Floor Statements

Mr. President, I have 1 hour?

I know the Senator from Montana wants to speak. If he could just withhold for a few moments for my opening comment, and then I will yield to him.

Mr. President, I listened to the statement made by my good friend--and he is my good friend--Senator Enzi from Wyoming. We are in the seventh month since the Affordable Care Act became law. Ever since the day President Obama signed the bill into law, my friends on the Republican side have made it clear they intend to use every conceivable opportunity they have to repeal it. This resolution, regrettably, is another attempt to make good on that pledge by undoing some of the law's most critically important patient protections.

The resolution offered by Senator Enzi claims to protect small businesses by repealing the grandfather regulation, which defines which insurance plans and businesses have to comply with certain consumer protection provisions of the Affordable Care Act. However, if passed, the businesses and Americans could be in the worst of all worlds, losing the clear rules that allow them to keep the plans they have while not gaining additional consumer protections that apply when their plan changes.

I have a letter from the Main Street Alliance, which strongly opposes this resolution. This is an alliance of small businesses. Let me read an excerpt from that letter. They say:

Opponents of the health law's insurance market reforms

continue to hide behind business arguments and claims about

increasing costs. But independent analyses show that all the

new protections in the law should contribute a mere one to

two percent increase to costs next year, a number easily

offset by provisions like the small business tax credits--

That we have given small businesses--

in the short term and savings from increased bargaining power

and investing in prevention in the longer term. Let's be

clear: those who seek to block implementation of the new

grandfather regulations are acting in the best interests of

the insurance industry, not Main Street small businesses.

Mr. President, I ask unanimous consent that letter be printed in the Record.

One of the things we put in the health care bill when we designed it was the protection for consumers to keep the plan they have if they like it; thus, the term ``grandfathered plans.'' If you have a plan you like--existing policies--you can keep them. Well, then we left it to the Department of Health and Human Services to craft regulations to define exactly what a grandfathered plan is.

On the one hand, you want to give some flexibility to plans to be able to make reasonable changes. For example, if costs go up, they can increase their premiums somewhat. They can do certain things. But they cannot change the fundamental kind of nature of the plan and still call it a grandfathered plan. You want to protect consumers to make sure that what plan they signed up for is the grandfathered plan and not something else.

For instance, if the regulations are overturned, which is what the Senator from Wyoming wants, insurance plans could change immensely. Yet that is not what you signed up for; for example, the grandfathering rule that says the insurer cannot significantly cut your benefits. Let's say your insurer decides to cut from your plan conditions such as cancer or diabetes or heart disease. Let's say they cut that out of your plan. Well, that plan would no longer be considered grandfathered because that is not what you signed up for.

The second one says they cannot raise your coinsurance charges. For instance, if you are required to pay 20 percent of the cost for all hospital visits, your insurer cannot raise that to 50 percent because that is not what you signed up for.

They cannot significantly raise copayments. If your plan is grandfathered, you are protected from drastic increases in copays. Copays would be allowed to rise nominally each year, but if they changed significantly, that is not what you signed up for.

Grandfathered plans cannot significantly raise deductibles. Let's say your plan is grandfathered. You are protected from large increases to your deductible. That keeps your insurance company from shifting more cost to you because that is not what you signed up for.

Grandfathered plans cannot significantly increase your premiums. Well, for example, if 20 percent of your insurance costs are currently deducted from your paycheck, and your employer pays the other 80 percent, under the rule that cannot be changed by more than 5 percentage points a year. Well, what if a company came in and said: You were paying 20 percent; now you have to pay 40 percent? If they did that, that is not what you signed up for, so that should not be a grandfathered plan.

Also, grandfathered plans cannot add or tighten an annual limit on benefits. If your plan is grandfathered, your insurer cannot add a new cap on the amount they will pay for covered services each year. Why? Because that is not what you signed up for.

Grandfathered plans cannot change insurance companies. If your plan is

grandfathered, you get to keep your plan. This means you will keep your insurance company and with it your network of doctors. Because if that is changed on you, that is not what you signed up for.

So basically the rule my friend from Wyoming is seeking to overturn protects you, the consumer. It protects you in keeping the plan you like; we said, if you like a plan, you get to keep it, and you can grandfather it in. What if they change the caps on certain annual limits? What if they raise your copays? What if they raise your deductibles? What if they sell out to another insurance company that has a different kind of a policy? Why should that be grandfathered? Because that is not what you signed up for.

We want to make sure if you signed up for a plan and you like that plan, it can be grandfathered. What cannot be grandfathered is something drastically different, which puts you at a disadvantage.

So it is clearcut on this issue before us: You either stand with consumers and you stand with Main Street businesses--which I just read a letter from, which recognizes that if they want grandfathered plans, they also want to be protected, they want some certainty out there to know what those plans are going to be; and that is what these rules provide. On the other hand, if you vote to overrule this rule, you are obviously standing with the insurance companies one more time, letting them continue what we closed the door on, some of these terrible abuses of cutting people off, putting caps on what you can get, changing your policies midstream.

Well, the rule says: Yes, insurance company, you can do that, but you are no longer a grandfathered plan. That is exactly what this rule is about, to protect consumers and to provide certainty out in the marketplace for small businesses so they know what the grandfathered plans are and what they are not. Without this, if you do not have a rule, who knows what a grandfathered plan is. It is up in the air.

So with that, I yield 15 minutes to my friend from Montana who did such a great job as chairman of the Finance Committee in shepherding the health care reform bill through. He is one of our great experts in this area, and I know he feels strongly about these grandfathered plans too. So I yield 15 minutes to my friend from Montana.

Mr. President, before I yield to the Senator from Connecticut, I listened to my friend from Wyoming before the minority leader spoke. He was reading from the Federal Register, if I am not mistaken, saying that any change--and he kept repeating ``any change,'' ``any change,'' any increase because we have been talking about there had to be significant increases and changes. My friend from Wyoming was reading from the Federal Register and said ``any increase.''

After reading through this, it reminds me of an example I have often used about not taking things out of context. It comes from Psalm 14 in the Bible. There is a sentence in the Bible that says, ``There is no God.'' I say to a lot of people, it cannot be true. Yes, there is a sentence in Psalm 14. It is right there. The problem is the sentence before that says: ``The fool in his heart says there is no God.'' You can take things out of context. I started reading this and saw how this was taken out of context.

First of all, my friend from Wyoming said ``any increase in fixed amount cost sharing requirement.'' But, it says--he did not read on-- ``if the total percentage increase exceeds the maximum percentage increase,'' as defined in another paragraph over here, which is basically expressed as a percentage of inflation plus 15 points. So it is not any increase, it is any increase based on whether it is inflation plus 15 points.

Then my friend said: ``Any increase in fixed amount copayment.'' But you have to read on because it says ``determined as of the effective date if the total increase in the copayment exceeds the greater of an amount equal to $5 or the maximum percentage increase,'' as I mentioned before, which is medical inflation plus 15 percentage points.

I ask unanimous consent to have printed in the Record this chart to show that it is not any changes, as my friend was saying.

Mr. President, you have to read the whole paragraph. There is one where there is any change at all would disqualify a grandfather plan, and that is any increase in the percentage cost sharing. You can understand that. If you have a percentage cost sharing, let's say it is 20 percent, if the cost of the plan goes up, medical inflation goes up, then your total cost will go up because 20 percent of $100 is $20; 20 percent of $120 is $24. Your out-of-pocket will go up.

The only thing that would deny a plan from being grandfathered is if they changed the percentage of your copay. But if they have a fixed amount of copay, say $20, they can go above that by the maximum percentage increase of inflation plus 15 points.

I wanted to try to clear that up, that there is only one case in which any change at all denies grandfathering, and that is if, in fact, the plan changes your percentage of what you have to pay in. I wanted to make that clear.

Now I yield to my good friend, Senator Dodd, who was the leader on our committee in getting the Affordable Care Act through and who knows the importance of making sure we keep these protections, not only for consumers but for small businesses.

I yield whatever time he wants.

Mr. President, can I ask how much time is remaining?

Mr. President, I yield myself such time as I may consume.

I have to say to my friend from Wyoming: Where did that come from-- 100 pages of regulations for every page that is in the bill? That is going to be 200,000 pages of regulations. Where did that come from? It sounds like it came from the health insurance industry to me. Boy, I tell you, that is quite a figure. Well, obviously, it is a bogus number, and I do not know where that figure came from. I would like to ask my friend where that did come from.

But I say to my friend from Wyoming, the Senator just said there is no help--I wrote it down here as fast as I could--no help for small businesses until 2014.

Wait a minute. Wait a minute. In the Affordable Care Act, we attached--in the tax bill that Senator Baucus got through the Finance Committee, small businesses, beginning this year, 2010, will receive a tax credit--a tax credit, not deduction, a tax credit--of up to 35 percent of the cost of an employee's health insurance.

So you have a small business, prior to this year, that did not get a tax credit, I say to my friend from Wyoming. I mean, the Republicans ran this place for 8 years under George Bush--8 years. They had a Republican President, Republican Senate, Republican House. They did not give small businesses any tax breaks for health insurance. We did. It is in the bill, a 35-percent tax credit this year for small businesses. That would cover 83.7 percent of all small businesses in the country. That is quite a bit of help for small business.

I have heard from small businesses in my State that can get that tax credit this year that they have never had before. A lot of these small businesses are small businesses that employ just a few people--10, 12. They know their employees. They go to the same churches, schools. They are neighbors. I can't tell my colleagues how many small business owners in Iowa have told me: I feel so bad. Because of the increasing costs of health insurance, whether they are increased copays or deductibles, cutting out benefits, I have had to increase the cost of health insurance to my employees to the point that it is almost not worth it anymore because of high deductibles.

They feel badly about it because these are their friends, neighbors. They are related a lot of times. I have had them come to me and say: Finally, this year I can get a tax credit, up to 35 percent.

Quite frankly, in my State, 90.8 percent of small businesses will get the maximum 35 percent tax credit. Small businesses don't have to wait until 2014 to get help; they are getting that help right now.

I am delighted to yield to my friend from Illinois.

Mr. President, we have two things here. We have the Patients' Bill of Rights which just went into effect. That covers everybody. That covers all plans. That covers grandfathered plans. They can't escape that. However, if a plan wanted to be grandfathered, we left it up to the Department to write rules and regulations as to what grandfathered means. For example, let's say the Senator from Illinois and I have a contract. We both have agreed to it. We say we are going to let that contract go into the future. After a certain date, you are grandfathered in that contract.

What the Senator from Wyoming would say is that if you are the insurance company and I am the individual covered, we will grandfather it, but you can change it any way you want. You can raise my copay. You can raise my deductible. You can reduce the annual limit on claims you will pay. You can eliminate benefits, such as the Senator just pointed out, for cancer or diabetes. And guess what. You would still be considered grandfathered. But I am stuck with that. That is what is so important here. That is what people have to understand about what the Senator from Wyoming is trying to do. He is saying that basically we will grandfather it in, but the insurance companies can change it however they want, and you are stuck with it.

That is right.

That is the way I see it. It just seems that we have rules and regulations. What the Department has said is that, OK, to be a grandfathered plan, you have to fall under these items: You can only raise your copayment a certain amount. By the way, it is quite a bit. You can raise your copayment either the greater of 5 bucks or medical inflation plus 15 percent. That is pretty good. It says you can change different things but within certain limits. They can't, for example, raise your coinsurance charges--that is, if you have a percentage. For example, if it is 20/80, they can't just raise that. It has to stay the same percentage. They could raise the copayment if it is a dollar amount.

That is why the Senator from Illinois is so right. If this resolution passes, all of the protections for consumers are wiped out.

On whose time?

How much time remains?

Mr. President, I will be glad to yield time if he will yield me time if I have a question.

I did respond that the bill of rights applies to all plans.

Absolutely. I made that very clear. The bill of rights that came into effect stays for everything. But what I am saying is that the Senator is right, and I responded that way concerning the bill of rights. But what doesn't apply to grandfathered plans are preventive services that are covered with no cost. That is not covered. The right to an appeal to a third party is not covered. Restrictions on annual limits is not applied. They can put annual limits on coverage under these grandfathered plans. Direct access to OB/GYNs without a referral is not part of the Patients' Bill of Rights. No higher cost sharing for out-of-network emergency services, no prior authorization requirement for emergency care--none of that is in the bill of rights. So all of that is wiped out by the resolution of the Senator from Wyoming.

Again, for emphasis, you have a contract. You work for an employer. They have a plan. You are part of that plan. If you like that plan, you can stay with it. My friend from Wyoming said: Only in Washington, DC, could they say, if you like your plan, you can stay with it, and then they change it. No. Only in the health insurance industry, perhaps in the Republican philosophy, would you say that you can grandfather a plan, but you the consumer are stuck if the insurer wants to change it any way he wants to change it, with the exception of the bill of rights. They could raise your copayment, they could take away your right of access to an OB/GYN without referral, and all the other things I mentioned.

If your insurer dramatically raises your copayment, that is not what you signed up for. That was not the plan you signed up for. If your insurer dramatically raises your deductible, that is not what you signed up for. If your insurer reduces the annual limit on claims they will pay, that is not what you signed up for. If your insurer eliminates covered benefits, such as cancer or diabetes, that is not what you signed up for.

We are saying: You have a plan here. You signed up for it. You like it. You can keep it.

But what if your insurer comes along and says: Guess what. We are not going to cover it if you get diabetes, and we are going to put an annual limit on claims we will pay, and we are going to raise your deductible by a huge amount. Is that the plan you signed up for? No. So why should you be stuck with that? Why should that be a grandfathered plan?

A grandfathered plan means a plan that was in existence before April of this year that you like but which is not changed dramatically on you by your insurer. So if you have a grandfathered plan, you are fine. What the Department did is that they issued regulations to define what that is. Quite frankly, I thought they were very lenient. For crying out loud, they can raise your copayment by the greater of $5 or medical inflation plus 15 percent. Fifteen percent of medical inflation sounds like a lot to me. That is quite lenient.

Again, my friend had a lot of letters he included for the Record. I would like to insert letters in opposition from the Small Business Majority, from the Center for Budget and Policy Priorities. Here is a letter signed by the American Cancer Society Cancer Action Network, the American Diabetes Association, the American Heart Association, Families USA, the National Partnership for Women and Families, National Women's Law Center, SCIU, and U.S. PIRG. I also have letters from Health Care for America Now, Service Employees International Union, the AARP, and Trust for America's Health. I ask unanimous consent to have these letters printed in the Record.

All are in opposition to the Enzi resolution.

Mr. President, how much time do we have?

How much time does the other side have?

Mr. President, I yield 4, 5 minutes to the Senator from Illinois.

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

Mr. President, again, I don't know where all of these figures come from, how many pages of regulations per page on the bill, and all that kind of stuff.

I have in front of me the Federal Register of Thursday, June 17, 2010. What we are dealing with today are grandfathered plans, right? The resolution offered by the Senator from Wyoming has to do with what is a grandfathered plan and the regulation of the grandfathered plan.

