judicial nomination set of nominations generally? i think those are at least some of the features that i would identify. ye yes. >> has there been any discussion with senator leahy about abandoning the blue slip procedure the way the republicans did when they were in charge? >> i'm obviously not at liberty to disclose conversations that we have with the chairman of the judiciary committee. as i mentioned before, we are of a mind that we should sort of look beyond those battles and address the problems as we find it look for ways for a successful resolution and that's the course that we're on. and i believe it's completely feasible. as i said earlier, i'm hearing from republican members as well as democrats. republicans have no less a concern than democrats in how this works. and some of them -- for all the disagreement that you can expect on these issues, some of them have expressed to me in fairly direct terms that they believe

the system is breaking down. and they have offered to help. and i take what they have offered at face value. i believe based on my prior working experience with them that they mean what they offer sincerely. and i believe there is a bipartisan route even under the current process to bringing these confirmations to a successful conclusion. not just confirmation of the nominees that are in the pipeline and as i mentioned that's quite a thick number but the nominations still to come. [inaudible] >> you mentioned the problem with access to the court. at what one point does it become an issue where the military courts -- [laughter] >> i thought i put the point fairly dramatically in my prepared remarks and now you've

reduced me to vanilla and now i'm ready to leave. i don't think we need to worry about that point or anywhere close to that, frankly, i haven't contemplated that as a remedy. i'm not terribly worried that you need to be worried about it. yes. >> how useful do you consider the weapon of recess appointment? >> i don't know that i would ever have defined it in terms of utility. i think sometimes it's defined in terms of necessity where a position isn't filled and it does not appear that there is any potential ground for agreement. there's important work in the government that needs to be done. now, what you can imagine recess appointments are quite an adequate response to the judicial nomination. you're not seeking to make a time-limited appointment. you're seeking to actually

confirm in the normal course so a judge can serve for as long as he or she is able. so again, i view that as a question of necessity, not utility. but there are times in other nomination context where it's absolutely indispensable where the work of the government simply cannot be done. as i mentioned earlier, the question of judicial nominations is a question of public administration and, unfortunately, in recent years, it had become so immeshed in sort of partisan conflict that it's become more of a subset politics generally of judicial than public administration as it should be. there's obviously going to be a political dimension to these debates but it's still a public administrative issue. there are cases to be decided. not every one of these nominations is one on which the greatest issues of our day turns. there are americans every day who have to bring their cases to court and have them resolved. there's ongoing development in the law that competent jurists have to steer in the correct direction so we have to view

this nomination something we address as what's required for sound government? the same thing being true of executive nominations which is when it sometimes becomes necessary to make recess appointments if a position is going to go unfilled and the business of government is not going to be done. yes. >> i've read most recently about the senate not giving votes to various unsavory proposals -- or voted out of the house of representatives, which raises the possibility, of course, of some horse trading in terms of once you have a vote on this, if you let us have a vote on nominees. i'll welcome your comments both from practical political standpoint and also from a a principled standpoint. >> i'm sorry. could you restate the question. i want to make sure i understood

it. >> apparently the majority leader -- senator reid is not going to allow votes on the number of things that the house of representatives is passing out, trying not to mention a particular subject like health care. [laughter] >> so there's a prospect obviously of trading, some horse trading. we will let you have a vote on health care. you give us votes on "x" number of judicial nominees. and i'd welcome your reaction to that both as a practical political question and a practical question in terms of deal with judicial nominations. >> i'm going to probably disappoint you by stay within my sphere of responsibility and competence. i would not want to address ways in which various ways of the members have moved.

various members have which measures, which votes and what combination will be scheduled or taken. and that is a complicated process that i think is probably it's best that i not comment on. at the end of the day, my view is and i don't mean this as sort of a vindication of unjustified means analysis, we have to simply arrive at an understanding not that we can in a particular circumstance arrive at votes on confirmations but by some route we manage to get there but then as a firmtive matter of caring for our judicial system we have to have those votes. we have to have those confirmations. so those votes may develop in other ways and i welcome those votes when they occur. but i think the larger point i'd want to make this is a matter of urgency right now that goes to the very heart of whether we have a functioning system of justice that we can offer the public of this country.

yes. >> i guess i'll ask the question, what's the administration's next step with guantanamo given the actions that congress has taken? have you given up it happening within the next two-year period? >> i think what i'll do so that i can now decline to answer two questions in a row and set a record is allow caroline to schedule me to appear at an event dedicated to that purpose. [laughter] >> it is a very complicated question. you've asked a question that would require several minutes of explanation and some background and it's probably more than within the sphere -- within the assigned topic of the day and the time that we have that we can do. thank you very much. [applause]

>> thank you so much, bob. that was extremely stimulating, interesting, and i'm very eager to hear what our panelists have to say in response. we are fortunate after bob's talk to have three exceptionally well qualified panelists to react to what bob had to say. and to give their insights into how president obama has fared thus far with judicial nominations. and what the road ahead looks like. makan delrahim is a shareholder at barbara schreck. he was appointed deputy assistant attorney general for the department justice antitrust division by president george w. bush in july, 2003 and from 2000 to 2003 he was the staff director and chief counsel in

the senate judicial committee working as the principal legal and policy advisor for then chairman orrin hatch. carolyn lamm is a partner at white and case in the district of columbia. carolyn was president of the aba from 2009 to 2010 as well as the past president of the dc bar. she was named one of the 50 most influential women in america by the national law journal and one of washington's top 30 lawyers by washingtonion magazine. bill mahr -- marshall is professor of the school of law. bill was deputy white house counsel and deputy assistant to the president during the clinton administration and served as solicitor general of the state of ohio. bill has published extensively on the first amendment, federal courts and presidential powers and is a leading expert on judicial selection.

and, of course, of great importance to the american constitution society community, bill has lent his great expertise, camaraderie and guidance to acs as a member of our board. so now i guess we will hear from makan, then carolyn and bill and their rejections to b-- reactios to bill bauer's remarks and then we'll talk about the state of the emergency. >> thank you, carolyn. first let them thank you for first inviting me here on this -- i think one of the more important topics that we can discuss in a democracy. as where a lot of us have been watching what's been unfolding in the middle east and egypt and this morning in jordan, it reminds me i was 10 years old when i left iran and it eerily reminds me exactly what was going on back then. and not really appreciating it back then. i really think in my experience

having, you know, lived in the government and having had the opportunity and the honor to work in all three branches of the government, i think that what we have in america as far as the judicial branch, an independent judicial branch is in my view is probably the most significant element of a true functioning democracy. people can take their grievance to the courts and be comfortable that they will most likely -- regardless of what the outcome is, people will be happy and unhappy half the time with the outcome of whatever the grievance is, but we respect that, whether that is on an issue of health care, whether it's an issue of intellectual property, whether it's an issue on the election of the united states president. we don't go to the streets and riot. we'll hold peaceful demonstrations but generally we'll respect 5-4 supreme court decisions whether it's on racial issues and that is probably the most calming influence in a

democracy so this topic is incredibly important and very personal to me. i was, you know, glad to hear bob's comments about not really rehashing past statistics because i think both sides can get into statistical jujitsu if they want to get and rehash the argument of the '80s. the one thing that is -- i wanted to stress, though, is that, you know, bob said that there is this pattern, an alarming -- you know, a profound change that we're witnessing here. and there are 99 i believe or, you know, these things change on a day-to-day basis. approximately 100 vacancies now. 49 nominations for those vacancies so more than half of those vacancies do not have a

nomination associated with them from the white house. president obama's nomination, 60 of them, got confirmed last year. at the end of the year, where there were 99 at the end of the congress, 58% of them did not have a nomination associated with them. i'm glad the white house is making a nomination a priority but they had other priorities in which they addressed their attention, health care, financial services reform, energy and other matters as well as the financial crisis that this president has been dealing with. so nominations i don't think folks can say regardless of what side of the aisle you come from has been a priority for this white house until now. and maybe now it will become

one. but i can tell you one thing. it is not a partisan issue that either the delay or the confirmation of president obama's nominations. a couple of statistics that i will mention just facts to hook up as bob said is that president obama's circuit court nominees from the time they were nominated to the time they got hearings took them on average 64 days. president bush, from the time they were nominated to the time they got a judiciary committee hearing, 247 days. 64 to 47. district court nominees, district court nominees of president obama waited 60 days to get a hearing. district court nominees for president bush got -- had to wait 120 days before they got a hearing. now if you know the senate hearings and the rules in the confirmation there really is no impediment to the democratic

majority to bring a nomination for a vote or hold a hearing. as soon as the white house nominates there is no impediment to senator leahy holding a hearing for that nomination. and no impediment to senate majority leader. bob said that there was this single senator can freeze all nominations. single senator can withhold giving his unanimous consent which is what's asked. there is nothing to stop senator reid as the majority leader to go to the floor and bring up that nomination to be considered and debate if there's a senator who's not willing to give their consent as is their constitutional prerogative -- nothing for them to say, no, we're going to debate it and move to it or if he wants to just like he's done in pieces of areas of legislation, if the nomination is important enough to him, it's 16 senators to sign, you know, hopefully you can have 16 senators who would support the nomination to find a

cloture petition and file it immediately and move to getting that nomination up for a vote. this hasn't been an issue given other priorities of the democratic party. but certainly republicans have been in no position to block either a hearing or actually taking it to a vote in those last two years. so, you know, i am glad, you know, that it is becoming a priority and hopefully, you know, the consultation and all that process will go. the one thing that does bother me is a couple of nominees who when the democrats had 59 senators actually for a period they had 60 senators when senator specter switched parties, they couldn't get those nominees upward. they didn't think it was important enough to bring those up at that time when they had 59 for, you know -- after senator brown won in massachusetts, they couldn't find a single republican presumably to support one of those nominees to bring

it up for a cloture and go for a vote. i think when you only have 53 democratic senators and a number of them coming from, you know, difficult red states it will become a heck of a lot more difficult why renominate. why not move forward, work with the senators in a bipartisan manner and send nominees that could get the support unless you're looking for just a fight. 'cause that is going to be wasted time that is going to be spent on those couple of nominees that are not going to get 60 votes to bring them to a final vote that could be used on other nominees that could find consensus to bring it. my views on filibustering nominees is public and at the last acs event, you know, i've taken a different position than some of my democratic colleagues. i actually think there should be a change for filibustering judicial nominees and changing the rules but not, you know, i

think it's -- for that to have been fairly done, you have to have a number of leaders come together and say for the next president, whoever that is, or for the next congress, whoever is going to be in charge of either the senate or the presidency. and that's where, you know, some leadership needs to come together to make that change. otherwise, within the current system, if there has been fewer nominations confirmed than the white house would have liked, i think it only has two people to blame, the white house and the democratic majority in the senate. >> i think you've given a lot to talk about. i'll turn it over to carolyn. >> well, it's a pleasure to be here and talk with you today. i have some observations that i want to share on the real impact on the public and on the lawyers who have to appear in front of

judges who are overworked and unable -- and it has profound applications as i think makan and i agree on with respect to our justice, with respect to the due process afforded to people and their ability to have their rights heard and it is simply something that we as americans and we as lawyers cannot tolerate. and i want to give you some instances in terms of vacancy and i'll talk a little bit the why which makan can give some perspectives on what we can do about it and urge both the senate and the white house to do their jobs and get our benches full to the place that they should be. first, let's look at when judges -- when we're talking about judicial vacancies, it's

not detached from reality. the judges in those districts they are not fully staffed have staggering case loads. they are strained beyond capacity to deal with those case loads. and they're unable to keep up with them. and what that translates into in the day-to-day world for lawyers who appear before them, for litigants who appear before them is they have to delay civil trial dockets. and they take speedy trial cases first. so that means if a litigant is in there with a personal injury, with a contract dispute, with a constitutional dispute, they're not going to be heard until speedy trial act cases are dealt with. that means the criminal cases are dealt with. indeed, in arizona, after judge roll's murder the district court

declared a state of emergency and has, in fact, extended the limits under the speedy trial act so that the accused now has to have a hearing in 180 days for the next 12 months instead of the mandated 70 days. now, that's really reprehensible in our system. it cannot be tolerated. they have already in an extremely busy district three vacancies. and they are not full. and i'm not going to be judgmental about who caused the three and who should be getting them through. it is urgent that we move people through and get people on the bench. and we simply cannot say well, they should have gotten people together, you know, to invoke cloture not, you know, filibuster or whatever. we need to move it. senators have to do their job under the constitution. and senators are not doing their job under the constitution.

