John Cornyn

Mr. CORNYN

Mr. CORNYN. Mr. President, you don't have to be an expert in health care policy to know our health care system is in need of reform. Today, we spend over $2 trillion on health care, almost $7,500 per person. In 10 years, national health care expenditures are expected to reach $4.3 trillion, or $13,000 per person, which would comprise 19.5 percent of our gross domestic product. Clearly, this rate of increase is unsustainable. We must work together to develop creative solutions that will change the way we deliver health care. The goal should be to allow health care providers to develop treatment plans based on what is in the best interest of the patient. But the current system under which we pay physicians neither puts patients first nor reduces costs. A decade ago, instead of creating a mechanism that changed the way physicians deliver care, Congress attempted to curb rising health care costs through an arbitrary annual expenditure cap on physician payments. And what has the result been? Physicians have seen their reimbursements lag far behind their costs, in Texas and nationally--a 15-percent gap. In order to recoup lost revenue, physicians often increased the number of patients they were seeing per day, meaning they were spending less and less time with their patients, lowering the quality of care delivered. Moreover, we are starting to see problems with beneficiary access. At an increasing rate, beneficiaries across the country are reporting difficulties in scheduling appointments with their physicians. But declining reimbursements are also influencing the development of future generations of physicians--especially in primary care--as there is a disincentive to enter the profession or an incentive to forgo primary care for more lucrative specialties. This is especially alarming, as the Medicare population grows and many physicians will be retiring. For example, my State of Texas already has a below-average physician-to-population ratio, while 39 percent of practicing physicians are already over 50. There are over 30 health care reform plans floating around inside and outside of Congress. Few of these plans address the fundamental question: What good is coverage without access to that coverage? If we are serious about changing our health care system, we need to start with changing the way we pay physicians--that would send a strong message not only about the need for better quality care but also the need to ensure a future generation of American physicians. I am pleased to introduce the Ensuring the Future Physician Workforce Act of 2008. This bill will provide positive reimbursement updates for providers; eliminate the ineffectual expenditure cap; increase incentives for physician data reporting; facilitate adoption of Health Information Technology, HIT, by addressing cost and legislative barriers; educate and empower physicians and beneficiaries in relation to Medicare spending and benefits usage; and study ways to realign the way Medicare pays for health care. Every few years, Congress goes through the same rituals of trying to fix the physician reimbursement mechanism. First, CMS tells us the expenditure cap requires Medicare physician reimbursements to be cut by a certain percent. Next, Congress struggles to find a way to prevent this cut, knowing how harmful it would be. Yet delaying this cut is extremely expensive. Congress then swears that this is the last time they will go through this process and that it must come up with a comprehensive fix. Ultimately, Congress never seems able to fix the problem. This bill stops the charade, resets the baseline for the next year and a half, and then eliminates the expenditure cap thereafter. Rather than pretending like we are going to adhere to an arbitrary cap of $80, for example, only to spend more later, this bill puts up front the true cost that we are really going to spend $100 or $101. The effect on spending is the same, but physicians and beneficiaries have certainty. If Congress fails to act, Texas physicians will lose $860 million between July 2008 and December 2009, which is a cut of $18,000 to each Texas physician. That figure balloons to $16.5 billion by 2016 due to nearly a decade of scheduled cuts. Two widely identified ways of moving toward lower costs and better quality stem from the collection of health care data and the implementation of health information technology. First, increasing incentives for the reporting of data will improve our ability to assess how we deliver care and the level of that care. In this bill we go beyond general reporting and focus on the most expensive diseases. The director of the Congressional Budget Office, Peter Orszag, likes to ask the paradoxical question: ``How can the best medical care in the world cost twice as much as the best medical care in the world?'' It does because we deliver care in vastly different ways and at vastly different costs. By focusing our data collection efforts, we will better understand how these differences occur. Second, there are few who would argue with the notion that implementation of HIT is beneficial from a cost and quality perspective; HIT provides transparency, efficiency, portability, safety, and reductions in duplicative and wasteful procedures. However, various cost and legislative barriers have inhibited widespread adoption. There is a large cost associated with implementing HIT because of the cost of hardware, software, and time needed to train staff. Additionally, there is a disincentive to invest in HIT because the Department of Health and Human Services has yet to finalize its standards. Providers are stuck in neutral. Under the current regulatory environment, doctors have limited ability to accept hardware, software, or help in training from hospitals. Not only does this unfairly harm patients in these practices, it negatively impacts community health. This bill provides a safe harbor to that regulation but maintains the spirit of the law by allowing hospitals to help physicians in their implementation of HIT-- either in the purchasing of hardware or software or in training--as long as these hospitals do not restrict the physician's interoperability, clinical practice, or referral system for their own financial benefit. This bill provides the incentive to voluntarily implement HIT and commonsense regulations that move communities into the 21st century. Once beneficiaries begin to see the benefits HIT will have on the quality of their care and in their wallets, providers will not be able to ignore the demand. Finally, this bill would provide comparative reports to physicians on their billings and to beneficiaries on their usage of services. Physicians want to do the right thing for their patients, but we need to ensure that they have the tools necessary to appropriately deliver that care. When physicians look at these reports and see how they compare to other providers in their area or across the Nation, they will take that report seriously and evaluate why their practices differ. Similarly, beneficiaries will have a tool to evaluate their level of care and a tool to engage the physician-patient relationship. Mr. President, it is no secret that the path Medicare is on is unsustainable. So far, our only recourse has been to prolong the inevitable collapse, rather than reforming the doomed system. This bill is a small step toward righting the Medicare ship, and with it, America's health care system as a whole. It is time we move forward in health care and help create a system that provides the best care at the best prices. I hope my colleagues will join me in supporting this bill and ensuring a better future for American health care.