Well, I looked at the rules in the Register. It is one page and not even a half, about a page and one-third--well, not actually even a page and a third, a little over a page, a page and a third. I have it right here. Page 34,568 and page 34,569: Maintenance of Grandfather Status. That is what it is, and that takes into account all of the things to which the Senator from Wyoming referred.

It is a page and a quarter, right there. There is a bunch of other stuff in this regulation that comes through there, including accounting tables and all kinds of things, but the actually rule, regulation, is a page and a third. I don't know what all this other stuff is in here. It is probably make work for somebody, I don't know. But it is a page and a third.

But getting to the crux of it, we provided in the health reform bill, which is now law, that if you had a plan you liked, you could keep it. If that plan was in effect prior to April of this year, you can keep it. It is called grandfathering. Many of the things we provided for new plans don't apply to those grandfathered plans, things such as preventive services. As my colleagues know, all new plans now must cover certain preventive services without any copays or deductibles, that type of thing. All new plans have a right to an external appeal to a third party, if you want. There are restrictions on annual limits and coverage in the individual market. There is direct access to OB/GYNs without a referral. You can't charge a higher cost sharing for out-of- service emergency services. You don't need a prior authorization requirement for emergency care. Those are just some of the elements that apply to new plans that will not apply to a grandfathered plan.

So then you have to ask, well, what is a grandfathered plan? A grandfathered plan is a plan that was in existence prior to April of this year on which the insurer and the insured agreed, like a contract.

What if that grandfathered plan--what if that insurer then says: Well, we agreed on a certain coinsurance charge. It was 20 percent. But now we are going to raise it to 40 percent. Well, that is not what you agreed to. That is not what you signed up for.

Let's say they want to raise deductibles. Let's say your deductible was $1,000, and they say now they are going to raise your deductible to $2,500. That is not what you agreed to. That is not the plan you liked or you signed up for. Or let's say the plan wants to significantly increase your premiums or they want to tighten down on your annual limits. That is not what you signed up for.

So the rules and regulations say: Look, there are certain limits. You can raise your copayment, but not more than $5 or 15 percentage points above medical inflation. So there are certain restrictions put on what an insurer can do and still claim to have a grandfathered plan. That seems to me to make infinitely good sense because they leave the consumer with nothing. They are at the whims of the insurance company. That is what it was like before we passed the health care reform bill. That is what my friends on this side of the aisle want to go back to: Giving the insurance companies the wherewithal to define everything and tell the consumer what it is that a consumer has to have. They call the shots.

Well, quite frankly, what this regulation does is it gives more empowerment to consumers. It says to an insurer: You can't just willy- nilly change your plans that you had prior to April and call it a grandfathered plan. If you change it, if you make all of these big changes, guess what. You are going to have to cover preventive services without copays and deductibles. If you do all of these big changes, well, your insurer is going to have the right to appeal that. Quite frankly, I think that has a lot to do with this. We said for any new plans, the insurer has the right to appeal to a third party--not the grandfathered plans but the new plans. That is why a lot of the old plans don't want to become new plans. They don't want to give you that right of appeal.

There are restrictions on annual limits, which I mentioned before, in the individual market.

So, again, if you want to have a grandfathered plan, fine, but you can't just change it dramatically. I say again to my friend from Wyoming, read it in full. It doesn't say any changes; it says any changes based upon certain things.

So I say to my friends, we should vote this down and move ahead with health care reform and protect the consumers of America.

Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on September 29, 2010, at 2:30 p.m., to conduct a hearing entitled ``A Comparison of International Housing Finance Systems.''

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on September 29, 2010, at 10 a.m., to conduct a hearing entitled ``The Al-Megrahi Release: One Year Later.''

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on September 29, 2010, at 2:15 p.m.

Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet during the session of the Senate on September 29, 2010, at 10 a.m.

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet during the session of the Senate on September 29, 2010, at 2 p.m., in room SD-226 of the Dirksen Senate Office Building, to conduct a hearing entitled ``Judicial Nominations.''

Mr. President, I ask unanimous consent that the Committee on Rules and Administration be authorized to meet during the session of the Senate on September 29, 2010, at 10 a.m.

Mr. President, I ask unanimous consent that the Committee on the Judiciary, Subcommittee on Crime and Drugs, be authorized to meet during the session of the Senate on September 29, 2010, at 10 a.m., in room SD-226 of the Dirksen Senate Office Building, to conduct a hearing entitled ``Crimes Against America's Homeless: Is the Violence Growing?''

Mr. President, I ask unanimous consent that the Subcommittee on Energy be authorized to meet during the session of the Senate on September 29, 2010, at 10 a.m. in room SD-366 of the Dirksen Senate Office Building.

Mr. President, I ask unanimous consent that the Committee on the Homeland Security and Governmental Affairs' Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security be authorized to meet during the session of the Senate on September 29, 2010, at 2:30 p.m., to conduct a hearing entitled ``Improving Financial Accountability at the Department of Defense.''

Mr. President, I ask unanimous consent that the Subcommittee on National Parks, and the Subcommittee on Public Lands and Forest be authorized to meet during the session of the Senate to conduct a hearing on September 29, 2010, at 2:30 p.m., in room SD-366 of the Dirksen Senate Office Building.

Mr. President, I rise to express my strong support for the Robert C. Byrd Mine and Workplace Safety Act. This bill establishes vital new workplace safety measures and it deserves consideration here on the Senate floor.

In 2009, there were 4,340 workplace fatalities. In my home State of Iowa, 78 people were killed on the job. This year, we have already witnessed the horrific mine catastrophe that killed 29 people in West Virginia, the fire at the Tesoro oil refinery in Washington State that killed 7 workers, and the BP Deepwater Horizon platform explosion that killed 11 people and was an environmental catastrophe for the Gulf of Mexico.

As the son of a coal miner, I feel these losses very deeply, on a very personal level. My heart goes out to the family and coworkers of every worker who is killed or injured on the job. Too many of these tragedies are preventable, and we should not rest until the day that no hardworking American has to sacrifice his or her life for a paycheck.

History teaches us that stronger laws protecting worker safety make a big difference, but our current laws are not doing the job. That is why I strongly support the Robert C. Byrd Mine and Workplace Safety Act, which would make long overdue improvements to our workplace safety laws and save the lives of many thousands of hardworking Americans.

For months, we have been negotiating with Republicans trying to agree to a bipartisan bill that improves workplace safety. I think it is fair to say there have been setbacks in our discussions recently, but we want and intend to keep working with our Republican colleagues to craft a bipartisan bill--in this Congress or early in the next--that we can get to the President's desk.

This has been a long and difficult process as we try to reconcile policy differences between Democrats and Republicans on these important issues. Nevertheless, we will keep working to bridge those differences because it is critical that we find a way to agree on legislation that is consistent with certain core principles:

Every American deserves to go to work without fearing for his or her life;

Responsible businesses that put safety first shouldn't have to compete with businesses that prioritize a quick buck over the safety of their employees;

Employers who put workers' lives at risk should face serious consequences that will force them to change their ways;

Companies shouldn't be able to hide behind high priced lawyers and convoluted corporate forms to avoid being held accountable for their actions;

Critical agencies charged with protecting workers' lives should have all the tools they need to get the job done; and

Whistleblowers are the first line of defense in safe workplaces, and deserve strong protection from discrimination and retaliation.

While there may be many ways to achieve these goals, the Robert C. Byrd Mine and Workplace Safety Act clearly reflects these core principles, and its passage would be a major step forward for workplace safety. That is why I am proud to be a cosponsor of the bill, and that is why I would ask my Republican colleagues to give us an opportunity to debate this legislation on the floor.

This legislation makes common sense reforms to the Occupational Safety and Health Act, which has not been significantly updated since it was passed 40 years ago. For example, whistleblower protection under the act is toothless and unfairly tilted against workers who risk their career to protect the public welfare. This bill makes essential changes to ensure that workers are protected, including lengthening OSHA's 30- day statute of limitation for whistleblowers, providing for reinstatement while the legal process unfolds for cases with an initial finding of merit, and giving the worker the right to file their own claim in court if the government does not investigate the claim in a timely manner.

The bill also strengthens criminal and civil penalties that, at present, are too weak to protect workers. Under current law, an employer may be charged--at most--with a misdemeanor when a willful violation of OSHA leads to a worker's death. Under the Robert C. Byrd Mine and Workplace Safety Act, felony charges are available for an employer's repeated and willful violations of OSHA that result in a worker's death or serious injury. The bill also updates OSHA civil penalties, which have been unchanged since 1990, and sets a minimum penalty of $50,000 for a worker's death caused by a willful violation.

In addition to toughening sanctions for employers who needlessly expose their employees to risk, the bill makes sure that the government is responsive to the worker when investigating the charges. It guarantees victims the right to meet with the person investigating the claim, to be notified of and receive copies of reports or citations issued in the investigation, and to be notified of and have the right to appear at proceedings related to their case. Victims of retaliation should not suffer the double indignity of being ignored by government officials charged with protecting them.

The bill also makes critical changes in our mine safety laws. We still don't know exactly what caused the tragic death of 29 miners at Upper Big Branch, but we do know that the mine had an appalling safety record, and that the tragedy might have been prevented had the Mine Safety Health Administration, MSHA, had effective tools to target such a chronically unsafe mine.

We have provisions in our laws that are supposed to target repeat offenders--called the ``pattern of violations'' process--but this system is broken and badly needs to be revamped.

As bad as Upper Big Branch's record was, the law has been interpreted to allow it to continue operating without ``pattern of violation'' treatment as long as its operators can reduce their violations by more than one third in response to a written warning. With a record as spotty as Upper Big Branch's, a partial reduction in its numerous citations is hardly a sign of a safe mine, and it should not be a ``get out of jail free'' card to escape the intent of the law.

Operators are also finding creative ways to ensure that the system cannot work as Congress intended. Some chronic violators have avoided being placed on ``pattern of violation'' status and avoided paying legitimate penalties by contesting nearly every citation that is assessed against them. Because MSHA uses only final orders to establish a pattern of violations and there is a substantial backlog of cases the Federal Mine Safety and Health Review Commission, repeat offenders are able to evade pattern of violations status by contesting large numbers of violations. At the Upper Big Branch coal mine, for example, Massey contested 97 percent of its ``significant and substantial'' violations in 2007. These appeals can take up to three years to resolve, virtually guaranteeing that mines are never placed on pattern status.

MSHA needs to be able to respond to safety concerns in real time, not 3 years later. This legislation changes the pattern of violation system so that MSHA will be able to address unsafe conditions as they occur, and gives MSHA the enforcement tools it needs to put dangerous mines back on track.

Let me respond to recent suggestions that Democrats have been playing political theatre with important safety and health legislation. We want to pass bipartisan legislation based on a shared commitment to workplace safety. I am thoroughly committed to that process, and I hope it continues. But we will not support weak or ineffective reforms in the name of bipartisanship.

Workplace accidents--whether in a mine, an oil refinery, or wherever--are preventable. All we are asking for is an opportunity to debate, amend, and vote

on a bill that will make real progress in improving the safety of our most dangerous workplaces. If we are not allowed that opportunity today, I plan to keep pressing forward on this issue until we get that chance. It is far too important, and too many lives are at stake, to give up now.

Mr. President, this is what we are here to talk about once again: making it in America.

On Friday, the Department of Labor made available more than $500,000 to assist 183 Iowans laid off from the ThermoFisher Scientific plant in Dubuque. All of the workers were certified as eligible for trade adjustment assistance. This grant was designed to help unemployed Iowans as they attempt to find new work in an economy that is already desperately short of new jobs.

I am certainly grateful for the temporary assistance from the Federal Government, as I am sure are the unemployed workers and their families. But what is wrong with this picture? Once again, we find ourselves lending modest assistance to American workers whose jobs have been eliminated--whose economic security has been destroyed--because U.S. manufacturing is being shipped overseas. I would note that manufacturing jobs, which are generally high paying, have been particularly hard hit in this economic downturn.

In my State of Iowa, there has been a steady, relentless drumbeat of layoffs and plant closings as companies from Electrolux to Cummins shut down their plants and move to other countries--including Mexico and China and other countries--that offer low wages, lower workplace safety standards, and only minimal environmental oversight. This is happening despite the fact that American workers, while paid more, tend to be far more efficient and productive.

Adding insult to injury, these newly unemployed American workers must reckon with the fact that the United States Tax Code actually rewards companies for sending their jobs overseas. That is right. Most Americans don't know this, but the Tax Code actually incentivizes companies that shut down operations and kill jobs in the United States.

This betrayal of American workers is outrageous on its face. And with the official unemployment rate stuck near 10 percent--that is the official rate; the actual rate is closer to 18 percent--it is simply intolerable.

That is why I have come to the floor to speak in strong support of the Creating American Jobs and Ending Offshoring Act of 2010. This bill would take three urgent steps to reduce and begin to reverse the bleeding of jobs from America.

First, the bill would end subsidies for plant closing costs. That is right. There are subsidies if you close a plant. It would prohibit a firm from taking any deduction, loss, or credit for costs associated with reducing or ending the operation of a trade or business in the United States and starting or expanding a similar trade or business overseas. Let me note that the bill would not apply to any severance payments or costs associated with placement services or employee retraining provided to those who lose their jobs as a result of the offshoring.

Secondly, the bill would end the tax breaks for runaway plants, for companies that reduce or close a trade or business in the United States and start or expand a similar business overseas for the purpose of importing their products back into the United States. Under current law, U.S. companies can defer paying U.S. tax on income earned by their foreign companies or subsidiaries until that income is brought back to the United States. This is known as deferral. Deferral has the effect of putting these firms at a competitive advantage over U.S. firms that have stayed here and that hire U.S. workers to make products in the United States. Imagine that. So you take your company and ship it overseas. All of the money that plant makes over there, you don't have to pay taxes on it. You keep your money there and keep expanding your plant, or make another plant in another country that is low wage and has low environmental oversight.

What an advantage they have over good companies, good businesses in America that want to stay here. So we have to close that loophole.

The third loophole we have to close is the encouragement businesses get right now to create jobs that go overseas. We have to create incentives for businesses that expand here. This bill would provide businesses with a 2-year break from paying the equivalent of the employer's share of Social Security payroll tax on wages paid to new U.S. employees performing services in the United States that used to be performed overseas. In other words, if they have a plant and a business here and can bring jobs back to the United States, guess what. For 2 years, they get a tax break; they don't have to pay the employer's share of the payroll tax. We will pick it up--the Federal Government, the taxpayers--because those jobs will come back here; people will be hired; and they will be paying into this economy.

Mr. President, I salute the Senator from Illinois, Senator Durbin, for introducing this bill. I also salute the senior Senator from North Dakota, Senator Dorgan, who has been such an outspoken champion of American manufacturing. He has fought long and hard to end the provisions in the Tax Code that have the perverse effect of actually encouraging and rewarding U.S. companies that ship jobs overseas. I also commend the Senator from Ohio, Sherrod Brown, who also is a tremendous champion of the focus and attention to try to do everything we can possibly do to keep our jobs here. Ohio has especially been hard hit. If we look at all of the statistics, Ohio has been especially hard hit over the last decade, during the last 8 years of the Bush administration, from all of the jobs that left Ohio and were shipped overseas.