the judges also in these districts adopt efficiency measures. and what that does is impact due process. it cuts back in the name of efficiency because they don't have the time to devote to cases. it cuts back on how much time they're going to give to a litigant to present their case. how long the pleadings will be in front of them. and that really alters the quality of justice. another thing that it results in is in these overburdened districts we find judges resigning. they don't want to deal with justice in that way. we find judges retiring. and we also find excellent attorneys to turn from accepting a nomination. it shrinks the pool. now, we heard -- if we focus on why is this going on, we heard,

of course, that, you know, with respect to the rate of nominations that the president has been slow. in the first, you know, part of the congress, of course, the pace was slow. but when we look at the record, i'm not sure that the record demonstrates that that is the contributing factor. the senate postponed voting on 22 nominees. until the lame duck session. they never considered 19 pending nominees. these are people that are reported out of committee, the worst vote out of committee was 12-7 and that was only on a few. most of them come out of the committee with unanimous approvals. and then they sit in the senate without action. 13 of those 19 pending at the

time of adjournment, in fact, came out of the committee without dissent. there was no controversy, no republican senator questioned their qualifications. and 13 of the 19 were on the list of 40 nonjudicial emergency districts. that's truly an abdication of responsibility that can't be tolerated. now, i do think the administration should be increasing the number of pending nominations to increase the pressure to be sure. and we should do whatever we can to encourage the administration to do it. but that said, they have to move out of committee onto the floor and get a vote. if you look at the rate of confirmation, the senate, in fact, has dilatory tactics. one senator doesn't return slips and there's no votes and it just

sits. and we find the senate did, in fact, confirm 62 nominees, dozens of nominees never got to the floor for consideration that had been reported out of the committee without any dissent. two-thirds of the nominees presented to the senate were reported out of the committee without dissent. and yet we're subjected to delays on the floor. and then those that did get through generally got through with unanimous vote or almost unanimous vote. there wasn't any great dissension about the qualifications of those nominees. to be sure i think there is maybe six nominees but remainder are getting through. and without any great dissension in terms of who they are and why they should be going through. we do understand as mr. bauer

indicated that now there are, in fact, some discussions going on to change the procedures. and we applaud that. it must be done. but it must be done yesterday. they really must come to terms in terms of filibuster, in terms of voting on the floor and move the process. to avert any kind of a potential crisis and to preserve the quality of our judiciary, the aba urges and we've urged in letters, we've urged in resolutions, we've urged directly that both the senate and the president must make the prompt filling of judicial vacancies a priority. the administration has to make a concerted effort between the time that a vacancy is announced and the time that a nomination

is made. and the senate has to give every nominee an up or down vote within a reasonable time after the nomination is reported out of the judicial nominee. there was a hearing that got right away. the real time where there's been a problem is between reporting out of committee and getting a vote in the senate. that's the problem. that's where we're seeing a lot of antics. it's not necessarily just getting a time in front of the committee. and so i guess in terms of the prognosis for the future, it's very encouraging that both sides of the aisle recognize now -- and we've heard from both sides that the system isn't functioning efficiently or effectively. and that they are both considering changes to the process even though we've heard that filibuster may remain an

option. but we applaud their efforts. we certainly applaud the chief justice coming out as strongly as he did in his year end report to focus the attention on these very serious issues and his imploring both benches to perform their constitutional duties. we regret that the senate judiciary committee on the first batch of nominees that were to come out last thursday were delayed. and so there still remains work to be done. and certainly i think makan is exactly right on the point of the impact of this on the people. not to be ignored what goes on in the streets in cairo and tunisia and you're quite right, i think, is what distinguishes us is our judicial system and

people's assurance that they, in fact, have a day in court and can have their grievances heard and the fundamental right to justice is at the core of preserving our democracy and at the core of that is a competent judiciary. and we're not going to get there and we're going to have litigants and all kinds of litigants, criminal and civil, tremendously frustrated and not tolerating the kind of delay and indeed denial of justice as a result of a lack of a fully complemented bench so there can be no higher priority. this must be something that the public and the american legal profession insists be at the top of the agenda and that both the senators and the administration perform what are their constitutional duties.

>> i thought it really interesting when bob bauer started off his comments to talk about the good old days under the bill clinton judicial nominees and the good old days on the george w. bush judicial nominees because as i recall, neither one of those were good old days. the situation has been bad. it's getting worse. and unless we turn it around, it's even going to get worse than it already has been. and i think what we've seen is that every opposing group to whichever president in power has escalated the tactics being used to oppose judicial nominees and we've gotten to a point of complete absurdity at this point where delays are taking place even with respect to judges who when they get a floor vote, as it was mentioned, will go through unanimously or pretty close to unanimously. this is a new way of slowly things down. you keep things down up until the last floor vote and then you look bipartisan because at the

end of the day you finally make your vote. i'm going to get back to the problem with that in a moment but i want to again reemphasize the harms that this is causing. .. to get back to the problem with that in a moment but i want to, again, re-emphasize the harm this is causing. one obviously we talked about is the harm for litigants. the second we talked about chief justice roberts has raised is the harm to the american justice system which is one of the pinnacle parts of our nation's democracy. and the third is the harm to the nominees which we haven't talked about all that much. but if you're a lawyer and you've been appointed to become a judge, you can't pick cases in the same way that you could before. your life is put on hold. and what this is doing, obviously, is discouraging good people from letting their names cause you red into nomination >> and suggest you would like to be interested in this job and they say youcan n have nothing controversial in your record ant you can to yo look at them and ,

does this mean i'm going to go quickly? and the answer is stillrecord . o go through quickly? and the answer is still no. one of the problems both democrats and republicans have agreed about except when they're not in power, encouraging good nominees to go forward, if they have anything controversial in their record. now you don't have to have anything uncontroversial in your record, major incentive because of the tactics being used to stop even noncontroversial nominees from going through. why is this happening? what has caused this? and a part of it has been mentioned, the democrats have not put as much emphasis as they should have in the early part of the administration. point taken. why hasn't it occurred and if only harry reid just put the names out there, they would have been confirmed by that according to makan. what a beautiful world.

instead, they were putting holds on everybody and threatening filibusters and makan says, what a beautiful world, wait for cloture and get rid of the fill bust and get to unanimous vote except that takes five days. and to take five days for every nominee going for the district court is going to slow the process down. nothing that was a threat, senator mcconnell has taken great pride on his two-year strategy of delaying everything so that the white house couldn't get traction on anything. he has paid no political price for that in judicial nominees. he's reaped great benefit. this is part of that strategy of slowing everything down making everything a hard lift. so that the administration can't get anything accomplished and i understand the tactics. if you ask most republican

senators they will tell you they were effective tactics. the problem, however, besides discouraging good and qualified people from coming forward, the problem is there's very little capital being expended in opposing a judicial nomination particularly when you do so quietly, particularly when the only threat is you are going to have a filibuster being made and at the end of the day you vote and say, that was bipartisan. so there's no real political capital that was expended by those in opposition during this period because people don't think about judges and the nomination of judges as important as they should for all the reasons we talked about earlier so this was a very low expenditure of capital. i'm sure the republicans, the problem they really missed, the problem we need to focus on here is we're not talking about the democratic administration's capital. we're talking about the capital

of the american justice system. and that is the capital that is being squandered by this kind of mindless opposition to delay just for the sake of delaying. i do want to -- i have to end on makan's other point. what a great thing if only, only president obama dropped the six nominees who have had any controversy whatsoever we could go nice and easily. what that means is that we should only the democratic administration should only nominate judges who will get unanimous consent so that if any republican opposes or two or three republicans opposes then we should pull back from the democratic administration should pull back the administration and, excuse me, pull back their nominations. i'll be interested to see if that's the tactic that's taken by the next republican president. it certainly wasn't the tactic taken by the last.

and i'm not sure why it didn't occur now. the real problem as i see it is president obama hasn't put up enough thnominees. when i use the term controversial, i don't mean outside the mainstream. criticism from jim demint is not outside the mainstream. that has to be remembered. even if we want to put aside this constant debate about who is outside the mainstream and who isn't, let's just go back to the holding up on the noncontroversial nominees for a moment and think about what a game and what a facade has been played to the detriment of the american political system. yes, makan, i will blame harry reid in part for not being aggressive enough on this although he did have some other priorities. i do think that in the early

parts of the administration president obama could have been more -- made this a greater priority at that point although clearly he had a major recession and facing a major recession on his mind. but i think i'm going to put senator mcconnell at the top of the list. >> well, this has gotten spicy, which is what we wanted. i'm sure makan will want to respond to a variety of points. i have to confess makan and i were both in the senate during the battles under george bush and i worked for tom daschle before that. we had other battles when bill was in the white house counsel's office. and so we've all been part of this sort of general give and take, to put it nicely, for quite some period of time. and so i know i take seriously

what bob said about not rehashing the litany of complaints, that we could go through our own version of them. again, i don't want to deny makan his opportunity to answer some of the points that have been made but i would like to ask as a general question that i hope you will also address in your conversation with each other, we've all acknowledged that the system is broken. we've all acknowledged that there have been for whoever is to blame, i think "the washington post" called it at the beginning of the bush administration the politics of tit for tat and so we've had the politics of tit for tat for quite some time and acknowledged there's a significant problem now, high official vacancy rate, emergencies, the impact on the american public. so what should we do? how do we actually lift this logjam? are there solutions, open that to anybody to respond to.

start with the hardest question first. >> well, there have to be. we really have to work together. when i left the white house counsel office i felt that some of the slots still open were opened unfairly, that there should have been confirmations on people, one is elena kagan. i wrote letters in support of republican nominees who were up for nomination. i think there has to be some bipartisan work. i think we've seen a number of strong support from republicans and i think people have to try to make this a little bit more of a bipartisan process than it is and to not carry grudges of the previous administration back forward to the next one. even if we stay at the level of grudge that existed at the end of the bush administration, we've taken this to a new level

and we've taken it to a new level that is pulverizing when you start making this kind of delays with respect to people who turn out to be completely noncontroversial. >> i do think, and it's one of the points you made, there has to be a price to be paid for doing this, whether it's the republicans for holding it up or the democrats for not pushing it through. whatever it is, i think there has to be some accountability because it's such a fundamental and serious issue. and, in part, i think the press needs to get the word out to the states and to the districts that this is what's going on. i think most people don't understand and they don't know the impact that it has. they don't know what kind of brinksmanship is going on in washington that's impacting

their daily lives. i also think the state bars who do have some resonance with the senators whether they're republican or democrat because they are all opinion leaders need to speak out very strongly and forcefully in those districts where we find that, in fact, we aren't getting people through and on the bench and that's part of the price to be paid. to let the senators know that, indeed, the lawyers are watching and the public is watching. >> makan, you can get your turn here. >> it's just fascinating. letting the local press or the state bars and all of that know what? that when asked before a nominee is brought up for unanimous consent, the sthor is saying, no, i'd like to have my 2 cents about in nominee? i didn't sit on the judiciary committee. i'd like to have a real debate about this. and, look, it would take literally 30 hours when dual

track legislation. let me equate that to something that you are saying with nominees, with legislation. let's assume that senator reid is holding on to something like health care reform. and he's saying i have this bill which i'm not bringing up to the senate for debate or voting, but i ask unanimous consent that it be passed and if any senator opposes it and does not give unanimous consent, you're saying they should be outed or doing something egregious, no, these are the senate the's rules. they have been unless the rules are changed. we have to respect that. the fact that a senator, i want to state this clearly, the fact that a senator is not giving unanimous consent does not mean that they're somehow doing something nefarious or obstructing, get the vote. of those 19 nominees who didn't get a vote at the end of the

year, 15 of those 19, 15 of those 19 were reported out of the judiciary committee in december. 19 got confirmed in a lame duck. you have to go back to 2002 to actually find lame duck confirmations so i think senator mcconnell should be commended for even allowing that to move forward. those were unanimous and they allowed them to go forward. i think there's legitimate debate on his views. this is a healthy debate from our democracy. these are lifetime appointments that affect every one of our rights with health care. there is probably 40%, 50% of the country that strongly opposes it and our constitutional rights are decided by these judges. very important positions. so his views on the

constitution, his views that are all over the record are very legitimate issues for debate if not a single senator that could have been debated by the white house when they had 59 democratic senators there is something wrong about that nominee. or bring it up and debate it. let's see what that is. that's a healthy debate about that person's views. i appreciate what bill is saying but makan says harry reid brings it up and they go through unanimous consent. it's not what i'm saying. i'm not saying, also, what you mentioned is that only nominee who is can get through unanimously should be nominated. they should have at least 60 votes under the current rules. not 160. and if you have 59 democratic senator, find one republican, not a consensus between some of the senators who voted for

health care or the stimulus and those, you can find at least one senator. if you can't on that particular nominee, then there's an issue or at least debate it. if you believe strongly in it, we wanted to do that, for example, with nominee like estra estrada. he was not allowed -- i mean, this senator, this current president, when he was a senator, voted against, you know, nominees that flew through against bringing up even cloture. was he also part of this? he held very strong views. he gave some strong speeches on why he's voting to not allow cloture and a debate on elito and roberts. the other thing, just one last thing to mention is, look, this president had during the time two supreme court justices nominated and confirmed. those take a lot of time and resources of the judiciary committee so i don't think, you

know, either senator reid or the committee should be blamed. they got through, too, and very possible that this summer will have a vacancy to fill. those are important considerations given the overall numbers of how many get confirmed and how many don't. just because a senator does not give unanimous consent doesn't mean that they're delaying a particularly nominee. >> if i could just follow up on makan's statement and, again, another question for the group, maybe carolyn will react to this. it does seem you're deflating nominees and that you look under the bush administration and i did promise i wasn't going to bring up the litany of complaints, but the district court nominees were processed fairly quickly and they weren't required to have 60 votes.

