William Cohen

Mr. COHEN

Mr. COHEN. Mr. President, how much time is remaining on this side?

Mr. COHEN. Mr. President, I yield 8 minutes to the Senator from Rhode Island.

Mr. COHEN. I yield 5 minutes to the Senator from Rhode Island.

Mr. COHEN. Mr. President, how much time does the Senator from Rhode Island wish to have?

Mr. COHEN. Mr. President, I yield 10 minutes to the Senator from Connecticut.

Mr. COHEN. Reserving the right to object. Mr. President, could we also indicate that the time that has been consumed to this point also be included in that 2-hour period?

Mr. COHEN. If the leader will yield, I think we can have a fairly short time agreement. I think Senator Nunn and I are working through really modifying this amendment to make sure we have broad bipartisan support for it. It should not take very long. If the leader wants to propose a time agreement----

Mr. COHEN. Senator Nunn is a principal cosponsor of the amendment I just sent to the desk. Mr. DOLE addressed the Chair.

Mr. COHEN. Mr. President, I am going to yield to the minority leader in just a moment. I just want to indicate that during the course of the debate on the Levin amendment, I indicated that I would be sending an amendment to the desk for consideration that would, I think, clarify the intent of the Armed Services Committee, as far as the ABM Treaty is concerned. My understanding is that the minority leader wishes to proceed at this point and introduce another measure dealing with welfare. I am prepared to yield to him if that is his desire, or we can continue to debate the amendment that I have now offered. But I am prepared to yield the floor for as much time as the minority leader needs, and then I will come back to my amendment following his statement.

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

Mr. COHEN. I suggest the absence of a quorum, Mr. President.

Mr. COHEN. Mr. President, in sitting here in the past few moments listening to the debate, I am somewhat surprised at the level of rhetoric that is currently being used. We heard Senator after Senator get up and say this declaration in the DOD authorization bill is one to violate the ABM Treaty, or to signal our intent to do so. They say this is a unilateral abrogation of the treaty against a fictional threat. I point out to my colleagues that nothing in this bill calls for the abrogation of the ABM Treaty. Nothing in this bill calls for us to violate the treaty. Fictional threat? I wonder how our supporters on the other side feel about the fictional threat that was launched against the state of Israel? What if the state of Israel had no defensive systems? What if they had no Patriots to defend against the Scud missile? I wonder how many would take the floor and say it is tough luck that they are out of business. All we had to have is a few Scud missiles carrying chemical warheads land in Tel Aviv or Jerusalem and wipe out their populations. They had no defensive mechanism available against it. We are talking about something quite different in terms of ICBM threats. I recall the debate on the threat from Iraq, during the debate on the Persian Gulf war. I remember those citing estimates by our CIA and our DIA and other intelligence agencies at that time. They said, we cannot give you an estimate. It could be 1 year, it could be 10 years, and we are guessing it is closer to 10 years than 1 year. Following the war with Saddam Hussein, I think we came to an entirely different conclusion. We discovered that Saddam had achieved much greater progress toward that goal than we had been aware of. Members on the other side say this should not be a partisan issue. Why is it that every time the Republican majority suggests a policy, it is partisan, but when everybody on that side lines up and vote against it, it is not partisan. This is not a partisan issue. It ought to be bipartisan. We ought to say, as a body, that we are concerned about the proliferation of technology--missile technology--in the world. We are concerned when we see major powers selling technology to potential enemies. We are concerned when we see China, for example, selling technology to other countries that may pose a threat to us in the future. We ought to be concerned about the proliferation of technology that one day--and we cannot predict when