affordable program. first and foremost, with job losses now driving foreclosure starts, we've invested $14 billion to the recovery act in communities across the country. to jumpstart local economies, and stabilize neighborhoods and communities that and that $14 billion is just through hud investments and housing, both rental and homeownership. to help consumers including the 335,000 bars, who will have begun trial modifications and are scheduled to convert to permanent modifications by the end of the year, hud has mobilized its vast networks of counsel is that we have asked for a 50% increase in housing counseling funds and hud to budget for next year to ensure that the families who need help, get help. i am very optimistic, i will say as well, while we are waiting on our 2010 budget to be passed, that we will get that 50%

increase as well. both the house and the senate have included it in their hud appropriations bill that we worked closely with treasury to make the process easier for borrowers, and put pressure on services to ramp up their efforts. holding them to higher performance standards and issuing a public score card that lets the american people know what kind of progress services are making. all told, with a monthly pace in a trial modifications, not exceeding the monthly pace of completed foreclosures, with inventories of unsold homes receiving and a new home sales and home prices increasing, we believe we may finally be seeing the light at the end of the tunnel. but all of the numbers i have seen during this crisis, one is particularly revealing. it was in "the wall street journal" which reported in the summer of 2007 that 61%, 61 percent of homeowners in a subprime mortgages could have qualified for safer, prime mortgage products.

placenta, nearly two out of every three homeowners with subprime mortgages were pushed into riskier mortgages by lenders and brokers. that is simply wrong. that's why for hud just as bored as stopping foreclosures is ensuring that this crisis never happens again. to ensure it doesn't, our 2010 budget includes an agencywide initiative to combat mortgage fraud and predatory practices. part of which focuses on curbing discrimination through increases of our fair housing and fair lending efforts. hud's office of equal opportunity now has fair housing brochure is vital documents and other information in english, spanish, and 11 of the light which is. you can see and hear our public service announcement on predatory lending on spanish-language radio, tv and in print. and we are currently assessing the light which capabilities of each of our regional and district fair housing offices. the right to own or rent a home

without discrimination should never depend on your race, or how well you speak english. not in america. we are also stepping up enforcement or fha lenders who don't play by the rules. in one heartbreaking example, we found a company had steered and 88 year old woman into purchasing an annuity which would not mature until she reached her 104th birthday. that is not only heartless, it is shameless. and it is not going to continue on our watch. we suspended seven fha approved lenders this year, including ted have been ed whitacre. and we have withdrawn a fha approval for 270 lenders. including latin america just this week, and financial mortgage u.s.a., the lender responsible for the example that i just cited. that's also why we have created a new position for a deputy general counsel for enforcement. many of you know from her

phenomenal work as a new york attorney general's office and a range of other places, and i'm so happy she has joined us at hud to head up our efforts. with each effort, we are sending a very clear message, that if you don't operate ethically and transparently, we will not do business with you. but no one agency is going to be able to stop fraud alone. that's why the recent creation of the administration's financial fraud enforcement task force is so important. identifying opportunities for coordinated joint investigations and enforcement act. what it comes to preventing fraud it's time the federal government spoke with blunt force. still, as much as housing ground zero for discrimination and predatory lender in the run up expires, it's clear the federal response must be interconnected at multidimensional as the challenges we face. to ensure we prevent another

crisis from happening, we are working as a michael barr spoke about yesterday to create a consumer financial protection agency. the sole focus of which is to look out for ordinary americans. i know michael how it would have a broader story to protect consumers from unfair and deceptive practices and i want to thank him for his leadership on this issue and for his many years of commitment to it before joining the administration. and while chairman dodd and frank continue to do remarkable work, shepherding our proposal to the respective committees and a chambers, obviously the details have not yet been finalized. but when all is said and done, i want to tidy what this agency will mean for our mortgage markets and the core principles that guide our work. the first is transparency. that means simple, integrated federal mortgage disclosures that are reasonable, clearly written and concise.

and communications with consumers that adequately present the risks and the benefits of a mortgage product. it's a simple idea. we can only make informed choices if we have all the information that we need to make those choices. the second principle is the fairness. that means the agency would be authorized to require mortgage brokers to all a duty of the best execution to avoid conflicts of interest between themselves and the homeowners, and to determine whether the mortgages they sell to borrowers are affordable. the agency will also be authorized to put an end to abuses and yield spread premiums. those aside payments from lenders that encourage mortgage brokers to push consumers into riskier, higher priced loans than they qualify for. it could also require brokers to be paid overtime based on -- paid overtime based on continued low performance rather than in a lump sum at closing. big difference. [laughter] >> in addition, the agency would have to agree to restrict

prepayment penalties which we've learned can trap borrowers in a bad loans and acquire loan originators and the sponsors of securitizations to retain a percentage of the credit risk. bundling and packaging mortgages the wrong way to sell on wall street, not only fed the housing boom, it also led to an erosion of living standards that deepened the housing bust. with this plan, brokers and loan originators will have a vested interest in the performance of the loans they make. rewarding responsibility, not recklessness. no matter what homeowners invest passionate and investors be the only ones who have skin in the game. third, we will require real accountability. that makes leveling the playing field so that financial players, banks, nonbanks, independent mortgage brokers, all played by the same rules. the days of lenders and brokers shopping for the most lenient regulator will be over. this agency will be charged with setting clear rules of the road for consumers and things,

including requiring brokers to look out for the interests of hard-working americans, if they give advice about mortgages. protecting the consumer in this way will help businesses as well. particularly small business on to produce who often rely on credit cards and home equity loans to finance the startup businessebusinesses. of course a number of the banks and financial firms don't like the idea of a consumer financial protection agency very much. they don't think they can kill an entirely, but they are trying their hardest to weaken its. by fighting to keep open every gap and loophole that they can find. that's why i am proud chairman frank and dodd have thought so hard on his behalf. the president has made clear that we are not going to let special interests win this fight them or going to do our part to keep pushing to deliver on clear rules and strong enforcement for main street. along the same lines, let me say a few words about the real estate settlement procedures act, or respa as you all know it. as you know for the first time in more than 30 years.

we have changed the radio tour requirements of the rest of. i believe these changes will take away much uncertainty borrowers have had about the accuracy of disclosures. by the first of the year, hud will require that lenders and mortgage brokers provide consumers with a standard good-faith estimate that clearly discloses key loan terms and closing costs. our goal is to provide clear, transparent disclosure of loan information that consumers can use to shop for the best loan resulting in a lower interest rates, lower origination and settlement costs for borrowers, virtually eliminating the kind of unfair junk fees that surprised so many borrowers at closing. by improving the disclosure bar was received when applying for a mortgage and buy up voting comparison-shopping, we believe our new respa will save consumers on average nearly $700 in mortgage costs. lastly, let me say a word about how we can protect consumers in a different way. by giving them more choices.

right now, some estimate that we have enough large lot single-family housing to last us until the year 2025. but at the same time, we have this unsold inventory. there's a historic number of people who have lost their homes who can't afford to buy and can barely afford to rent. so the crisis we are in isn't just about supply and demand. it's also about housing that doesn't meet the needs of all people. that's why we are working to build a comprehensive balance national housing policy that support homeownership, but also provides affordable rental opportunities so that families can make good, responsible choices for their families. it's why we are proposing a 100 billion-dollar energy innovation fund in our budget, that would jumpstart an energy-efficient mortgage product for home owners and a municipally driven program for property owners to rapid energy improvements into property tax assessments.

when you buy a car, you know it is energy efficiency because there is a simple number on a sticker on the window. we need the same for our homes and our buildings. if there's a cost of $5000 to upgrade a house, that will produce $10000 in utility savings over time, the perfect tool to realize that those savings is a mortgage. what's needed is better data that proves the investments pay for themselves in the long term, and the right incentives to jumpstart the market. a similar idea motivates the transportation efficient mortgage product we are developing. today, the average low income working families spend nearly 60 percent of their income on housing and transportation combined. fair to single largest expense of. and get because mortgages don't factor in how much it cost to drive to work or take a chill into school, housing finance has continued to drive the construction of housing in the least sustainable places.

using detailed mapping of transportation cost we are developing a transportation efficient mortgage that accounts for a homes proximity to jobs and schools. in each instance, we see that reliable, useful, and widely available information can not only help consumers make better, more informed barmy decisions, but also helps lenders make a sound underwriting decisions. unlocking a much broader scale of innovation, driven not by the public sector, but the private sector. it comes down to a fundamental belief. that when you choose a home, you don't just choose a home of. you also choose a transportation to work, schools for your children, and public safety. you choose a community. and the choice is an opportunity of payable in that community. i believe that our children's futures should never be determined or their choices limited by the zip code that they grow up in a. i believe that when we protect the consumer, we protect our

economy. that when we look out for the interest of ordinary americans, we look out for america's best interest. rebuilding a strong foundation of consumer protections and putting our country on a stronger, more stable sustainable path, will not happen overnight. it will not happen because of one bill or one agency. but as i look at all of you today, i know one thing. it will happen. it will happen because it challenging as this moment is, the opportunities it happens for change are so much greater. working together, i know we can seize that opportunity. i know that we will. thank you for having me here today. i look forward to your questions. [applause] >> if you have questions, please come up to the mic and to a. we have a few minutes for

questions. i think you can see why making that call was what a president obama's most important and significant choices. secretary donovan is a breath of fresh air and an inspiration to all of us who working in housing and urban debugger. >> good morning mr. secretary. my name is margaret im with am with rebuilding together. we are a nonprofit at no cost to the homeowner. what you said about energy efficiency is very important to us. with most of the older housing stock being occupied by low income americans. there are many homeowners who reside that way. and i just wanted you to perhaps explain a little bit more about your relationship with doe and help out and deal we are collaborate on this very important effort. >> so i think there may be three different directions we need to go. first of all, i think the recovery act in particular has been an enormous opportunity to

sort of begin at home, if you will, so to speak. we haven't begun a very broad process using about $4 billion in the recovery act, and other capital for privately owned assisted housing to begin making a whole range of investment in greeting multifamily rental housing that is subsidized by the federal government. what's interesting about that is not just the environmental benefits, it lowers bills to tennis and at the same time, we spend about $5 billion a year in a hud to budge on utility costs alone in our stock. these investments on average pay for themselves within five to seven years. so one of the messages i think we continually tried to make is that these are not just subsidies. these are investments that pay for themselves in a relatively short period of time.

particularly if they are targeted to the smartest, most cost-effective changes in our subsidized housing stock. so that's sort of the first step. and one of the things we've done with doe to help that. it's always been, one of the sort of knuckleheaded things we do in government, that there is a weatherization program that is targeted at low income people and there's a whole process to go to to certify that low income people are actually low income so they can benefit. and they also have millions of units of publicly assisted rental housing where we check in comes every year. below and behold, you have to check their income for the weatherization program, and then check their income separately for eligibility for those rental programs. so what we have done is to sign an mou with d.o.e. to say let's take hides income certifications and make effectively not just our assisted housing but also tax cut housings with incomes are low enough, automatically

eligible for that weatherization money. we have begun to see some take up on a. we have run into some hurdles. would say a disease that are using the money in terms of lack of familiarity. so we are trying to work to get that money out as quickly as possible. so it is one key effort. at the same time, the weatherization money and use them privately owned single-family or owned homes around the country. that's been a very important investment to jumpstart it. but ultimately as i sit in my remarks. what's really going to make this happen in a very broad scale is as the market develops for private capital coming in where it is clear from information that we can develop that an investment of five or $10000 will pay for itself. on that front, the big barrier, and as a berry will tell you, there's been -- we've had energy-efficient mortgages for some time. one of the biggest problems has

been that there is no low-cost reliable indicator of what the savings will be. and so epa and d.o.e. have been working very carefully together to develop and have now finished developing a low-cost energy rating tool that is much more accurate and much cheaper than what we've had before. we are starting a trial where we are doing about 100,000 fha loans next year, using that new tool to test it. and i think that will allow us once we have a tool that truly is reliable to jumpstart this market much more broadly with energy-efficient mortgages in fha and hopefully be on that with the gse's and more broadly in the private market. so those are the key ways that we are working together at this point. >> thank you. please introduce yourself.

>> you are young, and you are great. >> florence, please introduce yourself. >> what i want to say is war had been declared on seniors. low income theme. war has been declared by landlords who certainly want the highest price they can get. my concern is the fact that what is being done for seniors, and remember, i was able to make salary, our income is low. very low. so i am here just to speak for seniors today, because for seniors and have nothing to do with color. landlords just want and they are doing a hell of a job. so that i am deeply concerned and i would like to hear someone, someone speak for us at

the top level. >> thank you. >> and you spoke well. you all did. but it doesn't help us at all. >> two things that i would say on that. first of all, where there is discrimination against seniors, it is simply unacceptable. and one of the real problems that we have had is a lack of strong enforcement of our fair housing rules. more broadly, in this country. john who is our new assistant secretary for fair housing and equal opportunity has been fighting this fight that he is the founder of maldef him and we have asked for and again, knock on wood, based on what we have seen in both the house and senate bills, we will get the largest increase in our fair housing funding at hud in the history of the agency this year. and so we are stepping up our efforts in a range of areas around enforcement. second of all, what's needed is

more affordable rental housing. frankly, it has not been a priority in this country. it's why we added $1.8 billion for section eight housing. is why we have restored funding, full funding for our project section eight that is why we are provided for funding for a public housing that is why we're investing 4 billion in the recovery act. so in a range of ways, i think president obama has made it very clear saved that the federal government is back in the rental housing business that it is not going to be anymore just a national policy of home ownership. without the vows that i talked about in my remarks for rental housing. and so i'm very encouraged again by t partnership we've had with congress to be able to increase our investmeninvestment in affordable rental housing so that there are affordable options. >> i would like to know, seniors and for poor people, what is affordable?

>> our standard is 30 percent of your income. if you're paying more than 3 percent of your income, it is too expensive. >> the previous speaker was florence rice from consumer education council. i am chuck from consumers union, and i was pleased in your remarks you acknowledacknowledge that inventory issues are complex and a sort of buried by housing markets. and i come from the new york city metro area where it's very high-cost market. and i know in our area many of the nonprofit housing developers are having trouble getting access to make loans to finish projects that have been started earlier. and they are developing for sale ownership projects, and they're working with banks who have had a lot of shakeup in management. the banks not to be getting pressure from regulators to make this type of loan, and then also there is and as such and there is a lot of inventory out there. would argue in our area, not at

that level. not to, for say, condos, sales between one and 50, 200,000. so we are concerned without more support for nonprofit housing development, can be both difficult for these organizations to continue and on the mission and also to be a drag on economic recovery. so we hope that you and the administration can send a strong message to the banks, some of which are sort of dismantling their community development lending operations. we're concerned about that as well. >> a couple of comments on that. first of all, the key resource that drives new affordable housing production, particularly for nonprofits today is low income house tax credit. and sort of simple equation, if companies don't have any profits, they don't need tax credits. so there's really an enormous collapse, roughly almost half of the equity that went into tax credits before the crash

disappeared. and in the recovery act, two of the key pieces in the recovery act for rental housing were to point to five quarter million dollars in grants through hud's budget towards load tax credits and a treasury program where state agencies who get tax credits can exchange 40 percent of their credits for cash to be able to invest into those developments. and has had an enormously positive effect on helping to undo some of the worst damage your. right now connors is considering whether to extend that exchange program for an additional year, it is something that we are very supportive of and we want to see happen in the next year. so something that would be very important to support. second of all on the landing site, just as on the

single-family side barry talked about him on the multicounty side, hud's lending has grown dramatically, or insurance of multifamily living has grown dramatically. and our pipeline is enormous because of private capital retreating and the way that it has more broadly across the markets. so we need to be there as a backstop while we did exactly what you're talking about, which is through cra and other means, pushing banks to make safe responsible loans. and frankly, the performance of these loans is dramatically better than anything else. even with prices that we've been through, the performance of loans for low-income tax credits has been remodeled. and vacancy rates and tax credit projects have remained remarkably low across the country. even as vacancy rates and market rental housing have increased. so it's sort of a three-pronged effort around the tax credit, making sure there is lending available through fha and other sources, and then pushing the bank to get back in the market

of around cra and other things. >> think you. >> please join me in thanking the secretary for joining us today. [applause] >> [inaudible conversations] [inaudible conversations] [inaudible conversations] >> we are live at the white house where president obama has been meeting with executives from the nation's largest banks that we are expecting comments from the president on the state of the economy and efforts to increase lending to small businesses. we will have those comments live

once they get underway. should get underway shortly. here to live on c-span2. the u.s. senate is in this afternoon 2 p.m. eastern. expected to resume the debate on health care legislation. we spoke to a capitol hill reporter this point for a preview of that debate. >> david drucker covering the health care debate four ball call in the u.s. senate. you heard this word from our viewers about senator lieberman. the pressure is on a little bit. your headline this morning is health care headaches grow. but the pressure was also emphasized last night on the 60 minute interview with president obama saying he expects the senate to finish this before christmas. >> that is correct. and i think part of what's going on is that there is no congressional budget no congressional budget office scoring yet for the potential public option. most democrats don't know what that compromising would look like.

and so when they are asked questions about what they can support or not, they naturally will sort of default into the easiest and safest answer, which is i will not support anything that i don't like and i will not support anything that costs too much. what happens when not enough people know what's going on. >> was the reality, david drucker, one vacant congressional budget office will come back with a cost analysis? >> it could be today. it could be tomorrow. it could be later this week. we really don't know. and in the meantime, the other thing that is hurting democrats i think politically is that the polling, public polling on the health care reform bill isn't good. and i think it just has everybody a little skittish. you know, not a rush, but people are trying to get this thing done by christmas.

and whenever you have sort of a defined fast schedule, i think it adds pressure. and it just makes it more difficult for senators to jump on board and do something big, because they are always worried it'll come back to bite them. >> let me ask you about what we asked this morning about the comments of senator lieberman and senator nelson. what's that due to the debate? >> well, it makes it more difficult for harry reid to come up with 60 votes. particularly because republicans are politically they seem to not support the bill. there are two reasons. you do things to get the politically beneficial or you do something because you believe in it. one or the other of the above. so in this case republicans don't have any of those things going for them. and that includes olympia snowe. people shouldn't be surprised. this is what it has always been. it's just that when democrats were in the minority, it was

less of an issue. joe lieberman is a little bit of a surprise. not on because on social issues, on things like there's, he is usually more democratic than independent. but he has been clear all the way through. he would not vote to get out of the bill if it included a public option. and the reason he doesn't like the public option is he doesn't like the expansion of government because he thinks it is a cause that he has been consistent, and of all the members of the democratic conference, who were threatening not to support the bill, i believe he was the most of the because of his track record. he doesn't care if he doesn't like something. that he does intend to go along with it. . . and in them.

guest: the schedule is up in the year. now that the appropriations omnibus bill has been taken care of over the weekend it is really about health care. there is the question of what amendments will give votes and which are not. i think that if harry reid got a positive score for the compromise to the public option that they might sort of try to move immediately go us fast as they can to close out debate and they can to close out debate and begin the budget process. an update on the health care bill coming back in the u.s.ality beginning today. thanks for the update. >> back live at the white house now, president obama's been meeting today with executives from the nation's largest banks and financial institutions. we expect comments on the state of the economy and

efforts to increase small businesses shortly. here at the white house. if we can't bring them to you live we will record them to you and show them later in our schedule. back on health care the senate returns today at 2:00. political writing that most insiders agree democrats have until thursday to work out their differences if they want to pass a bill by december 23rd. that from the politico this morning. we will record the comments of president obama after his meeting with bankers this morning and show it to you later in our program schedule. [inaudible conversations]

[inaudible conversations] >> the from the white house waiting for president and bankser to come out after the meeting this morning, but it looks like it will be a while longer. the president is meeting with nearly a dozen banks and financial institutions, his second meeting with them as a group since march.

