employers to purchase health insurance for their employees. there are no constitutional barriers for congress to legislate a health insurance mandate as long as the mandate is properly designed and executed as discussed below. this paper also considers the likelihood of a change in the current judicial approach to these legal questions. potential solutions. congress' authority to regulate commerce. the federal government has the authority to legislate a health insurance mandate under the commerce clause of the united states constitution. a federal mandate to purchase health insurance is well within the breadth of congress' power to regulate interstate commerce. congress can avoid legal challenges related to the tenth amendment and states' rights by preempting state insurance law and defending the mandate on a federal level. if congress wants states to implement a federal mandate, it has the following two options -- one, conditional spending. congress may condition federal

spending such as that for medicaid or public health on state compliance with federal initiatives or additional preemption. congress may allow states to opt out as long as states implement a similar regulation that meets federal requirements. congress' has the authority to ledge health insurance authority under its constitutional authority to tax and spend. there are no states' rights issues arising from congress's taxing and spending power. however, congress's taxation power cannot be used in a way that burdens a fundamental right recognized in the constitution's bill of rights and judicial interpretations by the u.s. supreme court. since there is no fundamental right to be -- to be uninsured, no fundamental rights challenge exists. other relevant constitutional rights. challenges under the first and fifth amendments relating to individual rights may arise but are unlikely to succeed. the federal government should

include an exemption on religious grounds to a health insurance mandate as an added measure of protection from legal challenges based on religious freedom. in the alternative, the federal government can simply exempt a federal insurance mandate for existing federal legislation protecting religious freedom. considerations: to avoid a heightened level of security to any judicial view, the fell government should articulate -- the federal government should articulate its rationale from mandating health insurance during the legislative process. then it goes on probably too lengthy for me to read. i might say, professor hall, who wrote this, is a professor at wake forest university. i'll just read the conclusion. "the constitution permits congress to legislate a health insurance mandate. congress can use its commerce clause powers or its taxing and spending powers to create such a mandate. congress can impose a tax on those that do not purchase insurance or provide tax

benefits to those that do purchase insurance. if congress would like the states to implement an insurance mandate, it can avoid conflicts with the anticommon dearing principle by -- my anticommandeering principles by conditioning federal laws on state compliance. a federal employer mandate for state and local government workers may be subject to a challenge. however, such a challenge is unlikely to be successful. individual rights challenges under the first amendment's free exeer sizexercise clause or rfrm not sure what that -- "are unlikely to succeed although a federal insurance man at mandad include a statement that fraa does not provide for a religious amendment. fifth amendment or due process takings clauses are also unlikely to be successful. an analysis is likely to endure as the supreme court's current position and approach to determining relevant

constitutional issues appear to be stable." mr. president, i suggest the absence of a quorum and ask consent the time be charged equally against both sides. the presiding officer: without objection. the clerk will call the roll. quorum call: quorum call:

mr. ensign: mr. president? the presiding officer: the senator from nevada. mr. ensign: mr. president, i ask the call of the quorum be

dispensed with. the presiding officer: without objection, the call of the quorum is dispensed with. mr. ensign: mr. president, in a little while, i will be making a constitutional point of order against the substitute amendment and i won't make that because we're working out an agreement on when we can have that vote but i want to start talking about this -- the reason i believe that this bill is unconstitutional, the individual mandate in this bill, and i'm going to be speaking for about ten minutes now and then resume my remarks at 9:30, after -- after one of the democrats comes down and uses their 15 minutes. mr. president, this constitutional point of order, if it's rejected and the health care bill reform passes, i believe that the courts should reject it on constitutional grounds. some of my colleagues may not be aware of the finance committee's debate on the constitutionality of this health reform bill.

during the committee markup of its version of the health reform bill, senator hatch raised some very thought-provoking constitutional questions. he also offered an amendment which i supported to provide a process for the courts to promptly consider any constitutional challenge to the finance committee and the reform language in that bill. he chose the same language that was put into the bipartisan campaign reform act. unfortunately, the amendment was deemed nongermane. i'm seriously concerned that the democrats' health reform bill violates the constitution of these united states. as part of comprehensive health reform, the democrats would require every single american citizen to purchase health insurance. americans who fail to buy health insurance that meets the minimum requirements would be subject to financial penalties. this provision can be found in section 1501 of the democrats'

health reform bill. it's called "the requirement to maintain minimal essential coverage." while this is a constitutional point of order, i feel it is important to note that in the declaration of independence, america's founding fathers provided that -- and i quote -- "we hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness." what happened to life, liberty, and the pursuit of happiness? i guess americans can only have life, liberty and the pursuit of happiness if they comply with this new bill and buy a bronze, silver, gold or platinum health insurance plan. america's founders and subsequent generations fought dearly for the freedoms that we have today. i question the appropriateness of this bill and, specifically, the constitutionality of this individual mandate. is it really constitutional for this body to tell all americans

that they must buy health insurance coverage? and if so, what's next? what personal liberty or property will congress seek to take away from americans next? will we consider legislation in the future requiring every american to buy a car, to buy a house, or to do something else that the federal government wants? my friend and colleague, senator hatch, raised similar questions during the debate in the finance committee. in fact, he raised the following question: if we have the power simply to order americans to buy certain products, why did we need a cash-for-clunkers program or the upcoming program providing rebates for purchasing energy-efficient appliances? we can simply require americans to buy certain cars, dishwashers, or refrigerators. mr. president, where do we draw the line or will we even draw

one at all? well, mr. president, the constitution draws that line. it's called the enumerated powers. i don't think congress has ever required americans to buy a product or service like health insurance under penalty of law. i doubt that congress has the power to do that in the first place. as the c.b.o. explained during the 1990's -- and i quote -- "a mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. the government has never required people to buy any good or service as a condition of lawful residence in the united states." yet that's exactly what this health care bill would do. this bill would require americans to buy a product that many of them do not want or simply cannot afford. some individuals may raise the example of car insurance in the

context of this debate, but requiring someone to have a car insurance for the privilege of being able to drive is much different than requiring someone to have health insurance. as senator hatch pointed out, people who don't drive don't have to buy car insurance, and senator hatch is right. if you live in new york city, you probably rely on subways or some other form of mass transit and you probably don't own a car so you have no reason to buy car insurance, yet this health care reform bill requires americans to buy health insurance whether or not they ever visit a doctor, get a prescription, or have an operation. under this bill, if you do not buy health insurance coverage, you will be subject to a penal penalty. let's call this penalty what it really is: a tax. even worse, this penalty

operates more like a taking than an ordinary tax. if an american chooses not to buy minimal essential health coverage, he or she will face rapidly increasing taxes. up to 250 -- or $750 or 2% of taxable income, whichever is greater, by the year 2016. there's no penalty for americans who qualify for hardship or religious exemptions. there's also no penalty for illegal immigrants or for prisoners. americans typically pay taxes on a product or service that they buy or on income that they earn. for example, if you fill up your car at the pump, you pay a gas tax. if you earn income, you pay an income tax. yet this bill creates a new tax on americans who choose not to buy a service. it's very counterintuitive. this bill taxes americans for not doing anything at all other

than just existing. and this penalty is assessed through the internal revenue code. senator hatch made the following statement: "if this is a tax at all, it is certainly not an excise tax. instead, it is a direct tax. and while the constitution requires that excise taxes must be uniform throughout the united states, it requires that direct taxes must be apportioned among the states by population." now, just as the excise tax on high pleem yums i preep yums is- premiums is not taxable, those who do purchase insurance is not apportioned. i recognize that the authors of this health reform bill included an individual mandate in this bill based on the idea that health care costs would be spread among all americans and would ultimately reduce their

health insurance costs. the claim is that insurance costs will be lower because of cost shifting, because cost shifting will be reduced. this cost-shift arguably takes place because health care providers -- doctors and hospitals -- who provide free or uncompensated care to the uninsured shift the cost of providing that care to the insured or paying patients. the hospital or doctor then shifts the cost of that unpaid for-care to the paying insured patient in the form of higher charges in order to cover the cost of uninsured patients. well, i understand this concept, but i'm incredibly concerned that the individual mandate provision takes away too much freedom and choice from nevadans and from americans across the

country. mr. president, i've read and studied multiple articles by scholars on the constutionality of the individual mandate. i believe the individual mandate provision in this health reform bill calls into question several provisions of the constitution, and i think that congress does not have the authority under its enumerated powers to enact such a mandate. i know the supporters of the individual mandate have claimed that the commerce clause and the taxes in general welfare clause in article 1, section 8, of the constitution provide authority for congress to act -- enact such a mandate. well, i wholeheartedly disagree with that assessment. according to the constitution, the federal government only has limited powers. although the supreme court has upheld some far-reaching regulations of economic activity, most notably in wicker vs. philburn and gonzalez vs.

reich, neither case sports the individual health insurance mandate on the commerce clause. in these cases, the court held that congress was allowed to regulate intra state economic activity as a means to regular interstate commerce -- as a means to regulate interstate commerce in fungible goods. the mandate to purchase health insurance, however, is not proposed as a means to regulate interstate commerce. nor does it regulate or prohibit activity in either the health insurance or the health care industry. the mandate to purchase health insurance does not purport to regulate or prohibit activity of any kind, whether economic or noneconomic. instead, the individual mandate provision regulates no action. it purports to regulate

inactivity by converting the inactivity of not buying insurance into commercial activity. so, in effect, advocates of the individual mandate contend that the congressional power to regulate commerce among the several states, congress may reach the doing of nothing at all. in recent years, the supreme court has invalidated two congressional statutes that attempted to regulate noneconomic activities. to uphold the individual mandate based on the commerce clause, the supreme court would have to concede that the commerce clause provides unlimited authority to regulate. this is a position that the supreme court has never affirmed and that it rejected in recent cases. congress lacks the authority to regulate the individual's decision not to purchase a

service or enter into a contract. so similarly, i believe that congress cannot rely on its power to tax, to justify imposing the individual mandate. this mandate amounts to a taking under the fifth amendment takings clause. i'd like to take for a moment -- i'd like to take a moment to read the relevant parts of the fifth amendment. it says in part, "no person shall be deprived of life, liberty or property without the due process of law, nor shall private property be taken for public use without just compensation." now let me repeat the part of the fifth amendment that most applies to the issue at hand. it says "nor shall private property be taken for public use without just compensation." the bill before us today would require an american citizen to devote a portion of its -- of

his or her income. that's his or her private property to health insurance coverage. there's an exception, of course, for the religious religions or for financial hardships. but, mr. president, if one of my constituents in nevada does not want to spend his or her hard-earned income on health insurance coverage and would prefer to spend it on something else such as rent or a car payment, this requirement could be a taking of private property under the fifth amendment. as noted in a recent article coauthored by dennis smith and former deputy general counsel of the department of health and human services, peter urbanowitz, requiring a citizen to purchase health insurance could be considered an arbitrary and capricious taking, no matter how many hardship exemptions the federal government might

dispense. some of my colleagues also may be familiar with david b. ribkin and lee a. casey. they are washington, d.c.-based attorneys who served in the department of justice during the reagan and bush administrations. in september rivkin and casey published an article in the op-ed. i urge my colleagues to read this article and many others i will be submitting for the record. in the op-ed rivkin and casey argue that the health insurance mandate -- and i quote -- "would expand the federal government's authority over individual americans to an unprecedented degree." it also is profoundly unconstitutional. making healthy adults pay premiums into the national health care market is the only way to fund universal coverage

without raising substantial new taxes. would be one more giant cross jenningsal subsidy. imposed on generations stuck with a bill for the federal government's prior spending sprees. a tax that falls on anyone uninsured is a penalty beyond congress's shortcy. if the rule were otherwise, congress could evade any constitutional limits by taxing anyone who does not follow an order of any kind. the power to tax involves the power to destroy. well, unfortunately this could certainly be true in the context of this health bill. we in congress must zealously defend our citizens' right and

prevent this from happening. i e that the legislation before us violates the greatest political document in the history of the world -- the constitution of the united states. i urge my colleagues to think very, very carefully about the constitutional issues that i've raised. now i know that most people around here don't like to talk about whether something's constitutional. we just want to do whafls good -- what feels good because we think we're helping people. but our founders set forth in the enumerated powers limits on what this body and this federal government could do. and as members of congress, one of our most important responsibilities is to protect, to defend and preserve the constitution of the united states. in that light, it is not only appropriate but essential for this body to question whether it

is constitutional for the federal government to require americans to buy health insurance coverage. we should also question whether it is constitutional for the federal government to tell americans what kind of health insurance coverage that they have to purchase. so not only does this bill tell them they have to buy health insurance, it tells americans what kind of health insurance must be purchased. americans also deserve to know how the bill will impact their ability to choose the health insurance coverage that best fits their needs. so that's exactly why i'm raising this constitutional -- or will raise this constitutional point of order. freedoms -- freedom and choice are very precious rights. let's not bury our heads in the sand and take away freedom and choice from american citizens. we need to think about this

individual mandate very carefully. now, mr. president, i have several articles here, and i'd like to read a couple of quotes from these articles. the first one is by -- from "the washington post" by david rivkin and lee a. casey. it says in here "the otherwise uninsured would be required to buy coverage not because they were even tangentially engaged in the production, distribution or consumption of commodities, but for no other reason than that people without health insurance exist. the federal government does not have the power to regulate americans simply because they are there. americans significantly in two cases -- united states vs. lopez

