked them from going into effect LAST year. What has Congress done since then in the way of hearings or conversations with CMS? Nothing. What is Congress doing now? Trying to delay them again.

Chairman Baucus is right about treating States equally; Congress needs to let CMS do so. It is ironic that hospitals are telling Members to stop the Medicaid rules. The policy of the cost rule is that providers should get to keep the full amount of Medicaid reimbursement paid for the services they deliver. Why should hospitals or other types of providers be forced to send part of their payment for services back to the State or local government? It is not their responsibility to fund the State's share of the cost of Medicaid. That is the responsibility of the State and local governments.

Another major part of the cost rule seeks to limit government providers to cost. This has been a recommendation of GAO dating back to 1994. Under this provision, government providers would receive 100 percent of their costs for delivering services to a Medicaid recipient. But they would be limited to cost, they simply could not charge a ``profit'' to the Federal taxpayers.

A government entity shouldn't bill the taxpayer for more than the cost of delivering a service. That is nothing more than Medicaid subsidizing non-Medicaid activities. If State and local officials decide not to fund a program, that doesn't mean the Federal taxpayer should pick up the tab.

Congress may have heard pressure from their States about how the cost rule will ``shred the safety net.'' If Congress really cared about hospitals, shouldn't Congress be supporting the policy that they get paid in full? When this type of policy was put in place in California, revenues to hospitals increased by 12 percent.

If Congress really cared about providers, there are other tax-relief policies that would be helpful to them. Provider taxes on hospitals, nursing homes, and others totaled $12 billion in 2007.

The estimated savings for the cost rule for 2008 and part of 2009 is about $770 million. If you accept the argument that all providers in the entire country will ``lose'' $770 million if the cost rule goes into effect, consider that the hospitals in New York alone paid $2 billion in provider taxes. The hospitals in Illinois paid $747 million in provider taxes. If Congress really cared about them, what about a little tax relief instead?

The real story is that States are using creative ``provider taxes'' to forego paying their share of the Medicaid Program. A few years back, Congress gave a special deal to Illinois supposedly to support the Cook County Hospital system worth about $350 million per year. The hospital is forfeiting more than $300 million in order to generate supplemental payments back to the State for this.

If you add provider taxes and what Cook County Hospital is forfeiting, it totals a billion dollars per year impact on Hospitals in Illinois. Instead of addressing that blatant example of taxpayer money abuse, these rules are an easier target.

Senator Baucus is right that the States should be treated equally. The Senate should instruct the Finance Committee to identify all of the special treatment situations and report legislation to get rid of them.

The school-based administrative costs and transportation rule--CMS- 2287--ensures that Medicaid money goes for medical care--not school buses. First, those individuals and groups who have been scaring parents of a child with a disability that this rule will end their child's treatment need to hear the truth about what this rule does. Schools are required to provide such services and if a child is on Medicaid, Medicaid will continue to pay for medically necessary services. This rule ensures that Medicaid pays only for medical and medically necessary services. Medicaid administrative claiming among schools varies widely among States. There are many States that do not bill Medicaid for administrative activities at all. Much of the funding is concentrated in a small group of States.

Abuses in administrative claiming have been well documented. Comments on the rule confirm that schools are simply using Medicaid as a source of revenue to support activities that are related to education, not health care.

Medicaid reimbursement has been used for a wide variety of unrelated purposes such as instructional materials and equipment or to fund staff positions. Schools use funds to attend workshops and purchase educational technology and materials, even to support after school activities, arts and music programs.

There is no problem with those types of programs, but there is a problem when Medicaid is paying for them. If citizens at the local level decline to raise their property taxes for education, that doesn't mean that Federal taxpayers should have to pick up the tab. If State legislators increase funding for transportation rather than education, Medicaid shouldn't be the means of easing the impact of their decision.

Allowing schools access to open-ended funding of Medicaid with virtually no accountability will erode the decision making process of every school board, State legislature as well as the Federal Government.

Another rule--(CMS-2279) would stop the use of Medicaid dollars-- intended for low-income people--going to fund training for doctors.

There is no question that training the next generation of physicians in this country is important. However, it should be paid for out in the open. There needs to be accountability as to where the dollars go and for whom they are used.

Under Medicaid's graduate medical education, GME, funding, there is no obligation on the part of physicians who are trained with Medicaid dollars to serve Medicaid patients once the physicians graduate. In contrast both the military and the public health service corps require time commitments as repayments for help with medical school.

There is no authority in the Medicaid statute to pay for GME. It is not there. Congress and CMS don't even know the exact fiscal impact of this rule because states are not required to report expenditures as

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

What is the pending business of the Senate?

I ask unanimous consent that amendment be set aside and amendment 4716 be called up.

I ask unanimous consent the reading of the amendment be dispensed with.

First of all, let me compliment the chairman and ranking member on this bill. They have made some tremendous strides in trying to fix this program. The one thing we have not done is we have not asked people in this country, who are in flood-prone areas, to actually be responsible. We are going to get about $17 billion and charge it to our grandkids because we have to get rid of some debt because the insurance program had not done in the past what we intended it to do. I believe you have fairly well fixed that for the future--my hope is that you have. I am not convinced of that yet.

What this amendment does is requires FEMA and the Small Business Administration to withhold any Federal flood disaster payments and assistance to people who have not purchased flood insurance. These are people who reside in a 100-year flood plain zone, meaning that catastrophic flooding is expected to occur once every 100 years. These are known as special flood hazard areas.

Owners of properties in these flood-prone areas are already required by law to have flood insurance. Yet what we have seen is, time and time again, they do not have it. So, in effect, even though there is a requirement for flood insurance to be there, they do not have it, so the cost, in terms of disasters, goes up for the Federal Government.

The whole purpose behind this bill in the first place, when it was first initiated, was to lessen the cost of the American taxpayer in terms of disasters so owners of properties in these flood-prone areas are required by law to purchase flood insurance if they have a federally backed loan. This amendment would simply ensure that the law is enforced.

I know this is a hard amendment because what we think about is what about those bad actors, what about those who do not--what we are doing to them. But actually we ought to think in the positive, that if, in fact, you are supposed to have flood insurance and you do not, how do we ever force everybody to do that unless there is a consequence? The consequence ought to be, if you did not follow the rules of purchasing flood insurance when you lived in a 100-year flood plain zone, a high- risk area, then you are asking the rest of the taxpayers not only to rebuild your home but to also give you the benefit of not paying a premium on flood insurance. Those people in those areas are actually taking advantage of the rest of the American taxpayers if, in fact, they do not follow the law.

