Floor Statements

Mr. President, if there is no further business to come before the Senate, I ask unanimous consent that the Senate stand in recess under the previous order.

Mr. President, I have sat and listened to a lot of what we have heard today. I will tell you that myself and Senator Lautenberg and Senator Schumer raised this issue some 3\1/2\ weeks ago at a press conference, in which we agreed there ought to be a timeout on this. From that day forward, there has been significant increased knowledge by the American people. There has been significant uproar.

During all the time of that, the intention was--and I was led to believe by the Senator from New York--that the purpose was to find out what is best for the country, to find out what needs to be done, and to do it. That is not what we are doing today. That is not what this amendment does today.

I used to serve in the House, starting in 1994. The House Members do tend to reflect the current situations in the country. But a higher standard is required of us as a body. And one is to know the facts before we act. I would contend that the Senator from New York and the Senator from New Jersey do not know the facts on this deal. Several statements have been made about this being a done deal; it is a closed financial deal. It is not a closed deal that Dubai Ports will, in fact, operate these ports. As a matter of fact, the company has been very straightforward with information with my office, the communications we have had.

I do not believe we have the answer to the problem as of yet, and I do not think we have clearly identified it. What it has done is give us a wonderful chance to look at two things. The first thing we need to look at is overall port security, which we know on the Homeland Security Committee, for which myself and the Senator from New Jersey are members, we have a lot of work to do still in terms of port security, especially container inspection overseas and limiting the risk of those things that come into this country.

But it also raises another opportunity, and it is something I have been calling for since I have been in this body. It is for us to start thinking long term and not about the politics. The tendency that we see negates that which my favorite hero of the 20th century espoused, Martin Luther King. He said: Vanity asks, is it popular? And cowardice asks, is it expedient? But conscience asks, is it right?

The right thing to do right now is not to vote on this amendment. The right thing to do is to fill ourselves with the knowledge we need to have and to exert our privilege in this body to do something once we have that knowledge. I would portend to you the amendment that is attempting to be offered is a political stunt. It is not based on knowledgeable information about what are and are not the facts. It is based on what is most politically expedient. I think that is harmful to our country, and I know it is harmful to the body.

If you go to the root cause of every problem we have in this country, it is because we are looking for political expediency rather than to make the hard choices about the long-term consequences of what is best for our country. Usually, when it gets into these things, since I am not an attorney and not a lawyer, but I am on the Judiciary Committee, I use a little book. It is called the Constitution of the United

States. There are some pretty interesting things in the Constitution about where we are today on this issue.

Article I, section 10 of the U.S. Constitution provides:

No State shall, without the Consent of the Congress, . . .

enter into any Agreement or Compact with another State, or

with a foreign Power. . . .

It is called the Compact Clause. It has been upheld multiple times.

Article II, section 2, provides:

[The President] shall have Power, by and with the Advice .

. . of the Senate, to make Treaties, provided two-thirds of

the Senators present concur. . . .

In other words, for a State or a port authority to enter into a contract with a foreign government or a company wholly owned by a foreign government, they must receive permission from the Congress. That is what the Constitution says.

There is no question there needs to be CFIUS reform. But one of the ways out of this--to recognize the value of the ally we do have in Dubai, regardless of the negatives that may be associated with it, and to recognize other allies that also have negatives in terms of what we believe as parameters for faith and justice and liberty--is to do what the Constitution says, and that is recognize the Compact Clause and the treaty clause in the Constitution and to convince all those involved to take a timeout.

The Senator from New Jersey rightly states that the financial closings of DP Ports International did take over the assets of the previous owner, the British company, as of 1 o'clock yesterday or 2 o'clock yesterday. But that company has put forward that nothing has changed within the American ports. They have graciously, in the situation they find themselves, extended that period for 45 days, and probably will extend it for a longer period of time should we so desire.

But I think one of the most important points I want to make in this debate is, let's do what is right in the long run, not what is politically expedient in the short run.

For the American people to know, the real reason they want a vote is because they want to say, Who is going to vote against this so they can run a campaign commercial against you because you voted against them-- not because you did not take the time to do what is right and to think and to, on the basis of knowledge and information and informed intellect, make a decision about what is best for this country. But hurry up and run a vote so we can create a politically intriguing moment.

That is not what the Senate was intended to be. It is not what we should be about. And it is not what we should be doing today.

I must express I am extremely disappointed with the Senator from New York in terms of the assurances he gave me that this stunt would not be pulled. But, in fact, he has done that. I do not know if that is because the Appropriations Committee in the House decided to run real quick and get it done and getting beat in terms of the headlines or he has some new information none of the rest of us knows that requires the immediate passing of this today. It does not. This is a political stunt.

Our obligation to the people of this country is to secure this country and to make sure we do it in a way that creates the best interests for us, both domestically and internationally. This amendment is not going to do that. What it is going to do is slap the country of Dubai, which may or may not need to be. But we do not know that information. It is going to insult them, somebody who is very critical to us in terms of what we are doing right now in the Middle East.

It is going to set us backwards. It is going to make this a more partisan body. I would remind the Senator that what goes around comes around. I can play hardball on this. I choose not to. The Senate was not designed for that. The Senate was designed to be a collegial body through thinking, knowledge, and informed consent, and coming together; that we, in fact, try to solve the problems of this country.

This is not trying to do this. This is trying to create division in the answer of political expediency, in the answer of vanity, not in response to conscience and courage. The courageous thing now is to take the timeout and find out what is going on and what needs to be changed, both in the process of how this came about, but also in the facts of this particular case. If that is the case--what the Senators from New York and New Jersey want to do--then why do we have COSCO running the Port of Los Angeles?

Why do we have foreign governments running other ports? If this was a sincere amendment, it would be reversing all of those. It is not a sincere amendment. It is an amendment about politics.

I want to finish my point, if I may. Federalist No. 44 commented on the compact clause saying that it was so clearly needed, that the particulars of the clause fall within reasonings which are either so obvious or have been so fully developed that they may be passed over without remark.

Our forefathers had this figured out. All we have to do is follow the Constitution. Senator Shelby in the Banking Committee is looking at CFIUS reform. We have plenty of time to do what we need to do. But to run off in response to a motion without the facts is a dangerous precedent for this body. This is a reasoned body. The more partisanship we have, the less reason will prevail.

In several cases, courts have said the application of the compact clause is limited to agreements that are directed to the formation of any combination tending to increase a political power in States which may encroach on or interfere with the just supremacy of the United States. So we already have the power to fix this under the compact clause and the treaty clause, both under article I and article II of the Constitution. That is what we ought to be doing. We have plenty of time to address that, while the appropriate committees within Congress address the actual facts of this case.

The United States has no national port authority. Jurisdiction is shared by Federal, State, and local governments, but it does not lessen the power of the U.S. Congress to have control over this. We do need to make some changes. The CFIUS program is wrong. My fellow colleague from Oklahoma has a wonderful bill in terms of reforming that. Senator Shelby is changing some things. The fact is, not a good job in looking at some of these things has been done, and we have shirked our responsibility as the Senate in looking at it. But to run now to an amendment on the basis of pure political expediency does a disservice to this country in the long run. We ought not to do it. We can do it, and lots of Americans would be happy, but the consequences that will follow are grave, not only the consequences with this act but the consequences of the behavior of this body in the future, if we so act that way.

I call on my colleagues to refrain from doing anything other than gathering the appropriate knowledge, the details, look at the workings of the committees that are going on. Homeland Security is looking at this. Banking is. There will be several opportunities for us to fix this so that we appropriately can take a look at it. When the time comes, if this is not appropriate for the United States, it won't go through. But it will be done on the basis of a reasoned analysis of what is both good for us domestically in terms of our security, our economic security, as well as our foreign policy. We can have all sorts of speeches that beat up the President. The fact is, he is operating under the law. He has operated under the law. There is a law that this body created and gave him. We may need to change that law, but to cavalierly criticize what has been done is inappropriate.

We have already said we want an extra 45 days. We have that. If we need additional time, we will get it. This company is more than willing to work to make sure that we assure ourselves of absolute security. If it is so that we should not have this go through, then this body will not allow it. But it will be on the basis of facts, not emotion and not political expediency and trickery.