Let me give an example of the destruction that is caused by this. Almost exactly 1 year ago, workers at the Cummins Filtration plant in Lake Mills, IA, a small community, were gathered together on the shop floor. Company officials, surrounded by a phalanx of security officials, announced that some 400 jobs would be moved to Cummins manufacturing plants in Mexico.

This announcement came out of the blue. The employees immediately went into mourning, trying to make sense of their new status--victims of the outsourcing of their jobs to Mexico. Thirty-five married couples worked at the plant. So many families lost two jobs in one fell swoop. In one case, the couple had worked at Cummins for 30 years. As one plant employee said:

This is going to be terrible for people, terrible for this

town. It's going to hurt everybody, the gas station, the

grocery store.

Mr. President, this is the kind of personal tragedy and devastation that we are seeing in thousands of towns all across America as companies lay off employees and/or shut down operations and move overseas.

Since 2001, some 42,000 American factories have closed their doors. Roughly three-fourths of those employed over 500 people. Not 42,000 jobs, Mr. President, but 42,000 American factories closed their doors since 2001.

The manufacturing sector lost 1.3 million workers in 2009 alone, continuing the disturbing loss of more than 5 million U.S. manufacturing jobs from 2001 to 2009. That is right, 5 million manufacturing jobs lost.

It is bad enough this is happening, but what is absolutely intolerable is that our Tax Code actually encourages companies to kill these U.S. jobs and take their operations overseas.

Senator Dorgan, many times, has cited the example of Levi jeans and Huffy bicycles.

What can be more American than Levi? They moved their production to Mexico and to other parts of the world. They don't make any Levis here anymore. They contract with foreign companies who make Levis for the Levi Company.

As Senator Dorgan said about Huffy bicycles in Ohio--Senator Brown's home State--workers there made $11 an hour making those bicycles. But they got fired, laid off, and Huffy bikes are now made in China at 30 cents an hour. The Huffy Corporation reaped millions of dollars in tax breaks as a result of this offshoring.

Then, as this chart shows, is Fruit of the Loom, another signature U.S. company that has outsourced many thousands of jobs over the last decade. The company has closed plants in Kentucky, Mississippi, Louisiana, Texas, and elsewhere, and shipped those jobs to Asia, the Caribbean, and Morocco, and the U.S. Tax Code has handsomely rewarded Fruit of the Loom for doing so.

Mr. President, these are the Fruit of the Loom guys on the chart, which shows them leaving for Mexico, and they took 3,200 U.S. jobs with them.

It is time to end this outrage, with the U.S. Tax Code actually encouraging companies to lay off employees and ship operations overseas, even as we struggle to recover from the worst economic downturn since the Great Depression.

The way to grow our economy and drive our recovery is to create jobs in America and remove policies that encourage companies to ship American jobs overseas. We built the middle class by building things in America. We can do it again by giving companies incentives to bring jobs back to America and create new ones here as well.

I encourage and urge my colleagues to support the Creating Jobs and Ending Offshoring Act of 2010.

I assume our time has expired.

Mr. President, I will take a couple more minutes.

First of all, I don't know how anybody can argue with this bill. It just says, one, we are going to end subsidies for plant closing costs. In other words, right now, a company could close a plant here and move it overseas. All of the costs of closing down that plant and ending that operation would take a deduction--or they could take losses or credit against taxes for the cost of closing that down. If they shipped it overseas--if a plant goes belly up, and they can't make it anymore, or whatever they have made is not being purchased anymore, that is one thing. I can see providing for credits and losses and deductions for that. But if they are closing it down and starting or expanding a similar trade or business overseas, they should not get any tax benefits whatsoever. That is what this bill does; it ends that loophole.

It ends the tax break for runaway plants when they expand their businesses overseas. Why should we allow companies that, as I say, are not good citizens--they take their plant overseas and the money they make over there--first of all, they don't have the same environmental protections. They have terrible working conditions and low wages. But they take all those profits--and a company that is here making the same products in America pays workers more, pays into Social Security, pays higher taxes, has environmental concerns to deal with--but this plant in America has to pay taxes on their earnings. The company over in China, making the same product, can defer those taxes, as long as they don't bring the money back here.

You might say, as long as they don't bring the money back here, why should they not get a deferral? Because they take those profits and expand operations in that country or other countries, further putting at a disadvantage the good companies that stay in America. We ought to end that loophole.

Third, this bill provides actual incentives for companies to repatriate jobs into this country--bring jobs back into this country. They get a 2-year break from paying their company's share of Social Security taxes. That is a good tax break for companies coming back into America.

For those three reasons, I don't see how anybody can argue with us. I am not here to say we have to stop every plant and put laws into effect to stop them from going overseas. That is not what I am saying. I am saying don't have the Federal Government subsidize that. That is what we are doing with our trade laws. I am not going to get into that now. That is for another debate maybe later this year or next year about redoing our trade laws and what we are doing in the WTO.

Why does China get away with undervaluing their currency, which makes their imports into this country cheaper, and we do nothing about it? At least Japan did something--raised tariffs to equalize the difference between what the currency could be worth on the open market. That is what we ought to look at in this country. China should not be allowed to get by with this undercutting of their currency just to make their exports to this country cheaper because it is taking more American jobs away.

Again, that is not part of this bill. That is a discussion we need to have, and we need to have it soon in order to, again, have us take a more or a stronger position in world trade than we have been taking in the last couple of decades.

With that, I yield the floor.

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

Madam President, I strongly oppose the resolution of disapproval offered by my good friend, the Senator from Georgia. I tried to listen to all my friend said, but let's just keep in mind what this is all about. The resolution we have before us would keep in place outdated and undemocratic election procedures that undermine workers' fundamental rights.

Hard-working Americans deserve better, and I encourage my colleagues to vote down this resolution.

By way of background, the Railway Labor Act governs labor-management relations for the rail and air industries. As the Supreme Court has noted, the Railway Labor Act was expressly passed to ``encourage collective bargaining.'' Under the act, a majority of employees have the right to decide if they wish to be represented by a union, and they use elections to make that choice. Unfortunately, for many years, the National Mediation Board, which implements the Railway Labor Act, has had antiquated elections procedures that place huge obstacles in the way of workers who are trying to exercise their basic right.

Under these archaic rules, a union did not win an election if it won a majority of the votes cast. Let me repeat that. Under these archaic rules, a union did not win an election even though they may have won a majority of the votes cast. How can that be? Well, because, instead, a majority of all eligible voters, or all those who voted, a majority-- instead of just counting all of those who voted, it said it had to be all eligible voters had to cast a vote for the union. What that meant was that anyone who didn't vote was automatically counted as a ``no'' vote. So all nonvoters were automatically and arbitrarily treated as a ``no'' vote or a vote against unionization. So if you didn't vote, that equaled a ``no'' vote. Doesn't that strike you as kind of odd?

This procedure is not only contrary to the election rules governing workers under the National Labor Relations Act, but it is contrary to basic principles of democracy underlying elections held throughout the United States, from student council elections to elections for United States Senators. Think about this. In virtually every election in this country, except those involving rail and aviation workers, a voter has a right to vote one way or the other or not to vote at all. However, under the archaic rules of the National Mediation Board, there is no right not to vote because if you don't vote you are counted as a ``no'' vote, whether you wanted to be a ``no'' vote or not. Maybe a lot of people don't vote for one reason or another.

As Senators, it would be apparent to all of us that this current rule makes no sense. For example, in the Senate, we cast hundreds of votes in each Congress. Inevitably, with one or two exceptions, most of us miss a vote or two, whether there is something going on in our State that we have to attend to or a family illness or whatever. We would be outraged if we missed a vote because of those circumstances and our vote was counted as a ``no'' vote when maybe we didn't want to vote no, but it would be automatically counted as a ``no'' vote if we didn't vote. We would be outraged at that.

In addition, in our contests for reelection, we would be outraged if every eligible voter who chooses not to vote is presumed to be a vote for our opponent; in other words, a ``no'' vote on us. That is pretty interesting, isn't it?

If you choose not to vote, you are counted as no. Well, it is no less outrageous to arbitrarily assign a position to nonvoters in a union election.

Again, there are many reasons a person might not vote. As I mentioned, they might be ill, forgot, or maybe they are just disinterested in the result, don't care one way or the other. That is why a basic principle of elections is that a voter's decision not to vote has no impact on an election's outcome. Again, I will repeat: A basic principle of elections in our country is that a voter's decision not to vote has no impact on the outcome of that election.

Indeed, in 1937, the Supreme Court, in Virginian Railway Company v. Systems Federation No. 40, in interpreting the very statute at issue-- the Railway Labor Act--expressly said:

Election laws providing for approval of a proposal by a

specified majority of an electorate have been generally

construed as requiring only the consent of the specified

majority of those participating in the election. Those who do

not participate are presumed to assent to the expressed will

of those who vote.

It makes sense. If you don't vote, what you are saying is, for one reason or another, whichever side wins, they win. Whatever the expressed will is of the yes or the no, I give my assent to that by not voting. That is what the Supreme Court said.

This basic system of conducting elections works for school boards. It works for State legislatures. It works for Congress. It works for all businesses governed by the National Labor Relations Act, and it certainly will work for rail and aviation workers.

Now, given the antidemocratic nature of its union election procedures, in May the National Mediation Board issued a long overdue rule change. Under the new rules, a majority of those who actually vote in the election is required for the union to prevail. Under this procedure, an employee, a worker, can choose to vote for a union, they can choose to vote against unionization, or they can choose not to vote at all. The rule, very simply, recognizes that in an election, the side with the most votes wins.

Well, I think the National Mediation Board should be commended for its new, more democratic rule. It is consistent with the procedure used in other elections in our country and will ensure fairness and equal treatment for rail and aviation workers.

Nevertheless, my friend from Georgia and others wish to overturn the application of these basic democratic principles to air and rail workers. First, as I understand it, they argue that because the National Mediation Board's old rules are 75 years old, they should remain unchanged. Well, just because something is old doesn't mean it should remain forever. A rule's age is irrelevant in evaluating its fairness. Our country has rightly eliminated many flawed election rules when circumstances changed. It is time to discard this one too.

The justification for the original rule is long outdated. Rail and aviation workers, like workers at many other businesses, are spread throughout the country. Seventy-five years ago, with often poor communications, there was a legitimate concern that many employees would not learn that a union campaign was taking place or that a vote was scheduled. The National Mediation Board feared that a small but informed minority of workers could dominate the election process and dictate a result for a majority of employees, many of whom may not even have known an election was occurring. That is not true today. Given today's modern technology--the Internet, e-mail, cell phones--these concerns are simply no longer relevant and should not dictate the Board's current election procedures.

Secondly, I believe the Senator from Georgia is wrong when he claims that the National Mediation Board has exceeded or does not have authority to implement this rule change. On June 25, a Federal court rejected this argument, finding that the change was well within the agency's authority. The Railway Labor Act does not specify any particular election procedures and leaves the means of conducting elections up to the Board.

The process the Board used to adopt their new rule was fair, open, and allowed all parties an opportunity to comment, using the same notice and comment process under the Administrative Procedures Act as used by other Federal agencies.

The National Mediation Board published a notice of proposed rulemaking in the Federal Register on November 3, 2009, that included a detailed explanation of why the Board was considering this change. It allowed parties 60 days to comment and provided a detailed rationale for the proposal. The Board considered nearly 25,000 public comments and held a public meeting where over 34 members of the public testified. Federal agencies issue new regulations every day following the same notice and comment procedures employed by the Board in this procedure, and nothing untoward happened here. It was fully open, fully aboveboard, and in compliance, as I said, with the Administrative Procedures Act.

My friend from Georgia and others have argued that one of the National Mediation Board members, Linda Puchala, may have somehow misled Congress during her confirmation hearings and failed to consider the new rule with a fair and open mind. There is simply no evidence to support this claim. On May 12, 2009, Ms. Puchala answered a written question from the Senator from Georgia. He asked:

Please state your views regarding the importance of

honoring the Board's 60-year history of precedents in matters

involving representation and mediation.

That was the question. Ms. Puchala responded:

The board has a long history of precedents in matters

involving representation and mediation. I think it is

important to review each case on its merits and to

consider all applicable precedents when making decisions.

Sounds logical to me. It is important to review each case on its merits. I would hope all individuals who have appointed positions in the Federal Government would take cases on their individual merits. Consider precedents, of course, if they are applicable, but to consider it on its merits.

As I understand it, that is precisely what Ms. Puchala did in this instance. In the almost 6 months between her confirmation and the publication of the notice of proposed rulemaking on November 3, 2009, she had ample time to carefully consider all points of view about the proposed change and implemented what she considered to be a fair rule. As a Federal judge wrote in rejecting these challenges:

The level of detail with which the agency considered and

discussed negative comments in the Final Rule belies

allegations that the Board rushed its consideration of the

new rule. . . .

That is a Federal judge.

Opponents have also argued--and I just heard this--that the Republican National Mediation Board member Elizabeth Dougherty was unfairly excluded from the consideration of the new rule. While I believe the internal deliberative processes of agencies should appropriately be kept confidential, I am reassured by the district court's finding on this point that there was no evidence that the majority board members violated any procedural rule or acted in bad faith. That was the finding of the district court.

Finally, throughout the course of the public debate over this rule change, opponents of the new rule have claimed that the National Mediation Board is trying to ``do card check by running around the backdoor.''

This is just pure nonsense. The National Mediation Board rule has nothing to do with the Employee Free Choice Act or card check. It does not modify in any way the way rail and aviation workers vote. Rather, it simply makes clear that a decision not to vote will not arbitrarily be treated as a ``no'' vote.

While this debate has nothing substantive to do with the Employee Free Choice Act or card check, there is one common thread. At the heart of opposition to this rule, and also at the heart of opposition to the Employee Free Choice Act, is a fear on the part of some people that, yes, workers will exercise their fundamental right to organize.

I want to make it very clear. I happen to be a supporter of the Employee Free Choice Act. I keep asking: Why is it that workers are compelled to walk across broken glass, to go through some kind of a boot camp harassment to exercise what is their legal right in this country: to join a legal organization? Why should they have to go through all that? That is why I have supported the Employee Free Choice Act.

Let's be clear what we are talking about today. Let's be clear what this means with this new rule. It means that rail and aviation workers have a voice in the workplace. Some people may consider that awful. I do not. It means fair wages and benefits. It means better and safer working conditions. It means workers have the right to be heard. They have the right to organize. They have the right to be heard in collective bargaining.

Indeed--I repeat--the Railway Labor Act, as the Supreme Court noted, was expressly passed to ``encourage collective bargaining.'' Maybe there are some who do not want to encourage collective bargaining. I think we are better off when we do have collective bargaining and we respect the rights of workers in this country.

These are the goals I hope every Member of the body could support. I applaud the National Mediation Board's decision to discard an outdated, antidemocratic rule, and to ensure fundamental fairness to rail and aviation workers in this country. Why should they be the only ones, among all the workers in this country, all those covered by the National Labor Relations Act, why should these two be the only ones where if they do not vote, it is counted as a ``no'' vote. It does not happen anywhere else. It is an arcane, outdated rule. It should be brought into the spirit of democracy we have in this country. You can vote yes, you can vote no, or you do not have to vote. If you do not want to vote, you should not be assigned a ``yes'' vote or ``no'' vote to the fact you did not vote. It should not be counted at all in the outcome of the election.