So this is simply saying: OK, here is the law. You have a federally backed mortgage. Your mortgagor is supposed to require that--as a matter of fact, it was fixed in 1994, I believe, that if you do not, they would. What we have seen in the last disasters is the owner did not, and the mortgage backer did not. Consequently, we had a large number of people who had no flood insurance.

Now, all this amendment says is, OK, we are putting you on notice right now, if you have a federally backed mortgage and you are in a flood plain zone and you do not have flood insurance, you do not get the disaster relief. You do not get the grant. You do not get what everybody who follows the rules gets.

The problem with not accepting this amendment is we will undermine the rest of the flood insurance program, the very good work that the chairman and ranking member did on this bill, because if there is no consequence to not following the law, not buying insurance, why will anybody buy the insurance? In other words, if we are still going to pony up the money, what is the incentive to get them to do that? I know the chairman and the ranking member are concerned about that.

Some statistics are real important. On the repetitive loss properties, what we know is that 1 percent of the properties in this country over the last 15 years account for about 34 percent of all of the expenditures. In other words, they have been damaged time and time again. And the chairman and the ranking member have done a good job in terms of addressing how we fix that in the outyears. But when one-third of the money goes for 1 percent of the homes, something is very wrong.

All this amendment is designed to do is to bring them forward so we lessen this amount. More than 50,000 of these repetitive loss properties have flood coverage right now but 61,000 do not; 61,000 of the repetitive loss properties have no flood insurance right now.

So how do we make them do it? Where is the teeth to make them do it, other than to know that next time, unless they have flood insurance, they are not going to get the benefit the rest of the American taxpayers get in terms of helping them out of a jam. Ultimately, what this does is it incentivizes us to have people take risks that would not otherwise take risks because they know we have their back. All this amendment says is, be an adult; participate in carrying some of the risk.

So when over 50 percent of the repetitive loss properties have no flood insurance, I would like to know how we are going to get them to get it under this bill if there is no teeth to make them do it.

Now, I have every intention, as I have spoken to the chairman and the ranking member, of withdrawing this amendment. But my hope would be that in conference you would address this incentive issue because I believe right now there is a large incentive not

to insure their property because we have their back and there is no hard penalty to do that.

If in fact I have a home and it is one of the repetitive loss properties and I do not buy flood insurance, we have a hurricane or a storm and it is damaged and I know I can still get it fixed, why am I going to buy the flood insurance? Especially, let's say, I do not have a loan on it. Let's say I am down there. I am in a very high risk area. I do not have any loan on it and, to me, I know if I get a flood, no problem; the Government is going to back me up.

So what we are doing is sending a signal to the people basically who have no mortgage: The rest of the American people are going to insure you for your flood. And I do not think that is right.

I will ask unanimous consent to withdraw the amendment. I think the amendment would markedly strengthen what this bill is trying to accomplish. My hope would be that in conference, if you do not like my language, you at least put something into the bill that will have some teeth that forces good behavior and forces those who own the properties to actually have some responsibility for the properties. I am not against us helping to create an insurance market. I am not sure this is the best way to do it. But we have certainly made big strides to improve the bill.

Amendment No. 4716 Withdrawn

I ask unanimous consent to withdraw the amendment.

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

Mr. President, I thank Senator Dodd. I think when you fixed this in 1994 or 1997 is when you required the banks on the mortgage to have a notice and pay it and then add to it. But it obviously was not enough teeth to get us up to where we need to be. So I think we need something stronger than that.

Overall--and this is no reflection on the good work that has been done on this bill but we have to ask ourselves--we are talking about $30 billion with this bill. That is going to actually go against the Treasury. We are going to have $17 billion that we are going to kiss off. We are going to say the people who are living in these flood-prone areas, because their insurance did not truly reflect--we did not have it spread broadly enough, $17 billion of it we cannot pay back, so we are going to forgive that.

Well, what does forgiving that mean? What that means is we are going to take the money from the Treasury, we are not going to charge it to the National Flood Insurance Program, but someone is going to have to pay that off. And who is going to pay that off? It is going to be our kids. And there is almost $9 billion in interest that is going to be not paid off, so we are going to charge that to our kids. Then there is another $3 billion still, I understand, to come from the Katrina-Rita- related storms in terms of payments that are also going out.

So what we are going to have is $30 billion, because the program was not actuarially sound in the past, that now we are saying to our kids and grandkids we are going to make actuarially sound, and they are going to pay.

So what we are doing with this bill--and, again, it is not an indictment. You made a lot of headway, but there has to be another way to fix this rather than charge it to our kids. So when you take this $30 billion, on top of the 10 we have now and the $74 trillion that is coming, we have a significant debt in terms of being fair to the next generation. This bill underlies and forgives all the debt to the Treasury, and it translates into roughly $30.2 billion. That is how poorly the program worked in the past.

Again, I think we have made major improvements to the bill. But I believe it is important enough for us to vote on whether we want to send another $30 billion toward our kids rather than make people who have homes in flood-prone areas who are getting the benefit from it pay for a portion of the cost.

Mr. President, I make a point of order that the substitute amendment violates section 201 of S. Con. Res 21 of the 110th Congress and ask for the yeas and nays associated with that, according to however the chairman would like to schedule votes.

I know he will make a motion to waive the point of order. That is expected. But I would like to have a vote on that, if I could.

I would like to make one more point. Politics is politics, but in the realm of politics the long term is what is getting ready to happen in this country because we are on an unsustainable course. I believe we have to be guardians for the future. And I believe in waiving the pay-go rules we are not doing that; that we are not a guardian for the future.

If you think about $30 billion, you are asking every person in this country this year to pay an extra $100 because this program was not funded and arranged properly.

What we also ought to consider is making sure we never do this again. And I would hope that when and if this budget point of order is waived the chairman and ranking member will put something in the bill that prohibits us from going back and ever waiving debt for this program again.