Mr. CORNYN

Mr. CORNYN. Mr. President, just briefly, roughly half the votes on this chart that the distinguished majority leader has described as filibusters were actually successful votes where cloture was invoked once the majority worked with us, allowed full consideration of the bills, and those bills actually moved forward and became law. On roughly half of the instances--I have not looked at the entire chart; this is the first time I have seen it here. But that is a perfect example of how we ought to be working together and not an example of obstruction, but it is actually a means that the Senate has been allowed to do what the Senate does, and that is to have full debate, a fair opportunity to offer amendments and then up-or-down votes on amendments and then pass legislation that goes to the President and is signed for the benefit of the American people. So I disagree with his characterization on at least half of those votes. They resulted in successfully passed legislation, not an example of obstructionism but of this Senate actually working the way the Senate should. I yield the floor.

Mr. CORNYN. Madam President, I could not disagree more with the distinguished majority leader. But I will tell you that when it comes to increasing taxes, bigger Government, and higher spending, sure, we are going to stand our ground. We are going to try to block the increased rates on the taxpayers' check and growing the size of Government beyond our capacity to sustain it and failing to meet the obligations we have to pay for things such as Medicare and Social Security and passing those down to our children and grandchildren. We are on the verge of the debate on the 2009 Federal budget. One of the problems we need to work on together rather than merely accuse each other of malfeasance or misfeasance is $66 trillion in unfunded obligations we are passing on to our children and grandchildren. I am on the Budget Committee. We had a vote on the budget that will come to the floor next week. There is nothing in the budget--nothing in this budget--that addresses the concerns I know we have on a bipartisan basis about this unsustainable growth of entitlement spending. So that is the kind of thing we ought to be working on on a bipartisan basis--how can we protect the family's budget rather than wreck the Federal budget. But instead of that, we find there is this back-and-forth for partisan gain. The majority leader said: Wait until the election day in November. Well, people know what this is about. This is about partisan politics. This is not about trying to solve problems. I hope we can do so. Again, I compliment the Senator from Arkansas and the Senator from Alaska for addressing on a bipartisan basis consumer safety in this bill. This is a good example of what we ought to be doing, not engaging in partisan sniping that I think does nothing but continue to bring public opinion of Congress to the lowest levels in recent history. That is why the approval rating of this Congress is at the 18- percentage rate. So we ought to try to find ways to work together, not engage in this sort of partisan sniping in an effort to gain advantage, electoral advantage, in November. It does not work, for one thing. I think the American people listening to this say: A pox on both your houses. What they want to do is see us work together to solve the problems. We are going to have a chance on the budget to try to keep spending down, to try to make sure we do not raise taxes and we deal with the obligation we have to meet on unfunded liabilities that will be passed on to our children and grandchildren. That is what I hope we spend our time doing rather than partisan politics. I yield the floor.

