Thomas Carper

Mr. CARPER

Mr. CARPER. I thank the Senator, and I yield myself 10 minutes.

Mr. CARPER

Mr. CARPER. Mr. President, I thank the Senator from Colorado, Mr. Udall, and his staff for arranging this opportunity for us to speak on what is a far more important issue than I would have imagined, oh, 20 years ago. Before I came to the Senate, in 2001, I was privileged to serve as Governor of my State for 8 years. I ran for that position in 1992, and my opponent was a very good man named B. Gary Scott. During the course of our campaign for the Governorship of Delaware, we had something like 30 or more joint appearances. All kinds of questions were raised by the audience members at those joint appearances, and we would respond to the questions that were raised. I do not recall one question in any of those joint appearances related to what kind of criteria we would use to consider nominees for the judgeships in the State of Delaware. As it turns out, some of the judgeships in Delaware, some of the courts in Delaware, have national importance, national prominence--the Court of Chancery, the Delaware State Supreme Court. That was an issue that never came up. When I was fortunate enough to win, in 1993, I ended up, for the next 8 years, actually spending a lot of time thinking about the qualities we should look for in the candidates for judgeships I would nominate to all our courts and ask the Delaware State senate to confirm. I am grateful to the State they confirmed them all. I came to the Senate in 2001. I ran against a wonderful man, Bill Roth, who had been our Senator for a long time. During our campaign, no one ever raised with us, to my recollection: What kind of qualities would you look for if you were in a position, as senior Senator, to recommend judges to the President of the United States for our courts, either for our district court or for the Third Circuit Court in which we are a part? But I had thought for years about the qualities I would look for, and the qualities look something like this: I concluded that my job in nominating people as Governor and in recommending people to this President or other Presidents is that we ought to look for somebody who is bright, smart, who knows the law, somebody who also embraces what I call the Golden Rule, treats other people the way he or she wants to be treated; that when they come before the court, the judge will treat all sides the same; that they will not go into a hearing or a proceeding having made up their mind; that they will show no favoritism to either side. I think it is important to nominate folks who have a strong work ethic and who will work hard to find the right decision, that they will have the ability to make a decision. Sometimes folks have a hard time making decisions. They should not be judges. We need judges who can make a decision and often the right decision. That is sort of the criteria I used in my last job, and it is the criteria I have used in my current position as I have suggested people--now twice--to this President to consider for filling vacancies on the U.S. district court in my State. We have four district court judges in our State at most times; we have that many judgeships. For several years, we have been down to three. As of tomorrow, we will be down to two, with the retirement of Judge Joe Farnan, who will step down for his well-earned retirement. But last year, I was pleased to provide to our President the names of three highly qualified Delawareans for him to consider for nomination to the U.S. District Court in Delaware. I said at the time--and I say here today--the talent pool from which I selected those three names was the strongest pool I have seen in my 8 years as Governor and during the time I have been here as a Senator. At least a half dozen of the people who applied for that judgeship to be a Federal judge would make us all proud. I could only select three and I selected three terrific candidates and submitted those to the administration last year. After careful deliberation, in March of this year, the President selected one name, and he sent to the Senate the nomination of U.S. magistrate Len Stark for a seat on the Delaware District Court. Following his nomination in March, I was honored to introduce Len at his confirmation hearing before the Senate Judiciary Committee in April. Ironically, the hearing was chaired by committee member Ted Kaufman from Delaware. Judge Stark was well received by the committee at that hearing and was unanimously approved by the committee in May of this year. So far so good. But since that time, for the last almost 3 months now, that nomination has basically been held up. We have not had an opportunity to debate it. We have not had an opportunity to vote on it, through no fault of Judge Stark. I think the lack of a U.S. district court judge in almost any State, large or small, is a problem. When you happen to have a court with four judgeships, and you are down to three, the workload does not go away. The workload is the same. The judges have to work harder. That is fine for a while. We go out and we literally borrow district court judges from other States to come in and sit with our court in Delaware to try to deal with the workload. That works for a while, but it is sort of robbing Peter to pay Paul. They have work to do in their own States in their own courts. When you go from three to two, and you have two judges trying to do the work of four, it does not work. It is not fair, and it means we delay, in too many cases, the justice that is needed. I do not recall who it was who said--I want to say it was William Gladstone, a former British Prime Minister, who once said: Justice delayed is justice denied. My fear is, if we find ourselves, next week, with two judges-- with two judges--in our district court, justice will be delayed and justice will be denied. Not everybody in this Chamber has a real understanding of who Len Stark is and what kind of person he is. I wish to take a few minutes to sort of introduce him to those who do not know him. Len Stark is a fellow University of Delaware graduate. Unlike most people who graduate--they maybe get an undergraduate degree with one major--when he graduated, in 1991, he earned an undergraduate degree in economics and an undergraduate degree in political science and he earned a master's degree in history, all at the same time. He was an extraordinary student at the University of Delaware. As a student there he received a full scholarship as the Eugene du Pont Memorial Distinguished Scholarship. Following graduation, he was twice honored by his fellow students and alumni by serving as their commencement speaker. Immediately upon graduating from the University of Delaware, Len Stark was elected a Rhodes Scholar. He studied at Oxford University. He has authored numerous academic and scholarly publications, including a book on British politics which he wrote--listen to this--in his spare time during his studies at Oxford. After Oxford, Len then went on to earn his law degree at Yale Law School where he served as senior editor of the Yale Law Journal. Len launched his legal career as a clerk for one of the most distinguished judges to come out of Delaware in the last century-- Walter Stapleton--on the Third Circuit Court of Appeals, and after that he practiced as a corporate litigator for the law firm of Skadden Arps. Len began his public service as an assistant U.S. attorney for Delaware, where from 2002 until 2007 he handled a wide variety of Federal, criminal, and civil matters. Currently, Len Stark serves the U.S. District Court of Delaware as a magistrate judge. In this position he has already done much of the same work as a district court judge. His docket consists of civil cases that are referred to him by the three active district court judges--at least three active as of today, not after tomorrow. On these referral cases, a great many of which are patent infringement actions, Judge Stark handles all types of pretrial matters, and in certain cases even presides at trial, just as he would if he were confirmed as our new district court judge. If I were half as accomplished as Len Stark is and half as smart as he is, my colleagues wouldn't want to be in the same room with me. But Len Stark is as humble a person as I know. He is a dedicated public servant. He has a great family. He is a dedicated husband, father, and person of great integrity and character. In every facet of his life he has performed with distinction, earning the highest praise from his colleagues and many of the most prestigious awards given to legal scholars and public servants. I can sum this up by simply saying that Len Stark has the heart of a servant. He has a big heart. A little State, Delaware, but we have a guy with a heart as big as Texas. Judge Stark's position as magistrate on the U.S. district court clearly provides him with the skills to be not just an adequate district court judge, he will be an outstanding district court judge. Len's legal acumen, his tireless work ethic, and his experience as a Federal magistrate judge, as assistant U.S. attorney and litigator, have prepared him well for this seat on the U.S. district court in Delaware. I will be honest with you. It is hard to think of anybody who would be a better candidate, a better choice to serve in this position. With that having been said, we all know there are a bunch of good candidates like Len Stark--Maybe not just like Len Stark, but people who are equally qualified who should be serving in vacancies around the country, and they ought to be confirmed. I will close with this, before yielding to Senator Kaufman. I wish to close with this: I have just come from a Bible study group. We meet every Thursday for about a half an hour off the Senate floor with our Senate Chaplain. It is sort of like an adult Sunday school class. Democrats, Republicans there, people of different faiths. One of the things Chaplain Barry Black is always reminding us to do is to treat other people the way we want to be treated. He urges us to live our faith. I don't care what faith we subscribe to, almost every faith, that idea of treating other people the way we want to be treated is a fundamental, basic tenet. It should be a fundamental, basic tenet with the way we behave in the Senate, whether the Democrats are in the majority or the Republicans are in the majority; whether the President is a Democrat or the President is a Republican. When we have somebody as good as this man is, Len Stark, and we have such a dire need for a district court judge in the district court in Delaware, I would just ask my Republican colleagues to put themselves in our shoes to see if they can't find it in their hearts to give us the opportunity to vote up or down on this nomination. Thank you very much. I am pleased to yield the floor for my colleague and friend from Delaware.