He wants it actuarially sound, I know that. I know the ranking member wants it actuarially sound. But it is truly unfair, when we spend $28,500 per household at the Federal Government level and the median income in this country is $42,000 and we are already spending 70 percent of that at the Federal Government level and a third of it we are not paying for, we are borrowing from our children, to add on another $30 billion. What we are talking about is opportunity. We don't want to be tough enough now to not take opportunity away from our kids. So the choice is, can we have what we want now and it not hurt our children. The fact is, we can't. We are hurting our kids when we borrow, when we forgive this money. What we should be charging this money to is to the people who have benefited from the coverage. That is who ought to be paying for it. That is who got the flood insurance at a falsely low rate. My hope is that we think long term, not short term. I know you have done that to a great extent in the bill. But my hope is that somehow when you are in conference, that you might put some type of prohibition of ever waiving the debt again, to force the program to always be actuarially sound. If we could do that, we would not ever get to this point again. I know the chairman doesn't want us to get to where we are waiving this debt again, which will force the flood insurance program to be on the same footing as every other insurance company.

I thank the chairman and ranking member for taking two of my amendments, one a study on reinsurance. The reinsurance we have right now is the American taxpayer. That is who is going to do the reinsurance this time of $30 billion. I am appreciative that they considered this and accepted it.

I yield the floor.

I want the record to show I voted against the last supplemental because it was not paid for. No. 2, it had $27 billion of extraneous spending that was not paid for either that was offered by the Appropriations Committee. It has to start somewhere. I am OK with it starting with me. I don't earmark anything back to Oklahoma. I look at every appropriations bill and see if it is wise. So consequently, I vote for few appropriations bills because they are not wise, with the waste that is in the Federal Government.

One final point. According to GAO, IGs, and the Congressional Research Service, we have $300 billion of waste a year in the Federal Government. The Congress didn't do anything about it. We have plenty of ways to pay for the war, pay for this, and do other things, if we do the hard work of oversight and make the hard choices about prioritizing what is important. But we find that very difficult to do as a body. I am worried that we find that because we are not thinking long term. We are thinking short term.

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

Mr. President, this is a great choice. We can prove to the American people we either really care about the budget or not. This violates pay-go rules. We shouldn't send $30 billion to our grandkids. We ought to take it from some of the excess we have today.

I agree Senator Dodd and Senator Shelby have done a good job on this, but I don't think our grandchildren ought to pay because we designed a program in 1977 and modified it in 1994 and it still doesn't work and then have them pay $40 billion. We ought to enforce the pay-go rules, and we ought to come up with another way to pay for this money.

I thank the Chair.

I yield the floor.

Mr. President, reserving the right to object.

Mr. President, I will not take the time now to go into detail. I will wait until the Senator from Washington finishes her speech.

I will say I have a personal involvement with this issue. My sister has breast cancer. My sister-in-law has breast cancer. My most cherished person in the world besides my wife and children and grandchildren died of breast cancer. She was a breast cancer nurse specialist. I understand the disease. We spend more on breast cancer research than any other cancer in this country today. We spend $100 million on environmental causes related to breast cancer research.

I don't object to us spending money on breast cancer research. I object to us making the decisions about what the scientists know we should do versus what the politicians want us to do. So I will spend some time after the Senator from Washington State speaks outlining in detail my opposition to putting one cancer ahead of the other 70, No. 1; and one disease that--specifically, we are going to put one specific disease and one ideology of a specific disease ahead of all of the others, and I will outline that in detail.

On the basis of that, I will object.

Mr. President, reserving the right to object.

I would like to ask the majority leader a question. Are you aware of the thousands of studies that have already been published--

Are you aware of the thousands of studies that have already been written on this subject?

Mr. President, I appreciate the majority leader's response to my question. The reason is because the policy is wrong. We passed the NIH Reform Act just to eliminate this sort of issue because what we know is, out of the 2,037 diseases, we don't know which one to fund properly. We don't know which one to spend the most money on, but peer-reviewed science does. So what we have decided is, because we have a very effective lobbying group on this because it does impact hundreds of thousands of women, we are going to step right back in the middle of the NIH reform and say we didn't need it.

So the policy of us directing spending on research when we don't have the knowledge base to know that is the right thing to do--and the researchers agree with this, that we don't have the knowledge--in the context of all of the other 2,037 diseases, I will object to moving forward on this because the policy is wrong. It is not about debating it. I am happy to debate it all you want. But the policy is wrong.

Who says that the women who died of breast cancer this year are more important than the same number of people who died from lung cancer that is not related to smoking? Are we going to say that? Should we tell the NIH everything they should do, every amount of money, every disease we should decide, based on the effective lobbying of people who are absolutely affected--there is no question about that--but should we make that decision? The answer is no, we shouldn't. We should let the experts, not the Senators, not the Representatives, but the scientific experts make those decisions. We have given that charge to the NIH. That is what we ought to do. They would more sooner come to a cure and solve the problem than with us micromanaging the NIH.

With that, I object.

Mr. President, there is $38 billion worth of fraud in Medicaid. We are on an unsustainable course as a nation. We have $74 trillion worth of unfunded liabilities. When we talk about controlling spending and earmarks, we always hear it is a mandatory program.

Finally, not all of what the administration has done do I absolutely agree with but on key points I do. These rules will make a difference. If we are interested in fraud, let's write the regulations to get out the fraud. That hasn't been the offer. All we are willing to do as a body is say to the administration you have ideas that will get rid of $42 billion worth of fraud over 5 years, but we don't like it because we are feeling pressure from the State Medicaid directors, when we know States game Medicaid. A great example: There is nothing in this to stop any Medicaid Program from taking a child from school to the doctor, but it does stop the 500-some-odd million dollars being spent on transporting schoolchildren back and forth to school who don't have a medical appointment. So what we have is a system that has been gamed. We have allowed it.

Now the administration put something forward which we don't like and which we ought to negotiate with them to change, rather than saying you are not going to do any of it. The fact is the unfunded liabilities associated with the Medicaid Program are about $12 trillion. We are going to do something--just forget it.

I applaud the administration for making an effort to try to fix some of this. But to say you cannot do any of it, when some of it is very badly needed, is wrong. So unfortunately, Mr. Leader, I have to object again.

I am objecting not solely for myself. I am happy to work on trying to put together a proposal with the administration that would make a difference and then bring it to the floor.

Two weeks.

May I inquire how much longer the Senator is going to be?

Mr. President, I ask unanimous consent that I be recognized following the Senator from Washington.

Mr. President, I wish to spend a few minutes answering the question as to why would one Senator, in the light of all the other Senators who have cosponsored this bill, stand and block a bill that 60 some Senators want to see passed? I think it is a great time for us to define what is wrong in our country today.

