Christopher Dodd

Mr. DODD

Mr. DODD. Mr. President, in October of this year, the majority leader sought to proceed to the Class Action Fairness Act, S. 1751. I joined 40 of my colleagues in opposing the motion to proceed. I said at the time that while I supported some reform of class action procedures, I could not support S. 1751 in its current form. I also expressed concern about whether there would be any meaningful opportunity for interested Senators to negotiate changes to the bill in a bipartisan fashion. Subsequent to the vote in October, I joined with three of my colleagues in sending a letter to the majority leader on November 14, 2003. In that letter, we reiterated our interest in class action reform and we outlined several areas where we believed revisions to S. 1751 were in order. In November, Senators Landrieu, Schumer, and I entered into discussions with Senators Frist, Hatch, Grassley, Kohl, and Carper. Those discussions have resulted in a compromise agreed to by our eight offices that I believe significantly improves upon S. 1751. I ask that the text of that compromise to printed in the Record immediately following my statement. I also ask that a summary of the compromise produced by my office be printed following my statement. Lastly, Mr. President, I want to point out that in my view this is a delicate compromise, which addresses the shortcomings of current class action practice while at the same time protecting the right of citizens to join with fellow citizens to seek the redress of grievances in the courts of our Nation. As I and my colleagues said in our letter of November 14, it is ``critical'' that this agreement ``be honored as the bill moves forward--both in and beyond the Senate.'' The material follows.

Mr. DODD

Mr. DODD. Lastly, Mr. President, I want to point out that in my view this is a delicate compromise, which addresses the shortcomings of current class action practice while at the same time protecting the right of citizens to join with fellow citizens to seek the redress of grievances in the courts of our Nation. As I and my colleagues said in our letter of November 14th, it is ``critical'' that this agreement ``be honored as the bill moves forward--both in and beyond the Senate.'' exhibit 1 Summary of Changes to S. 1751 as Agreed to by Senators Frist, Grassley, Hatch, Kohl, Carper, Dodd, Landrieu, and Schumer The Compromise Improves Coupon Settlement Procedures S. 1751 would have continued to allow coupon settlements even though only a small percentage of coupons are actually redeemed by class members in many cases. The compromise proposal requires that attorneys fees be based either on (a) the proportionate value of coupons actually redeemed by class members or (b) the hours actually billed in prosecuting the class action. The compromise proposal also adds a provision permitting federal courts to require that settlement agreements provide for charitable distribution of unclaimed coupon values. The Compromise Eliminates the So-Called Bounty Prohibition in

Mr. DODD. Mr. President, I rise today to briefly discuss legislation to reform the rules governing class litigation. In October of this year, the majority leader sought to proceed to the Class Action Fairness Act, S. 1751. I joined forty of my colleagues in opposing the motion to proceed. I said at the time that while I supported some reform of class action procedures, I could not support S. 1751 in its current form. I also expressed concern about whether there would be any meaningful opportunity for interested Senators to negotiate changes to the bill in a bipartisan fashion. Subsequent to the vote in October, I joined with three of my colleagues in sending a letter to the majority leader on November 14, 2003. In that letter, we reiterated our interest in class action reform and we outlined several areas where we believed revisions to S. 1751 were in order. In November, Senators Landrieu, Schumer and I entered into discussions with Senators Frist, Hatch, Grassley, Kohl, and Carper. Those discussions have resulted in a compromise agreed to by our eight offices that I believe significantly improves upon S. 1751. I also ask unanimous consent that a summary of the compromise produced by my office be printed in the Record.