[inaudible conversations] [inaudible conversations] >> we will record the president's comments after his meeting with bankers and show them to you later in our program schedule. up next, the supreme court historical society hosted a discussion and look at the role of the solicitor general, in the supreme court. it runs about an hour and 15 minutes. >> something in the circuit system in here makes it is impossible if you don't turn them off. tonight, thanks to the generosity of the court,

c-span is filming this, and i hate to have them see you carried out because you didn't turn off your cell phone. [laughter] good evening. and welcome to the supreme court of the united states. i'm ralph lancaster, the president of the supreme court historical society, and tonight is the night for the national heritage lecture. this evening's lecture will take a slightly different turn. it will consist of a discussion about the office of the solicitor general by three former solicitor generals, moderated by a long-term member of that office. my function is to introduce justice kennedy, who will introduce the moderator, and the panel. we're very grateful to the court as always and to justice kennedy particularly for their willingness to

host us in the supreme court courtroom. justice kennedy's educational background includes an ab from stanford university where he was a member of the honor society, phi beta kappa, a jd from harvard law school where he graduated in 1961. after law school, he was actively involved in private practice for a little over 12 years, and then he was appointed to the u.s. court of appeals for the 9th circuit in 1975, becoming at that time the youngest federal appeals court judge in the country at the time that he was appointed. he joined this court in 1988 when the senate unanimously confirmed his appointment to succeed justice lewis f. powell, jr. in addition to

his distinguished service on the bench, justice kennedy has demonstrated a continuing commitment to the education of law by teaching constitutional law at the university of pacific mcgeorge's school of law summer program in salzburg, austria. he has been a long-time friend of the society. he has introduced several lectures over the years, and he also has a special connection to the national heritage lecture. in 1991, 18 years ago, we turned to the justice as our inaugural speaker. he delivered a detail history of president roosevelt's court-packing plan of 1937. it's my honor and privilege to present associate justice kennedy. [applause]

>> thank you and good evening, mr. lancaster and members and friends of the supreme court historical society. thank you very much for the work that you do, ralph and that all of you do for the supreme court historical society. one of the fascinating aspects of a great institution is that you learn over time the place that you have in it. it's not apparent to you at the outset and the historical society is of immense importance. in part because it reminds the justices of what they must learn in order to understand their role, your work is very, very important. sometimes, people ask me, are you nervous before you go on the bench? and the answer's no.

sometimes, those of you who teach, drew and ken starr, will hear teachers tell students, well, you know, just as hard to give the exam as it is to take it. don't believe that. [laughter] and it's the same way about our arguing in cases. but my colleague, justice breyer, not long ago made the comment, that although he agreed with me, we don't feel really nervous or stressed before we go on the bench, we feel that way before we go into conference. we have to present and argue nine cases, or maybe, four to six cases before nine justices and, you want to be prepared, and you don't want to say something that's not correct, or to be criticized by your colleagues for making an error in analysis, even if they disagree. that's the closest that we can get to the feeling of tension, and anticipation,

and, and professional concern and professional care, that the attorneys must feel when they argue before this court. not long ago i was in sacramento, california and my, former home and i went to the county courthouse to visit a judge. as i was walking up the steps, this courthouse where i used to try cases my heart began to beat with excitement. you just can't get rid of it. it's a great pleasure for us always to have a solicitor general or deputy solicitor general, assistant solicitor general of the united states appear before this podium. they know how to help us. they know what's a real question, and what is sometimes a question directed more at our colleagues then at them and they know and understand that.

many of, each of these members of this distinguished panel have been not only in the solicitor general's office or the solicitor general himself but have been before the court arguing other cases, and i can't tell you how important it is for us to have really excellent attorneys and the fact that they have helped this office and the fact that they have distinguished themselves in this office has contributed immeasurably to the traditions and to the excellence of this court. thank you, this is my opportunity to thank each of them for the marvelous contribution they have made and continue to make as distinguished members of the bar of this court. professor drew days, a distinguished professor at yale law school, has argued 26 cases before this court. he tells me has argued before three different chief justices. he is an editor of moore's

federal practice. ken starr has argued 36 cases before the, before this court. he's now professor of law at pepperdine university. is of counsel to kirkland and ellis. i should have said, drew days is of counsel to morrison and foster. ken starr was a member of the judiciary. we lost him from the judiciary when he answered the call to public service to go into the justice department and then to become the solicitor general of the united states. and he was chief justice warren berger's law clerk and he has his own book about the court "first among equals." paul clement has argued 51 cases before this supreme court of the united states. you passed the 50 mark paul. and paul was a clerk when i was here at the court. he was a clerk for justice scalia and is a partner of king, king and spaulding.

professor, mr. ken jell horn is managing partner of meyer brown. contributing editor of supreme court practice. i'm not sure if it is deliberate that you keep that in one volume. it is getting bigger the supreme court practice book mr. geller coed its and he has great experience because he himself has been a assistant solicitor general and deputy solicitor general and has argued 40 cases before this court and has also argued before three different chief justice. the fact he has this argument, this argument experience and this great professional experience i know has contributed to that volume. there are some things that are written people shouldn't question. i'm not going to get into what those things are, but one of those things that is

not questioned, and accepted as a authoritative is the book on supreme court practice and it's immensely helpful, i'm told by, by practitioners and certainly immensely helpful to us. mr. geller himself is the moderator of our distinguished panel tonight and i will turn proceedings over to him and thank you gentlemen, very much for the contribution to the law and the proceedings here today. [applause] >> thank you, justice kennedy. and good evening, everyone. my name is kenneth geller. i'm member of the board of trustees of the supreme court historical society and chairman of the society's program committee. the program committee oversees the development and execution of the society's many educational outreach efforts. tonight's event is a premier

example of the society's work to expand its reach beyond its 6,000 members. in 1991 the white house historical association, the united states capitol historical society, and the supreme court historical society joined together to develop the national heritage lecture. on a rotating basis, each organization hosts the heritage lecture as a showcase for the work that it does. we at the supreme court historical society were fortunate to be the hosts for the very first heritage lecture in 1991 when as ralph mentioned, justice kennedy spoke on president roosevelt's 1937 court-packing plan. other national heritage lectures held here at the supreme court include the 1995 talk by the right honorable lord wolf on the house of lords and privy counsel, the 1998 lecture by the lord high chancellor of great britain on constitutional changes in the united kingdom.

the 2,0002 reenactment of gibbons versus ogden and the 20006 reenactment of the aaron burr treason trial. it is high priority for the to present a significant and meaningful program for the heritage lecture. this year as we were making plans the robert h. jackson center in jamestown, new york, suggested an program on the office of solicitor general. the program committee and the society's executive committee agreed it was a worthy program and an ideal fit for the national heritage lecture. we're indebted to adam bratten, executive director of the robert h. jackson center for bringing this terrific program to us and we're honored that the jackson center joins us as cosponsors for the national heritage lecture this year. thank you. i also want to thank our nan pellists former solicitor generals paul clement, drew days, ken starr, to take

time away from their very busy schedules to join us today. our discussion primarily it evening will focus on work of solicitor general and away from specific cases but we hope our panelists will be indiscrete enough to mention specific cases. the solicitor general was not originally envisioned in the development of the justice department. it was not until 1870 that congress authorized the creation of the sew -- solicitor general stating and i quote. there shall be in the department of justice an officer learned in law to assist the attorney general in the performance of his duties to be called the solicitor general. since that time the office of the solicitor general has been tasked with conducting all litigation on behalf of the united states in the supreme court and to supervise the handling of litigation in the federal appellate courts. four solicitors general have gone on to sit on the supreme court. william howard taft, stanley reed, robert jackson, and

thurgood marshall. and two current justice served in the office of the solicitor general, chief justice john roberts with, and associate justice samuel alito. now justice marshal said that being solicitor general was quote, the best job he ever had and he had some good jobs. i hope we'll learn this evening if our panel agrees with justice marshal's statement. gentlemen, let me begin by asking paul as the most recent occupant of the office of the solicitor general, to briefly explain the job of the solicitor general in today's justice department and if it's possible to do so, to describe what an average day is like in the life of the solicitor general? >> i would be happy to try, ken. i think as to the average day in the life of the solicitor general, there probably isn't an average day and that is part of what makes the job so interesting and so fascinating. the job's basic responsibility in a nutshell,

i think is to probably start with the most public role of the solicitor general and that is, his representation of the united states of america, which most often means the executive branch of the united states but its representation of the united states of america before the supreme court of the united states. and i always think that one way of capturing the job of solicitor general is that the solicitor general in many ways often sits at crossroads of the separation of powers, often is before the court defending the constitutionality of an act of congress, or is defending the constitutionality of some executive branch policy and you really see that in the court, because here, in the court you have a representative of the executive branch speaking to the embodiment and hierarchy of the article 3 court system in representing the views of the united states. and one other thing i'd say

before maybe giving my colleagues on the panel a chance to fill in some of the enormous details is although this public role of representing the united states in the supreme court of the united states is the most visible and perhaps the most important role of the solicitor general, it is surely just the tip of an iceberg and there is just an enormous amount of work that goes on, essentially behind the scenes to formulate the position that the united states will take in the supreme court, to formulate the positions that the united states will take in the lower courts and the court of appeals or even in the district court in a particularly important case. as important as our role is in interacting directly with the court at oral argument, it is really just the tip of an enormous iceberg. >> let me add to that, it's really being in the catbird seat with respect to all of the litigation that's going

on in federal courts, are cases that involve the federal government all over the country. very few lawyers have the ability to look out at the country, and see the movement of 50,000 cases in the lower courts, gradually move up through the appellate courts and pointed to the supreme court and it's really the job of the solicitor general in effect to be, this is not a very fancy term but a traffic cop because all of those cases can not get to the supreme court for resolution. so it falls to the solicitor generals to sift through the numerous cases that come up, headed to the supreme court and, decide which ones are worthy of being presented to the supreme court and asking the supreme court to resolve these matters that will have effects that have impacts across the country. >> let me add my word of thanks, justice kennedy, thank you for your hospitality and to the society. ralph, your wonderful

leadership of it. i see some friends here and extremely fine advocates. so thank you, justice kennedy for that attribute beauty for the officers of the court but i also must pause and pay tribute to miss thurgood marshall. it is wonderful to see you. [applause] >> i remember being humbled more than once by your late iconic husband. he knew how to ask a question, if i, and i struggled to figure out a way to answer it but it is a great privilege to be here. i would also add that the statute itself, that creates the office is pristine in its simplicity and it describe as very simple role, to assist the attorney general. the it is the attorney general's office created by judiciary act of 1789 and has been said the office of solicitor general took a long time to in gestation. it was 1870 with the

post-civil war growth of federal law enforcement that the office came to exist at all. but, i would simply flag briefly the attorney general, which will bring us at some point to the quote, political dimension of the job, politics versus law as it is sometimes juxtaposed but i found one of the most intriguing aspects and it wasn't an everyday opportunity, or responsibility but, occasionally the solicitor general will find herself or himself the acting attorney general of the united states, for a particular matter, especially on matters of national security, which obviously we shouldn't talk about other than to say it is one of the most intriguing occasional parts of the job. then i found during my tenure there that i was called upon to do, i would say various projects, including working on issues of the civil justice system and the like. but i think we should not neglect the statute, what congress has said, that statute although amended

once, really remains essentially the same as it was when it was first passed well over a century ago, really well over a century and a half ago, that our task is to assist the attorney general of the united states. >> but it is also true in the early days of the office the attorney general and solicitor general often occupied the same positions in terms of appearing before the supreme court in arguing cases there but i think in the early 1900's, because of the iaea enormous responsibilities placed on the shoulders of attorneys general, the responsibility for handling cases in the supreme court fell to the solicitor general and he, and now she, really occupy that as, their principle responsibility. attorneys general argue before the court from time to time and even in lower courts but that's the exception, not the rule. >> now each of you held

significant positions in the government prior to becoming solicitor general. i assume you thought you had a pretty good sense of what the job entails when the president asked you to become the solicitor general. ken, you worked in the attorney general's office prior to becoming solicitor general and you had been judge as justice kennedy said on the d.c. circuit. so what surprised you most about the job of solicitor general once you started to exercise it? how did your expectations compare to the actuality? >> i had underestimated even though i knew the job and knew former solicitors general well and served down the hall from a very great solicitor general, rex lee under whom i know some of the individuals here in this room had the great privilege of serving. the conflict resolution dimension of the job. i knew it was there but the role of taking the varying positions that are being advanced by divisions within the department of justice, or agencies of government,

and then coming to closure, and the conflict resolution, sounds, very much like a judicial or quasi-judicial role. i had under --, i knew it existed but i really underestimated how much of my time and energy was dedicating to ironing out, not in some arbitrary compromise sense but coming to the view this in fact should be the position of the united states. >> drew, you had been the assistant attorney general in charge of the civil rights division, when judge mack cree was solicitor general, so you had a lot of exposure to the job but what surprised you when you came into the job. >> i was one of those supply can't coming into the solicitor general arguing for my position on behalf of criminal division or some part of the government. what surprised me the enormous amount of work that goes to carrying out the responsibilities. there is the tip of the iceberg which is the supreme court but when i walked into

the office and looked at my desk for the first day of real work and saw a pile about that high, i said, those can't all be supreme court matters? well, they are what are called, recs, recommendations as to whether cases should be presented to the supreme court for review but more often, whether case that is the government lost in the lower courts should be appealed. this is one of the things that the solicitor general does as gatekeeper. so i think it stimulates extra effort on the part of united states attorneys and assistant united states attorneys to win their cases. so they can go up to the supreme court, compliments of the other side. because if they lose then they have to go through solicitor general. it is also true, with respect to rehearings en banc. so every trial lawyer knows that the judges who rule defence them were misguided and did not apply the law properly, so it is kind, we was robbed syndrome that the

solicitor general has to deal with on a daily basis. it is also something that i wasn't aware of, that the solicitor general has responsibilities that are international. for example, if a friend of the court briefs are going to be filed in any international or foreign court, the solicitor general has to approve those filings. so, i found myself learning more about the canadian tax code than i thought i would ever have to expose myself to when i became solicitor general. >> in terms of public perceptions of the job as solicitor general, solicitor general has famously been called the 10th justice. i suppose the premise that title is that the solicitor general has as much influence on the development of the law as a justice. would any of you be willing to subscribe to that view or take issue with it. >> i think paul is up next? [laughter] >> i will say this, which is the interesting thing about the 10th justice moniker for

the solicitor general you hear that a lot. link kaplan wrote that book with it as its title. it has been said by a number of solicitors general. you never hear that phrase coming from any of the nine real justices [laughing] and i think that does reinforce that there is a fundamental divide and that, i think, probably stealing one of drew's lines but i think maybe drew said it that, the solicitor general is maybe, the 36th law clerk might be a little more accurate. and it gets back to something that ken said which is, that although, statutorily one of the important responsibilities of the solicitor general is to as cyst the attorney general, i i think every solicitor general and every lawyer in the office really understands another important part of our responsibility is to assist

the nine real justices. and to try to be helpful to them in resolving their cases. that can take any number of forms. i think that in the briefing of cases, i think it is always an aspiration of the office that when it briefs a case, that as it is presenting the case to the court, particularly as it lays out the fact of the case and the like, it provides the court with a very objective view what is at stake in the case. that is not to say that at the end of the day we're not advocates for a client, but i think like we feel like we really need to present to the court the full picture of the case so that, if they pick up the gravery, gray brief, solicitor general's office brief which was gray, in early days of office it was gray in title but it was a sort of a drab taupe, but i think it is a respectable gray, the idea, has always

been if you pick up the gray brief you will know what the case is about, if you're on the court, if you're a justice, if you're a law clerk. so i think that's one very real way. . . >> to take this case and review it on the merits as part of its plenary docket. the brief in opposition will

advise the justices, generally, that it should do no such thing, it should simply deny cert, and the justices will call for the views of the solicitor general and ask the office for its views on the case. and they're asking for the views on the law, the underlying law, they're asking for the office's view about whether or not the court should take the case, but they're also, i think, really at bottom asking what the federal government feels about the importance of this case. generally, these are cases that at one level or another impact the federal government, but the federal government has not been a party. and i think that's one way in which you really see this special relationship between the office and the justices, they don't call for the views of anyone else. >> well, i agree with that very much indeed. when i got cvsg messages from the court, i thought that the justices were, of course, asking the views of the united states, but that's not what it says.

it says call for the views of the solicitor general, so i felt my personal credibility was on the line in responding to the court when those requests were made. the other thing about the tenth justice idea is that the solicitor general and people on his or her staff are repeat players. if you're a private lawyer and you have a case before the supreme court, you will argue and you may make some missteps, you may push a little bit hard on things that are, perhaps, not entirely accurate, but it's unlikely that you'll have the heavens fall on your head the next time you appear because there usually won't be a next time. but for the solicitor general and members of his or her staff, having credibility with the court is, is critical. it is key to the effectiveness of the office before the supreme court. >> i was just simply going to add that especially in light of

the fact that we are here as colleagues of the robert h. jackson center that your question brings to mind the remarkable concurring opinion of justice jackson in the fabled steel seizure case and in his concurring opinion he reflected and meditated on the nature of our separation of power system, particularly in the context of presidential power. and i think that is a way to sort of reflect on the relationship which is obviously special, and i think it's fair to say it's a unique relationship between an article ii officer who ever's occupying the office of the solicitor general and all of those who serve under her leadership and in the article iii judiciary but, obviously, particularly the supreme court of the united states. and one way to think about it perhaps at an overly high level of abstraction is that there's a conversation that's continually underway. and the advantage that having a single officer, the office of

solicitor general, sort of in charge of the executive branch's part of the conversation is that the solicitor general has very elaborate ways developed over time, extraordinarily efficient, of inviting different people into the conversation. it's not simply, as mrs. marshall will know, that when he served as solicitor general it was just what solicitor general thurgood marshall thought because he, with all his wisdom, was eager to know what the different agencies of government thought, and that process of inviting the different agencies into the conversation in connection with a call for the views of the solicitor the general or any issue that is frequently the case touches on more than, say, a single department or division of the the justice department. >> but i think we need to be clear about the fact that the solicitor general is an executive branch ulcer, and there are occasions one would like to hope they didn't happen on a regular basis where the

solicitor general has to stand before the court and challenge things that the court has said or done, precedents that have been established by the court because in the view of the executive branch, they were not rightly decided, they have consequences that through the implementation of those decisions have not advanced the law in a way that certainly the executive branch thinks would be proper. so there is this tension, but i certainly tried to keep in mind that there were matters that were executive branch matters that i had to present forcefully to the court and, indeed, i remember one occasion when i was given information that was critical to maintaining happy relationships with our trading partners, our major trading partners. and during oral argument in a case that touched on those, i was asked a question from one of the the justices that i knew i

could not answer as a member of the executive branch because the answer would have upset the apple cart. and so for -- in our relationship with the japanese and with the brits and the europeans and so forth. so me that was pretty painful, and i probably paid a price for it. the case came out the way we wanted it to, but for me that was an experience that encapsulated this dual, this duality in the role of the solicitor general. >> well, let's explore that because you've all referred to the fact that the hardest part of the job is just deciding what the position of the government should be because of all the competing interests. you obviously have a responsibility to represent your clients vigorously in the supreme court like every lawyer does, but on the one hand you're also a custodian of the traditions and the credibility of the solicitor general's office which has been built up over many decades. on the other hand, you're also a

high-ranking political appointee answerable to the attorney general and ultimately to the president. so how do you reconcile all of those different roles and those different interests? in particular, for example, how would you decide whether to repudiate a position taken by a prior administration? you have to weigh continuity, i suppose, in the law against and the court's perception of the solicitor general's office as not simply being a mouthpiece for the current administration against your obligation to present the court with the legal position you believe to be right. >> it's paul's turn again. [laughter] >> funny how it works out that way. [laughter] well, i guess i'd try to answer it this way, which is it is a very difficult balancing proposition that the solicitor general has to perform because on the one hand there is this -- well, one thing that the tenth justice captures is this idea that there's a special

relationship between the court and the solicitor general's office, and there is a sense of independence of the solicitor general's office from the rest of the executive branch. but one of the things that's so mystifying is that if you look at the organizational chart, you would have no idea why there is this culture of independence because the organizational chart makes things elegantly simple. the solicitor general reports to the attorney general who reports to the president. so it's as simple as that. and so in any given case i don't think one would have to be a adherent to every jot and tittle of the executive theory to understand that in any given case if the president wanted to, the president could direct the attorney general, the solicitor general to take a particular position. on the other hand, i think that certainly if the solicitor general found herself or himself

being countermanded by the attorney general or the president on a regular basis, that would probably be a sign that it was probably time to get a new solicitor general. and you need to balance that constantly. now, if you want to try to apply it in the context of a particular instance where a prior solicitor general has taken a position in the supreme court and there are reasons that the new administration might want to take a different position, i don't think anyways that i would say, well, absolutely never. i mean, i would never want to take a position that countermanded a prior decision that had been taken by one of my predecessors. in a sense i think the analysis ends up being quite similar to what the court itself has to deal with in the area of stare decisis. a prior decision of a solicitor general is entitled to great weight, but oftentimes there will be subsequent developments just as the court will

occasionally change its course based on subsequent developments. you can have a situation that i know i confronted where on one level the united states had taken a different position in the supreme court at a prior point in time, but on the other hand, i had the benefit of all sorts of factors that my pred predecessor didn't have including a couple of intervening supreme court cases that i could read. and in those instances i did change the position of the united states, but i was always very careful to be very explicit that that's what we were doing and to offer a brief explanation as to why. so it wasn't simply a matter of changing positions sub slens owe nor was it in a position of doing it in a way in which it was a step one would take lightly. >> i had a job interview with president clinton in the oval

office, and i had prepared for that interview waiting for question after question kind of like a final examination, but it turned out to be very arkansas-like, kind of a casual conversation can. but there came a point, as we say in the law, where the president looked at me, and he said, what is the relationship between the president and the solicitor general? and i said, mr. president, you are in the constitution, the solicitor general is not. well, he liked that a lot, and i thought -- [laughter] i thought that i had scored quite a good hit there. later on, however, i found myself confronting the problem that ken just posed, a position that had been taken by not just one, but probably two prior administrations, the fact that candidate clinton had said when he was campaigning that if elected, he would support x in

the case that was headed to the supreme court. well, it wasn't a position my predecessors had taken. i decided that i could move in the direction of the president's position but i said to my staff when we were working late one night, you know, i may be back in newen haven sooner than i thought on this one. [laughter] but it involves tax law and international trade, and what i did was i got top officials in the state department and in the treasury department to tell me how the former positions were developed, exactly what the thinking was. and by the time i reached my position, i put in the brief exactly the process i followed in reaching the position that i did. there was also a time late at night when someone in the white house kept calling me and debating with me certain things

in the draft that i'd sent over to the white house, and finally it must have been midnight this fellow called and said, well, we really don't like footnote 50, and could you change that? i said, no, i'm not doing that. i've made some adjustments, but i'm comfortable with the position i've taken. and i knew that i had succeeded because the voice on the other end of the line said, but, professor days -- it had been one of my students. [laughter] and the irony of it all was the court came down with the position that ruled on the side that we had urged, but based upon a rationale that had been presented by neither of the prior administrations. [laughter] so it was quite a hard job to work it out, but in the end the court found it own way. >> i think the keyword and, perhaps, echoing my two friends is continuity.

there is extraordinary continuity in the work of the government, and it is rare -- and happily it does happen, i think that's a good thing that it does happen -- that there are changes in position when thoughtful lawyers particularly inas much law embodies policy choices come thoughtfully to a different view. and they should advance that view. but it's been said, i think correctly, that good government is good politics, and respecting the traditions of independents and with independence means legal judgment being thoughtfully brought to bear not by a single individual, but a process and a process that's very elaborate, very reticklated. it is extremely refined, it is very impressive to participate in it just as one participant as it were a cog in a very impressive machine. and to the say we're going to

tear the work product asunder at times should be done, but it is done very rarely, and that, i think, in no small reason accounts for the fact that even with elections seemingly having dramatic consequences -- and they do -- that still and all the work of the solicitor general largely goes on unchanged. with the positions largely unchanged. continuity. i also was going to say that a wise president will, in fact, listen with great respect to his attorney general and especially with justice kennedy here, i want to tell the briefest story of the attorney general going to president bill smith -- bill smith going to president reagan and saying i have a position on the republican platform in 1980 and our policy position with

respect to congress as part of the reform of bureaucracy and getting control over the bureaucracy which dear judge bell devoted a chapter to in his wonderful book, "taking care of the law," and we miss judge bell. but this was nonpartisan. individuals in both parties, very thoughtful individuals said we've got to get control of the bureaucracy, and one method is a legislative veto. let one house or even one committee -- forget bicameralism, the attorney general of the united states goes to the president of the united states in person and says, the position we've been advancing is wrong as a matter of constitutional law. and that was, in fact, an enormous -- it wasn't a shift in the government's position, but it showed the triumph, it seemed to me, of law over politics, law over thoughtful policy very benign, very powerful concerns about getting, as i say, control over the bureaucracy. but that was the wrong way to do it. justice kennedy, a circuit

judge, had ruled that the legislative veto speaking for the ninth circuit was unconstitutional, and that proved to be the rule articulated by the supreme court of the united states. >> how do your own views of the law enter into the decision making process? how much of those views dictate positioning taken on behalf of the united states? francis biddle who was the solicitor general during the franklin roosevelt administration once said, i am servant to no one. i do not answer to the man who appointed me, i serve only justice. i'm not sure that's much of a guiding principle today for the role of solicitor general, but on the other hand, bob warric who is the solicitor general in the nixon and ford administrations and prior to that had been a renowned professor of antitrust law at yale law school once said he thought virtually every antitrust case that came through the sg's office, every single antitrust case that came through

when he was the solicitor general, he thought the antitrust division was taking a position that was not just wrong, but was ridiculous. and yet he never used his position as solicitor general to prevent those antitrust positions from being presented to the court, and he, he dutifully allowed the antitrust division to present those positions on behalf of the united states even though he personally thought that they were, as i say, not just wrong, but ridiculous. and so how much did your own view of what the law should be enter into your final decision on what position to present to the supreme court? >> well, certainly ridiculous is high potential bly, i think, certainly, and i'm not surprised that bob would say that. [laughter] i see it as not a policymaker in the sense of other government officials, and although we have

very fine lawyers and solicitors general tend to have some background in the law and if we think that a position is not likely to be effective, not the best way to present that issue to the court, counterproductive in some senses, then i think it's the solicitor general's duty to let that be known. and, indeed, in so many cases that come before the solicitor general for resolution, it's not one entity that's only involved, only affected. the antitrust division may be taking a position that will affect the patent and trademark office or the, the trade representative. and, therefore, we have to look as solicitors general at how a position will then have an impact on the entire government. one of the issues that came up and i think still comes up has to do with the whole question of

respect for agency decision making, how much respect should be given by the courts to that process. and i can recall cases where certain agencies wanted to push very hard in the direction of greater respect from the judiciary, and i thought that to argue their position given the facts of the cases that they were pushing would actually work to the disadvantage of other agencies and have a negative impact across the government. and, therefore, under those circumstances the answer was, no, i won't present that position to the supreme court. i won't allow that case to go up. but i think i was head of the civil rights division, and when matters came from the civil rights division, i tried not to think of myself as still the assistant attorney general for civil rights because these people were nominated by the president and confirmed by the senate, and they had a right to carry out their policies as they saw fit.