What is wrong is we think about the next election far off and more often than we think about the next generation. I want us to cure breast cancer as badly as anybody else. The point Senator Reid did not tell you is we are already spending $100 million on this very subject, the environmental connection to breast cancer. We are also spending more on breast cancer research than we are any other cancer, and yet it is not the leading cause of death.

We are going to have 160,000 people die this year from lung cancer, the

same number who are going to die from breast cancer, 40,000 of which have no relationship to smoking, but you do not see anybody on the floor telling the NIH to do a study between the environmental effects and nonsmoking-related lung cancer.

The reason it is important is a little example of penicillin. It is a great example. We stumbled onto that through the science of microbiology, but we would never have gotten there if we had told the NIH: Study scarlet fever and find a cure; study strep tonsillitis and find a cure; study syphilis and find a cure; study gonorrhea, and we had gone four or five different ways. The point I am making is basic research is what we ought to be doing.

In the mid-nineties, I was one of the strong advocates for increasing the size of the NIH budget. It ought to be twice what it is today. The reason it is not $60 billion a year instead of $29 billion is because we will not fix the waste in Medicaid of $42 billion over 5 years, we will not fix the $90 billion in fraud in Medicare, we will not fix the $8 billion that was paid out by the Pentagon for performance bonuses that nobody earned last year, we will not fix the $50 billion that is associated with waste within the Pentagon. Nobody will fix it. We had one wheelchair that was sold multiple times for $5 million to Medicare in Florida alone--one wheelchair. We will not do the hard work that creates the long-term best interest for our country, but we will certainly respond to--granted, very real issues, but in an inappropriate way that does not get us where we want to go.

The NIH budget spends more on breast cancer research than any other research. We are going to spend $100 million on research on the link between breast cancer and the environment. Plus, the Defense Department is going to spend another $138 million, and the Centers for Disease Control and Prevention combined is greater than $1 billion. There is not any other disease we do that on right now. Yet we are going to tell them to do more of the same they are already doing, and we are never going to think about the other people with other diseases, the other 2,037 diseases that are not as well organized and have nowhere close to the same investment at NIH.

The point is, the hardcore, heavy-duty, peer-reviewed science ought to guide us, not emotion, not my poor cousin Sharon Wetz who died 6, 7 years ago of breast cancer, not my sister who has breast cancer, not my sister-in-law who has breast cancer. What we ought to be doing is what is in the best overall good for this country as a whole. And if we need to spend more money on breast cancer, then the way to do that is to get rid of some of the waste and double NIH, but any dollar we spend on breast cancer is a dollar we are not going to spend on colon cancer, it is a dollar we are not going to spend on thyroid cancer, it is a dollar we are not going to spend on lymphoma, because we are going to take it away.

In this bill, it says this should not interfere with peer-reviewed research. If that is the case, then this will never get appropriated. So either this bill is about doing research or it is about a press event for a politician. I will tell you, I think it is the latter.

In 2006, we modernized the NIH to keep exactly this thing from not happening. We took away all the silos. We gave the Director the power and the authority to start making great decisions based on what the raw science was telling him so when we invest in raw science, we magnify the potential benefits that come from it. Now we are going to go back and say we are going to start picking diseases; we are going to start managing it. Why do we need a staff at NIH? Let's let the Senate pick every disease and how much we are going to spend on every one of them; we obviously are qualified.

We are not qualified.

I find it amazing--I do not doubt Senator Reid's story, but as a surgical resident in 1984, I was doing cystoscopies and diagnosing interstitial cystitis. We didn't think it was psychosomatic. We knew it was a real disease 3 years before Senator Reid came to the Senate.

The question politicians ought to be asking is what is NIH doing? Where is the oversight on what they are doing? Find out what they are doing. How does their work rank in comparison to the other disease initiatives at NIH? We have not had a hearing on that issue.

The HELP Committee has had hearings on multiple speciality disease bills. So we are back into answering a real need, but maybe it is not the best priority. What if we spent the same money we are going to spend on this disease and we got a breakthrough that cured all cancers, but because we decided we were going to reconnect with one specific aspect of one potential risk for one cancer, we missed it?

The wisdom of this body has to be to think in the big picture and in the long term. I have diagnosed breast cancer over 500 times in my medical practice. It is a gut-wrenching, life-changing disease. Fortunately, we have had great improvements in it and our diagnostic skills are getting better, especially with digital MRI on breast examination. Early diagnosis has an impact, but what we do and how we do it is going to matter.

I will put forward that Senator Reid can bring this bill to the floor, and if he brings it and we take the time--and I am more than happy to take 4 or 5 days to talk about how we should work at NIH, and I am happy to do that--and the bill will pass, but then are we going to do the same thing with every other disease the HELP Committee brought out? There are about eight other bills just like this bill. We are going to tell NIH: You have to spend this money here, you have to do it here. Regardless of what the raw molecular science says, regardless of what the peer-reviewed literature says, we are going to tell them what to do. Consequently, we are going to delay scientific discovery.

My opposition is not that I don't want to cure breast cancer. My opposition is not that I don't want us to find a cure. I want to find a cure for all of them. I am a two-time cancer survivor. I would love to prevent colon cancer. I don't like walking around with half a colon. There are a lot of consequences to it. I don't like having melanoma and having half my neck taken away. I don't like it, but I don't want colon cancer to displace possible cures for everybody and in the best interest of this country.

Will I object? Every time I come to the floor I will object because I think the ultimate underlying policy is wrong. The way we solve breast cancer in this country is double the NIH funding and let science drive the way we need to go. The way we double NIH funding is get rid of the $300 billion waste, fraud, and abuse that is in the discretionary budget every year which most of us don't have the courage to attack because it might gore somebody's ox.

To those who have breast cancer, as a physician and somebody who has been through cancer, I know your fear. I have been there. I have experienced the questions. I have experienced the chemotherapy. I have experienced the losing of 30 or 40 pounds. I have experienced the nausea and vomiting that is persistent with you for 4 or 6 months. Most of all, what I have experienced is, we have a great health care system and great research in this country that is saving a lot of lives. If we will get our hands out of it as politicians, they will be able to save a whole lot more lives than when we put our hands into it and tell them what they must and shall do.

I thank the good Lord for the time he has given me. I am 5 years out this month from colon cancer. There is no guarantee, but while I am alive, I am going to do things that are in the best long-term interest of our research for health care, that give us the most life for the dollars that we invest. If that is pleasing politically, great. If it is displeasing politically, it is OK too. What is important is we are good stewards--not just with the money but with the direction to allow science to lead us to cures.