Mr. CARPER

Mr. CARPER. Mr. President, I was going to talk about small business lending and some ideas about how to get our economy moving again. I feel compelled to say something. I had the privilege of visiting, almost a year ago, the Cleveland Clinic. The Cleveland Clinic is one of a number of well-known, highly respected health delivery systems in this country--the Cleveland Clinic, the Mayo Clinic, Geisinger, which is in Pennsylvania, Intermountain up in Utah, Kaiser Permanante out in northern California, and several others. They have demonstrated the ability to provide better care for less money. Think about that. Better care, better outcomes, for less money. Their reputation is well known in this country, along with Mayo and some of the others I have mentioned. So I had an opportunity to go visit, go along with a member of my staff, Racquel Russell. We went and spent a day and actually stayed into the evening. It was so fascinating. What we learned was that if we look at the health care delivery systems, including the Cleveland Clinic I just mentioned, try to look and drill down on why they are able to provide better health care, better outcomes for less money, they have a lot of things in common with one another. I want to mention some of them. They focus on primary care, access to primary care. They like to catch problems when they are small, easy to repair, easy to cure. They focus big time on preventive care, making sure when people are the right age, they get colonoscopies or they have mammograms, and just a variety of other tests. They use preventive medicine to catch things when they are early. If prescription medicines, pharmaceuticals can be helpful in controlling particular cases, they make sure people have access to that medicine. They actually coordinate care across not just doctors that happen to maybe be in oncology but doctors and nurses who are in different parts of medicine. It may be oncology, maybe it deals with pulmonary disease, dementia. They do a better job working across medical lines than we work across party lines some days. But they do a very good job of coordinating care with different aspects of their health care delivery system. They have gotten away from what we call fee for service. Here we have something called fee for service. If the Presiding Officer, instead of being a Senator were a doctor, and I were a patient, I would come to see him. Every time I would come to see him, he would get paid. He would get paid for each visit. If he actually owns the lab he refers me to, every time he refers me to the lab for tests he gets some remuneration for that. If he has an interest in an imaging center, and I go for x rays or for MRIs or that kind of thing, then that is called fee for service. What happens in a number of places in our country, not all, is sometimes the doctors will, in an effort partly to make sure they do not get sued, and partly to make sure they are doing the best job they can to cure people, and in other cases there is some financial incentive, just refer people to maybe more visits, more tests than they really need. That is called fee for service. That helps drive the cost of our health care system. They do not have that problem at the Cleveland Clinic. I remember listening to an interview on television with a cardiologist at Cleveland Clinic, on CNN last year, before I went for the visit. He said: I am a cardiologist. He said: I am here at the Cleveland Clinic. I used to have my own practice. It used to be in my old practice I got paid--largely my salary came out of operating on hearts. He said: People came in and they were overweight or bad diet, bad fitness, and that kind of thing and just were not taking care of themselves, were not taking the right kind of medicines. I would urge them to do the right thing. But, he said, at the end of the day, if they did not do it, I would operate on their hearts, and that is how I made the bulk of my income. He said: Here at the Cleveland Clinic, when somebody comes to me with a heart problem, at the end of the day, I may operate on their heart. But we work very hard to make sure they are fit, that they are eating the right food. We work hard to make sure they are involved in some kind of appropriate exercise regimen. He said: We work hard to make sure they are not only prescribed the right medicines, they actually take the right medicines and do all of those things. He said: I get paid pretty much the same amount of money whether I am treating a patient that way or if I am operating on their hearts. I probably operate on fewer hearts today, but I think we get a better outcome for less money. One of the things I learned at the Cleveland Clinic that day is all of the amazing things they do to harness information technology for the delivery of health care. I was in a Walgreens drugstore in Seaford, DE, about a week or two ago and had an opportunity to see how at the other end--in this case we will use pharmaceuticals--but this is a way to use information technology to drive down health care costs. Anybody who was ever had a prescription given to them, written by a doctor, sometimes you look at it, you read it and say: What is this? Is this a prescription or does this say Alpo? What does this actually say? It is hard to read. My handwriting is not the best, but I read some others that are even harder than mine to read. At the Cleveland Clinic, they do not handwrite prescriptions; they do electronic prescriptions so there is no mistake. They are smart enough with their IT system that all of their patients have electronic health records. So they have the full health care picture of their patient. Not only that, if they were going to prescribe something, a medicine--let's say a patient is already taking 10 medicines. Whatever new ones they are prescribing, their IT system looks at the other 10 medicines. They look to see whether the new prescription is compatible with medicines they are already taking. They do not want to prescribe medicine that creates more problems than actually helps people. Also, they have the ability--a bunch of our leading health care delivery systems--to know when a prescription has been ordered or that it has actually been picked up; that it has been filled and someone is taking it. They have the ability to know whether someone, if they are supposed to get refills in so many days, if someone actually refills the prescriptions and continues to take the medicines they are supposed to be taking. If they do not, they get a call from their health care delivery system, clinic, hospital, or doctor's office. We are getting smart enough now, after mapping the human genome, to actually know what medicines--let's say the Presiding Officer and I have the same health condition, but we have a different genetic makeup. He can take this medicine, and it will make him well. I can take this medicine all day, all week, all month, all year, and it will never help me at all. We have the same problem, but because of our genetic makeup it will help him but it will not help me. We are smart enough now to start figuring this stuff out. We are making sure that not only people are taking the medicines they need to take, but they do not interact badly with other medicines; that they continue to take the medicines they are supposed to be taking. But we stop spending money on medicines that are not going to help people and spend that money in ways that will help them and continue to provide the money for medicines that will help someone who has the right genetic makeup. My colleague who spoke before me said we need to sell insurance across State lines. Well, one of the things we do in terms of things that work, we have a big purchasing pool that all Federal employees are part of, the Federal Employees Health Benefits Plan. We buy our health insurance from an 8 million-person purchasing pool, 8 million people. We do not have 8 million Federal employees, but if we add up all Federal employees, all Federal retirees, all of our dependents, it adds up to 8 million people. That is a large purchasing