>> well, i think francis bid l, who's an incredibly elegant lawyer, sort of gave living meaning to philadelphia lawyer was engaged in really a fantasy and a rather dangerous fantasy that someone's platonic notions of natural justice should determine the position that the united states takes. i think that's very disrespectful, frankly, to the much more limited and modest role that should be taken, and certainly by a single individual, i think -- and surely, it was hyperbole and, hopefully, understood even by its author to be hyperbole. and there is a great strong moral sense of dedication to the values of the rule of law, but if you elevate that beyond to, you know, sort of my sense of the platonic right and good, it

get withs, to me, a bit scary. on the other hand, it surprises me a little that judge bork who is extraordinarily articulate and a very persuasive person would, what shall i say, quietly and maybe it wasn't quietly, allow positions that he thought was ridiculous to be advanced. so there i would just look ahead to what i would think would occur which is the most careful, pain staking conversation within b the executive branch, are you sure that is what we really want to do? but that having been said, judge bork made it very clear very shortly after he became solicitor general he gave a great speech to the antitrust section of the american bar association saying, if you've got antitrust issues, don't knock on my door, i don't set antitrust policy. and so there is -- go see tom call per. and there is a very good lesson

in that. but what is left out of that, it seems to me, it is a much more deliberative process than i think either attorney general, solicitor general biddle or solicitor general bork indicated. >> you know, i think that solicitor general biddle came up with this rather grandiose quote when he was solicitor general, and there's some irony to the fact that he was solicitor general a very short period and that his next job was as attorney general. [laughter] and i can't imagine that attorney general biddle agreed with solicitor general biddle about his description of the solicitor general's role. [laughter] that said, i would just echo the point, though, that i think in understanding the different relationship and where the truth lies probably somewhere between biddle and bork, i think it is -- [laughter] important to understand and differentiate between policy matters and legal matters. there's certainly -- and i realize it's a continuum, and i think probably the antitrust

cases are a good example of somewhere where the lines are a little bit fuzzy. if there is a policy matter where there is a policy making part of the executive branch that's taken a position, then it's certainly not the role of the solicitor general to use his or her monopoly power over presenting positions to the supreme court to second guess that policy view. that's not -- you know, the statute says learned in law, not learned in policy. even then, though, even in that policy area there's no requirement that the solicitor general be a potted plant. and on one or two occasions i had something cross my desk where, as ken suggested, i thought, well, it's not my role as solicitor general to second guess this policy judgment reflected in the regulation or the like. but i am a member of this administration, and i can't believe that's our position. [laughter] so let me pick up the phone and call somebody whose job it is to

superintend policy. it's not my job, but there are people in the administration who do that and ask them, is this really our position? when you're in the more legal realm, then i do think the solicitor general is certainly not as grandiose in his or her role as solicitor general biddle described, but nonetheless, it's not a matter where you just take the inputs you're given from others in the executive branch and simply, you know, decide whether they're pal lab enough to offer to the supreme court. just to give you a for instance, during the time i was solicitor general one issue we confronted across cases was the question of which to the extent we ought to argue that the standard involved in a case really was a standard for as applied challenges versus facial challenges. now, in deciding how the administration is going to approach that issue which arises across cases and across subject matters, i mean, that really

seems like a call for the solicitor general and, you know, attorney general, obviously, as opposed to the position of any particular agency who might be involved in a facial or as applied case in any given case. so i think you really have to differentiate between the policy issues and the legal issues, and i think of the role of the solicitor general as more robust with the legal issues and much less with respect to the policy issues. >> well, let me ask you a somewhat related question, then, about your philosophy when it came to the filing of amicus briefs in the supreme court. there are many, many very important issues that come before the supreme court that don't seem to involve the operations of the federal government at all. for example, the sorts of restrictions that the states may place on the availability of abortions or state laws banning assisted suicide or school prayer. the administration may have very, very strong reasons either

philosophical or political even to see one side or the other prevail, but they're not reasons that relate to any particular prommatic interests of the federal government. should the the solicitor general be involved in those sorts of cases, and if so, what are their criteria? and is there a concern that the position in the united states in those sort of cases sort of flips from one administration to the next 180 degrees to the point where the supreme court views the solicitor general's briefs as just political statements? ken? >> well, it's a judgment call, and that is part of the most delicate part of what a solicitor general is called upon to do when he or she is part of the executive branch and the executive power is vested article ii, section 1 in a president of the united states. and the president has very strong views, and those who advise the president have very strong views over the subject. and nonetheless, it calls for,

it seem t to me, prudence and caution as this particular vehicle we want to be involved in. the issue is you used the examples that are so divisive of abortion and school prayer. and in a fundamental area of philosophy, i would say the solicitor general's office should be there. there is a development of the law in abortion substantive due process. that's an extremely important part of the court's work. and so what the court does in a particular case is going to shape one of the most important dimensions of our civic life together. ditto for the establishment clause. the united states is deeply concerned regardless of who the president is in the establishment clause or the religion clause more generally.

and so my own sense was, no, we should not take a pass if the court has determined to hear a case, the court should have the benefit of the, hopefully, thoughtful analysis of the solicitor general. typically, if i could just add one thing, the court does not call upon the solicitor general to express the views of the solicitor general in determining to take one of these socially divisive cases. it exercises its discretion and the control of its docket, and it is, therefore, saying to the country this issue is important. we need to resolve this issue in this very sensitive area. so my own view and reasonable minds will disagree is it would be odd for the solicitor general to sit on the sidelines when something as important as that to the country and presumably to

the president is being litigated before the nation's highest court. >> i agree with ken that the government should sparingly participate in cases that raise these very controversial social issues. i think the phrase we've used, ken, is contributing to the orderly development of the law. i think that's how we characterize the united states' involvement in matters that don't seem to directly affect the united states. these are important issues, but i think that's what important is that the government if it's going to become involved, actually does something and says something that's helpful to the justices, that's helpful to the courts. it is possible for the solicitor general to draw upon the entire united states government for information that might have a bearing on decisions that the court has to make in this area. ken, i think you were involve

ised in a case having to do with when a person can be taken off of life support. >> right. >> and my recollection is that you went and you visited va hospitals. well, this is information that most private parties cannot really offer to the court, and one can go through a number of other issues where there is this wisdom, this knowledge within the federal government. and so the challenge is to determine that it's really going to be helpful to the court. and as rex lee said -- and this has to do with changing positions also -- that he wanted to be known when he stood before the court as the solicitor general of the united states, not the panel me tier general of the united states. and i've always taken that as a challenge for anybody who serves in that office. >> and i may have even a slightly different view. i don't think it's radically different, but i always think when the united states files an amicus brief in the supreme court, in some respects the most important section of that brief

is maybe the one that's read the most rapidly. but that is the interests of the united states. the supreme court's rules require that to be in the brief. and require an articulation of why it is that the united states is interested in a particular case. and i think if there is a case that is interesting but really doesn't directly implicate the interests of the united states, that the burden for getting involved in that case, the justification for getting involved in that case ought to be a very high one. i don't think just because a case is controversial or important that the united states should necessarily file an amicus brief, and there was certainly very important cases just to pick a couple of related cases as an example in the roper and adkins case involving very important issues about the circumstances in which the death

penalty is constitutional, the federal government did not participate in either of those cases. and the reason was that federal statute already provided for the rule that the, that the defendants, the capital defendants in those cases were seeking to glean from the eighth amendment. so it was already, for example, impermissible to use capital punishment for somebody who is a juvenile at the time of the offense. that was federal law, and it seemed to me that in a case like that where under federal law somebody would not have capital punishment administered to them no matter what if they were under 1 at the time of the -- 18 at the time of the offense, that the interest of the united states weighing in about the rights of the states in those circumstances, that there really wasn't a great role for the united states in that case. and the one other thing i would add is i think it's particularly

important for whoever the administration in power ought not to take a position that is just something of a stretch, but actually contrary to the long-term interests of the government. i mean, the government, after all, has certain kind of if you take the longest possible view, you know, the government's likely to be a taker of property, not a takee. so for the government to take a position that there ought to be a very robust takings clause doesn't make a lot of sense even though that might be popular in a republican administration. likewise, the federal government tends to be an establisher of religion, not an establishee if you'll allow my license with that phrase. [laughter] therefore, even though in a democratic administration it might be attractive to take the position that certain things a state practice isn't an establishment of religion, i think that, too, is kind of hard

to justify because it goes against the current, the long-term interests of the united states. >> a sure-fire indication of when the government should stay out is when both sides come and visit the solicitor general to discourage him from even thinking about what's at stake -- [laughter] which is an experience i had in a religion case. [laughter] >> another very important job of the solicitor general is to appear in this courtroom and present oral argument on behalf of the united states. so in the short time remaining let me just touch on that briefly and ask you whether you felt any different feeling in arguing before the supreme court as the solicitor general, was there any factor that differentiated arguing as the solicitor general from arguing as, in other capacities as a private lawyer, and just how did you manage to prepare for oral argument given all the other significant responsibilities you had and the time-consuming responsibilities you had? >> well, i mean, i'll start and

i'll say how do you manage to prepare given all your other responsibilities? they're called weekends. [laughter] and you pretty much dedicate all your weekends to preparing. so that answer is simple. with respect to the difference between the arguing for the united states and arguing for a particular party, i would just offer one thought and i'm sure my friends have other thoughts, but i was struck the first time i argued a case in the united states for the united states how much responsibility i had to know about various aspects of the federal government's far-flung responsibilities. when you're arguing it for a particular private party, generally things are quite simple. it's a specific case, and there are specific facts, and nobody much cares about even other facts about your client. whereas when you argue for the united states, i mean, it's very -- the first case i argued for the united states was a

qualified immunity case, and it was a case where we were defending a federal official who was accused of using excessive force. and i remember in one of my moot courts in the sg's office i was asked, well, how does the civil rights division instruct juries in excessive force cases when the federal government is prosecuting a state police officer for using excessive force under 18 u.s. c242? and i thought to myself, how in the world would i know? [laughter] i mean, i'm arguing a case about, you know, qualified immunity, and that's hard enough. why would you even expect me to know about how to instruct a jury in a civil rights criminal trial? but it struck me the more i thought about it, well, it's a perfectly obvious question that the responsibilities of the federal government are far flung and there's really a responsibility when you're the solicitor general to represent the entirety of the united states' executive branch and not take positions that are narrowly

focused on a particular institutionalized interest, but really be responsible to answering questions about all relevant operations. >> and have any of the three of you when your up here found that you had no idea how to answer a justice's question, or as drew said earlier where you were reluctant to give the correct answer because it could prejudice some other interests of the united states? >> there were, indeed, such situations. i don't recall them, of course -- [laughter] but chief justice rehnquist always had a zinger. it was, what's the best case for your position? there is no way to answer that question and get out ahead or leave ahead because if you didn't know it, that was a problem. if you did think you knew it, he knew it better than you did and would continue to hound you on the facts and the ruling of the court and what the justices had said about that particular case. so i thought that was one where i often was dumb struck, at

least almost. >> i think advocates have an intuitive feel of when they are in stride, that they are understanding what the court is driving at, they're being -- hopefully -- responsive. general advices us nicely, yes, no, and then qualify to the answer and so ort. and so i felt on one particular occasion which i remember all too vividly that i was arguing along thinking i was in stride. little did i know that i was over the cliff. chief justice rehnquist who seemed to be utterly unperturbed by what i had been saying suddenly had this look of ghastly alarm, springs forward, and with his el fan tine memory said, general, are you suggesting that oklahoma publishing v. rawlings should be overruled? i had never heard of --

[laughter] >> precisely. >> and so the best i could do, absolutely and emphatically not, mr. chief justice. now, as i was saying -- [laughter] and i didn't think that we were. ed, were we trying to get that overruled? [laughter] so at times you're going to be embarrassed, and, you know, the best response is even though as our chief justice, john roberts -- a very, very fine, none who's better as an advocate at the podium as john roberts jr -- and as he described it as an advocate you prepare relentlessly, whether that's on a weekend or whatever. and i would just close by saying i always found the moot court experience, like gary player said of the game of golf, humbling. and i for one have always deeply appreciated and profited from the most rigorous moot court. you hopefully will be fully

prepared before you go in, but you will get as paul indicated that question in a moot court, and you want it in a moot court as opposed from justice kennedy. [laughter] >> okay. now that we've explored all the various aspects of being solicitor general, i'd like to ask you all -- but your white light is on so you've got to answer quickly, all right? what was the most difficult part of being solicitor general, what was the most fun part, and is there any part you would like to see changed? paul? [laughter] >> well, i think the, probably the most difficult part were those situations where there was a disagreement within the executive branch that you just couldn't really make go away. you know, we've talked about this, all of us have alluded to this, but you do have situations where two parts of the executive branch weigh in on an issue, and they really both have

long-seeded, deeply rooted positions that are just diametrically opposed. i had one case when i was solicitor general that was a particularly acute problem because the fcc and the antitrust division not only were opposed, but they had actually filed briefs on the opposite side of the case in the second circuit, something that can happen when an independent agency has independent litigating authority in the lower courts. and that was a case where we actually at the end of the day were able to get both the sec and the justice department's antitrust division on the same brief. but there are cases where it is just really an intractable disagreement. and those, i think, are the hardest cases. the most enjoyable part of the job in some respects is arguing cases in front of the supreme court. it's a high honor for any litigant to get to argue a case here. but to get to do it for the

united states of america is really something special. and i don't know that there's anything, i mean, you know, i was solicitor general recently enough if there was anything i wanted to change, i should have done can it. laugh and i didn't, and i missed my chance. [laughter] >> drew? >> well, i agree being the dr. no of an administration when supplicants are coming before you who have very serious issues and want to take their cases to the supreme court, but i found that due process goes a long way. often agency heads will come to make their case, and if they're heard out and they get the sense that they're getting a serious look at what they want to do, even though the answer is no they feel, i think, that they've done their jobs. and i think one of the best things about being solicitor general is enjoying the enormous

respect that the office end joys not -- enjoys not only within the justice department, but throughout the federal government. i remember a case that involved the defense department, the navy. and i had said no, and my assistant said the secretary of the navy is on the line. and i thought i was going to get chewed out. but i said, hello, mr. secretary. he said, i understand that you've decided against taking our case up to the supreme court. and i took another deep breath, and he said, and we appreciate very much the attention that you devoted to working this through and thank you very much. end of conversation. i felt a chill that not drew days, but the office of the solicitor general stood in such high regard throughout the government that in this really critical matter, deference was shown. >> point one, the most

unpleasant and difficult, by far, in my experience was conflict. and conflict within the justice department specifically. every administration regardless of who the president is has its schizophrenic elements or dimensions. i've seen no better treatment of this than charles freed's book order and law, arguing the reagan revolution, where he talked about in somewhat pejoratively the, quote, federalism police in the office of legal counsel. there is, n., when he was taking much more hamiltonian as opposed to jeffersonian rules, he was more of a john marshall. you find yourself in the solicitor general's office being more of an echo of john marshall than you do of john c. calhoun. you believe in,er fervently, the idea of a national economic union and our federal system and so forth. so you're going to have these tensions, and my personal one came in very early when i was

being asked about the position that i thought was quite wrong after studying it that a particular statute passed by the congress of the united states was facially unconstitutional. and i could not take it. take that position, and we did not take that position. the most, the most enjoyable part, i would say, was really the sense of community within the office, that sort of sense of shared traditions that this is really special. we know we're not going to be here for a very long time, and i would say in that respect that our dear irwin griswold said to me not long after i was privileged to take the oath of office that there was only one thing wrong with the office of the solicitor general. i said, dean, what's that? he said, it does not enjoy article iii life tenure. [laughter] so i knew that irwin griswold thought you were unworship, and i knew i was unworthy and he should be there and not only

should there be no changes, i think the office continues to perform a great public service that is the finest traditions of the constitutional democracy. >> well, is there unanimity on the part of the panel that justice marshall was right, that being solicitor general is the best lawyer's job in the country? i think so. >> absolutely. >> decided. thank you, everyone. [applause] >> regrettably, all good things must come to an end. i think you, i hope you will agree with me, that this has been an extraordinary, extraordinary program and presentation. i'm delighted that the court permitted c-span to film it. it will at some point be broadcast and available throughout the united states and

beyond, and i am deeply grateful to the four of you for one of the best programs i think the society has hosted. justice kennedy, i am very pleased both with the fact that you agreed to host this this evening and with your very kind b and generous remarks about the society. i want to assure you that the feeling is reciprocal and that those who serve you and serve the court as trustees of the society, as members of the society and the extraordinary staff that we have are deeply grateful for the respect and the honor which you show to the society. ken mentioned that the national heritage lecture is, if i may use the phrase, on rotation. this year it was the supreme court historical society's pleasure and honor to be able to host it. it, the -- that pleasure will

rotate to another of the society's associates, and tonight we are privileged to have with us ronald a. sarahson, the president -- excuse me -- the president of the united states capitol historical society, neil w. horseman, the president of the white house historical association, and gregory ped -- pettersson, thank you, gregory. we are delighted that they are able to join us. we will -- i can't tell because the lights are in my eyes, but i am assuming that a large number of you are members of the society and have attended others of our lectures. to those of you who have not, membership is available. we would be delighted to have you join us. [laughter] and in that respect if you want

to the attend other programs sponsored by the society, please, feel free to go on our web site, www.supreme court history.org. you'll find our programs, upcoming programs for 2010 listed there, and we would be delighted to have you. we're going to adjourn to a reception in the east and west conference rooms. again, i can't see you because of the lights. those of you whom i haven't met, i would be delighted to meet. i hope you will introduce yourselves during the course of the reception. members of our staff here, our executive directer, our deputy executive directer, david pride, kathy, jen lowell, our program chair, our development chair, our membership chair, they will all be in there as will members of our executive committee. please, introduce yourselves to

us. the 2009 national heritage lecture is now adjourned. thank you. [applause] >> president obama today told top bankers to ec mother every responsible way to increase lending saying they were obliged to help repair the american economy. the president made a short statement after that meeting at the white house. >> good afternoon, everybody. i've just finished a candid and productive meeting with the ceos of 12 of our nation's largest financial institutions. i asked them to come to washington today at the end of this difficult year for their industry, but also for the economy. to discuss where we've been and what we expect of them going forward and how we can work

together to accelerate economic recovery. our nation's banks play and have always played a crucial role in our national economy from providing loans for homes and cars and colleges to supplying the capital that allows entrepreneurs to turn ideas into products and businesses to grow, to helping people save for a rainy day and a secure retirement. so it's clear that each of us has a stake in insuring the strength and the vitality of the financial system. and that's why one year ago when many of these institutions were on the verge of collapse, a predicament largely of their own making often times because they failed to manage risk properly, we took difficult and, frankly, unpopular steps to pull them back from the brink. steps that were necessary not just to save our financial system, but to save our economy as a whole. today due to the timely loans

from the american people our financial system is stabilized, the stock market has sprung back to life, our economy is growing and our banks are once again reporting profits. a year ago many doubted that we would ever recover these investments, but we've managed this program well. this morning another major bank announced that it would be repaying taxpayers in full, and when they do, we'll have collected 60% of the money owed. with interest. we expect other institutions to follow suit, and we are determined to recover every last dime for the american taxpayer. so my main message in today's meeting was very simple, that america's banks received extraordinary assistance from american taxpayers to rebuild their industry, and now that they're back on their feet, we expect an extraordinary commitment from them to help rebuild our economy.

that starts with finding ways to help credit-worthy small and medium-sized businesses get the loans that they need to open their doors, to grow their operations and create new jobs. this is something i hear about from business owners and entrepreneurs across america, that despite their best efforts, they're unable to get loans. at the same time, i've been hearing from bankers that they're willing to lend but face a shortage of credit-worthy individuals and businesses. now, no one wants banks making the kinds of risky loans that got us into this situation in the first place, and it's true that regulators are requiring them to hold more of their capital as a hedge against the kind of problems that we saw last year. but given the difficulty business people are having as lending has declined and given the exceptional assistance banks received to get them through a difficult time, we expect them to explore every responsible way to help get our economy moving

again. and i heard from these executives that they are engaging in various programs like second look programs, hiring more folks, raising their target goals in terms of lending all of which sounded positive, but we expect some results. because i'm getting too many letters from small businesses who explain that they are creditworthy and banks that they've had a long-term relationship with are still having problems giving them loans. we think that's something that can be fixed, and so i urged these institutions here today to go back and take a third and fourth look about how they are operating when it comes to small business and medium-sized business lending. we also discussed the need to pass meaningful financial reform that will protect american consumers from exploitation and the american economy from another financial crisis of the kind which we just came out of.