they were often not even required to have a vote. and so i don't know if that's something bill or carolyn, strikes you as different or is there some different qualification or process we should have in the circuit courts? >> the constitution doesn't distinguish and no one attempts to deny a senator the right to oppose. indeed, that's their prerogative under the constitution. but what we suggest is it must be done in a very limited time. and your five-day limit, that would be great. a ten-day limit. any kind of a limit. you either oppose and get them out to a vote or not. in a certain amount of time. >> we have a short period of time left. i would like to ask one more

question of the panel and then open it up to questions. bob brought up something that i thought was a very interesting point and i wondered if you all could comment on it. he had a list of principles that he laid out in terms of recognizing that the judiciary is an issue of public administration. something that's another branch of the third branch of our government that's important and we can't live with the delays that we have. that there is a close consultation process with senators including having a conversation about what are legitimate differences. even where there are legitimate differences there should be a vote. and so i guess i go back to the legitimate differences and ask -- bill, you mentioned sort of what is the mainstream. in this idea of maybe is there a way forward from here, is there a process that can in addition

to making a shortened time frame a way of actually establishing those boundaries? >> coming up with what's in the mainstream, i think that would be very hard to do. i do think it would be helpful if both sides got together and started talking a little bit more about this so that maybe they can -- i think -- i certainly think if there's a republican president that the republican president ought to get a heck of a lot of deference as to who he will nominate. i don't think that i would expect a republican president to nominate the same kind of people that a democratic president would and i'm sure nobody on the republican side thinks that president obama should be nominating the kinds of people a republican president would nominate. so everybody recognizes there's a little bit of a move on both sides depending on who is the president but it would be helpful if both sides got together and what it meant on either the right or the left.

maybe it's not republican in the house and the senate who are at fault, the democrat congress, the interest groups in this town have too much influence over the process. the groups on both sides demonize those who shouldn't be demonized. maybe if we got a number of interest groups together to try to work this out, then maybe we could have more responsibility from them. i think that's been needed as well. >> i must say, though, the thought of defining what's not right on the right or the left or whatever and in some kind of nonobjective approach troubles me. when you are talking about lifetime appointments, i mean,

none of us on the basis of prior behavior could have predicted precisely how justice o'connor might have decided some cases, how justice sutter might have decided some cases, how justice kennedy decides cases. many times people within themselves make decisions when they're on the bench with a lifetime appointment that one might not have predicted and i would hate to have seen any of them excluded because they fell on the wrong side of the bar. >> i agree wholeheartedly with bill that a lot of outside interest dwrups really get into character assassination over the nominees and that is part of the problem that gets into why a lot of very qualified part of the p very qualified people have no interested. that along with judicial pay, which i think is something that also should be addressed.

by congress at some point. you don't get the best and brightest to go through, to want to be considered. that's an issue. the character assassination, racial overtones on some of the nominees is unnecessary and disruptive to the process. the one thing about what bob mentioned, having that dialogue and consultation, that's an important thing with the senate. somebody mentioned blue slip and arcane issues, one thing we've got to recognize the senate aren't just herds and numbers in the white house. the senate is its ownentity and every single senator is by themselves. perhaps why some nominees have not been named by this white house, it's between the party

itself the senator from home state who wants to be a democrat wants a certain nominee. the white house wants a different nominee. you get into those fights. it happens between republicans and democrats. but the senate is its ownentity. the blue slip functions as a cartel agreement amongst the -- this has nothing to do with partisan ship. it's an agreement that if a home state center does not give a-ok to the white house nominee the judiciary committee does not move forward, which is why both parties honored that every since senators kennedy and thurmond had put that in place some years ago. but those are issues that is very particular to the senate. it's the prerogative the senate takes for itself. it's not something that is one way or the other partisan. >> we have time for a couple of questions from the audience. i'm sure there are a lot of things people want to ask about.

please wait for the micro phone. >> hi, thanks very much. sorry. i have experienced a lot of delays in various courts because of discovery disputes, people get extensions. that's the normal course of events when people are getting all kinds of discovery delays and motions to compel and all kinds of thing intrinsically within a case. i wonder if anybody has done a study with respect to delays being a function of things internal naturally to a case progress or delays caused by the lack of staff as a first point. and secondly, because a lot of that is remediable by diverting things to magistrates, do we need the same confirmation

process with respect to magistrates. is it possible outside the box to get outside arbitration groups, aaa, american arbitration society, jams, all those arbitration groups looped in somehow to be paid somehow by the courts for those civil litigants not in the krinl pacr part who don't want to pay for it themselves. through some of these other groups, is there some way to divert some of those cases so they could see resolution quicker than a three year out trial date. >> you may be quick tore answer this. >> there is court in mediation. it takes both sides agreeing. and if they don't agree, unless it's in some way mandated by the court, both mediation and arbitration are consensual jurisdiction. there's no way someone can impose it upon them.

obviously if it's offered as an option and one person wants to get their dispute resolved and is willing to agree, the other party to drag it out just as they might do with discovery would refuse. there are certain situations where it is mandated attorney fee disputes or something. but other than that, the courts generally don't require it. you know, it is an option. i think both in the report for the additional judges, and i was just looking for the number of the bill, in that report they do identify, in fact, some of the studies that have been done on the impact of a shortage of authorized judicial positions. and i think the administrative office of u.s. courts, as well if you go on their website and look at how they determine where the judicial emergencies are, there is good statistics on the

impact of the delay as a result of not getting the judge to hear the case. the kind of creative approaches the judges have taken, the impact of that on due process or consideration. there are some things, some studies around. i imagine if you check the website as well of the various u.s. courts and council on justice, you'll find quite a bit of statistical research. >> are there thy other questions? yes? >> let's test out this proposition that we can reach a bipartisan consensus. maybe bill and carol on one side and megan on the other side. bill and caroline and carolyn being an umpire. several of you have mentioned

the fact that there used to be more comedy. people used to talk to one another. actually people used to vote with the other sides' nominees or against the other sides' nominees. the difference now is that we have the parties moving frequently in lock step. so as procedural possibility number one, what would you think of having a secret ballot on cloture votes or judicial nomination so people could vote against their party with no one else knowing. secondly you've all mentioned the fact the problem is these are life appointments, which in the case of some of these young people in their 30s who are getting nominations are going to be on the court for a long time, agree on a practice that the last two years of a president's

term he or she only nominate people over 55, and the last year he or she only nominate people over 65, so they are not on the court so long. >> death panels? >> with respect to the first part of your question, i don't think inserting more secrecy into the system is a good idea. there's too much secrecy in the system already. there's too little political capital being paid, because you can end up with a vote, you vote for the person in the end but have done every dieleterious ace.ic for it to agenda.

spirit we leave the last few minutes of this as the u.s. senate is about to begin work for the day. they will begin debating a bill but we will hear lots about several amendments dealing with repealing the health care law or a portion of that bill. "roll call" votes on those are expected throughout the day. first up you hear the first beach from freshman senator rand aiul of kentucky, now lives, nol live senate coverage you on c-span2. will lead senate in prayer. the chaplain: let us pray. almighty god, father of us all, continue to guide our lawmakers during these challenging times. infuse them with wisdom and energy so that they will not become discouraged by what

sometimes seems an impossible situation. show them the road that will lead to a desired destination as you assure them of your presence, love, and grace in their work. lord, help them to defer to each other, to respect each other. so that by attitude and action they will reflect your divine will. may they fulfill their responsibilities in ways that honor you. we pray in your great name. amen. the presiding officer: please join me in reciting the pledge of allegiance.

i pledge allegiance to the flag of the united states of america, and to the republic for which it stands, one nation under god, indivisible, with liberty and justice for all. the presiding officer: the clerk will read a communication to the senate. the clerk: washington, d.c., february 2, 2011. to the senate: under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the honorable kirsten gillibrand, a senator from the state of new york, to perform the duties of the chair. signed: daniel k. inouye, president pro tempore. the presiding officer: the clerk will call the roll.

mr. mcconnell: madam president. the presiding officer: the republican leader. mr. mcconnell: i ask that further proceedings under the quorum call be dispensed with. the presiding officer: without objection. mr. mcconnell: later today, as i noted yesterday, the senate will have a rare opportunity -- later today as i noted yesterday, the senate will have a rare opportunity for those who supported the health spending bill in the past, it's an opportunity to revisit your first vote. to listen to those who have desperately trying to get your attention to say yes, maybe my vote for this bill was a mistake, maybe we can do better. to listen to the small business owners who have been contacting our offices every single day and telling us that this bill keeps them from creating the jobs that we need. to show that you've actually noticed that most persons don't

want this bill. to show that you're aware more people want it repealed than don't. to show that you've noticed the town halls in your states. to show that you've noticed the opposition to this bill continues to grow. to show that you've noticed the federal court rulings that said this bill is unconstitutional at its core. it's not every day that get a second chance on a big decision after you know all the facts. this is that second chance. and for all of us who oppose the health bill, today we reaffirm our commitment to work a little harder to get it right. we can't afford to get it wrong, but let's not anyone hide behind the preposterous talking point that repealing this bill would add to the deficit. i mean only in washington would somebody claim that spending trillions of dollars on a brand-new government entitlement and massive bureaucracy to go

along with it with will save money. so i urge all my colleagues to move beyond party affiliation, to look at the facts alone. if everyone in this chamber did that, we'd repeal this bill right now. and then we'd begin the work of achieving our common goal of delivering health care at a higher quality for lower costs. we'd put in place the commonsense reforms people actually want. now, we also expect a vote later today that would clear away one of the many impediments to job creation that was layered into this bill. it turns out senator johanns did such an outstanding job of raising awareness of the 1099 requirement that our friends on the other side have basically co-oped the idea are now claiming it as their own. actually, that's fine with us. it's not a bad precedent, actually. we've got a lot of other good ideas that we'd be happy to share. not replacing one 2,700 page

bill with another, but passing commonsense reforms that people actually want. the case against this bill is more compelling every day. everything we learned tells us it was a bad idea. that it should be repealed and replaced. the courts say so, the american people say so, job creators say so. it's time for those who passed this bill to show that they've noticed. let's take this opportunity. madam president, i yield the floor. mr. reid: madam president? the presiding officer: the majority leader. mr. reid: following my remarks, senator paul of kentucky will be recognized for up to 20 minutes in morning business to deliver his first speech as a member of the united states senate. following senator paul's remarks, the senate will resume consideration of s. 223, the federal aviation administration authorization bill. i've spoken to the republican

leader and we'll have votes between 5:00 and 6:00 tonight. we'll have three votes. senators will be notified as to the specific time at a later hour today. madam president, if the american people want to understand the difference between democrats and republicans, it's my suggestion that they pay attention to what's happening on the senate floor right now, this week. the two parties simply have different priorities. democrats are fighting to modernize our nation's air travel. republicans are fighting to repeal the health reform law. ignoring the 80% of americans who want them to leave it alone. in other words, democrats want to give passengers right they deserve. republicans want to take away patients' rights that they already have. rights that are saving lives, saving money and saving medicare just as we promised when we wrote this law. but republicans refuse to understand, or at least what

they hope the people don't realize, is that in america we give our citizens rights. we don't take them away. that principle inspired the country's founding and director of evolution and it defines our promise. we, as senators, have a choice. we can move forward or we can look backward. we can make progress or stage a futile fight with the future. it's clear this week that while the american people and senate democrats are looking ahead, senate republicans are looking for a way to distract the american people. this is what moving forward looks like. our bill to modernize our nation's air travel will protect consumers. it's a passenger's bill of rights. we know delays happen when we fly in the airports around the country, when we try to fly sometimes. and when we do, we want to make sure that passengers are treated right. we want to make sure that

passengers have right to timely and accurate information about their flight. we want to make sure that passengers have the right food, water, and access to restrooms when they're forced to wait. we want to make sure that passengers have right to know that while they're sitting on an airplane that's on a tarmac, as i've said here yesterday, 3 1/2 hours in dallas while waiting for a gate, we want to make sure that passengers know that the airline they're flying has a contingency plan to get them where they need to go. this bill will also make flying safer and make it more efficient, will help prevent accidents on the runways and introduce g.p.s. technology to our nation's air traffic system. mongolia has g.p.s., we don't. most every country in the world, they determine where the airplanes where they are -- where the airplanes are with g.p.s.