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

Mr. President, I have been on the floor numerous times to talk about priorities. We are on an unsustainable course in our country. The GAO says that. Anybody who looks at our books, our budgets, and our deficits would realize that. We have before us a $1 billion expenditure that I am

sure we are going to do. I have done everything I can to keep us from doing it. Without paying for it, we will transfer that money to our children.

I think it is important for the American public to know how awry we are in this body. I want to put forward and into the Record what the cosponsors of this bill did. They did, collectively, $777 million worth of earmarks last year. Those States of the cosponsors are going to get $145 million in LIHEAP money. The fact is, we spent over $770 million on earmarks.

I wish to spend a few minutes reading some of them so we can see whether the American people think it is a priority. Do we help people who need heat with their homes or do we build the Katahdin Ironworks in Maine? Or do we build a new industrial park in Maine? Do we buy new land--the Rachel Carson land acquisition for $600,000? Do we pay for a new building for the city of Brewer, an administrative building? I cannot find in the Constitution where that is a responsibility of the Federal Government. We are going to build a new Bangor waterfront park. We spent $246,000 on earmarked lowbush blueberry research. Here is a George and Barbara Bush cultural center at the University of New England, $300,000. Do we do that and charge it to our children and grandchildren, or do we help people with their heat? To me, it is an obvious choice. But we refuse to make those hard choices here. We would rather spend the money and charge it to our children and grandchildren.

Here is a Franco-American Heritage Center renovation project in Lewiston. And Bowdoin College in Brunswick, ME, gets $100,000 for site planning and renovation. Here is a purchase of land, Brainard Lakes, MN. Here is Midtown Greenway, Minneapolis, $1.5 million. Here is Augsburg College, in Minnesota, $1 million. I didn't know private colleges were part of the responsibility of funding from the Federal Government. Next we have Grand Portage in Minnesota, to establish a heritage center, $4 million. We are going to establish a heritage center for $4 million and we cannot help people with their heating bills. We are going to try to do both because it is politically expedient, but it is not politically expedient for our grandchildren.

We gave $200,000 to the Hmong American Mutual Assistance Association. We gave $500,000 to the Minneapolis American Indian Center in Minneapolis. We sent $1 million to the Pine Technical College in Minnesota. We rehabilitated the Ames Lake Neighborhood, Phalen Place Apartments, in St. Paul with $150,000 of taxpayer money. Here is the Willard Pond in New Hampshire, $550,000. Then we have Roseview, a purchase of land for $2 million. Here is the Hubbard Brook Foundation and the Daniel Webster College. Here is the city of Portsmouth, to build an environmentally responsible library. We are going to build a library instead of paying for people's heating bills, and we are going to charge it to our children and grandchildren.

We spent $150,000 for site preparation for improvements to White Park in Concord. We are going to restore Temple Town Hall in the town of Temple, $225,000. That is not a Federal responsibility; it is a State responsibility.

Yet the American people are right to ask the question: How is it that we can have $775 million in earmarks from five States, and those five States under this formula would get $145 million in LIHEAP?

I suggest that we shouldn't take it from our children and grandchildren. I suggest that we ought to pay for it, and the way to pay for it is either reduce the number of earmarks that are not legitimate under the Constitution, but are very politically expedient, or find the money elsewhere.

I am not just picking on these items. This goes across this body throughout. The culture of earmarks is killing our country in terms of how much money we spend and who is paying for it. And who is actually paying for it is not us. We are shifting it to the next two generations.

I will show this document in the Record--it lists the earmarks by the five cosponsors of this bill--and let the American public decide whether they think we ought to take $1 billion from our grandkids or cut out some of these projects that are not necessary right now. We are in a time of tremendous fiscal severity, and it is time we start acting as grownups.

Mr. President, I ask unanimous consent to have printed in the Record the document that lists earmarks.

Mr. President, I want to help those people who cannot help themselves, but I have also discovered that there is very limited authorization for us in the Constitution for us to be paying the heating bills of people in this country. There is no such thing as compassion when you are using somebody else's money to offer compassion.

The real answer to heating bills is solving our energy crisis and local communities taking care of their local citizens with their assets.

I will not vote for cloture, although I know cloture is going to be invoked, but I think this is a great time that everybody in this country ought to be questioning the process here and the utilization of earmarks which could have paid for the heating bill, but instead we did things to help us back home, help us get reelected.

I remind the Members of this body, Mr. President, when they take the oath of this body, they don't take an oath to protect their State or bring home the bacon. They take an oath to do what is in the best long- term interest of this country, not what is in their best short-term political interest.

I believe, as the American people look at this--I know this recent polling said 69 percent of the people in this country think we ought to eliminate earmarks, even if it hurts them. The only way we will get out of the financial mess we are in is start attacking the process of earmarks that greases the sled for spending that is out of control.

I yield the floor.

Mr. President, the pending bill, S. 2320, offered by the Senator from Maine, increases direct spending in excess of the allocation to the Health, Education, Labor, and Pensions Committee. Therefore, I raise a point of order against the bill, pursuant to section 302(f) of the Congressional Budget Act.

Mr. President, how much time do we have remaining?

Mr. President, I agree with both Senators from Maine. Our goal is not to have additional LIHEAP funding. Our goal is to make sure we don't steal it from our grandchildren, robbing from the unborn and the young in this country to do something in the name of good. It is not moral at all.

What we are saying is pay for it. To say it is paid for, to say you are paying for it, there is $1 billion allocated for next year, we are going to take that away and that is going to have to be paid for by somebody. You know who is going to pay for it? Our grandchildren.

If we want to help the people of Maine, there are a couple of things we can do. No. 1, you can use your TANF money for LIHEAP right now. That is allowed under Federal law. There is no reason anybody in Maine doesn't have the LIHEAP funds. You have money in your TANF account right now that you can transfer to solve that problem in terms of the acute problem.

The second thing you ought to know is that there is $11.2 billion in unobligated funds in Health and Human Services right now that the administration could release for LIHEAP. We don't have to be doing this. If it truly is an emergency, the administration has the money right now to send to Maine to do that. Your Governor has the ability to take TANF money right now and support LIHEAP in Maine.

But it is unconscionable for us to steal from the next generation and steal from the next budget cycle saying that we have paid for it. We haven't paid for anything. What we are doing is sacrificing the standard of living for future generations in this country through this type of process.

If you want to bring the bill to the floor, which we have offered the Senator from Maine, come to the floor, offer to spend $1 billion and give us the cuts to pay for it. Let us make the hard decisions that we were charged with to make among priorities in this country.

The other point I would make is there was an offer by the chairman of the Budget Committee last year to put an additional $1 billion in this fund. The Senator from New Hampshire offered to put another $1 billion by taking a small percentage across the board from Health and Human Services. This body voted that down. This body said we don't want to take a little bit from everybody else to pay for additional LIHEAP. We wouldn't even vote for it.

Now, when we are going to steal it from our children--the people who can't defend themselves, the future taxpayers of this country--then we are going to say it is OK, I believe it is morally wrong.

The people who need help today can get it. They can get it from the TANF funds in the State of Maine and the Northeast. They can get it from Health and Human Services, unallocated and unspent money that is sitting there right now.

We are not for not helping people, and it is not true to characterize it that way. We want to help anybody who truly needs our help.

The distribution under this formula, if you were to divide the money by everybody who could be eligible under LIHEAP, comes to $35 a house.

The other point I would make, since LIHEAP started, we have averaged $160 million a year in weatherization. That is $3.2 billion in weatherization. There are some people who would suggest that multiple homes have been winterized multiple times. There has been no oversight on weatherization. There has been no oversight on how the money has been spent. We have not done our job in terms of oversight to make sure the money that goes for LIHEAP is spent in the proper way.

I believe it very noble that the Senators from Maine want to help their constituency. Let us help you help your constituency but let us not steal it from the next generation.

I reserve the remainder of our time.

How much time remains?

I yield 2 minutes to the Senator from Alabama.

I yield 2 minutes to the Senator from Mississippi.

Mr. President, first of all, the Senator from Connecticut makes a great point. This is not about regionalization. This is about paying for something.

The Senator from Maine is absolutely right. It was in the act we passed this last fall. But it was in there for next year. It was advance funding so we would pay for the money for next year.

So if in fact we take this money now and move it out of next year, we are going to have to come up with another $1 billion. You can play the games with the numbers all you want, but the fact is, we are going to have to come up with another $1 billion.