i noted the resistance of many of the financial sectors to these reforms. the industry has lobbied vigorously against some of them, some of these reforms on capitol hill. so i made it clear that it is both in the country's interest and ultimately in the financial industry's interest to have updated rules of the road to prevent abuse and excess. short-term gains are of little value to our banks if they lead to long-term chaos in the economy, and i made very clear that i have no intention of letting their lobbyists work reforms necessary to protect the american people. if they wish to fight common sense consumer protections, that's a fight i'm more than willing to have. the way i see it, having recovered with the help of the american government and the american taxpayer, our banks now have a greater obligation to the goal of a wider recovery, a more stable system and more

broadly-shared prosperity. so i urge them to work with us in congress to finish the job of reforming our financial system to bring transparency and accountability to the financial markets, to insure that the failure of one bank or financial institution won't spread throughout the entire system and to help protect consumers from misleading practices like credit and debit cards with mortgages and auto and payday loans. now, i should note that around the table all the financial industry executives said they supported financial regulatory reform. the problem is there's a big gap between what i'm hearing here in the white house and the activities of lobbyists on behalf of these institutions or associations of which they're a member up on capitol hill. i urged them to close that gap, and they assured me that they would make every effort to do so.

in the end, my interest isn't in vilifying any one person or institution or industry. it's not to dictate to them or micromanage their compensation practices. to insure that consumers and -- my job is to insure that consumers and the larger economy are protected from risky speculation and predatory practices, that credit is flowing, that businesses can grow and jobs are once again being created at the pace we need. some of the banks and financial institutions have taken small but positive steps to improve lending to small and medium-sized businesses as i indicated. they've begun reworking mortgages that are now underwater because of declining home values, and they have acknowledged that much more needs to be done going forward. many have begun to follow our lead in shifting from paying huge cash bonuses to awarding long-term stock which will encourage more prudent decision making.

but, as i indicated in this meeting, they certainly could be doing more on this front as well. these efforts reflect a recognition, ultimately, that the fate of our financial institutions is tied to the fate of our economy and our country, and these institutions can endure if workers don't have jobs and businesses can't grow and consumers don't have money to spend. ultimately, in this country we rise and fall together. banks and small businesses, consumers and large corporations, and we have a shared interest in working together to insure a lasting recovery that will benefit all of us and not just some of us. i called today's meeting with this in mind, and i told the group that i look forward to continued engagement and progress in the months and years ahead. thank you very much. >> the u.s. senate is about to meet for day 12 of debate on health care legislation. senators took a break over the weekend to pass a federal spending package, and now they're returning to health

care. several amendments are pending to the bill including one to allow u.s. citizens to buy prescription drugs in other countries and bring them into the u.s. and a couple of others deal with tax provisions in the bill. off the floor senators have been waiting for the congressional budget office to come up with cost estimates for a plan to replace the public option in the bill. democrats will be caucusing this evening to discuss the situation, and now live senate coverage here on c-span2. forgive us for becoming impatient, for being too busy, too distracted, and too quick to speak or act. forgive us for not taking time to think or to pray. bless our senators in their work. may they labor with integrity and faithfulness, cheerfulness

and kindness, optimism and civility. lord, keep them ever mindful of life's brevity and of the importance of being faithful in life's little things. help them to seek to serve rather than to be served, following your example of humility and sacrifice. we pray in your sacred name. amen. the presiding officer: please join me in reciting the pledge of allegiance to the flag. i pledge allegiance to the flag of the united states of america and to the republic for which it stands,

one nation under god, indivisible, with liberty and justice for all. the presiding officer: the clerk will read a communication to the senate. the clerk: washington d.c., december 14, 2009. to the senate: under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the honorable mark warner, a senator from the commonwealth of virginia, to perform the duties of the chair. signed: robert c. byrd, presidet pro tempore. mr. reid: mr. president? the presiding officer: the majority leader. mr. reid: following leader remarks the senate will proceed to morning business with senators being allowed to speak for ten minutes each. the republicans will control the first 30 minutes. the majority will control the next 30 minutes. we're working on an agreement to line up votes on the subject of competing agreements with respect to health care reform legislation. pending is the crapo motion, baucus side-by-side on taxes, dorgan amendment, lautenberg

alternative. we have four amendments we need to try to work something out on. it's not done yet but as soon as it is worked out, we'll notify senators. every day we don't act it gets more expensive to stay healthy in america. if you're fortunate enough to have health insurance, this isn't news to you. your premiums have more than doubled in the last decade even though the quality of health care has not doubled. if you're fortunate to have coverage, you might have noticed you're paying at least an extra thousand dollars to cover all the families who don't have health insurance. those with insurance know if their premiums eat up more of their paychecks, they have less money to take home to their families. economists tell us if we do nothing, those costs will continue to climb and climb.

economists tell us that that is without question. if we don't do something, the costs will continue to increase. mr. president, very recently the president's council of economic advisors crunched the number, and this respected group tells us the bill before the senate will indeed keep health care costs down. lower costs are good for every american. it means more people who don't have health insurance today will be able to afford it and those who do have insurance will have more stability and security. the white house economists highlighted a number of other positive effects for our bill. the amount our government spends on medicare for seniors and medicaid will be much less than if we don't act. our nation's deficit will be much lower than if we didn't act. health care costs will be much lower than they would be if we didn't act. with this bill, family's incomes will increase more than they would if we didn't act. the same is true for job

creation. small business growth and our overall economy. after all, health reform is economic reform. when you're not spending so much of your paycheck on premiums, you have more left to feed your family and to fuel our economy. we also know that a healthier workforce is a more productive workforce and a more productive workforce means a healthier economy. those who don't want to us act have a strong rebuttal on doing nothing. this bill will save lives, save money and save medicare. that's the reality. that's why we're working to make it possible for every american to afford a shot at a healthy life. it's a goal that will make our economy stronger and make our citizens healthier. it's a goal with an eye to the future, our children, one that appreciates the longterm effects of what we do here. the other side has a goal of its own, one that dismisses longterm benefits of acting and longterm

costs of doing nothing. as we're working to slow the growth of health care costs, they're working to slow down the senate. in fact, they'd like to bring this body to a screeching halt. talking points meant to scare seniors to show how unhealth year our health care system is. we won't be tkraeud by those -- derailed by those who are working for us to fail. we won't be stopped by those who are trying to stop history in its tracks. would the chair now announce morning business. the presiding officer: under the previous order, the leadership time is reserved. there will be a period of morning business with senators permitted to speak for up to ten minutes each, with the republicans controlling the first 30 minutes and the majority controlling the next 30 minutes. a senator: mr. president? the presiding officer: the senator from tennessee. mr. corker: i'd like unanimous consent for republicans to be

able to speak as a group over the next 30 minutes. the presiding officer: without objection. mr. corker: mr. president, i thank you. i rise today to speak about the health care bill that is before us, and one of the major points of contention over the last two weeks has been the fact that medicare savings are being utilized to leverage an entirely different entitlement and not even taking care of the s.g.r. issue that is so important to physicians around our country. the other important stat is the fact that half of the medicare -- half of the expansion in health care benefits that is accruing under this bill is under medicaid, probably the worst health care program in america. mr. president, after a year of discussions among many folks on a bipartisan basis, ending up in

a very partisan bill, the fact that half of the expansion is occurring in one of the worst programs that exists in our country, locking people at 133% of poverty into medicaid with no other choice does not seem to me to be true health care reform. and i know that the senator from new hampshire who has spoken eloquently on this has something to say about that. mr. gregg: i thank the senator from tennessee for opening this discussion on the issue of medicaid. but i did want to ask a couple of questions relative to what the senate leader just said about the bill that's before us. we've got to remember the bill that's before us, all 2,074 pages as i understand it, isn't the bill we're going to actually consider. there is somewhere in this building a hidden bill known as a manager's amendment which is being drafted by one or two or three people on the other side of the aisle and which is going

to appear dais ex-machinists. we don't know what's in it. the president doesn't know what's in it. nobody knows what's in it. but they're designing this bill, it's going to be represented to expand medicaid even further and to also ofrt ability to people -- offer the ability to people age 55 and older to buy into medicare, which is going to have a huge impact. but what the senator from nevada said, which i wanted to ask the senator from tennessee about, he said that this bill before us, this 2,074-page bill which we know is what we're working off of, is going to reduce health care costs. is it not true that the president's actuary, the actuary for c.m.s., who is the president's actuary, sent us a letter who said health care costs in the first ten years will go up. and the majority leader also

said people will be able to keep their insurance. is it not true that the president's actuary said that millions of people will lose their own insurance thupbd bill? and -- under this bill. and further, is it not true in the area of medicare that the president's actuary actually said that in the area of medicare, the expansion and the medicare cuts in this bill that are before us -- the democratic bill -- would actually lead to a massive reduction in the number of providers for medicare. up to 20% of the providers in medicare would become unprofitable and, therefore, would have to leave medicare making medicare unavailable. did the actuary not also say in the area of medicaid "it is reasonable to expect that a significant portion of the increased demand for medicaid would be difficult to meet, particularly in the first few years."

and that's because providers would no longer be profitable and have to leave the business. rural hospitals, small clinics. are not all those three points true relative to what the president's actuary said? do not all three points contradict the representations of the majority leader? mr. corker: not just his representations, but the representations of the president of the united states. as a matter of fact, it's hard to understand any goal that's being achieved other than making sure that our country has huge indebtedness. but the senior senator has talked about this very subject you're talking about, about medicaid, in essence giving people a bus ticket where there is no bus because of the fact if we add these people to a position where 40% of the physicians don't take it, in essence you have people

accessing a system where there aren't providers to care for them. i don't know if the senior senator from tennessee wants to expand on that? mr. gregg: i thank the senator, senator corker from tennessee. mr. alexander: we have our usual situation here on the republican side. a lot of senators wish to speak on the subject of medicaid. i'm going to keep my remarks briefly. but looking around, i see one, two, three, four of us have been governors of a state. the presiding officer was governor of the state of virginia. senator corker himself was mayor of chattanooga and the chief operating officer of our state government. why do i bring that up? because the medicaid program that we're discussing -- and i know to many people listening to this it gets confusing. medicare is the program for seniors 40 to *f million to 45 million depend. we talk about how the cuts from medicare are going to be used to

pay for this bill. but we've not talked as much about medicaid, which is an even larger government program. 60 million people depend on medicaid. they're low-income people -- in order to be able to qualify for the program. and this bill would add 15 million more americans to the medicaid program, which as senator corker said, is like giving someone a bus ticket to a bus line that only operates half the time because about 50% of the time new doctors. doctors won't see new medicaid patients. but there's another problem with the medicaid proposal which all the governors here, i know they're like me. nothing made them any angrier than to see a bunch of washington politicians come up with a big idea, announce it and take credit for it and then send me the bill. usually we'd find them back at

the washington day dinner making a big speech about local control. what happens here is a huge bill for this medicaid expansion that's going to be sent to the states. and i would say to senator corker, has not our governor, a democratic governor, governor bredesen whorbgs like all of us has strug tkeld with paying for medicaid -- struggled with paying for medicaid, has he not said this will cost about $750 million in added expenses? and i would ask the senator from tennessee 10, wouldn't that require big tax increases to pay for it? a senator: as you pointed out in california, it was almost an insurrection moon students because of the high cost of tuition because of the fact that other programs in the state were eating up money. mr. corker: the same kind of thing will happen in states across the country. our governor, who probably knows as much as anybody about health

care, is very concerned about what it's going to do, hoping that the revenues reach 2008 levels. so he's very concerned. senator johanns from nebraska has been a governor. i'm sure he has some things to add to this debate. mr. johanns: i do have some things i would like to add to this debate. you know, i've gone across the state. i talked to hospital administrators, and i always ask them the same question: if you had to keep your hospital open on medicaid reimbursement, could you do that? with no exception, from the largest to the smallest hospitals, they say, mike, we would go broke because the medicaid reimbursement is so bad. no question about it, that is bad news for the hospitals. but go ask any governor, it doesn't matter if they're democrat or republican, and the senior senator from tennessee is so right. nothing would irritate governors more, nothing would get us in a

more bipartisan furor, than the politicians in washington passing something, taking all the credit for it, and then sending the bill to the state taxpayers. i'll give a speech on this to really nail this down in the next couple of days. but, you know, states have very limited options. they can raise taxes or they can cut very valuable programs like education, k through 12 education, higher education. and already states are struggling. we just, in nebraska, had a special session where our governor and our legislature stood up and said we have to cut spending and they cut over $300 million. can you imagine if i were to call them later on a couple of weeks from now and say, i know you did your very best at that special session, but we just sent you another bill for millions and millions of dollars over the next 10 years that you have to deal. with and the final point i would

like to make is: do you realize what we are doing to the people that will be putting on medicaid? already 35% to 40% of the physicians won't take medicaid. why? because the reimbursement rates are so incredibly pitiful. if you're at 133% of poverty, we basically lock you into medicaid and it's like giving somebody a driver's license, but then saying there's no way you can ever get a car to drive because, look, here's the problem. they can't get medical care no matter if they have that medicaid card or not. and what it will do to our health care system is literally bring it to its if these. because you're going to have this massive rush of people who have the medicaid card in hand, and we don't have the capacity to deal with it. the doctors, the hospitals are all going to be in trouble because of this. so it is just the wrong policy

for a whole host of reasons. a senator: you know, i read a story this weekend in "the new york times" where medicaid recipients, especially young medicaid recipients, have huge prescriptions taken out on them for antipsychotic drugs. mr. corker: because basically the physicians don't want to taict time to deal with them. -- the time to deal with them. so they're huge users of that. to speak of physicians, it is important to talk to one. fortunately we have one our side, senator barrasso, who has treated many medicaid recipients, and i know he has a lot of say on this topic. mr. barrasso: i have a couple of things to add because you make a point and senator johanns. the concerns are, are there going to be enough doctors to take care of these patients. you're talking about 18 million more people placed on the medicaid rolls, which is a huge

unfunded mandate to the states. and practicing in wyoming for 15 years, taking care of lots of patients on medicaid, it becomes harder and harder for doctors to take new patients on medicaid. there's an article in this week's "tribune eagle," "doctor shortage will worsen. as many as one-third of the practicing doctors will retire by the time the additional 18 million get on medicaid." there's an article in "the wall street journal," and it talks about a report from a -- a research group, nonprofit, based in washington, the center for studying health system change. and it says as you previously stated, nearly half of all the doctors polled stopped accepting or limited the number of new medicaid patients. that's because many medicaid programs straining under surging costs are balancing their budgets by freezing or reducing payments to doctors. and that, in turn, is driving

many doctors, particularly specialists, out of the program. and for people in wyoming, whether cokeville or camer or casper, all of these communities, we're looking to recruit physicians. it is making it much more difficult when we look at the health care proposal which the democrats have, it will raise taxes, cut medicare, cause premiums to go up for people who have insurance. one of the reasons is that it underpace so much for things like medicaid. yet, they're talking about putting another 18 million people on medicaid. so this morning i called one of the offices of a physician group in wyoming and said, you know, what are the differences in terms of medicaid v. veg rar insurance and for something like carpel tunnel, we know about the overuse of the wrist and carpel tunnel surgery where the fee is $2,000 for the surgical fee, the medicaid, itself, reimburses

less than $500. medicare, and they're talking about putting a lot more people on medicare, reimburses less than $400. so it is very difficult, if you're trying to run an office and pay all of the overhead expenses and see everybody who wants to see you to do it on the fees alone that you get from medicare or medicaid. and that's why i have great concerns if they put all of these people on medicaid. will it actually help them get care? i think that this -- this democrat proposal that we're looking at fails. it fails in terms of getting costs under control. it fails in terms of increasing quality or increasing access. but those are the things that we need in health care reform. and i see my colleague from florida is here, who has experience, running a governor's office chief of staff. and he want -- he might want to add in as well. i don't see how this is sustainable. as a matter of fact, the report that came out recently, from

c.m.s., the group that overcease all of this says that it is not sustainable. one of the hospitals by 2020 and one out of five doctors groups would have to go out of business and close their doors. mr. corker: it's pretty amazing when you think about it a 2,074-page bill, the largest expansion of medicaid in the history -- in the history of the program. it would take about one page of that 2,074 to expand medicaid and do no reform and yet, that's where 50% of the expansion is taking place. the 2,073 pages remaining don't meet many goals -- any goals, other than access, any goals that americans would stand behind. so i know the senator from florida, who's spent a lot of time on this issue, a value added member, i know you want to speak on this topic. a senator: i appreciate my colleague from tennessee. i didn't have the honor to be a governor, but i got to sit in the office next door to be the

governor's chief of staff. we had the issue of trying to balance budgets. unlike the federal government, which is out of control, states have to balance their budgets. mr. lemieux receipts have to meet -- mr. lemieux receipts have to meet expenditure. in florida $18 billion is what we pay for medicare it is the largest budget in the state of florida. what happens? you have to cut education. you have to cut public service programs that do things like law enforcement. mr. lemieux: correctional facilities. you hurt the other main functions in government if you keep adding in medicaid. i want to highlight a point that my colleague from tennessee made. it happened when we went through the chief actuary's report for medicaid and medicare services. this plan that the democrats have put forward, all it is is the expansion of medicaid. let's be honest, this is

medicaid for the masses. 33 million people supposedly are going to be covered by this plan if it's implemented. how do those numbers add up? 18 million from medicaid. 20 million go into the new exchange and then we lose five million because their employer drops them because they can go into the exchange. so the majority of the people who are going to go under this new health care reform, what are they going to get? they're going to get the worst health care system in america called medicaid. a system where doctors won't participate. if the doctor's not in, it's not health care. so this is not all that it is cracked up to be. i did back in the envelope math. $2.5 trillion to put 18 million people into medicaid. we could give all those peopl people $166,000 each, put it into an account and say, here, fund your health care for the next 10 years. or we can create this huge government program theaks pandz

a program -- that expands a program that most doctors won't see. my colleague, dr. barrasso, has got it right. 40% of the doctors won't take medicaid. 50% of the specialists. how is this health care reform? i know my colleagues here have a lot of experience on this issue. i see my colleague from mississippi looks likes he has a great chart that looks like it will talk about increased medicaid spending. mr. wicker: yes, i appreciate so many of our colleagues being here today. i'm glad we're really getting into the medicaid aspects of this bill. there's sort of been a feeling around this bill in the last couple of -- building in the last couple of days that if we take care of the medicare buy-in and the government-run option, that this deal with be ok. i think today today we're bursting that myth and pointing out the huge unfunded mandate that the medicaid portion would put on almost all of the states. every state in red here would be

required, under this bill, to increase their medicaid spending. only the -- vermont and massachusetts would not have to be mandated by us in washington to do this additional spending. and, of course, with the unfunded mandate, what the federal government is saying is, we think this is a great idea. we think people should be covered with additional medicaid programs and, by the way, you folks at state level should come up with the funds to pay for it. and that is the very think that the of an unfunded mandate. i'm not a governor, nor have i been a chief of staff of a governor, but i have a letter from my governor who -- governor haley barber, who says, "if the current bill which would expand medicaid up to 133% were enacted into law, the number of mississippians on medicaid would increase to 1.37000 or one in

three citizens. this would cost mississippi's taxpayers $1.3 billion. the generosity of this congress would be to tell the legislators or the taxpayers of my state of mississippi, congratulations, we get more coverage, and, by the way, you have to pay an additional 1.3 billion, necessarily requiring mississippi to raise taxes in order to continue vital programs such as education and public safety. as has been pointed out, our state governments don't have painting press. they have to -- a printing press. they have to balance the budget and make the numbers come out at the end of every year. we're putting a new burden, if we pass this legislation unamended, it's going to be a tremendous burden on -- on our governors. now one other thing there's been mention of the governor of tennessee who is a two-term,

respected democrat, who knows a little something about health care. i think the actual quote last summer from governor phil bretterson was that he feared congress would bestow the mother of all unfunded mandates on the state of tennessee. i have here in my hand and we don't have time because we have so many people who want to speak, i have 13 quotes, not from republican governors, like governor haley barber of mississippi, but democratic governors all across the nation including the newly elected governor -- democratic governor's association chamber jack marble and 12 others saying that we cannot afford, we cannot accept at the state level this unfunded mandate upon this number of states. mr. corker: thank you, that was very good. i'm hearing some comments about there being a wink and nod process taking place. which is what we have sort of

have happening right now with the bill. we don't know what's in it. but i understand that there may have been a tilt by the leaders of the democratic governors, saying if you're not going to raise much cain here, we'll trust you down the road. mr. wicker: here's the problem, if they take care of the governors down the road by saying, we're going to send the money to washington to take care of this, then all of this talk about the program cutting costs at the federal level goes out the win yoasm -- the window. somebody will have to pay for it. either gin up the printing press here, borrow more money from china and send it to the states which i guess is what senator was referring to, or we're going to pass the unfunded mandate on to the taxpayers of 48 of our states. mr. corker: so many senators, so much participation, so little time. i think there are about six

minutes left. the distinguished senator from utah has not yet spoken. the distinguished senator from idaho and former governor has not spoken. and then i wondered if the distinguished senior senator from new hampshire might close us out in the remaining time just to bring this all to a -- to a climactic conclusion. the senator from utah. mr. hatch: i have really appreciated all of the comments of my colleagues. you're right on. you know exactly what you're talking about. if this bill becomes law, the congressional budget office estimates that by the year 2019, 54 million nonelderly, nondisabled americans will be locked into medicaid. think about that. americans with incomes below the 133% of the federal poverty level are not eligible for tax credits to purchase private coverage through the exchange. just take a few minutes more. i would like to read a part of a letter i received from our utah governor, gary herbert, who has

worked in almost every job from local government right on up to governor of the state. about the medicaid expansions included in the reid bill. my governor is deeply concerned about the impact the proposed medicaid expansion will have on individual states. here's what he said." in utah, we have a good system of public medical programs that provide for our neediest population. the extension of medicaid to additional populations is discussed in proposed federal health care legislation will amount to an unfunded mandate that would create financial havoc for our state. while i understand the idea that everyone must 'share in the pain ' and increase the commitment to sharing in health care without increasing the size of the federal deficit, to force costs on to the states will simply shift massive cost increases to the states. and as we prepare the state's fiscal year 2011 budget, we face continued cuts to agency butts

and reduced government services on top of painful reductions made last year. the unfunded mandate of a forced medicaid expansion will only exacerbate an already dire situation. if required to increase our medicaid program as envisioned in washington, utah and most every other state will be forced to fund the money to do so through other means. this will require states to either raise taxes or continue to cut budgets in areas currently suffering from a lack of funding such as public education and higher education. we must work together to ensure that no new requirements for states to fund health care for additional populations pass." so in summary, i ask my colleagues if the reid bill is signed into law and the medicaid expansions go into effect, what will the states do to make their budgets work? according to utah governor herbert, states will be looking at a variety of options such as cutting education programs and raising taxes.