pool. We buy private health insurance from all kinds of private health insurance companies. They compete with each other, and it drives down prices. We have a large purchasing pool, economies of scale. The administrative cost for our purchasing pool is 3 percent; 3 percent for every premium dollar goes for administrative cost. If you go out on your own and try to buy health care in the DC area or back home in Delaware or Illinois or wherever you are from, administrative cost for an individual, for a family, for a small business, is more like maybe 23 percent of premiums or 33 percent. But they are not 3 percent. What we call for in our legislation, this new law, we want to create these large purchasing pools all across the country. Every State is going to be required to establish, by 2014, a large purchasing pool that individuals can join, families can join, small businesses can join to buy their health care. If it is a little State like Delaware, we are too small to have a big purchasing pool. But under our legislation, we can enter into an interstate compact with our neighbor, Maryland, or maybe with Pennsylvania, or maybe with New Jersey, or maybe with all of them and create a large regional purchasing pool, be able to drive down administrative costs, increase competition. Listen to this, to my colleague's point: sell insurance, health insurance, across State lines. We have a four-State exchange or purchasing pool. The insurance sold in Delaware could be sold in Maryland; it could be sold in Pennsylvania; it could be sold in New Jersey, and vice-versa, to drive down costs. My colleague mentioned we ought to incentivize people who take better care of themselves. Well, Senator Ensign of Nevada and I offered, and it was adopted and is part of the law today, something that says employers can offer premium discounts to employees who are overweight and lose weight, keep it off; employees who smoke, stop smoking, continue to stop smoking; employees who have high blood pressure, high cholesterol, if they bring it down, keep it down, they can receive premium discounts through their employer by as much as 30 percent for those employees to incentivize them to take better care of themselves and be less of a health risk. A lot of the problems we have with health care today in this country flow from the fact that we are overweight. One-third of us are overweight or on our way to being obese. Almost one-third of us are obese, kids too. We actually have done in the legislation what my colleague was calling for, incentivize people to take personal responsibility. If they do that, they are better off. He also mentioned medical malpractice reform. We actually included in the legislation medical malpractice reform based on earlier proposals by Senator Mike Enzi, also from Wyoming, and Senator Max Baucus. They are in the bill. I think they are going to give us a lot of good ideas of what is working to do three things across the country: One, reduce medical malpractice lawsuits; two, reduce the incidence of defensive medicine; and, three, provide better outcomes. We will be seeing results of some very exciting things done in Delaware and other States to be able to emulate Michigan among those other States. I did not come to the floor to talk about that. But when I hear stuff like this, I say: Someone needs to set the record straight. As a guy who is on the Finance Committee, I worked a lot on the legislation and focused on, day after day, month after month, trying to figure out how to provide better health care for less money, looking at other the Cleveland Clinic or Mayo Clinic or other entities, or looking at other countries, such as Japan. They spend half as much for health care as we do. Eight percent of gross domestic product is what they spend. We spend 16 percent. They get better results: lower rates of infant mortality, higher rates of longevity. They get better results. They cover everybody. We have about 30 to 40 million who are not covered. So for us to say, well, we will just go willy-nilly on for the rest of this decade or this century and pretty much do what we have been doing, that is foolish. Ironically, some of things that my colleague was recommending, we are actually doing in the legislation and will be rolling out and doing more in the years to come. The last thing I want to say before I move to small businesses and job creation is Dr. Donald Berwick has been nominated to be the head of CMS, which is the entity that oversees Medicare and Medicaid. One of the people I most respect in trying to learn about health care and health care delivery, finding out how we provide better outcomes for less money, is a guy named Mark McClellan. Mark McClellan, when I first met him, was a health adviser to former President George W. Bush. He ended up being the head of the Food and Drug Administration. I think for a while he was the head of CMS, the position to which Dr. Berwick has been nominated. Among the people who have recommended Dr. Berwick highly for this position is Mark McClellan, who is an economist, who is a physician, who has actually run a couple of big Federal agencies. I think it would be smart to listen to a fellow who actually worked in a Republican administration, had the President's ear, and served us very well in some high-level positions, including the same agency, CMS. It would be smart to listen to Mark McClellan. I think I might have misheard, but I thought there was an assertion that Dr. Berwick and his wife had worked for a nonprofit and he had health care insurance for the rest of his life, up to death. I would just think, for the folks who serve here today, who served in wars--we have people who have earned the Congressional Medal of Honor for their service in World War II, folks who were prisoners of war in Vietnam and served, gosh, 20, 30 years and more in some cases in the military. They have lifetime insurance as well--not from being in the Senate but from the work for nonprofit; whether it was a State government or Federal Government or local government. I do not think there is anything that is so unusual about that. Should they be disqualified from being a Senator because they have lifetime health care because of their service or because they were Governor of a State or attorney general of a State? I do not know if that makes a whole lot of sense. So I did not come here to talk about any of this, but I just felt compelled to mention these things. Let me pivot, if I can, and just take 5 minutes to talk about small business. Mark Zandi is an economist, a smart one too. He started something called moodyseconomy.com. He comes and speaks to not just our caucuses, Democrats in the Senate, but he was, during the Presidential campaign in 2008, an economic adviser to John McCain, very well respected. He just calls them like he sees them, calls them like he sees them. We asked him earlier this year: Well, why are we not seeing--even though job loss is way down, where 18 months ago we lost 700,000 jobs a month, last month we actually gained 50,000 or 60,000 jobs or so. I think that is about what we are averaging for the first part of this year. We want to do better than that. It is not like losing 700,000 jobs a month. So we have made improvements. But we asked him: Dr. Zandi, why aren't big businesses hiring? He said: Uncertainty. Businesses like certainty. There is too much uncertainty. He said this earlier this year. There is uncertainty about what, if anything, you all are going to do about health care; drive down costs, better outcomes, drive them down. What are you going to do about financial regulatory reform, Wall Street? What are you going to do about deficit reduction? What are you going to do about climate change, global warming, energy policy? What are you going to do about transportation policy? What are you going to do about a variety of things but those major things I have just mentioned. Dr. Zandi's counsel is: You want big companies to start hiring? They are making money. You want them to start hiring people? Address the uncertainties. So we