I yield the floor.

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

Mr. President, I wish to spend a minute talking about what a supplemental is because oftentimes the words we use up here do not have the clarity for the American public as to what they really mean. A supplemental appropriation is an appropriation that is outside the budget. What does that mean and what does that mean to the average taxpayer? That means all the money that is used to pay for the supplemental will be borrowed. It is not coming from taxes today. It does not fit inside the pay-go rules. It purely and simply is borrowed from our children.

I have significant problems with that. If you look back at our history, President Roosevelt cut 29 percent out of his favorite domestic programs during World War II. President Truman cut 26 percent out of domestic programs to pay for the Korean war. We routinely, year after year, charge the war to our children.

I raise the issue for two points. No. 1 is that is the way the President has chosen to do it, and I fault him as well as the Congress. But No. 2 is this great propensity of ``legislators'' who add everything including the kitchen sink to it because it is a free pass and it is outside the budget.

The last appropriations bill that we did that was a supplemental had $17

billion added to it that did not have anything to do with the war, didn't have anything to do with priorities in this country, didn't have anything to do with that other than adding things on because it was outside the budget so they could spend more inside the budget.

I am in my fourth year in the Senate. One of the things we have done ever since I have been here is try to root out waste, fraud, and abuse. There is no question right now that in the Federal budget--almost $3 trillion--over $300 billion right now that is in the appropriated programs and in the mandatory programs is lost to fraud, waste, and abuse. So we are going to be bringing a bill to the floor for $120 or $107 billion, plus probably another $10 or $15 billion that the porkers will add to it and oink all the way, and nobody is going to offer anything to offset it out of the fraud, waste, and abuse--the waste we have because we are not paying attention to the running of the Government. We hear this big debate about earmarks, the prerogative to make sure that we point to things. The fact is, the way you point out things is to do oversight on the waste, fraud, and abuse.

If you think this is not accurate, let me give you a list of where the waste is. There is $90 billion worth of fraud in Medicare right now, and there is $10 billion that we pay that we inherently pay wrongly. So that comes to over $100 billion in Medicare alone that should not be going out the door. We are not doing a thing about it. Nobody is going to offer an amendment. It will not even be judged as in order with the rules, to get rid of the fraud in Medicare. Medicaid is same thing--$30 billion in fraud, $15 billion in overpayments for people that we just made a mistake in paying. No, there is not going to be anything offered during the supplemental to fix that, so right there you have $125, $130 billion that would pay--just in fixing Medicare and Medicaid fraud.

There will not be a rule that will allow us to vote on that. There will not be a way for us to do it because that is hard work, and we do not want to do the hard work.

Social Security disability fraud, $2.5 billion; the governmentwide overpayments, improper payments, overpayments for other things, $15 billion. These are not my numbers, these are documented numbers by either the GAO, the Congressional Budget Office or the IGs; $8 billion that the Defense Department pays out for bonuses for companies that did not earn the bonus or performance awards.

There is not going to be anything in this to fix that. It is not even going to be made in order. And $4 billion that we are being defrauded on a crop insurance modernization program, where we allow for crop insurance a higher rate of return than any other casualty or insurance company could earn.

No bid contracts, $5 billion. U.N. contributions that are purely waste, that get defrauded and wasted, $2 billion. We buy $64 billion worth of IT projects a year, and at least 20 percent of it is wasted. That is another $12.8 billion.

Nobody is going to fix that on this. No, we are going to borrow the money from our children. So I raise the issue that we are going to pass a supplemental, and the games are going to be played on it like they are every year. People are going to add things that are not a priority; they are going to add them in--they are not in the budget--knowing they are going to go straight to the debt. Is it in our interest for us to consider, as we do the supplemental, what we are spending right now per American family on different things?

Let me spend a minute to outline that every American family is paying $8,668 for Medicare and Social Security every year; every American family is paying over $5,000 a year to defend this country; we are spending $3,752 for antipoverty programs every year; we are spending $2,000 a family for interest on the national debt, which is going to be higher next year because we are going to borrow all the supplemental and add that to our debt.

Federal employee retirement benefits cost every family in this country $1,000 a year--$1,000 a year for every family. Veterans' benefits, $750 per family; health research and regulations, $692; education, $578; highway mass transit, $455; unemployment benefits, $320; international affairs, $300.

We have a deficit that is going to be $800 billion this year. While Congress sits on its heels and has debates about legislating or not legislating, we are going to continue the same bad habits of not holding agencies accountable, not being transparent about what we are doing, and we are going to say we funded the war, but we are not going to make any of the hard choices about it.

When this bill comes to the floor, it is going to have $17 to $20 billion that does not have anything to do with the war but has everything to do with political directives outside the budget so we can spend more money.

Washington does not need a raise, it needs a cut. It is time for us to pay for the war by getting rid of the waste, fraud, and abuse in this Federal Government. Unfortunately, there is not the character or the courage in either the House or the Senate to take on that fight because it might impact political careers.

So as you listen to the debate when we come up with the supplemental, we need to fund our troops, there is no question about it, but we should not be funding our troops on the backs of our children. We should be funding our troops on the backs of us, and we ought to be doing that every time.

So I am going to do all in my power to try to offer amendments to offset the funds in this war supplemental. I know the rules will prohibit me from doing many of them. But I am not going to stop talking. I am not going to stop talking about the $350 billion that goes down the drain and steals the future and opportunity from our children.

That is exactly what we are going to be doing. And we are going to be smiling all the way through and patting ourselves on the back that we funded the war. But we did it on the backs of those who do not have the same opportunities we were given. We are going to steal those opportunities from the next two generations.

It is time for Congress to start doing its job. That means tough, rigorous oversight and staying within the budget guidelines and spending the money like it was ours, not like we had an unending credit card that never comes due.

I yield the floor.

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

Madam President, I wish to spend a few minutes just to make some observations during this short debate we are going to have before the amendments are voted on.

We are going to have a vote on the Boxer amendment and then on the Coburn amendment, both trying to get to the bottom of a problem. We have agreed to a 60-vote margin on both of those, but I wonder what happens to this issue if neither of those amendments gets 60 votes, and why are we having a 60-vote margin? Everybody agrees that this amendment about a postenrollment change to a bill needs to be solved. The mystery surrounding how it happened, where it happened, and why it happened needs to be solved. But now we have before us a hurdle which, in all likelihood, will eliminate our ability to find out.