it would just devastate the states as governor barbour has said and almost every other governor when they think about it will say. i'm sorry i took so long but i thought that was an important point to make. mr. corker: you have been a leader in making sure that people throughout this country have appropriate health care. i thank you for those comments. i think no one better to respond to that than a former better and senator from idaho, jim risch. senator risch: this is going to be a tax increase. it's not included anywhere. it's not talked about anywhere. but there is no way the states can deal with this except with massive tax increases or massive cuts in education. most states i'm sure like idaho, about two-thirds of your budget, is spent on education and about 10% of it is on public safety,

and you do have about 20% that's on social services. unless you have been a governor, you can't understand how difficult it is to control what has become an expanding black hole in medicaid. mr. risch: you know, the first social program that this congress came along with was social security. they decided they would do it and fund it. the second one they came up with was medicare. they decided they would do it and they would fund it. then along came medicaid and some genius here decided well, the feds will only pay 70% or so and we'll make the states pay 30%. well, everywhere around the country, governors are saying don't do this to us. the dozen of us here that are former governors were asked to participate in a conference call a couple of weeks ago, and i participated. i didn't -- i listened. i didn't talk. i didn't need to talk because there was great bipartisan support for killing this bill. and the most vocal people were democrats. the most vocal governors were democrats saying we cannot

tolerate this kind of an increase, and that's what's going to happen under this bill. i'm sorry none of my friends from the other side of the aisle are here with the exception of our good presiding officer, but senator wicker, could you take off -- could you take the top one off of there? if my friends from the other side of the aisle were here, i would tell them pay attention to the polls because that is what america is going to look like on cnn next november 2 in the evening if you continue down this route. thank you, mr. president. mr. wicker -- mr. corker: thank you voach. mr. corker: i want to say to the senator before i hand it off to him when i was in my 40-something-plus town hall meetings since this debate began, our citizens said to me that they wanted the same choices that i had as a united states senator. this expansion for the american people is mostly being done in

the area of medicaid, and i don't know if you have any comments to that effect nor if you have the comments whether we as senators ought to be in medicaid if this is our idea of health care reform, but i certainly hope you will close us out, and i thank you for your tremendous contribution to this debate. mr. gregg: i thank both senators from tennessee and the other senators here for their excellent comments. basically, i would say this, and i think the senator from tennessee is alluding to it relative to his town meetings. this isn't good for people, this proposal, this expansion of medicaid. it's not good for people who are on private insurance because their insurance is going to go up and a lot of employers will have to drop insurance because it's too expensive. it's not good for people getting medicaid because the number of people who will be willing to see them is going to go down. that's what the actuary is telling us and that's what common sense tells you when you're only paying 60% of the costs of seeing somebody, people are going to stop seeing you. it's not good for everybody in all those states up there, all those red states because their taxes are going to go up because the states are going to get the bill for this.

the states can do nothing but raise their taxes. so it's not good for people, this proposal, it's certainly not good for health care, and it's not good for this country, in my opinion. the presiding officer: the 30 minutes has been consumed. mr. corker: well, if there is -- i'm sure the senator from tennessee, our senior senator, if there is time remaining and no one here to claim it, is always good at explaining the tremendous deficiencies of this bill. mr. alexander: senator corker, i am impressed with the number of senators who have come here. one thought comes to mind. some of my colleagues might want to talk about it. i woke up one day and saw on the television a big sign that says 32% tuition increase for the students of california. now, the university of california is one of the -- could be the best public institution of higher education

in the world, and one of the great things the united states has that keeps us competitive, that gives us a chance to continue to grow and create new jobs is a superior system of higher education, and about half of the best universities are harvard, yale, the private universities, but many of them, half or more than half are public universities where tuition is a few thousand dollars a year. well, what's going to happen with this? all of us who have been governors have gone through this budget process. you get all the way to the end and you have one pot of money left and what's your choice? it either goes into higher education or it goes into medicaid. and for the last 30 years, we have been having to fight to fund medicaid and as a result states have not been funding public higher education properly, and the quality has gone down and the tuition has gone up. and so what is this bill saying? it's going to say after three years, we're going to dump a huge new cost on the states,

and -- and i don't believe i'm overstating it when i say that in our state of tennessee, given the terrible fiscal condition our states are in today -- and our state is more conversationively run than most -- i believe our state could only fund this through a new state income tax and/or serious damage to higher education or both. and i wonder if that's not the case in all the other states represented here? mr. corker: you know, you saying what you just said, i was looking across the other side and realized that there is no one on the other side here, and i'm sure there are scheduling conflicts. this is one of those issues -- i know that on medicare, the other side has been able to argue that they are extending the life of medicare and yet senator gregg so clearly pointed out yesterday on national television that that's impossible because they are taking those savings to pay for a new entitlement program so really at the end of the day it will not extend the life in any way, and we all wonder why those

savings are not being utilized now to make medicare more solvent, but i do wonder what my friends on the other side of the aisle would argue in favor of the largest expansion of medicaid. i mean, i think that would be a pretty hollow argument. i think everyone knows that it was all about money, that this was the cheapest way to try to meet some goals by passing it off to states. i'd love to hear somebody on the other side argue how health care reform where 50% of the people that are being added are being thrown into the worst program that exists in america, i'd love to hear someone on the other side of the aisle argue how that's good for our country. i know that senator gregg, senator alexander, myself, and many others have signed onto legislation that would actually give low-income citizens choices among private companies, and

with that, vouchers, nonrefundable tax credits for them to be able to pay for that. now, that's health care reform, and that's something that creates robust competition, and certainly we wouldn't have these low-income individuals locked into the dungeon of the worst health care program that exists simply because it's cheap, making in essence the value of their health care less than the values of us here in the united states senate. but i would love to hear anybody, anybody on the other side of the aisle argue for expanding medicaid, how that's a good thing for the citizens that it covers. i now see that we have someone from the other side of the aisle here. mr. president, i don't know if we still have time to talk. i know senator johanns had some choice comments to make. a senator: mr. president? the presiding officer: the senator from louisiana. the time for the minority has

expired. ms. landrieu: thank you, mr. president. i rise to speak about the ways in which small businesses will be helped in this bill, and before my colleagues leave the floor, had some of them stayed at the negotiating table, perhaps some of the provision that is they have talked about could have been considered, but since they pretty much packed up their bags months ago and left the debate and just come to the floor to talk, it really is -- is very difficult to put any of their provisions in the legislation. there were some amendments that were accepted both i know in the senate on the finance committee and the "help" committee, but the fact is there is a lot of choice in this bill. there are a lot of choices for individuals, for small businesses, and there is help for americans and for businesses not only in the state of louisiana which i represent but all the states in the union.

because as you can see, mr. president, without reform, the cost of -- for small business will rise from -- or the jobs lost because of the lack of reform will rise from 39,000 to 70,000 to 103,000, 137,000, 178,000. these are jobs lost because small businesses are having a very, very difficult time affording premiums and because of a lack of reform in the private insurance market, which this bill also provides. this trend line will continue unless we do something, and that's why many of us are here working early in the morning through the middle of the day into late at night, trying to figure out the way to reform this system. so i really respect my colleagues. i know them all very well, and

they made their statements to the record this morning, but the fact of the matter is, mr. president, we have been at this since harry truman was the president. we can't throw this bill away and start all over again. there is choice. there is expansion of medicaid and reform to the medicaid system. there is going to be a strengthening and reform of the medicare system. and in the middle, there is great strength and reform of the private insurance market, and i am a very strong supporter of choice and competition. but i came to the floor today to speak about a segment of our population, 27 million, to be exact. that's the number of small businesses, mr. president, that are depending on us to do our very best work on the patient protection and affordable care act that is pending before the senate as we speak. our economic prosperity as a nation, as you know, as a former

governor of virginia who helped bring millions of jobs to your state and now is a leader, mr. president, on small business yourself, you know that the economic prosperity of our nation relies in large measure on how we could help our small businesses become the economic engines that we know they can be to help lift us out of this recession. entrepreneurs roll up their sleeves and go to work each and every day. they go early to work. they stay late. they create jobs. they push the envelope on technical advances, and they assume the risk necessary to succeed in the private marketplace. small businesses created 64% of american jobs in the last 15 years. according to the small business administration and others. and yet as chair of the senate committee on entrepreneurship, i've heard time and time again from these same business owners that they cannot afford to operate in the current broken health care system and they

desperately need us to fix it, and that's what this effort is underway. small businesses have been hard hit by premiums that are regularly increasing at 15%, 20%, and in many cases, mr. president, 45%. this is the cumulative cost of health benefits. you'll see in 2009, $15 $156 million. without reform -- billion. without reform, it's going to go to $717 billion. and then in 2015, exceed the $1 trillion mark. this is what happens if we do what my colleagues are urging us to do and do nothing or to start again. we have been, as i said, since harry truman was the president, trying to figure out a way to provide each and every american with affordable health insurance, either through the

public or the private sector or some combination of the above. that's why this bill is so important, because without reform, this is the price our small businesses will have to pay and it is too steep, it is too high of a mountain for them to climb. without these reforms, as i said, costs are expected to more than double over the next 10 years, but, mr. president, this debate is not about numbers, it's about people. people like mike barry who owns hobbyworks in laurel, maryland, and who was here just last week in the capitol to speak at a press conference. i've had hundreds of business owners from all over the country come and mike is one of the last ones to come and speak at a press conference last week. he said to us that his plan not too long ago cost only $100 a person, most of which he was happy to cover as a company. over the years, however, his

premiums have tripled, his employees have seen their costs go five times higher as they pay more of their premiums up to almost a $1,200 deductible. mike said, and his words are echoed by business owners in my state and business owners around the country, he said, "those of us who do provide coverage are slowly being dragged down by these costs. something that we once considered a benefit," a benefit, he said, "i was proud to provide, has now become to be seen as a burden, a burden to be feared, because you just don't know what's coming next." he went on to say, "after years of astonishing rate hikes and declining competition among providers, many small businesses like mine may be only one or two years away from having to cut their health care programs entirely. not going to let these premiums," he said, "put me out

of business. i'm just going to say we can't do it anymore." and, mr. president, this is what's happening all across america. only in about 15 years ago, 65% of small businesses in our country offered affordable health insurance, something they were proud to provide full and comprehensive coverage, many of them picking up a majority of the costs. today that has dropped 30% and dropping every week that we fail to act. small business owners like mike from maryland, small business owners like hundreds in my state need meaningful ar meaningful he reform. the senate health bill contains measures that will both responsibly pus in place both intermediate and long-term insurance reforms that are very, very important. let me start with the immediate benefits. i understand that there are others -- there are some, including myself, that would like to see more immediate

benefits here but these are some that are important, substantial and real. temporary insurance for early retirees will be available under this bill. this will help many in a very tough stage in their life. states may establish exchanges to get kind of a jump on, of course, the mandatory date that is in the bill. no annual limits and restricted lifetime limits. this will be a very important benefit to small business. reporting medical loss ratios for the first time insurance companies will have to report information that will help keep the costs lower over time. bring more transparency and accountability to the system. the bridge credit for small business will go into effect almost immediately. it will help businesses that have 10 employees or 25 employees to provide health coverage for their workers.

and then in the intermediate -- in the intermediate time frame, there's some additional. they're -- the exchanges would be set up by 2014. when people talk about choice on the other side, there's going to be plenty of choice in this bill for uninsured individuals, for those that are in small businesses up to a hundred employees, they will be able to access these exchanges, look for affordable options, and that is going to be a major improvement over the current system. there's a bridge credit, a credit that i call a bridge credit, a bridge to the exchanges for small businesses. and then once the exchanges are up and running, businesses will be able, 10 and 25 employees or less, to be able to get almost

35% credit for the insurance they provide. and that, mr. president, is in addition -- that, mr. president, is in addition to the deductibility that they have in the current law. i'd like to ask unanimous consent to speak for another five minutes. the presiding officer: without objection. ms. landrieu: thank you. while one of the major criticisms of this bill has been the cost, the bill does show fiscal responsibility, cutting budget deficits by $127 billion in the first decade and $65 $650 billion in the second decade. you know, anything we do is going to cost some money upfront to fix the system. but the way this bill is being designed is that for every dollar that's spent, there's a dollar raised to pay for that change. that is, you know, a refreshing change of method, considering

the last eight years, where bill after bill was put on this floor, whether for domestic or international priorities, not paid for at all. so, you know, we can be criticized for trying to push something, a major reform forward, but at least we're finding ways within the system to pay for these important changes that will hopefully drive down costs for everyonement as mike reminded me, the gentleman who spoke at our press conference, he said, "it's even more important not to let one problem prevent you from solving another. so while we do have budget deficit problems and we're very, very sensitive to it, we can't allow that to stop us from doing anything else. what we can do is, as we work on the other things, do it in the most fiscally responsible way possible. that is why i and many members of the senate have said we're not prepared to vote on anything until we get a final sib i c.b.. score to make sure that not only

can we afford it, and not only have we paid for it, but that over time premium costs will go down, costs to the government will go down, both federal and state level as well as to small businessesment let me just say that the business round-table reports that these exchanges, both in the near term and the intermediate term could reduce administrative costs for business owners by as much as 22%. and business owners can get ba back, if they're making shoes, they can get back to making shoes, mr. president, not running around looking for insurance that they can't find. and if they could, it's too expensive for them anyway. if they're building high-tech equipment or electronic equipment, they can get back into the business of doing that instead of being in the business of figuring out insurance actuarial tables. so reduce administrative costs for small business is important. 22 million self-employed americans have even more

unpredictable costs. their premiums have risen 74% since 2001. these exchanges will help them also reduce administrative costs. and i'm proud that one of the amendments that i have pending on the senate floor would give the self-employed a 50% tax deduction so that they can be on a similar playing field, if you will, for the small businesses and large businesses that enjoy favorable tax treatment under the current tax code. it's been mentioned before, but insurance companies will no longer be allowed to arbitrarily raise rates or drop coverage. instead, companies will be forced to compete on the price and quality of their plans, not by underwriting the least risk. the bill also has no employer mandate, instead, we have a

shared responsibility for businesses with more 50 employees. 96% of small business in america are exempt from the provision of required coverage, but we have come to terms with a system that requires individuals to purchase insurance as well as small businesses to provide insurance with the proper tax credits and subsidies that help them make it possible. to help small businesses more immediately bridge the affordability gap, these exchanges will not be up and running until 2014. again, there's an amendment to push that up. i hope we will be able to do that. but in the bill, tax credits will help about 51,000 businesses in my state of louisiana alone. they are -- there are millions of businesses that will be -- hundreds of thousands of businesses that will benefit. 51,000 in my home state of louisiana alone, because of the credits that are in the bill as

we speak and through the amendment process we're hoping to enrich and expand them. while these provisions in the underlying bill are strong for small business, there's always room for improvement. that's why i, along with many of my colleagues, have introduced a series of amendments. some have a cost to them, like the 50% deduction. it's a $12 billion cost. but if we can find it in the bill, if the mark allows us to find $12 billion, that would be a good place to spend it, mr. president, because these individual, whether they're realtors or attorneys or accountants or sole contractors, carpenters that are working out there creating a job for themselves and creating economic opportunity in their communities could as a tax cut and a tax credit to help them. there are a series of amendments that i've introduced that don't have any cost associated, just

common sense, create more efficiency in the system. i trust the leadership will consider including those. in addition, senator lincoln, under her leadership, has an amendment to expand both the bridge credit and the tax cred credit. it's a $9 billion provision but we're hoping that the mark will allow for that addition as well. i want to just mention a few other things in my closing. i want to thank the small business owners and organizations and advocates, mr. president, that have remained at the negotiating table. they didn't pack up their bags and run away but they stayed here in washington, in state capitals, on telephones, in conference calls, in public meetings, in the debates taking place in the many, many committee rooms to argue for this kind of reform. for choice, for transparency, for insurance market reform, for

tax credits, more favorable tax treatment to help them afford the insurance that they know is the right thing for them to do, it's the smart thing for them to do, and most small business owners want to provide good health insurance for their employees so that they can compete for the best employees out there which helps them to keep their businesses strong. so i want to thank the small business owners, particularly the small business majority, many of the women business owners organizations that have stayed at the table to help negotiator this important bill. so in conclusion, as we move forward, i'm prepared to work with my colleagues here in the senate to pass meaningful and responsible health care reform for small business. we have an historic opportunity here in washington to fix a system that is broken. that is in desperate need of repair. let us not let this chance slip away. in these final days of negotiation, let us come together to find a way forward.

again, one that reforms the private insurance market, strengthens medicare, and sustains its viability over a longer period of time, helps to improve the system of medicaid by hopefully providing poor, middle class, and wealthy people with more choices of health care, and by coming to terls, mr. president, that we're not going to have an all-public system, we're not going to have an all-private system. we're going to have to find a middle ground where we take the best of both sides, of a public and private system, and put them together so that every american can have insurance they can count on, and most importantly that our small businesses can have insurance that can help them create the jobs necessary to lead us out of this recession, to start turning this deficit situation around, and creating wealth and prosperity for all americans. i yield the floor. i see my colleague here, the

representative from vermont, and i thank the president, yield my time. mr. sanders: mr. president? the presiding officer: the senator from vermont. mr. sanders: thank you very much. mr. president, as an independent, let me try to give an independent assessment of where we are, which ain't easy because this is a 2,000-page bill, and different people have expressed different thoughts about it. i know that my republican friends are down here on the floor every day telling us that the world, as we know it, will rapidly come to an end if this legislation is passed, and yet i want to say to them, where were they for eight years? where were they? during the tenure of president bush, some 7 million americans lost their health insurance, health premiums soared, tens of thousands of people died every single year because they couldn't get to a doctor. where were they? very easy to be critical.

but it might have been a good idea if five, six, or eight years ago they were down here before the crisis erupted to the level it is right now. now, this bill, in my view, is far from perfect, and i am going to talk about some of the problems that i have with it, but i also want to very briefly outline some of the real assets, positive provisions, that are in this legislation. it is not insignificant that this bill provides insurance to 31 million americans who have no insurance. that is a huge step forward for our country. it is not insignificant that this legislation provides for major health insurance reform. finally, outlawing some of the outrageous behavior problems of the private insurance companies. practices such as denying people coverage for preexisting conditions, behavior such as not

renewing health insurance because somebody committed the crime in the preceding year of getting sick and running up a huge bill. it eliminates caps on the amount of money that people need. well, you know what? if people need cancer surgery, it is expensive. you can't tell them that there's going to be a cap on what they receive. this bill, importantly, says to families with young people that young people will get coverage until they are 26 years of age. that is a very, very important provision. all of those are very, very important steps forward. having said that, also let me mention that this bill is strong on disease prevention. you know, the senator from iowa, tom harkin, has talked about for years the need to understand why we are seeing more and more people coming down with cancer or heart disease or diabetes or other chronic illnesses which not only cause death and pain

and suffering but huge expenditures for our health care system. and it seems to me to make a lot more sense to get to the root of the causation of those problems, try to prevent them, and in the process keep people healthy, save our system substantial sums of money, and we have a lot of resources in there for disease prevention. so those are just a few of the positive elements that are in this bill, and i congratulate the people who have fought to make those provisions possible. but let me talk about some of the weaknesses in this bill and some of the areas where i have real concern. right now, mr. president, today we are spending almost twice as much per person on health care as any other major country on earth, despite the fact that our health care outcomes in many cases are not as good. can i sit up here or stand here with a straight face and say, we have got strong cost-containment

provisions in this legislation? that if you're an ordinary person that has employer-based health care, that your premiums will not go up in the next year? i can't say that. it is just not accurate. so we need to have in this bill as we proceed on it to make sure that there is far stronger cost-containment provisions than currently exist. and to my mind, at the very least, we must have a strong public option to provide competition to the private insurance companies, who are raising their rates outrageously every single year. what is to prevent them from continuing to do that under this legislation? not a whole lot, frankly. so the fight must continue for strong public options, not just to give individuals a choice about whether they have a public plan pour a privat or a privateo to provide competition to the private insurance companies. second of all, let me tell you

another concern that i have. right now our primary health system in this country is on the verge of collapse. there are people all over this country who cannot get in to see a doctor. in fact, we have some 60 million people in medically underserved areas, most of them can't get to a doctor, and what they end up doing is going to the emergency room. they end up getting sicker than they should be and they go to the hospital. a great expense to our system and a lot of human suffering. now, what i worry about, if we add 15 million more people into medicaid, if we add another 16 million people into private health insurance, where are those people going to get the primary health care that they desperately need? the system is inadequate now. it certainly does not have the infrastructure to address 31 million more people who are getting health insurance. now, the good news is that in

the house there is language put in there and fought for by congressman jim clyburn that would add $14 billion over a five-year period in order to see a significant expansion of community health centers and the national health service corps. community health centers today are providing dental care, low-cost prescription drugs, mental health counseling to some 20 million people. and what is in the house bill is language to greatly expand that program and also to expand the national health service corps, which provides debt forgiveness for medical students who are going to practice primary health care or dental care or nursing in underserved areas. we desperately need more primary health care physicians, certainly we have to change reimbursement rate rates. one way we can help is when medical school graduate students

are graduating with $150,000 in debt, debt forgiveness service will help them. this is an absolutely essential provision that we have got to adopt. we have to do what the house did and provide at least $14 billion more for primary health care, expansion of community health centers, and the national health service corps. now, there's another issue. mr. president, i know there are not many people in this institution who agree with me, although there are millions of americans who do, and that is at the end of the day -- at the end of the day, we have got to understand that one of the reasons that our current health care system is so expensive, so wasteful, so bureaucratic, so inefficient is that it is heavily dominated by private health insurance companies whose only goal in life is to make as much money as they can. we have 1,300 private insurance companies administering thousands and thousands and thousands of separate plans,

each one designed to make a profit. the result is, we are wasting about $400 billion a year on administrative costs, profiteering, high c.e.o. compensation packages, and all the other stuff, which goes with the goal of private insurance companies to make as much money as we can. now, i will be offering on the floor of the senate, i believe for the first time in history, a national single-payer program. and i look forward to getting a vote on that. i am not naive. i know that we will lose that vote. but i will tell you, mr. president, that at the end of the day -- not this year, not next year -- but sometime in the future, this country will understanunderstand that if we'g to provide comprehensive quality care to all of our people, the only way we will do that is through a medical single-payer system. and i am glad to offer that

debate by offering my amendment. but for the immediate moment, we have language in this legislation which must be improved, which gives state sta- individual states -- the right, if they so choose, to go forward with a great deal of flexibility in order to provide quality care for all of their people. many states may look at a single-payer, other states may look at other approaches, but i believe that it is absolutely imperative -- and i'm working with senator ron wyden on this issue -- to give maximum flexibility to states to be able to take the money that otherwise would be coming into their state, to use that for their own innovative health care programs, designed to provide quality, universal, comprehensive health care in a cost-effective way. some may choose to go single-payer. some may choose to go another direction. we have language in there which must be improved, so that states

can begin that process when the exchange comes into effect in 2014. mr. president, i want to just touch on two other issues briefly. the house has very good language in determining how we're going to pay the $800 billion to $900 billion that we're spending. and what the house says is that there should be a 5.4% surtax on adjusted gross income above $2.4 million for individuals and $4.8 million for couples. that means that nobody in this country who's making less than $2.4 million -- or less than $4.8 million as couple -- will pay one nickel. what we have here in the senate, unfortunately, is a tax on health insurance programs, which in fact will result in the middle class paying over a period of time a not

