Jeff Bingaman

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, this is a very straightforward amendment which just requires a report from the Secretary of Defense on those people we are incarcerating under the status of ``enemy combatant'' and what our intentions are with regard to charging them or making a decision on charging them. We have a proviso in there that if the release of any of this information will jeopardize national security, the Secretary can withhold that and put it in a classified annex and give it any level of classification the Secretary determines is appropriate. So it seems to me essential that the Congress exercise some oversight of this process. If we are going to be a nation that stands for liberty and freedom and legal process, then we ought to ensure that everyone who has been taken into custody in our country be afforded some legal protection. There are no military tribunals that have been established. The problem is not resolved. We should ask for this report.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, we in America firmly believe that what distinguishes our country in the history of the world is our commitment to individual liberty and freedom. At the bedrock of a free society is the obligation that the Government takes on to afford individuals certain legal protections, the most basic of which is the freedom from incarceration unless the Government can prove that you have committed a crime. Today we are witnessing the abandonment by this current administration of our historic commitment to this most basic legal protection. The core element of due process law is the requirement that if individuals are taken into custody by the Government, then within some reasonable time, they will be advised of the crimes of which they are accused. They will be charged with those crimes and they will be prosecuted. This administration, working through the Justice Department, headed by Attorney General Ashcroft, and the Pentagon, headed by Secretary of Defense Rumsfeld, has taken the position that as to many individuals it now has in custody, no such legal requirements attach. It is my view that regardless of whether the person in custody is an American citizen or a foreigner, regardless of where he or she is apprehended, and regardless of the Government's preconceptions about his or her guilt, that person should be entitled to some reasonable standard of due process. Secrecy and disregard for the rule of law are not the ideals upon which a free and open society are based. To demonstrate the basis for my concern, I would like to describe to the Senate some of the actions that have been taken in recent months by the administration. These actions fall into three different categories. There are those that affect immigrants. There are those that affect so- called material witnesses. There are those that affect so-called enemy combatants. Let me start first with immigrants. In the case of immigrants, the inspector general in the Department of Justice has recently documented the abusive treatment of many immigrants by the FBI and the Justice Department in the period since 9/11. According to the IG's recent report, many immigrants were detained following 9/11 even though the FBI had no evidence that they were connected to terrorism. The report states that some detainees did not receive their so-called charging documents for more than 9 months after they were arrested. Even after they were charged, many detainees were held in ``extremely restrictive conditions of confinement'' for ``weeks and months with no clearance investigation being conducted.'' The Attorney General would have us accept with no dissent that extraordinary times require extraordinary measures, even if it is at the expense of individual civil liberties. In my view, the fact that these immigrants were detained on alleged immigration violations does not permit the Government to totally disregard their rights. While the 9/11 detainees were entitled to be represented by an attorney at their own expense, the inspector general found in many cases that the Government made it very difficult for detainees to obtain an attorney or to speak with that attorney on a regular basis. I hope the newly established Department of Homeland Security, which now has jurisdiction over immigration violators, will follow the inspector general's recommendation that it ensure that ``detainees have reasonable access to counsel, legal telephone calls, and visitation privileges consistent with their classification.'' I am also troubled by the veil of secrecy which the administration has drawn around these detainees. The public and the Congress have a right to know the names of individuals detained in connection with the September 11 investigation. If we had had timely knowledge of the names of people discussed in the inspector general's report, we might have been able to shine some light on the process to ensure those individuals' rights were not violated. Unfortunately, a recent circuit court of appeals decision allows the Department of Justice to continue circumventing the Freedom of Information Act. The decision is likely to be appealed, and I hope that the earlier court decision ordering the release of the names will be upheld. In the meantime, however, I hope the Attorney General will do the right thing and voluntarily release the names of the September 11 detainees. I was pleased to join Senators Feingold, Kennedy, Durbin, and Corzine last week in formally making that request. I hope the Attorney General will agree. Now let me speak about material witnesses. The second way in which the administration has been detaining people is under the authority of the material witness statute. This little- known statute permits the Government to arrest and detain a potential witness whose testimony is material in a criminal proceeding and who is likely to flee. The statute says: Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure. The issue here is the manner in which the statute has been applied and, in addition, the unreasonable length of time the administration has detained some individuals under this statute. On the first point, the administration appears to be using the material witness statute to detain some individuals without any intention of ever calling them to testify before a grand jury. In fact, a Washington Post article published last November reviewed 44 material witness cases. In 20 of the 44, the material witnesses were never called to testify. I share the concern of those who believe the administration is misapplying the statute in order to hold individuals without due process while those individuals themselves are being investigated. I would like to give the administration the benefit of the doubt, but their answers to a recent House Judiciary Committee inquiry shed little light on their intentions. In those answers, they stated: We can only provide information about those material witnesses whose status has been made public in court proceedings. The administration also refuses to provide the public with the specific number of people who have been detained, saying only that: As of January 2003, the total number of material witnesses detained in the course of the September 11 investigation was fewer than 50. Again, the public and the Congress are faced with the veil of secrecy. Tell me, Mr. President, what is the