Mr. CORNYN. Madam President, this morning, our colleague, the distinguished Senator from New York, Mr. Schumer, came to talk about the Republican obstruction and filibusters, and I guess I have been around here just a few years now, but I have learned that a charge that is unrebutted is a charge that is believed. In the interest of making sure people understand what the facts are, I would like to address his allegations. This morning, Senator Schumer repeated a myth, which is the allegation that there have been 73 Republican filibusters in the 110th Congress. He said, ``This Republican minority can only obstruct.'' Based on what I believe is a complete distortion of the facts, he said the Republicans ``will be held accountable in November.'' Well, I might note that Senator Schumer, in addition to being the distinguished Senator from New York, is also the chairman of the Democratic Senatorial Campaign Committee. And I would hope we would have better things to do than to use the floor of the Senate for partisan attacks when we have so much important work that needs to be done. He said he wished we could ``go back to the good old days when filibusters were used for issues of major import but not used routinely to block every single piece of legislation.'' Well, it is evidence enough that is an overstatement and I think just a downright exaggeration, in that we are working right now on a bipartisan piece of legislation on the consumer protection issue to make sure American consumers are protected from dangerous products, particularly those that may be imported from abroad. But let me just say what the facts are. Under the definition that Senator Schumer--and the majority leader before him--calls a filibuster, Republicans would be obstructing multiple times in 1 day on many occasions. What they are actually referring to is a record number of times that the majority leader has attempted to prevent debate and block Senators from offering amendments. What happens is he will come to the floor and he will call up a bill and then he will fill the amendment tree, which is a procedural device designed to block the offering of amendments. It basically imposes a ``my way or the highway'' approach to legislating in the Senate. You don't have to be around here very long to know that nothing happens around here unless there is some bipartisan agreement and work, and this bill we are on today is a perfect example of how it can work and how it should work. Now, I would say that the majority leader is setting a record of his own, moving to cut off debate the first day a bill or resolution reaches the floor more than any other majority leader, whether they be Republican or Democrat. During the first session of the 110th Congress, Senator Reid filed cloture--that is, he filed to cut off debate--on the same day a bill or resolution was introduced on nine separate occasions. Before we have had a chance to even talk about it, before anybody has even had a chance to offer amendments, he filed to cut off debate, cut off amendments, nine times. That is three times more than Majority Leaders Frist, Daschle, Lott, Mitchell, or Byrd ever did in the first session of Congress and nine times more than in the first session of the 109th Congress. Among these 73 Republican filibusters, so-called, Democrats include times when members of their own party actually filibustered issues of great importance to the American people. Here are a couple of examples. Senator Dodd, from Connecticut, filibustered the Foreign Intelligence Surveillance Act, which allows us the authority to listen to terrorists who are conspiring to harm the American people; the so-called filibuster by our Democratic friends of the McConnell-Stevens troop funding bill last November, which was designed to provide funds to our troops in harm's way, which had been delayed for far too long; and then, of course, the filibuster of Judge Leslie Southwick, a circuit court nominee. Cloture motions that were filed by Republicans in an effort to avoid obstruction were also included. Of the more than 73 so-called filibusters, Senate Democrats either voted to ``filibuster'' or voted with Republicans, and the vote was unanimous on five occasions. Well, let me just say that I know sometimes the nomenclature and the procedures get awfully confusing here on the Senate floor, but the American people clearly would like to see us work together more to solve problems. We are not talking about people giving or taking leave of their principles or their firmly held convictions, but everybody who works here on the Senate floor knows that the only way things happen is by bipartisan cooperation because neither side has the 60 votes to cut off debate and get what they want, as you could if you had a majority in the House of Representatives. I even read today that the distinguished majority leader compared so- called filibusters to aggravated assaults. He said: It doesn't make any difference whether it is 72 or 65 stabbings, it is still the fact you have been assaulted. Well, I just think that kind of rhetoric is over the top. What we need to do is, rather than make false charges about obstruction, we need to come together and try to solve problems. I believe that is what the American people want us to do. So rather than have this unrebutted allegation out there, lest people believe it, because it is being repeated over and over, I think it is important to set the record straight. I think everybody in this body knows what the deal is; that is, if we are going to solve problems, we are going to have to work together. This CPSC bill is the perfect example. The majority leader did not have to file cloture in order to bring us to conclusion. We sat down and we have negotiated amendments, we have offered amendments, and we have had votes. That is the way this place works. But I think what is fair is fair, and we need to make sure the story is accurately told. As Senator McConnell said earlier--quoting Daniel Patrick Moynihan--everyone is entitled to their own opinions, but nobody is entitled to their own set of facts. Facts being what they are, people can then decide what their opinion is. But it is clear this is not a case of obstruction--unless, of course, you are talking about blocking tax increases on the American people, and I will be honest, we did block those tax increases because they are bad for the economy, bad for the American people. But by and large, when we have been met halfway, we have worked together to try to solve problems. I thank the chair very much for the time that I have had to respond. I think it is important that the full context of the record be clear. I yield the floor.