The other thing I point out, we are not in great financial shape. We added half a trillion dollars. I was one of the few Republicans who did not vote with the rest of my side in terms of the tax cuts this last time through. I have been straightforward in addressing the financial problems our country had.

I ask Members to look at this chart put out by NOAA that says, in fact, for every area seeking today, they are either above normal or much above normal in terms of their temperatures this year. My poor State, Oklahoma, is red hot. It was 92 degrees yesterday in Oklahoma. We set an all-time record. We had 20 or 30 days over 100 this past summer.

I am not debating whether we should help people. I am debating can we help people without killing our children. The offer was made several times to the people offering this amendment: We will help you find offsets to pay for this so we do not take it from future generations. That was rejected, straightforward.

The fact is, we have to be responsible. We are going to have to come to a point in time where we will have to make a hard choice. If we do not, here is what will happen. The international financial community is going to do it for us. Interest rates are going to go sky high. The value of the dollar will fall through the floor. Talk about leaving a heritage to our children. We will leave a heritage of poverty to our children.

It is time for us to make the hard decision. Let's support this point of order because it is right. If we do not support this point of order, the budget does not mean anything, nor do the budget rules mean anything, nor do the appropriations categories mean anything.

I yield back the remainder of our time, and I call for a vote.

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

Mr. President, I want to speak a few minutes after hearing the Senator from Michigan. I thought, first of all, her accusations have to be answered. First of all, she made a fairly serious charge on a friend of mine, the Congressman from Pennsylvania, Bucks County, Jim Greenwood, and implied that not only was his vote and his work in trying to secure prescription drugs for seniors part of a deal with the pharmaceutical industry, which I think there is no foundation for whatever, and I believe it also probably is in very poor taste for this Senate to start hanging out people who have left and demeaning their name on the basis of whom they go to work for. If we counted on both sides, we would find plenty of ammunition to do that. I think that is probably not the decorum of the Senate. I hope we will not hear that again.

I have lots of differences with former Congressman Greenwood in terms of

social issues, but I have always found him to be an honorable man, above board and straightforward in both his intellect and the way he carried himself. To disadvantage his reputation the way that was done I find unconscionable.

No. 2, the Senator from Michigan did run a campaign on lowering prescription drugs. Her campaign was increased competition and reimportation, as well as Government control of every aspect of the pharmaceutical industry to lower the prices.

The program this country has I would not have supported. I do not believe it is the Government's role for us to supply to seniors in this country, but this program will supply drugs at half the cost of what most seniors who have been paying for their prescription drugs pay. To scare seniors into thinking they have a prescription drug program and they will not have one in 2 months or 2 weeks or 6 months is the type of tactic that undermines the integrity of this Senate and is one of the reasons people in this country are losing confidence in elected representatives. Quite frankly, the difference is going to be a lot of seniors today are having medicines they would not otherwise have.

I don't like it, but it is understandable, and we must recognize any program of this magnitude, when it starts, is going to have trouble. They are having far less problems now. The vast majority of people and the vast majority of pharmacists are not having a problem with the program. It will still have some bugs for the next couple of months. It will get better every month.

The goal of the program was to make sure those people who were choosing between food and medicine did not have to make that choice. Even though I'm not a fan of this program, it is accomplishing its goals. To scare seniors with this tactic, to try to scare seniors into thinking something they have now will go away, is unconscionable and is beyond the decorum of the Senate.

I yield the floor.

Mr. President. I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet on Thursday, February 9, 2006, at 10 a.m., on TSA and Passenger Screening.

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session on Thursday, February 9, 2006, at 10 a.m., in 215 Dirksen Senate Office Building, to hear testimony on ``The President's Fiscal Year 2007 Budget Proposal''.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, February 9, 2006, at 9:30 a.m. to hold a hearing on New Initiatives in Cooperative Threat Reduction.

Mr. President, I ask unanimous consent that the committee on energy and natural resources be authorized to meet during the session of the Senate on Thursday, February 9 at 9:30 a.m. The purpose of this hearing is to consider the President's proposed budget for FY 2007 for the Department of Energy.

Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to hold a hearing during the session of the Senate on Thursday, February 9, 2006, at 10 a.m. in SD-106.

Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet on Thursday, February 9, 2006, at 10 a.m. for a hearing titled, ``Hurricane Katrina: The Defense Department's Role in the Response.''

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on February 9, 2006, at 10:30 a.m. to hold a closed hearing.

Mr. President, I ask unanimous consent that the Subcommittee on Clean Air, Climate Change, and Nuclear Safety be authorized to hold a hearing February 9, 2006, at 9:30 a.m. on the impact of clean air regulations on natural gas prices.

Mr. President, I want to spend a few minutes talking about the bill.

There is one thing that is an absolute certainty: There are a ton of people in this country who have bad diseases from asbestos who aren't getting treatment and aren't getting cared for. That is what certainty is. You can bet on

that, that the problem is made worse because the trial bar is clogging the courts with cases of people who do not have diseases from asbestos, claiming they do. That is one of the reasons the courts want reform.

Having been on the Judiciary Committee during the process of this and voting this bill out of committee, even though I have significant reservations about this bill. Let me talk a couple of minutes about that.

It doesn't matter to me what the Congressional Budget Office says because their track record in estimating everything from the cost of Medicare to the benefits in capital gains taxes is usually 180 degrees off what actually happens. Having CBO's estimate about what is going to happen with this trust fund I don't think lends any credence or undermines it one way or the other. Because I think they do not know, and I don't think anybody can know.

There is a second problem in this bill; that is, the problem we face today is this bill will allow people who do not have injury from asbestos to receive hundreds of thousands of dollars for an asbestos claim when they do not have it. That deals with the medical criteria. It will allow smokers who have some exposure to asbestos who develop lung cancer--smoking is the No. 1 cause of lung cancer--who have no evidence of significant disease caused by asbestos causing their lung cancer to be compensated for a disease that they themselves were responsible for by smoking tobacco products.

The intended purpose of the FAIR Act is to compensate those who are truly sick from asbestos exposure, without destroying the companies and jobs and opportunities in the future. My worry with this bill is the defendants and the plaintiffs will end up back in the tort system in a very short period of time.

I am rising today to support Senator Cornyn's alternative, the Asbestos and Silica Claims Priorities Act. I am doing that because I think it addresses the real problem.

If you look at the abuse in the courts and if you look at what is wrong with this bill, it has to do with putting people in court who do not have disease from asbestos. The Cornyn Amendment has a very defined medical criteria which the courts will have to follow when making judgments about who is eligible to file a claim on this bill.

A major reason the FAIR Act won't have enough money--and the major reason people can attack the FAIR Act in terms of the amount of the trust fund--is because the medical criteria is going allow too many people to be in the process who do not have disease related to asbestos. There have not been significant changes in the medical criteria associated with this bill.

I tried to amend this in committee. I could not win. I have a significantly different level of knowledge on the committee than the rest of the members in terms of medical knowledge, having continued to be a practicing physician, and I know it is going to be very difficult to explain all those medical issues to Members of this body to try to get them changed. That is why I think Senator Cornyn's approach is a better alternative.

We have to create a fair system in the courts for allowing those who are truly sick from asbestos exposure to seek compensation from those who are truly responsible, rather than creating another Federal bureaucracy that is likely to fail.

More than 73 companies have already gone bankrupt, and many others have suffered a great deal of financial difficulty, not because many sick people have sought compensation for their injuries but because smart trial lawyers have learned to game the system and file phony claims. These aren't faceless companies with unlimited resources. And the people who are truly injured are not faceless people who didn't contribute something good to the companies they worked for. The businesses, by and large, are ready and willing to right the past wrongs. The question is, Should they be paying when nobody is injured? With the medical criteria in this bill today, a third of the claims, in my estimation, will be paid to people--$50 billion will be paid to people--who will file under the medical criteria, as written, who have no injury whatsoever from asbestos but yet these companies will be paying them for a perceived injury from asbestos.

Ninety percent of the claimants out there in the courts today who have filed claims that allege to have impairment from asbestos have no impairment. If you read the press stories about how the game has been played, how the B-Readers have falsely read, for payments from trial lawyer organizations, the chest x-rays, and the pulmonary function tests have been manipulated illegally to claim benefits from some of these companies, you can see we cannot have loose medical criteria and ever expect to have this trust fund survive.