I strongly encourage my colleagues to oppose this resolution of disapproval.

Madam President, I yield the floor.

If the Senator will withhold the request for the quorum call.

Madam President, how much time do we have on our side?

On the opposite side?

We have 35 minutes left on our side. I yield 10 minutes or however much he needs, up to 10 minutes to my friend, the Senator from Minnesota.

Madam President, I do not have any more speakers on our side. I wanted to respond on a couple of issues that have come up here in the remarks in the last several minutes, last hour and a half, I guess, since we have been here.

First, having to deal with the idea that somehow under the National Mediation Board when there is an election for a union that it is permanent. Now, right. I mean, my friend from Georgia is right. You cannot kind of compare it to Senators, because we have to run every 6 years. I understand that.

I think it is still holds, though, that should someone who does not vote be counted as a no or a yes either way--I would ask my friend from Georgia to think about this in terms of not elections for Senators but how about ballot initiatives? We have school bond issues, and school bond issues get, maybe, what, 30 percent of the vote out. Should all of the people who do not vote be counted no against a bond issue?

I do not know about my friend's State of Georgia, but I know in Iowa we have retention ballot initiatives for our judges. We have a very good nonpartisan, nonpolitical way of getting judges. But then the judges come up on the ballot every so often. Yes or no, should they be retained? They do not have to run against anybody and no one runs for a judgeship. But should they be retained?

Well, obviously not too many people vote on that. Should people who do not vote be counted automatically as a no vote? I do not think people would like that. A lot of people do not vote because they may not have enough information to vote one way or the other, so they leave it go and say, well, maybe other people who know better could have their votes counted yes or no.

We have had ballot initiatives for minimum wages. Should all of those who do not vote be counted as no? I think it is a very fundamental principle of our system of government, as the Supreme Court has said many times in the past, that a ballot not cast should not in any way influence the outcome of the election, of any election.

The outcome of the election is determined by the yes and no votes, not by people who do not vote, a very basic principle. So that is one point I wanted to clarify.

This old rule of the National Mediation Board that people keep talking about, saying it is been the same for 75 years, I could quite frankly argue that it should not have been that way in the first place, although as I said in my opening statement I understand some of the rationale for it, that 75 years ago, where you did not have rapid communications and things such as that, you would not want a small group that maybe had voted a union in, and other people did not even know about it. But that is hardly the case today. Hardly. Everyone knows about it with instant communications and everything else. That is hardly the case today.

It is time to get rid of old, archaic rules that govern certain kinds of elections. Gosh knows, we have had a lot of old archaic rules in elections in this country going back to Jim Crow laws and things such as that. But we have moved beyond that, and those old kinds of rules should not apply any longer. So we move on and we recognize that people ought to have the right to vote, and that if you do not vote, it should not be counted as a no or a yes vote one way or the other.

Regarding the issue of when the union is voted in, it is as though they are forever, it is permanent. I have heard that argument made. Well, that is not necessarily true. But that is under the National Labor Relations Act the same thing. If a union is voted in, it is not voted in for 1 year or 3 years or 5 years. It exists until such time as the union is decertified.

There are two processes. There is a process under the National Labor Relations Act for decertification, and there is a process under the National Mediation Board for decertification. Essentially, with the exception of how they start, they both rely upon an election by secret ballot as to whether the union will continue to represent the workers of that plant or that industry or that association or whatever.

Under the National Mediation Board, if a union was voted in, the employees could at some point say, look, I do not think enough people want to maintain a union here. What they do is they put up a person to run in a union election, a straw man. People know if they vote for that person, they are voting to get rid of the union, because if that person wins, that person will not represent the workers.

This is done. There is nothing wrong with that. It is fine. So workers know if they vote for this person, it ends the union. If they vote against this person, it continues the union. It is all by secret ballot. The National Labor Relations Act is basically the same way. If an employer or employees want to decertify a union, they file a petition with the NLRB, and then there is an election, as to whether the union will continue to represent the workers.

There may be a little bit of difference in structure between the National Labor Relations Act and the National Mediation Board, but, in essence, they are the same thing. You have a secret ballot as to whether the union continues. So it is not that the union is there in perpetuity, it is there as long as the workers want to continue to be represented by a union.

Lastly, I will digress a little bit from the point at hand; that is, the issue at hand on the matter before us on overturning this rule, to say a couple of things about unionization and workers who belong to unions in our country. It is a shame that union workers are somehow almost degraded as not even being worthy of being citizens in this country; that somehow a union has dark overtones, that somehow unions are destructive or not in keeping with American society or who we are as a people.

If we look at the history of the country, it was unions that built the middle class in America. I defy anyone to refute what I just said, that it was unions that built the middle class. It was unions that instituted things such as the minimum wage, such as safe working conditions, such as making sure they had a fair share in terms of wages, that they had an 8-hour workday and a 40-hour workweek and time and a half overtime--all these things were brought by unionization, people collectively bargaining for wages, hours, and conditions of employment. Maybe there are some who would like to undo the Wagner Act. If they do, fine. I suppose some people believe we shouldn't have any unions at all.

China doesn't have any independent unions. Do we want to be like that? Unions built the middle class in America.

Unions today do a very good job of representing workers, both in the public and private sectors. Today, we have too few people in America who actually belong to unions. We should have more, but we have made it more and more difficult for people to freely exercise their right to actually join a union. I just looked at a list of countries in the G8. With the exception of Russia, which I can't get figures for, the United States basically is at the bottom. Canada, 27 percent of their workforce is unionized; Japan, 18 percent; Italy, 33 percent; Germany, 19 percent. Look at the economy of Germany. The United Kingdom is 27 percent, and the United States is 11.9 percent. We are down there at the bottom. One cannot say that somehow if we have unions and we are highly organized, that our economy is going to be bad. Quite frankly, these other economies are doing as well or better than we are, and they have pretty strong unions.

I digress because it seems that time after time we hear people in a subtle way hinting or implying that unions, by their very nature, are somehow destructive of American free enterprise and our capitalist system. I don't think anything could be further from the truth. If it were not for unions, our economy would have gone down the tubes a long time ago.

Quite frankly, I believe one of the reasons we have seen in the last few years a widening gap between the rich and the poor--and it is happening; no one can refute that. The gap between the very wealthy and those at the bottom is growing rapidly and has grown rapidly just over the last 10, 15, 20 years--is coincidental with the fact that fewer and fewer people belong to unions, and more and more unions are being decertified or it is more difficult for people to join unions. Unions are

being busted through by one means or another.

I often tell the story of my brother Frank. He is now deceased. He went to work for a plant in west Des Moines, IA, back in the early 1950s. It was unionized by the United Auto Workers. My brother was disabled, but the owner of the plant--it was privately held--Mr. Delavan, owned the plant and hired a lot of people with disabilities. They had good jobs, good wages and hours. It was a great place to work. He worked there for 23 years. He worked there for 10 years one time, his first 10 years, and they gave him a gold watch because in 10 years he never missed 1 day of work and was not late once. In fact, in 23 years, he only missed 5 days of work because of a blizzard. In all those years, they never had one labor strike, not one labor problem, no strikes, nothing. They would have their bargaining agreement. They would bargain with the owner. They would move on. They never had a work stoppage, never had any problems, until Mr. Delavan got old and sold the plant to a group of investors.

The investors came in and openly bragged--and I have the newspaper to prove it--if you want to see how to get rid of a union, come to Delavan's. That was in the Des Moines Register.

When the contract came up for negotiation, the employer refused to negotiate. They would sit down and talk for a little bit, but nothing could be agreed upon. It went on and on. Finally, the union had to call a strike, the first time ever. The new owners, the investors, brought in what the striking workers called the scabs, the replacement workers, brought them in, kept them there. One year later, they had a vote to decertify the union because the new people there didn't want to lose their jobs. They decertified the union, busted the union.

Why did they want to do that? Because a lot of the people, such as my brother who had worked there for 23 years, had established seniority. They were getting paid a good hourly wage. But the new investors figured out they could get rid of all those people, hire younger people, pay them a lot less, and they would make more profit. That is exactly what happened. Investors made more profit. But they got rid of a lot of people and destroyed a lot of lives. People who had worked there for a long time and had families basically were told they were used up, burned out, out on the trash heap out in back.

I often think about that. I think about what happened. There was no reason to break that union other than to have more profits for the investors and less for the workers.

That has been going on in this country at least for the last 25 to 30 years. So is it any surprise that fewer and fewer people are getting more and more wealth and more and more people are getting less?

I hear people talking about unions and they don't want to strengthen unions, don't want to help unions. I want to make sure the playing field is open and level and that the secret ballot is fairly used, that people should have a better chance at joining a union than what they have in the United States today. That is why I am for the Employee Free Choice Act. It will strengthen the right of people to actually freely and openly join a collective bargaining unit. That would be better for the country. I state that unequivocally. The more and more we denigrate workers in terms of their ability to collectively bargain, we will hurt the economy. When we strengthen unions, when we strengthen people and give them better rights and better chances to organize and bargain collectively, then more and more of our money, our national economy, more of that will go to the workers, maybe less to capital. I think that is the way it should be. Too much of our money is going to capital and not enough to labor. We need a better balance there. About the only way that will happen is through collective bargaining.

Count me as a person who is strongly in favor of collective bargaining and strongly opposed to this effort to overturn a rule made by the National Mediation Board which I believe rights an injustice, rights a wrong, and says that: In the future, if you have an election, if you don't vote, your vote is not counted one way or the other. The outcome of the election will be decided by those who vote yes or no in a secret ballot.

Madam President, I ask unanimous consent that at 12:20 p.m., there be 10 minutes of debate remaining on the joint resolution; that it be equally divided and controlled between Senators Isakson and Harkin; further, that at 12:30 p.m., the Senate immediately proceed to a vote on the motion to proceed to S.J. Res. 30, the joint resolution of disapproval.

How much time is on our side?

And on the other side?

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

Madam President, are we at 12:20 p.m., the time where we have 10 minutes divided?

I will take 3 minutes.

First of all, in response to my friend from Georgia--and he is my friend; he is a great guy--this person, Ms. Polaski, Under Secretary of Labor, may have written a letter, but as Under Secretary of Labor she does not work for the National Mediation Board. She does not necessarily have the experience of interpreting its laws or procedures. That is the job of the National Mediation Board itself and of Federal judges, which, I have to remind you, upheld the Board's actions 100 percent in this matter.

Secondly, on the matter of decertification, I strongly disagree with my friend from Georgia. There is a procedure under the National Mediation Board, as under the National Labor Relations Act. If a person wants to get rid of the union under the NMB, they can file a petition, if they can get 50 percent plus one person to show an interest--quite similar to the National Labor Relations Act. If they can get 50 percent, they can file a petition with the NMB. The NMB then has an election. If that person wins, that person is not represented by any union, so the union is gone. There is just a little bit of a difference from the National Labor Relations Act, but the outcome is basically the same.

So there is a way. The Senator is right. I would say my friend is right; it is not a formal decertification. But it is a way of getting rid of the union, one way or the other. It may not be formal decertification, but it is a way that the union can be gotten rid of under the NMB.

I yield the floor.

Madam President, how much time now is remaining?

Madam President, as an agreement between the Senator from Georgia and myself, we have agreed that since he is the author of this joint resolution, he will close out the debate. I think that is proper.

I will just take a little bit of the remaining time on this side again to reiterate why this resolution of disapproval should be defeated.

No. 1, as has been adequately stated many times, it is time to get rid of antiquated, outdated rules that say if you do not vote, it is counted as a ``no'' vote. That does not make any sense.

Again, this idea that it is in perpetuity--it is not. There are ways for people to get rid of unions under the NMB, as under the NLRB. So it is not in perpetuity at all. It is just, again: How should ballots be counted? Should a person who does not vote be counted as a ``no''? That should not be so.

Even if you accept the argument that it is in perpetuity, why should someone who does not vote be counted as a ``no'' vote? On the judges, we say that every 4 years they are up. That is true; they are not kind of in for perpetuity. But why should someone who does not vote be counted as a ``no'' vote? It does not make sense in any system. I do not care what the length of time is or whether it is in perpetuity or for 2 months or 2 days; those who do not vote should not be counted no or yes, one way or the other.

Secondly, the National Mediation Board went through proper procedures in giving notice and comment in rulemaking. As I said, they published it on November 3 of last year, a detailed explanation of why they were considering it. They had 60 days of comment, 25,000 public comments, a public hearing. Thirty-four members of the public testified.

Well, this is what Federal agencies do. They follow the Administrative Procedures Act in doing this, and that is exactly what the Board did.

So no one was misled. No one was kept out of it. There was no evidence to support any claims that one member somehow was excluded or did not have an opportunity to have input into this process.

Again, I understand why this resolution has come up. I understand that for whatever reason, Delta Air Lines does not wish to be unionized. Well, that is fine. That is their right. But there ought to be a process whereby the workers have a fair, open chance to organize, if they want to. It is not illegal in this country to belong to a union--perfectly legal. The National Mediation Board has set up rules and procedures under which workers who work for Delta or for Northwest--the combined group now--can decide whether they want to have a union. To me, that is the American way.

So why should we now say: Well, no, we want that old rule that if you do not vote, it is counted as a ``no'' vote? That is what this is all about. Stripped to its essence, if you vote for the resolution introduced by my friend from Georgia, what you are saying is, if a person does not vote, it is counted as a ``no'' vote. You are also voting to override the National Mediation Board's decision, which has already been upheld by Federal courts.

But, in essence, that is what it is. If you believe a person who does not vote

should have their vote counted as a ``no'' vote, you probably ought to vote for my friend's resolution. I do not think we should.

I think we should uphold good democratic principles, principles by which, I say, bond issues or other ballot initiatives are always done. You do not count someone if they do not vote. We do not do it here. We do not do it anywhere in this country, and it should not apply here any longer. So I ask for a ``no'' vote on the resolution of disapproval so we can have free, fair, and open elections.

Madam President, first of all, to my friend from Oklahoma before he leaves the floor, I thank him for his kind words. I appreciate that very much. He is a very valuable member of our committee. We have done work together in the past.

I say to my friend from Oklahoma, I agree with a lot of what he said. This bill is not going to solve all our problems. It may not solve a majority of our problems. It will solve some of them.

The Senator is right. We read about these crazy pizza things-- Agriculture has one, FDA has the others. It is a crazy quilt work of things.

I say to my friend from Oklahoma, I am about as frustrated as you are. I have been chairman of Ag and I am chairman of HELP. When I am on Ag and they want to get some stuff to have jurisdiction over, then the people at Health and Human Services step in and they say no. Now I am on HELP and we want to get more jurisdiction for FDA and Ag says no. It drives you nuts sometimes. So you have these interlocks that have been built up over the years, and, yes, we have a crazy patchwork quilt.

I would say forthrightly that what we need in this country, I believe, after having been through this for 35 years on the Ag Committee in both the House and Senate and now in the HELP Committee for 22 or 23 years there, we need a single food safety agency in America that would pull from Ag and pull from FDA and set up a food safety agency.