Mr. CORNYN

Mr. CORNYN. I would like to learn more about this. To go back, when the Democrats took the majority, one of the first things they did was to restore tough pay-go, correct?

Mr. CORNYN. What about budget enforcement mechanisms? For example, Democrats have claimed their pay-go will ensure fiscal discipline, and I have heard Budget Chairman Conrad say that it is working. Is that true?

Mr. CORNYN. Well, as a member of the Budget Committee, I have heard a lot from Chairman Conrad on the state of the gross Federal debt. I have heard lots of press-friendly sound bites from him like ``the debt is the threat.'' Surely Democrats took some action to reduce the debt?

Mr. CORNYN. I do remember Chairman Conrad insisting that closing a portion of the tax gap--in other words, collecting unpaid taxes that are owed--would give us about $300 billion in revenues to pay for all this new spending. How much was recovered?

Mr. CORNYN. I have heard about a gimmick where the Democrats were able to increase mandatory spending for free by including it in an appropriations bill.

Mr. CORNYN. I have also heard about early sunsets as a gimmick to avoid pay-go. How does that work?

Mr. CORNYN. Wow. Are there more tricks?

Mr. CORNYN. Sounds like these gimmicks and violations add up to a pretty hefty total.

Mr. CORNYN. I thank the Chair. I ask the Senator, in addition to raising taxes and failing to control spending, surely the budget last year dealt with the growing entitlement spending crisis, which has $66 trillion in unfunded liabilities that will be paid by our children and grandchildren. Could the Senator address that?

Mr. CORNYN. Is there anything we can do about it?

Mr. CORNYN. Mr. President, I ask unanimous consent for an additional minute.

Mr. CORNYN. This is very disheartening. Are there other examples of Democrats weakening budget enforcement rules?