1959 and -- 1995 and united states vs. morrison in 2000 -- the supreme court specifically rejected the proposition that the commerce clause allowed congress to regulate noneconomic activities merely because through a chain of causal effects they might have an economic impact. these decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that by enumerating its powers, the framers denied congress the type of general police power that is freely exercised by states." mr. president, i would just ask consent that after the senator from illinois, that my statement in the record would appear as if i had given it continually. the presiding officer: without objection, it will be so shown in the record. mr. ensign: i will yield to the democrat side of the aisle. the presiding officer: the senator from illinois.

mr. burris: mr. president, thank you. i'd like to thank the senator from nevada for that courtesy. thank you, mr. president. as this debate draws to a close and my colleagues and i prepare to vote on a health care reform bill, i recognize the long hours and tense negotiation have left some nerves and tempers frayed. that's why i come to the floor today, although our work keeps us away from our family and friends for much of this holiday season, i see no reason why we can't share good cheers with one another right here in washington. so in the spirit of the season, mr. president, i would like to share my own version of a classic holiday story with my good friends on both sides of

the aisle. and it goes something like this, mr. president: it was the night before christmas. it was the night before christmas, and all through the senate the right held up our health care bill, no matter what was in it. the people had voted a mandated reform but republicans blew off the gathering storm. we'll clog up the senate, they cried with a grin. and in the midterm elections, we'll get voted in. they knew regular folks needed help right this second but fund-raisers lobbyists and politics beckoned. so try as they might democrats could not win because the majority was simply too thin. then across every state there rose such a clatter, the whole

senate rushed out to see what was the matter. all sprang up from their desk and ran from the floor, straight through the cloakroom and right out the door. and in what in the world would be quite so raucous, but a mandate for change from the democratic caucus. the president, the speaker, of course leader reid had answered the call in our hour of need. more rapid than eagles, the provisions they came and they whistled and shouted and called them by name better coverage, cost savings a strong public plan accountable options. we said yes, we can. no exclusions or changes for preexisting conditions. let's pass a bill that restores

competition. the democrats all came together to fight for the american people that christmas eve night. and then in a twinkle, i heard under the dome the roll call was closed, and it was time to go home. despite the obstructionist tactics of some, the filibuster had broken, the people had won. and a good bill was ready for president obama, ready to sign and end health care drama. democrats explained as they drove out of sight, better coverage for all, even our friends on the right. and i say to all of my colleagues in this season, merry christmas and a happy, happy new year. thank you, mr. president. and i yield the floor.

the presiding officer: the senator from nevada. mr. ensign: mr. president, to read further from the article in "the washington post," "like the commerce power, the power to tax gives the federal government vast authority over the public and it is well settled that congress can impose a tax for regulatory rather than purely revenue raising purposes, yet congress cannot use its power to

tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision. in the 1922 case bailey v. drexel furniture, the supreme court ruled that congress could not impose a tax to penalize congress. the utilization at that time of child labor. it could also not -- it could not also regulate under the commerce clause. although the court's interpretation of the power breadth has changed since that time, it has not repudiated the fundamental principle that congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power. of course, these constitutional impediments can be avoided if congress is willing to raise corporate and/or income taxes enough to fully fund a national -- new national health system. absent this politically

dangerous and, therefore, unlikely scenario, advocates of universal health coverage must accept congress's power. like that of any other branches has its limits. these limits apply regardless of how important the issue may be and neither congress nor the president can take constitutional shortcuts. the genius of our system is that no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the constitution mandates, processes that inevitably make them accountable to the american people. i want to read from another paper that was written by randy barrett, nathaniel stewart, and tom gaziano.

"members of congress have the authority pursuant to their oath to determine the constitutionality of legislation. independently of how the supreme court has ruled or may rule in the future? but senators and representatives also should know that despite what they have been told, the health insurance mandate is highly vulnerable to a constitutional challenge because it is, in truth, unconstitutional and all other considerations aside, the highest obligation of each member of congress is fidelity to the constitution. and i would ask unanimous consent that the articles that t we have before us be made a part of the record. the presiding officer: without objection, they will be made a part of the record. mr. ensign: a long list of

supreme court cases says that congress may regulate activities pursuant to the commerce power. these categories were first summarized in perez v. united states and most recently in gonzalez versus reich. first, congress may regulate the channels of interstate and foreign commerce, such as the regulation of steamship, railroad, highway or aircraft transportation or prevent them from being misused. as, for example, the shipment of stolen goods or of persons who have been kidnapped. second, the commerce power extends to presenting the instrumentalities of congress, as, for example, the destruction of an aircraft or persons or things in commerce, as, for example, thefts from interstate shipments. third, congress may regulate economic activities that substantially affect interstate commerce. under the first prong of the

commerce clause analysis, the court asks whether the class of activities regulated by the statute falls within one or more of these categories. since the individual health insurance mandate is not even arguably a regulation of a channel or instrumentality of interstate commerce, it must either fit in the third category or none at all. the senate bill asserts erroneously that the individual responsibility requirement is commercial and economic in nature and substantial ally affects interstate -- substantially affects interstate commerce and that is commercial and economic in nature. economic and financial decisions about how health care is paid for and when health insurance is purchased. that's within the bill.

the second prong of the court's commerce clause analysis requires a determination that a petitioner has, in fact, engaged in the regulated activity, making him or her a member of the regulated class. in its modern commerce clause cases, the supreme court rejects the argument that a petitioner's own conduct or participation in the activity is, by itself, either too local or trivial to have a substantial affect on interstate commerce. rather, the court has made clear that, where the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise as trivial individual instances of the class. thus, for example, a potential challenger of the proposed mandate could not argue that,

because his -- her own decision to purchase the required insurance would have little or no effect on the broader market, the regulation could not be constitutionally applied to her. the court will consider the affect of the relevant class of activity, not that of any individual member of the class 78 --class. so to asset the constitutionality of the claim of power under the commerce clause, the primary question becomes: what class of activity is congress seeking to regulate? only when this question is answered can the court assess whether that class of activity substantially affects interstate commerce. significantly, the mandate imposed by the pending bills does not regulate or prohibit economic activity of providing nor administering health insurance nor does it regulate

or prohibit the economic activity of providing health care, whether by doctors, hospitals, pharmaceutical companies, or others engaged in the business of providing a medical good or service. indeed, the health care mandate does not purport to regulate or prohibit activity of any kind, whether economic or noneconomic. to the contrary, it purports to regulate inactivity. in other words, not buying health insurance. proponents of the individual mandate are contending that under its power to regulate commerce among the several states, congress may regulate the doing of nothing at all. in other words, the statute purports to convert inactivity into a class of activity. by its own plain terms, the individual mandate providing regulates the absence of action. to up hold this power under its

existing doctrine, the court must conclude that an individual's failure to enter into a contract for health insurance is an activity that is economic in nature; that is, it is part of a class of activity that is substantially -- that substantially affects interstate commerce. never in the nation's history has the commerce power been used to require a person who does nothing to engage in economic activity. bet at the we tealet -- let me repeat that. never in the history has the commerce power been used to require a person who does nothing to engage in economic activity. let at the close with this because i see the senator -- senior senator from utah is on the floor who has argued eloquently on the unconstitutionality of this particular provision. today, even voting is not constitutionally mandated, but if the precedent that's in this

bill is established, congress would have the unlimited power to regulate, prohibit or mandate any or all activities in the united states. such a doctrine would abolish any limit -- listen to this -- such a doctrine would abolish any limit or on federal power and alter the fundamental relationship of the national government to the states and the people. for this reason, it is highly doubtful that the supreme court will uphold this assertion of power. mr. president, i would reserve the balance of our time and i would yield to the senior senator from utah. mr. hatch: mr. president? the presiding officer: the senator from utah. mr. hatch: mr. president, i rise in support of the constitutional point of order against the legislation before us to be raised by the distinguished senator from nevada. now, i applaud the distinguished senator from nevada for taking this step so that all senators

can take a position on whether or not this legislation is constitutional. or whether this legislation is consistent with the constitution each of us has sworn to protect and defend. the senator from nevada serves with me on the senate finance committee and he will remember that i started raising constitutional questions and objections against this legislation more than three months ago, during the committee markup. and so has he. this body has spent its time debating the policy of this legislation. this is a terrible piece of legislation that will raise insurance premiums, raise taxes and limit access to care. i ask consent that an editorial from yesterday's "wall street journal" titled "change nobody believes in" will be placed in the record following my remarks. the presiding officer: without objection. mr. hatch: from the standpoint of policy, we should not pass this bill.

perhaps more importantly, from the standpoint of the constitution, we may not pass it. much has changed since the founding of this great country, but one thing has not: the liberty we love depends on limits on government. it requires limits on government. it always has and it always will. america's founders knew that and built limits into the system of government that they establish established. those limits come primarily from a written constitution that delegates enumerated powers to the federal government. we must point to at least one -- at least one of those powers as a businesses for any legislation we pass. the constitution and the limits it imposes do not mean whatever we want them to mean here in this body. this legislation brings america into completely uncharted political and legal waters, and i would not be at all surprised

if there is litigation challenging it on constitutional and other grounds. in the finance committee, i offered an amendment to add a procedure for the courts to handle constitutional challenges in an expedited fashion. the finance committee chairman ruled that amendment out of order so that it could not even be considered. that was his decision but that means any future challenges will be handled the old-fashioned w way, even if that means an extended rather than an expedited process. i ask consent that a member proprepared by the conservative action project be placed in the record following my remarks. the presiding officer: without objection it will be so placed. mr. hatch: i thank the chair. signatories include former u.s. attorney edwin meese, karen kerrigan and brian mcmahonness for affordable health insurance. let me mention the

constitutional objections i've been raising for the past few months and which the distinguished senator from nevada has carefully raised this morning. first, the only enumerated power that conceivably can support the mandate for individuals to purchase health insurance is the power to regulate interstate commerce. since the 1930's, the supreme court has expanded this power to include regulation of activities that substantially affect interstate commerce. but the key word here is "activities." congress has never crossed the line between regulating what people choose to do and ordering them to do it. the difference between regulating and requiring is liberty. i agree with the 75% of americans who believe that the insurance mandate is unconstitutional because congress's power to regulate an interstate commerce does not include telling americans what they must buy. second, the financial penalty in

forcing the insurance mandate is just that: a penalty. it is not a tax. therefore, it is constitutional only if the insurance mandate it enforces is constitutional. if it is a tax, it is a direct tax on individuals rather than an excise tax on transactions, and, therefore, it violates article 1, section 9 of the constitution which requires the direct taxes be apportioned according to population. third, the excise tax on high cost insurance plans which applies differently in some states than in others is unconstitutional because it is not uniform throughout the united states as required by article 1, section 8, of the constitution. the supreme court has said that to be uniform as the constitution requires, an excise

tax must same force and effect wherever the subject of that tax is found. not only is this not the case with this tax, which makes it plainly unconstitutional, but that is exactly the design and intention of those who drafted this legislation. fourth, the legislation orders states to establish health benefit exchanges which will require states to pass legislation and regulations. if they do not, or even if the skra*eur health and -- secretary of health and human services believe they will not by a certain date, the secretary will step into each state and establish and operate this exchange for them. this is a direct violation of the division between federal and state government power. the supreme court could not have been clearer on this point, ruling over and over that congress may regulate individuals but may not regulate states. congress has no authority to