The other thing to mention--it is not mentioned much--there is a background caseload in this country of mesothelioma, cancer of the lining of the lung, of about 800 people a year. If there had never been any asbestos, 800 people a year would develop mesothelioma.

At my age, and for most people somewhat younger who went to any public school where the ceiling tiles had asbestos components, we can qualify under this bill not because asbestos truly caused it. There is no causal effect in that low an exposure. There is no particle load count at all in terms of measuring exposure, which is what we know is important. A small amount of asbestos exposure is harmless, a large amount of asbestos exposure is terribly disease causing. When we don't look at load factors, we are going to have medical criteria that make people eligible who are truly not diseased from asbestos.

For example, there are 174,000 new cases each year in this country of lung cancer.

This is kind of a wordy chart. I don't think it is going to project well. But the important thing about that is they may have no true, actual asbestos exposure but could claim under this system asbestos exposure from environmental background exposure. Most of these people have lung cancer because they are smokers, and they are going to have lung impairment, and they are going to meet some of the requirements under the medical criteria but have no true asbestos exposure.

If you look at that, and take 10 percent of the cases based on lung cancers alone, you are talking $5 billion a year. Just lung cancer alone times 30 years, at $5 billion a year, is more than the trust fund has in it.

I will guarantee we will see an approach for compensation by anybody who has ever had any exposure or been around asbestos, and they will qualify to a certain extent more or less under this bill. What if it is 5 percent? You are still talking $78 billion. The numbers are massive.

If you are going to have a trust fund, you are going to have to have adequate medical criteria that truly reward those people and compensate those people who are truly injured. If you have good medical criteria, the trust fund system will work. If you do not have good medical criteria, if you have very loose medical criteria, the trust fund will fail. We will not have solved the problem.

Either we have to get away from a trust fund program and design medical criteria the courts will use, or we have to keep a trust fund program and tighten up the medical criteria in this bill.

The bill as written today, I believe, will fail. It will fail because it will be overwhelmed with claims against this trust fund by people who do not have asbestos-related true disease.

I will give a couple of examples. Nonmalignant level 2 under the fund allows individuals who have obstructive pulmonary disease--people with emphysema, people with chronic bronchitis--to receive compensation by the fund even when they do not have restrictive pulmonary diseases. That is what asbestos causes, a restrictive disease, not an obstructive disease. Under the criteria written in this bill, smokers who have had exposure to asbestos, who do not have a disease related to asbestos, will be compensated under this bill.

Consequently this fund allows a smoker--the No. 1 cause of obstructive airway disease, not asbestos, but smoking--asbestos causes restrictive lung disease--to receive compensation. That cannot work with the fund as we see it today.

This fund also will compensate people for cancers where there is no scientific evidence whatever that their cancers are caused by asbestos. For example, for colorectal cancer, there are 130,000 cases of colon cancer a year.

There are tons of scientific studies that show there is no connection between that and asbestos, but we have this in the bill. It is dependent on an IOM study, but it should not be in the bill. If new science sometime later shows some connection between colorectal cancer, stomach cancer, or esophageal, laryngeal, and pharyngeal cancer, we can put it back. We are putting it in, when there is no science whatsoever--and the small studies on laryngeal and pharyngeal cancer that show some connection were not modified for smoking and alcohol use, the No. 1 and No. 2 causes. So it is not good science.

Therefore, we have a large group. If you take lung cancers combined with all the other cancers and put them together and you say 10 percent of those who are coming through will try to go to the trust fund, you have $267 billion that will blow this thing wide open.

This trust fund, with the medical criteria it has today, will not work. That is why having a bill that has specific medical criteria in it will work.

Let me be clear why I support the Cornyn substitute. The Cornyn substitute does not shut anyone out of the courts. If you think you have asbestos exposure, and you want to sue, you can. But you will have to meet the medical criteria for it to be related to asbestos or silicosis. There is no unreasonable requirement; there is just upfront medical criteria that must be met to have application and that requirement must apply.

It does not mean you cannot have your day in court. You can. You have to demonstrate your disease matches the medical criteria which are recognized medical criteria associated with asbestos disease.

The other thing that is good about this bill is if you have had asbestos exposure and have no disease now, this does not cut you off from the future. If you develop disease that is truly related to asbestos, you will be able to have your day in court years--30, 40 years--down the road if, in fact, you develop impairment related to asbestos within this medical criteria that the medical community and the scientific community recognize is accurate.

Under this substitute, as compared to the present bill, physicians will have to comply with strict scientifically sound requirements. There is no room for doctors and x-ray B readers to fudge the data under the Cornyn substitute. The substitute makes sense. The trust fund concept will work if we have good medical criteria. We do not, so it is not going to work.

The answer is to keep people in the court system but define the medical criteria where they can win when they truly have a disease that is caused by asbestos, and they lose when they do not have a disease caused by asbestos.

The science is not that hard. But we cannot take care of the trial lawyers and take care of all the executives who want this problem solved the way they want it. They want an answer now. The answer is, use what this country has used in the past: the judgment of courts based on sound criteria that cannot be manipulated. Then we will get this problem solved and the people who are suffering today, who cannot get into court because of false claims--hundreds of thousands of them by people who do not have asbestos-related illness--the people who are injured will get compensated.

I thank Senator Cornyn for, first, his courage to offer a substitute. He is on the Judiciary Committee. We have a great chairman. He has done a lot of hard work on this. He has brought a bipartisan bill to the Senate. The bill will fail. It takes a great deal of courage on Senator Cornyn's part to offer a commonsense alternative to this. It is my hope that the many Members in this Senate will look at the trust fund with the medical criteria as set out today, and reject it as it is written. Either modify this bill or take the Cornyn substitute and put it in its stead.

This is an issue we will spend a lot of time on. I know people are considering points of order against the legislation. In fairness to the Senate and also the public, if that is going to happen, they ought to do it so we do not continue to spend time. Part of the process around here is to make things not happen so you can have a political advantage. If people are going to offer a point of order, they ought to offer it. Let's go on to the next thing on the agenda for the American people. If they are not going to offer it, let's have a real debate, file cloture, get a vote on this bill and move on.

I suggest the absence of a quorum.

Mr. President, as a member of the majority and sitting as the President of the Senate yesterday, I was able to hear several hours of debate on the nomination of Judge Sam Alito, Jr.

I heard time and again dire predictions that Judge Alito is going to give the executive branch complete authority over our Government, including himself on the Supreme Court. Those who oppose him never mentioned one single case where Judge Alito ruled in favor of the President or expanded Executive power--not once. They think if they just keep repeating the same far-left smear--one dreamt up by far-left groups such as Ralph Neas' People for the American Way and Nan Aron's Alliance for Justice--the American people will fall for it.

It is disturbing to me that those who oppose Sam Alito are taking their cues from people such as Nan Aron and the Alliance for Justice who, even before the hearings began, before we had any hearings whatsoever, bragged, ``You name it, we'll do it,'' to sink Judge Alito.

I think the American people and their elected representatives would rather base their views on the lawyers and judges from across the political spectrum who had actually known Judge Alito.

Former Third Circuit Judge Gibbons explained his faith in Judge Alito's ability to fairly judge cases in which the government is asserting its executive power. He said: ``The committee members should not think for a moment that I support Judge Alito's nomination because I am a dedicated defender of that administration. On the contrary, I and my firm have been litigating with that administration for a number of years over its treatment of detainees held at Guantanamo Bay, Cuba, and elsewhere, and we are certainly chagrined at the position that is being taken by the administration with respect to those detainees. I am confident, however, that as an able legal scholar and a fair-minded justice, he will give the arguments, legal and factual, that may be presented on behalf of our clients careful and thoughtful consideration without any predisposition in favor of the position of the executive branch.''

Defense lawyers who litigated against Judge Alito confirm that when Judge Alito was part of the executive branch, he had a modest view of its power.

The New York Times reported that one defense attorney, Dan Ruhnke,

said that Judge Alito lacked the ``cop mentality'' of many career prosecutors and was ``never a cheerleader for law enforcement.''

Another defense attorney, Drew Barry, said that Judge Alito was ``not a bloodthirsty United States attorney,'' and that he was ``a vigorous prosecutor who went after a wide variety of bad guys, but his reputation was not someone who would ask for the heaviest sentences.''