It is claimed, and understandably, that my amendment would look into a problem in the House. That assumption, however, is incorrect because nobody knows exactly where this enrollment change happened. Some may think they do, but we don't know that.

Second of all, and probably more importantly, is the fact that a bill agreed to by both Houses of Congress was changed before it got to the President without our knowledge.

There also is the claim that if, in fact, we would have a bipartisan committee, with Members of both Houses looking into this, it is somehow precedent setting. It is not. In 1992, the House and Senate did combine--not on this specific issue--so there is a precedent there that no one can deny, that we looked at rules and processes and procedures, and we did that without any difficulty.

On the other side of the aisle is the Boxer amendment, which says we are going to ask the Justice Department. We are not going to ask them, actually, we are going to tell them that they shall do this.

The argument has been made that the speech and debate clause is violated by my amendment. I don't think that is accurate, but I will take that as an argument. But for the Boxer amendment to pass, the separation of powers will be violated. These are not laws. These are rules of Congress. Yet we are going to now invite in the executive branch to handle what we refuse to handle? The cynicism in me says that maybe we don't want to know the answer to this question.

We very simply could have had a majority vote on both of these, and the one that got the most votes would have won. We don't have the parliamentary power to force that to happen, and we do have the concurrent agreement of the chairwoman of the EPW Committee to have a vote, which I appreciate. I would not tell her that I do not appreciate that. I do appreciate the opportunity to have a vote. But the question still remains: What happens if we don't get 60 votes? Will something happen on this?

What I want us to do is restore the integrity of the enrollment process. If we fail to do that, if we fail to do that and if we invite the executive branch into our Houses, we have failed--we have failed to live up to our own responsibility in the Senate and in the House, and we have failed to protect what is truly a separation between us and the executive branch in how we have gone about it.

So I thank the good nature and good humor of the chairman of the committee for the lively debate we had yesterday. But, someday, somebody will write about this issue, and I am not sure history is going to be very kind to us as we worry about partisan issues, who gets credit, who didn't, pointing fingers.

The fact is, we have a problem that should be solved by a joint group of Members of this body. To say we can't do that denies the fact that we have integrity. We do have integrity. We do have honor. We do have commitment. And most of all, we want to build the confidence of the American people in Congress. I believe that will happen under my amendment. I am not sure it will happen if we don't pass it. As a matter of fact, I am certain that if we don't have one of these that gets accepted in conference, we will not be able to claim that.

I have heard the statements of the chairwoman of the EPW Committee, and I believe her statements. So whatever happens here, it is my hope that she will encourage that to happen in conference. It won't be telling the House what to do; rather, it will be asking them to concur that we ought to look into this.

Washington has a problem, and the problem is this: We are not believable

to the American public. More than 70 percent of the people in this country have no confidence in us, and we ought to be about repairing the institution and repairing that confidence.

With that, Madam President, I yield back.

Madam President, I will repeat the three points I think are important. No. 1 is we do not know enough. The next amendment relates to the Justice Department if we do know enough.

No. 2 is I am very hesitant to set a precedent that invites the Justice Department to come into the Senate and House to investigate us.

No. 3, and finally, the Justice Department does not have to do it even if we say they shall. They do not have to do it. There is no force of law that we can make the Justice Department come and investigate us. If we did, our forefathers would roll over in their graves. That is what the separation of powers is all about. When we go directly to the Justice Department, we shirk our responsibility to control our own house and bring our own Members under it.

I urge my colleagues to not support this new precedent setting seeking of the Justice Department, in violation of the separation of powers, to come into the Senate and the House to do an investigation before we have done our own investigation to find out the jot and tittles.

I yield the floor.

Madam President, we have voted an invitation to the Justice Department to investigate a rules violation in either the House or the Senate. We have set an amazing precedent.

What we recommend is a bicameral committee made up of four members of each body, two from each party, that would report back to the appropriate ethics committee or to the Justice Department, if there is, in fact, an infraction of law.

My hope would be that we would take care of the problems in our own body. The House would take care of the problems in their body and that we would, in fact, give greater than 36 votes to this amendment.

Madam President, I ask for the yeas and nays.

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

Madam President, I ask that the pending amendment be set aside and at the appropriate place amendment No. 4538 be inserted into the Boxer substitute.

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

Madam President, I am on the floor this afternoon because a few years ago something happened in Congress that should never have happened. What happened is a bill passed the House and a bill passed the Senate. A bill that both Houses agreed to was changed before it went to the President. We do not know where it was changed or who changed it. We do not know the details of it. There has been speculation in the press, but we do not have any real knowledge of how this happened. But there is a principle, and the principle is, if we cannot trust what we agree to in both bodies of Congress will be sent to the President, then everything we pass has to be suspect.

This is a hard amendment to offer because there is a lot of angst around looking at ourselves and looking at the problems. But the one thing we do know is the American people expect the process to be one that is open, one that is accurate, and that when the President gets a bill, it truly represents what the Congress intended.

What actually happened? On the highway bill conference report passed by Congress, item 461, there were widening improvements for the I-75 corridor in Collier and Lee Counties in Florida. What actually went to the President was different. This was changed to Lee County only and for an interchange. Somehow that got changed. This money has been rejected three times by the citizens and their elected representatives in that area because they do not want an interchange. What they wanted was to widen I-75 in terms of hurricane evacuations.

As I said, we do not know how this happened. There is press speculation. We don't know if it occurred in the Senate. We don't know if it occurred in the House. What we do know is it did occur, and nobody can dispute the fact. And this bill, thanks to Chairman Boxer, corrects that and puts it back to what the original intent of Congress was, what Congress intended originally.

Some will say: Now that we fixed it, we don't need to do anything about it.

But the problem the American public has in terms of confidence in us is that we will do the right thing, and the right thing is to figure out how something such as this happened and make sure it never happens again and put in the safeguards so we know it will not happen again. I believe it is time for Congress to look at this issue and fix it.

Many of my colleagues say we are treading on dangerous water because if this occurred in the House, we are forcing the House to look at something, one body telling the other body to do something. We don't know where it occurred.

The amendment I am offering creates a committee of Members, four from the House, four from the Senate, that will look at this issue and make appropriate recommendations to the appropriate bodies; that is, the House Committee on Official Conduct and the Senate Ethics Committee or any law enforcement officers.