order states in their capacity as states to pass legislation. we have encouraged states to pass legislation. we have bribed them in this bill. we've even extorted them by threatening to withhold federal funds. but this legislation simply commandeers states and makes them a little more than something of the federal government. the supreme court held state legislatures are not subject to federal direction and reaffirmed categorically its earlier holding that it cannot compel the states to enact or administer a federal regulatory program. that should be clear enough for senators to understand here in this body. i was amazed to learn that when president franklin d. roosevelt chose frances perkins as

secretary of labor, they discussed policy legislation including health insurance. as secretary perkins later described it, they agreed that such legislation would pose -- quote -- "very severe constitutional problems." including fundamentally ordering federal-state relationships. that is why the social security act relies on the payroll tax. even the roosevelt administration, which oversaw the most dramatic expansion of federal power in our nation's history, would not go as far as the legislation before us today wants to go, or would go. should this legislation become law, there would be nothing that the federal government could not do. nothing. congress would be remaking the constitution in its image rather than abiding by the constitution's limits as liberty requires. there must come a time when we say that the political ends cannot justify the

constitutional means. that the constitution and the liberty it protects are more important than we wonderful members of congress are. that time is now, and that is why i will vote to sustain this constitutional point of order. and i want to personally thank and congratulate the distinguished senator from nevada for his work on this issue, for his work on the committee, because he was one of the more energetic and more capable people on the committee in raising some of these very important issues like this constitutional set of issues that we've been discussing over this short period of time today. so i'm grateful for him. i'm grateful that he's raised it. i'm grateful to be able to be here on the floor to support him in his raising of the constitutional point of order when he chooses to do so. mr. president, i yield the floor. mr. ensign: mr. president? the presiding officer: the senator from nevada. mr. ensign: i know we're waiting for the chairman of the

finance committee to come and ask unanimous consent. but i just in the meantime, in the few seconds, i just want to thank the senator from -- the senior senator from utah. he's one of the best constitutional scholars that we have here in the united states senate, and i appreciate his words and analysis on why this bill is unconstitutional. i think his words were eloquent this morning, and i appreciate his support as i raise this constitutional point of order. i would yield to the senator from montana, the chairman of the finance committee. mr. baucus: mr. president? the presiding officer: the senator from montana. mr. baucus: mr. president, i have a unanimous consent request that i understand has been cleared by both sides. i ask consent that after senator ensign raises the point of order, that the reid substitute amendment 2786 is a violation of the constitution, that the point of order be set aside to reoccur on wednesday, december 23, at a time to be determined by the majority and republican leaders. the presiding officer: is

there objection? without objection, so ordered. a senator: so, mr. president. mr. ensign: mr. president? the presiding officer: the senator from nevada. mr. ensign: i rise to make a constitutional point of order against this bill on the grounds that it violates congress's enumerated amendment, powers in article 1 and that it violates the fifth amendment of the constitution. i ask for the yeas and nays. the presiding officer: pursuant to the unanimous consent, the point of order shall be set aside until a time tomorrow to be determined by the majority leader and the minority leader. mr. ensign: thank you. the presiding officer: is there a sufficient second? there appears to be a sufficient second. the yeas and nays are ordered on the point of order. the clerk will call the roll.

quorum call: mr. sessions: mr. president? the presiding officer: the distinguished senator from alabama. mr. sessions: i would ask that the quorum call be dispensed with. the presiding officer: without objection, the quorum call will be dispensed with. mr. sessions: mr. president, i'd like to share some thoughts on, i think, a central issue to this health care reform legislation, and it's something that's gotten away from us. i don't believe we fully comprehended it. it's a critical issue. it seems to me that we're double counting money. we're counting money twice.

maybe the largest amount of money ever been counted twice in the history of the world. and it's just very dangerous with regard to the financial viability of the legislation that we're looking at today. it was promised by the president that this legislation would not add one dime to the national debt. he said yesterday that this legislation would strengthen medicare and -- quote -- "-- this is his quote. "and medicare will be stronger and its solvency extended by nearly a decade." close quote. i don't think that's accurate. we've had other members of the democratic leadership say that.

and what we know is we've got about over 400, i think it's about $460 billion in tax increases and a little -- $490 billion, i believe, tax increases and a little less than that, $400-some-odd billion in savings for medicare. that accounts for the $871 billion that the bill is supposed to cost in the first year. of course -- first ten years. and of course that's not an accurate ultimate cost, since most of the benefits in the bill don't start until the fifth year. so when you go the first full ten years of the bill, it costs $2.5 trillion. but regardless, let's take this first ten years.

the assertion is that medicare is -- can be improved and that we can take money from it, and that this is going to be, make medicare stronger. and somehow this is going to extend the solvency of medicare, which is going insolvent by 2017. that's because more and more seniors -- more and more people are retiring and people are living longer, among other reasons. and so the cost of medicare goes up. all right? so, i guess what i'm framing now is what i believe to be a matter of the greatest importance. and so the argument is that somehow by cutting benefits in medicare, by almost half a trillion dollars, we're somehow

strengthening medicare. that would be true if the money that was taken out of medicare programs and benefits and providers who are providing the benefits, if that money were maintained in medicare. okay? so, they go to the c.m.s., the institution that's, keeps up with medicare costs -- the center for medicare and medicaid services. the chief actuary there, mr. richard foster, and they ask him, won't these reductions in medicare expenses extend the life of medicare? and he said yes. okay? he said yes. he writes this: "we estimate that the aggregate net savings to part-a trust fund under the

ppaca -- that's the health care reform bill -- would postpone exhaustion of the trust fund assets by nine years. that is from 20 1-r7 under current law to 2026 under the proposed legislation." great. that's not a bad result. but then he goes on. i think he was simply asked, if you reduce spending in medicare by effecting these cuts and reductions in medicare, will it extend the life? and he said it would. however, i think he felt he might have been used, and so he didn't leave it right there. i think he knew that there was something else afoot in this deal.

he goes on to say this -- quote -- "in practice, the improved part-a financing" -- that's what he's talking about, these cuts. "the improved part-a financing cannot be simultaneously used to finance other federal outlays (such as the coverage expansions under the ppaca). the health care bill. "and to extend the trust fund, despite the appearance of this result from the respective accounting conventions." now maybe i'm wrong about this. i'm having a lot of people look at it. i mean, wait a minute. we've got the president of the united states yesterday saying that "medicare will be stronger

and its insolvency extended for nearly a decade." we've got senator durbin and i think senator baucus and others saying the same thing. so, we're talking about $400 billion. so, i would think this congress can get a straight answer somewhere. don't you? well, i've been asking staff, and they say it's double counting. i say what do you mean it's double counting? senator gregg, the ranking republican on the budget committee, former chairman of the budget committee, he says it's double accounting. he offered an amendment, a simple amendment that said, well, any money that's saved in medicare stays in medicare. did that pass? no. they voted that down. that should be a signal, i

submit. that should be a red flag. so now i'm looking at this really, really hard because the way i see the financial accounting of the bill, perhaps the largest bogus part of it is to say that the money that's being saved from medicare is going to create this new program and at the same time saying the savings in medicare are going to be used to extend the life of medicare. you can't do both. and that's what mr. foster said in his letter of december 10. "in practice, the improved part-a financing." he's talking about the improved part-a financing of medicare by these cuts. "the improved part-a financing cannot be simultaneously used to finance other federal outlays

(such as coverage expansion of the ppca and to extend the trust fund. n.n." all right. you got it let's go back and leave out the parenthesis here. financing cannot be simultaneously used to finance other federal outlays and to extend the trust fund despite the appearance this result would have -- respective accounting conventions. so they got c.b.o. to score it as if the money is going for you into the new health care reform. they get c.m.s. to score it as if it's saving medicare. now, i was a federal prosecutor for a long time. i know the responsibilities place odd -- placed on presidents of corporation. and if a president of a corporation would have issued a prospectus and asked people to

invest money into his company and support his program, his agenda, and he said i've got $400 billion or $400,000 i'm going to spend in it and he knew that the money was being spent on something else and he didn't really have that money, that's a criminal offense. and people would go to jail for it. i'm really worried about. this is unbelievable. so we're going on get to the bottom of this. if i'm wrong, i'd like to see where the money's coming from. so the question to my colleagues is -- and apparently this has been asked by staff for weeks and never gotten a straight answer -- where do you get this $871 billion? how much of that are you

counting coming from savings in medicare? and where precisely are you getting it from medicare? and if you're going to spend it on the new program, how are you going to say it's going to strengthen medicare ace insolvency problem? you can't count the money twice, and i believe that's what mr. foster was suggesting, that you can't simultaneously count the money, despite the appearance of this result from the respective counting conventions. what he's saying is that c.b.o. is following proper accounting conventions for their scoring and c.m.s. is doing it their way and it gives the appearance that you got some money that can be spent twice. but he said that you can't

multily use the same money. now, isn't that true. but in this body, i don't know. what's another fundamental matter of budgetary importance that goes with it? the president has repeatedly said that not one dime will be added to the national debt, and it shouldn't be. we cannot continue to do that. so when this legislation start started, the idea was that we needed to reform a lot of problems in our health care situation. and one of the problems that everybody recognized was that the doctors are not getting paid in a proper fashion for the work that they do. under the balanced budget act of 1997, we effected rules on how much doctors should be paid.

and if those rules went into effect today, doctors would have a 21% pay caught all medicare work. and already, medicare physicians are leaving the practice because they get paid much less from the federal medicare program than they do from private health insurance. so they'd rather do private work than medicare but they do medicare, most doctors do. but if you took them another 21% down, they would not. and every year they come here and they ask the congress to raise this cut, and congress, as part of the do yo duplicity of s body that's gone on under both parties -- but each year it gets worse and worse -- we fix it and we don't execute the cut. but we only do it for one year.

so when we have a budget, it assumes a 10-year budget, as president obama submitted to us, it assumes the first year you pay the physicians and you don't cut their pay and then for nine years you assume that they don't, they get a 21% reduction. it's a gimmick. because you can't cut the physicians 21% and we know that. and if we budgeted for the full amount we're going to have to pay physicians and are going to pay physicians, then it would be a big hole because we don't have the money, and we either got to cut something else, raise taxes or raise the debt. what we've been doing is paying for it with more debt. well, each year the doctors get all upset because they're staring at 21% -- a 21% pay cut.

and all the representatives, the a.m.a., everybody comes up here every year and says, "don't cut our pay" and we don't. one year at a time. and this is misrepresentation. it hides the financial precariousness of our position. it's not good, should never continue. it needs to be permanently fixed, and that was supposed to be part of health care reform from the beginning. the president said that's what he was going to do. the leadership on the other side said that's what they were going to do. but what happened when they met in their secret rooms and they all wheeled and dealed and tried to add up these numbers and see how they could manipulate numbers and scores and accounting to make it add up so they could say it wouldn't add one penny to the debt, they couldn't get around the $250 billion it takes to pay the doctors.

they couldn't do it. they say under this bill, there is $130 billion surplus over the first 10 years. but it doesn't fix the doctor payments for medicare and health care work, medicaid. it doesn't fix it. so when you fix it, it costs $250 billion. there's no dispute about that. we've analyzed that. the accounting numbers are clear, $250 billion. so what the democrats tried to do, it was a clever -- senator ensign referred to it the other day as a shell game. they moved the doctor fix out of the health care reform. just took it out. and so, therefore, you don't have the $250 billion hole and you just put it over here. and they thought they would be

clever, they would just pass it and we would add it all to the debt, and they tried to do so so they could tell the doctors they tried to vote -- have a permanent fix of medicare -- of their payments. doctors, we're going to take care of it. we'll just pass it and every penny of this will add to the debt. well, 13 democrats wouldn't swallow that i think and every republican opposed it and it went down. so now we had a two-month fix, i think, two months, it's where we're working on today so we wouldn't have a slashing of payments to physicians by a failure to fix it. so they just took it out and i assume that we're going to have some other gimmick to hide that $250 billion. so if you put the $250 billion costs into medicare -- in health care reform, you end up with $120 billion deficit right off the bat. then when you get into this

double accounting of $45 $450 billion, you've really got a mess. they're estimating $871 billion income for the first ten years of this plan, and as i analyze it, you've got a $250 billion hole from not paying the doctors and then you've got a $400 billion-plus double accounting of the savings from medicare it's just not good. just not good. and i'm telling you, we only have one president and he's got a lot of things on his mind and it's very frustrating. but i'll say one more thing he said at that press conference. he said -- and he's repeatedly stated it's going to reduce health care premiums for your insurance.