Mr. CORNYN

Mr. CORNYN. Mr. President, first we are told that the reason why State attorneys general need to be explicitly authorized under this statute to pursue these consumer complaints is so there is no risk of runaway lawsuits, because they will be confined to seeking an injunction in Federal court. I actually support that provision of the bill. Then we are told there is an objection to my amendment, which would prohibit State attorneys general from entering into contingency fee arrangements in order to pursue authorized activities under this bill, that there is no reason for the amendment. Next thing I know, there is a document circulated by the American Trial Lawyers Association arguing the only way consumers can get access to the court is by allowing the outsourcing of the responsibility of the State attorneys general under a contingency fee arrangement which makes me mighty suspicious whether this is, in fact, a Trojan horse to allow trial lawyers basically to do the work elected State attorneys general should be doing and that currently the Department of Justice is doing. All my amendment is designed to do is to make sure the purpose for which the State attorneys general are authorized--that is, to seek an injunction only-- is maintained and that it not be allowed to serve as a Trojan horse to outsource these responsibilities. There are some very important public policy reasons for that. No. 1, trial lawyers hired by State attorneys general are not accountable to the public. We have seen examples. I mentioned some in the tobacco litigation, where there were serious abuses that could not be rectified by the electorate when it came to holding public officials accountable. Those public officials in some cases left office; some, such as my predecessor, as attorney general in Texas, went to Federal prison because of misconduct associated with those kinds of arrangements. This amendment is prophylactic in nature. But I will tell you I am concerned it has been mischaracterized. It will not prohibit State attorneys general from contracting with outside lawyers on an hourly rate arrangement under the same circumstances under which lawyers can be reimbursed now. But it will prevent the sort of trophy hunting and the outlandish attorney's fees that were awarded in the tobacco litigation through these contingency fee arrangements. It is something that is within the power of this body to correct. I hope my colleagues will join me in passing this commonsense amendment which is entirely consistent with the underlying purposes of the bill. I worry this is being used as a Trojan horse for other purposes. But if my amendment is passed, I think we can all lay this matter to rest and realize consumers will be protected, but it will not be used as a pretext for enriching private lawyers and political constituencies.

Mr. CORNYN. Mr. President, I ask that my amendment be modified with the changes at the desk. My modification makes clear that the expert witness fees are part of the recoverable costs and fees that the State attorneys general can recover. I appreciate Senator Stevens for raising this concern to me and hope my modification is responsive to his concerns.

Mr. CORNYN. Reserving the right to object, and I will not object, I am happy to do that as long as I preserve my 5 minutes before the vote.

Mr. CORNYN. My understanding is there was 10 minutes divided. If there is no other response, I will yield my time back, if the majority yields back their time.

Mr. CORNYN. Mr. President, if I may, I will object only for the purpose of asking unanimous consent that the document that was depicted in the chart be made a part of the record following my remarks.

Mr. CORNYN. Reserving the right to object, I did not hear the request.