we're still doing it on the ground. this will provide access to rural communities which is good for places like nely, nevada, and reduce delays in the first place. that's what moving forward looks like. and that's why senator rockefeller has worked for years -- years to get this bill passed. but there have been little site issues that come up. site issues are going to be debated here on the floor and we will either pass them or get rid of them and get this bill on the road to the president's desk. so what rival talked about is -- what i've talked about is what moving forward looks like. that's what we democrats want to do. this is what moving backward would look like, republicans symbolic efforts to repeal the rights in the health care reform bill will put americans at risk. i will mention a few things. it would let insurance companies once again stand in the way of a child in the medical care -- and

the medical care that child needs. it would take away a child's right to get health insurance and instead give insurance companies the right to use asthma or diabetes as an excuse to take away that care. it would kick kids off their parents' health insurance, it would force seniors to pay more for their prescription drugs. it would raise taxes on small businesses and add $1.5 trillion to our deficit. that's what their amendment would do. so this is how health insurance worked before our reforms became the law of the land. we don't want to go back. madam president, i'm sure you have had parents come to you with tears in their eyes saying now my child can get insurance. we don't want to have the mothers say, i'm going to have -- what am i going to do? that's what they've said in the past. there's one more difference

between democrats and republicans. we're fighting for jobs this week. along with all the advances the aviation modernization bill i mentioned a minute ago, it's also a jobs bill. it will create and protect at least 280,000 american jobs. that's why we're fighting so hard for this bill. this is a bipartisan bill. let's get to passing this bill. and while the health reform law is making sick americans healthier and better, it's also helping unemployed americans find work. healthier health care system is going to create hundreds of thousands of jobs a year for the next decade. madam president, i went to g.w. hospital -- i wasn't sick, but i -- to visit somebody there. and a woman, she must have been one of the administrators, she said, i'm so happy, you know that health care bill you

passed? we're going to hire 500 new physicians. so i came back and told my staff that. they said, you must have it mixed up. 500? i said let's find out her name. you call her. i called her, that was right. that's what she told me because of the health care bill that we passed. so we're talking about this health care bill also helping unemployed americans to find work. a healthier health care system is going to create hundreds of thousands of jobs a year for the next decade. that's what they tell us. that's because when businesses don't have to spend so much on premiums, they can spend more on people. healthier workers are more productive workers and that helps our economy on every level. this is the difference between moving forward and moving backward. it's the difference between giving people rights and taking them away. in the late days of the health reform debate my colleagues on the other side asked us to stop everything and start over. it was nothing more than an

excuse to keep health insurance companies in charge. the minority is asking us again to turn back the clock on the progress we made. the minority is trying to turn the health back to the insurance companies. they can dig in their heels an slam on the brakes as hard as they want, but the course of our country goes in one direction, we move forward. madam -- madam president, as i announced earlier, congressman paul is going to give his maiden speech. i'm sure that his father is looking on through the magic of all the new communications we have to listen to his son give a speech in the united states senate, and we're all anxious to hear him. senator paul. the presiding officer: under the previous order, the leadership time is reserved. under the previous order, the senate will be in a period of morning business with the senator from kentucky, mr. paul, recognized for 20 minutes. mr. paul: thank you, madam

president. i am honored by the privilege of serving in the united states senate. i am both honored and humbled by the responsibility of defending our constitution and our individual freedoms. i will sit at henry clay's desk. there is likely no legislator from kentucky more famous than henry clay. he was the speaker of the house, he was a leader in the senate, he ran for president four times and nearly bested james polk. henry clay was called the great compromiser. during my orientation, one of my colleagues came up to me and asked will you be a great compromiser? i've thought long and hard about that. is compromise the noble position? is compromise a sign of enlightenment? will compromise allow us to avoid the looming debt crisis? henry clay's life is at best a mixed message. his compromises were over slavery. one could argue that he rose

above sectional strife to keep the union together, to preserve the union, but one could also argue that he was morally wrong and that his decisions on slavery, to extend slavery were decisions that actually may have even ultimately invited the war that came, that his compromises meant that during the 50 years of his legislative career, he not only accepted slavery but he accepted the slave trade. in the name of compromise, henry clay was by most accounts not a cruel master, but he was a master nonetheless of 48 slaves, most of which he did not free during his lifetime and some of which he only freed belatedly 28 years after his death. he supported the fugitive slave law throughout his career. he compromised on the extension of slavery. when he was the speaker of the house, there was a vote on extending slavery into arkansas and the vote was 88-88.

he came down extraordinarily from the speaker's chair to vote in favor of extending slavery into arkansas. before we eulogize henry clay, we should acknowledge and appreciate the contrast with contemporaries who refuse to compromise. william lloyd garrison toiled at a small abolitionist press for 30 years, refusing to compromise with clay -- with clay's desire to send the slaves back to africa. garrison was beaten, chased by mobs and imprisoned for his principled stand. frederick douglass traveled the country at the time. he was a free black man but he traveled at great personal risk throughout the countryside, and he proved ultimately that he was the living, breathing example that intellect and leadership could come from a recently freed slave. cassius clay was a cousin of henry clay and an abolitionist. in the heidler's by biography of

henry clay, they describe cassius clay as follows. "a venomous pen was his first weapon and a bowie knife his second weapon." he was so effective with the first weapon that he was wise to have the second weapon handy. cassius parted ways with his cousin henry clay, although they worked together on some things and henry clay got him out after few difficult times with the law, but they parted ways when cassius clay published a letter where henry clay seemed to be more in favor of emancipation than he was publicly. they never spoke again after that. henry clay disavowed the letter and condemned cassius clay. cassius clay was an unapologetic abolitionist. he was an agitator. he made people mad, particularly slave owners and slave traders. one night in foxtown, he was ambushed by squire turner and his boys. they were slave traders. they came at him with cudgels

and knives. they ambushed him from behind and stabbed him in the back repeatedly. as he fell to the ground, tom turner held his pistol to the head of cassius clay and fired, and the gun misfired. he fired again and it misfired. he fired a third time, and as it misfired for a third time, cassius clay was able to reach into his belt and pull his bowie knife and gutted one of the turner boys, killing him. cassius clay refused to compromise. cassius clay was a hero but he was permanently estranged from henry clay. henry clay made no room for true believers. henry clay made no room for the abolitionists. who are our heroes? are we fascinated and enthralled by the great compromiser or by cassius clay? henry clay came within 38,000 votes of winning the presidency. he almost beat james polk. he lost one state, and if he had won that one state, he would have been president. the state was new york, and he

lost it because a small fledgling party, the liberty party, a precursor of the republican party, an abolitionist party, refused to vote for henry clay because of his muddled views on slavery. one could argue that clay's compromises ultimately cost him the presidency. those activists who didn't compromise, garrison, wendell phillips, frederick douglass, cassius clay are heroes because they said slavery is wrong and they would not compromise. now, today we have no issues, no moral issues that have equivalency with the issue of slavery, yet we do face a fiscal nightmare, potentially a debt crisis in our country. is the answer to compromise? should we compromise by raising taxes and cutting spending as the debt commission proposes? is that the compromise that will save us from financial ruin? several facts argue against that

particular compromise. government now spends more money than they ever have before. raising taxes seems to only encourage more spending. government now spends one in four g.d.p. dollars. 25% of our economy is government spending. any compromise must shrink the government sector and expand the private sector. any compromise should be where we cut federal spending, not where we raise taxes. the problem we face is not a revenue problem, it is a spending problem. it is spending that is now -- that has now swollen to nearly 1/4 of our economy. the annual deficit is nearly nearly $2 trillion. entitlements and interest will consume the entire debt, the entire budget if we do nothing. within a decade, there will be no money left for defense, no money left for infrastructure, no money left for anything other than the entitlements and interest if we don't tackle this

problem. many ask will the tea party compromise? can the tea party work with others to find a solution? the answer is, of course, there must be dialogue and ultimately compromise, but the compromise must occur on where we cut spending. even across the aisle now, we have democrats who are now saying you know what? it's a problem. we shouldn't raise taxes in a recession. so we are finding some agreement. the compromise that we as conservatives must acknowledge is that we can cut some money from the military. the other side, the liberals, also must compromise that they can cut some money from domestic spending. freezing domestic spending, though, at 2010 levels, as the president proposed in his state of the union, does almost nothing. in fact, it freezes in inflated spending levels and will do nothing to avoid a crisis. there is a certain inevitability to this debate as the debt bomb

looms and grows perilously large. as long as i sit at henry clay's desk, i will remember his lifelong desire to forge agreement, but i will also keep close to my heart the principled stand of his cousin, cassius clay, who refused to forsake the life of any human simply to find agreement. madam president, i thank you and yield back the remainder of my time. mr. paul: madam madam presidenti note the be absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

mr. rockefeller: madam president? the presiding officer: the senator from west virginia. mr. rockefeller: i ask unanimous consent that the order of the quorum call be rescinded. the presiding officer: without objection, morning business is closed. under the previous order, the senate will resume consideration of s. 223, which the clerk will report. the clerk: calendar number 5, s. 223, a bill to modernize the air traffic control system, and so forth and for other purposes. mr. rockefeller: that is, in fact, the aviation bill, and as everybody knows, that's what we're doing. we're doing the aviation bill. we're talking about health care, but secretly we're doing the aviation bill. so i thought it would be interesting to talk about the aviation bill, just to sort of

bring people's minds back to that very important subject. it's interesting because we went transparent, no filling up of the trees, everybody could offer all the amendments they want, so we immediately got amendments to repeal health care and all kinds of other things but nothing about aviation. so as manager of that bill, i'm going to talk about aviation. i don't guarantee it will be a scintillating speech, but it's going to be about aviation because that's the bill we're on. so, madam president, i rise to speak about the -- which i did a little bit yesterday, the modernization of the nation's air traffic control system. kind of important to new york and new jersey. i cannot emphasize enough to all of my colleagues the importance of this issue to the united states. it's an issue that i care deeply about, one that senator hutchison cares deeply about, one i'm completely committed to getting done.