harm to national security in revealing the specific number of people who have been detained under the material witness statute or the list of charges that have been brought against such people? The public and the Congress have a right and an obligation to know. One last troubling point is the unreasonable length of time many material witnesses have been held. Again, the Justice Department refuses to provide any specific information. I know Senator Leahy has written to the Attorney General for more information on actions that have been taken under the material witness statute. He has requested a response by the end of this week. I very much hope that that response will be forthcoming. We need to know more about the Justice Department's use of the material witness statute, and the Congress needs to study whether changes should be made to ensure that due process is followed for individuals who are detained under this statute. Finally, we come to the third category of individuals who have been detained; that is, individuals the administration deems to be ``enemy combatants.'' To date, the administration is holding three individuals within the United States as enemy combatants, and close to 700 are being held at the United States military base at Guantanamo Bay, Cuba. In all cases, these individuals are being held incommunicado, with no access to counsel and no opportunity for judicial review. It is not unreasonable to ask who qualifies as an ``enemy combatant.'' Since the Justice Department will not reveal the identities of many of the people it is holding, it is very difficult to tell. Most of these individuals were taken into custody in Afghanistan or Pakistan and are alleged to have been engaged in action against United States troops. At least a few of those held as enemy combatants are citizens of allied countries. According to the Financial Times, nine of those being held in Guantanamo are British citizens. At least one, Jose Padilla, is a U.S. citizen being held in South Carolina. Another, Ali Saleh Kahlah Al-Marri, is a citizen of Qatar and had been scheduled to go on trial this month in Illinois on charges of lying to the FBI. With the trial date approaching last month, the Justice Department removed him from the court system and jailed him in a Navy brig in South Carolina. Now that he is an enemy combatant and is classified as such, our Government takes the position that he need not be charged with any crime, he need not be given a hearing, his attorney is denied the right to see him, and he can be jailed indefinitely by the military in this condition. President Bush has announced that 6 of the 700 or so ``enemy combatants'' will be tried by a military tribunal. There are serious questions about the procedures intended to be used in those trials. But even more serious questions relate to those who remain in jail without any prospect of charges being brought or trials being conducted. The obvious question is: Where do we go from here with regard to these individuals? The administration has labeled these people ``enemy combatants'' and has asserted the right to keep them incarcerated, presumably until our enemies are vanquished. But the President has made it clear that the ``war on terrorism'' in which we are engaged is of indefinite duration. Is it the President's view that we can keep these individuals in prison in Guantanamo from now on without revealing who they are, without charging them with crimes, without affording them a hearing at which they can protest their innocence? This is not a tenable position. This is not consistent with the commitment to liberty and the rule of law on which this country was founded. We demand that other governments show greater respect for human rights than this, and we should demand better from our own Government as well. Let me say what I hope is obvious; that is, I am not advocating the release of these individuals. What I am advocating is that we afford them the right to be charged and to be tried for their alleged crimes. Most of those designated as enemy combatants have been in custody for more than 18 months without being charged. The Bush administration takes the position that they are not prisoners of war and, therefore, do not enjoy the protections of the Geneva Convention. Our Federal courts take the position that these individuals are in Guantanamo, not within territory controlled by the United States, and therefore the courts have no authority to ensure that basic rights are protected. In the case of Al Odah, et al, v. United States, the U.S. Court of Appeals for the District of Columbia sidestepped any responsibility for the enforcement of the Constitution by deciding that it had no jurisdiction over the detainees at Guantanamo. The argument used was that since the United States only occupies Guantanamo Naval Base under a lease it signed with Cuba in 1903, therefore, the court reasoned that Cuba is the sovereign nation with jurisdiction in Guantanamo and presumably the detainees should look to Castro for a remedy. The end result of all this legal maneuvering and sidestepping is that with regard to these individuals, our own Government has successfully managed to avoid and evade any obligation to abide by procedural due process. In the view of our Attorney General and the Secretary of Defense, there is no obligation to bring charges, there is no obligation to afford a hearing within a reasonable period of time, there is no obligation to permit legal counsel, and, in fact, there is no obligation to reveal who is being held in this enemy combatant status. The Attorney General further asserts that if a prosecution in the court system is not proceeding in a promising manner, he has the prerogative of unilaterally removing the defendant from the court system and jailing him for an indefinite period without the need to prove the individual's guilt. The administration's treatment of immigrants, material witnesses, and persons labeled as ``enemy combatants'' makes a mockery of our professed commitment to individual rights. Our great Nation does not have to abandon its Constitution and trample on the individual rights we hold dear to deal with the threats of a modern world. Terrorism is a threat to our Nation, but the undermining of our constitutional rights is also a threat. The idea of America is admired and emulated all over the world, in large part because we believe that the right to liberty is fundamental. In those circumstances when the State has reason to deprive a person of liberty, that individual should have the right to know what he or she is charged with and to have access to meaningful review of those charges. I urge the President, the Attorney General, and the Secretary of Defense to advise the Congress and the American people of the steps they will take to afford basic procedural rights to all those I have discussed here. Too many generations of Americans have fought to protect these rights for us to look the other way as they are being denied and disregarded. Our children and grandchildren would expect better of us, and we should expect better of ourselves. Mr. President, I yield the floor.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I ask unanimous consent to speak for up to 20 minutes as in morning business.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. BINGAMAN. Mr. President, I send an amendment to the desk.