that one day will be--will pose a threat to our population. Now, admittedly, if we were to engage in a war with the former Soviet Union, that would not involve a limited attack or an accidental launch against us. That would be a massive exchange, against which there is no defense. I am one who, at different times over a number of years, has stood on this floor opposing the notion of having a so-called dome over the United States to protect us from an all-out attack. I never believed it was possible to do so and led the effort to defeat spending money in pursuit of that kind of system. But I have also stood on the floor with the Senator from Georgia, Senator Nunn, when he expressed concern about limited attacks, about accidental launches, about what we would do if suddenly received a message stating: ``Sorry, some accidental launch has taken place. There is an ICBM headed for New York City or Washington, DC, or Los Angeles,'' and all we can do is wait for it to hit? We are talking about constructing a system that will protect against a limited attack or accidental launch and nothing more, and it is all to be done in accordance with the ABM Treaty. The ABM Treaty as originally written called for multiple site defenses, two sites for each side. We renegotiated that treaty--at that time with the Soviets--to one site. Now we are saying, in view of the proliferation of technology, we ought to renegotiate it to [[Page S 11264]] allow each of us, the Russians and the United States, to have some minimal capability to protect our respective countries against an accidental launch or a limited attack. We can do that within the ABM Treaty. The ABM Treaty explicitly anticipates ``changes in the strategic situation'' and provides a means to negotiate amendments to deal with such changes. It also allows for us to pull out of the ABM Treaty upon 6 months' notice. Following what I hope will be the defeat of the Levin amendment, I intend to offer an amendment--perhaps joined by the Senator from Georgia, perhaps not--to make it clear that we intend to act in accordance with the ABM Treaty. We intend also to call upon the President to seek to negotiate with the Russians to allow each side to develop and deploy a limited system to protect our respective countries against this proliferation threat. And if the President should fail to do so, it will be my recommendation that the President come back and report to the Congress and then seek our advice as to whether or not we should continue with the ABM Treaty or at that time should indicate our desire to withdraw. That is all within the ABM Treaty. And contrary to what is being represented here on the floor this afternoon, we are not seeking a unilateral abrogation. I do not want to see that. I hope, later on during the course of this afternoon, I can make that very clear with explicit language that will resolve any doubts about that. We want to continue to act in accord with the ABM Treaty. The ABM Treaty allows us to negotiate to seek amendments. We want to see if we cannot negotiate with the Russians to allow for a deployment on a land-based system with multiple sites--and the Russians would have the same right to do so--to protect us against miscalculation or accident. Madam President, there is an assumption in all of this debate that somehow the threat will only come from the former Soviet Union. I do not make that assumption. We are concerned about what is taking place on a global basis. We are concerned about potential threats from other sources. We cannot predict who they are, where they may be, or how far along the line of technology development they have proceeded. But we cannot face our constituents in good conscience and say: ``Sorry we failed to take any measures to protect you. Our only defense is to launch an all-out attack on whomever launched that missile.'' That is our only option today. Is that a rational, sound option, to say if you launch one or two missiles against the United States, we end up launching ours against yours? What we need to do is to have a limited protective system. That is what the Armed Services Committee seeks to do in this authorization. I intend, following the debate and conclusion of the Levin amendment, to offer an amendment to make that very clear. Madam President, I yield the floor.