I would say to my friend that agriculture has a lot of things on their plate. They have exports, they have farms, they have a lot of stuff on agriculture. FDA, they have drugs and all the stuff with drugs that they have to do--new drugs and investigational new drugs and all this other stuff and then they have some foodstuff. Foodstuff always gets kind of left behind. I see the same thing in agriculture. They have so many other things on their plate that takes so much money, the foodstuff gets kind of left behind.

So I think what we ought to do, if you want to drill down, is to get rid of all that and put it in one food safety agency. I have proffered this in the past, but I don't find much support for that. The institutional biases against that are tremendous. So I say to my friend: You are right. This bill will not solve all our problems, but I think it is a good step. I think it is a good step forward. It has strong bipartisan support. It has the support of industry and consumers, and that doesn't happen too often around here.

There is that old saying: Don't let the perfect be the enemy of the good. I hear my friend from Oklahoma, and what he is saying is we ought to have a more perfect system than what we have. I agree. We ought to have a more perfect system, but I can't get that done. We can't get that done here. But we can do some good things and we can take some steps to make it better than what it is and that is what this bill does.

Well, I agree we are not getting to the nub of it, but it is a good step forward. I mean, sometimes you do have to treat the symptoms before you can get to the underlying cause. I am not a doctor. I don't want to practice medicine without a license.

I would just say again--to repeat--this bill is a major step forward. It will not solve all the problems. I can understand that, and I think there is a lot of other things we need to do, but you have to do what is possible around here. Politics is the art of the possible--to try to move the ball forward, to make changes that are more beneficial than detrimental, and I believe that is what this bill does.

We have worked long and hard. I see my colleague, Senator Enzi, is on the floor. I couldn't ask for a better friend and a better ranking member to work with. We reported this bill out last November without one dissenting vote--a voice vote.

I am sorry the Senator from Oklahoma had to leave, but I would just say that he did not object. He is on our committee, and he did not object to reporting out the bill. We had hearings, a markup, and we went through all the right and normal procedures. Then, since last November, our staffs--Senator Enzi's staff, my staff, and others, Senator Gregg's staff, I know, Senator Burr's staff--have been involved, and we have too personally--the Senators have been involved in this since at least the first of the year--working out the problems and trying to get down to a bill that would have widespread support on the floor.

Again, on something such as this, where we want to tackle a problem that is certainly not in any way partisan, you would like to get broad support for it. We kind of like to get something that would have a lot of folks, rather than a few, in order to send a strong signal that the Congress wants to make changes in the way we inspect food in this country.

I would say this bill we have--if this bill were to come to the floor--would get over 90 votes. I bet it would get over 90 votes. Maybe it would get 95, maybe 98, I don't know, but there would certainly be over 90 votes. So we have strong bipartisan support. As I said, we have the industry that supports it and the consumers. That doesn't happen a lot around here.

I can understand why both sides support it. Senator Enzi, Senator Gregg, Senator Burr, myself, Senator Durbin's staff, Senator Dodd, and others on our side have been working together, and I think we have a good bill. Is it perfect? No, it is not perfect. Is it going to solve every single problem the Senator from Oklahoma brought up? No, it is not. I am not Pollyannaish about this. But we do what is the art of the possible. We do what we can to make the system work better, to make sure we have less foodborne illnesses than what we have today. This bill will do that, not 100 percent, but it will sure cut down on the number of foodborne illnesses in this country.

This is long overdue. It is long overdue. My goodness, the last time we addressed this issue on food inspection, under the jurisdiction of the FDA, was 1938. If I am not mistaken, it was in 1938. I wasn't born until 1939, and we haven't even visited this since 1938. Think of the changes that have taken place in our country in the way we process and ship food. My gosh, when these were passed in 1938, my own family had our own garden, we canned our own vegetables, we canned our own meat. Yes, we canned meat, in glass jars, by the way.

We process food differently now. We didn't buy food from other countries or halfway across the country. We ate locally. We grew our own food. But times have changed, and we like it now. I like the fact that I can buy strawberries in the middle of the winter in Washington or I can buy a mango sometimes when I want one or bananas and things such as that. It is a wonderful system of making food available. What is not so wonderful is how that food is inspected as it goes through the growing, the picking, the processing, the shipping, the packaging, and then on to the consumer. That is what is not working well, and that is what this bill does address.

Again, the objection the Senator had in terms of it not being paid for, this is an authorization bill, not a spending bill. I wish to clear up a few things. I know my friend from Wyoming is here, and I want to hurry up to give him the floor, but just a couple of things I wish to cover for the record.

No. 1, on the deficit, there has been some talk about this increasing the deficit. I wish to make this very clear, precisely clear, that according to the CBO there will be no deficit increase for 10 years on this bill. I wish to make that point. In fact, we added language, at Senator Coburn's request, to have Health and Human Services review its own programs to trim any fat to help ensure fiscal responsibility and we have a reporting system and other things the Senator from Oklahoma wanted and we put in the bill.

The next-to-the-last thing I wish to say is this. The food industry wants this bill. Why do they want it? Well, on the one hand, people get sick and people die. On the other hand, the food industry suffers too. First of all, a lot of

times they get sued and they have to pay out big compensations. But, secondly, the disruption costs them a lot of money. When salmonella led to the recall of tomatoes, the entire Florida industry suffered, losing over $500 million in revenue--$500 million. When we had E. coli in spinach, growers lost $350 million. So they have an interest also in making sure we have a good food inspection system, and that is why they are for this bill.

I have letters from the Grocery Manufacturers Association, the U.S. Chamber of Commerce, National Restaurant Association, Consumers Union, PEW Charitable Trust, the Center for Science in the Public Interest, Trust for America's Health.

It is a rare thing when I can say that both the Chamber of Commerce and the Center for Science in the Public Interest are on the same page. You have pretty broad support. So it is a shame we can't move this bill forward. It is needed.

I wish to also pay my respects to Senator Durbin. He has been working on this issue, literally, I know for the last 10 years. He has been bugging me about it for 10 years, and I didn't even have the power to do anything about it. So I know he has been insistent we work on this for a long time. Our committee has taken it up under Senator Enzi's leadership, then later under Senator Kennedy, and now it falls to me, as chairman, to work together on it in a very good bipartisan way.

Madam President, on November 18, 2009, the Senate Committee on Health, Education, Labor, and Pensions reported out S. 510, the FDA Food Safety Modernization Act, without a single dissenting vote. Since that time, the bipartisan group of cosponsors--Senators Durbin, Dodd, and I on the Democratic side, and Senators Enzi, Gregg, and Burr on the Republican side--have continued to work with Senators on both sides of the aisle to refine and improve this much needed legislation.

Legislation to reform our Nation's outdated food safety system is long overdue. And that is why I am so deeply disappointed that after all of this work, the Senator from Oklahoma has decided he will not allow us to move the bill forward.

I understand that Senator Coburn's primary objection to the legislation is that it is not paid for. I think that objection is misguided, for reasons that I will explain. But I would also like to emphasize that the unanimous consent agreement proposed yesterday by the majority leader, and objected to by Senator Coburn, would have allowed the Senator to have an up or down vote on an amendment to offset the cost of the bill, notwithstanding the fact that the bill contains no mandatory spending.

I know Senator Coburn states that this bill will contribute to the federal deficit. However, I have to respectfully disagree. In fact, as this chart clearly shows, the nonpartisan Congressional Budget Office has indicated that this legislation does not contribute to the Federal deficit.

Our bill has no mandatory spending--only authorized spending. This legislation, like countless others that have passed this year, will be subject to the annual budget and appropriations process.

Furthermore, during the negotiations on the bill, we added language at Senator Coburn's REQUEST to have HHS review its own programs to trim any fat to help ensure fiscal responsibility. The Secretary is required to annually report her findings to Congress on these programs' effectiveness in achieving their goals.

Conservative Republicans like Senators Gregg, Enzi, and Burr all support this bill. I am again disappointed that Senator Coburn won't even let us consider it on the Senate floor, even though we have agreed to give him an opportunity to offer his amendment to the bill.

While I am here on the floor today, I would like to address some other misstatements that I have heard about this legislation as we have worked over these past weeks and months to bring it to the floor. First, there are claims that this bipartisan legislation is harmful and burdensome to the food industry. I find that very hard to believe. This legislation has widespread support amongst industry and consumer groups. The reality is that every time there is an outbreak of foodborne illness, the food industry suffers, as consumers lose confidence in the safety of our food supply.

When salmonella contamination led to the recall of tomatoes, the entire Florida tomato industry suffered, losing over $500 million in revenue.

And during the 2006 spinach e. coli contamination that originated at a single farm, the spinach industry lost $350 million.

The good actors in the food industry already take steps to prevent food borne illness, but the entire industry suffers when FDA does not have sufficient authority to ensure that all processors will sell safe food.

I have received letters from the Grocery Manufacturing Association, U.S. Chamber of Commerce, National Restaurant Association, The PEW Charitable Trust, Consumers Union, Center for Science in the Public Interest, and Trust for America's Health, to name a few. It is a rarity when I can say that both the Chamber of Commerce and CSPI are on the same page. Here are several letters of support by both groups and a joint letter that both industry and consumer groups have signed. Let me read an excerpt from the joint letter:

Our organizations--representing the food industry,

consumers, and the public-health community--urge you to bring

S. 510 to the floor, and we will continue to work with

Congress for the enactment of food safety legislation that

better protects consumers, restores their confidence in the

safety of the food they eat, and addresses the challenges

posed by our global food supply.

Sincerely,

American Beverage Association, American Frozen Food

Institute, American Public Health Association, Center

for Foodborne Illness Research & National Restaurant

Association, The PEW Charitable Trusts, Trust for

America's Health, Snack Food Association, S.T.O.P. Safe

Tables Our Priority, U.S. Chamber of Commerce, U.S.

Public Interest Research Group.

National Association of Manufacturers, National Coffee

Association of the USA, National Confectioners

Association, National Consumer League Education, Center

for Science in the Public Interest, Consumer Federation

of America, Consumers Union, Food Marketing Institute,

Grocery Manufacturers Association, International

Bottled Water Association, International Dairy Foods

Association.

Madam President, Senators often talk about the importance of addressing so-called ``kitchen table'' issues''--the practical, everyday concerns of working Americans. Well, food safety is literally a ``kitchen table'' issue. And it couldn't be more urgent or overdue. It is shocking to think that the last comprehensive overhaul of America's food safety system was in 1938--more than seven decades ago.

On the whole, Americans enjoy safe and wholesome food. The problem is that ``on the whole'' is just not good enough.

As you can see from this chart, recent food-borne outbreaks in America have been wide in scope and have had a devastating impact on public health.

When kids die from eating peanut-butter sandwiches their mothers pack for lunch, we have a problem. When people get sick--and many die--from eating bagged spinach and lettuce, we have a problem. When cookie dough sold in supermarkets contains deadly E. coli, we have a problem. When 1,000 Americans get sick from eggs that have been recalled for possible salmonella contamination, it is undeniable that we have a problem.

As you can see from this chart, the Centers for Disease Control and Prevention estimate that foodborne illnesses cause approximately 76 million illnesses a year, including 325,000 hospitalizations and 5,000 deaths.

According to Georgetown University, these foodborne illnesses costs the United States $152 billion per year in medical expenses, lost productivity, and disability.

Those numbers are just staggering. This is like learning that, each year, nearly 200,000 people in the United States die because of medical errors and hospital-acquired infections--most of them totally preventable.

As this chart shows, the cost of foodborne illnesses in my home State of Iowa alone is nearly $1.5 billion per year.

These aren't just numbers, these are real people. Real people like Kayla from Monroe, IA. On October 22, 2007, Kayla turned 14 and passed her driver's

test. The next day she stayed home with a foodborne illness and was admitted to Pella Community Hospital when her symptoms worsened. She did not respond to antibiotics and within a week her kidneys began to fail. Kayla was transferred to Blank Children's Hospital for dialysis, but her condition continued to deteriorate. She suffered a seizure and began to have heart problems. Just a few days later Kayla's brain activity stopped and her parents made the painful decision to take their beautiful 14-year-old daughter off life support.

These things are totally intolerable. And yet, apparently, we tolerate them.

Well, no more. We can no longer tolerate the unnecessary pain, suffering, and death caused by America's antiquated, inadequate food safety system.

Let's put it plainly: Our current regulatory system is broken. It does not adequately protect Americans from serious, widespread foodborne illnesses.

Bear in mind that, at the beginning of the 20th century, Americans ate a much simpler fare--and, most of the time, they prepared meals from basic ingredients in their own homes, with their own hands.

Today, our meals have grown more complex, with much more varied ingredients and diverse methods of preparation. By the time raw agricultural products find their way to our dinner plates, multiple intermediate steps and processes have taken place. Food ingredients typically travel thousands of miles from farms to factories to fork and they are intermingled and mixed together along the way.

We love today's broader selection of fresh foods available year- round. But this brings with it major new food safety challenges. For instance, we rely more on foods imported from countries with less rigorous inspection rates and different production standards and conditions than our own.

Yet despite dramatic changes in our tastes, as well as in methods of production and distribution, our food safety laws have not changed. The U.S. regulatory system has failed to incorporate the latest scientific research on ways to make and keep food safe. Another shortcoming: Food safety agencies are still encumbered by methods that often allocate disproportionate resources to activities that do little to make our food safer. FDA's own subcommittee on Science and Technology concluded in 2007 that FDA does not currently have the capacity to ensure the safety of our food.

OK, so what do we need to do?

For starters, we need improved processes to prevent the contamination of foods and improved methods to provide safe food to consumers. To achieve this, more testing and better methods of tracking food can be utilized to verify that the processes are working.

Thirty years ago, the Nation had 70,000 food processors and the FDA inspectors made only 35,000 visits a year to cover these processors. Even that level of oversight was inadequate. But today, a full decade into the 21st century, we have 150,000 food processors, twice as many plants, and the problem has grown far worse. Today FDA inspectors make just 6,700 visits each year; only one-fifth as many visits as they made three decades ago. This is absurdly inadequate. It is a wide-open door to an endless series of outbreaks of foodborne illness.

As this chart shows, the FDA Food Safety Modernization Act overhauls our food safety system in four critical ways:

It improves prevention of food safety problems, improves detection of response to foodborne illness outbreaks when they do occur, enhances our Nation's food defense capabilities, and increases FDA resources.

With the most recent recall for possible Salmonella contamination in at least 550 million eggs, we have yet another example of how this food safety bill, had it been in place, could have improved the FDA's ability to prevent and respond to the outbreak. This bill includes the following provisions that would have been beneficial to respond to this contamination and prevent future contamination:

It requires stronger trace back provisions so the contamination source and affected egg products could have been more readily and quickly identified.

It provides the FDA with mandatory recall authority in the event that businesses do not voluntarily recall products.

It requires retailers to notify consumers if they have sold food that has been recalled so consumers may have been aware of the contamination sooner.

It provides stronger disease surveillance so the outbreak may have been discovered earlier. It includes stronger enforcement provisions that would generally deter producers from cutting corners on food safety so the contamination may have been prevented or detected sooner.