we have to. it will make air traffic safer, more efficient, provides numerous economic and environmental benefits. i touched on air traffic modernization in my opening statement yesterday, but i want to spend just a short time, knowing that my colleague, senator hutchison, is here and wants to talk, on the air traffic modernization. it just has to be discussed in a tiny bit greater detail so people understand how important it is. and there will be some technical stuff in here. i apologize for that. i know this stuff is very technical. it can be very wooing. it has -- it can be very confusing. it has many acronyms. it will change aviation in many ways and it's overwhelming importance to the country. of time i get in my car, i find it implausible that so many automobiles navigate using more

sophisticated global position systems than aircraft. while that's amusing, except it's horrifying actually. it's absolutely horrifying. we can go to -- do it in detroit for $15,000, $17,000, but we can't do it on a multimillion dollar aircraft because we have not decided to do it aggressively in our legislation. we have to update our system now. we are going -- or we are going to face enormous consequences. the modernization of our nation's antiquated system has to be one of our priorities. it's kind of interesting, it's become a mantra. we've fallen behind mongolia. i'm the author of that startling fact. this tiny nation ahead of us. it doesn't make any difference. it makes the point. they have it, building it from scratch, we don't so if we

recognize the benefits of using the most advanced technology and if they do, perhaps something that we might think about. the united states, of course, has a much larger, more complex airspace system than mongolia or any other country in the world, but this is precisely the problem that we are so big and so complicated, there are 36,000 flights in a day. the airplanes in the day all day long all over the country at different attitudes, coming in, avoiding weather, avoiding each other, facing delays or not. our aviation system actually moves 30,000 flights a day. i'd say 36, but it says 30. and nearly 800 million people per year. a lot tougher than mongolia, but we face gridlock if we do not make significant progress on modernization and make it very,

very soon. the f.a.a.'s most recent forecast estimate for air travel would be -- will be about a billion of them within the next decade. that's, you know, 40% increase. that's horrific. senator isakson has just come upon the floor and his airport in atlanta is one of the most complicated and busy in the entire world. he needs, as do we all, an air traffic control system which is digitalized which makes for communication between air traffic controllers and pilots much more accurate so they can see terrain, they can see mountains, they can see weather all in streaming, live exactitude. the economic downturn of the past several years has actually in a quirky way bought us some time to reform our system. we've declined to use it, but this will quickly change as the economy rebounds. our present air traffic control

system is stretched to its limits already. anyone who flies on a regular basis has experienced the system's congestion and delay problems. we talked about that yesterday. we'll talk more. the system will not meet the projected growth of the next decade. so we have this choice in -- in an industry that employs 11 million people and several more million indirect jobs that traffics eight million people around the country, very complicated, runway problems, gateway problems, all kinds of problems, if we don't have this up to speed, we're a nation in trouble and people will start dying. the next generation air traffic -- air traffic system, nextgen will allow traffic to move more efficiently. planes now, because of the -- the sort of radar, ground-based

system, they wind their way to their destination avoiding planes, avoiding weather, how quickly can they see it, are they aware of the altitude of other planes above them and below them, probably not very accurately. so they don't take direct routes, so these improvements if they do take direct routes will save our economy billions of dollars annually. the technology will prevent the f.a.a. to safely allow the closer spacing of aircraft. more aircraft can land and do so more safely because the reality of the digitalization of everything is so clear to the pilot and to the air traffic controller. they are in sync for the first time with a highly sophisticated system. and the northeast corridor will probably be the greatest beneficiary of all of that -- will be. greater operational efficiency will also create substantial

environmental benefits, drastic reductions in fuel consumptions, taking a straight line, more after straight line from one place to another rather than go all over the place saves a lot of fuel. and that means less carbon emissions, also significantly lowering noise emissions, almost every community near an airport will greatly benefit from this effort and this will also save airlines millions of dollars annually in fuel costs. airlines, you have to remember, just assume they're always there. well, they're almost always in trouble financially. they merge. sometimes they merge not because they want to because they have to because one of them is declining financially. they have to be able to meet payroll. most importantly nextgen will improve the safety of our air transportation system. it will provide pilots an air

traffic controllers with better situational awareness. now the military uses that term, madam president, s.a. it's called s.a., situational awareness. pilots an controllers will be able to see other aircraft and detailed weather maps and other things like mountains in real time. if they're flying low, they need to have a real good sense of what the terrain holds. so just as in battle better s.a., situational awareness, will save lives. modernizing our air traffic control system will require sustained focus and substantial air -- a lot of money. our bill takes concrete steps to make sure that the implementation of this system begins now. and there is -- there is some of it out there in a few airports. and where it is out there, it's working very, very well just as senator hutchison and i described.

the bill directs the f.a.a. to move forward on dedicated timelines to implement key nextgen technologies. in particular it requires clear deadlines for the existing navigation technology. all of this has to be calibrated. carriers have been very excited about using this. it's just that we haven't made it available to them. and they're a part of it. as we build it, they're going to have to have corresponding avonics an systems within their own cockpits which they will pay for and they want to do that because they want to have this safer system so they're not harassed so much and so they can save fuel and just do better in general. i mean, why do something out of the 19th century when you can do it out of the modern era that will last for years. it also requires the f.a.a. to move forward on developing air traffic procedures to make

certain airlines that they will reap the benefits of -- of equipping their aircraft in their fleet. now, these technologies are as follows, they're called the area navigation an required navigation performance, r.n.p. that will permit aircraft to fly more precise routes in both the en route environment and allow aircraft to land more efficiently and safely at airports. the f.a.a. will develop the procedures that accompany this technology at the nation's 30 largest airports by 2014. senator hutchison said that yesterday. and that all commercial airports across this country by 2018 if we do our work here. the whole thing will be done in the country by 2018. and all the biggest ones by

2014. the bill accelerates the time frame for the integration of automatic dependent surveillance broadcast,adsb technology, by hiring the use of adsb out on all aircraft by 2015, and the use of adbs be in on all aircraft by 20 -- by 2018. this technology will significantly improve the safety of our system by providing pilots and aircraft controllers with more precise information on their location. that's everything in aircraft control, where people are, how high, how low, how close, how far. the f.a.a. has moved forward on the requirement for adsb out on all aircraft operating in our airspace and we plan to work with them to make sure that this is a success. the bill coming to the end takes further steps to make certain that the improble implementatiof

nextgen continues including modernization of air traffic control oversight board. wonderful, another board. well, this is a really complicated system and you need to have a -- an advisory group that oversees -- gives oversight, like we in the commerce committee, will do to f.a.a.'s modernization activities. and it establishes a chief nextgen officer position at f.a.a. oh, another person to overseeing is at f.a.a. well, we haven't done this. we're not doing it. and to have an officer dedicated to that, i think, is very, very important. requires the development of processes to include representative of federal employees in the planning of nextgen projects. why is that important? because it means that people who

are working the towers, who are actually involved in the system as it is now -- and if you go out to -- to other places, herndon, you can see these enormous rooms of computers with -- with -- with air traffic controllers and these sort of vague shapes. we want to turn those into precise shapes. that's what our bill would do. establishment of a new process to make certain labor disputes at the f.a.a. are adequately resolved through mediaton and arbitration if necessary. so our future as the world's leader in aviation, our safety, our economy all depend on a successful modernization of our air traffic control system. an f.a.a. funded study determined that our economy lost $33 billion in one year as a result of delays attributed to the air traffic control system. that's not smart and that's not

safe. of this total, $8 billion was from the airlines themselves. they're not in a position to lose $8 billion. an amount that would go a long way towards giving them a healthier bottom line and making other improvements. the other $25 billion in losses were borne by the traveling public. they had to pay for it. and business. so this overdue f.a.a. reauthorization takes the necessary steps to make certain that we begin to implement this critical upgrade of our airspace technology right now. we must follow through on these efforts or face dramatic challenges. this is not a song and dance effort, madam president. this is life and death for the future of our air system in literal terms an symbolic terms. wild the floor. symbolic -- i yield the floor.

symbolic terms. i yield the floor. mrs. hutchison: madam president? the presiding officer: the senator from texas. mrs. hutchison: madam president, i want to commend the chairman of the commerce committee. he and i have been working on this bill since 2007. as we mentioned when we introduced the bill -- or when it was introduced yesterday, that this is the 18th short-term extension that we are on and i think any person in america -- any person who flies in america, any person who is subject to f.a.a. regulation and certainly any business person in america knows that you can't do long-term planning and assure that your agency is doing its

work knowing what they can expect in support from congress in short-term extensions for over four years. that is not good business. it's not good management and it is certainly not the way government should run. so i am in agreement with senator rockefeller, our chairman, that we need to act on this bill. it is, i hope, going to be an effort that is bipartisan, that we will address the issues that have held the bill up in the past in a reasonable way so that we can get on with hopefully a three-year authorization of the f.a.a. and especially so that we can start nextgen. america is the premier user of air traffic control systems. our system is based in the

1960's technology of ground operations and use of radar. we want to move to a satellite-based system that will increase capacity at our clogged airports, the bigger airports that have more traffic than they can accommodate and where the traveling public is in the most need, we need the efficiency and we need the modern technology. that's what this bill will set us on the path to do, so i agree with the chairman in that respect and i look forward to working with my colleagues on their amendments that pertain to this bill going forward. i would like to take a few moments to speak to the amendment that is at hand, which is not really an amendment about the f.a.a. authorization, but it is a very important amendment. and basically, it is senator mcconnell's amendment that would repeal the health care reform that was passed over a

year ago, and he is trying to say let's stop right now. we have seen every signal that the concerns that we had when we spoke against this bill in december of 2009, that all of the concerns are coming home to roost. in fact, the concerns that we raised are now being shown to be a huge problem in this country. the health care reform bill that was passed cost $2.6 trillion. over 6,000 pages were added to the federal register to implement this law. all of this indicates that the bill does a whole lot more than my colleagues are referencing right now in the floor debate, because when i hear the floor debate, the people who supported this bill are saying that all we

did was fix a few problems with our health care system that we all agree on. but in reality, this is a bill that costs $2.6 trillion, costs $2.6 trillion, $500 billin in new taxes on business and individuals, and it cuts cuts $500 billion out of medicare, a program that isn't working to the maximum extent possible. it's certainly not considered the most efficient program. now we're cutting $500 billion out for a new government entitlement program that puts the federal government between patients and their doctors. here are a few of the provisions that are in the 2,000 pages of the health reform law. first, if you don't buy government-approved health insurance for you and your

family, the health reform bill says you must pay a new tax. that is the individual tax. if you own a business and don't buy government-approved health insurance, which is going to have a formula and a requirement for how much business has to pay and what has to be in it, then you must pay a new tax. and if business owners want to grow their employees over the 50 mark where it kicks in for businesses, then there will be costly new federal regulations that they will have to comply with. so here we are in an era where unemployment is at all-time highs and we are putting a cap on employees for businesses that are going to incur huge expense ifs they go over 50. so if an employer is in the 40-45 range, they are looking very carefully at not going

above 50. now, is that really what our economy needs right now? i don't think so. what we want is to encourage business to hire. that's what every one of us in this body should want, and we should be passing laws that would assure that business has the freedom to hire, not a stifling effect on that kind of effort. we need to get the government off the backs of our job creators and not put up miles of red tape and more bureaucracy and more regulations and more taxes and fees that would curb the ability to hire and still make a profit. next, it was said during the health care reform debate that if you like your current health plan, you will be able to keep it, but everything that has happened since that bill passed

says you can't keep it because even the administration is now admitting that when it issued the rules that employers now have to follow when deciding what health care plan it will offer, that because of health reform, by 2013, as many as 80% of small businesses will no longer offer the same roll call plans that they offer today. families that rely on their health savings accounts or flexible spending accounts which have been a wonderful boon for families to be able to put money aside before taxes to be able to use on the health care expenses that they have that are not covered by insurance. that is being used by more and more people in the millions. but in the health care reform bill, there was now a restriction put, a cap on how much you could put aside, and

you have to have a prescription drug to be able to pay for it with your pretax dollars. you can't now buy a bottle of tylenol or aspirin off the counter and have your health savings account help you pay for that out of your expenses. so here you are, you and i, madam president, have children, and are we going to stop and call the doctor or run get a prescription if we have a health savings account to buy aspirin or tylenol? that is not helpful, and why would we put a restriction on what people can set aside for their own health care costs? why wouldn't we make it easier for them? instead, the health care reform bill makes it harder to use those pretax dollars. there is no reason for it, and i will have an amendment that will try to take the caps off and

take the restrictions off so that you can provide for your health care out-of-pocket expenses with pretax dollars. that's the kind of incentive that we need, not the opposite which is in the health care reform bill. if you're a woman under 50, whether or not you have access to routine mammograms is going to depend on a task force that was granted new and unchecked powers by the health care reform bill, and they have already the same task force that is going to have that power has already given the indication that mammograms under the age of 50 are not necessary to be covered. madam president, the women of the senate stood firm years ago when the clinton administration was trying to pass a health care reform bill to say absolutely we

are not going to stand in the way of a woman and her doctor knowing her history and her family from having a mammogram whenever it's needed, because there is not one person in this body that doesn't have a friend or a relative that has had breast cancer before the age of 50 and probably before the age of 40. so that is in the health care reform bill and it needs to come out. this week, another federal court announced that the federal government could not force individual americans to purchase a private product, even health care. the judge in the most recent case in florida said that when congress passed the health reform, it exceeded its constitutional power and therefore the court voided the entire law. this is the second court that has found the health reform bill unconstitutional. now, this lawsuit is going through the judicial process, and yet even though it is being appealed by the obama

administration, it will most likely go to the supreme court of america. now, we shouldn't have to wait for the supreme court to rule that this law is unconstitutional. we shouldn't have to wait for them to reassure the american people that congress most certainly shouldn't be regulating anything and everything just because the federal government says so. we don't have to spend millions more in taxpayer dollars implementing a bill that ultimately could be struck down by the highest court in the land. the senate has the opportunity and i believe the responsibility today to say moratorium, let's wait until the supreme court has ruled on this enormous bill and the enormous cost that is being incurred for implementation right now, let's wait. let's repeal this bill now and

start all over so that we do not have to spend taxpayer dollars that we know are being borrowed to implement a bill that may be unconstitutional and we now have two federal courts that have said so. why not repeal, support this amendment, and some of what is in the bill could be re-enacted because it's good, but some of the things that i have just talked about should be repealed immediately, and most certainly we could repeal the parts like the 1099 that will be another amendment that we can vote on, that 1099 form is the biggest thing i hear about from my small businesses in this country, and certainly those in texas have said what are you all doing up there? well, of course, i'm happy to say i didn't support this bill, but these are the kinds of things that we can repeal today

and start all over, take the good parts of the obama health care. let's do a way with the bad parts instead of spending millions of dollars to make a mom have to get a prescription from a doctor to get tylenol with her health savings account. the american people have made their opinion on this bill known loud and clear. they spoke at the ballot box. enough is enough. that's what the voters said, enough deficit spending, enough government intrusion into our businesses, our families, our lives and our health care decisions. madam president, the people of america support the repeal of this bill, and they will work with us to substitute a responsible health care reform that will allow them to have health savings accounts to provide for the costs not

covered, that will give them affordable coverage which we all want to have, but not with a government prescription. not with a government task force that can tell a woman that she doesn't need a mammogram before the age of -- after the age -- before the age of 50. we don't need a task force to tell us that. we need the doctor who is looking at this patient and her family history. those are the things that need to come out right now. repeal and remace. that is what this senate could do today, and we can move forward on a bill that we can get a bipartisan consensus to pass that i think would show the american people we heard what you said, we know we can do better, and it is our responsibility today to do so. thank you, madam president, and i yield the floor.