As a member of the Judiciary Committee and in my time in the Senate, this is a sorrowful time for me.

The politics of personal destruction were all too evident in the Senate hearing and continue on the floor of this body.

The ``guilt by association'' standard of those who oppose Sam Alito would disqualify anybody who would be nominated no matter who the President is.

The idea that politics guides the Supreme Court nominations process in the Senate is new. The idea of the ``results only in my eyes qualification'' proves that those who challenge the integrity of Sam Alito require standards that they themselves could never live up to.

To be critical is fair to the process of confirmation, but destruction and absolute mischaracterization of one's record the way we have seen reaffirms the lack of fairness and conscience of those who carry out such tactics.

As a member of the Judiciary Committee, I spent 4 days listening, questioning, and watching--not only Sam Alito but all those who came to testify for him and those who came to testify against him.

Here is what I observed--not as a lawyer, not as a Senator, but as a physician trained in the art of observation and the art of listening.

Sam Alito is a man of high moral character. You do not hear the direct words challenging that, but you hear everything indirectly.

He is also a man of intellectual brilliance, impressing everyone who comes in contact with him.

He is a man of dedication to the law, to equal justice under the law.

He is a man who has shown dedicated commitment to the things that are important in our country.

He is a man who is completely sold out to one thing, and one thing only: His record and his life has demonstrated equal justice under the law.

What I also observed was a great diversity of political background of those who support him, those who know him, those who have worked with him for the last 15 years, regardless of their political views, either liberal or conservative, regardless of their gender or their color, regardless of their view on abortion.

Those who know him uniformly support him as a great jurist, a man of integrity and conscience, and one who is completely sold out to the idea that everyone in this country has equality under the law.

Those who know him, those who testified, of all stripes, of all political persuasions, would and are challenging what we have been hearing on the floor by those who oppose him--the mischaracterization of his rulings, the mischaracterization of his beliefs, the mischaracterization of his actions.

What I also observed, which concerns me even more, was that those who don't know him but have a political agenda to keep the Court activist and beyond its constitutional bounds oppose him. They do not know him. But what they do know is judicial activism, making law where none exits, which they put before a judiciary committed to equal justice under the law.

That is why he is being opposed. Their greatest fear is the Court will return to a place where the Constitution, the statutes, and treaties are interpreted, but personal political agendas are left at the door.

They fear the battles lost in the legislatures will no longer be carried out by judicial fiat. The former Soviet Union is the great example. They had a constitution but there was not equal justice under that constitution.

During Chief Justice Roberts' opening statement to the Judiciary Committee, he referenced the fact that the most powerful entity in the world, the U.S. Government, deferred to the rule of law when the Court was convinced that a private client was right on the law and the Government was not. He referenced President Reagan's speeches about the Soviet Constitution and how it purported to grant wonderful rights of all sorts to people, but those rights were empty promises because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. Roberts concluded:

We do, because of the wisdom of our founders and the

sacrifices of our heroes over the generations to make their

vision a reality.

Under our law, the mighty can be defeated by the meager.

We heard yesterday the philosophy of those who oppose this great jurist. Let me quote it exactly because it is very dangerous. This quote is from the Senator from Rhode Island:

. . . in truth the Supreme Court is the Constitution.

If that is so, we are no longer a nation of laws but rather a nation of judges. That is not America. That is not freedom. That creates nine kings, the exact opposite of what our Founders intended. That is the very thing the American people rejected in the election of 2004. It was about judges.

Finally, let's talk about the real issue that will cause most people to oppose him. They fear he may truly believe in liberty for all. That is their fear. Let me explain. Senator Kennedy had a very eloquent quote during the hearing. I would like to repeat it:

America is noblest when it is just to all of its citizens

in equal measure. America is freest when the rights and

liberties of all are respected. America is strongest when we

can all share fairly in its prosperity. And we need a court

that will hold us true to these guiding principles today and

into the future.

But he did not mean ``all,'' he meant all those except the truly innocent and truly weak, the preborn child. Behind me are two pictures, one of a 26-week-old preterm infant in a neonatal IC unit, smaller than your hand; and the other picture is of a 26-week preborn child's face seen by ultrasound.

The Declaration of Independence states:

We hold these truths to be self-evident, that all Men are

created equal, that they are endowed by their Creator with

certain inalienable Rights, that among these are Life,

Liberty and the Pursuit of Happiness . . .

So, America, ask yourself, how did we get to the point that the accidental killing of a 26-week unborn infant is a felony but taking of that same life by abortionists is legal? It is schizophrenic. Why should your liberty be based on your location inside the womb or out?

The Court's jurisprudence on liberty and privacy interests is fundamentally flawed. They fear a correction in that flaw.

To quote Robbie George of Princeton University:

On what constitutional basis can we say that abortion is

protected by ``due process'' but a right to assisted suicide

. . . is not? Why is sodomy protected and prostitution

unprotected? Why does the right to privacy not extend to

polygamy or the use of recreational drugs?

That is the kind of justice you have when you are a nation of judges and not law. Hopefully, someone of Sam Alito's character can steer the ship back to liberty for all, including the weakest and most innocent of all. Sam Alito was sold out to this document, the U.S. Constitution. He sold out to equal justice under the law. We need to speak truthfully about the opposition to him. We need to speak truthfully about the problems that have been created by an activist Court, and about the opposition to bring back and steer the ship to where the judges make judgment based on the Constitution, laws, and the treaties of this country, not their political philosophies.

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

It is my understanding I am allotted 30 minutes. I would appreciate it if the Chair will let me know when I have 10 minutes left.

Mr. President, I come to the floor first to meet those two who were just debating to wish them a Merry Christmas and a happy holiday season. This is a season, a time about giving. When you give something, most often it costs you. It is called sacrifice. It is what our Nation was built on. It is the very heritage that we have as a nation, that we sacrifice to do what is in the best long-term interests of our country.

The chairman outlined the unfunded liability that is facing this Nation between now and 2070. He gave a figure of $51 trillion. That is an underestimate of what the true unfunded liability is for our country. We just added $8.7 trillion with the Medicare Part D Program. But it is such a large number we have a hard time getting our hands on it.

One of the ways to get our hands on it is to think about what it means per individual, and $51 trillion in unfunded liabilities means every man, woman, and child in this country today is responsible for $171,000. Think about that. That is more than the net worth of the country.

Why do I raise that? Because the debate we are having about this bill and movement forward and the comments about how you judge whether somebody is compassionate is based on how you treat those less than you and those who are going to follow you. I believe everybody in the Senate would agree

that leaving $171,000 worth of obligation for every man, woman, and child in this country is inappropriate. It belies the heritage of this country.

If you think about the great generations that have come before us-- the greatest generation, the World War II generation--those who have sacrificed in this country and those who are sacrificing today in the war on terrorism, it is inconceivable to me that we will not start doing some of the small things we can do, with the bills that are going to be before us today and tomorrow, to assure a Christmas gift to every American.

Some say, How can you do that and still be compassionate? My argument is, if we don't start doing it, we are not going to be able to be compassionate at all.

I would like to put up a couple of charts.

The first is from the Government Accountability Office. It shows where we are going if we freeze discretionary spending in this country. If we absolutely freeze discretionary spending, what will happen is between now and 2040, there is no increase in any discretionary spending whatsoever. You did see how our growth and expenditures take place. You can see that the vast majority of that is Medicare, Medicaid, Social Security, and all other spending, of which the largest proportion in 2040 won't be on any program but will be interest on the national debt.

I am also struck by the inconsistency that I hear in this body when one group of Senators has offered over $400 billion in new spending this year--$400 billion in new spending proposals this year.

If you think about why this is important, this line is represented as a percentage of our gross domestic product. All we have to do is look at the country of Germany today to see where we are going and what is going to happen to us. They have unemployment of 13 percent. Their growth is minimal in terms of their gross domestic product. Why? Because 40 percent of their gross domestic product is taken up by the Government. This only goes to 2040.

At 2050 and 2075, we are at 40 percent of our gross domestic product. That means money that could be invested in new jobs, in capital, in future opportunities for our children, won't be there because we will be consuming.

Now let's look at if we just have the Government grow at the rate of inflation. What do we see? By 2040, we are above 40 percent.