It gives the FDA increased access to company records to identify contaminated foods so the likelihood of contamination may have been minimized.

The bill before the Senate today will also dramatically increase FDA inspections at all food facilities. And it does much more. It will give FDA the following new authorities:

It requires all food facilities to have in place preventive plans to address identified hazards and to prevent adulteration; and it gives FDA access to those plans.

It expands FDA's access to records in a food emergency.

It requires importers to verify the safety of imported food.

It strengthens surveillance systems to detect foodborne illnesses.

It requires the Secretary of the Department of Health and Human Services to establish a pilot project to test and evaluate new methods for rapidly tracking foods in the event of a foodborne illness outbreak.

And, as I previously mentioned, this bill gives FDA the authority to order a mandatory recall of food.

I want to say a word about the impact of this legislation on farms and small processors. I have long said that our new regulations should be effective, but not excessively burdensome. I am proud to say that this legislation comprehensively modernizes our food safety system, but does so without injury to farms and small processors. There are requirements throughout this bill to assure that the compliance burdens on farms and small processors are minimized to the extent practicable, and the legislation directs FDA to exempt both small processors and farms from certain provisions of this bill if they are engaged in low- risk activities.

As this chart shows, this bill makes several accommodations to address the concerns of small businesses. We have included language to ensure that state and federal personnel help educate small businesses about the new regulations and help folks comply with these regulations. This approach is tied to risk, grounded in common sense, and set up to help everyone succeed. I am confident we have addressed the legitimate concerns we have heard from small business owners

This food safety bill has been bipartisan from the beginning. It is an important, measured, and necessary effort to modernize our food safety system and protect American consumers across the country from foodborne illness.

I hope we can find a path forward and move this critical legislation as soon as possible.

I have some letters here, Madam President, and I also ask unanimous consent to have these printed in the Record at the end of my comments in support of this bill.

It is a shame we can't move this forward. Like I said, it would get over 90 votes. I think we could dispose of a couple amendments fairly rapidly. I don't think it would take much time at all to move this legislation. So I am hopeful that even though we can't take it up now, maybe we can work with the Senator from Oklahoma, perhaps work something out to get some kind of agreement to get this moving forward.

As I yield the floor, Madam President, I will recognize and thank my colleague from Wyoming, Senator Enzi, who has also worked diligently for a long time, and his staff. I will tell him we will continue to work on this bill. We will continue to try to see what we can do to overcome some of these bumps in the road and try to get this bill through.

So I thank my friend from Wyoming for his great leadership and his working relationship specifically on this bill but on a lot of other things too.

Exhibit 1

September 15, 2010.

Senator Harry Reid,

Office of the Senate Majority Leader, Capitol Building,

Washington, DC.

Senator Mitch McConnell,

Office of the Senate Minority Leader, Capitol Building,

Washington, DC.

Dear Majority Leader Reid and Minority Leader McConnell:

Our organizations are writing to urge you to schedule a vote

on S. 510, the FDA Food Safety Modernization Act of 2009, at

the soonest possible date. The HELP Committee approved a

strong, bipartisan bill in November, and we believe that a

vote would keep the momentum going for enactment of landmark

food-safety legislation.

Strong food-safety legislation will reduce the risk of

contamination and thereby better protect public health and

safety, raise the bar for the food industry, and deter bad

actors. S. 510 will provide the U.S. Food and Drug

Administration (FDA) with the resources and authorities the

agency needs to help make prevention the focus of our food

safety strategies. Among other things, this legislation

requires food companies to develop a food safety plan; it

improves the safety of imported food and food ingredients;

and it adopts a risk-based approach to inspection.

Our organizations--representing the food industry,

consumers, and the public-health community--urge you to bring

S. 510 to the floor, and we will continue to work with

Congress for the enactment of food safety legislation that

better protects consumers, restores their confidence in the

safety of the food they eat, and addresses the challenges

posed by our global food supply.

Sincerely,

American Beverage Association, American Frozen Food

Institute, Center for Foodborne Illness Research &

Education, Center for Science in the Public Interest,

Consumer Federation of America, Consumers Union, Food

Marketing Institute, Grocery Manufacturers Association,

International Bottled Water Association, International

Dairy Foods Association, National Association of

Manufacturers, National Coffee Association of U.S.A.,

Inc., National Confectioners Association, National

Consumers League, National Restaurant Association, The

PEW Charitable Trusts, Trust for America's Health,

Snack Food Association, S.T.O.P Safe Tables Our

Priority, U.S. Chamber of Commerce, U.S. Public

Interest Research Group.

Mr. President, today marks exactly 6 months since the Affordable Care Act became law. And this truly is a banner day, because a key feature of the new law, the Patient's Bill of Rights, goes into effect--cracking down on the worst abuses of health insurance companies and giving Americans important new protections. These reforms are long overdue, and represent a new day in American health care. We are creating a reformed health insurance system that works in the interest of working Americans and their families--the healthy and the sick--and not just to boost the profits of insurance companies and the bonuses of their executives.

Starting today, insurance companies will no longer be allowed to cancel your policy if you get sick. They must end their abusive practice of scouring your health records for an excuse--any excuse--to cancel your coverage and leave you high and dry when you need insurance the most. One major insurer actually targeted women who were newly diagnosed with breast cancer. No longer will insurance companies be allowed to reward employees with bonuses for cancelling policies in order to pad company profits. This cruel practice, at long last, is illegal.

Starting today, children with preexisting conditions can no longer be denied health insurance. This will ensure that all children receive access to preventive care and needed treatments and healthy start at life.

Beginning today, lifetime benefit limits on your health insurance plan will be banned, and annual benefit limits will be restricted. Over 100 million Americans have health plans that include a lifetime limit, which, in times of serious illness, can cause the loss of coverage when patients need it the most. No longer will a diagnosis of an acute illness such as cancer or ALS lead a patient to rapidly max out their health benefits.

Starting today, parents will no longer have to worry that their children will be kicked off their health insurance plan when they turn 19 or finish college. Today, millions of American families with young adult children who don't receive health insurance through their employer will be able to keep their children on their family plan until age 26. I know that in my State of Iowa, this will help over 8,300 young adults this year.

Today, Americans receive yet another protection against health insurance company abuses. Starting today, if an insurer refuses to pay for your test or treatment, you are guaranteed the right to appeal that decision. If your appeal through the company is not favorable, you have the right to an independent appeal by a third-party reviewer. This is one of many new reforms that will keep insurance companies from boosting profits at the expense of sick patients.

And finally, today is a landmark day in the effort to transform our current sick care system into a true health care system--one focused on wellness, prevention, and public health--keeping people out of the hospital in the first place. That is why I am particularly pleased that, starting today, health plans must cover proven preventive services at no cost to the patient. This means that, starting today, you can visit your doctor for tests such as mammograms and colonoscopies for prenatal care, or for immunizations such as the seasonal flu shot, without paying a deductible, co-pay, or coinsurance. This represents an enormous benefit to the health of Americans, and to the well-being of this country. Because there is no better way to bend the cost curve downward than by keeping people healthy and catching illness in its earliest stages.

As I travel around the country, I hear from so many folks who have already benefitted from health care reform, and look forward to the many additional improvements still to come. I hear from mothers who are relieved their children can no longer be denied coverage for their asthma, from working families who will no longer have to worry about the cost of a co-pay for their annual flu shot, and from seniors who have received a $250 rebate check to help with the cost of their prescription drugs.

Starting in January, seniors will also receive free preventive services--plus an annual wellness visit--through Medicare.

I talk to small business owners who have benefitted from the tax credits that make providing health coverage to their employees more affordable.

I would like to take a moment to share how health reform is helping everyday Americans by putting people ahead of profits. I recently learned about the case of a young Iowan from Cedar Falls, Sarah Posekany. She is just one of millions of Americans who have been plunged into financial ruin because their insurance company cut them off after they got sick.

Sarah was diagnosed with Crohn's disease when she was 15 years old. During her first year of college, she ran into complications from Crohn's, forcing her to drop her classes in order to heal after multiple surgeries. Because she was no longer a full-time student, her parents' private health insurance company terminated her coverage.

As Sarah puts it: ``They didn't want to help, so I had to let the medical bills pile up.''

Four years later, she found herself $180,000 in debt, and was forced to file for bankruptcy.

Sarah has undergone seven surgeries. And here is what is most disturbing: Two of those surgeries came as a direct result of her not being able to afford medication.

Sarah said: ``When I don't have any insurance, and can't afford to treat myself, the disease progresses to the point where I need surgery.''

Sarah still wants to pursue her dream of becoming a nurse. But her bankruptcy and crippling debt will follow her wherever she goes, all because her parents' insurance company cancelled her coverage exactly when she needed it most.

Today is the day that we put a stop to these kinds of tragedies-- experiences like Sarah's, that are a stain on our past. Today, our health system takes another giant step toward working not just for the healthy and the wealthy but for all Americans.

These reforms represent such enormous progress, such a dramatic improvement in the daily lives of millions of Americans. Frankly, I am astounded that my colleagues on the other side of the aisle continue to call for the repeal of these historic reforms.

In fact, just this past weekend, a major contender for their party's Presidential nomination publicly stood up for insurance companies to defend one of their most egregious practices: discriminating against people based on preexisting conditions. He said that health insurance companies shouldn't be obligated to cover preexisting conditions--and let's not forget that insurers include pregnancy and domestic violence on their list of preexisting conditions--because paying for the care of the sick is like insuring a building that is on fire.

If that's how they characterize the millions of Americans with heart conditions, the millions of Americans who are cancer survivors, and the millions of Americans born with health conditions they have no control over--comparing them to burning buildings--then I can understand why it is so easy for them to lock arms with insurance companies and defend their discriminatory practices.

What this sort of thinking indicates to me is that many Republicans are sadly out of touch with the priorities of the American people. They continue to argue for repeal of a bill that puts an end to the most appalling health insurance company abuses.

They want to drag us back to a day where a bad diagnosis not only meant a health challenge but potential financial ruin.

They have spent months using scare tactics like claiming the bill cuts Medicare and hurts seniors when it actually strengthens Medicare. So far this year, seniors have seen prescription drug price relief, and very soon they will enjoy free preventive care and lower Medicare Advantage premiums.

Do my friends on the other side of the aisle really want to repeal the ban on denying coverage to children with preexisting conditions?

Do they want to overturn the provision allowing children to stay on their parents plan until they are 26 or can receive coverage through an employer?

Do they really want to turn to our youth at a time when they are most vulnerable and starting out in life and say, ``Sorry, when you get sick, you're on your own?''

Do they want to repeal the ban on insurance companies cancelling your policy if you get a serious illness like cancer or heart disease?

Do they want to repeal the ban on lifetime benefit limits and allow insurance companies to cut off your coverage when they determine your care hurts profits too much?

I can't for the life of me understand why Republicans think that repealing these new protections and benefits, and going back to the bad old days when health insurance companies held all the cards, is what Americans want.

And what about the health reform law's reduction of the deficit? I am just at a loss as to why Republicans are calling for the repeal of a law that ends insurance company abuses, expands access to care, and reduces the deficit by $143 billion in the next 10 years, and by nearly $1 trillion in the years after that.

There are so many good things in the health reform law, and there is much more to come. Just this week, a Families USA report highlighted the benefits this law will bring to my State of Iowa. When the full law kicks in, in 2014, over 261,000 Iowans will qualify for tax credits to help them purchase health insurance. These tax credits, which amount to one of the largest middle-income tax cuts in American history, will reduce Federal income taxes for Iowans by $974 million in the first year alone. And these tax breaks are targeted toward working families who have long struggled with the increasing cost of health insurance.

We have reached a historic moment in the history of American health care. A moment where the promise of health reform is becoming a reality for Americans. A moment where all patients--not just the healthy and the wealthy--have the rights and protections they need and deserve.

The Patient's Bill of Rights--the critical new protections that take effect today--is a giant step forward for the health and economic security of the American people.

Health reform is off to a very strong start. As many predicted, the new health reform law is growing increasingly popular as people get better acquainted with its broad array of benefits and protections. They like the new law's sharp emphasis on wellness and prevention. They want every American to have access to quality, affordable health care. They like the tax cuts to help working families afford health coverage.

And make no mistake: the American people are not going to allow these benefits and rights to be taken away.

Mr. President, I ask unanimous consent that the Committee on Agriculture, Nutrition, and Forestry be authorized to meet during the session of the Senate on September 23, 2010, at 2 p.m. in room SR- 328A of the Russell Senate Office Building.

Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on September 23, 2010 at 10 a.m. to conduct a hearing entitled ``the Federal Housing Administration--current condition and future challenges.''

Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet during the session of the Senate on September 23, 2010 at 10:15 a.m., in room 253 of the Russell Senate Office Building.

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate to conduct a hearing on September 23, at 9:30 a.m., in room SD-366 of the Dirksen Senate Office Building.

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on September 23, 2010, at 10 a.m., in room 215 of the Dirksen Senate Office Building, to conduct a hearing entitled ``Tax Reform: Lessons from the Tax Reform Act of 1986.''

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on September 23, 2010, at 9:45 a.m.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on September 23, 2010, at 2 p.m., to hold an East Asian and Pacific Affairs subcommittee hearing entitled, ``Challenges to Water and Security in Southeast Asia.''

Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet during the session of the Senate on September 23, 2010.

Mr. President, I ask unanimous consent that the Committee on Judiciary be authorized to meet during the session of the Senate on September 23, 2010, at 10 a.m., in SD-226 of the Dirksen Senate Office Building, to conduct an executive business meeting.

Mr. President, I ask unanimous consent that the Committee on Veterans' Affairs be authorized to meet during the session of the Senate on September 23, 2010. The Committee will meet in room G50 of the Dirksen Senate Office Building beginning at 9:30 a.m.

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on September 23, 2010, at 2:30 p.m.

Mr. President, I ask unanimous consent that Eden Ellis, Awatif Chafie, and Tom Van Heeke, members of my staff, be granted floor privileges for the duration of today's session.

Madam President, I rise today to speak out in support of Retirement USA's ``Wake Up, Washington!'' Month and to wake up my colleagues to the looming retirement crisis in this country. The public has already woken up. A recent survey found that 92 percent of adults aged 44 to 75 believe there is a retirement crisis in America. Now it is time for Congress to address this crisis before it is too late.

We are already seeing the beginnings of the retirement crisis. Just look at all of the older Americans forced to delay retirement or go back into the workforce because of the economic downturn. If we do not change course, it is going to get much worse.

Next year, the first baby boomers will turn 65, and it is clear that many are not prepared for retirement. According to the Employee Benefit Research Institute, nearly one-half of them are at risk of not having sufficient retirement resources to pay for basic retirement expenditures and uninsured healthcare costs.

The picture is not any better for the rest of American workers. Thirty-one percent of workers do not have any retirement savings at all, and 43 percent of workers have less than $10,000. If those numbers are not sobering enough, the Center for Retirement Research at Boston College calculated America's retirement income deficit for Retirement USA. They estimate that the gap between what people need for retirement and what they actually have is $6.6 trillion. That is a scary number.