not-insignificant amount of money for -- as part of this process. the presiding officer: the senator has used his time. mr. sanders: i would ask unanimous consent for five more minutes. the presiding officer: without objection. mr. sanders: mr. president, in joining me are senators brown and senator franken are supporting this amendment, as well as the afl-cio, the national education association, the international brotherhood of teamsters, the communication workers of america, the united steelworkers of america, the american postal workers union, and many other organizations representing millions of americans. bottom line is, here at a time when we are in the worst economic crisis since the great depression, do you really want to ask the middle class to pay more in taxes as part of health care reform, or should we ask the wealthiest people in this country to start paying their fair share of taxes? and i think the evidence is overwhelming that we should do that. and i would point out that according to the consultants

mercer, the senate tax on health insurance plan, despite what you're hearing about a show of a so-called cadillac plan, c.b.o. has estimated that this tax would affect 19% of workers with employer-provided health coverage in 2016. so what we have got to do is junk the tax on health insurance plans, move to the house provision which says, let's ask the wealthiest people in this country to pay a modest amount in order to make sure that many more americans have health insurance. the last point that i want to make, mr. president, is the current bill that is being debated right now, a provision deals with the reimportation of prescription drugs. this is an issue that i have been involved in almost since i've been in the congress. i was the first member of the house ohouse of representativesf the congress to make americans into canada, across the dividing

line, in order to purchase low-cost prescription drugs. and i will never forget the reality that women who were with me from franklin county, vermont, ended up paying one-tenth the price for tamoxifen, a widely used breast cancer drug, than they had been paying in the united states. one-tenth the price for the same exact medicine. we've got to be bold. i know and you know that the drug companies are very, very powerful. they are delighted that the american people are paying by far the highest prices in the world for prescription drugs. that's good for them. they're making a lot of money. but it is not good for the average american who cannot afford to buy the prescription that his or her doctor is writing. we've got to pass prescription drug re-importation. we've got to lower the cost of prescription drugs in this country significantly. so, mr. president, bottom line

here is this bill has a number of very important features which i think will make life easier for a lot of our fellow americans. there are many problems remaining, and i hope that in the coming weeks we will successfully address those problems. and with that, i would yield the floor. the presiding officer: the senator from arizona. mr. kyl: i ask unanimous consent that senator nelson from florida be allowed to speak for ten minutes. after that that i be allowed to speak for ten minutes. after that senator murkowski speak for ten minutes. after that, senator dodd. and following that, murkowski for 20 minutes -- i'm sorry. and after that senator dodd. the presiding officer: is there objection? without objection. the senator from florida. mr. nelson: thank you, mr. president. mr. president, it is a wonder

that this health care bill has survived this far with so many people shooting at it. but survive it must, and survive it will, because it's the right thing to do. with a country that has 46 million people that don't have health insurance, that when they do get health care, it costs the rest of us a lot of money because they get it free in the most expensive place. that's not a system that is operating like it should, and that's what this whole thing is about. this whole thing is about trying to help people that can't get insurance get it. and those who desperately want it that can't get it, to be able to get it. and those that have it, to not be able to have it canceled on

them in the middle of their treatments. it's all about people that desperately want insurance, suddenly having an excuse from an insurance company, "no, you can't get insurance because you have a preexisting condition." and some of those preexisting conditions are the flimsiest of excuses. but what about those who have had a heart attack that desperately, desperately need health insurance after that? this legislation is all about folks who desperately want insurance, and they finally find an insurance company that will insure them, and then they can't afford it. now, why in america, in the year 2009 and almost 2010, aren't we

at the point of being able to give our people the confidence, the satisfaction, the loss of fright that they can't take care of their families if they get sick? that's what this legislation is all about. but everybody and his brother and sister are taking these pot shots, and every special interest that has got their finger in the pie, they want their share of the pie and to heck with anybody else. this is what we are trying to overcome. we're trying to overcome a system that has been built up since world war ii, over the last 60 years, that is inefficient and is not giving the health care to the people

that desperately need it unless you can afford it. so despite all of these pot shots, survive this bill, it must. and survive, it will. and we're going to pass this thing, and somehow we're going to get 60 votes here cobbled together to break this filibuster so that we can get on to the final passage of this legislation. now, i just want to give you one example. you remember that story, that famous novel, "a tale of two cities," about london and paris? well, i'm going to give you a story, a tale of two industries and what they're doing in this bill. one industry is the insurance industry and the other industry is the pharmaceutical industry, two industries that have an

enormous outcome and high stakes in how this legislation comes out. on the one hand is the insurance industry. they are running tv ads all over this country trying to torpedo this. if you watch those 30-second and 60-second ads, you would think this is the worst thing that is going to bankrupt america and that we're not going to have anybody giving insurance. well, why are they doing this? because they know they are going to have to suddenly act responsibly. they're not going to be able to have the excuse of a preexisting condition. they're not going to be able to canceling your policy in the middle of your treatment. you thought that they would come to the table when suddenly we were going to insure an additional 46 million people that they were going to get all of those premiums, but because

the subsidies were not enough for the poor people or that if they did not buy that insurance in the health insurance exchange that the penalty wasn't enough, the insurance industry said forget it. contrast that with the pharmaceutical industry. now, the pharmaceutical industry, to their credit, are still supporting this bill. and that is a very good thing. they are one of the few deep-pocketed industries that can go out and buy tv time and support this bill. but remember when i said everybody's got their finger in the pie? the pharmaceutical industry, i want them to know how much i appreciate what they've done but they can do more.

let me give you a case in point. they say in their so-called $80 billion contribution that $20 billion of that is to have a 50% discount on their brand name drugs in the doughnut hole. the doughnut hole is that vast amount of about $3,000 that senior citizens, once medicare helps them get up to it, it's about $2,300 above that all the way up to about $5,300. the medicare recipient doesn't get any reimbursement. it's not until that higher level that catastrophic coverage kicks in. what the pharmaceutical industry has said is they'll come in and give a 50% discount. and of their $80 billion

contribution, that's worth $20 billion. but here's what they didn't tell you. now again, i'm speaking very favorably for them because they are supporting the legislation. but this is what they didn't tell you. they did not tell with you that 50% discount that, number one, they're going to have increased sales of their brand name drugs to the tune of $5 billion over this ten-year period in the doughnut hole because they're selling more drugs in the doughnut hole and because that means more people get above that 5,300 level and get into catastrophic coverage that they're going to be able to sell incremental sales another $25 billion or total of increased sales of $30 billion. so they're going to contribute here $20 billion, but they're going to get $30 billion

additional. so they come out a net $10 billion over ten years to the good. what i would ask the pharmaceutical industry, who we appreciate, to do is come in and give 100% discount and by their own numbers has come up in a study by morgan stanley, by their own numbers 100% discount would cost them $40 billion over ten years, but they would reap back by morgan stanley's numbers, $60 billion, or they would be -- the pharmaceutical industry -- $20 billion to the good. so it's a tale of two industries. the insurance industry, which grabbed its bag of marbles, said you all are not making the penalties severe enough.

we're taking our bag of marbles and we're going home, and we're going to try to defeat your bill. the pharmaceutical industry, which is still hung in there but which can do a lot more. and i hope that as we get into these negotiations, mr. president, that they will be willing to step up and set the example of health care reform in america. mr. president,ive. -- mr. president, i yield the floor. mr. kyl: thank you, mr. president. let me talk for a moment about one aspect of the health care legislation that has been of great concern to our nation's governors. the presiding officer can certainly appreciate the problem here since among other governors and former governors, the presiding officer had the responsibility of balancing a state budget with one of the largest obligations being the

payment for the medicare -- excuse me -- the medicaid patients. my governor, jan brewer of arizona, was in town last week and she talked to me about the problem. she sent me a letter which in a moment i'll ask to be part of the record. but as a result of that conversation, i wanted to point out some things to my colleague and hope that we can revisit part of the legislation that's on the floor here. incidentally, before i do that, let me just note the fact that my colleague from florida referred a moment ago to a filibuster, and i want to be clear here that i presume he was not referring to republicans filibustering the bill since we have been asking to have votes on the pending amendment, which is the crapo amendment, since six days ago when that amendment was posited. as a matter of fact, the republican leader on sunday finally had to file cloture on the crapo amendment which will ripen tomorrow morning, to end the filibuster that the majority has been conducting. i understand the members of the majority have not been able to

decide how to proceed, but in the meantime we haven't been able to vote on any pending amendments. republicans would like to do that, would like to get some more amendments on and continue on with debate on the bill. for a bill this important, we should have been able to dispose of a lot more amendments than we have. so lest anybody believe there is a republican filibuster going on here, i would hasten to point out that that of course is not true. but let me talk about the medicare -- excuse phaoerbgs i keep saying -- excuse me, i keep saying medicare. medicaid features of this bill. it's against the backdrop of unemployment. as you get more people on unemployment, you're going to have more people on the medicaid rolls. arizona's medicaid has risen six points since june of 2007 and more people are eligible for our medicaid program, known in arizona as the access program. currently one in five arizonans is could have had through access. over -- is covered through

access. over 200 have enrolled since january. that's 20,000 new enrollees every month. we're talking about a substantial burden as a result of the recession that we're in on our state government. as my state and many others have had to deal with the challenges of the recession, declining state revenues, increasing need for certain state services, the last thing washington should do is to make things harder for the states. yet, that's exactly what the reid bill would do. the reid bill would require states to expand medicaid he will -- eligibility to all up to 133% of federal poverty begins january 1. there is even talk of raise that go to 150%. the federal government would foot the bill for two years. in 2017 the states would have to help finance this expansion. the congressional budget office

estimates that $25 billion in new state spending would result under the reid bill. and the arizona governor's office estimates this bill would require the state of arizona to increase its cost by almost $4 billion between now and 2020. the state of arizona doesn't have that kind of money. just the so-called wood work effect alone, meaning the number of currently eligible individuals that might enroll, would itself entail significant costs. there are about 200,000 arizonans currently eligible but not all are enrolled in medicaid. if only half of those individuals would enroll, it would cost the state $2 billion from 2014 to 2019. as i said, our state simply doesn't have the money to do that. our arizona governor wrote to chairman baucus stating her opposition to the medicaid, pangs, and at this point, mr. president, i would ask unanimous consent that her letter dated october 6th, to chairman

baucus be included in the record at the conclusion of my remarks. the presiding officer: without objection. mr. kyl: let me read a few excerpts from her letter. first, she said that arizona cannot afford our current medicaid program despite the fact that we have one of the lowest per member, per year costs in the country. arizona's general fund spending on the medicaid agency has increased by 230% over the past 10 years, rising from 8% of general fund spending over the fiscal year 199 to 1999 to 6% 10 years much our current's year's budget shortfall we've had to reduce the medicaid reimbursement by $900 million and resulting in an additional lost of more than $06 billion. despite the reductions, we're sacrificing other state programs that impact education, health and safety of our children and

our seniors in order to cover the growing costs of medicaid. considering this, it is incomprehensible that congress is contemplating an enormous unfunded entitlement mandate on the states. the disconnect between policymakers in washington and the reality of state and local governments is disheartening. now, mr. president, let me quote from some other colleagues of governor brewer's. democrat an republican governors -- and republican governors around the country who made the same point. the newly elected democratic governor's association is the governor of delaware. he said we have concerns. we understand the need to get something done and we're supportive of getting something done, but we want to make sure it's done in a way that state budgets are not impacted. i believe that all governors are concerned about what the potential impact is of some of these bills. governor rendell of pennsylvania, who has been on television a lot, and makes a

lot of sense when you talk about this, he said, i don't think it's an accounting fit, we don't have the wherewithal to absorb that without new revenue source. bill richardson of new mexico, we can't afford that. the governor of tennessee said that he feared congress was about to bestow what he called the mother of all unfunded mandates. he was referring to this medicaid mandate. governor christine gregore of washington state, he if we try to cost shift to the states we're not going to be in a position to pick up the tab. bill ritter, governor of colorado, a medicaid expansion should not operate as an unfunded mandate for the states. the governor of montana, the governors are concerned about the unfunded mandates. another situation where the federal government says you must do x and you, meaning the states, must pay for it. the governor of ohio, ted

strickland, the states with our financial challenges right now are not in a position to accept additional medicaid responsibilities. governor purr dew of -- purdue, -- there are more and more that we could quote. the point is that virt -- is that virtually all of the nation's governors expressed a concern about this and alluded one way or another about the disconnect of washington and the states. the point -- the point i was making before, washington seems to bark the orders, but it's with no regard to the difficult financial challenge that many of these states are in. let me point out one final point here. these new unfunded mandates generally mean new taxes an significant payment cuts to safety net providers just as governor brewer said and ultimately the loss of jobs much and this is the example i wanted to close with. phoenix children's hospital in phoenix is built to handle about

20,000 emergency cases a year. as it great hospital. it receives about 60,000 per year. so its capacity does not begin to match the need. so to meet the demand, and by the way more than half of these are medicaid patients, the hospital built a new tower that was expected to open at the end of next yeemple good news, right -- year. good news, right? not exactly. the governor added up the states that governor brewer referred to and the additional cuts to finance new federal mandates an concluded that the math doesn't add up. as a result, phoenix children's hospitahospital nervous me thaty won't be able to move into their new building, it would have had 2,000 new jobs. what we do in washington has real consequences. i suspect the reid bill speps disaster for the states. so, mr. president, as we debate more and more features of this

bill, i think each day we focus on something different in this legislation that creates a huge problem. today's focus for me is the problem focused on the state with the visit from the governor. she is at her wit's end. they don't have the fiscal means to pay for this new under funded mandate. she doesn't know what we'll do. as you focus on this new legislation, we have to find a way to not expand the medicaid eligibility in a way that adds this new mandate on our states and, incidentally, if the federal government were to pick it all up, it transfers it to the citizens of our states in the form of higher tax that's they would have to pay in order to not pay for the mandate that's laid off on the states itself. this element of the bill has got to be rethought. i would encourage in closing here, encourage my colleagues on the other side, figure out what you need to do to reach a vote so that we can actually vote on

these amendments, republicans are ready. we've been ready for a long time now. and whatever it is that's caution a problem within your conference, figure it out so you can reach an agreement with the republican leader, we can take votes on the crapo amendment and move on through the other amendments we have. one of which is an amendment by senator hutchison and thune and then an amendment that we'd like to offer by senator snowe and an amendment i hope to offer sometime to remove this unfunded mandates which the states cannot afford to pay for that i've been talking about here. mr. president, i yield to the senator from alaska. ms. murkowski: mr. president? the presiding officer: the senator from alaska. ms. murkowski: i know that the senate is primarily focused on health care. i have come to the floor to speak on another important topic, than is climate change. i would like to speak of an

action by the environmental protection agency and the consequence it's could entail with our economy. i'd like to start by reminding my colleagues that i committed to a careful evaluation of all of the options to address climate change in order to develop an approach that will benefit both our environment and our economy. over time it is becoming increasingly apparent that some approaches are better than others. and while we have not yet found that right approach, yet, we have certainly identified the wrong approach. e.p.a. regulation of greenhouse gases under the clean air act. i believe that this option should be taken off the table so that we can focus our attention on more viable policies. my concerns about this led me to introduce an amendment in september that would have limited e.p.a.'s ability to

limit greenhouse gases for one fiscal year. i offered my amendment for two simple reasons, first, to ensure that congress had sufficient time to work on climate legislation. and to ensure that the worst of our options, e.p.a. regulation, did not take effect before that point. even though congress was, and today remains, nowhere close to completing legislation, the majority chose to block debate on my amendment. since then, the e.p.a. has continued its steady march toward regulation and last week the administrator signed an endangerment finding for carbon dioxide and five other greenhouse gases. this is rooted in concerns about the public health and well fare, but what it really endangers, what it really endangers are jobs, economic recovery and american competitiveness. some have praised the

endangerment finding as a step forward in our nation's efforts to reduce its emissions. they view it as an affirmation that human activities contribute to global climate change. such a conclusion is within e.p.'s authority and appears to be appropriate given the years of research indicating this is the case. those same scientific findings underscore my desire to address this challenge in a pro-active way. but, unfortunately, the endangerment finding is not just a finding. and despite what some in the administration have claimed, its effect is not limited to the science of global climate change. in reality, the finding opens the doors to a sweeping and a con so routed process that -- convoluted process that will require the e.p.a. to have economywide command and control

regulations. once that finding is finalized, the e.p.a. no longer has discretion over whether or not they can impose regulations. as the administrator noted just last week, the agency is now obligated and compelled to take action. this is where it becomes evident that e.p.a. regulation is an awful choice for climate policy. you see, if a pollutant is regulated under one section of the clean air act, it triggers identical treatment in other sections of that stach iewvment so while the -- statute. while the e.p.a. intends to address mobile source emissions, meaning vehicles, the agency will also be required to regulate stationary source emissions as well. so think of it this way, if the e.p.a. attempts to control any

greenhouse gas emissions, the agency will be required to control all greenhouse gas emissions. because e.p.a. regulations will consist of command and control drctives rather than -- directives, rather than market-based decisions, this approach will increase the price of energy, add greatly to administrative costs, and create many new layers of bureaucracy that must be cut through. this is why you often see e.p.a. regulations described as -- as intrusive or byzantine or maze like. they're all of the above. while the permitting process that will be created is unclear, the consequences of imposing these regulations are not. bottom line is, our economy will suffer. businesses will be forced to cut jobs. if not close their doors for good. domestic energy production will be severely restricted

increasing our dependence on foreign suppliers as well as threatening our national security. housing will become less affordable and consumer goods more expensive as we see the impacts of the e.p.a.'s regulations ripple and rake their way across our economy. in the wake of the majority's decision to block my effort to establish a one-year time-out for this process, we now find ourselves in -- in a bit of a bind. even though congress is working on climate legislation, the e.p.a. is proceeding with a tremendously expensive regulatory scheme. it appears increasingly likely that the e.p.a. will finalize its regulations before congress has an opportunity to complete debate on climate legislation. and that, mr. president, -- that outcome is simply unacceptable our nation struggles to regain

its economic footing. so today, mr. president, i've come to the floor to announce that i intend to file a disapproval resolution under the provisions of the congressional review act related to the e.p.a.'s endangerment finding. i have this resolution drafted and i will introduce it as soon as the e.p.a. formally submits its rule to congress or publishes it in the federal register as is required by law. my resolution would stop the endangerment finding. in general terms, i'm proposing that congress veto it. like my previous amendment, this one is also rooted in a desire to see congress pass climate legislation because the policy is sound on its own merits and not merely as a defense against the threat of harmful regulations. and while i know that passage of this resolution will be an

uphill battle, i believe it's -- it's in our best interest, it's the best course of action available to us. this is a chance to ensure that congress, not unelected bureaucrats, decides how our nation will reduce its emissions. and understand why my resolution is so critically important. we have to dig deeper into the economic consequences that will result from regulations based upon the endangerment finding. because there are no regulations within the finding itself, the agency has omitted any projection of what they might cost our nation. the issue here is not necessarily the finding itself but the regulations it allows to be imposed on the american economy. we have a narrow window to stop this series of events, and we should take advantage of it by passing the resolution that i intend to offer. even though the e.p.a. has not

prepared projections of what these regulations will cost, i expect that the totals will be staggering. the price tags attached to the climate bills pending in the senate which a majority of members have concluded are already too high would almost certainly pale in comparison. there are a few figures that can help us put the potential costs in perspective. in one of its recent proposals, the e.p.a. noted that some six million sources could be required to obtain new operating permits if greenhouse gases are regulated. now, the word sources refers to the businesses, schools, hospitals, and other fixtures found in every town in america that would suddenly face scrutiny due to their carbon footprints. farms, landfills, and any other source that emits more than 250 tons of greenhouse gases per

year would be caught in this same net. facing the heaviest regulations would be the facilities that are subject to the clean air act's prevention of significant deterioration permitting process. this is referred to as p.s.d. today, 300 facilities are covered by that requirement. under e.p.a. regulation, that number would soar to 40,000. the p.s.d. process prevents existing facilities from making certain modifications until the e.p.a. has granted its approval. the same holds true for new construction as well. any facility expected to emit more than 250 tons per year would not be allowed to break ground until their owners have secured the e.p.a.'s permission to proceed. the p.s.d. process is already hugely expensive and time

consuming for affected facilities. it can take years and cost tens if not hundreds of thousands of dollars to navigate the p.s.d. process, and that's true today, well before the number of facilities that it covers is increased by an order of magnitude. now, earlier this year, in sharing their preference for congressional action, the editors of "the washington post" provided a pretty good description of what e.p.a. regulation would be like on a daily basis, and they stated in their -- in their editorial -- "the e.p.a. in theory could go shopping mall by shopping mall, apartment building by apartment building, but even plant by plant, how can you limit greenhouse gas? the short answer is you can't, or no one knows, or you can't yet. take, for example, a coal-fired power plant. e.p.a. regulations would be triggered only when someone

wanted to build one or update an old one. at that point, the agency would demand that the plant use the best available control technology or bact to limit emissions." the editorial goes on to state -- "right now, no such bact exists for coal-fired plants beyond better efficiency measures. a lot of attention has been focused on carbon capture and sequestration but it couldn't be considered bact until it was up and running successfully in a coal-fired power plant somewhere in the united states. even then its use would have to be weighed against a number of other factors such as the amount of energy used, the environmental impact and the effect on the output of other regulated putt ants. if past practice applies, the issuance of the final permit would be followed by a series of lawsuits. the whole process could take a decade or more and that would be sult plied hundreds of thousands of times across the country."