So the questions before this body and the criticisms of the bills on the floor don't make any sense if we are going to give a Christmas gift of a future to our children. This is unsustainable. The Government Accountability Office has said we are on an unsustainable course. It is impossible.

The Senator from North Dakota earlier said he is going to bring a spending reduction bill to the floor. I embrace that. There is no question that I am known in this body to try to restrain our spending. But if we don't, we belie the very heritage this country has stood for since its inception; that is, one generation sacrificing for the next so opportunities and a bright future will be there.

How have we done that? Because we are more interested in the next election than the next generation. We are more interested in making the easy choice, the expedient choice, rather than the difficult choice.

The choice is this. The way things are set up now, there is no way we can keep our obligations to you if you are dependent on the Federal Government. What is compassionate about that? What message do we send to those who truly are dependent upon us if we will not make the hard choices to make sure anybody is in a position to help them in the future?

I will talk about some specific things.

This reconciliation bill didn't go nearly far enough in terms of reducing spending. Let me give you a couple of examples.

The Federal Financial Oversight Subcommittee which I chair had a hearing on inappropriate payments. There is an Improper Payment Act which is law that the Center for Medicare and Medicaid Services has failed to enforce on Medicaid alone. But let us talk about Medicare, and then we will talk about Medicaid.

In Medicare alone, it is estimated that over 10 percent of the payments that are made by Medicare are inappropriate. Of that, 90 percent are overpayments. What do I mean, overpayments? I mean fraud, I mean abuse, I mean cheating the Federal Government. And as a physician, I am talking about some of my peers and others in the health care industry, whether they are in durable medical equipment, in the pharmaceutical industry, or others who are taking advantage of the bureaucracy of the program. But this bill saves a small amount of money over the next 5 years. The total is under 8-point-some billion dollars. Less than half of that comes from Medicare and Medicaid. Think about 90 percent of $21.7 billion. That is $19 billion a year in Medicare fraud, and $19 billion a year times 5 years comes up to $95 billion. This bill doesn't even save $40 billion over the next 5 years.

If we want to be serious about giving a Christmas gift of opportunity and future and making the sacrifices, it starts in this Chamber. That sacrifice is, there is no excuse for us not to rid Medicare of the fraud that is in it today, an estimated $19 billion a year. If, in fact, we rid Medicare of the $19 billion and we rid Medicaid, which is $18 billion worth of fraud--that is estimated because they have not followed the law and reported improper payments.

I ask unanimous consent to have printed in the Record an article from New York Times that outlines some of the Medicare fraud issues in New York State.

Mr. President, it is estimated that the fraud in New York State is $14 billion a year in Medicaid alone, of which the Federal Government pays two-thirds. In 5 years, solving the Medicaid fraud in New York would pay for every savings we have claimed in this whole bill for the next 5 years.

Examples: St. Barnabas Health Care System agreed to settle $3.9 million in claims it overcharged Medicare; the Premium Health Care Group, $1.6 million for fraudulent wound-care claims; Michael Clemens, FBI special agent--$1 billion in Medicare fraud in south Florida alone.

If you add up what is going on in Medicare and Medicaid, $37.5 billion a year at a minimum is fraud and yet we are trying to save a measly two-tenths of 1 percent in terms of slowing the growth.

We haven't gone far enough. For somebody to reject this bill on the fact that we might not meet our obligations on Medicare and Medicaid-- the obligation isn't being met in terms of the oversight of these programs.

I wish to spend a few moments talking about Medicaid fraud because it is important for people to know what a poor job we are doing in terms of oversight.

Investigators estimate that as much as $18 billion worth of fraud occurs every year in New York alone on Medicaid. That is 5 percent of the total national spending on Medicaid in one State. One New York dentist, Dr. Dolly Rosen, claimed to have performed 991 procedures a day in 2003--991 procedures a day. The New York Medicaid Program consumes $44.5 billion. It is the most costly and generous in the Nation. In the article that I mentioned, James Mehmet, the retired chief investigator of Medicaid fraud in New York City, says that at least 10 percent of that was spent on fraudulent claims.

We can, if we will do the oversight, accomplish what we need to in terms of doing the hard work, and the reductions in the expenditures won't have any impact on those who are truly needy for Medicare and Medicaid. What they will have an impact on is the criminals who are defrauding the American taxpayers by billing for services they have not performed.

Other examples: Schering-Plough agreed to pay $335.5 million back to Medicaid this last year on the basis of fraud and an elevated billing process.

The other thing estimated in New York, to build the case a little further, this same James Mehmet estimates as much as 30 percent of the budget--10 percent of it is fraud; 30 percent of it is abuse. If only half of that is inappropriate payments, we are up to 25 percent or up to $12 billion a year. Again, that is in one State. If we did the oversight, changed the rules, increased the punishment, held people accountable, every bit of savings in this bill could be paid for by Medicaid fraud in New York State alone.

The question is, are we going to do what we need to do as a Senate, in the future? This bill is a first good step. It does a lot of things in terms of Medicaid, of creating a new Medicaid task force to go after fraud.

We can do much more. To do less says we do not have the Christmas spirit, the spirit of giving, the spirit of sacrifice.

I close on this one note. Most everyone listening out there has children and grandchildren. When you think about your grandchildren, what do you think? What is it you desire for them? What is it you want for them? When we hear the rhetoric--whether it is from the AARP or other groups--discounting the fact that we are going to slow down the growth in Medicare and Medicaid, and doing it not by taking away benefits for those who are truly needy but by doing the job we should be doing, when we do that, we give a gift to our children and to our grandchildren.

I want opportunity for my grandchildren. I don't want them to be given anything. I want them to be given the gift of having an opportunity to attain it. I want to create an economic environment in the future that is sustainable. We are not sustainable today. I want every grandparent out there to think, do they want something for themselves today that is going to be paid for by their grandchildren 20 years from now?

That is the real issue. That is the whole center of the entire debate in Congress today as we debate these contentious issues on how we spend or do not spend money. It is a simple question. Take now and charge it to your grandchildren. Take now and take away their opportunity for homeownership. Don't do anything now because it might not be politically popular, but undermine any future your children and grandchildren have. That is described as selfishness. That is the exact opposite of the spirit of giving.

America is better than that. America's heritage is better than that. The American people are better than that. The problem is, we do not understand what is before the Senate, the obligations and the great responsibilities before us. We were sent here to make the hard choices. If you are listening today, listen to the rumble, the rumble that is out there in the American public. They want us to do the hard work of trimming the waste, of trimming the fraud, of trimming the abuse. They want us to eliminate our political earmarks to pay for the things that are necessary for this country--not pay for the things that get us reelected. There is a rumble. The rumble is real. The American people are paying attention that we should be doing the hard and heavy lifting of making the tough choices.

This bill is a start. It should go much further. It should be $100 to $200 billion of reduced spending through fraud. If there is truly $35 billion a year in wasteful, fraudulent, improper payments for Medicare and Medicaid, that is $18 billion for Medicaid, $19 billion for Medicare. That is $37 billion a year. In 10 years we can save $370 billion. This chart I had up will show a better future for our children and our grandchildren.

I ask the Members of the Senate to make sure we pass this bill. This is a start. It does not have anything to do with the tax cut. There is not going to be any tax cut unless we get spending under control. To not want to get spending under control means Members do not want to give an opportunity for advancement in the future for our children and grandchildren.

Grandparents, this is about our grandkids. I have four grandchildren. I wish I had 20. But more than that, I wish for them the same opportunities that have been there for us, the same opportunities that the great generation fought for and gave us such wonderful blessings. The same opportunities for every veteran we have had who has fought and died and been injured and the sacrifices they have made--are they in vain if we do not have the same type of courage, the same type of commitment that those who serve our country in our armed services have?

We can do no less than to start down the hard road of making difficult choices. This is the first one. They are going to get harder as we face the economic perils in front of us and the commitments we have made that right now we cannot keep. We either change them or the American people are going to change us.

I am happy to yield.

I am happy to respond. As the Senator knows, on the conference report I am unable to offer amendments to eliminate those things. As the Senator well knows, also, I have started down a track where I am going to confront earmarks in the Senate or we are going to change that.

With that, I offered on almost every appropriations bill what was called a sunshine amendment. That will be offered again in the House next year, and when we come to conferences, the ability to put in extraneous earmarks has got to be limited.