have addressed the uncertainty with health care, not to everyone's satisfaction, but it does a lot more good than bad. We have addressed the uncertainties with respect to financial regulatory reform. I think it does more good than bad. Not everyone shares that view, but I think it does. We are trying to address with our legislation today and this week, this month, next month, something called tax extenders; a lot of tax cuts, tax credits that expired at the beginning of this year, such as the R&D tax credit and biodiesel tax credit. A bunch of them are expired and have been expired for 7 months. We need to provide some certainty so that businesses and families know what to plan for and do. We need to provide some certainty so businesses and families know what to plan for and do. Mark Zandi said those are the concerns for big businesses that want to start hiring, to address the uncertainty, and to provide predictability and certainty. We said: How about small businesses? He said: Unlike big businesses--a lot of big businesses are reporting pretty big earnings levels--a lot of small businesses are not doing so well. One of the things that small businesses need is better access to capital. They need to be able to borrow money and raise money, whether they want to buy or rent a building, buy new equipment for their building, whether they want to buy transportation equipment, trucks or whatever, forklifts, whether they just need money for working capital. Small businesses need access to capital. There is not a perfect solution for that problem, but that is a big problem for small businesses, and access to capital is not the solution for every small business, but it is for a number. The legislation before us seeks to address that need for small businesses. I will take a moment and read through a couple items in the legislation that commend it to the Senate and to our acting on it soon. This bill has about $12 billion in tax incentives to help boost investment in small businesses and promote entrepreneurship. The bill eliminates the capital gains tax on small business stocks for people who purchase these stocks this year and hold them for 5 years. This legislation will encourage more people to invest in small businesses and will help give these businesses the capital they need to grow and create new jobs. The legislation also allows more small businesses an immediate tax write-off. We call this expensing for upgrades in their buildings and equipment. If they buy a building, a business, they usually have to depreciate it over a period of years. This legislation allows small businesses that make a capital expenditure, whether it is a building or equipment, to write it off in the first year. That is a great incentive to making major investments. This kind of tax break will encourage businesses to purchase everything from new software and computers to buildings, new roofs, windows, and vehicles. At the same time, it will encourage hiring in industries that sell those products. The bill before us fosters the next generation of entrepreneurs by temporarily doubling the tax incentive, an existing tax incentive from $5,000 to $10,000 to incentivize entrepreneurs to start a new business. We call this the startup deduction. This increase will help offset the high cost of launching a new company. These ideas, along with many other bipartisan tax breaks in the bill, will encourage smaller employers to create jobs. It will strengthen capital investment and ultimately move the economy forward on the road to recovery. (Mr. MERKLEY assumed the chair.) The bill also includes what we call a Small Business Lending Fund to help our Nation's struggling small businesses succeed. Almost every week I visit businesses, small and large, in Delaware. I hear over and over again, especially from small businesses, the same concern--access to capital. The $30 billion Small Business Lending Fund in this bill addresses this concern by providing our community banks with the funds they need to increase lending to small businesses. We incentivize banks to increase their lending by lowering the dividend rate they must pay back to the Treasury as they demonstrate an increase in small business lending. We did something similar to this earlier. We created a fund, and we essentially didn't give the money to the banks. We didn't loan the money to banks. We bought the bank's preferred stock. They had to pay us a dividend on the stock. Five percent was the dividend rate on the preferred stock we bought. If they didn't buy back the preferred stock within several years, they had to pay us a 9-percent dividend rate on the preferred stock. We infused capital into the banks, largely banks with over $10 billion in assets. For the most part, they have returned to profitability. They have repaid, bought back their preferred stock. They have paid dividends on all of it for the most part. Actually, we have exercised, on behalf of taxpayers, something called warrants which, as the stock values recover, enables taxpayers to participate in the debt and the return of profitability. We wish to do a similar thing with banks of less than $10 billion. In this case, we buy the preferred stock. The amount of dividend they have to pay back to the Treasury depends on whether they lend the money to small businesses. If they lend the money and they use essentially this capital infusion as it is intended, they end up with almost a zero dividend rate. If they don't lend any of it, they have to pay a 9- percent dividend rate. So there is an incentive there. Finally, we are building upon successful Small Business Administration initiatives that were part of the Recovery Act. By increasing both loan sizes and the guarantees for the Small Business Administration loans, we can help meet the credit needs of small businesses. According to a recent report by the National Small Business Association, these Recovery Act programs are working, and they are still greatly needed. Last week, the National Small Business Association announced that when the small business provisions of the stimulus package, adopted about a year and a half ago, expired at the end of May, Small Business Administration lending plummeted. In June of this year, the Small Business Administration approved only $647 million of loans to small businesses. The previous month, before this expired, it was $1.9 billion in loans. It is clear--to me at least--that the enhancements to current Small Business Administration programs in the bill are critically important and will help lenders provide loans and help small businesses create jobs in communities. One of the things we need to do to relieve uncertainty and get us going on the right track is to eliminate uncertainty. One of the great sources of uncertainty is what we do on health care. We have done something on health care--more good than bad. The CBO tells us the actual effect on the deficit is to reduce the deficit, forecasted deficits by $120 billion over the next 10 years and by roughly another $1.2 trillion in the years after that. So not only do we have the potential of providing better health care to people who don't have it but also to do something positive on the deficit side, beginning to address the uncertainty. In terms of uncertainty, it is important for large business and for small business. The real problem for small business is to make it possible for them to access capital, to get loans, whether for plant and equipment or for working capital. The legislation we are debating this week actually does that in a variety of ways. The Presiding Officer is somebody who has actually worked on this stuff pretty hard. I commend Senator Merkley and a variety of others, Senator Landrieu and others, for the good work they have done on this legislation, on both sides of the aisle. We ought to let this bill go. We ought to give this bill an up-or-down vote. In doing so, we will do the right thing not only for the Senate and those of us who are privileged to serve here but for the country, particularly our small businesses. I yield the floor.