Mr. COHEN. Mr. President, I ask unanimous consent that the pending amendment be set aside in order to allow Senator McCain to proceed with his amendment, and that there be a time limitation of 2 hours equally divided.

Mr. COHEN. Mr. President, what is the pending business?

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

Mr. COHEN. Which one is it?

Mr. COHEN. No.

Mr. COHEN. Mr. President, I yield 5 minutes to the Senator from Pennsylvania.

Mr. COHEN. At the direction of the majority leader, I yield back my time.

Mr. COHEN. I yield 10 minutes to the Senator from Connecticut.

Mr. COHEN

Mr. COHEN. Mr. President, earlier this year I introduced S. 245, the Health Care Fraud Prevention Act. This bill, which was cosponsored by a bipartisan group of 21 Senators, was similar to legislation I introduced last year that ultimately was incorporated into a number of the major comprehensive health care reform proposals. Unfortunately, hopes for enactment of my fraud and abuse proposal faded since comprehensive health care reform was not passed by the Congress last year. Regardless of whether we enact overall health care reform, it is vital that we no longer delay in adopting tough measures to crack down on the fraud and abuse that robs billions of dollars from our health care system each year. Estimates are that we are losing as much as $100 billion each year to health care fraud and abuse, with as much as 30 percent of those losses to the Medicare and Medicaid programs alone. As we embark upon the debate on how to achieve savings in, and control the growth of, Medicare and Medicaid, we must not overlook the very real savings that can be obtained by [[Page S 10879]] closing the doors of these programs to fraud and abuse. Since I introduced S. 245 in January of this year, I have solicited comments on this legislation from a host of law enforcement agencies, health care provider groups, and experts in criminal law and health care. My purpose in seeking and reviewing comments on my legislation was to ensure that health care fraud legislation be tough on those who intentionally scam or defraud the health care system, but also be fair and workable in practice, and not inadvertently penalize honest health care providers who inadvertently run afoul of complicated health care regulations. I strongly believe that it is necessary, and possible, to strike the appropriate balance of being very tough on health care fraud while not entrapping or unduly burdening health care providers and businesses who are simply trying to follow the rules. The bill that I am introducing today reflects this delicate balance. It is the product of many months of work by my staff on the Senate Special Committee on Aging to respond to comments by many experts in law enforcement, health care, and the health care provider community. The changes made to S. 245 by this legislation I am introducing today are both comprehensive in nature and extremely workable. For example, this bill alters the extension of the Social Security Act anti-kickback statute and civil monetary penalties. Under this legislation, these penalties would be extended to cover all Federal Health Care Programs, not just Medicare and Medicaid. Another major change deals with the exclusion of individuals from Medicare for certain health care fraud violations. Under the proposal I am introducing today, the reach of this exclusion has been refined from my previous legislation so that individuals not directly involved in the fraudulent activity would not be unduly penalized or discouraged from serving on boards of hospitals or other health care organizations. This legislation contains many other refinements to S. 245 that will go far in achieving coordinated, effective, and fair response to health care fraud and abuse. Mr. President, the costs of health care fraud and abuse to our health care system are staggering: As much as 10 percent of U.S. health care spending is lost to fraud and abuse each year. For Medicare and Medicaid, the Federal Government pays as much as $27 billion each year in fraudulent and abusive claims. Enactment of this legislation therefore has the potential to save the taxpayers and American public millions, if not billions of dollars each year. I would like to thank all those individuals from law enforcement and the health care industry who have come forth with pragmatic and creative solutions to a growing and pernicious problem, and I ask unanimous consent that a section-by-section analysis of the changes have been made to S. 245 and a copy of my legislation be included in the Record.

Mr. COHEN

Mr. COHEN. Mr. President, I wish to announce that the Special Committee on Aging will hold a hearing on Thursday, August 3, 1995, at 9:30 a.m., in room 628 of the Dirksen Senate Office Building. The hearing is entitled ``Federal Oversight of Medicare HMO's: Assuring Beneficiary Protection.'' committee on energy and natural resources

Mr. COHEN

Mr. COHEN. Mr. President, I have opposed Federal product liability reform legislation primarily because I believe it is a mistake to replace laws that have been carefully crafted by the State courts and legislature over the past two centuries with a one-size- fits-all piece of legislation developed in Washington, DC. Through the time-tested methods of common law adjudication and legislative adjustment, the State courts and legislatures have worked together to develop tort laws that strike the appropriate balance between the needs of plaintiffs and defendants, and those of consumers and business. Over the past decade, the States have been reforming their own tort systems by experimenting with alternative dispute resolution procedures, caps on punitive damages, and changes in liability standards. In fact, the most recent edition of the American Bar Association Journal reports that State legislatures have taken up more than 70 new tort law bills in their current sessions and that new product liability laws have been enacted in Illinois, Michigan, and North Dakota this year. This is the way the Federal system is supposed to work. When a problem arises, the States should be the forum for experimenting with new practices and devising new solutions. A Federal law, such as the one passed by the Senate, would bring this experimentation to a grinding halt and make Congress, which has virtually no experience legislating in this area, responsible for the entire Nation's product liability system. It is ironic that this extension of Federal power is coming at a time when we are trying to reduce the size and scope of the Federal Government by shifting authority to the States and localities. Recently, the National Conference of State Legislatures adopted a resolution opposing Federal product liability legislation. The Conference noted the proposed Federal legislation would conflict with State laws governing tort liability, worker's compensation, and insurance and would place State legislatures and courts in an intolerable legal straightjacket. I ask that the complete text of the National Conference of State Legislature's resolution be printed in the Record. The resolution follows: National Conference of State Legislatures Resolution Adopted July 20, 1995 NCSL has reviewed proposed federal legislation that would preempt state law by severely restricting the rights of persons injured by defective products to seek recovery in state courts. Such legislation fails to meet the standards necessary for federal preemption. In particular, no comprehensive evidence exists demonstrating either that state product liability laws have created a problem of such dimension that a federal solution is warranted or that federal legislation would achieve its stated goals. NCSL believes that the proposed legislation would create serious new problems in the field of product liability by dictating a single set of rules controlling the timeliness of claims and the admissibility of evidence. It would conflict with long-standing state laws governing tort liability, workers' compensation and insurance regulations. By doing so, such proposals would place state legislatures and state courts in an intolerable legal straightjacket. Therefore, in conformance with our general policy in opposition to federal preemption of state law and in the conviction that it is particularly improper for the federal government to attempt to restrict citizen access to state courts, the National Conference of State Legislatures strongly opposes all legislation before Congress that would have the effect of preempting state laws regulating recovery for injuries caused by defective products.