There simply is no question that retirement is getting less and less secure in this country. In the past, people relied on the ``three- legged stool'' of retirement security--private pensions, personal savings, and Social Security--but that stool has gotten awfully wobbly. Over 40 percent of workers lack access to any employer-sponsored retirement plan at all, the rising cost of living and stagnant wages are making it tougher for people to save, and our Social Security system is under attack.

It used to be that many workers could rely on defined benefit pensions. Those plans are one of the best ways to ensure that workers have a secure retirement because they provide a predictable, guaranteed source of income that workers can count on for the duration of their lives. But, unfortunately, the traditional defined benefit pension is an endangered species. The number of employers offering these plans has fallen drastically over the past three decades. Now, less than 20 percent of workers in the private sector have the security of a defined benefit pension.

The vast majority of employees with any retirement plan at all just have a 401(k), but those plans do not provide real retirement security. They leave workers exposed to the constant risk that the plans' investments will perform poorly. Look at what has happened to people's 401(k)s over the past few years. Billions of dollars of retirement savings have just evaporated, and lots of workers--especially people getting close to retirement--saw any chance they had of retiring vanish overnight. 401(k)s also do not provide workers with guaranteed lifetime income like traditional pension plans. That means that workers and their families are forced to bear the risk that they will outlive their retirement savings.

Plus, in these troubled economic times, families are facing unprecedented challenges and saving for retirement just is not an option for many. Wages have been stagnant for years, yet the cost of living keeps going up. People are working harder and longer than ever before, but they still cannot seem to meet the costs of basic everyday needs, like education, transportation, and housing, let alone save enough to support them in their old age.

For many Americans, the only retirement security they have is Social Security, but that, too, is under siege. There are those that want to privatize the system, cut back benefits, and raise the retirement age. They say that everyone should just work longer and that retirement is a ``luxury.'' Clearly, those people do not swing a hammer for a living. They do not toil in our corn fields or work on our oil rigs. For Americans who work in these physically demanding jobs, working longer simply is not an option. A lifetime of hard work takes its toll, and at some point, a person just cannot do it anymore.

We are facing a future where no one other than the rich will have the opportunity for a safe and secure retirement. People that work hard for their entire lives will find themselves teetering on the brink of poverty, unable to pay the basic costs of living. That is going to have drastic consequences for families and our country as a whole.

It is time for our Nation to face the retirement crisis head on, and for our lawmakers to take aggressive action to protect future generations. We can start by working on some fixes for the current system. We need to shore up the Pension Benefit Guaranty Corporation, protect Social Security, and address the problems facing the Nation's corporate and multiemployer pension plans. We should also consider improvements to 401(k) plans like improved disclosures and lifetime income solutions. But all of those things are just short-term fixes.

We need to go further. We need to work toward comprehensive reform of our retirement system. Americans who have worked hard and played by the rules deserve a secure retirement. They deserve to be able to enjoy their golden years, to spend time with their families, and to rest after a lifetime of hard work. We need to help people to work toward a secure retirement by expanding access to retirement plans, making it easier for workers to save, and finding ways to make sure they do not have to worry about outliving their savings.

The retirement crisis is just too big to ignore, so as chairman of the Committee on Health, Education, Labor and Pensions, I am making retirement security a priority. The committee will be holding a series of hearings to explore the difficult issues surrounding retirement security, and I am hopeful that, together with my colleagues on both sides of the aisle, we will be able to come up with creative solutions to our Nation's retirement challenges.

I thank my friend from Montana for yielding me this time.

Mr. President, the Johanns amendment would kill--would kill--the Prevention and Public Health Fund that we have established for our American citizens. Chronic diseases are one of the main reasons health care costs have increased so dramatically over the past several decades.

This chart shows it. In 2005 we spent $2 trillion on health care. For every dollar spent, we spent 75 cents treating people who had a chronic disease. But we spent four pennies on prevention--four pennies on prevention--and 75 cents out of the dollar treating them.

This second chart shows what has happened from 1987 to now: a $314 billion increase in spending on all health care. Two-thirds of the increase went to take care of people who had chronic illnesses.

Most of this is preventable. That is why we know, and we have good data to show, that for every dollar we spend on prevention and wellness we get a great return. For every dollar spent on childhood immunization, we get a $16.50 return. For every smoking cessation program for pregnant women, $6; chronic disease prevention overall, $5.60. Even tuberculosis screening, for every dollar we spend we get more money back in savings because we are not treating people with chronic illnesses.

So, again, why would we want to gut this program? But that is what the Johanns amendment does. It says the Prevention and Public Health Fund that we established in health care, which had support from both sides of the aisle--I think regardless of how anyone felt about the final version of the health care reform bill, I found no one who wanted to go after the Prevention and Public Health Fund because we all recognized this is the path to our future: keeping people healthy in the first place.

So we have this established. We have the fund established. The Johanns amendment guts it. It says no money; no money for prevention, no money for wellness until 2018. Well, we will just let people continue to get chronic illnesses, chronic diseases, and we will take care of them later.

Remember what Benjamin Franklin said: An ounce of prevention is worth a pound of cure. Our mothers were right when they told us that. We finally have realized that in our society. Ask the medical community. Ask the nurses. Ask anyone. They will tell you we need to put more money into prevention and wellness programs across the board.

That is what we designed. That is what we put in the health care bill. It was broadly supported on both sides of the aisle. Yet regardless of whatever benefits the Johanns amendment may have--and, quite frankly, I tend to sympathize with the problems that were raised about paperwork on small businesses--this is not the place to rob the money. This is the worst place from which to take the money. I do not know why my friend from Nebraska saw fit to take money out of something that is going to save us money, save lives, and cut down on needless human suffering in the future. Think of all of the people who will be cut off of smoking, people who will have wellness programs, screening programs for the elderly that will start now. Every senior

citizen can go in and get on Medicare, get an annual free checkup, and a personalized medical plan to keep them healthy. Free mammograms, childhood screenings--all part of getting ahead of the curve rather than just treating people after they get sick.

I have looked at that amendment. I have looked at the Nelson amendment. It seems to me the Nelson amendment does basically do the same thing in terms of helping our small businesses. So I think the Nelson amendment is the way to go because it does eliminate any reporting burden on the great majority of small businesses, those with less than 25 employees at any point in the year. But, most importantly, it does not take money out of the Prevention and Public Health Fund. It does not gut it.

So, as I say, regardless of whatever benefits you may think the Johanns amendment has, it is the wrong place to get the money, absolutely the wrong place. So I ask my colleagues, if you really want to help small businesses and not gut the one thing in health care that is going to bend the cost curve, bend the cost curve, keep people healthy, cut down on all of this money we are spending to take care of people when they get sick, the best way to do that is to support the Nelson amendment which does both: keeps the Prevention and Public Health Fund intact, and yet helps our small businesses. To me, that is the right process to take.

I yield the floor.

Mr. President, I ask unanimous consent that a letter signed by 228 different organizations in the United States opposing the Johanns amendment be printed in the Record.

Here is what it says. They found that 71 percent of Americans favored an increased investment in disease prevention. The letter is signed by organizations from the American Academy of Pediatrics to--

Mr. President, I ask unanimous consent that all votes after the first vote this morning in this series be 10 minute votes.

Mr. President, I come to the floor today to discuss an amendment that Senator Johanns, from Nebraska, will be offering to the Small Business Jobs and Credit Act. The amendment to be offered by the Senator from Nebraska--a good friend of mine and a former Secretary of Agriculture--however, would effectively kill the prevention and public health fund that is in the Health Care Act. That would be a grave mistake.

The prevention and public health fund was created by the Affordable Care Act that we passed earlier this year. On March 23, when President Obama signed that historic bill into law, our Nation made two giant strides forward. We ensured that all Americans, regardless of means, will have access to quality and affordable health care. We committed ourselves to transforming America's current ``sick care'' system into a true health care system. I have been saying for years that what we have in America is not a health care system, we have a ``sick care'' system. Once you get sick, you get care one way or the other--emergency room, Medicare, Medicaid, health insurance, whatever. But that is always the most expensive--waiting until someone gets sick, and then you help them. So I have often said that we have a sick care system. A true health care system would put emphasis on keeping someone healthy and out of the hospital in the first place.

One of the most important elements of this transformational bill we passed this year--the health care reform bill--was the creation of the prevention and public health fund. For the first time in history, we have decided not just to pay lip service to wellness and prevention but to invest in prevention and wellness in a very robust way.

We cannot wait any longer to make these investments. By dedicating resources to preventing obesity, diabetes, heart disease, and other very costly conditions and diseases, we have a tremendous opportunity to both improve the health of the American people and to restrain health care spending.

As we can see from the chart I have here, prior to this prevention fund, for every dollar spent on health care, 75 cents went to treating patients with chronic diseases. During 2005, the United States spent almost $2 trillion on health care. For every $1 spent, 75 cents went toward ``sick care,'' treating people with chronic diseases. Only 4 pennies went for prevention.

This underinvestment in prevention has had devastating consequences. Chronic diseases are one of the main reasons health care costs have increased so dramatically over the past several decades.

This chart shows what has happened since 1987. From 1987 to today, U.S. health spending has gone up to $628 billion. But of that increase, two-thirds of the increase, $211 billion, is due to chronic diseases-- two-thirds of the increase. That is an increase of $211 billion since 1987 because of chronic diseases, most of which are preventable. Our investment in wellness and prevention can save millions of Americans needless suffering and early death. It can save countless billions of dollars in health care costs. Again, let's have a couple of examples here that I have on these charts.

What is our return on investment? For every dollar spent on childhood immunizations, we save $16.50. For every dollar we spend on smoking cessation for pregnant women, we save $6. Overall, the return on chronic disease prevention, on community-based prevention interventions is basically about 5.6 to 1 to 6.2 to 1. These are community-based interventions.

I will say it once and I will keep saying it: Not every preventive and wellness measure takes place in a doctor's office. Sometimes they take place in other places--where we work, where we go to school, where we live. We know now, based on the Trust for America's Health, that the return on total savings we would get after 5 years would be $16.5 billion and 10 to 20 years, $18.5 billion, or a return on investment of 5.6 dollars for every dollar we put in or 6.2 dollars over 10 to 20 years.

That is why funding these types of programs is crucial if we hope to slow the growth of health care costs in our country. We will not be able to accomplish this if we do not increase our investment in the programs that prevent the development of these costly chronic diseases. To this end, the new health reform law makes significant new investments in wellness, prevention, and public health. For example, it requires insurance companies to cover recommended preventive services with no copayments or deductibles. Think about that. You now go in, get recommended preventive services, no copayments, no deductibles. It also ensures seniors have access to free annual wellness visits and a free personalized prevention plan under Medicare.

A critical feature of the new law we passed that I think is essential to a sustainable push for wellness is the new Prevention and Public Health Fund. As I said earlier, bear in mind that maintaining good health is much more than just visits to the doctor's office. Where Americans live, go to work, and go to school also has a profound impact on our health. That is why, among other things, the fund provides for community transformation grants to enable localities to tailor wellness and prevention programs to their specific needs and environment. In addition, it invests heavily in strengthening the primary care infrastructure, including training for physician assistants and nurse practitioners, who typically practice in small clinics. That is why for fiscal year 2010 the prevention fund dedicated $64 million to State public health departments to implement evidence-based prevention services.

This is what we did. There is $64 million just for community and State prevention. We can see the others: primary care and public health workforce, $273 million; infrastructure, $70 million; obesity prevention, $16 million; tobacco prevention, and on and on. That is what we did in 2010. It also allocated, as I mentioned, $16 million for obesity prevention activities and $15 million for tobacco control programs. We also invested $70 million in our public health infrastructure.

For fiscal year 2011, let's see where we go. For fiscal year 2011, here is where the public health fund has gone under the Senate Appropriations Committee: for community prevention, $270 million; chronic disease State grants, $140 million; tobacco prevention and

cessation, $100 million; public health infrastructure for disease surveillance, $84 million; prevention research, $50 million; community health worker demonstration project, $30 million. That is just to name a few of the investments.

Given all the evidence we have--and we have a ton of evidence-- prevention saves us money in the long run, not to mention saving us from needless suffering and chronic diseases. Why now would we want to gut all of this? Why would we want to take all that away when we are trying to save money and keep people healthy? Why would we want to take all of that out? But that is exactly what the Johanns amendment does. The Johanns amendment would wipe all of that out--wipe it all out. It would deny any funding at all for prevention and wellness until 2018. For example, it takes away funding that keeps teens from starting smoking and all of the obesity avoidance and reduction programs we have. We know one of the biggest chronic illnesses facing us is the increasing rate of obesity among our young people. We know how to get a handle on that. We have good programs and evidence-based interventions to keep kids from getting obese or by getting them on track to reduce obesity. To gut all these programs is the same old penny wise, pound foolish, sick care system we have been laboring under for so many years. I thought we were going to move away from that. In fact, the prevention and wellness provisions of the health care bill we passed were some of the provisions that got strong support on both sides of the aisle.

I know a lot of my Republican friends did not support the final bill. I understand that. But as we developed the bill in the HELP Committee and on the floor, the Prevention and Public Health Fund was widely supported. No one came after it. There were no amendments to gut it at that time. I think people on both sides of the aisle saw the wisdom, regardless of how one may have felt about other aspects of the health reform bill--I think every one agreed we have to do more in prevention and wellness and public health. For this reason, I say to my colleagues: Do not turn around now after we have done all this and gut the money to prevent chronic illnesses and diseases and keep people healthy. Do not gut that to put the money in the Johanns amendment.

I am not alone in understanding the importance of this fund. Mr. President, I ask unanimous consent to have printed in the Record letters from a number of groups--everything from the American Association of People with Disabilities to the American Cancer Society, the American Heart Association, the Campaign for Tobacco-Free Kids, the National Association of Local Boards of Health, and the YMCA. More than 200 organizations signed a letter to us stating that the 241 undersigned organizations ``strongly urge you to oppose the use of the Prevention and Public Health Fund from the Affordable Care Act as an offset for an amendment offered by Senator Johanns. Such an action would virtually eliminate the Fund, and mark a severe blow to this monumental commitment to prevention and public health under the Act. . . .The Fund is a unique opportunity to truly bend the cost curve on health care spending. . . .We must ensure that we capitalize on the unprecedented opportunity to transform our public health system by investing in prevention and public health. We urge you to vote no on the prevention fund offset within the Johanns amendment, or any other such legislative vehicles.''

I ask unanimous consent to have these letters printed in the Record.

Mr. President, I am sympathetic, I must admit, to the broader aims of the Johanns amendment. On a bipartisan basis, Senators want to change the information reporting rules for small businesses under the health reform law. But the $19.2 billion cost of the Johanns amendment is excessive. Moreover, to pay for it by slashing funds from wellness and prevention, by gutting this whole program until 2018, is deeply misguided. It perpetuates the disastrous notion that we can neglect and defund prevention efforts without paying huge long-term costs in terms of unnecessary chronic disease and disability and skyrocketing health insurance premiums.