mr. rockefeller: madam president? the presiding officer: the senator from west virginia. mr. rockefeller: i would ask if the senator from the state of washington would grant me 30 seconds to say one thing? mrs. murray: of course i will. thank you. mr. rockefeller: senator hutchison yesterday raised a very, very good point about slots. slots are kind of the hidden problem in the f.a.a. bill. and when -- what i think i would like to put forward -- and i wish you were here to hear me -- is that i recognize that the majority of the population growth in this country and

therefore the need for flights, more flights is in the west, it's not in the east. that's a -- that's extremely important. we deny that, but a lot of people are east coast-centric, and we have to learn how to be west coast equally centric. and so one of the things that occurs to me is that maybe we're thinking too much about airlines and not enough about the people who take those airlines to go to various places in the west. i mean, it -- it can't stand -- that -- that los angeles has a flight a day to d.c. it can't stand. they need at least four or five. they can bear that traffic. and so i just -- i would just

lay before the congress and the senator from texas made this point yesterday, and i totally agree with her. the growth in this country and the population and the need for air flights, yes, is in the east, but it's more now in the west. and as we go through this bill and come to the matter of slots, i think it's important that we keep that in mind and that we think about the public that flies as individuals, not necessarily, is it united, is it u.s. air, is it whatever, it's the question of, can we get them to where they want to go? i yield the floor. mrs. murray: madam president? mrs. hutchison: would the senator from washington allow me to just make a couple of minutes response to the senator from west virginia. mrs. murray: i would. sure. mrs. hutchison: thank you. madam president, let me just say i appreciate so much what the chairman has just said. i think that is a major

statement because what he says is true. one flight from washington national to california, that is all we have, one-direct flight -- one direct flight. that is not fair. it is not fair to the people in the west, certainly the largest state in america, california, in population, and i hope that what you have said will lead us, mr. chairman to a table to negotiate this so that we can be fair to the entire western half of the united states. so that we are also taking into account the people who live in and around the washington metropolitan area, which is what i think the western senators have tried to do. but let's talk about it, let's get something on the floor. let's negotiate this because with that this is a bill that with a few tweaks, perhaps, but this is a bill that ought to

pass for the right reasons for our country and for the traveling public. thank you, mr. chairman, for your leadership and thank you, senator murray. mrs. murray: madam president? the presiding officer: the senator from washington. mrs. murray: we are here to debate the f.a.a. reauthorization bill. it will create shows of jobs and -- thousands of jobs and put in place the infrastructure for us to make sure that we are competitive i in the future. so it is disheartening to me that this bill has now been hijacked by a political debate, an amendment to repeal the health care reform. not every bill has to be political, but unfortunately that's what we have today because we have an offer of an amendment to repeal health care reform. let me speak to that amendment. last year i watched as president obama signed the bill into law with a wrung man saimed marcela. i met macela a few years before.

it was a story i told here on the senate floor and i want to mention it again. marcellis came up to me at a health care rally, little boy, and he said he wanted to tell me about his mom named tiffany. she was a single mom, worked hard, got sick. lost h.r. job. because she lost her job, she lost her health care. and because she lost her health care, she lost her life. and little macellis said, please don't let this happen to any other little boy. please pass health care. i was proud when that health care reform law was passed and it is works to help marcellis and thousands of other kids don't get into that terrible situation. i heard from thousands of people from my home state of washington who are demanding reform to this system that we have. i heard from small business owners who wanted to cover their employees, but could not continue to do it because of

sight rocketing premiums. i -- skyrocketing premiums. i heard from moms and dads who wanted to cover their children but were rejected because their son or daughter will a preexisting condition. i heard from seniors who were desperate because they had fallen into the doughnut hole. they don't know how they would afford the drugs they needed to take so they could have dignity of life in their senior years. i heard from men and women in every part of my state, some barely holding on to their health insurance and a lot without coverage at all. each of their stories had a common thread, the health care system that we had in the country didn't work for them. it failed their families in one way or another and they wanted it to change. so, madam president, that is why i fought so hard with so many of my colleagues to reform that broken health insurance system, so fight for our families that -- who needed help and were desperate and level the playing field for people who needed a little bit of support.

we got that done for our families and we can never go back. we cannot go back to a time when millions of americans stayed up at night worrying about what would happen to them and their families if they lost their job and their health insurance. when insurance companies put unreasonable and unfair lifetime caps on coverage for our families. when women weren't able to get equal access to coverage. when small businesses couldn't afford health care and when so many seniors who couldn't afford it had to pay the full cost of expensive medications. we cannot go back to that. so, madam president, my question for republicans today is, why would they want us to? the changes that we made made insurance companies be -- be required to cover preventive services with little or no cost sharing on the part of patients. it gives families access to new streamlined assistance to help them appeal services that

they've been denied or not covered adequate care for. something that so many families got lost in prior to passage of this. it helps anyone who has been buried under a blizzard of forms from their insurance company and denial of coverage for what they need to have it affords businesses to have care for their employees who are getting a tax deduction as they fill out their forms and say, i didn't know that was in the health care bill, and we're going to vote to take that away? madam president, i ask, why do republicans want to take away the benefits as part of the business of this senate as we just get started to get our economy back on track? in my home state of washington, the republicans' plan would mean nearly 900,000 seniors who have medicare coverage will be forced to pay now more for regular checkups and important preventive services. it would mean they lose out on the 50% discounts on some of their prescription drugs and it

would mean that insurance companies would no longer now be required to allow people to stay on their policies until they're 26. and, that by the way, is going to be especially harmful now when so many of those young people today are having trouble finding a job. so, madam president, our families are depending on the changes that we made within this health care reform law. it's why i supported reforming our health care system. it -- it's why i worked so hard that it worked for our families an small business owners. and it's why i'm going to keep fighting to make sure that we don't go back to the way things were that we continue to make -- were. that we continue to make progress and make this right. i'm happy to work with anyone to help improve this law. i will do everything i can to fight a full repeal that will devastate our families an small business owners across america. and i urge my colleagues to vote no against this full repeal of health care reform. and one final point.

we hear so many people talking about the deficit today and how important it is that we get our hands around the budget and our budget deficit. so it's astonishing to me that this first amendment that's brought by the republicans will cost our federal governmen government $1.5 trillion and put us deeper in a tef si deaf. madam president, progress is important. making sure that our economy is moving within the f.a.a. bill is important, and it is important that we continue to make sure the health care insurance reform system we put in place works for our families and that's what i will be voting on later today. thank you, madam president. i yield the floor.

a senator: madam president? the presiding officer: the senator from arizona. mr. kyl: madam president, yesterday i spoke on one of the reasons for the repeal of this legislation, that is to say the support for the amendment to repeal the health care legislation that is pending before us. and today i'd like to speak about a couple of other reasons to support that amendment. one of the things that was said in the campaign to pass the health care bill was that those who liked their current health care would able to keep it. but as we know now, and as we pointed out prior to the bill's passage, provisions of the law would cause many americans, and will cause many americans, to lose their coverage. and that's why the

administration is now giving out waivers for some of the bill's most burdensome provisions. and i would like to speak just for a moment about these waivers that the administration has granted and the problems that the waivers reveal with the bill as a whole. so far the administration has granted 729 waivers. all of these are temporary. they protect companies and labor unions from one of the bill's most onerous mandates, the phasing out of annual caps on costs paid by insurers. another four waivers were granted to states applyin applyn behalf of insurers. according to the administration waivers may be granted if the applicant can show a large increase in premiums or a significant increase of absence of coverage would occur. so far it covers 2,283,106 people. that's more than two people people that the administration has had to protect from its own bill. all of these waivers were

granted to limit benefit plans or mini men plans. about 400 million americans have these mini men plans, including those who work in the restaurant and retail industries. these are low cost and have an annual cost. under the obama plan these would be outlawed. a phaseout begins this year. so starting this year plans cannot impose an annual limit of less than $750,000. and that threshold gets progressively higher until 2014 when obama care will prohibit annual caps all together. what this does of course is to create an incentive for employers who offer mini men plans below the $750,000 threshold to drop their coverage completely until the employer mandates an penalties become effective in 2014. they can then comply with the requirements of the health care law or pay a fine for each employee. the employees who have coverage through mini men plans will have

to hope in the mean time their employer can get a waiver. otherwise those employees will have to wait until 2014 to buy a government-approved policy from the new insurance exchanges or hope that their employers are in compliance with the many requirements in the bill. mcdonald's, for example, which offers mini men plans to many of its employees received a one-year waiver. the company warned absent a waiver 30,000 employees could lose their current coverage and would be without a comparable alternative until 2014. it is not clear what will happen when the one-year waiver expires. the waivers are often given on the condition that the recipient brings itself into compliance during the waiver period. whether the waiver refuels are available is -- renewals are available is unclear. as with many other provisions of obama care, the uncertainty for businesses surrounding annual cap waivers is immense. while the waivers are welcomed by those who benefit, it represents a poor way to run the

government or health care. when the government picks which entities will have to abide by the law and which ones won't, it's literally picking winners and losers. that's not the recipe for objective or wise policy making. it's called discrimination. i'll note a large number of these waivers were given out to the administration's political allies, unions, many of whom praised the bill's passage, are a major beneficiary of the 337 waivers passage, 182 went to unions. even though unionized workers make up 70% of the private workforce. many of the unions applying for waivers are the same who are pull of -- full of praise upon passage of obama care. the service employees international union gushed that it's a new day. about six months later local 25seiu applied for a waiver for 31,000 of its members. it was granted two weeks later.

apparently it's a new day, but just not for 31,000 of the seiu members. when the bill was enacted the men federation of teachers referred to it as an occasion. mr. moranan oh, morality trumped greed. in a recent column in forbes magazine, a law professor explains the dangers related to waiver and how the waiver process can undermine the rule of law. "waivers are by definition an exercise of administrative discretion that benefits the party who receives its special dispensation. nothing in obamacare explains who should receive these waivers or why. the dangers from this uncertainty are enormous. without major steps to overhaul or repeal obamacare, government by waiver will become standard operating procedure to the detriment of us all." end of quotation. madam president, if this bill

that was written behind closed doors creates a huge uncertainty and problems for job-creating businesses and their employees, and now waivers are being dispensed by the administration to protect almost 2.3 million people from the very law that it fought so hard to get passed. this is yet one more confirmation that the law is deeply flawed and one more reason why it should be repealed in its entirety. now, the second thing i'd like to speak to, madam president, is the fact that under this law there are substantial increased costs but they are being masked by the way that the bill has been written and the calculations therefore that some have suggested would actually result in a savings of of $230 billion. this is only plausible if you believe that the way this bill was written was an honest way of stating its costs.