Mr. CARPER

Mr. CARPER. One change made by the conference committee was to restate the preemption standard in a slightly different way, but my reading of the language indicates that the conference report still maintains the Barnett standard for determining when a State law is preempted.

Mr. CARPER. Mr. President, I am very pleased to see that the conference committee on the Dodd-Frank Wall Street Reform and Consumer Protection Act retained my amendment regarding the preemption standard for State consumer financial laws with only minor modifications. I very much appreciate the effort of Chairman Dodd in fighting to retain the amendment in conference.

Mr. CARPER. I again thank the Senator. This will provide certainty to everyone--those who offer consumers financial products and to consumer themselves.

Mr. CARPER

Mr. CARPER. Good morning, Mr. President.

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

Mr. CARPER

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

Mr. CARPER

Mr. CARPER. Mr. President, in closing, I want to come back later today and talk about the Improper Payments Act, which is going to be passed by the House today and I hope signed by the President, to speak about why that is another important step to get our fiscal house in order. I appreciate the opportunity to begin that discussion this morning. I thank you chair.

Mr. CARPER. Mr. President, I rise today to applaud, really, to share with our colleagues an important step by Congress to curb waste and, I think, fraud within the Federal Government. Later today our colleagues over in the House, where both the Acting President pro tempore and I once served, are expected to approve a piece of legislation--not a sexy title, but it is called Improper Payments Elimination and Recovery Act--and then they are going to send that bill to the President for his signature. Every year, for about the last 6 or 7 years, Federal agencies have been required by law--important payments law signed by George W. Bush-- to review their payments and to figure out which ones were appropriate and which ones were inappropriate. Initially, back in the middle of the last decade not very many agencies complied with the new law. But thanks to the perseverance of OMB and the commitment of a number of agency and department heads, over time more and more Federal agencies have begun reporting improper payments, mostly overpayments. As we gather here today, there is still a number of very large agencies that do not comply with the law. The Department of Defense is a huge expender of taxpayer money. The Department of Defense does not comply with the law. The Department of Homeland Security complies in part with the law. If you look at Medicare, for Medicare Parts A and B, I believe they actually do a fairly decent job of complying with the law but for Parts C and D they do not. But even without the full compliance of all Federal agencies reporting their improper payments, last year close to $100 billion of improper payments were reported by the agencies that are already reporting them. That does not include the Department of Defense. It does not include all of Homeland Security. Frankly, it does not include some other major programs of the Federal Government. But the good news here is that, one, agencies are beginning to report their improper payments. That is good. The second thing we want them to do is stop making the improper payments. The third thing we want them to do is to figure out where the improper payments have gone, especially the overpayments, and go out and recover the money. That is what we are about here: identify the improper payments and once they have been identified, stop making them. And the third thing is to go out and recover as much of the money as we can. Why is this important? Well, I think we all know our Nation has a large and growing debt. I am not so sure when the Acting President pro tempore joined the House of Representatives, but I believe he may have been there by the end of the Clinton administration and may recall when we actually had balanced budgets. We went from 1968--I want to say to 2000--maybe 2001--when we actually balanced our budget. I remember being in a hearing here in the Senate where one of our witnesses--I am not sure; I think somebody from the Federal Reserve maybe, maybe somebody from Treasury--actually expressed concerns at the time that we were in danger of paying down our debt too quickly and that we had some threat of destabilizing our financial system or our economy. Imagine that: a decade ago concerns about paying down our debt too quickly. Well, we did not do that. We did not pay down our debt at all. Between 2001 and 2008, we doubled our Nation's debt. In those 8 years we ran up as much new debt as we did in the previous 208 years of our Nation's history. We are on course now--even though we are starting to see deficits that begin to trend down--to double our Nation's debt again over the next decade, unless we do some things dramatically different. Our President, to his credit, has suggested among the things we do are these: No. 1, to put an overall freeze on domestic discretionary spending, starting with this October 1, for the next 3 years. Certain programs within the overall discretionary spending budget can go up, some can go down, but overall, for 3 years, a freeze, and not a freeze that is just adjusted with the cost of living but an actual freeze on nominal dollars. The second thing he suggested we do--when we tried to do this on the floor, seven of our Members who cosponsored the legislation, the Acting President pro tempore may recall, ended up voting against it. But the idea was to create a commission, much as we have had earlier commissions, and especially back in 1982 we created a commission-- President Reagan was the President, Tip O'Neill was the Speaker--to actually examine Social Security, which was about to run out of money. They came up with a bunch of ideas that were adopted and implemented in 1983. But anyway, when we failed to adopt by law and create a statutory commission on deficit reduction to look at entitlements, to look at revenues, our President, by executive order, created the commission. Erskine Bowles is one of the cochairs, former Chief of Staff to President Clinton. Alan Simpson, a Republican Senator, retired, from Wyoming is the other cochair. The people, for the most part, on the commission are very serious, very smart people. They have been meeting quite a bit. Their job is to come back to us and tell us, later this year, some ways they think we could actually reduce the deficits further, through entitlement spending and looking at revenues and the way we collect money. There are still some other things we need to do. I want to mention a few of those. One of those deals is what I call the tax gap. The IRS reported that in the last decade some $300 billion of taxes that have been owed are going uncollected, and in many cases we know who owes the money. We have some idea how much they owe. Despite efforts in the past to close that tax gap, it is still too large, and we need to further continue to concentrate on that. My hope is, in part, this deficit reduction commission can help us with that. In the meanwhile, I know the Finance Committee and others in the House are endeavoring to reduce the tax gap. A second thing we want to do is to change the way we manage and dispose of surplus property. The Federal Government is a huge owner of surplus properties. We do not use them all. A lot of them are vacant. We pay security costs to secure them. We pay utility costs. We pay maintenance costs in many cases. But we, for the most part, and too often, do not sell them. We do not dispose of them. There is legislation that has been introduced again in this Congress, working with OMB, working with some of the homeless groups, to try to make sure their concerns are addressed, but that at the end of the day we should not be continuing to own and maintain and secure and provide utilities for thousands of pieces of property, buildings we do not need and we do not use. Another area deals with weapons systems. It was reported back in 2001 that we spent $45 billion in cost overruns for major weapons systems. Think about that: $45 billion in 2001 on cost overruns for major weapons systems. We got an update on that about a year or two ago, and it was no longer $45 billion. That is the good news. The bad news is, it is about $295 billion. We had a big debate here last fall, some will recall, on whether we ought to continue to buy F-22 aircraft that cost roughly $300 million a copy at about a 55-percent mission capable rate, which means on any given day only about 55 percent of them can fly. It costs about $45,000 a flight hour. They have never flown a single mission in Iraq, a single mission in Afghanistan. The question is, are we going to continue to buy them? That is the kind of thing we do not need to do. We had a hearing yesterday in our Homeland Security and Governmental Affairs Committee on whether we ought to continue buying C-17 aircraft. It is a cargo aircraft, a great aircraft. We have about 200, almost 230 of them. The Pentagon says we do not need them, we do not need any more. They say they only need about 190 or 200, no mas, no more. They cost about a quarter billion dollars apiece, plus we have to operate them and provide hangars for them and maintenance, and so forth, and crew them. They said there is a more cost effective way to meet our airlift needs, suggesting what that might be, in part to modernize some older C-5As and Bs, and help make them more efficient and more dependable. We are already starting to do that, and it is actually very encouraging. What else can we do? We can do little things. I read in the news, maybe 2 weeks ago, we decided to go almost entirely to direct deposits and to move away from paper check. It does not save a huge amount of money, maybe $5 million a year, $50 million over 10 years, but it is the kind of thing we ought to do. Another idea that has been kicked around for years is whether we ought to give the President something like statutory line-item veto power. Most Governors have line-item veto power, mostly through their State's constitution. Is that a good idea? We tried to do it in the House in 1992, to give like a 2-year test drive, to enhance the President's rescission power. That died in the Senate. Senators Feingold, McCain, and I have come up, working with the administration, on a 4-year test drive that we think will meet constitutional muster, and to not give forever the President strength in rescission powers, but to make his powers real and to require us to vote on them. It requires us to vote on the President's proposed rescissions.