I understand that there will possibly be a second-degree amendment, and this ought to be offered and made, that the Justice Department look at this. That can certainly happen in due time, but there is this little issue of separation of powers. We have the responsibility in Congress to do what is right.

It is very interesting the debates we have had, especially in this Congress, about separation of powers and not wanting the executive branch to take power away from us. However, we are thinking about offering a second-degree amendment that would do that.

I believe in the people in this body. I believe we all do not like that this happened. I believe we all want to see that it never happens again. The best way to do this is to have an investigation, two Members appointed by the Speaker and two Members appointed by the minority leader in the House, two Members appointed by the majority leader in the Senate and two Members appointed by the minority leader in the Senate. So we have eight Members reporting back to us what happened and making recommendations to the appropriate committees, not necessarily to us.

As we all know, Senate ethics investigations, as well as House investigations in terms of official conduct, are not public. We don't know if something is going on regarding this issue now. But what we do know is something happened, and we ought to be about fixing it.

My worry is if we modify this amendment or we do not agree to this amendment, this is going to be the feeling of the American public: Is this political? Can we not control the rules of our own body in terms of enrollment?

It is interesting what Jefferson said when he talked about this in his manual. He described what should and shouldn't be done when a bill has passed both Houses of Congress.

The House last acting on it, notifies its passage to the other and delivers the bill to the Joint Committee on Enrollment, who sees it is truly enrolled in parchment. When the bill is enrolled, it is not to be written in paragraphs but solidly, all in one piece, that the blanks between the paragraphs may not give room for forgery.

That is, in essence, what happened in this case. Now, that is not a case for the Justice Department to investigate at this time. That is a case for us to investigate and look at our own rules. The fact is, something went terribly wrong on the way of a bill going to the President that was different than both Houses of Congress passed.

I understand the angst of someone coming from the Senate and saying this ought to happen, and I understand we don't want to get in a fingerpointing mode. But if the House agrees with this in conference, it will happen; and if they do not agree with this in conference, it won't happen. But what should happen in the Senate should be that we look at this so we can create the confidence that the American people deserve to have in this body to know that when we pass a bill out, that the bill we passed is actually the bill the President signs.

I am thankful to the Transportation Committee and Chairman Boxer and Ranking Member Inhofe for clarifying this and fixing it. It is right that it should be done. It is right that the original intention of it should be done. But that is not good enough. That is not good enough for the American public. I understand the desire of the chairman of the committee to move this out of our hands and into the Justice Department's hands, but I have some problems with that. One is this idea of separation of powers. What other powers are we going to give up when we can't handle a simple investigation into what went wrong during the process of enrollment?

The second thing is, my legal staff tells me we cannot mandate to the executive branch what they will and will not investigate. So should they choose not to investigate this, we will have been no further down the road. But the 100-percent guarantee that it will get investigated is if we have Members of both bodies investigate this and come to a resolution so it does not happen again.

It doesn't matter whose bill it is, and it doesn't matter which party's bill it is. If a bill, no matter whose bill it is, is changed, it affects the whole country, and it affects the confidence in this body. This is an ethical issue for us, if in fact it involved the Senate.

The easy thing would be not to offer this. That is easy; you don't make other Senators uncomfortable with you; you don't have the chance that the House could be upset at what we are suggesting in a conference, if they agree to us jointly in investigating this. We could sweep it under the rug as if it never happened because we corrected it. But it did happen. And by not investigating it, it means it can happen again.

This is not without precedent. I believe in 1982 or 1992, this same thing happened and it didn't get investigated. It just got changed. So here we have it happening again, and only because of some very good work in the press were we made aware of it. Consequently, we ought to be the ones to fix it. We ought to take responsibility for our actions and we ought to correct the problem that happened with this, wherever it may be. If it happened in the House, the House should correct it. If it happened in the Senate, the Senate should correct it. But at least we ought to know the details of how and why, and then, if appropriate, a referral, if in fact that is justified. If it was a simple clerical error, we will know that. If it was more than that, we will know that.

The fact is, by not doing this, what we are saying to the American people is, oops, we had a mistake that is paramount to the quality and the clarity of how this body functions, and we believe it is not a grave error. Well, I happen to disagree. It is an entirely egregious error because it impacts every other piece of legislation.

If I as a Senator can no longer trust that the bills we pass in Congress, after they are enrolled, are exactly what we pass, then I now have to spend the time looking at every bill after it has been enrolled to make sure it matches. None of us has the time to do that. That is what we entrust the Secretary of the Senate and the Clerk of the House for.

So somewhere along the way, something changed. We need to know that. We don't need to play the same political games. We don't need to play a partisan game with it, because nobody knows for sure who did what. What we do need to do is to do the hard work of looking at what went wrong and making the appropriate changes.

I note there are several cosponsors, and the Presiding Officer is one. She has been a great addition to our body because she seeks clarity and transparency in what we do here; also Senator McCain and Senator Obama, as well as Senator Martinez and Senator Nelson of Florida. They are the two Senators where this had the most impact.

I don't come to the floor lightly saying we want to poke at people, but I do think it is important for the integrity of our body that we, along with the House, get to the bottom of it. It was my hope we could work this out without trying to refer it to the Justice Department. If in fact it needs to get there, it will get there after appropriate investigation.

To bypass us and give up our power to correct things that are wrong with our rules--not laws, our rules--seems to me to be the antithesis of what we have debated so many times in this Senate over the past 9 to 15 months about the executive power encroaching on the Senate. Now we are ready to give that power away for something that is duly ours and set a precedent

that we are going to ask the Justice Department to investigate us? We ought to be investigating ourselves.

We have the integrity, we have the quality, we have the people, and we have the goodwill of all the Senators of this body and all the Members of the House to do that. Because the institution is more important than any one of us. What we do for the American people has to be more important than any one of us. So it is my hope--I will not take much more time--the Senate will concur.

This is done with all sincerity. I am pointing a finger at no one. But I think if we do not do this, by a second amendment that takes it away, what we will have done is to abrogate our responsibility in terms of the clarity of our purpose and the quality of our work. And if we choose to do that, here is what we will find. We will find another notch down the confidence in Congress by the American people, if we refuse to look under our own bedsheets for our own bedbugs and give that responsibility away.

I appreciate the help of the staff of the committee. They have been very forthright in working with us. As I have said before, I appreciate Senator Boxer's cooperative attitude on this. We disagree on how best to handle this, and I understand her right as the chairman and as a Member of this body, but my hope is we don't give away powers that are ours. The separation of powers is a very important concept in this body, and to abrogate our responsibility and appoint it somewhere else, when we don't have the facts--that can always happen afterwards.