right? now, this was yesterday. after this bill passed, he says, "he's tired of people carping about the cost of the bill." remember him saying that? tired of these carpers. i guess he's talking about me. because i've been carping about the cost of it for some time because the numbers do not add up. all right. they claim that the legislation will reduce insurance costs. this is the score of the c.b.o. about small businesses. what about insurance premiums? if you're small businesses, their average premiums today for a family is $13,300. if the reid bill passes, by 20

2016, the premiums will be $19,200. is that cutting premiums? well, yeah, it is, because under the reid bill, it would increase on average $5.38 -- on average 5.38%, but if we didn't pass any bill at all, it would increase it 5.46% so it saved money, saved your premium, reduced your premium. it would be $19,300 instead o of -- $19,200 instead of $19,300. that's for small businesses. what about large businesses? does it save insurance premiums there? under large business plans, the reid bill, the increase, if we pass this legislation, would be

5.41% per year increase in your premiums. and if you doubl you don't passl at all, it would be 5.56%. is that a savings? very little. instead of $21,100, under the reid bill, you'd pay $21,300. and then finally, the individual market -- these are the people already are the ones getting hurt because they're not in group plans, they don't have employers paying a third or a half or whatever the insurance. they pay -- they don't get the same tax breaks. they're getting killed. barbers, individual people who can't get in the group plans. it's horrible for them. what happens to the individual market? under the reid bill, their premiums would go up 7.77% per year. go up more than the others.

and what about if we didn't do anything, how much would their bills go up then, their insurance bills? only 5.51%. theirs goes up 2 -- more than 2%. i'm just saying, this legislation may have a great vision, it may have a great idea about trying to make the system work better, but it doesn't. these are huge costs. it's not financially sound. it's not going to reduce our premiums. it's going to increase the percentage of wealth in america going to health care instead of reducing it like we i thought -i thought we were supposed to do from the beginning. i see my colleague, senator kyl here. we'll leave it at that. if i'm correct about these numbers, we shouldn't vote for

the bill. people should change their vote. if i'm in error, i'd like to be informed of how i'm in error. i will yield the floor. mr. kyl: mr. president? the presiding officer: the senator from arizona is recognized. mr. kyl: i listened carefully to what my colleague said. as a member of the finance committee, i can tell him he's not in error. what he said is is true about premiums going up under this legislation. the promise was that premiums would not go up. they teurpb to go up. -- they continue to go up. in the case of the individual market the legislation itself causes them to go up between 10% and 13%. my colleague is not in error. mr. president, i think if the reid bill has a motto it is "in government we trust." with the turn of every page it is no exaggeration to say the bill creates a washington takeover of health care. $2.5 trillion in new government spending, $494 billion in new taxes $465 billion in medicare cuts. higher health insurance premiums for individuals, families and

businesses. it's packed with new federal requirements and mandates that amount to a stunning assault on liberty. even in the absence of government-run insurance plan this, bill would give the government virtually total control over health care. the bill itself is the government option. michael cannon, a health policy expert at the cato institute, warns the bill's linchpin, the requirement that all individuals buy a government-approved insurance plan, would be the most sweeping and dangerous measure in any of the bills before congress. of course the congress mandates that every american purchase health insurance and congress gets to define exactly what that health insurance entails. welcome to the future of bureaucrats and politicians know what's best for families and small businesses and seniors. for example, under this legislation, the government would set new federal rating rules. rating rules that say how

carriers may calculate premiums. determine coverage benefits for all plans regardless of consumer preferences or health care needs. limit insurers to offering only four plans. you have to offer two. you can't offer any more than four. prohibit individuals overt age of 30 from enrolling in a catastrophic health care plan and highlight the magnitude of government interference and micromanagement, the bill even dictates the number of pages -- by the way, it's no more than four -- and the font size, no smaller than 12 point -- of the summary of benefits. indeed the word "shall" appears 3,607 times in the reid bill. and, mr. president, i haven't had a chance to count how many more times it appears in the almost 4 hundred-page amendment that has been now filed. in my view, however, the most

dangerous consequence of a washington takeover of health care is the inevitable rationing that will result in the delay and denial of care. ensuring access to the highest-quality care and protecting the sacred doctor-patient relationship should be the fundamental goals of any health reform effort. these intangibles are the cornerstones of u.s. health care, the very things that americans value most but that the reid bill puts in jeopardy. don't look for the words ration or withhold coverage or delay access to care in the bill. obviously they're not there. but instead contemplate the inevitable result of new federal rules that aim to reduce health care costs but will inevitably result in delayed or denied tests, treatments, procedures deemed to be too expensive. for example, the reid bill would establish a medicare commission. this is an unelected body of bureaucrats with the task of

finding -- and i'm quoting here -- "sources of excess cost growth." end of quote. meaning, of course, tests and treatments that are allegedly too expensive or whose coverage would mean too much government spending on seniors. the commission's decisions will result in the delay and denial of care. medicare already delays more medical claims than private insurers do. this bill would redistribute medicare payments to physicians based on how much they spend treating seniors. it would rely on recommendations from the u.s. prevent i have task force, the entity that recommended against mammograms for women under the age of 50, to set preventive health care benefits. and it would authorize the federal government to use comparative-effectiveness research when making coverage determinations. mr. president, this last issue, comparative-effectiveness issue, that i want to discuss in more detail. the reid bill would create a new entity called the

patient-centered outcomes research institute to conduct comparative effectiveness research. this research, which is already done in the private sector, compares the effectiveness of two or more health care services or treatments. and, of course, it's used to provide doctors with information as to what works best in most cases. the goal is to provide patients and doctors with better information regarding the risks and benefits of a drug, let's say, for example, versus surgery in a particular kind of case. the question before us is not as to the merits of the research but rather whether the research should be used by the government to determine the treatments and services covered by insurance. in a recent interview, president obama said -- and i quote -- "what i think the government could do effectively is to be an honest broker in assessing and evaluating treatment options." end of quote. the president believes the government should assess and evaluate health care treatments and certainly that's how health care works in other countries

like great britain. for example, there they have the national institute for health and clinical excellence, the acronym is "nice." and nice routinely uses effectiveness research to make cost calculations. on its web site nice says -- and i quote -- "with the rapid advancement in modern medicine most people accept no publicly funded health care system can possibly pay for every new medical treatment which becomes available. the enormous costs involved mean that choices have to be made." end of quote. choices are made. and this is the key. they are made by the government, not by patients and doctors. the national health service which runs britain's health care system issued guidance known as the live pool care -- life pool care pathway whereby a doctors can withdraw fluids from a patient if a medical team diagnoses the patient is close to death.

many are put on continuousizations so they -- sedations so they die free of pain. doctors warn some are being put wrongly on the pathway which fulfills the prophecy that they would die because sedation often masks signs of improvement. also due to excessively long waiting periods, the national health service launched what they called an end waiting changed lives campaign. the goal here was to reduce patients' waiting times to 18 weeks from referral to treatment. 18 weeks. that's supposed to be a good thing. that's four and a half months for an appointment. this is why many europeans and canadians visit the united states each year in places like the mayo clinic in arizona for access to the treatments that are denied to them in their own countries. these are the dangers of a government-run health care system. the government, not the patients and doctors, make the health care decisions. the government decides if your health care is an effective use

of government resources. and the government inevitably interferes in your ability to access care. that's rationing, and it's would wrong. this is not what americans want and expected from health care reform, yet it's precisely the path congress has taken. perhaps that's why 61% of americans disapprove of this bill. nothing in the reid bill would prohibit the federal government from using comparative-effectiveness research just as it's done in britain, as a tool to delay or deny coverage of a health care treatment or service. the bill actually empowers the secretary of health and human services to use comparative effectiveness research pwhe making coverage determinations. for example, on page 1,684 of the original bill, it says the secretary may only use evidence and findings from research conducted under section 1181 to

make a determination regarding coverage, and so on. as the washington examiner notes, health and human services secretary kathleen sebelius would be awarded unprecedented new powers under the proposal, including the authority to decide what medical care should be covered by insurers as well as the terms and conditions of coverage and who should receive it. the reid legislation lists 1,697 times where the secretary is given the authority to create, determine, or define things in the bill. i know that my colleagues will point to language that says, well, the secretary can't make these decisions on rationing care solely on the basis of comparative-effectiveness research. whoopee. i'm not sure if that is a word we can ute on the senate floor. but big deal. you can't make it solely on the basis, but you can use comparative-effectiveness research to ration care.

that's wrong. and that's what this bill permits. and despite numerous times to get a simple amendment that i've offered to say no comparative-effectiveness research can be used by a federal agency to deny care or treatment. simple. the other side says, no, we've already got it covered. it's good enough. our language is fine. you don't need that simple statement that would prevent this research from being used in that fashion. i think it's pretty clear that the attempt here is to be able to do it. i asked during the finance committee the majority counsel why they didn't bar the federal government from using comparative-effectiveness research as a tool to ration care, and the staff replied -- and i quote -- "the reason why we did not include an expressed prohibition is we did not want to limit the institute from science that had a budgetary impact, if you will." that is of course precisely the problem. americans do not want the federal government using this research as a cost-cutting tool.

as dr. herzlinger warns it could be health care rationing by the federal government without the appropriate safeguards. that's why earlier this year i joined senator mcconnell and senators roberts and crapo in introducing the patients act which, by the way, is supported by the american medical association. and it creates this fire wall to prevent the use of research for rationing. we filed it as an amendment, but of course we're not going to be able to vote on it now that cloture has been invoked. this is the third time this year we've tried to institute this pro-patient fire wall, but obviously we're not going to be able to vote on it, as i said. mr. president, from the very beginning of the health care reform debate, i believed that any bill should be rooted in a simple yet fundamental principle, that every american should be able to choose the doctor, hospital, and health plan of his or her choice. no washington bureaucrat should interfere with that right or substitute the government's judgment for that of a

physician. there's nothing more important to americans other than maybe their freedom than the health of their family. and that does, by the way, include an element of freedom obviously. the freedom to do what you think is best for your family. we'd all do anything we could to help a loved one. we don't want washington impeding our ability to do so. and maybe that's why this new "washington post"/abc poll finds the public generally fearful that a revamped system would bring higher costs while worsening the quality of their health care. even, they say, those without insurance are evenly divided on the question of whether their care would be better if the system were overhauled. mr. president, the american people get it. the bill itself is the government option. but in government, they do not trust.

the presiding officer: the senator from louisiana is recognized. ms. landrieu: mr. president, i come to the floor today in support of the patients protection affordability act. i want to give some of the reasons why i am supporting this important piece of legislation. i'd like to, before my colleague, though, leaves the floor, just respond to his last comment that one of the reasons the american people are having difficulty believing that government can do anything right is because he and his colleagues have spent the last several decades convincing them that the government is the problem and that government can't do anything right. and even in the face of strong evidence to suggest otherwise, they continue that worn, tired mantra. and people in my state and around the nation are getting tired of it because they know that government must stand up sometimes to protect them from

abusive practices in the private marketplace, abusive practices of insurance companies, to try to level the playing field and set the rules. of course those on the other side don't really believe in level playing fields and rules. they just believe that citizens in our country should be at the whim and mercy of the private market. that has been their philosophy since their party was started. that is not the philosophy of the democratic party. we believe in public-private partnerships. we believe in level playing fields. we believe in giving people a chance to earn their way with fair rules in place. that party has never believed that and that's at great issue the underlying debate today. they can continue to fabricate myths and lies about this bill but those of us who support it proudly will continue to tell the truth about it.

i'd like to say a few things about it now. i have served in public office for 30 years, as a state legislator, a state treasurer and now as a united states senator. but it doesn't take 30 years to know that the health care system that our citizens live under and live with today is expensive, it's wasteful, and it's horribly and painfully in efficient. the time for change is now. from my visits with doctors and nurses to seniors on medicare, to recent college graduates struggling to afford coverage, and, mr. president, with dozens and dozens of small business owners that are frightened to death that they're not going to be able to continue in their business because of the rising cost of health care, it is clear to me that the time for reform is now. and this bill is the right

approach. in louisiana, the average family spends more than $12,000 each year for health insurance. that, mr. president, is almost 100% of the earnings of a person who's working 40 hours a week at the minimum wage. think about that. only in one developed country in the world would we have a system that says if you go to work 40 hours a week or 50, you have the privilege of taking all of that money and having to purchase health care in the system that i guess my colleagues on the other side want to advocate for. that is wrong. we must drive down the cost to the government, to families and to individuals, and this bill will begin to do that. since 2000, the amount that working families are charged for health insurance has increased by 91%.