Mr. CORNYN. Mr. President, the managers of this legislation, Senator Pryor and Senator Stevens, have introduced what I think is, by and large, a very good bill designed to protect consumers. As a matter of fact, I support the expansion of enforcement authority not only to include the Department of Justice, Federal law enforcement authorities, but also to deputize State attorneys general to seek injunctions for violations of the act. That comes from my experience as serving as the attorney general of my State for 4 years. I think the State attorneys general can provide additional resources in their capacity as the chief consumer protection officer of their State to make sure that consumers are protected. Although in talking to my colleagues, the question was raised, well, if there is only an injunction sought, then why do we need a prohibition against contingency fees that might be paid to outside lawyers to whom this job would be outsourced? And the answer to that is, lawyers can get pretty creative sometimes and figure out a way to pay an outside lawyer a contingency fee even when all the relief that is granted is an injunction. I want to be clear about what this amendment is and what this amendment is not. This amendment has no bearing whatsoever on the right of an individual if they can't afford any other way to hire a lawyer than based on a contingency fee arrangement. Historically, since the days of England, or Anglo-American jurisprudence, we have recognized the contingency fee as the poor person's key to the courthouse; being able to sign a piece of their recovery, whether it is a settlement or a judgment of a court, as a way to get into court, to sort of level the playing field. But this is not a case of a person who cannot afford to hire a lawyer unless they hire them using a contingency fee. We are talking about the Federal Government. We are talking about the State governments. And I think there are important reasons to make sure the people who represent the sovereign State of Texas and the other 49 States or the U.S. Government are accountable to the public and are not only in it as bounty hunters seeking to maximize their recovery without any sort of political accountability. That lack of political accountability happens when lawyers for the Government outsource their responsibilities, or at least the job of suing, to private lawyers but without any political accountability associated with it. I would point out there are tragic examples of what I am talking about. It is not a hypothetical. Before I was elected as attorney general of my State in 1998, my predecessor hired outside lawyers to pursue tobacco companies in the much ballyhooed tobacco litigation. The justification for that was supposed to be that the money was going to be used to stop underage smoking and to try to make sure the public was well educated about the dangers of tobacco. Well, I am sorry to say, as a result of that litigation, the private lawyers hired by the then- attorney general of Texas received more than $3 billion--billion dollars--in attorney's fees that I believe should have gone to the State of Texas to help in those targeted sorts of programs. There is no accountability. There is no reason the State or the Federal Government should have to outsource its responsibilities to private lawyers. And my amendment is designed to make sure that does not happen under the context of consumer protection. We found out, though, what is being circulated by an organization that used to be called the American Trial Lawyers Association, now called the American Association for Justice--interesting selection of names--that is opposed to my amendment. It makes clear the concerns I had that ultimately this bill, which would provide only for the attorneys general to seek injunctions, is perhaps to be used as a vehicle to expand that to allow private lawyers, acting under the authority of the State attorneys general, to seek money judgments against any business they are big enough and bad enough to sue. As you can see, in the fourth paragraph of this document, it says: Proponents of the Cornyn amendment are desperate to prevent an even playing field for consumers. Prohibiting the use of contingency fees will result--as the proponents of the amendment know it will result--in State attorneys general being wholly unable to utilize private attorneys in those very cases where litigation expenses and complexity make the assistance of private attorneys essential. It is ironic, that it is the very outside lawyers--the trial lawyers--who hope to be hired by the State attorneys general to pursue that litigation who are opposing this amendment, even though they know that under the consumer product safety laws that are currently on the books it provides for the computation of a reasonable attorney's fee in the recovery and pursuit of a claim. As a matter of fact, it provides an attorney's fee based on actual time expended by the attorney in providing the advice and other legal services in connection with representing a person in an action brought under this law, such reasonable expenses as may be incurred by the attorney in the provision of such services, which is computed at the rate prevailing for the provision of similar services with respect to actions brought in the court which is awarding such fee. So it is, unfortunately, clear this provision, in this otherwise good piece of legislation, is being used as a Trojan horse not just to protect consumers but to benefit outside lawyers and to have a lack of political accountability that is, I believe, required to make sure the lawyers who represent the United States of America in the Department of Justice or the State attorneys general conduct themselves in an appropriate and accountable sort of fashion. I mentioned this before, and I will mention it again, that there are examples where this very arrangement has resulted in corrupt bargains. My predecessor's attorney general has just recently left a Federal penitentiary, having served time in prison because he used this outside fee arrangement basically to funnel money to a friend. So this is a very real and present problem. It is clear the provisions that have been negotiated between the distinguished Senator from Arkansas and the distinguished Senator from Alaska, which would limit it to just seeking injunctions, that perhaps there is a design or plan or the possibility that this will be expanded in conference to include authorizing private lawyers to then sue small businesses and large businesses across the country and authorize the delegation or outsourcing of those responsibilities that the Department of Justice or these attorneys general have to outside counsel, with no accountability, and the very real prospect that there will be abuse and, in some cases perhaps, even corruption. So I hope my colleagues will learn from the experience of the past, the sad experience of the past, where these sorts of arrangements have been entered into in a way that has resulted in not only not accomplishing the goals sought by the legislation but also outright corruption. Amendment No. 4094, as Modified Mr. President, I ask unanimous consent that my amendment be modified, with the changes at the desk, and I reserve the remainder of my time.