it's not that the congressional budget office has done anything wrong in its calculations. it's that it was told how to calculate certain things, so the bill's authors said never mind what reality or truth is. here's how you're going to calculate the costs of it, and c.b.o. as a functionary did exactly that to come up with the number. but as former c.b.o. director doug holtz-eakin wrote in an article along with others, explained that the bill's purported deficit reduction is based on budget gimmicks, deceptive accounting and a plausible assumption used to create the impression of fiscal discipline, the fact is that repeal will not add to the deficit, the bill itself is the budget buster, not repeal. madam president, what i'd like to do is insert in the congressional record at this point the remainder of my comments which go through four basic assumptions that were built into the legislation as the way it was drafted, which

theoretically demonstrate a savings of money through the adoption of the legislation but which as the authors point out actually result in not a savings but rather an increase in the federal budget deficit. one of these has to do with the fact that taxes are collected for ten years but costs only accrue over six. obviously, you're going to get some money that way, but after that first six years, you have to count the costs as well as the revenue you take in. another is the inclusion of the so-called class act which has been described by some as a ponzi scheme, actually by the chairman of the senate budget committee because it collects all the money up front and doesn't pay out any benefits. well, once you have to pay out benefits, there is going to be a cost. that's certainly a way to show that you're taking in money and you're not spending it, but it's a dishonest way to write the bill. third are the way that the costs

of medicare were calculated. the so-called $500 billion savings is not really a savings at all, but rather goes to pay for other parts of the bill. it doesn't help medicare at all, and it only works if, as the budget office said, congress actually follows up with the costs -- with the cuts, rather, to hospitals and physicians which nobody believed congress would have the courage to do. and finally, there are the subsidies and exchanges calculations, which, as i point out in these comments, are woefully understated, as a result of which it is likely that we will have a significant budget deficit rather than savings as a result of this legislation. so repeal of the bill is not going to save taxpayer money. in fact -- excuse me. repeal of the bill is going to save taxpayer money. the legislation itself is what costs money. just think about this in conclusion. how can you cover an additional 30 million people or however

many are allegedly going to be covered by this without increasing costs? it can't be done, and it wouldn't be done under this legislation. so, madam president, in addition to the reason that i talked about yesterday, the costs of medicaid to the states and the two points here today, the fact that these waivers are being granted in a discriminatory way and only demonstrates that the underlying bill is not a good idea, and that the cost calculations are way off, i hope that my colleagues will take this opportunity to follow the advice of the american people and vote to repeal obamacare. a senator: madam president? the presiding officer: the senator from montana. mr. baucus: madam president, we unfortunately are in a period where we're going to be redebating health care reform.

we had long, long debates on health care reform in the last couple of years. i cannot think of legislation that occupied so much time in this body as well as the other body, but regrettably, we are going to redebate health care reform even though legislation was passed last year, even though legislation was signed by the president. the law is enacted. nevertheless, this body regrettably is going to spend, it looks like, a lot of time redebating health care reform. why? basically because the other side of the aisle wants to do so. it wants to not admit that health care reform is the law of the land. it wants to repeal it. now, the other side knows that there are not sufficient votes to depete health care reform. that is a well-known fact, well-known fact. the other side knows, those who covered the health care reform

debate know that the votes are not there to repeal health care reform. it is the law of the land. it was signed last year, and it will remain the law of the land. so then you might ask, madam president, if it's the law of the land today and if everybody knows that congress will not repeal health care reform, why in the world are we going -- why are we debating this for another who knows how many weeks, months or maybe even years? to be honest, i think it is because the other side thinks we take the charitable explanation. first, if they don't like it, they don't like health care reform for whatever reasons, even though i strongly disagree with their reasons, but in addition to that, they think it's a political issue. they think they can score political points by harboring up -- or mentioning points which in the main are not accurate but

say that anyway even though they are inaccurate points, say it over and over and over again. unless those points are refuted, unless those myths are busted, many american people will start to believe some of that stuff. then there is another reason, which is a bit regrettable, and that is because there have been suits filed in federal district courts around the country alleging that the law, health care law is unconstitutional, and it looks like that those decisions will eventually make their way up to the supreme court of the united states, and i suspect the supreme court will not rule for, i don't know, maybe a year, which means that we will be debating health care, wait to go see the outcome of the united states supreme court. now, i heard one, i think, very ill-advised argument just a few

minutes ago. the argument is because the supreme court has not yet decided on the constitutionality of health care reform, that we should in effect pass a moratorium, that we should forget the provisions of the law because we don't know how the court is going to rule. madam president, that is one of the most specious, inadvisable arguments i have heard in a long, long time because that in effect means whenever any law is passed, there is a lawsuit filed, that congress doesn't -- the law is invalid. just because a lawsuit is filed, the law is invalid. well, if we are to follow that line of reasoning, any time we enact a law and anybody doesn't like it can rush out and file a lawsuit, and that would mean that we don't follow the law. i -- i think the better course by far is to assume that a law is effective. it is the law of the land if and until it's overturned either on a statutory basis or a constitutional basis. that's -- that's only the way we

should operate. so the senator on the other side of the aisle who suggested about a half an hour ago that we should enact a moratorium in effect i think should rethink her position. because if she is really true -- if she really wants that to be the precedent, then i think we -- she would recognize that not too soon a period of time, we would be -- the country couldn't function. it really couldn't function because anybody would file a lawsuit on anything maybe passed ten years ago. say a law passed ten years ago. i don't like that law, i will file a lawsuit. following the senator's line of reasoning, well, we can't enforce that law because somebody doesn't like it. it just makes no sense. now, one of the myths here that has been said many times and was just said by the previous speaker, his argument for repeal of health care reform is his

statement that the repeal will save money. he thinks the health care bill adds to the deficit. now, madam president, you and i have been around here long enough. we have lived lifelong enough that anybody can come up with any set of figures or statistics that he or she wants to. it's a fact of life. so if somebody asserts this and somebody asserts that, i think it is wise to see what's that person's authority? who says that? where does that come from? who verifies that? who validates that? well, madam president, as we well know, there is one organization which has studied health care reform, and it has concluded that health care reform saves -- i think it's about $240 billion. reduces the deficit by by $240 billion and some in the first ten years.

it actually reduces the deficit by about 1 point -- i have forgotten exactly but north of of $1 trillion in the next ten years. that is the congressional budget office. the congressional budget office, to remind my colleagues and for anyone listening, is a nonpartisan, professional organization that analyzes legislation for both republicans and democrats and for the house and for the senate. they are a very professional outfit. they work very, very hard. no one has ever, ever even hinted that this outfit, the congressional budget office is unprofessional or that it has a partisan bias. nobody has even suggested that. everybody knows they work very, very hard and they do the very best they can under difficult circumstances. i say difficult because it's difficult to predict the future. it's difficult to know exactly how any request that they are given will actually score.

it's a very complicated process. you have to build models. it takes a long time to build a model. it takes a long time to know what goes into the model. so i want to make it very clear here today for anyone listening that repeal of the health care law will actually -- will actually increase the deficit by about $2,040,240,000,000,000 over the next ten years and actually increase the deficit by $3 trillion over the next ten years. that's what the congressional budget office says. that's the organization that all members of congress must live by. different members of congress might have different points of view. they may belong to some different organization. it's very liberal, very conservative. it has an ax to grind. they could come up with some other figure, but that's my point. they usually have an ax to grind. they usually have a bias that they want to perpetuate. one arbiter which is in the

middle, it's a professional, the one organization that nobody has ever, ever accused of being partisan or being unprofessional is the congressional budget office. let me just say again, they conclude -- they have written letters to all of us in the congress, that essentially repeal would add about a quarter of a billion dollars to the deficit over ten years, add to the deficit. that's what repeal would do. that's what the independent organization says. it will add to the deficit over over $1 trillion in the next ten years. so i mean, i think that should end the argument right there because it is the one neutral professional organization that's looked at this. other organizations could have their views, they could have their points of view, but the one that's professional is the congressional budget office. we have to go by those numbers anyway, invest in legislation here. let's stop that. that should be the end of the

argument. that has been settled. that's what the effect of repeal would be. that's it. okay. anybody who says to the contrary knows that he or she is spouting off numbers that are not the congressional budget office but some other organization, i don't know who they are. maybe they would be heritage organization, maybe they would be some other organization. who knows what they are, but it's not the congressional budget office. first of all, they are not neutral, they are not unbiased, and secondly can't go by those numbers anyway under the rules of the senate, so it's kind of silly. so that is one of the scare tactics used, madam president, on this floor to try to score political points. it is inaccurate. it is just plain, simply inaccurate. now, a couple of other points. what do we spend on health care in america today all together is this we spend abou

about $2.5 trillion a year in health care. we americans do. but half of that's public, that is, medicare, medicaid, children's health insurance. about half of that's private, the commercial insurance industry. that's the american way. that was the division for health care reform was enacted. what's the division after health care reform was enacted? it's about the same. it's about 50/50. so this is no government takeover. this is no government takeover. it's still about the same. maybe a percentage point or so different, i don't know. but it's basically the same. there's no government takeover here. half of it is still private commercial insurance as it always has been. we also in america spend much more per person on health care than the next most expensive country. i have an exact number.

i think it's 50%, 60% more per person on health care than the next most expensive country. and we're not 50% to 60% more healthy per person than the next most expensive country per pen. in fact, all the international health care data rank us pretty low. we're not number one, we're not number two in health care. we're way down there. i've seen statistics -- i haven't looked at them recently -- between 14th and 20th in terms of health. our infant mortality rate is much higher than many, many countries. our death rate is higher than many countries. i don't know about our diabetes rate, i expect that is high compared to other countries. maybe cardiac and other chronic care is high compared to other countries, but we're not number one in terms of health care. we are number one in -- in per

capita cost for health care. so i would think we should begin to reduce rate of growth of health care expenditures in our country. and that's what this legislation does. it starts to reduce the rate of growth of health care costs in this country. that's probably why the congressional budget office reaches its conclusion, it reduces the deficit by .25 billion -- a quarter of a billion over 10 and reduces it over the next 10 years and probably why the congressional budget office also said compared to prior law i think it's 90% of america's premiums will be lower. 90% of people's premiums will be lower. again, that's the congressional budget office. that's a neutral organization. they do the best they can. they're professional. some members of congress criticize them because they don't come up with conclusions

they like. other members of congress criticize c.b.o. because the c.b.o. doesn't come up with the conclusions they like. it's tough what they do. but they've always been praised for doing the best job they can. they've never been criticized for any partisanship or unto federalism. -- unprofessionalism. i've had my problems with the head of c.b.o., mr. elmendorf. it's most of the time, can't you get your numbers to us more quickly? why does it take so long? and he does his best. he does -- he says, senator i'm doing the best i can. i know he is. i still get a little frustrated, but i know he is. and i think he does a pretty decent job. now, you might ask, why are american health care costs so high? why are american health care costs so high? well, madam president, there are a lot of reasons for that.

essentially it's waste. it comes down to waste. there's a lot of waste in the american system. and this legislation, among other things, is designed to root out a lot of the waste. what is some of the waste? i'm not going to -- into great detail here, but i am struck with an article written by a dr. gwanda, june 1, 2009, in "the new yorker" magazine comparing el paso, texas, with mccullem, texas. this is what many in the health care industry cite. most people think that this fellow got the issue right. health care costs in el paso are about half per person as are health care costs in mccullem,

texas. and the outcomes in el paso are higher. people do better in el paso than they do in mccullem, texas. well, why one might ask? and the basic conclusion in this article is -- is because of the way we in america reimburse doctors and hospitals an providers -- and providers. it's a way which allows a culture in a community to spend a lot of dollars on health care if it wants to. and it's a way that allows a culture in a community to spend fewer dollars and focus more on the patient if it wants to. that's the culture of the community. and that's because we pay in america -- we pay providers, doctors, hospitals, pharmaceutical companies, medical equipment manufacturers, and so forth, on the basis of quantity and volume, not on the basis of quality. so as a bias in this system,

docs want to do the right thing -- where there's a bias for a a doctor to -- for a doctor to order a special procedure or to do this or that, a bias to get a piece of technical equipment. when we reimburse hospitals something called the d.r.g., the d.r.g. perk, it's according to procedure in the hospital, does not include medical equipment, so there's no real fix on what's the cost of that medical equipment. so the medical equipment manufacturers can charge personally what they want and they charge a lot. we've heard lots of stories. you can go to wal-mart and get the same, you know, little small whatever it is, -- it is for about a tenth of the cost that the hospital is going to charge you because it's the providers have the d.r.g.'s. that's an example of a lot of the waste that occurs in our system. i'll give you another example.