that doesn't seem to concern my colleagues on the other side of this aisle, and if this congress stood by and did nothing, those costs would nearly double in the next six years. with economists predicting that families in my state will pace a whopping $23,000 for insurance in 2016 an, an 85% increase. to state it a different way, that means if we do nothing, the average family in louisiana will be paying 60% of their income for health care if they can find it and if they can get around the preexisting conditions, leaving only 40% of their wages to cover food, education, children, housing, transportation, and everything else that families need their funds for. these are skyrocketing costs that are burdening families, not just in louisiana but in every state of the union. we don't have a choice but to change and we cannot continue to

rely on the private market without reforms, without guidelines, without restrictions, without incentives to change. our people will be priced out of the market. maybe that's what they want. that is not what i want. small businesses, as i said, are struggling to remain competitive and turn a profit in face of highly unstable, unpredictable health care costs, this is getting harder and harder. as chair of the small business committee, i've held 23 hearings and round tables just this year and several of them have been focused on how current health insurance system violates -- is volatile and how those costs are hurting our businesses. today, a as i said, these prices rising, and are increasing faster than the products that these companies sell. faster than the rate of inflation since 2001. premiums for single policies

increased by 74% for small businesses in the last eight years. nationally, 40% of small businesses say that health care costs have a negative impact what are we supposed to do, stand here and do nothing? that is why acting now, that is why this bill is so important, because the status quo is not sustainable. it is not sustainable for our government and the costs associated to it, not sustainable for small businesses. even though families, businesses and government budgets are being mercilessly squeezed by unsustainable costs, senate republicans are doing everything they can to argue for the status quo. why, i don't know. each day they find a new excuse for their obstruction. i wish, mr. president, they had put the same amount of passion, energy and creative thinking into contributing policy ideas to this debate as they have to

delaying ack particulars. -- delaying tactics. every amendment they offered was to send the bill backwards, not forwards, and they seemed hellbent on defeating, not improving this bill, contrary to their statements here on the floor. republicans have charged that we're rushing in to vote for this bill. i can say that only in washington would 87 years be considered rushing. only in washington would 87 years be considering -- would be considered rushing. we have been debating this issue on and off for the last 40 years. republican president teddy roosevelt made national insurance a plank in his party platform when he sought the presidency in 1912. harry truman in 1945, and then again in 1948. and we've heard this on and on. this has been a debate that's

gone on for 87 years. and intensely for really the last two years as our presidential candidates took to the airwaves in debate after debate, republican and democrat, outlining their ideas for refo reform. this hasn't sprung up in the last two weeks. this hasn't sprung up in the last two months. millions of americans went to the polls understanding in large measure what we needed to do to change the system. and so despite the rhetoric from the other side that is the case and the rhetoric will -- record will reflect that. instead of coming to the table and working with democrats to write a bill, republicans chose to put party politics first. and i want to say i listened to my good friend, max baucus, to s morning, and i, myself, who had thought i had followed very carefully the work of his senate finance committee. i was actually moved to hear the

number of meetings, dozens and dozens, maybe hundreds and hundreds of meetings that he attempted to have in a bipartisan nature months ago, years ago with republicans, and then at some point they just decided they thought the politics was better than the policy. i think they made the wrong choice and we will see. so they fabricated death panels, distorted medicare cuts, undermined and disrespect the role of government in protecting its citizens, and they have engaged in a relentless misinformation campaign aimed solely at using fear to sway public opinion against this bill. and recently, just yesterday, senator john mccain, our colleague from arizona, has claimed that the american people are opposed to reform and he speaks about the will of the majority. i'd like to remind, respectfully, my colleague from arizona that the will of the

majority spoke last year when they elected president obama to be president and they decided not to elect him. and the president is carrying out the will of the majority of people to try to provide for them hope and opportunity and -- an area that has alluded us for 87 years. and republican presidents and democratic presidents have tried and tried. this is a good effort, a strong effort and most certainly, i believe, the will of the american people is being heard. they have tried to paint a picture of a nation opposed to health care reform. recent polls show otherwise and i'd like to explain that in just a moment. when we cut through all the misinformation and scare tactics that americans hear -- when americans hear what's in this bill, they overwhelmingly support it. according to a recent cnn poll, 73% of americans support expanding medicare for the poor. now, we haven't decided whether

that expansion's going to be 133% of poverty or 150% of poverty, but americans know what most of us know: most people on medicaid -- most people on medicaid are working poor. these are people that wake up early in the morning, they work hard all day, they go back home at night, often by taking public transportation because they don't have an automobile. they work hard. they're american citizens. they just don't have enough money to spend 60% or 80% of their income on health insurance in a broken, unbridled, unfixed private market. and so we join together with our states to provide them a minimal care through the medicaid system and i support that. and in this bill, the federal government will pick up a large share of those costs until states can adjust their budgets. i don't know what else we could do.

we could force their employers to -- to carry them. we've decided against an employer mandate. and so it becomes a partnership between the federal government and the state to help the working poor. it also shows additional regulations on insurance companies are very popular, favored by over 60% of the american people. they want congress to regulate insurance companies and we are going to do that in this bill. i'm one of the democrats that didn't want to eliminate insurance companies. i believe in private markets, but private markets have to be framed correctly and there have to be certain rules and regulations in order for that private market to work for everyone engaged in it, not just those with the wealth, not just those with the inside scoop on how private markets work. and so we are maintaining, hopefully, a more healthy

insurance industry, not coddling it but encouraging it to be competitive and to provide services and coverage for people in our country. but a recent poll by the melman group shows that this support exists not only in louisiana but in all states. in my own state of louisiana, specifically, though, it said when the bill was actually read to voters, 57% of louisianans supported the bill, with 43% strongly supporting the reform effort. and i'd like to read the language in the poll because people say, oh, you can say anything in a poll, which is true. and if pollsters aren't reputable, they can twist and distort. so i'm going to read for the record this -- this description of the plan. "the plan would require every american citizen to have health insurance and require large employers to provide coverage to their employees. it would require insurance companies to cover those with preexisting conditions and

prevent them from dropping coverage for people who get sick while providing incentives for affordable preventive care. individuals and small businesses that do not have coverage would be able to select a private insurance plan from a range of options sold on a national insurance exchange. lower- and middle-income people would receive subsidies to help them afford this insurance, while those individuals who like the coverage they already have will be able to keep their current plan." this is a very accurate description of this bill before us, the patient protection and affordability act. it's very accurate. it is not a government takeover. there is no public option. there is a national plan available now to every american, just like the members of congress and the federal employees have. there will be exchanges, like shopping centers, where you know where they are, you can access them. and when you want to shop for insurance, you can go there and

shop for insurance, just like you go and shop for clothes or cars, et cetera. it will be transparent, the prices will be more transparent. administrative costs will be lowered. you don't need a ph.d. to be able to read these policies. they will be written in english glirn and theand they will be cf yours. this is not a government takeover, as the other side has claimed. and that is why 57% of people in louisiana, when given the right information without the rhetoric, without the railing, without the distortions say absolutely, i'm for a public-private partnership. i don't expect the private sector to do everything. i don't expect the government to do everything. but we can do it together. that's the way people in louisiana think. very commonsense, very practical. that's what this bill does. with the exception of two colleagues getting back to the bipartisanship -- and i want to say how much i respect our two

colleagues from maine: the senator from -- both senators from maine, senator snowe and senator collins. i had been myself in dozens of meetings with both of them and know that they struggled mightily to find a way to meet us to support this bill. i have not in the last few days spoken with them, so i won't discuss their reasons. i'm sure that they will express those on the floor. but i can say they are the exception to the rule. there were only two republicans that, in our view -- and i was in most of the bipartisan negotiations -- really tried throughout the whole process. i know that senator grassley and senator graham and senator bennett and a few others engaged early on, and i want to acknowledge and appreciate their goodwill. but, unfortunately, the leadership of the republican party chose the no way, my way or no way highway.

they chose politics over policy. and here we are with a bill that's only supported by democrats, albeit a compromise and albeit many of the ideas that some of the more forward-thinking republicans had are in this bill. so i guess, you know, it's easy to stay unified. we've been criticized for not being unified. we now have different factions of our party criticizing why can't democrats be as united as republicans? i said it's easy to be united when the only word in your vocabulary is "no." and that's the only word in your vocabulary. but our vocabulary is filled with yes, this and yes that and yes we want to find a way. and it's been difficult because some of us come from conservative states, some come from liberal states, states that have different needs and different views. so it's not been pretty but it's been a practical and hopefully positive exercise that will help

bring comfort and support and strength to the american people and to our economy. i know that my time is fast closing, so i just want to add a few more thoughts to why i support this bill. i stood here on the floor of the senate to announce my intention to vote in favor of bringing senator reid's melded bill to the floor. at the time i was very clear that my bill -- that my vote at that time was not an indication that i would support that bill when it was brought to the floor. my vote was to bring that bill to the floor to do our work, through weeks of floor debate, amendments and round the clock negotiations, that work has been completed and we produced a health care bill that is significantly improved from the one that came to the floor. and i would like to share a few thoughts about why, in my view, it is improved. through tough negotiations, senate democrats have developed

a consensus that blends the best of private and public approaches to reduce costs, expand coverage and increase choice and competition for americans. and have done so without a government-run public option. that was in the bill when it came to the floor. it is not now. i supported that change. i know it's been tough, but that is what the compromise is about. and i am proud to support it. since i continue to hear distortions from my colleagues on the other side, let me be clear about that. we reached an agreement to provide private health insurance plans to be sold nationwide. the office of personnel management will negotiate lower premiums just as they negotiate the plans currently available to federal employees and to members of congress. importantly, we ensured in that compromise that at least one nonprofit plan will be offered in every state, and states can't opt out at the whim of any governor or legislative.

so everyone in america, as promised by the president, will have access to basically the same type of insurance that federal employees have. and for the first time in our nation's history, that will be the case. in addition to the bill that is now before us on the floor, that wasn't as it moved out of committee, there is additional cost containment. the fact of the matter is this bill is completely paid for. it will reduce the deficit by $32 billion and as much as $1.3 trillion in the following ten years. based on our efforts, the congressional budget office and the nation's premier economists have confirmed that premiums will go down over time or remain at least stable, so that wages for millions of americans can increase. when this bill is passed, 31 million uninsured americans will have access to quality health coverage. this bill achieves this goal by

streamlining the health insurance market, ensuring efficiency and limiting insurance company administrative cost and to some degree it will limit their profits. it also imposes an excise tax on insurance companies with high-cost plans. this will encourage employers to be more value-conscious, more value-conscious purchasers of health insurance. and, mr. president, i understand the house of representatives does not have this in their provision. i would urge, strongly urge this provision to be in this bill when it returns. i know there is fierce opposition to this on the house side, but this is the one provision, or one of the most significant provisions. and the president has said this publicly and privately to us. this is one of the most significant provisions that will help drive down costs to the entire health care system. it cannot be jettisoned at this point in the debate.