Mr. BINGAMAN. Mr. President, this is an amendment I am offering on behalf of myself, Senator Daschle, Senator Leahy, Senator Durbin, Senator Lautenberg, Senator Feinstein, Senator Harkin, Senator Clinton, and Senator Corzine. This year in his State of the Union Address, President Bush announced a new global AIDS initiative which would provide $15 billion in U.S. funding over the next 5 years. Unfortunately, when the time came for the President to submit his budget and to stand behind that commitment to $15 billion, the budget did not reflect that commitment. In the fiscal year 2004 budget request, the President asked Congress to appropriate at least $1 billion less than what he had spoken of in this new initiative. Rather than requesting that Congress appropriate $3 billion for these issues, the President effectively said in his budget that less funding was good enough this year. This chart points out, in the bottom line, the President's budget request. As you can see, it is a total of $1.9 billion for the next fiscal year. The other line on this chart is the level at which we have authorized funding, which is consistent with what the President asked for in his State of the Union speech. Using the most liberal of calculations, the President's budget asks for $1.9 billion for this AIDS effort. This includes $200 million pledged to the global fund in fiscal year 2004. What makes this reduction even more difficult to swallow is that at the same time we were asking for less than we promised as a nation with regard to AIDS funding, we also saw in the budget of the administration requests for reductions in funding for critical global health issues in other areas as well. I am very proud to say that this May, the Congress chose to realize the President's original vision when it authorized, over the next 5 years, the $15 billion the President asked for in his State of the Union speech. This was legislated as the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003. Within this $3 billion, we provided that $1 billion could be directed to the global fund. So Congress did authorize what the President talked about in his State of the Union speech. The President is now, of course, in the midst of a tour through Africa. He is meeting with the leaders of those countries. Many of those countries have suffered from the ravages of these diseases. Of course, he is discussing, as he should, the fight against HIV/AIDS, against tuberculosis, against malaria. The morning news report that I saw in the New York Times I think sums it up well. It has quotations. The President said yesterday in Botswana: The people of this nation have the courage and resolve to defeat this disease and you will have a partner in the United States of America. He went on to say: This is the deadliest enemy Africa has ever faced, and you will not face this enemy alone. There is another article I have from the New York Times that speaks of the President's trip to South Africa yesterday. It indicates the following: He talked about his AIDS proposal. He did not mention that a House subcommittee is likely to cut funds for the first year of the $15 billion 5-year program below the $3 billion sought by legislation that Mr. Bush signed this spring. The program would provide help to 14 countries. Twelve of those countries are in Africa. The question for us in the Congress is whether we will vote now to fully realize the President's stated intentions or will we succumb to political expediency and essentially go along with taking credit for a $15 billion commitment while in fact doing substantially less than that. I believe a promise made should be a promise that is kept. The amendment I am offering today, along with Senator Leahy and Senator Daschle, simply states that we will appropriate the amounts Congress and the President have pledged to commit to these programs, and that we will do so without reducing our funding commitments to other important global health programs. The urgency behind our promise is borne out in a report that was released this week in which the United Nations finds that the greatest impediment to development in poor countries around the world today is HIV/AIDS. In 1990, 10 million people were infected with HIV. Today, in 2003, there are 42 million people who are infected with HIV. To date, this disease has killed 25 million people. It has created over 14 million orphans. In the next 10 years, it is estimated that a full 25 percent of sub-Saharan Africans could die from HIV/AIDS. Most of the victims of HIV/AIDS are children and young adults. It is a disease that cuts lives short before they ever reach their full potential. Because of this, it creates a generational vacuum in countries where it is most prevalent. The President today is in Botswana. That is the country with the highest rate of HIV/AIDS of any country in the world. So this generational vacuum I referred to means there will not be leaders for tomorrow. It means the ideas and energy that youth carries