I would, however, answer the Senator. Having had an oversight hearing on food stamps, we spend $1.6 billion in giving food stamps to people who do not qualify, who have more than the capability to take care of themselves. That is at a rate of 6.9 percent of every person who comes to attest for food stamps.

So I believe the same thing can be said for the Food Stamp Program that we can say about Medicare and Medicaid, that we need to run a bill. We need to have better oversight. We need to check it so the fraud and abuse is out of it.

As the Senator knows, I do not like earmarks because I believe they compromise the operation of good government. I think they buy votes when votes would not be there. I think the Government has grown because of the force of earmarks.

So I am not aware of those specific things. I have not looked at it, to answer the Senator's question. But I am not happy they are there.

I will.

No, I do not.

As the Senator knows, I believe we do a disservice to our country in the way we manipulate appropriations. I have been very vocal on that. But I also know it requires courage to stand up. And the American people are expecting that. They are going to see that this next year on the floor of the Senate. They are going to see a process by which every earmark is challenged in the bills that come before us and in the bills that come out of conference.

What I do know--and I will finish my statement with this--is every economist and every elected official in this country, in this body, knows we are on an unsustainable course. Everybody knows that. Everybody is aware of that. Slowing the rate of growth of programs is compassionate. It is not lacking in compassion. If you do not slow the rate of growth, the very people you want to help will not be helped in the future. It is compassionate to keep your obligations. The way to keep your obligations is to change the programs so we pay for them out of the waste, fraud, and abuse that is involved.

Most people who oppose this bill do not have a good alternative. They do not have a good alternative. The plan of never-ending expansion, unsustainable commitments, is the surest way to deny benefits and coverage to the very people we want to help in the long run. It is the only way we are going to be able to do it. We cannot continue to avoid the tough choices, and we cannot continue to avoid prioritizing and to grow government as we like. We cannot do what we have done in the past. The economic conditions will not allow it. The American people are not going to allow it.

It is time, and it starts January first--it starts here with this bill, but it starts in the next session of Congress. It is going to be different. It is going to be difficult. But we are going to make the tough choices.

With that, I yield my time.

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

Mr. President, in the past in this body, I have been highly critical of some of the things that have gone on in the appropriations process. But I want to say the chairman of the Appropriations Committee in this body, with the appropriations package we are going to look at today, or whenever we get to it, has done a phenomenal job. I think the American people need to know this is the type of leadership we have been looking for for a long time.

All of the additional spending for the victims of the hurricane, for LIHEAP, for all of the additional things we are going to be doing, has been paid for not on the backs of our children and our grandchildren but in fact by making hard decisions on what to trim.

A lot of resistance is probably going to come with this, and the reason people are uncomfortable with it is because we are trimming the size of the

Federal Government at the same time we have neighbors on the gulf coast who need help, and those who are unfortunate with their heating bills this year need help.

I want to have in the Record that both Senator Stevens on the Defense appropriations bill and Senator Cochran I believe have done a fantastic job, and they have set a benchmark for where we need to go next year in terms of any new programs we need to be paying for by making reductions in other programs. What it is doing is securing the future for our children and our grandchildren.

My hat is off to them. I think they have done a great job. We have looked over the bill since last evening, since the numbers came through. We are very pleased. There are no gimmicks, no games being played with the numbers. Hard choices have been delineated in this bill which will require hard votes but for the right reasons. And for the next two generations, I thank them for their hard work on this bill.

With that, I note the absence of a quorum.

Mr. President, I want to respond. First, I think it is unfortunate when somebody is in the chair that such a statement was made without thankfully someone else being in the Chamber to allow me the opportunity to respond to it.

There is a lot wrong with the process in the Senate and I am sure the distinguished Senator from Nevada probably has an intellectual heads-up on me. I do not doubt that. But what is wrong is deception, not policy changes, and you have never heard this Senator say anything about problems with putting policy riders on appropriations bills.

What I have been very clear about from the day I arrived in the Senate is that there should not be earmarks that are used in politically beneficial ways for individual Members of the body because what that does, in fact, is put the country second and us first. It puts the next election ahead of the next generation.

To equate that with policy changes that go along and use my position as somebody who is fighting hard to change the appropriations process and to use me as an example, because you may not at this time be happy--I am not happy we are here, I am not happy that anything gets stuck on anything, but I also recognize the history of things that have gone on in this body and the other body and how at the end of a session things get tacked on to lots of things.

I will not be used, nor will I allow my position to be used, to wedge other people into thinking I am inconsistent, and I will defend that. My consistent criticism of the appropriation process is on earmarks and on earmarks alone and us living within the amount of moneys we have and not using the earmark process to advantage your own political career.

I want to make sure everybody in this country understands that what you are talking about is something wholly different than that. This is policy. I am not happy about any additional spending that is not paid for, I don't care what bill it comes through, and I have made it very clear to my leadership, on any bill that comes out of this end-of-the- year process.

Mr. President, I would tell the Senator from Nevada I take no personal offense but would also state there hasn't been an appropriations bill coming out of this body in 20 years that hasn't had policy changes directed and attached to it. They all do. If you seriously look at them, there are policy directions on every one of them because the Congress spends all its time appropriating rather than authorizing--the very issue the Senator from Michigan is talking about. Consequently, this year we are going to appropriate $190 billion on items that are not even authorized.

The Senator from Nevada is gracious. I wanted to make sure my point was clear on my position in terms of earmarks and spending. I don't like this process any better than he does, but I am willing to do what we need to do for our country to get it done. I don't want us to corrupt the process, but I will tell you that the process needs to completely be revised in terms of appropriations. We should never be in this position that we find ourselves today.

With that, I yield the floor.

Mr. President, parliamentary inquiry: It is my understanding--and I ask the Chair if this is correct--that a Presiding Officer, under the rules of the Senate, is not allowed to engage in debate other than to object to motions in his capacity from the State from which he comes; is that correct?

OK.

I thank the Chair. In the earlier discussion we had, it was stated by the minority leader that the Presiding Officer can debate from the chair. I did not think that was right. In fact, it is not correct.

I want to wrap up with a couple of thoughts. We have had a lot of discussion this evening about process and precedent and keeping your word. As we think about what that means to our country, we ought to go a little further back and think about the heritage that has been given to this country by those who came before us. I want to characterize a couple points of that.

One is doing whatever we have to do, including personal sacrifice, to assure opportunity and a great future for those who follow.

It seems to me, as we get hung up on a discussion of process, that we ought to pay as much attention to heritage. I mean by that, we are having trouble passing the Labor-HHS bill. It is the first bill to come through this Senate in a number of years that doesn't have any earmarks on it. I suspect the reason people don't want to vote for it is because they did not get the political benefit of placing the public's dollars to their own political advantage.

The other point is we hear debate that it does not supply enough. The real heritage that came before us is Members of this body making the hard choices--not easy choices, hard choices--about priorities. We are at such a point that this next year is going to be a very difficult year for us in terms of how we pay for a war, how we pay for Katrina, and the related items we have an obligation to pay for, and not diminish the opportunity and the future of our children and our grandchildren.

I think we would be very wise to not put the purity of our own process ahead of our basic morality and ethics of maintaining the heritage this country has.

I will not say any more. I know we are about to wrap up, and I appreciate the time.

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

Mr. President, the Violence Against Women Act, VAWA, approved by the Senate today contains an important provision that is intended to protect women who have already been victimized once by sexual assault from being assaulted again by either the deadly AIDS virus or the legal system which may deny them potentially life-saving information.

Section 102 of VAWA now encourages States to implement laws that provide victims of sexual assault and rape the opportunity to know if the person indicted for the assault is infected with HIV. This new provision will require the Attorney General to reduce the amount of funding provided under Section 102 by 5 percent to a State or local government that has not demonstrated that laws are in place to allow a victim to request that a defendant, against whom an information or indictment is presented for a crime in which by force or threat of force the perpetrator compels the victim to engage in sexual activity, be tested for HIV disease if the nature of the alleged crime is such that the sexual activity would have placed the victim at risk of becoming infected with HIV. The defendant must undergo the test not later than 48 hours after the date on which the information or indictment is presented, and as soon thereafter as is practicable the results of the test must be made available to the victim. As medically appropriate, the victim may request follow-up testing of the defendant. If a State or local government does not currently allow victims of sexual assault such protections, assurances must be made to the Attorney General that the state legislature will bring their laws into compliance before the end of their next session or within 2 years. The 5 percent penalty will not go into effect until the expiration of the two year extension

The bill will also now allow Federal VAWA funds to be used to pay for HIV testing of sexual assault perpetrators and notification and counseling programs.