Mr. CORNYN. Madam President, I will explain to my colleagues what the amendment does. Under the bill as offered, it creates, unfortunately, a bounty, so to speak, for alleged whistleblowers up to $250,000 in attorney's fees and penalties, which I think, rather than creating a level playing field and trying to address the legitimate concern that I happen to agree with, that people who disclose or identify illegal conduct need to be protected against arbitrary termination of their jobs when they are just trying to make sure the law is complied with and help contribute to the public safety. I think this bill, as currently written, tilts the playing field too far in favor of whistleblower complainants and has the unintended effect of encouraging frivolous and bad-faith allegations against employers. So what my amendment would try to do would be to level that playing field while protecting legitimate whistleblowers but not actually encouraging people who have, perhaps, engaged in other misconduct and giving them a bounty, so to speak, to sue for under this statute. Under the bill, an alleged whistleblower may file a complaint with the Secretary of Labor, and if the Secretary of Labor fails to act, then with the Federal district court. If the complainant prevails at a hearing or action, he or she can receive an unlimited amount of costs and expenses, including attorney's fees and expert witness fees. If the Secretary finds that the complaint is frivolous or brought in bad faith, the amount the employer can recover is limited to $1,000. Let me make sure my colleagues understand that. If the employee prevails in the action, they can recover unlimited damages and costs, including attorney's fees and expert witness fees. If the Secretary of Labor finds at the administrative level that it is frivolous or brought in bad faith, the employer can only recover $1,000--obviously an unequal playing field and one that will have the unintended impact of encouraging bad conduct. If the case goes to district court, the employer cannot recover attorney's fees at all. I submit that the rules ought to be fair for both parties and that $1,000 is not a significant deterrent to frivolous and bad-faith suits. If the complaint process is going to have any integrity, there have to be consequences for abusing the process with frivolous and bad-faith complaints. What is more, the $1,000 limit on attorney's fees in the bill is inadequate to compensate an employer for the cost of defending against a frivolous or bad-faith complaint. An employer who is a target of such a suit will almost certainly incur more than $1,000 in fees just to have a lawyer review the file, file a brief, and attend a hearing. If the case goes to district court, the attorney's fees will be even greater but will not be recoverable at all under the bill as written. This amendment levels the playing field by capping the costs and fees recoverable for both parties. I might just add that I have to raise the question of whether a whistleblower provision is necessary. We are still researching the matter. Under most State laws, including the law in the State of Texas, an employer cannot fire an employee for reporting unlawful conduct. There are already remedies in place under State law, and I have to question whether it is necessary to create an additional remedy under Federal law. Assuming there is, I think we should, I hope, agree that there ought to be a level playing field. My amendment strikes a reasonable balance between the interests of punishing retributive employer conduct and of discouraging frivolous and bad-faith claims. The amendment punishes wrongdoers and makes victims whole without creating incentives for employees to sue employers for frivolous or harassing reasons. The amendment is fair to complainants, who can recover costs and fees whenever they prevail, as opposed to employers, who can recover only when the whistleblower complaint is shown to be frivolous or brought in bad faith. My amendment fully compensates complainants who prevail. Complainants can still get unlimited injunctive and compensatory relief. In other words, they can get their job back and recover backpay to be made whole. In addition, complainants can receive consequential and punitive damage that are not available to the employer, which is why the amendment allows complainants to recover up to $50,000 in total costs and fees and consequential and punitive damages, while employers can receive only $15,000 in attorney's fees. I believe this is a reasonable amendment offered in the spirit of compromise, and I hope the other side will take a look at it and agree to accept the amendment. If not, I am willing, as I said earlier, to agree to some reasonable time agreement so we can debate it further and then have a vote on it. I thank the Presiding Officer, and I yield the floor.

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