with it will not have an opportunity to express themselves as cultural, societal, and governmental forces. It means the development of nations is seriously jeopardized and the doors of opportunity for fanaticism and terrorism are thrown wide open. In 1998, Zambia lost 1,300 teachers to HIV/AIDS. In a country that is able to train only 1,900 teachers in a full year, it is not hard to imagine the depth of the devastation that is being created. To date, over 17 million Africans have died from AIDS and another 28 million are infected with HIV. This includes 1.5 million children who are infected with HIV. Experts estimate that in less than 25 years, there will be 110 million cases of HIV/AIDS in India, 70 million in China, 13 million in Russia. The magnitude of the health resources that will be required in these countries is mind-boggling. Looking beyond the health service demands of these diseases, it becomes apparent that domestic productivity, the continued growth and development of these nations, will be significantly impaired. I could go on at length about the extent of the problem we face. I think all of us in the Senate have become aware that this is a serious issue. By providing the promised $3 billion each year, in an effort to fight HIV/AIDS and TB and malaria, we would prevent a minimum of 2.3 million additional people from contracting the HIV virus. I say that is a minimum because by fully funding our promise, we can leverage more resources from the other countries as well. The question we are faced with is whether Congress is going to step up and do what it has promised to do. It is not enough to say some year in the future we will get around to doing this. We have authorized $3 billion per year. We should appropriate $3 billion per year. Our amendment answers that question and makes it clear that the Congress is committed to keeping its promise and this Nation's promise in this regard. It also makes clear we are committed to doing that not at the expense of other global health programs. The funding cuts in the President's budget seem to rest on an underlying assumption that because we are going to up the ante for funding HIV/AIDS, TB, and malaria, we do not need to do as much in the areas of poverty and disease and malnutrition and development of democracy abroad in other respects. The reality is, the confluence and the interaction of these factors in Third World nations contradict that assumption. By choosing to focus intensely on one of these issues, we are not then free to ignore others. The effective model for helping nations that are less wealthy than ours requires an appreciation of the interdependence of the issues of poverty, disease, early mortality, famine, and poor education. I do not believe that in order to fund efforts directed against HIV/ AIDS and TB and malaria, other efforts to help these countries should suffer. Unfortunately, in the President's budget, other essential international programs are cut anywhere from 5 percent to 63 percent. Programs that help vulnerable children, children who are blind, who suffer mental disabilities, who have physical disabilities, those are cut 63 percent in that budget request. Immunizations, therapeutic and surveillance programs for infectious diseases are proposed for cuts of 32 percent. Child survival and maternity programs will be cut by 12 percent. So we need to address this issue. The amendment I have sent to the desk is a sense of the Congress, but it is one that will make it clear to the rest of the world, as well as to all who are concerned about this issue, that we will make good on this promise. The Congress needs to choose between this funding and other items. The Congress needs to make a decision. The amendment we are offering today simply states that we are committed to putting the money behind our promises when it comes to fighting HIV/AIDS. We will provide the funds we promised. We will do so without cutting funding to other vitally important health needs. Let me just read the very short ``resolved'' sentence out of this amendment I am offering. It says: It is the sense of Congress that Congress, when considering appropriations Acts for fiscal year 2004, should fully appropriate all the amounts authorized for appropriation in the Act. . . . That refers, of course, to the United States Leadership Against HIV/ AIDS Act. [We] should fully appropriate all the amounts authorized for appropriation in the Act, even to the extent that appropriating such amounts will require Congress to appropriate amounts over and above the funding levels contained in the Concurrent Resolution on the Budget. . . . In my view, this is a statement that needs to be made, particularly this week as the President is traveling on the continent of Africa. I urge my colleagues to join me in helping to ensure that our commitment to fight HIV/AIDS is made a reality. I yield up to 10 minutes to my colleague and a person who has been a very strong leader on this issue, Senator Leahy from Vermont.