Mr. CARPER

Mr. CARPER. Mr. President, only this morning I was standing here and the Senator from New Mexico was presiding over the Senate. I got through half of my remarks and had to yield to the Senator from Maryland. Now that no one is on the floor, I wish to take maybe 5 or 10 minutes and finish what I started this morning. I was talking earlier today about how to reduce the amount of overpayments--we call them improper payments--the Federal Government makes. Last year they added up to almost $100 billion, not counting the Department of Defense, not counting part of Medicare, not counting part of the Department of Homeland Security--a lot of money. I also added that Federal agencies are doing, for the most part, a better job of estimating and identifying costly mistakes of improper payments. I think the White House deserves credit. Not only this President but his predecessor George W. Bush deserve credit for, not only in the case of George W. Bush, saying: We ought to have improper payments in the law and we ought to make this a priority, but also for President Obama and his team who are beginning to scour Federal programs for improper payments and also taking strong steps to try to eliminate them in the future. White House Budget Director Peter Orszag noted that agencies employed stricter standards for identifying improper payments, resulting in much of last fall's reported improper payments increase. I remember maybe 5 years ago, when Senator Coburn and I were working on this issue, we found there was maybe $40 billion worth of improper payments being reported by Federal agencies. Last year it was about almost $100 billion. So it sounds as if we are going in the wrong direction. As it turns out, what has actually happened is more agencies are reporting it. Initially, not very many agencies were reporting it, but as we have fuller reporting by all the agencies, we find we have a better idea of how big the problem is. It is not so much that it is getting worse, it is just that we are having better reporting from the agencies. Now that we are having that, the key is to make sure the agencies that are making improper payments make fewer of them, and then that we go out and recover the moneys that have been improperly paid. The White House announced this winter--earlier this year--an executive order to not only improve the collection of improper payments data, but to also improve our ability to avoid making improper payments, and to increase what I think is important, the use of recovery auditing. I say the words ``recovery auditing''--postaudit cost recovery. I think for most people, their eyes kind of blur over and they tune out. We are talking about $100 billion here, money that is going out, most of it improperly, a lot of it overpayments. We are talking about a country where our deficit is over $1 trillion. If we are going to have the ability to reduce our deficit, it is not going to come from any one silver bullet or any one particular approach. But this is an approach that can help. I applaud the administration's concrete steps to improve transparency and make agencies and agency leadership more accountable. Still, there is a lot more we can do, which is why our legislation currently on its way to the President's desk is so important in order to take the next steps, especially when it comes to actually going out and recovering the money we lose every year to avoidable errors and preventable fraud. As I often say to my staff--they have heard me say this more times than they care to remember--if it is not perfect, make it better. Everything that I do, I know I can do better. That includes making sure we are making the appropriate payments to the right entity, for the right amount of money. All of us in Congress share this responsibility to do that; that is, if it is not perfect, to make it better. We all share a responsibility to do that in curbing waste and fraud. The legislation that I think the House is going to pass later today, and hopefully the President will sign later this month, is called the Improper Payments Elimination and Recovery Act. It is the result of a 6-year journey. During the last Congress, I introduced an earlier iteration of this bill with Senator Claire McCaskill of Missouri. Over the last several years, I have chaired hearings on the issue of improper payments, waste, and fraud. Since then, we have worked with the Office of Management and Budget, the Congressional Budget Office, many other inspectors general, and many other experts to refine and strengthen our legislation. The most recent version of that legislation was introduced last summer--about a year ago--along with Senator Lieberman, who chairs our full committee, Senator Collins, the ranking member of the Homeland Security and Governmental Affairs Committee, Senator McCain, and Senator McCaskill. It was approved by the Committee on Homeland Security and Governmental Affairs late last year and was approved by the full Senate in June of this year. A companion bill was also introduced in the House by Representative Patrick Murphy from Pennsylvania, our neighbor to the north. This legislation, I believe, is a perfect example of bipartisan common sense and bicameral common sense. And actually when you consider Senator Lieberman is an Independent, it is tripartisan--Democrat, Republican, and Independent. I think the bill makes a number of key reforms. First of all, it improves transparency by lowering the threshold whereby agencies are supposed to report improper payments. This will better inform the public about where their taxpayer dollars are going, and it will help us in Congress find ways to fix the problems that lead to waste. The second key reform in this legislation is it requires agencies to produce audited corrective action plans with targets to reduce waste. It is all well and good that we report improper payments or wasteful payments. The key is to stop doing it, to not just report it but to go after it and stop repeating the same mistakes. A third reform is that this legislation increases the recovery of overpayments by requiring all agencies that spend more than $1 million a year to perform recovery audits on all their programs. Finally, fourth and last, the legislation penalizes agencies that fail to comply with Federal financial management and accounting laws and would make sure that progress in eliminating improper payments is part of senior agency officials' performance evaluations. So you say to somebody who is like a leader or supervisor in these Federal agencies: Part of your evaluation is going to be whether you are doing a good job of stopping overpayments, going out and making sure you do not make more of them, and going out and collecting money that is being ``mispaid'' or overpaid. I am particularly pleased with the provision in the bill requiring major agencies to make greater use of tools that many private sector business use to recover overpayments when they make them. When agencies have used these tools, they have had some success, some real success. About 7 years ago, 2003, Congress mandated what was at the time described as a pilot Recovery Audit Contractor Program to examine Medicare fee-for-service payments. In other words, Congress said: OK, Medicare, when you are making these fee-for-service payments to doctors, hospitals, and nurses, we want you to do, in three States-- California, Florida, and New York--we want you to look at those three States and see if we are overpaying money. If we are making mistakes in Medicare, go get it. I think a year or so later, we added to the initial three States Massachusetts and South Carolina. During the first year of this demonstration program, about $50 million was recovered and returned to the Medicare trust fund. In the second year, about a quarter of a billion dollars was recovered, returned to the Medicare trust fund. I think if you add the total for the 3-year pilot program, which ended up in five States, they recovered about $1 billion. They recovered about $1 billion. It is real money. One of the reasons why the Medicare trust fund is running out of money is because of fraud. Some people may have seen--I think it was on ``60 Minutes'' a year or so ago. Mr. President, ``60 Minutes'' did a special where they focused on a bunch of doctors' offices in some town in south Florida. The doctors' offices had three things in common: One, they had no patients; two, they had no doctors; three, they had no nurses. All they were were like a billing operation on Medicare, to defraud money from Medicare and take it from the Medicare trust fund. Last year, we were looking at the Medicare trust fund running out of money in about 8 years. That is untenable. With the changes we have made in the health care reform legislation, I think we pretty much doubled that life to maybe closer to 15 or 20 years, but we still have a problem. With all the money that is defrauded from Medicare, we want to recover as much of it as we can and put it back into the program. But in any event, the pilot program--which started in three States and expanded to five States--this year we are expanding it to all 50 States. There is also a provision in the recently enacted health care law--it is called the Patient Protection and Affordable Care Act, it is the health care reform legislation adopted earlier this year--but there is a provision that says to the folks who run health care at the Department of Health and Human Services that they have to expand this program, this cost recovery program, to include Medicare Advantage, to include the Medicare prescription drug program, and also to include Medicaid. As money is recovered from fraud and overpayments and missed payments in Medicaid, that money will be split between the States and the Federal Government. The sooner the full program is up and operating, the sooner we can recover even more money--I think probably billions of dollars--in additional overpayments. There is an added benefit to an expansion of recovery auditing. The Recovery Audit Contracting pilot program has identified dozens of vulnerabilities in the Medicare payment system that can lead to additional waste and fraud. According to the Centers for Medicare and Medicaid Services--that is the entity that oversees Medicare and Medicaid--the contractors hired to recoup overpayments identified ongoing vulnerabilities that could lead to future overpayments totaling about a third of a billion dollars more. So not only did the contractors recover about $1 billion in overpayments in the 3-year pilot program, they also identified additional problems in the systems they looked at, which, if we will address them, will reduce and avoid errors in the future. Tomorrow--what is today, Wednesday?--tomorrow, Thursday--I think tomorrow afternoon--the Subcommittee on Federal Financial Management, which I am privileged to chair, will hold a hearing, and that hearing will examine the history and the opportunities for the Medicare Recovery Audit Contracting. In conclusion, the Improper Payments Elimination and Recovery Act, which again, hopefully, the House will pass today--the Senate has already passed it; and hopefully the President will put his ``John Henry'' on it later this month--that legislation will allow us to make even greater strides in curbing waste and fraud in the work of Federal agencies during the years ahead. Given the size of the budget deficits we face, we need to do that. Enactment of this legislation is not the last step, but it is an important step. I look forward to seeing this important legislation signed into law and to working with my colleagues and with the administration on its successful implementation. A lot of times people say to us: Why don't you do something about waste, fraud, and abuse? They are convinced that a lot of their money ends up being misspent, improperly spent, overpaid in some case. The people, or entities, businesses, should not get any of this money. Somebody ought to do something about it. With the legislation that will be on its way to the President, hopefully tomorrow, we are going to do something about it. We already are doing some pretty good things about it. We are going to do more, and we need to build on that record. Thank you very much, Mr. President.