The purpose of the reporting requirement Senator Johanns is going after is to prevent fraud where many businesses may lie about the income they receive, thereby not paying their taxes. What does that mean? It just shifts taxes to the people who are honest and the businesses that are honest. Where the IRS has complete information on incomes such as salaries, which are covered by W-2 reports, compliance is 99 percent. But where there is no reporting, we see the reporting of income fall in half in some of the business categories.

I support the alternative amendment offered by Senator Bill Nelson. It provides a balance regarding the reporting requirement. His amendment completely eliminates any reporting burden on the great majority of small businesses--those with fewer than 25 employees at any given point in a year. But the most important point is that the Nelson amendment does not take money away from the Prevention and Public Health Fund.

While I appreciate the need to keep paperwork down, I also appreciate the need to prevent tax fraud which results in everyone else paying for the lost tax dollars. The Nelson amendment does preserve the reporting requirement for transactions over $5,000 for larger companies. I think very sensibly, the Nelson amendment pays for this lost revenue from less rigorous reporting requirements by repealing completely unnecessary tax breaks for the largest five oil companies--much better there than taking the money out of the Prevention and Public Health Fund.

A long time ago, Ben Franklin taught us that an ounce of prevention is worth a pound of cure. The Johanns amendment is an attack on that principle, an attack to turn the clock back to say we are going to continue a sick care system in America rather than truly transforming our system to a health care system.

I ask my colleagues to vote down the Johanns amendment and to vote for the Nelson amendment which accomplishes basically the same thing in a more balanced way. But the Nelson amendment does not do anything to gut the Prevention and Public Health Fund which we labored so hard to put in the health reform bill and which, as I said before, has been so supported on both sides of the aisle.

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

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

Mr. President, I ask unanimous consent that any time used on the Senate floor during quorum calls be divided equally between both sides.

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

Mr. President, I am proud to support the confirmation of Solicitor General Elena Kagan as the next Associate Justice of the United States.

Solicitor General Kagan is eminently qualified to serve on our Nation's highest Court. As a student, she excelled at

Princeton, Oxford and Harvard Law School. She has stellar legal credentials that have been recognized by liberal and conservative lawyers alike. And, throughout her career, including as a professor of law, as a key advisor to President Clinton, as dean of Harvard Law School, and as Solicitor General, she has demonstrated a great mind and intellect.

Moreover, Solicitor General Kagan will bring important diversity to the Court. First, when the Senate confirms her, she will be only the fourth woman to serve on the Court; and for the first time in history, three women will serve on the Supreme Court together.

Second, Solicitor General Kagan's experiences as someone who has worked in the legislative and executive branches will provide a vital perspective that is currently lacking among the Justices. In fact, for the first time in history, the current Court is comprised entirely of Justices who were promoted directly from the lower Federal courts. While judicial experience is important, it is also important to recognize that some of our most consequential Justices--Louis Brandeis, Felix Frankfurter, Earl Warren, Robert Jackson and William Rehnquist, to name just a few--did not have prior judicial experience. I am glad the President recognized how crucial it is to have on the bench Justices with varied life experiences.

Mind you, I am hopeful that next time the President will look to one of the many qualified lawyers who did not graduate from Harvard or Yale, or one who resides east of the Appalachian Mountains. But nominating someone from outside the Federal courts is a refreshing change.

As I evaluate Solicitor General Kagan's qualifications, an additional factor is important for me: she clerked and learned from two judges for whom I have enormous respect--Judge Abner Mikva and Justice Thurgood Marshall. These two jurists exhibited a deep and abiding passion for justice, and each strived throughout his career to ensure that ``equal justice under law'' is more than an ideal chiseled on a marble facade, but a concrete reality for all our citizens.

In her opening statement before the Judiciary Committee, Solicitor General Kagan noted:

My first real exposure to the Court came almost a quarter

century ago when I began my clerkship with Justice Thurgood

Marshall. Justice Marshall revered the Court--and for a

simple reason. In his life, in his great struggle for racial

justice, the Supreme Court stood as the part of government

that was most open to every American--and that most often

fulfilled our Constitution's promise of treating all persons

with equal respect, equal care, and equal attention.

In a 1993 law review article, she expressed a fondness for Justice Thurgood Marshall's vision of constitutional interpretation, which she described as ``demand[ing] that the courts show a special solicitude for the despised and disadvantaged.'' She described this vision as ``a thing of glory.'' I am hopeful that Solicitor General Kagan will follow in the best traditions of Judge Mikva and Justice Marshall and continue to strive to make our Nation's laws more just.

Considering her outstanding intellect and credentials, there simply is no doubt Solicitor General Kagan should be confirmed.

However, for me, there is another, equally important, consideration. I also believe that Solicitor General Kagan will be an important and needed voice on the Court to ensure that appropriate respect and deference is given to Congress, and proper effect is given to our most important statutes, such as the Americans with Disabilities Act, the Civil Rights Act, and the Age Discrimination in Employment Act, so all Americans receive the fullest protections of the law.

Too often debate regarding the Supreme Court seems to focus on a handful of divisive cultural issues. Indeed, many of my colleagues on the other side of the aisle have come to the floor to focus on gays in the military, abortion and guns. To be sure, these issues are important. But, what typically get overlooked in a debate like this are the many technical, statutory cases--often involving esoteric legal principles--that nonetheless have a tremendous impact on the everyday lives of ordinary Americans.

Unfortunately, the sad truth is that, in case after case, often in narrow 5-4 decisions, today's Court has too often slammed shut the courthouse door in the face of these ordinary Americans. The Court has used arcane legal doctrines and strained readings of Federal statutes to prevent citizens from vindicating their civil rights and consumer protections. The result is that many people who suffer grievous wrongs are not able to bring meritorious lawsuits, and to hold corporations and the government accountable.

In case after case, the Court has undermined vital protections and sided with the powerful against the powerless--for instance, in cases such as Ledbetter v. Goodyear, Gross v. FBL Financial, and Riegel v. Medtronic. In doing so, the Court has repeatedly ignored the clear intent of Congress in passing important laws.

In the ``Sutton trilogy'' the Court repeatedly misread the Americans with Disabilities Act and narrowed the scope of individuals deemed eligible for protection under that landmark statute. The result of these decisions was to eliminate protection for countless thousands of Americans with disabilities. These flawed, harmful decisions were reversed in the last Congress when we unanimously enacted the ADA Amendments Act.

Similarly, in June, 2009, the Supreme Court decided Gross v. FBL Financial, Inc. In a case involving an Iowan, Jack Gross, the Court made it harder for those with legitimate age discrimination claims to prevail under the Age Discrimination in Employment Act. In doing so, it reversed a well established, 20-year-old standard, consistent with that under title VII of the Civil Rights Act, that a plaintiff need only show that membership in a protected class was a ``motivating factor'' in an employer's action. Instead, the Court held that a plaintiff alleging age discrimination must prove that an employment action would not have been taken against him or her ``but for'' age. In other words, the plaintiff must now prove that age discrimination was not a cause or a motivating factor, but that it was the determinative cause of an adverse employment action. Proving ``but for'' cause is extremely difficult and will greatly limit potentially meritorious suits involving discrimination Congress sought to prevent.

In doing so, the Court did not even address the question on which it granted certiorari. As Justice Stevens noted in dissent, ``I disagree not only with the Court's interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. The Court is unconcerned that the question it chooses to answer has not been briefed by the parties or uninterested amici curie. Its failure to consider the views of the United States, which represents the agency charged with administering the [Age Discrimination in Employment Act], is especially irresponsible.''

In University of Alabama v. Garrett, a case whose oral arguments I personally attended, the Court limited the rights of people with disabilities. In doing so, it ignored numerous congressional hearings and a task force which collected evidence through 63 public forums around the country attended by more than 7,000 persons. In United States v. Morrison and Kimel v. Florida Board of Regents, the Court completely ignored extensive congressional fact-finding and struck down parts of the Violence Against Women's Act and the Age Discrimination in Employment Act, respectively.

The contrast with Solicitor General Kagan is stark. She repeatedly made clear her approach to judging: respect for congressional intent and for long standing precedent. She consistently made clear that a judge's personal views should play no role in interpreting a statute and ``the only question is Congress's intent.'' Unlike some current members of the Court, moreover, she made clear that where the text of a statute is ambiguous she will look to legislative history--``a judge should look to other sources, should look to the structure of the statute, should look to the history of the statute in order to determine Congress's will.'' After her confirmation hearing and based on my personal meeting with her, I am convinced she will give full effect to our most important statutes.

Finally, as I listen to the debate surrounding Solicitor General Kagan's confirmation, I find it remarkable that conservatives continue to accuse every

Democratic appointed nominee of being ``activist.'' It is a tired bumper sticker slogan that not only has no meaning but is divorced from reality.

In fact, what is clear from this debate is that it is the conservatives who want to use the courts to achieve a desired political result and to thwart the democratic will of the people, as expressed through their elected representatives.

For example, the ranking member of the Judiciary Committee, Senator Sessions, noted his concern that Solicitor General Kagan ``will bring to the bench a progressive activist judicial philosophy which holds that unelected judges are empowered to set national policy from the bench.''

I find it ironic that this charge is bandied about by the same people most eager to have the courts strike down as unconstitutional the recently enacted health care reform bill. To strike down this law would require an unelected judge to ignore the clear language of the Constitution, reverse precedents that go back to John Marshall, disregard extensive fact-finding by Congress, and overturn a decision of a majority of both Houses of Congress and the President of the United States. That would be the height of judicial activism, the height of ``making national policy from the bench.''

The reality, is that, the Rehnquist and Roberts Courts have invalidated more laws than any previous Courts.

It is conservatives who not only want the Court to make national health care policy, but also to limit the ability of Congress to keep the corrupting influence of corporate spending out of our democracy, as the Court did in Citizens United.

It is conservatives who second guess decisions by Congress, including a unanimous Senate, to ensure the rights of all Americans to vote, as the Roberts Court suggested in Northwest Austin Municipal Utility District No. One v. Holder.

It is conservatives who want the judiciary to second guess decisions made by local sheriffs in keeping guns out of the hands of criminals.

It is conservatives who want the judiciary to second guess local zoning decisions, environmental and land use regulations.

It is conservatives who want the courts to invalidate efforts by Congress and local governments to eliminate racial discrimination.

Given the current Court's repeated disregard for Congress and for our efforts to expansively protect American citizens, I believe it is imperative that the next justice be someone who respects precedent, strives to apply congressional intent and purpose, and understands the importance of this nation's landmark civil rights protections. Based on her record and after meeting her, I am confident Solicitor General Kagan will be that type of jurist.

Solicitor General Kagan clearly has the intellect, experience and judgment to be an outstanding Justice. I am proud to support her nomination.

Mr. President, I thank the Senator from Pennsylvania for yielding me a few minutes to go in front of him even though he was here before me.

I want to say a couple of words in support of the child nutrition bill. I know the Senator from Pennsylvania also wants to speak about that, the child nutrition bill that was passed by unanimous consent here in the Senate this afternoon.

I thank Chairman Lincoln, chairman of the Senate Agriculture Committee, for her tireless efforts to bring this bill to fruition. She has been a great advocate, a great champion of child nutrition and making the changes necessary to get better food for our kids in schools.

I also thank Senator Chambliss, with whom I served on the Agriculture Committee for a number of years, either as ranking member or as chairman, working on agriculture bills.

I also particularly want to thank Senator Murkowski of Alaska. She and I have worked together as partners in this effort for several of the past years on trying to get this bill put together and get the provisions we have in the bill done. She has been a great champion of better food in our school lunch program, school breakfast program, afterschool meals.

I also thank our leader, Senator Reid, and Minority Leader Senator McConnell, for working together on both sides to get this bill to the point where we could actually get to a unanimous consent today.

There are many important components of this bill, many of which I had pushed for many years when I was chairman of the Agriculture Committee. I am particularly supportive of the provisions to increase reimbursement for school meals, expanded use of direct certification in the National School Lunch Program, the expansion of afterschool meals, a new and great focus on promoting breastfeeding, and the very real advances that that makes to health promotion in the early stages of childhood.

I want, however, to mention one provision I worked on for about 15 years, a provision that would require the adoption of school nutrition standards for all foods in all schools. Since the 1970s, the rates of childhood obesity have tripled among children and adolescents in the United States. Type 2 diabetes has increased dramatically. Current estimates suggest that among children born today, the lifetime risk of developing diabetes is 30 percent for boys, 40 percent for girls, and for African Americans and Latinos it is even higher.

Again these are complicated problems that will require multifaceted solutions. To improve the health of our children, all sectors of society must be involved--parents, the media, community organizations, corporate America, and of course our schools.

Again, I am well aware that schools are not the only places where our kids have access to sugary beverages and fried foods, candy, and high sodium foods. But schools can and should do more to provide healthy foods to our kids. What kids learn to eat at an early age they tend to develop habits and tastes for and eat those foods later on in life.

If you start feeding kids sugary soda and French fries for lunch, they tend to keep eating that as they grow older, with all of the health problems that brings on.

To that end, it is critically important that we establish strong nutrition standards for all the foods sold in school through vending machines, snack bars, a la carte lines in the schools. There are several reasons we need to set such standards. Existing USDA nutrition standards for the foods sold outside of school meals are outdated. They allow for the sale of foods that are low in nutrition and high in fat, sugar, and salt. In addition, in recent years science has greatly increased our knowledge of how kids' diets affect their health. Yet we have done very little to adjust our nutrition standards to this new knowledge.

We have had a big loophole here and this is the way it is. The Secretary of Agriculture can set nutritional guidelines for all of the foods sold in the school lunch, in the school lunchroom--school breakfasts, school lunches, and can adopt those standards to follow the dietary guidelines. However, the Secretary has no authority to regulate the foods sold outside the lunchroom. So you have a big loophole here. Kids can eat lunch, they can have good food prepared according to dietary guidelines, but down the hall there are vending machines with candy bars and potato chips and sugary sodas and all kinds of things such as that, which undermines what we are trying to do to get better food for our kids in schools.

It undermines parental supervision. Parents think that if they send their kids to school, they are going to get good meals. Yet they can go down the hallway from the school lunchroom and buy all of those bad foods. So that is what this bill does. It provides that the Secretary of Agriculture now, for the first time, has the authority to regulate all of the foods in schools, even in the vending machines, snack bars, and a-la carte lines.

Again, I am proud this provision has had broad support on both sides of the aisle, among public groups and food and beverage companies. I particularly would like to thank the following groups for their help through all these years to bring this bill to this point: the Center for Science in the Public Interest, the American Heart Association, the American Dietetic Association, the American Diabetes Association, the American Public Health Association, the American Association of School Administrators, and the National PTA. They have all been wonderful in working together to get this bill put together and through the floor of the Senate. On the food and beverage side, I particularly wish to thank the American Beverage Association, Mars, Incorporated, the dairy industry, Pepsi, Coca-Cola, and many others who brought us to this point.

We cannot ignore the rising toll of diabetes, heart disease, and childhood obesity. By including the commonsense provisions to protect the nutrition environment in our schools, this bill makes a major step forward in efforts to protect our children and promote their health.

I sincerely thank my friend and colleague from Pennsylvania for allowing me to take this time even though he was next in line.

I yield the floor.