now, i understand no taxes are popular. people like to have $30,000 and $35,000 insurance plans. they're entitled to those but we're not going to subsidize them any hroerpbg. we can't apo -- any longer. we can't afford it. you can have $30 thousand insurance. you can pay for it yourself, but taxpayers can no longer subsidize that kind of inefficiency when you can go to the private market under the new system and hopefully get a good policy for $10,000 or $12,000 or even $15,000, companies can no -- taxpayers can no longer and will no longer subsidize expensive, excessive insurance policies. that must be in the bill for me to have the final support. we've also created administrative savings through insurance exchanges, et cetera. and as my colleague from

vermont, bernie sanders, put his stamp on this bill -- and i'm proud to support him in that -- we've significantly expanded community health clinics. there's $2 billion more for community health clinics in this bill today than there was when it moved out of committee. that is an improvement that i was proud to have helped brought to fruition. as i said, there are exchanges that were in every different version of the bill. i won't go into that. but i will go into just a minute support for small business. when this bill moved out of committee, when i gave it my vote to move forward, there were some provisions for small business, but i'm proud that in this bill there are an additional $14 billion of help for small businesses led by senator lincoln, senator stabenow and myself and others, members of my committee: senator shaheen, senator cardin, senator hagan, senator bayh and others, worked very diligently

to convince the leadership that small businesses needed additional help and that they couldn't meet the requirements of this bill without immediate tax credits, without expanding opportunities for them. and that has been done, and i'm proud of that work. in louisiana, that means that from the bill that came out of the committee, the melded bill, to this bill, 50,000 businesses will be helped. 50,000 more businesses will be helped. i'm proud of that. through the work on the senate floor during this public debate, we have made a good bill. the melded bill that came from the senate committees, a better bill for small business, the one that is on the floor today. and i'm going to submit for the record another 12 items that have been included that help small businesses today. finally i see my colleague. i want just a moment about seniors and about care for

children. despite claims from opponents of the bill, we've taken important steps to strengthen medicare, not weaken it. the senate health care reform bill creates an independent medicare advisory board to find ways to reduce costs over time and improve quality and moves to a system that rewards quality over quantity. yes, people like medicare, and many of our citizens are on medicare. but they don't want it to be wasteful, and they nope that in many instances it is. so let's stamp out the waste, the fraud and the abuse. and let's take that money, give it back to them in a better, more strengthened system. and that is what we're doing. our republican colleagues have tried to scare seniors into opposing this bill. the aarp and many senior organizations, despite that are continuing to support this bill because they know that it improves care for our seniors,

including basically free prevention and wellness visits that seniors don't have today, they will have when this bill passes. including a reduction of 50% of prescription drugs that seniors don't have today that they will have when in bill passes. and finally, mr. president, care for children. these provisions i'm proud to have worked on. again, when this bill came out of committee, this provision was not in the bill. but i helped to negotiate it. i'm going to talk about it for a minute. and i'm very proud of it. in the underlying bill, one of the principles of the reform by many people was that children should be able to remain on their parents ' plans up until the age of 26. i have children. i'd like to think by 22 or 23 they'll be on their own, they'll be gainfully employed and off of my payroll.

this is what i'm hoping for my children. but any of us who have raised children understand sometimes it takes a little more time to launch these children. i see the senator -- senator shaheen who's nodding. she's done this herself. it takes little time to launch them. so under this bill, we said okay, since they're out there in college with no access, they never think they're going to get sick so they don't have insurance. it's expensive sometimes to find coverage for them. we've decided in this bill, one of the great reforms is that when the president signs this bill every child up to the age of 26 will be able to join their parents' plan, no questions asked and with reasonable cost. but i asked myself the question, because i worked a lot in foster care: where do the foster care children sign up because they don't have parents. when i couldn't get an answer to that, i decided to start working on something for them. 26,000 of them age out of our system every year.

26,000 to 29,000. they don't have parents. so when i ask what plan will they join up with, there wasn't one. so i created a provision in here. every foster care child that ages out of the system starting in 2014 will be covered through medicaid up to the age of 26. this will guarantee when a child beats the odds, those through a failed long-term foster system, and many years i have had children tell me, senator i studied in the back of an automobile freezing and homeless. despite that they ended up getting 4.0's in high school. when they are offered a scholarship they will be able to leave california, like this one child told me, and go to get his scholarship at harvard and his insurance will follow him. that provision is now in this bill. it wasn't when it left committee. i will be proud that the 30,000 approximately children that graduate out of -- not graduate. that's not a good word.

they age out of a failed system, will now have some support at least, just like other children have in this country. and finally, i'll just say a word about health insurance. because of the work that senator rockefeller and senator nelson have done from the committee to the senate floor, insurance companies and senator feinstein had a lot to do with this as well -- insurance companies will have to toe the line. mr. president, they no longer will be able to just take premiums kh-rbgs they do today -- which they do today, and just spend it willy-nilly -- either invest it in profits, et cetera. i'm not saying anything is illegal about that. it's fine. but this bill is going to say if you collect premiums from people, you have to spend at least 85% to 90% covering their health care. you can't just take their premiums and then deny them coverage. those days are over forever.

and i am proud to have worked on insurance reform. again, i don't want to eliminate insurance. i want to reforeman insurance. -- i want to reform insurance and it is reformed in this bill. unfortunately republicans do a lot of talk about reform, but when it comes down to actually reforming, they're nowhere in sight. i hope i explained a few reasons why i feel confident that this bill is moving in the right direction. while i was hoping to bring it to the floor because it did not contain some of these provisions, through hard work, good faith, and tough negotiations, and keeping our eye on the ball, senate democrats have actually crafted, in my view, an extraordinary piece of legislation that will go a long way to providing comfort and security to the american people that elected us to do so. i'm also confident that it is popular. it may not be very popular today, although there are polls

that indicate that when given the right information, it is extremely popular. but it is the right thing to do. and that's the most important. and so i'm glad to submit my full statement to the record. i've given a few records why i am proud to support it. how disappointed i am that my colleagues on the other side are still fighting the battles of the last election. the american people have spoken loudly and clearly. they have elected president obama to be our president. they've elected us to lead. and that's exactly, mr. president, what we intend to do. and i yield the floor. a senator: mr. president? the presiding officer: the senator from new hampshire is recognized. mrs. shaheen: thank you, mr. president. i'd like to ask consent that the remaining democratic time be divided equally between myself an senators -- and senators

stabenow and bingaman. the presiding officer: without objection, so ordered. mrs. shaheen: thank you. i want to begin by congratulating senator landrieu and thanking her for all the hard work that she's done on this bill. first of all, for small leadership, with her leadership she have improved this legislation for small business so that so many small businesses in this country in my state of new hampshire, will be able to get help as they try to cover their employees for health care. i also want to congratulate her, mr. president, for awful her good work -- all of her good work to help children in the foster system. it is really significant that they will be able to get health insurance once they age out of the foster system. and also to help those of us who, as you point out, have children who are in their early 20's who are still trying to get settled in a profession.

my daughter was fortunate enough to have health insurance last year in her first job out of college, but now she's going to a new job that doesn't have health insurance and she'll be able to be covered once this legislation is passed under our plan. so, as you point out, it's going to make a real difference for families and for small business and i'm very pleased to be here today to support this legislation and also to try and dispel some of the myths that we've heard from our colleagues on the other side of the aisle about what's actually in this legislation. because despite what many of our colleagues may want us to believe, passing this bill is the fiscally responsible thing to do. our current health care system is a threat to the security of our families, our small businesses and this entire --

the entire economy of this nation. the cost of health care in america make up almost 18% of our economy, our gross domestic product. that's more than any other industrialized country. and health care costs are rising three times faster than wages with about two-thirds of bankruptcies in america. the leading cause of bankruptcy in america are medical bills. our current health care system is simply not sustainable. the patient protection and affordable care act moves us in a new direction, a direction that's fiscally spob fiscally re because this bill is fully paid for. in fact, according to the congressional budget office, the patient protection and affordable care act would reduce our federal it was sit by -- deficit by $132 billion over the

next 10 years. in fact, this legislation represents one of the largest deficit reduction measures that we've seen, certainly, in many years and possibly ever. and small businesses in my home state of new hampshire, and across this country, are going to benefit from this legislation. we heard senator landrieu talk about many of the provisions that she worked on, many of which i cosponsored to help improve the legislation for small business. the fact is the steep annual increases in the cost of health insurance have been forcing more and more businesses to make the very difficult decision to either drop coverage for their workers or to increase their employees' contribution to the point that too many workers have had to decline coverage. i heard -- i've heard from a

number of business people in new hampshire and i just want to read what a couple of them have said. a young woman named adrea bagshaw testified at a small business committee hearing that we held. adrei and her company own the bagshaw company, it is a fifth generation small bag company in new hampshire. there are not many fifth generation companies owned by the same family. they own health insurance to their 18 employees an cover 10% to 25% of their monthly premium. but now the premiums are $1,100 per month per family, and adrea's agreed that she's going to have to cut back on the quality of their health insurance plan or the amount

that the company covers to make ends meet. and the sad thing is, she said that right now they're spending more on health insurance than they are for raw materials to make their products. i also heard from a man named john connolly who is a small business owner in the small very picturesque town of harrisville, new hampshire. he e-mailed saying that the cost of health insurance is the biggest problem that our small business faces. he has 24 employees. and he went on to say that the present system is expensive, inrefisht and broken. i can't -- inefficient and broken, i can't tell you how the 25% annual rate increases depress us all and there is no end in sight. over the past five years most of our employees have had to drop coverage because they simply can't afford to pay their share of the premium. i really believe that the time has come to put the existing system out of its misery.

well, i'm happy to tell john that we're about to do that. because under this legislation, beginning next year, we provide significant tax credits for small businesses to help them pay for the cost of coverage for their workers. and this bill contains a number of measures, significant measures, to rein runaway health care costs. measures like creating a new pathway for biologic drugs so that we can get biologic, generic drugs on to the market so that they will lower costs for people. there are measures in this bill that will eliminate waste, fraud, and abuse. something that takes too big a chunk out of our health care dollar. there are measures in here that will get rid of the subsidies that the government pays to insurance companies for medicare advantage plans. these are all commonsense

actions that will save the government and health care consumers money over time. now, in addition, this bill makes significant improvements to our health care delivery system. that's the way we provide health care for people. and it injects more competition into the health care marketplace. controlling health care spending is critical to address the fiscal health of this nation. no pun intended. and this legislation takes a very important first step in slowing down the growth. now, i'm sure that every member of this senate, republican and democrat alike, every member has heard hear th hear the -- heard heartbreaking stories about health care, stories about being denied health insurance, about having to stay at a job that they don't like because of fear of losing coverage. about frustration over the lack of choice and who provides their health insurance. or a lack of understanding that

their plan limits -- about their plan's limits until it's too late and they're facing financial peril. well, this bill, i'm happy to say, changes that. not only do we insure coverage for an additional 31 million people, but we eliminate the abuse of the insurance company and i'm delighted about that, mr. president. an i'll be back to talk about some of these other areas. thank you. a senator: mr. president? the presiding officer: the senator from michigan is recognized. ms. stabenow: thank you, mr. president. first i want to thank my friend from new hampshire for her advocacy on health reform in general, but, specifically, working to on thers that affect small business -- on the areas that affect small business. and we're so pleased to have her here in the united states senate. mr. president, i'm coming to the floor today to join my

colleagues. i know the chair of the small business committee, senator landrieu, has been here, and i know others will be here. senator lincoln, who's played such a critical role in putting together the small business provisions in the bill, and i'm very pleased to have authored one of the provisions in the managers' amendment that will guarantee that small businesses get immediate help starting next year. tax cuts to be able to cut them -- to be able to help them pay for the cost of health insurance. michigan has close to 200,000 small employers that represent about 96% of the employers in our state. most folks think of michigan when they think of large employers, large manufacturers, but, in fact, the majority of our employers, like the majority of each of our states, are small businesses. that's where the majority of the new jobs are being created and

we have just 41% of our firms that have fewer than 50 employees who actually are able to offer health insurance. so less than half of our small businesses are able to offer health insurance, which is why we are focused on small businesses in this rear form bill. -- in this reform bill. the majority of people in this country who don't have insurance are actually working. we have the majority of us, about 60% of us who have insurance through our employers. we have about another 20% or so who receive their insurance through medicare or medicaid or the veterans administration or some other public entity. and the 15% to 20% of the people overall in america, that don't have insurance, are predominately small businesses, people working for small businesses or their

self-employed or they're working one, two, three part-time jobs just to try to hold things together. and that is a major, major focus of the health care reforms that are before us of the legislation that is before us. so i'm very pleased that we've been able to put together a package that is $40 billion in direct tax cuts. $40 billion in direct tax cuts for small businesses across america to be able to help them be able to afford health insurance going forward. and rather than waiting for the new insurance pooling, the exchange, which will be an additional help for small businesses, this help -- this tax cut starts right away. we will see $3 -- 3.6 million small businesses who could qualify for the tax cuts that we have in this bill that will

begin next year. in my state, that means over 109,000 small businesses that could be helped by the small business tax cuts that will make premiums more affordable. so i'm very pleased to be part of a group of members who have come together and worked very hard to focus on the fastest growing part of the economy, which are small businesses. and, mr. president, just to share one story, and this was in cranes, detroit, a highly respected business publication in michigan. mark hodish, who is an owner of an ann arbor store has seen his premiums going up -- go up 300% since 1997. in 1997 he paid $300 a month for

premiums per employee. this year regular premium increases have led him to pay upwards of $375 per month for each employee. so a 300% increase. he said i have been in small business -- i've been in small business for 40 years, and my conclusion is that without health care health care reform, these increasing costs will put me out of business. that's the reality for businesses across this country. i do believe that health care reform is directly tied to jobs, whether it's large businesses, competing internationally who make a determination to move their facility because of health care costs, whether it's small businesses going out of business or having to decide do i keep people working or do i pay for health insurance, and whether

it's a self-employed person out on their own, in their own enterprise. maybe it's a local realtor who we know realtors have struggled for years because they haven't been able to buy through a large insurance pool. that's what this reform is all about. that's what this legislation is all about, to help small businesses, people who are working out of their homes, who are self-employed as well as people who have lost a job and then lost their insurance. that's what this is all about. and so when we look at this legislation, and according to the small business majority without health insurance reform that's in this legislation, the annual costs of health benefits will more than double in less than a decade, more than double. and we know because we've seen the statistics that when we talk about doubling health care costs for businesses and the next ten

years, it's estimated to equal another 3.5 million jobs. we can't afford in america to lose another 3.5 million jobs because of the doubling of health care costs. we're focused on creating more jobs. we need to be laser focused, as certainly i am coming from michigan, on creating jobs, not losing jobs. according to the economic analysis of the small business majority, health insurance reform could save up to 72% of small business jobs otherwise lost with the continuing rise in health care costs. we need those jobs. again, health insurance reform is all about saving lives, saving money, saving medicare, and it is certainly about saving jobs, and that's why i'm so

pleased that we have made small businesses a major priority in this legislation, both through through $40 billion in tax cuts for small businesses, creating the new insurance pool through which small businesses can get the same kind of deal, have the same kind of clout as a large business today and being able to negotiate with private companies and other provisions that are in the bill as well. there are many, many reasons to support health insurance reform. standing up for small businesses is certainly at the top of the list. thank you, madam president. i yield the floor. mr. bingaman: madam president? the presiding officer: the senator from new mexico.