Mr. DODD

Mr. DODD. Mr. President, I rise today to introduce important legislation designed to ensure that corporate wrongdoers are held fully responsible for their illegal actions and that investors are given fair compensation for such actions. As most of my colleagues are aware, in April of this year, 10 large securities firms agreed to pay a total of $1.4 billion in fines and payments for giving their investment clients tainted and misleading advice--advice which cost those clients hundreds of millions of dollars. The ``global settlement'' was initially lauded as a historic victory against corporate wrongdoers. And indeed, thanks to the efforts of Federal and State securities regulators, and New York State Attorney General Eliot Spitzer, the settlement has the potential to fundamentally change pervasive business practices that were so harmful to so many. But the settlement's impact could be significantly weakened by a loophole that would allow the firms to avoid paying taxes on nearly $900 million of the penalties--by deducting them as standard business costs. Only one-third of the total settlement is specifically prohibited by law from being tax-deductible. If the firms are able to write off the remainder of the costs as business expenses, then the total price tag of the settlement will be much smaller than advertised. However, there is much more at stake. America's financial markets are the most vibrant in the world for one reason--investor confidence. The securities laws of the 1930's built the foundation for the deepest, most liquid markets in the world. They have created a public trust in our markets among investors worldwide who know that we have a zero- tolerance policy towards corporate malfeasance. If we allow firms to write off fines as the cost of doing business, then we will perpetuate the idea that fraud is no longer a crime, but an accepted business practice. And we will compromise the very principles on which our markets are based--credibility, honesty, and responsibility. We need to send the strongest possible message to corporate America that defrauding people of their life savings can never, under any circumstances, be considered ``business as usual.'' Our tax code should not reward these practices--it should discourage and punish them, to the greatest extent possible. Otherwise, the victims of corporate misconduct will include not only individual investors, but the credibility of our capital markets. And if our markets suffer, so will America's place in the world economy. That is why I rise today to introduce my legislation. This legislation takes two important steps towards fixing this problem. First, it expressly prohibits any tax deduction on payments for violations of securities laws, including those required by the global settlement. Second, it directs all of the tax revenues gained from those payments into existing funds administered by the Securities and Exchange Commission which repay money to defrauded investors. Under my bill, the perpetrators of corporate misdeeds will be fairly punished, and the victims will be fairly compensated. Everyone agrees that restoring investor confidence is a crucial part of getting our economy back on the right track. The vitality of 10 largest securities firms represent an important piece of this puzzle. But Americans will only be willing to entrust them with their hard- earned money if they can be sure that they are being dealt with ethically and honestly. The global settlement represents a tremendous opportunity to help mend the tattered relationship between corporate America and the American people. We can't afford to lose that opportunity in a tax loophole. We need to show Americans that corporate fraud is a real crime--not business as usual. I urge my colleagues to support this bill.

Mr. DODD

Mr. DODD. Mr. President, I rise in tribute to Philip J. Shannon, of Norwich, CT, passed away on Tuesday, November 11, 2003, at the age of 85. Philip was a dedicated public servant, a loyal Democrat, and above all, a good friend. He was a Norwich native who would dedicate much of his life to serving the people of his hometown. He graduated from St. Patrick's School and the Norwich Free Academy. Like so many in Norwich and across the State of Connecticut, he would go on to work in the manufacturing industry as a machinist at Pratt and Whitney and as a partner at the Norwich Machine and Tool Company. During his decades of work as a public official in Norwich, Philip was never one to stay silent on any issue that he felt was important to the citizens of that city. That approach won him many allies, and it certainly earned him his share of critics. But everyone admired the passion and the dedication that Philip Shannon brought to his many years of public service. He helped spearhead a series of important local projects, including the Norwich Golf Course and development along route 82. He also had the foresight to successfully campaign against selling the city's public utilities department to a private corporation. The decision to keep the department ultimately made the city more money than it would have received from the sale. Those are only a few of Philip Shannon's many accomplishments. In the words of Bill Stanley, a former State Senator, ``he did more for Norwich than anyone will ever know.'' His work on behalf of the Democratic Party in Norwich was so tireless that he became known as ``Mr. Democrat.'' He served as Democratic town chairman for 20 years and represented Connecticut's 19th District on the Democratic State Central Committee. In his role as a party leader, he recruited numerous candidates who went on to hold local and State offices. Philip was as good to his friends as he was to the Democratic Party. He was a longtime friend of my father, and I will never forget how he supported me when I first ran for the Senate back in 1980. Norwich is a better place today because of the efforts of Philip Shannon. He will be greatly missed, both by the people he served and by everyone who knew and loved him. I offer my most heartfelt sympathies to Philip's wife Cresencia, his four children, six grandchildren, three great-grandchildren, and his entire family.