that, mr. president, was an excerpt from the "washington post" editorial. no one is aware of how damaging these regulations could be than the e.p.a. itself, so it's no surprise the agency has sought to dramatically increase the clean air act's regulatory threshold from 250 tons per year right now to 25,000 tons per year for greenhouse gases. as the e.p.a. admitted earlier this year, if the clean air act's current threshold is not lifted, the administrative burdens would be immense and they would be immediately and completely overwhelmed the permitting authorities. meaning, of course, the e.p.a. and its state and local counterparts. now, i do give some credit to the e.p.a. for recognizing that the 250-ton per year threshold is not feasible for greenhouse gases. while most pollutants are

measured in much smaller amounts, greenhouse gases are far more abundant. after all, nearly every form of economic results in -- activity results in at least some form of emissions. instead of recognizing that the clean air act is simply not suited for this task, the agency attempted to make it so buying buying -- by ignoring its explicit statutory requirements. now, as we all know, whenever an executive agency fails to adhere to the laws passed by congress, it opens itself up for litigation. the e.p.a.'s so-called tailoring rule is no exception, and i fully expect that lawsuits will be filed if the agency issues it. once the rule is challenged, i expect the courts will reject it as it has no legal basis and restore the regulatory threshold to 250 tons per year. at that point, the agency will be mired in the regulatory

nightmare that it hopes to avoid. in the meantime, it's also worth noting that the e.p.a. is proceeding with the regulations of greenhouse gases even though the tailoring proposal is not part of the existing statute. so for all of the agency's promises of regulatory relief and a safety net to help minimize the pain associated with these regulations, there's nothing behind that yet. and given the larger conversation that needs to take place about amending the clean air act, that relief may never materialize. given the tremendous economic, administrative, and bureaucratic drawbacks associated with e.p.a. regulation, it should come as no surprise that members of the majority, the administration, and environmental groups have expressed their preference for congressional legislation. the democratic chairman of the house agriculture committee declared that e.p.a. regulation would result in, quote -- "one

of the largest and most bureaucratic nightmares that the u.s. economy and americans have ever seen." and he went on to add -- "let me be clear, this is not a responsibility we want to leave in the hands of the e.p.a." the most senior member of the house of representatives, a democrat who served our country for more than half a century, has concluded that e.p.a. regulation would create a, quote -- "glorious mess." he also said that -- "as a matter of national policy, it seems to me to be insane that we would be talking about leaving this kind of judgment which everybody tells us has to be addressed with great immediacy to a long and complex process of regulatory action. -- action." shortly before i introduced my amendment in september, the e.p.a. administrator herself insisted that, quote -- "new legislation is the best way to deal with climate change pollution. "you wouldn't guess that by looking at the efforts of some

in her agency as they helped to defeat my amendment, but just last week she reiterated the claim by stating --" i firmly believe and the president has said all along that new legislation is the best way to deal with climate change." now, mr. president, with such widespread, high-level and bipartisan agreement that e.p.a. regulation is such a bad idea, you'd think it would be easy to suspend the e.p.a.'s regulatory efforts. unfortunately, you would be mistaken. many seem convinced that the threat of e.p.a. regulation will force congress to move more quickly than it otherwise would. this is not a conspiracy theory. it's an open and well-established strategy on the part of the administration, confirmed just this week when a senior white house economic official was quoted as saying -- "if you don't pass this legislation, then the e.p.a. is going to have to regulate in this area, and it's not going to be able to regulate on a market-based way, so it's going to have to regulate in a command

and control way which will probably generate even more uncertainty." now, mr. president, an author of the house cap-and-trade bill has posed the question, saying -- "do you want the e.p.a. to make the decision or would you like your congressman or senator to be in the room and drafting legislation?" going on to say that -- "industries across the country will just have to gauge for themselves how lucky they feel regarding e.p.a. regulations." "the wall street journal" has referred to this as the dirty harry theory of governance. this approach is often likened rather starkly to putting a gun to congress' head. personally, i believe that's a terrible way to pursue climate policy, and beyond that, a terrible way to govern this country. it's difficult, mr. president, to grasp how or why congress would feel compelled to enact economically dangerous, damaging

legislation in order to stave off economically damaging regulations. we're being presented with a false choice that should be rejected outright. the majority and the administration are saying don't make us do this. well, my answer to this is simply you don't have to. before concluding, mr. president, i want to spend a few minutes putting to rest some of the criticism that will surely follow my decision to offer a disapproval regulation. -- disapproval resolution. during the debate over my last amendment, several arguments were made, so i would like to challenge anyone to find reason to oppose my resolution to keep their remarks and this debate as substantive as possible. first, i want to reiterate my desire to take meaningful action to reduce our nation's greenhouse gas emissions. such a policy can and should be drafted by congress and designed to both protect the environment and strengthen our economy. i was a cosponsor of a climate bill last congress, and i'm

continuing to work on legislation that will lead to lower emissions. senator bingaman and i spent more than six months developing a comprehensive energy bill in committee and have now held six hearings on our climate policy options. next, my resolution is not meant to run contrary to the supreme court's decision in massachusetts vs. e.p.a. remember, i previously sought a one-year delay of this process that would have allowed mobile source emissions to be regulated. that amendment was blocked by the majority from even being considered, and at this point, i'm left with little choice but to raise the question of whether the clean air act is capable of effectively regulating greenhouse gas emissions. and finally, i'm not interested in trying to embarrass the president either here at home or on the international stage. i have stated publicly that i wish the president well in making progress on international

issues, and i think it's safe to acknowledge that i didn't choose to release the endangerment finding on the opening day of the copenhagen climate conference. that was the e.p.a.'s decision. mr. president, i understand that i may have come to the end of my 20 minutes. may i ask unanimous consent for a minute and a half to conclude my remarks? thank you, mr. president. as administrator jackson reportedly said, the e.p.a. tried to make sure we had something to talk about in copenhagen. if the administration truly wanted something to highlight in copenhagen, it should have prioritized climate legislation over health care. the senate majority could have devoted weeks spent on a tourism bill and other matters to working through a climate bill here on the floor, and even if climate legislation could not be agreed to, congress has now had nearly six months to take up the comprehensive bill that we have reported from the energy committee. that bill would have allowed the president to highlight significant accomplishments on

energy efficiency, clean energy financing, and renewable energy generation. instead, he is left to tout regulations that his administration doesn't really want, that a wide range of stakeholders dread, and that many members in both chambers of congress actively oppose. we need only look back to the development of the clean air act itself for an example of how this process can and should work. the product of both presidential leadership and congressional unity, the 1970 clean air act, was unanimously passed by the senate. i hope that the current administration will take note of that example. and should we ever reach a point where the president is able to sign climate legislation into law, i truly hope it will be the result of his administration having brought congress together to complete this important task. right now, though, the administration and the majority in congress continue to choose a different path, threatening to disrupt the nation's economy until congress passes a bad bill by the slimmest of margins won't

be much of an accomplishment. nor is that approach worthy of the institutions and people we serve. it isn't appropriate for a challenge of this magnitude. no policy that results from it will achieve our common goals or stand the test of time. as i said earlier, i'm offering this resolution because it will help prevent our worst option for reducing emissions from moving forward. the threat of e.p.a. regulations are not encouraging congress to work faster. they are now driving us further off course and increasing the division over how to proceed. i understand that some are comfortable with the threat of e.p.a. regulations hanging over our heads, but in closing, i would simply remind my colleagues of an observation once made by president eisenhower -- "leadership is the art of getting someone else to do something you want done because he wants to do it." what we'r what we're dealing with right now isn't leadership. it's an attempt at leverage. the e.p.a.'s endangerment finding may be intended to help protect our environment, but the

regulations that inevitably follow will only help danger our economy. that lack of balance is unacceptable. we can cut emissions but we can't cut jobs. we can move to cleaner energy but we can't force our businesses to move overseas. it's past time to remove the e.p.a.'s thinly veiled and ill-advised threat and we can do that by passing my resolution and giving ourselves time to develop a real solution. with that, mr. president, i thank you. i yield the floor, and i thank my colleague from connecticut for his courtesy. the presiding officer: the senator from connecticut. mr. dodd: mr. president, if i can just spend a few minutes in resume the conversation about the health care proposal. before i do that, mr. president, let me ask unanimous consent that lia lopez, an intern in my office, be granted floor privileges for the remainder of

the consideration of h.r. 3590. the presiding officer: without objection. mr. dodd: mr. president, let m me -- we've had a lot of talk, obviously, in the last -- well, going back now the las last more than -- well, you can go back 60 years we've been talking about health care. but in the last year, if you tried to calculate the number of times there have been meetings, conversations, not including the ones that occur here on the floor of the united states senate, but throughout the capitol, both the other body as well as here, between members and staffs, it has been voluminous, to put it mildly. and we've come down here now what appears to be the remaining just a few hours before we'll decide, as a -- as a nation, as to whether or not to move forward or to basically leave things as they are with the hopes that one way or the other, things may correct themselves in terms of the cost of health care, the affordability to

individuals, as well as the quality of health care for many. and so the next few hours, debates, days, rather, could largely determine whether or not once again the congress of the united states, democrats, republicans, as well as the administration, all of the others who've grap he would with this issue -- grappled with this issue now for many, many months, will succumb to what has afflicted every other congress and every other administration and every other group of people since the 1940's and that is our inability to come up and answer the question of whether or not we can do what almost every other major competitor nation of ours around the world concluded decades ago and that is to provide decent, affordable health care for our fellow citizens. if nothing else, this debate has proven how complex this issue is and it's showcased the wide variety of view points that

exist within not only this very chamber but people across the country. certainly that was evidenced this summer in the so-called august period of town hall meetings. i held five of them, madam president, in my state earlier this year, actually in the winter and spring before they became quite the celebrated events of august. i know most of my colleagues, one way or another, either did telehall, tele-town hall meetings or conducted ones in their home states. and because this issue affects one-sixth of our economy, 100% of our constituents, not only those here today but obviously for the millions yet to come, our debates have been sheertd and our disagreements -- spirited and our disagreements at times not only emotionally charged, not only in this chamber here but across the country. and some of my democratic colleagues, madam president, still have concerns over aspects of the legislation -- and every one of us do -- and to any one of my republican colleagues who still desire to put people, as i know they do, ahead of partisanship, and to my fellow

americans who worry that politics will once again triumph over progress, which it has on every single debate on this subject matter now for six decades, let me offer some context for the debate that once again begins this afternoon and is going to arrive at a closure in a matter of hours and days. and the answer ultimately will be whether or not we move forward and did which i think the majority, overwhelming majority of our fellow citizens want us to do, or fall back once again into the same -- and the same paralysis that affected congresses, administrations and generations before us. the consensus that we've already reached as the united states senate is that health care reform would represent a significant victory for the american people. i think we all agree on that point. and it would be a significant moment in our nation's history. i think all of us can agree that insurance companies should not be allowed to deny you coverage because you have a preexisting condition, that these same

companies shouldn't be able to ration the benefits that you and your family receive, and that you, as citizens of the united states, should be guaranteed that the coverage you pay for will be there for you when you need it. i think all of us in this chamber, regardless of party or ideology, agree that reform should make insurance more affordable, that it should protect medicare and keep it solvent so that it will be there for future generations, and that it should improve the quality of health care for all americans. focusing on preventive diseases, reducing medical errors, and eliminating waste from our system so that our health care dollars are used more effectively. i think, madam president, all of us can agree as well, regardless of which side of this -- this divide here that exists in this chamber, that reform should empower families to make good decisions about purchasing insurance, empower small businesses to create jobs, and

empower doctors to care for their patients instead of filling out legions of paperwork, and empower the sick to focus on their illnesses instead of fighting their insurance companies. these are the commonsense reforms, however, that will make insurance a buyer's market, keep americans healthier, and save families and the government an awful lot of money in the years ahead. and i think all of us share these views. at least that's what i've heard over the last year that i've been so intensely involved in this debate and formulating the policy that is now before us. if you listen to the distinguished minority leader, our good friend kentuck from ke, you might be surprised to learn that his conference has decided not just to oppose our legislation but, unfortunately, to obstruct even further progress. after all, he called for a reform bill that incentivizes the workplace wellness, allows people purchase insurance across state lines, and reduce costs. our bill does all three things, madam president. let me be specific.

on page 80 of this bill, our bill includes a bipartisan proposal allowing employers to offer large incentives for workplace wellness programs. on page 219 of our bill, madam president, it includes a republican proposal allowing health plans to be sold across state lines. and on page 1 of the congressional budget office analysis of this bill, the congressional budget office concludes that our bill would cut the deficit of our nation by $130 billion over the next 10 years, the single largest budget deficit reduction since 1997. in a body of 100, as we are, in which both parties claim to agree on these principles, we be able to achieve, one -- we should be able to achieve, one would think, a bipartisan consensus on a matter of this import. but sadly, it would seem to our colleagues, too many of them, again on the other side of this divide don't seem to care what's

in this bill specifically. i'm reminded -- i've reminded again, as others have, what is actually included in this bill. not that i would expect them or anyone on this side of this divide to agree with everything that's here. we don't. there's not a single member of this body who would not write this bill differently if he or she cool. there's no doubt in my mind whatsoever about that. but we serve in a collegial body of 100, where we have to come to consensus with each oh, even when we don't agree with every single aspect of this. and yet when i read the words of the chairman of the republican national committee -- and, again, speaking on behalf of a party -- this is why i find so disheartening, madam president. at a time like this of such import, i expect there to be a full-throated debate and disagreement over various ideas, but read if you will the words of the national chairman of a major political party in this country. here's what he's suggesting his party ought to be doing at this critical hour. "i urge everyone," he says, "to

spend every bit of capital and energy you have to stop this health care reform. the democrats have accused us of trying to delay, stall, slow down, and stop this bill. they are right," he says, end of quote. let's hear that again. "the democrats have achoosed us of trying to delay, stall, slow down, and stop this bill. they are right." madam president, it's awfully difficult to hear those talking about wanting to get a bill done here, wanting to come together when the chairman of their national party is recommending they do everything in their power to stop a bill that, in fact, includes manufacture the very reforms -- includes many of the very reforms that they themselves embrace. now, make no mistake, madam president, if the status quo prevails, i would like to tell you today that with absolute certainty the provisions we've included in bill are going to produce -- in this bill are going to produce the results that i've described. i can't say that. i don't know. i hope they do.

i believe they will. i think we've done a lot of hard work that draws me to the conclusion we will achieve those results. but obviously only time will tell if those are the events or those are the results of our efforts. one thing i can say with absolute certainty, madam president, with absolute certainty, if we do what too many of our friends on the other side -- and clearly what the chairman of the republican national committee is recommending -- i can predict with absolute certainty the outcome and that is that premiums will go up dramatical dramatically, health costs will continue to wreak havoc on small businesses, our deficit will grow exponentially, americans will see premiums nearly double in the next seven years. a family of four is paying $12,000 a year today. it is predicted with almost certainty that those premiums will jump to $24,000 within seven years if we do nothing. that much i can guarantee you. so for those who argue that the so-called status quo or staying things where they are and let's wait about another day to get this done, those are the results

you can predict. more and more people will lose their health insurance, more families will be forced into bankruptcy, hundreds of thousands of americans are going to die, unnecessarily in my view, in the name that have obstruction. madam president, i don't think we can let that happen. and so it has fallen to the majority to do alone the job that we're all sent here to do collectively, the hard and honest work of legislating, as difficult as it is. the factors that have made us work so hard are not new or unique to this debate, and as history shows, they will not be what is remembered a generation from now. the words spoken here in this chamber, the charts, the graphs, awful these things are slowly forgotten by history. today we hold medicare up as an example of a program worth defending. how many speeches have been given in the last two or three weeks about the glories of medicare? i only wish that those members who are here today had been present in 1965. we might have been able to pass

that bill without the acrimonious, partisan debate that took place in those days. today we again remember -- no one talks about the 50 years it took to bring medicare to the floor of the united states senate. no one talks about the -- what the polls said in 1965 when it took a lengthy debate involving more than 500 amendments, by the way, to achieve consensus on medicare. and i might add, nobody attacks it as socialized medicine, as they did in 1965. it is always easier to envision, madam president, the legislation we want than to the pass the legislation we need. such is the case here this afternoon. we won't end up with a bill that i would have written if it were up to me and it won't the bill that any one of our colleagues would have written either alone. i'll ask for two additional minutes, if i may. the presiding officer: without objection. mr. dodd: but it will be, madam president, a bill that improves the health care of all americans. it will be a bill that makes insurance more affordable, improves the quality of care and

helps create jobs in our nation. it will be a bill that saves money and saves lives, and it will be a bill that decades from now, we will remember not for the differences we had in this chamber but for the differences it made in our nation and for the fellow -- our fellow citizens. to get there, we must build on the consensus we have already reached, not tear it down with the petty weapons of political gamesmanship. we must answer not the call of today's poll or tomorrow's election but the call of history that we've been asked to meet that. other generations, other congresses have failed to meet but we are on the brink of achieving. my hope is that all of us will come together in these closing hours and do that which many predict we could not do, again, to pass legislation we need, not that we envision or the ones we might hope to create. with that, madam president, i yield the floor. mr. thune: madam president? the presiding officer: the senator from south dakota. mr. thune: madam president, i want to start by just referring

briefly to the rarkts that were made earlier -- remarks that were made earlier by the senator from alaska. she indicated earlier on the floor that she's going to be offering a motion of disapproval for a set of regulations that are not final yet but that have been announced that e.p.a. is coming forward, with the so-called endangerment finding, and i just wanted to indicate, madam president, i intend to support her on that resolution and also had supported her -- i cosponsored the amendment that she tried offering earlier this year to one of the appropriation bills that would have prevented the e.p.a. from moving forward with the endangerment finding for a year. in other words, to allow congress an opportunity to -- to examine this issue and -- and perhaps approach it from a legislative solution as opposed to having e.p.a. move forward in a way that even they acknowledge they really don't have statutory authority to do. and i might say that the end result of what's being propose at e.p.a., if they are successful, is they will

implement a cap-and-trade program, only it will be a cap without the trade. the reason they're moving forward, in my view, is that because there isn't the political will here in the congress to pass a punishing cap-and-trade proposal this year. the house of representatives passed it narrowly this year. there are a number of members of the house who i think would like to have that vote over again. and i know there aren't the votes here in the united states senate because there are many senators on both sides of the aisle who realize the impact it would have on the economy, the number of jobs that would be lost in our economy, and how it would punish certain parts of our country with hit -- crushing energy costs at a time when we really don't med to pile those types of costs on our consumers who are trying to come out after recession. this is a wrong-headed move by the e.p.a. it is something that they should not be acting independently on. this is something that should be resolved by the congress of the united states, and honestly, if the e.p.a. does move forward, there are a number of industries

in south dakota that are going to be impacted, a number of businesses in high home state, and if they -- the litigation is successful -- and inevitably, it's going to be litigated; there are going to be lots of lawsuits filed -- and the number is educed in the clean air act, there are going to be literally millions, madam president, of entities that are covered -- hospitals, churches, farmers, ranchers, small businesses. in my state of south we have a lot of farmers and ranchers who make their living in small businesses that would be adversely impacted, were this thing -- were these regulations to be enacted and then to move forward with regulating and putting these caps in place, and then if the litigation is successful that we know will be subsequent to that. so i just say that as sort of a lead-in to talk about impacts on small businesses because there are so many things that are happening right now in washington that have an adverse and detrimental impact on the

ability of small businesses to create jobs. i have heard the president talk about, you know, creating jobs, the number-one priority ought to be creating jobs. we need to give incentive to small businesses to create jobs. i have heard my colleagues on the other side come down here every day and talk about job creation and how important it is. and yet everything that is coming out of washington, whether it is in the form of heavy-handed regulations like this endangerment finding that's coming out of the e.p.a., whether it is in the form of a crap proposal that's coming through the congress right now, whether it is the $230e $2.5 trn expansion of the federal government, all of these things, madam president, are raising clouds over the small business sector of our economy which creates about 70% of the jobs. so we are pea essentially telling small businesses that -- so we're essentially telling small businesses that you may end up with these massive energy taxes, you may end up with this

employer mandate that's going to cost you up to $750 per employee if you don't offer the right kind of insurance, you're going to be faced with all of these taxes that will be imposed on health insurers, medical device manufacturers that are going to be passed on to you and then we're saying, go out there and create jobs, in the light of all this policy and uncertainty in washington, all of these proposals to tax and to spend and to borrow more money by their federal government. and so you can't blame small businesses for acting with a little bit of hesitancy when it comes to making major capital investments, when it comes to hiring new people. and those are the very things that we want small businesses to do. we want to encourage that type of behavior. we want encourage that type of inv. we want to encourage job creation. we've lost 3.3 million jobs since the beginning of this year. who's going to be putting people back to work? it will be the snobs our economy. in my state, there are about 96%

of the game when it comes to employment in south dakota. here we are debating a health care reform bill which in addition to spending $2.5 trillion to create this new health care entitlement, raises taxes on small business, cuts medicare, and at the end of the day according to all the experts, the congressional budget office, the chief actuary at the center for medicare services, which is the so-called referee in all of this that tells us what these things are going to cost and what the impacts are going to be, they've all said that premiums are going to stay the same or go up. the best that small business can hope for under this is the status quo. so i hear our colleagues on the other side coming down here day after day after day making statements about this is going to be good for small businesses, this is going to help small businesses deal with the high cost of health care. the problem, madam president, with all their arguments is one thing: they are completely and utterly divorced from reality.