Mr. BINGAMAN. Mr. President, in response to the question, let me just say that is the thrust of the amendment. The amendment is a sense of the Congress. It is the sense of the Congress that when appropriations bills do come to the floor of the Senate, we will agree to fully appropriate the money needed to meet this $3 billion per year commitment. That is not the amount the President has asked for. He has asked for substantially less. It is not what early indications are the House Subcommittee on Appropriations is likely to provide. We are also concerned, of course, about the availability of those funds in our own Appropriations Committee. So this would make it clear to the whole world, we are committed to providing these funds, even if it is outside the bounds of the budget resolution--which it may well have to be. But we will provide the funds necessary to meet the commitment the President has made and continues to make on this trip to Africa. I would like to reserve the remainder of my time. I know Senator Lugar wishes to reserve the remainder of his time so we can have short statements. We will not use the full amount of time reserved. At this point, Senator Reed is here wishing to speak so I yield the floor.

Mr. BINGAMAN. Let me begin by thanking the Senator from Indiana for his willingness to support the amendment and urge others to. That is very important. It is important we pass this amendment by a large bipartisan vote. He indicated he believes the President is sincere in his commitment to provide this $15 billion over 5 years. I certainly agree. I believe the President is sincere as well. I believed that when he said it in his State of the Union speech. I still believe it. Unfortunately, the fact we are faced with is we have authorized the $15 billion to be spent consistent with what the President asked for. But as we all know, there is a difference between what is authorized and what is appropriated. And the early indications are the appropriation may not be that generous or that robust. That is the reason for my amendment. The early indications I am referring to are the President's own budget request. In his request to the Congress, the President did not ask for $3 billion this first year. He asked for, perhaps in a most generous reading of his budget request, $1.9 billion; $200 million of which would be committed to this global AIDS fund. We had authorized $3 billion, $1 billion for the global AIDS fund, $2 billion on other bilateral programs and AIDS initiatives. All I am saying is, we need to step in and, as is appropriate under the Constitution, appropriate the funds the President is talking about in Africa, that we have authorized to be spent. I believe that is the least we can do. This amendment is a sense of the Congress that we are committed to that when the appropriations bills come to the floor later this year. We will all have a chance at that point to look at those bills and see whether or not the funding is present. If it is, fine; if it is not, we can add funding at that time before we complete action on those bills. I do not subscribe to the view that the President's commitment of $15 billion is contingent upon all sorts of other things. I think it is a commitment this country has made. I commend the President for it. I commend him for taking this trip to Africa. I know those countries have desperate needs for which that funding could be used. And this pandemic that we are seeing worldwide, but most particularly on the African Continent, is something that deserves our top priority. I urge my colleagues to join me in passing this sense-of-the-Congress amendment and then, of course, I will urge them to support following through when the appropriations bills actually come to the floor. That is when the real decision point comes. This is a great indication that the Senate is standing behind the President, behind its commitments, and that is exactly what we should do. Mr. President, I ask for the yeas and nays on the amendment.

Mr. BINGAMAN. Mr. President, I ask unanimous consent that Senator Stabenow be added as a cosponsor of my amendment.

Mr. BINGAMAN. Mr. President, how much time remains?

Mr. BINGAMAN. That is exactly the commitment the President has made.