mr. bingaman: madam president, over the past few weeks, we have heard a lot of heated debate about this health care proposal. much of it has concentrated on a few key issues, whether this should be a public option, whether there should not be. of course, much of that debate was on the democratic side among members, strongly held views on both sides of the issue. a question of whether we should try to allow people 55 and older to buy into medicare. that was also debated and strongly held views on that issue. it's clear now we have a bill before us that will do neither one of those things, but which i think will accomplish very major health care reform for the country, and i wanted to just concentrate for a few minutes on some of the other policies that are contained in this legislation that have received much less attention but which clearly are very constructive

proposals that will dramatically improve the health care delivery system in the country. i can remember when we started these discussions early in the spring and summer and had many meetings and hearings and workshops, both in the "help" committee and in the finance committee. there were statements made that, you know, on the democratic and republican sides, we can agree upon maybe 80%, maybe 85% of the changes that we ought to embrace in health care reform. the question is what about the other 15% to 20%? i think that we need to spend more time focused on that 80% to 85%, and let me do that for just a minute. this patient protection and affordable care act which senator reid and others have introduced and which -- and the

house legislation as well, both -- both pieces of legislation do contain very important policies. let me talk a minute about some of those. first, this act before us includes long overdue reforms to increase the efficiency and the quality of the u.s. health care system while holding down the growth in costs. for example, the legislation includes payment reforms. i've championed those for a long time. others in this body have championed them as well to shift from a fee-for-service payment system to a bundled payment system. this will reshape our health care reimbursement system to better reward care and not simply to -- to reward better care and not simply more care as the system currently does. the legislation also includes broad expansion of quality

reporting, pay for performance reforms that will further incentivize quality and efficiency. the legislation also puts in place the framework for a national quality strategy and several new key federal oversight bodies to allow both providers and consumers to have unbiased information about whether or not health care treatments and devices and pharmaceuticals are effective and efficient. now, we've heard a lot of charges made that trying to find out what's effective and efficient is objectionable somehow because it might lead to rationing of care. there is no rationing of care contemplated in this legislation, but how anyone could come to the senate floor and argue against providing good, scientifically based information both to providers and to consumers about which treatments, which devices, which pharmaceuticals are effective

and useful is hard for me to understand. second, the -- this patient protection and affordable care act includes a broad new framework to ensure that all americans have access to quality and affordable health insurance. it includes the creation of new health insurance exchanges which will provide americans a centralized source of meaningful private insurance, as well as refundable tax credits to ensure that the coverage that they need is affordable. these new health insurance exchanges will help improve the choices that are available to americans by allowing families and businesses to easily compare insurance plans and prices and the performance of those plans. this will put families rather than insurance companies or insurance bureaucrats or government bureaucrats in charge of health care, and these exchanges will help people to

decide which quality, affordable insurance option is right for them. on the issue of cost, the nonpartisan congressional budget office forecast that this legislation would not add to the federal deficit. in fact, the latest estimate they had given us is it would reduce the deficit by by $132 billion by 2019 and well over a trillion dollars in the second ten-year period, that is the period from 2020-2029. on the subject of premium costs, which all of us care about, all americans care about, c.b.o. has also found that in the individual market, the amount that subsidized enrollees would pay for coverage would be roughly 56% to 59% lower on average than the premiums that

they are expected to be charged when this law takes effect in the individual market under current law. among enrollees in the individual market who would not receive new subsidies, average premiums would increase by less than 10%-13%, this again according to the congressional budget office. the legislation would have smaller effects on premiums for employment-based coverage. its greatest impact would be on smaller employers qualifying for new health insurance tax credits for these businesses and their employees, the congressional budget office predicts that premiums would decrease by somewhere between 8% and 11%, compared with the costs that they would have to pay under current law. these estimates by the congressional budget office are consistent with the estimates of the impact in my home state of new mexico where average

families may see a decrease in premiums of as much as 60% from what they might otherwise have to pay. this is families i'm talking about that would be eligible for these advanced refundable tax credits. in addition, about two-thirds of the people in my state of new mexico would potentially be able to qualify for subsidies or for medicaid. in fact, a quarter of our population in new mexico is at an income level that would allow them to qualify for near full subsidies if they bought insurance through an insurance exchange or for medicaid itself. an overall decrease in cost also is consistent with the experience that the state of massachusetts had after they enacted similar reform to what is now being considered in the senate.

there has been a substantial reduction in the cost of nongroup insurance in that state. in fact, the average individual premium in massachusetts fell from $8,537 at the end of 2006 to $5,142 in mid 2009. that's a 40% reduction in premium for that -- that coverage. this was at a time when the rest of the nation was seeing a 14% increase. finally, much of the debate on health care reform has focused on insurance coverage. it's important to recognize that as we expand coverage to include more americans, the demand for health care services is going to increase as well. a strong health care work force is therefore essential for essential health reform. within this country,

approximately 25% of the counties are designated as health professional shortage areas. that's a measure that indicates that there are insufficient medical staff to properly serve that geographic area. this problem is even more apparent in rural states such as mine, such as new mexico. for example, 32 out of the 33 counties in our state -- and we have just 33 counties -- 32 of those counties have this -- this shortage designation, health professional shortage area designation. as a result, new mexico ranks dead last compared to all other states with regard to both access to health care and the ability to utilize preventative medicine. this patient protection and affordable care act also contains key provisions to improve access and delivery of health services throughout the

nation, and these provisions include increasing the supply of physicians and nurses and other health care providers, enhancing work force education and training, providing support for the existing work force, health care work force, increasing the support for community health centers. i applaud senator reid and senator baucus and senator dodd and senator harkin and many other colleagues here in the senate who have worked so hard on this bill. the legislation represents major health care reform. it is time for the senate to enact this critical and long overdue legislation there will be chances and opportunities to improve on this legislation in the future, and i hope to participate in some of those. nothing that is passed into law in this congress or any congress that i have served in is what it should be in all respects, but this legislation is extremely important and significant health

care legislation. it will do a tremendous amount of good for a vast number of americans, and it will do that good in a very responsible way. so i urge my colleagues to support passage of this legislation so we can get on with a conference with the house of representatives and finally settle on a bill that could be sent to president obama for his signature. madam president, i yield the floor. a senator: madam president? the presiding officer: the senator from oklahoma. mr. coburn: madam president, i know our leader's coming to speak, but prior to him coming, i will take a portion of my time that has been allotted to me by my side and discuss, you know, i sat here with great interest listening to the senator from new mexico. he referenced the state of massachusetts. i entered into the record yesterday that 21% of the peope

couldn't get the care in massachusetts because they couldn't afford the co-pay and the deductible. this is basically a copy or model off of that. he also discussed the fact that this shows a $132 billion savings over the next 10 years provided you don't think you're going to allow any increase in doctor payments and you're going to reverse -- not reverse the 21% cut. i notice my leader is here and i'll be happy to yield to him at this time. mr. mcconnell: i thank my friend from oklahoma. the presiding officer: the republican leader. mr. mcconnell: i'll be very brief. madam president, americans woke up yesterday stunned to read that democrats have voted to end debate on the latest version of the massive bill while they were sleeping. they'll be stunned again when they learned about the second

early morning vote to advance a bill that most of them oppose. americans are right to be stunned because this bill is a mess. and so is the process that was used to get it over the finish line. americans are outraged by the last-minute closed-door, sweetheart deals that were made to gain the slimmest margin for passage of a bill that is all about their health care. once the sun came up, americans could see all the deals that were tucked inside this grab bag and they don't like what they're finding. afterall, common sense dictates that any time congress rushes, congress stumbles. it's whether senator so and so got a sweet enough deal to sign off on it. well, senator so and so might have gotten his deal, but the american people haven't signed on. public upo opinion is clear, wht

have we become as a body if we're not even listening to the people that we serve? what have we become if we're more concerned about a political victory or so hallow call to history than we are about you actually solving the problems that the american people sent us to address. this health care bill is supposed to make health care less expensive. it doesn't. it makes it more expensive. few people could have imagined this is how this debate would end, with a couple of cheap deals hidden in folds of this 2,070-page -- 2,700-page bill and rushed early morning votes. but that's where we are. americans are asking themselves: how did this happen? how did a great national debate that was supposed to lead to a major bipartisan reform lead to a bag full of cheap legislative tricks inside a $2.3 trillion

a $2.3 trillion, $2,033 page bill that makes costs go up. this legislation will reshape our nation in ways that support remembers come to regret. but they can't say they weren't warned. the verdict of the american people has been clear for months, they don't want it. madam president, i thank my friend from oklahoma, and i yield the floor. mr. coburn: madam president? the presiding officer: the senator from oklahoma. mr. coburn: thank you. i would just follow with one comment on my leader as far as his comments. in 2007, we passed a bill called the honest leadership and open government act of 2007. and that act requires the posting of any earmarks or direct benefits for senators in any bill. it has to be posted. we've not seen that with this

bill, though we know there are numerous and sundry specific earmarks for members. so my hope is that sometime during this process, we will take up the violation of this very law by the leader of this chamber in terms of ignoring it. what he said when we passed it was a needed change, and now we see it ignored as they bring this bill to the floor. mr. mcconnell: you know, one thing about rushing, not only is there potential violation of the provision that the senator from oklahoma mentioned, but we're learning more about this bill every day as we scrub it and try to understand it and try to figure out what all is in it. all of that, of course, is made more possible by rushing things through in a sort of expedited, hurried fashion to get it by the american people before christmas in the hopes that they won't notice. mr. coburn: i thank the leader.