you cannot look at this proposal, this health care reform proposal, and come away from it and say, this is a good thing for small businesses when small businesses are saying, this is going to drive up the cost of doing business, this is going to raise health care costs, and these taxes that you're going to hit us with is going to make it harder for us to create jobs. and so why do we proceed in the face and defy what all these small businesses are saying, what all the experts are saying and what increasingly the american people are saying; and that is, this is a really bad idea? why don't you guys go back and reconsider it and start over here and do some things that will actually lower health care costs. those what our small businesses are saying. we have people saying this is good for small business. well, what are small businesses saying? the -- and large businesses, for that matter? nfib represents small businesses all over the country -- said this bill will not deliver the wide promises held. it will destroy job-creation

opportunities for employees, create a reality that is worse than the status quo for small business, is the wrong reform at the wrong time, and will increase health care costs and the cost of doing business. that's the national federation of independent business, which as i said represents small businesses all over the country. large businesses -- the chamber of commerce has come out and said -- expressed their disappointment with the senate health care bill and has weighed in this strong opposition. the small business business entrepreneurship council, the association of builders and contractors, the national association of manufacturers, independent electric contractors, the list goes on and on and on. the organization called the small business owe listing for affordable health care $and that's 50 organizations around the country who are members of that group, including many that have members in my state of south dakota, not the least of which is the american farm bureau organization who

represents farmers and ranchers out there thieg t trying to maks meet. "our small businesses and self-employed entrepreneurs need lower costs, more choices and greater competition for private insurance. these reforms fall short of long-term, meaningful relief for small business. any potential savings are more than outweighed by the new tanches the new mandates and expansive new government programs that are included in this bill." that, madam president, is what the small businesses aacross the country are saying. the reason they're saying that is because as i mentioned earlier, not only are they hit with these taxes every year -- there is a tax on health plans that will amount to $60 billion over ten years, which will be passed on to small businesses -- there is a new payroll tax, medicare tax which incidentally, for the first time ever will be used to create a new entitlement program; that tax will hit about

a third of small businesses across this country we're told. as i said, they have the employer mandate which is going to hit a whole lot -- it is another $28 million that's going to hit small businesses across this country. and so you have all these new taxes, and all of them heaped up on our small business sector. so the small businesses are saying, okay, what do we get out of this? well, i want to show you what it is going to do that their health care costs. this, madam president, represents whra what the congressional budget office has said it will do if health care is enacted. the blue line represents the cost essentially if you will of doing nothing. in other words, the blue line represents what will happen if congress does nothing. that the year-over-year increases that we're already seeing. it sort of represents the status quo. well, we've heard people come up from the other side and say, we can't -- we've got to do better than the status quo. the president says that. the vice president says that. our democratic colleagues say that. we can't -- you can't accept the

status quo. and republicans are attacked for being in favor of the status quo. well, madam president, the blue line represents the status quo. the blue line is what's going to happen year over year in terms of increases in health insurance premiums that small businesses and individuals in this country are going to be dealing with. and it doesn't matter where you get your snuns. and the employer small group market the employer large group market, the individual group market. your rates are going to be 10% to 13% higher. could i extend for another five minutes? the presiding officer: without objection. mr. thune: it doesn't matter which market you get your insurance in. if you're in the individual market you're going to pay much higher insurance premiums than just the status quo, which is locking in double the rate of inflation increases in insurance premiums for the foreseeable future. but the red line, madam president, represents the spending under the bill. this is what the congressional budget office says will happen. you will see the cost curve bent up, not down. so you're going to have more

money coming out of our economy to pay for health care in this country than you do today. that, madam president is what's small businesses are reacting to, and why they are coming out as strongly and adamantly opposed to this legislation as they are. it bends the cost curve up. it increases the cost of they can i-- ofhealth care in this c. we hear the same thing coming out from the actuary of c.m.s. last week. the experts are sarkes referees, the people who don't have a political agenda are saying repeatedly, this is going to increase the cost of health care. this is going to drive health insurance premiums higher in this country. now, the other point i want to make, because after i have shown you how health care costs are going to go up nders this legislation, is the other amazing thing about it -- and this is again -- this is one of those phony accounting techniques or gimmicks that washington uses, sort of same

old business in washington, same old washington smoke and mirro mirrors, ways of disguising what this thing really costs. in order to bring this thing in at about $1 trillion, which is what the democrat majority wanted to do, they had to use a lot of budget gimmick,. the senator from h.r. i new hame is here. he's followed this for many years. but he can attest to the fact that one of the things that they did is they started the tax increases immediately. so on january 1 of this year -- next year, which is now 18 short days away, all these businesses across the country are going to see their taxes go up -- in 18 days. but the amazing thing about it is many of the benefits don't start getting paid out for another 1,479 days. so they frontload all the tax increases. so all these tax increases will get passed on immediately. and by 2013 every american family is going to be paying -- starting next year -- $600 a year up to the year 2013, so

every american family is going to feel the brunt of these additional costs for taxes and the premium increasesal in a follow -- and the premium increases that'll follow from those. they actually strufd a bill that would -- they actually structured a bill that would punish small businesses and people that are going to pay these taxes on january 1 of 2010, 18 days away. and don't start paying out the benefits your honor the bill for another 1,479 days. what does that do, madam president? in the ten-year window that they use to measure what this thing is going to cost it dramatically understates the cost of this legislation. and so what we're faced with is not a $1 trillion bill, but a $2.5 trillion bill when it's fully implemented and when all these budgetary gym nicks and 10-- --gimmicks and some of the phony accounting is taken into consideration. madam president, this is a bad deal for small businesses. that's why all the small business organizations have come out opposed to it. and you cannot get up on the other side day after day and defy reality.

and defy logic and deify reason and facts. that's what those who are trying to push this huge government expansion and this huge takeover of health care in this country are trying to have people believe. they are just dead wrong, and i believe the american people are tuning into that, which is why increasingly in public opinion polls they are turning a thumbs down on this by majorities of over 60%. and i see the senator from new hampshire is here. i'm happy to -- and i appreciate him indulging me for an extra few minutes and would be happy to yield back the balance of my time. i thank you, madam president. nemr. gregg: madam president? the presiding officer: the senator from new hampshire. mr. gregg: i ask unanimous consent to speak for 15 minutes. the presiding officer: without objection. mr. gregg: madam president, i appreciate the senator from south dakota's excellent explanation of the effect of this bill on small business, and ihis especially effective explanation of the gimmicks used in this bill to make it look

fiscally responsible, which it is not. the fact that they use 10 years of revenue cuts to offset five to six years of spending and then claim that somehow it is in balance. what i want to turn to however, is another section is another part of this bill. it is important to recognize that it is not our side so much that's representing the failures of this bill. it is actually the administration itself. the administration's actuary has come forward with a letter analyzing the reid bill. you've got to remember the reid bill isn't necessarily the bill. this is sort of like a where is waldo exercise around here. mr. gregg: it's supposedly going dob a massive rewrite of the reid bill. so we can only project what this is through news reports.

news reports aren't very good. it represents that they're going to expand medicaid which will be a massively unfunded mandate to states and lead to putting people into a system that is already fundamentally broken. and that they're going to let people buy into medicare at age 55 and older which medicare is insolvent today. it's got $35 trillion of unfunded liability on the books, you're going to let people buy into medicare? i mean, what sort of sense does that make is it it means the seniors that are on medicare and who by the way get cut significantly thunder bill, medicare does, will find that medicare is under even more pressure by putting people into it that can't afford the system. but turning from those two obvious problems with the potential bill here -- that we haven't seen yet -- i want to turn to this actuary report. which again was done by the c.m.s. actuary who work with h.h.s. and whose job it is to evaluate this bill, and they

work four the president. thetherrien a -- they're federal employees. the c.m.s. letter made a number of points. remember, when we started down it read road, the president said he wanted to do three things. one, he wanted to expand coverage so that uninsured would be covered. two, he wanted to bend the out-year cost curve of health care in this country so we could afford t and, three, he wanted to make sure that if you had insurance, you get to keep t if you like jury insurance, your employer plan you have, you get to keep t what did -- one of the actuariys, this isn't the republican side. this is an independent, fair, analysis of the reid bill. what did they say on the three points that the president held up as his test of what health care should be? on the issue of whether or not this bill bends the out-year cost curve, which we have to do, by the way, if we don't get

health care costs uncontrol, there's no way to get our federal budgets under control. what the actuaries say? total -- this is a -- quote -- "total national health care expenditures thunder bill would increase by an estimated -- under this bill would increase by an estimated $200 billion during the calendar year 2010 to 2019. instead of going down, they go up the chart that senator thune showed us is totally accurate. so there is no bending of the outyear health care costs. there's a lot of reasons. i will go into that in a second. primarily that they didn't put in things in this bill, such as malpractice abusive lawsuit reform and hippa -- expanding hippa so people can pay people to live healthier lifestyles, if you lose weight, your company will pay you. if not that would have bent the cost-year -- cost-year cost curve down. the trial lawyers opposed the

first one, the unions opposed the second one. on the second one that the president sent out as his test, which was that there would be a coverage of everybody who's uninsured. what did the actuariys say after they looked at this bill? well, there are 47 million people uninsured. some people say there are 50 million. the actuary said after this bill is completely phased in, there will be 24 million people uninsured. so for $2.45 trillion, that's what the cost of the bill is when it's totally phased in, for the creation of a brand-new entitlement, for cuts in medicare which will be $1 trillion over the 10-year period when the bill is fully phased in. half a trillion when is first faced, $3 trillion over the first 20 years, for that price, what do you get,$2 .5 trillion?

you still get 24 million people under insured. why? because they set the bar so high, people can't afford to get into it and people will be pushed out of their private insurance. that's the third point. the president said if you like your private plan, you get to keep it. that's what he said. that was his third test. i agree with that. i agree with all these tests that we should bend the out-year cost curve, get everybody covered. third test, if you like irprivate insurance, you get to keep it. what does the actuary say? the actuary works for the president. the actuary says, that 17 million people will lose their existing employer-sponsored insurance. 17 million people will be pushed out of their private plans into this quasi-public plan. why is that? because under the weight of -- under the way this bill is structured, there is so much cost shifting going on here as you put people in medicaid, which only pays 60% of the cost

of a person getting medicaid and you put more people into medicare which only pays 80% of the cost of what it costs to -- to take care of a medicare recipient. that difference, that 40% of medicaid, that 20% in medicare has to be picked up by somebody else. the hospitals have to charge the real rate for what it costs them. the doctors have to charge what the real rate is of what it costs them to see the patient. that put that cost on to the private sector, the private insurance. so the private sector is subsidizing, the person who gets their insurance through their company is subsidizing the cost of the person who goes into medicaid or the cost of the coverage that goes into medicare. in fact, today private sector is subsidizing the medicare recipient and the medicaid recipient through the cost of their insurance by almost $1,700 a year. $1,700 a year if you're insured by an employer plan is to pay for people under medicaid and

medicare, that gap in reimbursement. that under reimbursement. when you put more people into medicaid, and this bill assumes that 15 million people will go into medicaid and more people into medicare and this bill puts people 55 and over into medicare, you end up with more people being subsidized. who pays for? the private insurance. so the private employers, especially small businesses, see their insurance price going up. they can't afford it. they can't afford it. they figure it's cheaper to pay a penalty, a tax, essentially, under this bill, than to keep their insurance for their employees. so they say they're -- sorry, folks, you have to go to the quasi-plan. 17 million people that's estimated from the president's actuaries estimate that. there's another point that the president's actuaries make here. it is critical. this proposal, the reid proposal, is devastating to a program which is also under

severe stress, and that's medicare. we know today, because of the retirement and the baby boom generation, which doubles the retired -- the number of retired people in this country from 35 million to 70 million, which will be fully retired by 2017, 2019. we know because of the generation for that health care, that there's $38 trillion unfunded -- there's $28 trillion of cost which we know we're going to have to pay which we have no idea how we're going to pay it. no idea. the insurance system does not support. well, so that program's under a lot of stress right now as it stands. as it stands it's under a lot of stress. but when you start putting people into this -- when you start cutting that plan even further, which is what is proposed in this bill, under this bill there's $50 0 -- approximately $500 billion in the cuts for the first 10 years

in medicare, $1 trillion in the second 10-year period when it is fully phased in and $3 trillion over the next 10 years. when you cut medicare beneficiaries by those amounts and you eliminate medicare advantage for probably a quarter of the people who get it today, providers can no longer afford to provide the benefits to their recipients, to the medicare patient. they can't make a profit. now, again, you're going to say oh, that's just a republican throwing out some language here. no, it's not. that's the chief actuary of the president of the united states saying that. let me read to you: because of the bill's severe cuts to medicare -- quote --"providers for whom medicare constitutes a substantial -- a stancive portion of their business could find it difficult to remain profitable and might end their participation in the program, possibly jeopardizing access to care for beneficiaries."

that's a quote from the president's actuary. the actuary suggests that roughly 20% of all party providers, that's doctors, hospitals, us inning homes, would become unprofitable as a result of the reid bill. what happens when you become unprofitable? you close. you close. so people won't be available to deliver the care to the senior citizens under this proposal. now, the representation from the other side of the aisle is, oh, we don't cut any medicare benefits. well, they cut medicare benefits for medicare advantage, but what they really do is cut provider groups and if you don't have somebody who will see you, you can have all of the benefits in the world. it's not going to do you any good. it's not going to do you any good. that's clearly a very significant cut in benefits. and it's not me saying this. it's the actuary saying this. madam president, how much time do i have remaining? the presiding officer: four minutes. mr. gregg: thank you. so this is a critical point.

that under this bill the medicare actuary has said four major things, first, that it doesn't bend the cost curve down, it bends it up. second that it leaves 24 million people uninsured when fully implemented, third that 17 million people lose their private insurance and forced into quasi-public plans an fourth that a lot of providers of medicare are going to go under, and, thereon, not be available to provide medicare. that's not constructive to the health care debate. how should we do this? i'll tell you some things that we should do that aren't in this bill. things which are sort of a step-by step approach rather than a massive attempt written in the middle of the night and dropped here for eight days or 10 days, why don't we take a constructive orderly approach to this. we know there are sections of insurance reform that can acure across state -- occur across state line insurance, we know

there are things that we can do if we set up the proper coverage scenario if there is preexisting conditions, we know there is a lot of insurance market reform that can be done. we know if we curtail or limit massive lawsuits, we know that there's$2 50le defensive medicine practiced in this country every year. c.b.o. scores it as a $54 billion immediate savings which is in texas an california that works. why isn't it in this bill? trial lawyers didn't want it. we know if you say to employers that you can more to an employee in the way of cash benefits who stop smoking, who gets mammograms when they should, to reduces their weight so they're not subject to obesity issues, if we say to an employer we can do that, we get huge cost savings across the country, some employers su such as safeway has proven that point. why aren't we allowed to do under that the law? because the labor unions don't want us to do.

that language, which is in one of the bills that was passed here, the "help" committee, was taken out of the bill. there are certain disease that's drive costs in this country, obesity, alzheimer's, target those diseases rather than this$2 .5 trillion bill which our kids can't afford. change the reimbursement system so we reimburse doctors with quality and value rather than quantity andion. to insure everyone, which i do, follow the suggestion i made and a number of other people have made around here, for everyone have them buy into a catastrophic plan, especially the young and healthy, between 20 and 40, 45, they don't need the gold-plated plans or bronze-plated plans that have excessive amounts of coverage in them. they don't need them. what they need is a plan that says if they're severely injured or contract a difficult disease, they're going to have coverage

so their responsibility of care doesn't fall under the rest of the country. and that can be done. so there's a lot of specific things that can be done. to improve our health care system without this quasi-nationalization effort which is going to expand the size of the government so dramatically by $2.5 trillion, that there's no possible way that our kids can afford the debt that will be on their backs as recall of this. this will not be fully paid for, in my opinion. and, certainly, we can at least look at this -- at the points made by the actuary of the president who has disagreed with four of the core proposals in this bill who say it does not meet the test setout for good health care reform, who says in those areas let's take another look, let's start over again. let's do it right. that's our proposal. let's do it right rather than rush this thing through. most of the programs in this bill don't start until 2014. so why do we have to pass it

before chris surface especially when we haven't even seen the final bill? it makes no sense at all. listen to the actuary of the president and let's get this right. madam president, i yield the floor. mr. franken: madam president? the presiding officer: the senator from minnesota. mr. franken: i ask unanimous consent to engage in a colloquy with my colleagues from vermont and ohio. the presiding officer: without objection. mr. franken: thank you. madam president, i rise today to urge my colleagues in the senate to support senate amendment 3135, to replace the proposed excise tax and replace it with a surtax that would affect only those making literally millions of dollars a year. senator brown and senator sanders with whom i will engage in this colloquy have shown tremendous leadership on the issue, and i want to thank them and join them in their efforts.

before, let me get into this, though. i just want to answer a couple of things i have seen on the floor. i walked in, my good colleague from south dakota, senator thune, was -- had a chart up, he had a chart up. he said when your taxes will kick in and when your benefits will kick in. so i didn't hear the whole speech, and i feel bad about that, not having heard his whole speech, and i went up to him and i said i department hear your whole speech. he went oh, man, that's too bad. but i said did you actually happen to mention any of the benefits that do kick in right away? and he said uh, no. which i think is -- you know, again, we are entitled to our own opinions. we're not entitled to our own facts. benefits kick in right away. and if you're going to hold up a chart that says when the -- when taxes kick in and when benefits kick in, you say 1,800 days, you

better include the benefits that do kick in right away. mr. thune: will the senator from minnesota yield for a question? mr. franken: absolutely. mr. thune: did the senator from minnesota when i was pointing out on the chart understand the point i was making, that the tax increases start 18 days from now, and that the benefits, the spending benefits under the bill which -- which are the premium tax credits and the exchanges that are designed to provide the benefit that's delivered under this bill don't start until 2014? if the senator -- mr. franken: does the senator understand that spending benefits start right away? mr. thune: if the senator missed the point, i can get the chart out again. mr. franken: i asked a question, senator. i yield you to you for a question. i'm asking you a question. the presiding officer: the senator from minnesota may only yield for a question, and the senator from minnesota has the

floor. mr. franken: has to what? the presiding officer: has the floor. mr. franken: i have the floor? okay. the senator from south dakota said i realize that i was talking about the spending doesn't start for 1,800 days on health care, the benefits don't start. here's one. $5 billion in immediate federal support, starts immediately for a new program to provide affordable coverage for uninsured americans with pre-existing conditions. i don't know about anyone knells this body -- mr. thune: will the senator yield for an additional question? mr. brown: what senator franken is saying is the $5 billion here is for the high risk pool, people who have the most trouble because of pre-existing condition, because of insurance companies, because of the behavior of the insurance companies. this debate is really all with the insurance companies. my friends on the other side of the aisle always come down on the insurance companies.

the insurance companies really are the ones that are driving so much waste and so much bad behavior in this system. and another thing in this bill that's very, very important now is the medicare buy-in, the medicare buy-in that we have been discussing, that somebody that's 58 years old or 62 years old and can't get insurance, they have been laid off or maybe they have a pre-existing condition or maybe they -- they are a part of a small business that doesn't insure them, 58, 62 years old, that simply can't get insurance, this legislation will allow them so far to buy into medicare. i know my republican friends can't make their minds up what they think about medicare. they were opposed -- they have opposed it mostly for 40 years, they have opposed its creation. they tried to privatize in the mid 1990's. they succeeded in partially trying to privatize it. they have cut it. now that we simply at the aarp's request in part are pushing legislation that will cut some of the waste out of medicare, all of a sudden they are big fans of medicare. again they don't like medicare again because we're going to do

the medicare buy-in. i guess i'm confused by it. mr. thune: would the senator from ohio yield for a question? mr. brown: this is -- we gave the other side 30 minutes. mr. franken: we have our time. mr. brown: senator thune wants to monopolize our 30 minutes. mr. franken: we have our time and the senator from south dakota just said that when he gave his presentation, he was saying that nothing that we're paying for starts until 1,800 days from now. there is a whole -- i have a whole list of things that start. mr. thune: would the senator yield -- the presiding officer: the senator from minnesota has the floor. he may engage in a colloquy. he does not have to yield to any further questions. mr. franken: the patient protection and affordable care act will prohibit insurers from posing lifetime limits on benefits, starting day one. starting day one, senator.

he doesn't want to hear it. he doesn't want to hear it. we are entitled to our own opinions. we're not entitled to our own facts. the fact is benefits kick in on day one, and the large majority of benefits kick in on day one, and we shouldn't be standing up here with charts that say the exact opposite. senator mccain a week ago said facts are stubborn things. these are stubborn things. small business tax credits will kick in immediately. the senator from south dakota just said that nothing -- no payments, nothing that costs any money will kick in right away. that's not true. we are not entitled to our own facts.

and i stand here day after day after day and hear my colleagues, my good friends from the other side say things that are not based on fact. we hear this $78 trillion unfunded liability. you know, i remember during the social security thing, we used to hear this $11 trillion unfunded mandate in social security, then they asked the actuary what that was about. treasury secretary snowe. and what it was was -- because the american actuarial society got really mad about it. you know what it was? into the infinite horizon was the liability. it was into infinity. and that was a figure used by the president of the united states, george bush at the time. we have an $11 trillion unfunded mandate. what was the actuarial thinking behind it?

into infinity, and people would live to 150 years old. one second. i want to explain the end of this. so this was the unfunded liability, assuming people lived to 150 and still retired at 67. that was an 83-year retirement. and that we would live to 150. i assume the first 50 years would be great, the next 50 years not so great, the last 50 years horrible. ridiculous stuff! let's have an honest debate, for goodness sakes. let's not put up charts that contend one thing and that are just not true. i -- yes, senator sanders. mr. sanders: what i wanted to do is to get back to an issue that is of great importance to the

american people, in addition to everything that senator franken appropriately pointed out, and that is as we proceed forward on this legislation, there is a provision in the senate bill that i think needs to be changed, i have offered an amendment to do that, and i'm delighted that senator brown and senator franken and senator begich who is not here and senator burr who is also not on the floor are in support of that amendment as i think the vast majority of the american people are, and that is, madam president, this bill is going to cost some $800 billion, some $800 billion, $900 billion, and the american people want to know where is that money going to come from? is it going to come from the middle class whose incomes in many ways are shrinking, who have lost their jobs, having very serious financial problems, or is it going to come in a more progressive way? and the amendment that is on the floor, the amendment that we are supporting would simply say that

we will get rid of the excise -- 40% excise tax on health care benefits above a certain limit and move toward a more progressive way of funding which is close to what exists in the language in the house. essentially, what we would be doing is addressing the fact that this so-called cadillac plan is not really a cadillac plan, because in a relatively few years, millions of workers with ordinary health care benefits are going to be impacted on them. according to a major consultant, health care consultant, the mercer company, this tax would hit one in five health insurance plans by the year 2016, one in five. the communications workers of america have estimated that this would cost families with a

federal employee health benefit, federal employees their standard plan with dental and vision benefits an average of $2,000 per year over the ten-year course of this bill. so what this issue is about is do we sock it to the middle class again with a heavy tax that over a period of years is going to impact more and more ordinary families, or do we say that at a time when we have the most unequal distribution of wealth and income, when president bush gave huge tax breaks to the wealthiest people, that maybe we ask people who have a minimum income of of $2 million a year to start picking up their fair share. i would yield to my friend. mr. brown: my understanding is -- thank you, senator sanders and senator franken, thank you for kicking this debate off and this discussion. so my understanding is so this amendment would eliminate the tax on people's health insurance

plans, even people that have pretty generous union negotiated -- not just union. obviously, when a union negotiates a good plan, the white-collar workers at those same plants and same companies often get decent plans, too. it would take away the tax for them and it would then tax what? 1%, of the wealthiest people of the country? mr. sanders: it's interesting that you ask that. what this amendment does is imposes a 5.4% surtax on adjusted gross income above above $2.4 million for individuals and $4.8 million for couples. what that means, i would tell the senator from ohio, that this impacts the top .02%. 99.98% of the american people would not pay one penny in aadditional taxes. it's the top .02%. and that is, in fact, i think the proper thing to do.

mr. brown: so that would be two out of 10,000? one out of every 5,000 families would pay that. the one out of 5,000 wealthiest families would pay that then? is that what you're saying? mr. sanders: that's right. it would be about -- of the approximately 134 million individual tax returns filed in 2005, which was the latest data that we have available, only .02% or about 26,000 individuals reported adjusted gross incomes over $2.4 million. mr. brown: 26,000 of 134 million would pay this. as we were discussing as opposed to millions of families that have good health insurance that they have negotiated or been provided by their employer. and this -- this brings me back to the discussion we had earlier this year that people talk about about -- about legacy costs, about pension and health care

that many people have, fortunately, and almost always these health benefits and pengz, people -- people who negotiated them, people earned them by giving up pay today. i'll take a little less pay today if i get good pension, good health insurance, and so that's why -- that's why you're arguing we shouldn't -- we shouldn't be taxing this insurance, i assume? senator franken. mr. franken: and let me go into this term cadillac. you know, i have never had a cadillac, but that was the thing, right? cadillac, incredible like extravagance. gold-plated extravagance. but, in fact, this would be taxing plans that really provide basic comprehensive coverage for thousands of middle-class workers and their