Mr. BINGAMAN. I will yield to the Senator from California who had a question or two she wanted to ask at this point.

Mr. BINGAMAN. Mr. President, how much time remains?

Mr. BINGAMAN. Mr. President, I thank Senator Daschle, the leader, for his strong support for this effort. I had the good fortune to be with him in Botswana last August and underscore and emphasize the very points he made about the enormous need that exists in that country and throughout the African continent. I yield all but 2 minutes of the remaining time to my colleague from Illinois. I reserve 2 minutes to summarize at the end.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I move to reconsider the vote. I move to lay that motion on the table. The motion to lay on the table was agreed to. Change of Vote

Mr. BINGAMAN. Mr. President, I will take one of those 2 minutes and Senator Domenici the other. This is a Bingaman-Domenici amendment. The purpose of it is not to eliminate the asset test. That was an earlier amendment I offered and then withdrew. Instead, it is to update the asset test, where you would still be required to demonstrate that your income was below poverty or in that range, but instead of having to demonstrate that your total combined assets were only $4,000, you would be able to show that they were less than $10,000. This also eliminates the paperwork burden that currently is imposed in most States on people who are required to itemize their assets and essentially provide a full financial statement to get the full low- income benefit. We think this is a needed update on the asset test. It will allow a lot more people to get the full benefit. I yield the remaining time to Senator Domenici.

Mr. BINGAMAN. I also ask unanimous consent that we be allowed 2 minutes to advocate for the amendment and the opposition get 2 minutes as well.

Mr. BINGAMAN. I ask unanimous consent that the Senator from Florida, Mr. Graham, be added as a cosponsor.

Mr. BINGAMAN. Mr. President, this is what the bill was intended to say. It is exactly what we have shared with your staff. It is just that there was a typo in it.

Mr. BINGAMAN. I ask unanimous consent that the Record reflect we are updating the asset test to a limit of $10,000 per individual and $20,000 per couple.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I request that the manager allot me 5 minutes.