i want to spend my time this morning kind of talking about how you control health care costs in our country. my experience, just from my qualifications, i have nine years of experience in manufacturing medical devices. i did that as a young man. had hundreds of employees and a fairly large business. and i left that business to become a physician. the call to my life was to help people directly rather than indirectly through my medical device association. and so i want to lay out the two different ways -- the two different arguments for how we control health care costs. because everybody in this chamber wants to control health care costs. all the democrats and all the republicans do. we have 11 studies that say premiums are going to rise and one that say they aren't under this bill. so that's not going to control costs. but i wanted to read a story that a lady from my district wrote me because i think it's

very important in us considering which way we go. dear dr. coburn, i hope you won't mind a personal story, but as i listen to the health care debate i can't help but think constantly about my middle daughter. i'm convinced that chloe would have lost her life if this health care bill had been in effect two years ago. no government could understand chloe's unique needs or rare condition. after a perfectly healthy childhood, my 17-year-old showed me her left arm was twitching and wouldn't stoment. within weeks the left side of her body was jerking constantly. her m.r.i. showed more than one hedroventricula nod actual. nodule. the two two physicians were not

sure if the changes between her movement and the movement disorder and the nodules. they had nothing to offer in terms of treatment. i made the rash promise to my daughter that someone somewhere knew what to do and we would not stop looking until we found that person. until a government system, i was free to research the options an apply what i wanted. our search took less than three moptses. chloe's pediatric movement disorder specialist called her condition unique. he had to debate her case with a new rollingy team -- neurology team. chloe was desperate to live a normal life again. my husband and i agreed, though you can imagine what an excruciating decision it was. today chloe twitches a little. anyone who didn't know, would

think she was fij eting. she recently started driving again. she said, once, mom, without the surgery, i would now be strapped into a wheelchair. i know that chloe would never have had the unique care she needed if we had to participate with a government agency for permission, unless a specialist would have restricted her to known treatments. in fact, her other sub specialist wanted to make the same restrictions. chloe's doctor learned how to treat her by spending time with her and talking to her and talking to us hours at a time and observing her. i fear for the next mother whose child has an unclassifiable condition and whose treatment is planned by a faraway committee with a diagnostic manual at the table. chloe won't be in that manual. the thing that keeps people from

getting health care in america today is the cost of health care. we've had all sorts of attempts to, how do we do that? we've had the massachusetts model. and as entered into the record yesterday, they have insurance reform. almost everybody in massachusetts is covered. yet, last year 21% of those people covered couldn't get care. because they couldn't afford the deductibles an co-pays. -- and co-pays. expanding insurance and expanding the model doesn't solve it. so you can either approach controlling costs or you can ration care. and what has happened in this bill, as it comes through, is we've chosen to ration care. and my colleagues are going to dispute that. but i want to offer significant evidence to offset that and discuss what's in the bill. and also discuss what's not in the bill.

what's not in the bill is a prohibition against rationing, which all of my colleagues on both the finance committee and the "help" committee voted against a prohibition on rationing, which means you're for rationing if you vote against a prohibition. the leader denied an amendment to eliminate rationing on the floor of the u.s. senate. so we don't get to see where everybody stands, but we understand the intent. so there's no question the way we're going to control costs is to limit your access by rationing health care. the other side of contro controg costs is to incentivize the prevention of disease and incentivize payments for good outcomes when we manage chronic disease that's there in an efficient and effective way. that's not in the bill.

that's not anywhere in the bill. that's what we have to do is incentivize an insurance company to invest in the management of chronic disease rather than to pay for the consequences of the chronic disease. that's not in the bill either. so we get two choices. what do we find in this bill? we find that medicare advisory commission, and they actually dropped the name medicare from it. but we find an advisory commission that's going to tell us how much money we have to cut from medicare. and we either have to cut that amount or make some cuts somewhere else. we have the u.s. task force's on preventive services, which we've already seen during the debate of this bill when they do something that's based on costs alone, not clinical, breast cancer screening, 40 to 50. when they do something on the basis of cost rather than clinical, we run in and jump and say, no.

but we're going to pass a bill that will totally empower that. 17 times in this bill is a united states health care preventive task force reference and what it's going to tell us how to do. and it's not just going to tell us in medicare and medicaid. it's going to tell us in every area what we will do. but because there was such a reaction to the first recommendation based on cost, and let me explain what that was. they said if you're 50 and overs the incidence of finding somebody with breast cancer is one in 41,470. and if it is 40, it is one in 950 people. we don't think the government ought to pay 4 mammogram and we don't think anybody ought to have one. well, that fine for all those people who don't have breast cancer. it terrible for the people who do have breast cancer and could be found early for a -- with a

mammogram. we rushed in here and offset what that task force did. but they're going to do it time and time and time again. and is the congress going to truly, every time they make a decision based on cost effectiveness, not clinical, are we going to reverse it? we're not. so there's another proof that we're, in fact, going to use the rationing of care to control costs. a senator: would my colleague yield for a question? mr. coburn: i'd be happy to. a senator: if, in fact, the congress did reverse the decision of an advisory board, what does that do to the budget deficit in what does it do to the claims that this current bill that's being considered is paid for? mr. coburn: i'm not sure i can answer the question. but it would make it less effective in terms of supposed claims. mr. burr: so if the authors of this bill never intended to make cuts, then it blows the budget

neutrality that's portrayed in this bill. but if they use all the mechanisms that are in place to make sure that reimbursements are cut or the scope of coverage is affected by a decision to limit one's care, then we could see prevention cut, wellness programs cut or even the preventive diagnosis like breast cancer limited to a much smaller group. mr. coburn: mr. coburn: i think the senator from north carolina is going to get to where i'm going to go later, and that is what is the motivation for the decision making. i think my colleagues on the other side of the aisle are well-intended, but i don't think they're well-informed about what the consequences of what their intentions are. so if you set up the task force for preventive health services and say you're going to rely on it, but we know they're going to make the decisions based on cost

effectiveness, not clinical effectiveness, what we're going to see is the american cancer society coming again and again and again because what we're going to do is we're going to cover those where it's cost effective but not clinically effective. and for 80% of americans, they're not going to notice the difference. but one out of five americans is going to notice the difference. the second area which i really want to spend some time on because we've actually modeled it after england is cost comparative effectiveness. and we ought to talk about what is comparative-effectiveness research because there's nothing wrong with the research. it's health care research. it's drugs, devices and treatments head to head. and the whole goal of that is to find out what works best and what costs the least. the assumption in this bill is that we can have 24 or 36 people in washington decide that, where

in the framing ham studies that have been running for over 50 years on heart disease, we still don't have the answers and we've been studying it for 50 years. but we're going to be making decisions on cost, not on clinical effectiveness, which is going to limit your ability to have what you and your doctor think you need. so we're going to pull out clinical experience of individual physicians. we're going to eliminate the art of medicine, which is the combination of vast experience, gray hair, long years of training, family history, clinical history, physical exam, and we're going to say, no, it doesn't matter. we're going to say here's the way you're going to do it. who uses cost-effective

research -- cost comparative-effectiveness research? well, several countries do. and when i share with you the stories about how it's used, you're going to get a real vision of what's coming with this bill. a real vision. this bill creates a new agency called the patient-centered outcomes research institute to perform comparative-effectiveness research. and i've already said the idea behind it is good. i strongly support medical research. i strongly support helping doctors and their patients choose the best research and the best treatment. the problem is this bill doesn't do that. on the contrary, this bill will empower the government to decide which treatments you can have and which ones you cannot have. that's what this does. this removes the judgment of the doctor and replaces it with a judgment of the bureaucracy in washington. it's not a hypothetical concern. it's a real-world problem.

in britain, they control health care costs by denying or delaying access to expensive therapies. and that's why we -- one of the reasons this country has a third-better survival for every cancer that you can imagine over great britain is because we don't do that. and as a two-time cancer survivor, i'm acutely aware as a patient -- not as a doctor -- in that i want to make sure for my family and my patients to have the best alternatives, not the cheapest. because the cheapest alternatives are the ones that take years away from your life. the cheapest. i'm going to go through some examples. and nobody -- nobody -- can dispute this is what is happening now and what will happen under our program.

tor senator baucus' credit, he had a bill that wasn't cost-comparative effectiveness. he had one based on clinical comparative-effectiveness. that's not in here. what's in hereish clinical comparativeness-clinical. senator baucus knew you want to use clinical outcomes, not costs. if you only look at costs, nobody in this country would get a mammogram between 40 and 50. but this bill is different than what senator baucus had authored in his finance committee markup. there's an agency in great britain called the national institutes of health and clinical excellence. it's pronounced "nice." here's some of the decisions of "nice" in the most recent years. you see, they have a problem in

england with cost too, and they have a single-payer government-run system. they have the government running it, but they still can't control their costs. so what have they done? they've preet lid denied breast -- repeatedly denied breast cancer patients breakthrough drugs, forced patients with multiple sclerosis to wait 2 5 years to receive treatments people in this country are getting as soon as they're available. that's the bureaucratic thinking. save money rather than practice good medicine. denied life-prolonging treatments to kidney patients. denied new medicine to all but a small percent of patients with osteoporosis and then only as a last result. in other words, you got to have about have your bones breaking

by standing up before you get medicine for osteoporosis in great britain. in this country, we have prevented millions of hip fractures through effective medicines to restore the calcium and bone matrix in seniors' bones. but we've got medicare now saying you're doing too many tests to check on that, so you can only do it every two years. so we're going to use rationing, and we are. they denied access to the only drugs available to treat aggressive brain tumors. they denied effective drugs for cancer patients, colon cancer. macular degeneration is something that affects a large number of people in this country. that's where the macular, the area that actually allows you to see and concentrate your vision, we have as we age we have what's called sistoid macular degeneration or dry

degeneration. that's a disease of the eye where it causes vision loss. "nice" requires patients suffering macular degeneration to go blind in one eye before they can have the medicine that almost every patient that has macular degeneration in this country has. you have to go blind in one eye before you can actually get the medicine. that's a bureaucrat making this decision, or bureaucratic committee because it was cost effective to allow you to live with one eye. elderly patients went to court to fight for drugs to keep them from going blind. 22,000 britains became totally blind through that ruling by the "nice." in one case, an 88-year-old world war ii veteran and former air force pilot sold his house to pay for the drug after the government said they weren't going to pay for it. the institute of blind people said "nice's" decision, countless people have been robbed of their sight or stripped of their life savings to pay for private treatment.

in alzheimer's, they ruled that three drugs common to many people who are listening today -- aerosat, remneil and excelon were not common to patients with alzheimer's. those are the only ones that work on, work effectively on. 100,000 alzheimer's patients a year were denied treatment that could have slowed the disease. the british alzheimer's society said this decision was disgraceful and victimized the most vulnerable in our society. brain cancer --theatol and timitol severely restricted their access to them. a woman sold her house to buy the drugs the government refuseed to buy. they have been held as the biggest breakthroughs in treating brain tumors in the last 30 years, and finally in

april of the year before last they finally relented and allowed brain cancer patients to have the curative drugs that were available on the market. urbatox, very effective in resistant colon cancers. 2006, denied. 17,000 britains a year get the sort of advanced colon cancer that urbatox is designed for, and yet they can't have it. mr. burr: could i ask a question of my colleague? listening to this list of products that have been denied people in great britain -- and certainly this is true in some other countries -- makes me look at the medicare population in this country with the realization that the way medicare was constructed, a senior can't pay out of pocket because no provider can receive a payment from a senior.

so if for some reason this bill were passed and you took part of the arsenal of drugs away from seniors or procedures away from seniors, how can a senior get a benefit if they -- no provider can receive an out-of-pocket payment from a senior? mr. coburn: that's a problem with our system today. what we're going to hear them say is the insurance companies do this now. at first new treatments, until they're proven effective most insurance companies don't cover them. they cover them much sooner than medicare does today. today medicare's the last group to approve the drugs. we're going to hear that that's not any different than the limitations that insurance -- that's true. we need to change that. but the fact is we're getting ready to put all these people into insurance programs, and then we're going to have the federal government, which is just as bad or worse than the

insurance company, making those decisions. i want to finish my point on cost. we get two -- we get two ways to fixing cost, because that's what's keeping people from getting healed and getting access. we can either ration it, which there's three methods to ration in this bill which will be used to ration care. or we can incentivize outcomes. and we can incentivize prevention, and we can pay based on the transparency of outcomes and quality. we haven't done any of that in this bill. we've said we have, but when you look at how do you prevent it -- and the model is the 200,000 employees at safeway and what they have been able to do in using their incentive systems to pay for prevention, to use

competitive purchasing to reconnect the employee with the purchase of health care. so i understand my colleague from nebraska is here, and i will yield to him because i understand he has a unanimous consent request. mr. johanns: i appreciate the courtesy extended by the gentleman from oklahoma. do i have a request here. i ask consent that the pending substitute amendment be modified to delay the following special carveouts: number one, eliminating or reducing the medicaid unfunded mandate on nebraska, vermont, massachusetts. number two, exempting certain health insurance companies in nebraska and michigan from taxes and fees. number three, providing automatic medicare coverage for anyone in libby, montana. number four, earmarking $100 million for a health care

facility reportedly in connecticut. giving special treatment to hawaii's disproportionate share hospitals, boosting reimbursement rates in certain hospitals in michigan and connecticut and mandating special treatment for hospitals in frontier statements like montana, south dakota, north dakota and wyoming. mr. baucus: madam president? the presiding officer: is there objection? mr. baucus: madam president, i appreciate the senator's desire to want to cut payments to his own state, but i object. the presiding officer: objection is heard. mr. johanns: thank you. i yield my time -- or i yield to the senator from iowa. the presiding officer: the senator from iowa. mr. grassley: yesterday -- yesterday we had a very ear