Mr. CARPER

Mr. CARPER. Mr. President, I rise today with my colleague Senator Bennett to introduce an important and bipartisan piece of legislation that will help protect American's from identity and financial theft. As you may have heard in the news, in 2009 Heartland Payment Systems--a national company that processes payments for retailers and restaurants located in nearly all 50 states--was hacked, leaving possibly 100 million people at risk of identity fraud or financial theft. These types of scenarios happen more than we would like and have the potential to keep American's from getting a loan, a new bank account, or--in worst case scenarios--from even paying the monthly bills. This situation is simply unacceptable and this bill will help address these serious problems. Our bill requires entities such as financial institutions, retailers, and Federal agencies to safeguard sensitive information before it is compromised, investigate possible security breaches, and to notify customers when there is a substantial risk of identity theft or account fraud. For example, these new requirements would apply to retailers who take credit card information, data brokers who compile private information, and government agencies that possess nonpublic personal information. My colleague and I modeled our legislation after the data security and breach-response regime established under the Gramm-Leach-Bliley Act of 1999, and subsequent regulations. It also builds on existing law to better ensure federal and state regulators comply with the law and to make certain that data security procedures are uniformly applied. Lastly, we need to replace the current patchwork of State and Federal regulations for identity theft with a national law, like this one, that provides uniform protections across the country. Our comprehensive approach will better serve consumers by making it easier for businesses and government agencies to take the steps necessary to adequately protect all Americans from identity theft and account fraud. I look forward to working with my colleagues to get this important and necessary bill enacted before it is too late. I think everyone can agree that our identities and bank accounts are some of the most important aspects of our lives and that, if stolen, can at a minimum make life extremely difficult. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. CARPER

Mr. CARPER. Mr. President, I rise today with my colleague Senator Bennett to introduce an important and bipartisan piece of legislation that will help protect American's from identity and financial theft. As you may have heard in the news, in 2009 Heartland Payment Systems--a national company that processes payments for retailers and restaurants located in nearly all 50 states--was hacked, leaving possibly 100 million people at risk of identity fraud or financial theft. These types of scenarios happen more than we would like and have the potential to keep American's from getting a loan, a new bank account, or--in worst case scenarios--from even paying the monthly bills. This situation is simply unacceptable and this bill will help address these serious problems. Our bill requires entities such as financial institutions, retailers, and Federal agencies to safeguard sensitive information before it is compromised, investigate possible security breaches, and to notify customers when there is a substantial risk of identity theft or account fraud. For example, these new requirements would apply to retailers who take credit card information, data brokers who compile private information, and government agencies that possess nonpublic personal information. My colleague and I modeled our legislation after the data security and breach-response regime established under the Gramm-Leach-Bliley Act of 1999, and subsequent regulations. It also builds on existing law to better ensure federal and state regulators comply with the law and to make certain that data security procedures are uniformly applied. Lastly, we need to replace the current patchwork of State and Federal regulations for identity theft with a national law, like this one, that provides uniform protections across the country. Our comprehensive approach will better serve consumers by making it easier for businesses and government agencies to take the steps necessary to adequately protect all Americans from identity theft and account fraud. I look forward to working with my colleagues to get this important and necessary bill enacted before it is too late. I think everyone can agree that our identities and bank accounts are some of the most important aspects of our lives and that, if stolen, can at a minimum make life extremely difficult. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. CARPER

Mr. CARPER. Mr. President, if there is no further business to come before the Senate, I ask unanimous consent that it adjourn under the previous order.

Mr. CARPER

Mr. CARPER. Mr. President, I ask unanimous consent that the Committee on Agriculture, Nutrition, and Forestry be authorized to meet during the session of the Senate on June 30, 2010 at 9:30 a.m. in room G50 of the Dirksen Senate Office Building.

Mr. CARPER. Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on June 30, 2010, at 10 a.m., to conduct a hearing entitled ``Green Housing for the 21th Century: Retrofitting the Past and Building an Energy-Efficient Future.''

Mr. CARPER. Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet during the session of the Senate on June 30, 2010, at 10 a.m., in room 253 of the Russell Senate Office Building.

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

Mr. CARPER. Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate to conduct a hearing on June 30, at 2:30 p.m. in room SD-366 of the Dirksen Senate Office Building.

Mr. CARPER. Mr. President, I ask unanimous consent that the Committee on Environment and Public Works be authorized to meet during the session of the Senate on June 30, 2010, at 9 a.m. in room 406 of the Dirksen Senate Office Building.

Mr. CARPER. Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on June 30, 2010.

Mr. CARPER. Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet during the session of the Senate on June 30, 2010, at 10 a.m. to conduct a hearing entitled ``Nuclear Terrorism: Strengthening Our Domestic Defenses, Part I.''

Mr. CARPER. Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet during the session of the Senate on June 30, 2010, at 9:30 a.m. in room 628 of the Dirksen Senate Office Building.

Mr. CARPER. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet during the session of the Senate, on June 30, 2010, at 9 a.m., in room SH-216 of the Hart Senate Office Building, to continue the hearing on the nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States.