Mr. BINGAMAN. I thank the Senator from Montana. Amendment No. 1066 Mr. President, I would like to take this opportunity to explain amendment No. 1066, which is scheduled to be one of the amendments considered in this next block of amendments. Mr. President, I am concerned that the prescription drug coverage included in S. 1 is not sufficient to fully meet the needs of our seniors and that those seniors who elect to participate in Part D and get this prescription drug benefit will be restricted from purchasing supplemental coverage. The Kaiser Family Foundation estimates that in 2006--which is the year this legislation really takes effect, this benefit occurs--the average Medicare beneficiary will spend $3,160 per year on prescription drugs. Under the current plan, those individuals will have $1,700 that same year in out-of-pocket expenses in addition to the $420 they pay in Part D premiums. Therefore, the average Medicare beneficiary who elects Part D will have approximately $2,100 per year in out-of-pocket expenses. This translates, of course, into $175 a month. That is a significant expenditure for a lot of individuals and couples on a fixed income. It would seem reasonable to allow these individuals who want to protect themselves against unpredictable and increasing prescription drug expenses to purchase supplemental insurance coverage that would allow additional prescription drugs to be purchased. Medigap was designed to fill the gaps in Medicare. A sizable gap exists in the prescription drug benefit we are offering in this bill. Yet the current bill specifically prohibits seniors from filling that gap with a Medigap policy. Section 103 of S. 1, which is the bill we are considering, explicitly prohibits people who elect Part D prescription drug coverage from purchasing additional prescription drug coverage as part of any Medigap plan. Let me give you the quotation out of the bill. It says: No Medicare supplemental policy that provides coverage of expenses for prescription drugs may be sold, issued, or renewed under this section to an individual who is enrolled under Part D. So you essentially have a choice: Am I going to enroll in this new Part D and get this benefit and therefore forego any Medigap policy or am I going to stay out? We are telling seniors whose cost burden, on average, will be $2,100 a year, and 10 percent of whom are likely to have out-of-pocket expenses of $4,000 or more per year, they will not be allowed to seek additional prescription drug relief. The amendment I am offering would give seniors the option of purchasing more prescription coverage as part of a comprehensive Medigap plan. The amendment calls on the National Association of Insurance Commissioners to devise two new Medigap plans that would each offer prescription drug coverage to beneficiaries who elect Part D. There are currently 10 standard Medigap plans. They are designated A through J, and they offer insurance to seniors. Of those, plans H, I, and J offer prescription drug coverage in addition to Part A and Part B wraparounds. Of these, H and J are the most commonly elected plans. Under S. 1, the way it now stands, seniors who elect Part D would no longer qualify for H, I, or J. However, if the amendment is adopted, the two new policies designed by the National Association of Insurance Commissioners would be similar to the current Medigap policies of H and J, but their prescription drug coverage would be tailored to wrap around the Part D coverage. So seniors who are currently H or J subscribers would have the option of electing Part D and still maintaining a Medigap plan similar to what they have now. The amendment would give the National Association of Insurance Commissioners 18 months to develop and report back on these two new plans. In my view, it would be a substantial improvement to the current bill. As I said, my amendment will give the National Association of Insurance Commissioners 18 months to develop and report back on two new plans. The NAIC is the appropriate body to develop these plans because they have a system already in place for doing so with appropriate representation from all interested and affected parties. The NAIC can best determine how the benefits proposed in this amendment can be designed in order to avoid over-utilization and to coordinate with the existing medigap benefit packages. They were the body employed to develop the current Medigap plans A through J and they are the body best equipped to develop these two new plans. This amendment is similar to language already included in the House version of the bill and thus already has a great deal of support in the House of Representatives. This amendment also provides a provision to stabilize the Medigap market during this time of transition. The current bill states that seniors who are enrolled in H, I, or J at the time when they elect Part D will be displaced from their current Medigap plans and given open enrollment into any other Medigap plan A-G offered in their State. Our amendment will still guarantee them the option of enrolling in substitute coverage without the risk of discrimination based on age, health status, utilization, etc. However, our amendment will reduce the chaos of this transition time by keeping the majority of Medigap subscribers with their current carriers. Let me explain. Beneficiaries displaced from H, I, or J will have the option of choosing any other Medigap plan--A-G--that their carrier offers or one of the two new plans. If their current carrier does not choose to offer one of the new plans then they will have the option of switching carriers in order to obtain a medigap policy that includes prescription coverage. Thus, the majority of seniors will be staying with their current carriers and thus, those carriers will be better able to predict the affect of this shift and better able to ease the transition for their subscribers. This is a simple amendment that should elicit very little controversy. People may raise concerns because it will be difficult to construct a standardized wrap around benefit to compliment Part D when Part D is not standardized. But this is not a reason to deny people access to supplemental coverage. Rather, we are giving the NAIC 18 months to put together such a plan. Consumer groups such as the Consumer Union and Medicare Advocacy support our amendment because it provides much needed additional coverage options for our Nation's seniors. Likewise, insurance carriers like it because it allows them to continue to provide a service that they have been providing up until this point and yet it does not force them to offer these new plans if they do not see them as viable. The cost of the amendment should be negligible as it is not adding any additional Government expenditure nor expediting a beneficiary's trip to the catastrophic threshold. This amendment simply gives seniors an opportunity to continue to seek the insurance industry an opportunity to meet the needs of our seniors not met by Medicare Part D. Mr. President, I ask my colleagues to review this amendment before they vote. I think it is an excellent amendment. I ask them to join me in supporting it.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, the bill before us has, in my view, a significant flaw in it. We are holding out this prescription drug benefit. But the bill we are considering here says if you want to take advantage of the benefit, you are thereby prohibited from buying any supplemental insurance to cover prescription drugs. Today, people are able to buy Medigap policies that cover prescription drugs. In the future they will not be able to, if this bill becomes law as it is. My amendment would merely give people the option of buying a prescription drug supplemental policy if they chose to do so. It directs that two policies be developed that would accomplish that. It is supported by the insurance industry. It is supported by the Consumers Union. Seniors would like to have this opportunity to reduce their risk of substantial out-of-pocket costs. We ought to provide this benefit.

Mr. BINGAMAN

Mr. BINGAMAN. Madam President, just very briefly, let me state that this is the revised version of the amendment Senator Domenici and I had 2 days ago that would have eliminated the assets test. This keeps the assets test but reforms it very substantially. I will explain this further when we get an opportunity to actually debate the amendment. Madam President, I ask unanimous consent that the amendment be set aside.

Mr. BINGAMAN. Madam President, I send an amendment to the desk and ask for its immediate consideration.