These provisions are desperately needed to address a real, grievous injustice that victims of sexual assault are facing in many states.

In the summer of 1996, a 7-year-old girl was brutally raped by a 57- year-old aged man who later told police he was infected with HIV. The little girl and

her 5-year-old brother had been lured to a secluded, abandoned building in the East New York section of Brooklyn. The man raped and sodomized the girl. Her brother, meanwhile, was beaten, tied up, and forced to witness his sister's rape. After the man's arrest, the defendant refused to be tested for the AIDS virus by the Brooklyn District Attorney's office. His refusal to take the test was permitted under State law.

In the spring of 2002, Ramell Rodgers repeatedly raped ``Jane,'' a female New York cab driver at gunpoint. The New York Daily News reported at the time that ``Rodgers is in jail awaiting trial, while `Jane' spends her days vomiting from drugs she takes to stave off sexually transmitted diseases she may have contracted in the attack. Officials say DNA evidence links Rodgers to the March 31 assault. According to sources close to the case, he has even admitted guilt. But he is not required to be tested for diseases until he is formally convicted.''

``Jane'' is determined to change the law to protect others who have been victimized by rape and sexual assault. Disguised in a scarf, wig sunglasses, she spoke at a New York State Federation of Taxi Drivers press conference:

As a precaution, I have to take ``four different medicines

[to help protect against HIV, chlamydia, herpes and other

STDs], and I was told that, unless this guy volunteers for

the test, I had to wait until he was convicted.'' She added:

``If you are assaulted, you should have the right to know

whether or not this person has infected you with anything.

One November evening in 2002, Doris Stewart, who was then 64, was awakened from her sleep when she heard a knock at her front door. When she went to the door, a man forced his way inside, then raped, sodomized and robbed her. Stewart's assault was just the beginning of her emotional distress. She harbors fears that her assailant may have HIV, but she has no way of knowing with certainty because Alabama is another of the few States that do not require testing of rape suspects for HIV. Stewart, who was advised by rape counselors to wait about 2 months before being tested, lived with fear of the unknown for months because it can take at least 3 to 6 months for HIV to be detected after infection. ``Everybody I talk to thinks it's so unfair that there's no law in Alabama,'' said Stewart who has attempted to change the state law to protect future rape victims.

There are countless stories of other women and children who have been victims of rape and sexual assault who have been denied access to this potentially life saving information. In some circumstances, rape defendants have even used HIV status information as a plea bargaining tool to reduce their sentences.

As a practicing physician, I believe that its is vitally important that those who have been raped do not also become victims of HIV/AIDS, and that requires timely medical attention including prompt testing of the defendant. Treatment with AIDS drugs in the immediate aftermath, usually within 72 hours, of exposure can significantly reduce the chance of infection. However, because of the toxicity and long-term side effects, these drugs should not be administered for long periods without knowing if HIV exposure has occurred.

Victims can not rely solely on testing themselves because it can take weeks, sometimes months, before HIV antibodies can be detected. Therefore, testing the assailant is the only timely manner in which to determine if someone has been exposed to HIV. Furthermore, rapid tests are now available that can diagnose HIV infection within 20 minutes with more than 99 percent accuracy.

The American Medical Association supports this policy because ``early knowledge that a defendant is HIV infected would allow the victim to gain access to the ever growing arsenal of new HIV treatment options. In addition, knowing that the defendant was HIV infected would help the victim avoid contact which might put others at risk of infection.''

While the HIV infection rate among sexual assault victims has not been studied, the National Rape Crisis Center estimates the rate is higher than the general population because the violent nature of the forced sexual contact increases the chances of transmission.

I was very disappointed that the National Center for Victims of Crime, NCVC and the American Civil Liberties Union, ACLU, opposed this provision. NCVC claimed that ``mandatory testing of sex offenders may not be in the best interest of the victim/survivor.'' The ACLU claimed that ``forced HIV testing, even of those convicted of a crime, infringes on constitutional rights and can only be justified by a compelling governmental interest. No such interest is present in the case of a rapist and his victim because the result of a rapist's HIV test, even if accurate, will not indicate whether the rape victim has been infected.''

The medical facts are quite obvious why knowledge of HIV exposure is vital to victims of sexual assault and it is astonishing that anyone would argue otherwise.

Claims that providing this information to victims would compromise ``privacy'' are also quite shocking. Exactly whose rights are being protected by denying a victim of sexual assault the right to know if she has been exposed to the deadly AIDS virus when she was raped? If sufficient evidence exists to arrest and jail a rape suspect, the victim should have the right to request that the suspect be tested for

Mr. President, I wish to spend a few minutes of my time talking about the Labor-HHS bill and a lot of the comments we have heard in the Chamber over the last couple days as to what we are and are not doing. I thought the American public should have a good perspective about what has happened in terms of the growth of this department since the fiscal year 1998 started.

This is a tight budget. I commend those who are in charge of it. It is a vast improvement over what we have done in other years. There is no question there are some unmet needs that can be claimed out of this appropriations bill. That is the time we face in our country. The Federal Government cannot meet every need.

In regard to history, Health and Human Services from 1998 to 2005, over that 8-year period, in real dollars has increased at over 10 percent per year. It has actually increased over 13 percent per year, but we have had inflation of 3 percent. So what we have seen is an actual doubling of the size of that component of the Federal Government from September 30 of 1997 to today. It has doubled in size. Education is the same. Actually, education more than doubled in size, net of inflation. That is in terms of real dollars. So when we hear the words that we can't do what we are doing, I would have our fellow colleagues look down the road a little bit. This is just a taste of what we are going to be facing if we don't start making the choices based on priority.

I tell you, we are on an unsustainable path even with this bill. We cannot meet those needs that need to be met if we continue to not prioritize in the functioning of the Federal Government.

Again, I take seriously the claim that we would take away food stamps from people who have no other source of nutrition. But I also take seriously the claim and the knowledge reported by the Department of Agriculture and the Food Stamp Program that last year they paid out $1.6 billion in food stamps to people who were ineligible, who had other sources of income. And yet they continued to spend $1.6 billion.

Why is all this important? It is important because this last year, ending September 30, we spent $538 billion more in that fiscal year than we took in. So the debate has to be in the context of what are we doing to our children and our grandchildren. We have to make a measured balance about how we make these decisions.

The decision of trimming programs that are not effective and doing the hard oversight--the real thing that is lacking is us doing the work of oversight. We have opportunities lost when we don't put money into those programs that are more effective and take money from those programs that are less effective.

The debate is centered about us and our constitutional duties to do oversight but also in terms of the future and what kind of heritage and legacy in terms of debt are we going to leave to our children.

Overall, the Congress has done a good job with this bill. There are still tons of waste in this bill. This bill totaled has $602 billion worth of spending in it.

I have one last comment, and that is there is $55 billion for the new Medicare Part D Program, of which only 1 out of every 15 people who are eligible for that program is a new person who would not have had drugs. So we are going to pay for 14 people who had insurance or other coverage to cover one additional person. And none of that money is paid for. That $55 billion is coming from our grandchildren.

This is a program on which I did not have an opportunity to vote. I would have voted against it. I also didn't have an opportunity to attach it to a supplemental, which I would have offered, to eliminate or freeze this program because our children and our grandchildren absolutely cannot afford it. It is $8.7 trillion between now and 2050 that we are going to put into this brandnew program that is starting today that helps 1 in 15. It helps 1 in 15 who need it. And yet we are saying it is OK for our children to pay that bill.

I commend Senator Specter on his hard work on the bill. This is the first time in years that the hard choices have been made. I remind our colleagues that as we face the future with Social Security, Medicare, and Medicaid and a war and natural disasters, hard choices is what we are here for. Yes, as Senator Kennedy said today, we do need to be concerned about those who can't take care of themselves, but I put forward to my colleagues that with $600 billion--that is $20,000 per man, woman, and child in this country--we ought to be able to take care of them.

I yield the floor.