i think there's excessive procedures in america. this is -- you can do too much with anecdotes, but this is just one that -- that gives some indication of one of the problems we face in america. i know a doctor, he's a neurosurgeon, very, very represent you'llable, very good, and he said to me, you know, max, there's another surgeon -- neurosurgeon group that wanted me to join them. they wanted me to join their practice. so i talked to them and we talked a while. i have my own practice. they've got their practice. and after a while the negotiations cooled off a little bit. well, why? and it turned out that the -- the group who was seeking to have my friend join them did an audit. they did an audit on my friend's neurosurgical practice. and it was that audit which kind

of cooled the group in having my friend join them. the group said our hit is two to one. your hit rate is only 20 to one. those are exact words they used. hit rate. what does that mean? that means in the practice of the several surgeons, neurosurgeons, for every two patients they see, they perform one procedure. they have a hit rate of 2 to 1. my friend's hit rate is 20 to 1. for every 20 patients he sees, he performs a procedure. those docs in that group love procedures. they want to do everything under the sun. if you've got a back pain, it's a procedure. it's an operation. all of that. whereas often you don't have to have the most expensive procedures. but our system in america,

because it compensates docs and hospitals on the basis of volume an quantity as an excess toward excessive procedures. that's one reason there's waste in america today. nobody disputes that. it's one reason we have waste in america today. something else that's very interesting. there's an outfit called the dartmouth study. it's called the atlas study. and jack we n -- jack wentworth. he looked at health care costs across the country. what did he conclude. this study has not been refuted in any significant way. he concluded basically and i'm exaggerating now, if a person lives, say, in a -- in a wheat belt state, say montana, dakotas or northern plains state, that this person's health care costs per person is roughly one half

of what it would be if that person were to live in a sun belt state, you know, miami, denver or los angeles, phoenix, dallas. and the outcomes in the wheat belt states versus the sunbelt states is better. people have better outcomes. that is, they're cured better and faster than the people in the sunbelt states where the costs is twice as much per person. you might ask, well, why is that? and the reason is because basically it's supply driven. that is, in the south there's a lot more docs per person, and a lot more hospitals per person. people like to live in the south. they like the sunshine and the weather. and when you've got more docs and you've got more hospitals, that is supply driven, that tends to push up costs because those doctors or those

hospitals, they want to do things. they want to order procedures for their patients. -- patients to make them worthwhile. and that's what happens. now, most docs around the country, including the south, are good docs, they want to do the right thing. i've run into individuals, one cardiac surgeon, he talked to me, i couldn't believe it. he was only getting paid $2 million a year. and basically he had people come in and rotate people in his office, more cardiac stuff, more cardiac. he was upset he was only getting paid $2 million a year. cataract. excuse me. cataract, opthalmologist. so this health care bill is trying to address that basic problem and it's called health care delivery reform. we're going to move slowly toward reimbursing docs and hospitals a little bit more on the basis of quality as opposed to quantity.

and it's hard to measure quality. how do you measure quality? it is hard? very hard. but there's some criticism in this legislation which have been criticized by people i think unfairly designed to help us, both the doctor and the patient have a better idea of what the right procedure is and how to get the highest quality of health care. that's what it's designed to do. there's lots of names, there's aco -- a.c.o.'s, all kinds of things. that's the whole purpose of it. and the key is this, it is not at all intended to tell the doctor or patient what to do as has been claimed. not at all. not at all. rather, it's just the opposite. is to help the doctor and the hospital have better, more information so the doctor and the patient can decide for themselves what procedure should

next be enacted or not. it's more information to the patient. it's more information to the doctor so that the patient and doctor can make their own decision. there are implications by some of us on the -- that this significantly undermines the doctor-patient relationship. it's just the opposite. information to docs and information to hospitals and to doctors and patients, they're in a lot of better position as to what they should and should not do. you talk to doctors, they want to learn more. you know, right now the drug rep comes into his office an peddles his drug. and the doc wonders, is this the right drug or not? what we're trying to do here is get a little more objective source of information so the doctor and hospital and the patient have better information. and they -- let me go back to an earlier point. i mentioned that health care

costs according to the dartmouth study are much lower in the northern plains states than the southern states. the congressional budget office and people may not like this, because it's the with congressional budget office, people on one side of the aisle may not like it because it's the congressional budget office, but they concluded if an entire country's health care system were applied nationwide in the way that is applied in wheat belt states, that is montana and other northern high plains states, the cost of health care in america would be reduced by 29%. 29%. and, remember, the outcomes in the wheat belt states are better than are the outcomes in the sunbelt states. i said earlier we spent spent $2.5 trillion a year on health care. 30%, $2.5 trillion, that's a lot of money. it's north of $800 billion a year.

now, i don't stand here to say we're going to save all that money. what i am saying is that some indication of some of the waste that occurs in the current system. now, others will say well, there is waste because too many docs have to practice defensive medicine. i don't deny that. i don't deny that. i do think too many docs have to practice defensive medicine and that's got to be addressed, but that's waste. that by and large is waste. it must be addressed. madam president, i know other senators wish to speak, but there are a couple other points here i want to make. pre-existing conditions is really a big deal. in my state of montana, about 425,000 people have pre-existing conditions. that's near half the population. that means that without health care reform, most of those

525,000 would not get quality health insurance. they would not get health insurance, certainly not quality health insurance. they may get it, but they would have to pay so much in premiums to get coverage. this legislation moves us toward that day where a health insurance company cannot deny coverage based on pre-existing conditions. we have already done it for kids. we have got a pool for kids. in a couple of years, all americans will be able to get quality health insurance. that is, they will not be denied coverage based upon pre-existing conditions. and what is the consequence today of denial based on pre-existing conditions? part of it is people don't have health insurance, but also it's this. in my state of montana, as is true in all states, a lot of people go to the emergency room. you know, they go to the doctor, they get hit by a truck or they

get cancer and something happens to them and they don't have insurance. if they don't have insurance, what will they do? well, i guess you go to the e.r., that's what you do. you go to the e.r., you have a good e.r. doc, he or she is really good and takes care of you. you see another doc, the hospital bill. you can't pay the hospital bill because you don't have insurance. what happens? well, you get the care but the cost of the doc, the e.r. doc and the other physicians and the drugs and the hospital, something has got to pay for it, so who pays? all the rest of us who have health insurance, we pay. it's all transferred on the rest of us who pay. so we're -- our bills, our health care bills, our premiums are higher today because of the people who don't have health insurance. it's called uncompensated care. in montana, the bill is about about $2,100 a month.

that is, in montana -- excuse me, a year. premiums in montana are $2,100, family premium, health care premium in montana is due to uncompensated care. so if people had health insurance, if the whole country had health insurance, then we wouldn't have that transfer cost that all the rest of us would have to pay for it. then you may say, gee, how do you get the other people having health insurance? that's the question. that's one of the questions that comes newspaper this bill. i think we should have an honest discussion about that. how do you do it? this bill says two things. people must have health insurance. they can do it two ways. if they are poor, they can go to medicaid. medicaid is expanded a bit. then there is issues like, well, gee, doesn't it cost too much, aren't states having to pay big bills and so forth? the answer to that is, well, there is no increase in bills to the states for how many years? for three years.

and then the match is reduced from 100% after several years, which is much higher than it currently is, much higher federal dollars than it is for other medicaid. we could have that discussion and to figure out ways to help states that legitimately need help. still, it's more insurance for people. that's good, because those people get health care and those bills aren't passed on to the rest of us. the other way, clearly, is to get assistance to people who cannot afford health insurance, and it's through a rebate in the tax code, and that's where a lot of the money is. that's where a lot of the money goes. but it's clear that some people have too much money to qualify for medicaid but not enough to buy health insurance are going to need some assistance, so this legislation is designed to help those people get assistance, and the wealthier they are, the less assistance they get. now, some say that's why this

bill costs so much. i think it's important to remind people here that according to the congressional budget office, again, the neutral group that we trust, nobody questions their integrity. says this bill doesn't cost a thin dime. a lot of people like to say, oh, that's a trillion dollar bill. it does cost a trillion, but it raises a trillion dollars, so on that basis it doesn't cost anything. and the dollars are raised through -- the rates in which we are reduced -- the rates we pay providers are cut back a little bit. there is also some fees on some of the providers. that is true. that is true, and that's how this bill is paid for. but let's remember almost all those providers, all those people who were paying a little higher taxes and all those groups whose reimbursement rates are a little lower favor the

bill. they are in favor of it. now, you might ask why in the world would they favor this bill? and the answer is because more people have insurance, and if more people have insurance, their margins might drop a little, but their volume will increase. they can make money. they figure they're going to make money under health insurance reform. hospitals, pharmaceuticals, medical manufacturers, most of the insurance industry, you name it. they think they can make some money. so i -- i don't want to take too much time of my colleagues here, although i do have one other point and that's medicare. it is stated on this floor, well, this hurts medicare, it takes the money out of medicare. that's a red herring, madam president. a red herring that somebody says

something, on the face of it, it's true but it's irrelevant to the main point. it is true that the reimbursement rates to providers is a little lower, but it is also true that this legislation extends the life of the medicare trust fund by about ten years. i'm corrected, madam president. by 12 years. the trust fund under this legislation is extending the -- the life of the trust fund is extended by 12 years compared to what it would be before this law was enacted. well, some people want to repeal that. they want to cut back the life of the medicare trust fund. what else do they want to cut back with repeal? repeal gives many seniors, four million americans i think is the number, a drug benefit, the doughnut hole, $250 a year. in my state of montana, it's

12,000 people. after a period of time, that doughnut hole will be closed so seniors won't have to pay for excessive costs on prescription drugs. well, repeal would repeal that. all you new year's, 400 million seniors, we're going to send you a $250 bill. we want you to pay $250 in effect on drugs. we don't want you to get a break. that's what repeal does. that's what repeal does. i don't think americans want health care reform repealed, certainly those four million seniors don't want it repealed. well, i have a lot to say here. i'll finish up here. all i ask is this, madam president: i ask -- and we're going to have this debate regrettably for about a year, until the supreme court finally decides. i ask that we all stick with the

facts. we stick with the facts and don't indulge in histrionics, scare tactics and so forth. just get the facts, ma'am, because the facts generally -- you can't change facts, so the fact is what does c.b.o. say? there are lots of facts here, and i just urge us to stick with the facts. we can argue what they may mean or not mean, but let's stick with the facts. let's not manufacture facts. you can't manufacture facts and have a good-faith debate. and i assume that this is going to be a good-faith debate, so let's stick with the facts. and when we do -- well, one more small thing here. i will say this. there is a person who once stood here years ago in the united states senate. it was mike mansfield from montana. he was the majority leader of

the united states senate for 17 years. no other leader served as many years as mike mansfield. and i ran across a statement by him which he gave in 1989 to a bunch of wide-eyed students, and i can't remember exactly what he said, but the main point of it is this. he was a real reasonable guy, a revered montanan. in all efforts, to be constructive, you have to listen. you know, listen very well, very closely to the other person's point of view. he went on to say, he says you're not always right, and they're not always wrong, and the more you listen and the more they listen, you'll see where you're not right and you'll see where they're -- they're not

wrong. you will also see where you're right and you're wrong, but you've got to listen to try to find that common ground to where somebody is right and somebody is not right, an objective sense of the term, then use that information constructively and with -- with knowledge and with good faith. and i just ask all of us to do just that. thank you, mr. president. mr. president, i've got two requests i forgot to give. i ask consent that the following staff be allowed on the senate floor during debate on the f.a.a., transportation modernization improvement act -- ellen bonz, lisa lynn, jonathan jaffrey, shannon oberding, brian ellison, michael grant, andrew fishburg, matthew mcpheeley, jessica kamarua. i also have three unanimous

consent requests for committees to meet during today's session of the senate. they have the approval of the majority and minority leaders. i ask consent that these requests be agreed to and the requests be printed in the record. the presiding officer: without objection. mr. baucus: i yield the floor. a senator: mr. president? the presiding officer: the senator from south carolina. mr. demint: i ask unanimous consent at the conclusion of my remarks that senator johanns be allowed to speak. the presiding officer: without objection. mr. demint: thank you, mr. president. i think any american who just heard the explanation of what obamacare does for americans will realize that the complexity of the health care system, the importance of the patient-fizz relationship cannot be managed from the federal level. i had a difficulty -- i had some difficulty really determining exactly what was being said there, but i do want to talk about health care, but before i do, i need to make a couple of comments about the f.a.a. perimeter rule that is part of the discussion that the health care amendment will be a.

-- be attached to. the perimeter rule is a policy that was adopted in the 1960's that prohibits aircraft flying in and out of reagan national originating or departing anywhere beyond an arbitrary 1,250-mile limit. congress imposed this limitation five decades ago in an attempt to help the dulles airport in virginia when it was first being opened. the rationale was the best way to ensure growth at dulles was to limit the growth at national airport, and so by federal fiat, a short haul airport was created at national and a long haul airport created at dulles. at the time, congress assumed government could create an efficient aviation system and the government would best decide prices, routes and schedules. the perimeter rule is outdated today. americans out west want to fly directly into downtown d.c.