In fact, this amendment states that appropriate referrals will be made to both Ethics Committees of the House and Senate and to law enforcement, if necessary. So my hope would be that we could vote this eventually and look at it. I think it is paramount for the quality of our work.

Madam President, I reserve any time I may have, and I look forward to the comments of the chairman.

Madam President, first of all, I thank the chair for her words. I stated that this amendment language is based on a very big precedent established in 1992 in this body with a joint committee of Members of Congress to look at the rules in both Houses, to look at the processes in both Houses. There is a precedent. There is not a

problem with the debate clause. I think that is not a prudent argument to be against this.

The Justice Department will eventually get this if, in fact, we find out there was a crime. I also make the point that nobody knows right now where this occurred. At least I don't. Nobody knows what the facts are, so the assumption we are making that we would be involved in investigating the House is--we do not know that. At least I certainly do not know it, and I have kind of been looking at this for quite some time. So it is an assumption that we are going to have, necessarily, an investigation of the House. We may be having an investigation of the Senate.

The fact is, we have a good precedent for this. This was a Joint Committee on the Organization of Congress, H. Con. Res. 192, in the 102nd, and it looked at everything. It didn't just look at one specific thing. So there is precedent for it.

More important is the separation of powers issue. What we are saying to the American public is we do not have the power to control our own body and that we have to ask the Justice Department to come in and do it. If there is a criminal violation, they certainly ought to be involved in that, but we do not know that yet.

First of all, these are the rules of the Senate. They are not law. We are asking them to investigate the rules of the Senate, not a law; therefore, we are giving power to the executive branch, we are asking the executive branch to come in. My great worry--there is no question, Senator Boxer's amendment will do this. It will get an investigation, if they will come and do it--there is no way we can force them to come and do it--and we will get to the bottom of it.

But I am worried about the integrity of the body, saying to the American public that we cannot police ourselves; we cannot do it; we do not want to take the heavy lifting it is going to take. And I do not believe a four-by-four panel of two Democratic Senators, two Republican Senators, two Democratic Congressmen, and two Republican Congressmen-- and this committee has the right to not do any of this in public if they do not want to. The committee totally gets to do this. Nobody wants a circus. I am even reticent that I am actually here making this point. I think it is a pox on our body that this happened, but I think it needs to be addressed.

My hope is that people will not take a partisan viewpoint on how they vote. My hope is they will think about the institution of Congress, they will think about the separation of powers, they will think about the difference between laws and rules of the Senate and rules of the Congress. Then, if a referral needs to be made to the Justice Department, we would do that, but that would most appropriately come from our Ethics Committees, not from this committee--after a referral from this committee to the Ethics Committee.

The chair of the Ethics Committee cannot say whether they are looking at this right now. They may be. They may not be. We do not know. The Justice Department cannot say whether they are or not. So we do not know what is happening.

The point is, something needs to happen. I worry that when we tell the American public we are not capable of looking into our own dysfunction, that, in fact, what it says is that we give up power to the Justice Department to look at how we enroll bills and whether we violated the rules under how we do it. I have a real concern with that. I have tremendous concern with that, especially since we made such a large issue of separation of powers in this Congress.

I will make one other point, and it is not to demean the Senator from California. If this were important to the committee, why was your amendment not part of the committee mark? If, in fact, the committee was enraged over this, why was this not a part of the original committee mark?

Why have we not addressed this in the original committee mark or the substitute? We corrected it--and I said, while the Senator was out, I was thankful that the problem was corrected. But the issue of how it got changed is not in the committee mark.

This amendment, this second-degree amendment, comes on the fact that we are trying to offer what I think is a cogent way that has precedent in both the House and Senate for solving this. That is probably just an oversight because I know the Senator cares deeply about this. I know she was upset about it. With everything they had to do to bring this bill to the floor as quickly as they did, that is probably what happened. But the fact is, we are at this point. If the body wants the Justice Department--if we want to give up that power to the Justice Department, the body will vote that, and that is fine.

The last point I will make, and I will not continue on a lot further, is this does not force the House to do anything. Let me tell you why. This bill will go to a conference committee, I believe, of which Chairman Boxer will be the head, and all the House has to say is: We disagree with this; we do not want to do this; we do not want to have a committee look into this. The House has that option, and if it does not agree to it, it will not come out of the conference committee and we will not do anything on it.

The same is true of her amendment in terms of the Department of Justice. But it is important for the American people to know whether something happens on it and whether we do it in a way that emboldens and strengthens the institution of Congress or weakens it.

Amendment No. 4540 to Amendment No. 4539

Before I yield the floor, I have a second-degree amendment at the desk. I ask for its immediate consideration.

I reserve the remainder of my time and yield the floor.

Madam President, I will just make one comment.

First of all, the chair of the EPW Committee is very gracious. I appreciate her words, and I intended no disrespect for her in terms of her effort. I know she supports this effort to get to the bottom of it. But I would make a correction. We only say we should share with three people: the appropriate law authorities and the appropriate ethics committees of both the House and the Senate.

We did not envision a show. I would envision that the people who might be on this committee would take this very seriously; that, in fact, it probably would not be open hearings but, rather, closed, and that, in fact, we would get to the bottom of the problem.

But either way we get to the bottom of the problem, I am happy we are going to get there. I think it is important that we get there. As I outlined, I think the integrity of what we pass, no matter how we get there, as long as we can ensure the integrity, I will be satisfied we have done that. I am not sure we will get that.

The final point I would make is we will be setting a precedent. Let us not forget, we will be setting a precedent that the Congress says the Justice Department should investigate us. That is a big precedent. That is a big precedent. I am not a lawyer. I do not know if it has happened before, but I do not like that precedent. I don't like it at all. Because I think the integrity of this body is far greater than that. I think Members of this body are far above that, that we do not need the Justice Department to investigate us. I think we can investigate ourselves and we need to demonstrate to the American public that we do have the will and courage to do the disciplined thing and do the right thing and to solve the problem.

Then if a referral is needed to the Justice Department, we should give it. But I have great qualms, great worries about ceding to the Justice Department the power to investigate us. My own personal experience is, we do not know where they will go. We do not know that they will stick on us. The point is, this is a big precedent I would worry about setting.

I yield the floor.