Mr. COHEN

Mr. COHEN. Mr. President, I wanted to take the floor this evening to offer my commendation to the Senator from Arizona, the Senator from Michigan, the Senator from Minnesota, the Senator from Wisconsin, and others who have worked for many days trying to arrive at a consensus which would enjoy bipartisan support. This is not a subject matter which has been easy to deal with. There are Members who feel that the Senate is going too far, that the so- called gifts that are given to Members of the Senate are insignificant in nature. Many Members feel that gifts do not have any sort of impact or influence upon their independent judgment. I believe that to be the case. The problem has always been the perception on the part of the American people. We know that we do not enjoy a high level of confidence. Perhaps it has been our fate as politicians to suffer those low ratings. I cannot recall, historically, when those who are public officials have ever enjoyed long, sustained periods of public approval. I think there have been, historically, peaks, but mostly valleys. Peaks have occurred when there have been moments of great debate. I can recall during the time of the impeachment proceedings, well back into the 1970's, when I think people were impressed with the quality of the debate that took place during that [[Page S 10800]] very trying time. Another such moment was during the debates on the Persian Gulf war here in the U.S. Senate when the American people who were seriously divided over the issue looked upon us. I think they were quite impressed with the quality of the debate on both sides of the issue. They felt that the democratic system truly was fulfilling its promise. Perhaps there have been a number of other moments when the public has looked upon the deliberations here in this body and in the other body and have come to the conclusion that we are measuring up to our responsibilities. The difficulty, of course, is that those peaks are usually followed by very deep valleys. It is from the depths of one of those valleys that we are trying to climb to achieve a level of public confidence. I am not persuaded that any individual thing that we do will ultimately sustain that public confidence. But I think we have an obligation to try to achieve it. In my own view, I think we will not arrive at the higher levels of confidence until such time as we deal with the major issues confronting this country. First and foremost, we must deal with balancing the budget, and do so in a way that does the least amount of injury to the most vulnerable citizens in our society. Another issue is determining which level of government, be it Federal, State or local, that should be involved in various issues that impact upon our citizenry. These, ultimately, are going to be the types of issues on which we will, hopefully, raise our level of respect in the community. But, in the meantime, I think this particular legislation is important because the perception is that the legislative process is being unduly influenced by individuals, groups, or lobbyists who have undue control over the outcome of our deliberations. I simply wanted to take the floor this evening to commend my colleagues for seeking to arrive at what we believe to be a fair resolution of the issue. As Senator McCain has indicated, his proposal, rather than the underlying Levin-Cohen-Wellstone proposal, adds a degree of, No. 1, uniformity, and No. 2, simplicity and clarity. I wanted to simply commend those who have been involved in the painstaking negotiations that have helped us arrive at this position. I reserve the remainder of my time.

Mr. COHEN

Mr. COHEN. Mr. President, last evening I took the floor to indicate that my expectation was that Senator Nunn would be offering an amendment that essentially would require President Clinton to go to the United Nations. A year ago in August, Senator Nunn and then Senator Mitchell also sponsored legislation requiring the President to go to the United Nations. The President did, but he did not seek a vote. Under the Nunn amendment, as I understand it, he would require the President to seek a vote to lift the embargo on a multilateral basis. It is my expectation that if the President were required to do so, nonetheless we could anticipate that one of the members of the Security Council--be it Russia, be it France, be it any other member--would impose a veto or seek to prevent it from coming to a vote. My amendment to the Nunn amendment would require that in the case that a vote is prevented or in case a veto is lodged, that the President would then go to the General Assembly of the United Nations which has voted--the membership of that has voted on two prior occasions overwhelmingly--to lift the embargo. This would, in my judgment, meet the objections of our colleagues who are concerned about undermining our relationship and the United Nations or with NATO. This would give an opportunity for a multilateral lifting of the embargo and would preserve the integrity of the institution itself. I believe it would resolve the problems that many of my colleagues feel now, acting unilaterally. This is an opportunity for the countries who have voiced their support for the lifting of that embargo on a multilateral basis to cast their vote. I believe we would accomplish our objectives. I intend to support the Dole resolution. I intend to support the Nunn amendment, and hopefully my colleagues will also support it. Mr. President, I send to the desk my amendment in the second degree.