Mr. DODD

Mr. DODD. Mr. President, in the limited time we have I would like to go back over and reiterate some points. In the very first instance, looking at the Medicare portion of this bill, right off the bat there are almost 9 million seniors who are going to be disadvantaged by this legislation. Almost one-quarter of the 41 million seniors who benefit from Medicare are going to be disadvantaged by this bill. There are 2.7 million seniors, according to the Congressional Budget Office, who are going to lose health benefits currently offered by their former employer. In my State, that is 40,000 people right off the bat. Those are CBO numbers; those are not mine, not made up by the minority. Second, 6.4 million low-income seniors will have to pay more for the drugs they need. In my State, that is 74,000 people. The combined numbers are 9 million people, before anything else happens, who are going to be disadvantaged. This is a fact. If you are on Medicare and Medicaid you currently don't have to have a copay when it comes to prescription drugs. Now, under this bill, you will. It may not seem like a lot to people, but if you are making $13,470 or less than that, believe me, even a slight increase in these drug costs can be very harmful. That is just a fact. Let me say to my friend from Iowa, I have respect for him and I admire his tenacity and his tremendous effort on behalf of this bill. I say to my friend, $13,470 is not a lot of money for Americans, and if you make $13,471, you are going to pay $420 in premiums, a $250 deductible, and you have to pay 25 percent of the cost of your prescription drugs. If you make $13,471, that is what you are going to be burdened with. I appreciate the fact that the very low income get some help, but I do not know anyone in this country who thinks $13,471 is a lot of money. But if you hit that number, then you are going to pay those kinds of costs, and that is going to be tremendously burdensome to many people. Second, of course, if you look at chart 2 quickly here, you will see that this bill creates an unlevel playing field. We are told about free competition and choice. But the fact is, under this bill private plans get a 9 percent higher reimbursement than the Medicare plan, and they get $12 billion. If you have two competitors trying to appeal to a consumer and one side gets a 9 percent increase in reimbursement rates, plus $12 billion to help them get into the market, I don't know how you call that a level playing field. That is not level at all, in my view. If we examine the so-called premium support demonstration programs, seniors effected by this experiment are going to be put in situations where they have less choice. If you end up being pushed into a private plan--and you can be under this bill--then your ability to choose your own doctor is gone. Talk about choice, there is no more fundamental choice to most Americans than the right to choose the physician who will take care of you, particularly for a senior. But under this legislation, if you are pushed into those plans, you lose the right to make that choice, the opportunity to choose your own doctor. I hardly consider that a step forward or an improvement in the Medicare system. It is a major setback. With regard to prescription drug costs, this issue has been made very clear by the Senator from Florida. I commend him for it. We are not saying in this legislation that you can go out, as the VA does, and consolidate your membership and then negotiate for prices. As the Senator from Florida pointed out, in the case of a couple that has been married for many years, the price of a drug for the husband, who is a veteran who served in Korea and World War II, is going to be substantially less than the price of the same drug for his wife, who wasn't a veteran. How can you explain that to a couple? Why can we not do with Medicare what we do with the VA? It is a logical choice. This bill prohibits that from happening. I don't understand, for the life of me, why we are endorsing a proposal that doesn't allow the collective buying power of 41 million Americans to go out and lower the cost of prescription drugs. Yet this legislation would prohibit us from doing that. When you look at those issues in this proposal, again I say to my friends who have crafted the prescription drug benefit, there are certainly stated advantages of moving forward with something here. But as the lead editorial in my State newspaper pointed out the other day, we can do a lot better with this legislation. It says: They deserve better than scrambled eggs that Congress, AARP, and other special interests want to dish out in the guise of ``reform.'' The centerpiece of this faux reform is prescription drug coverage. Here is the math: A beneficiary who has prescription drug bills totaling $2,250 a year would have to pay premiums of $420, a deductible of $250 and 25 percent of the cost of medicine. For someone in that category, that adds up to $1,252 out of pocket in their bills. Once the beneficiary's drugs reach $2,250, then they will have to pay the entire bill up to $3,600. Again, I realize you can't take care of everyone here, but that is a tremendous disadvantage. I ask unanimous consent that the editorial from the Hartford Courant be printed in the Record.

Mr. DODD. Mr. President, I urge our colleagues to reject this bill and come back in January and rework it. Forty-one million Americans deserve a lot better than this bill is going to give them.

Mr. DODD

Mr. DODD. Mr. President, I rise today, with my colleague from New Jersey, to introduce a measure that is critical to improving the investing public's faith in our capital markets. This legislation, the ``Mutual Fund Investor Confidence Restoration Act'' will fundamentally strengthen protections for the millions of investors who rely on mutual funds for their financial security. America is the land of opportunity. Millions of Americans and countless others around the world seek the opportunity to participate in the economic life of our nation. Mutual funds are a principal pathway through which most investors achieve financial security. Mutual funds have in the past not only lived up to, but in many cases exceeded, the grand expectations of investors. They are a true success story of our securities markets and our system of securities regulation. However, in recent months, a series of revelations has shaken investor confidence in the promise of mutual funds. We must restore the faith of investors in mutual funds and those who manage them. This legislation is designed to address some of the abuses and shortcomings which have received so much recent attention. There are five broad areas which this legislation addresses: corporate governance, disclosures to investors, late trading and market timing, increased regulatory oversight, and financial literacy. This legislation significantly improves corporate governance standards at mutual funds. Investors have begun to lose faith that their hard earned savings are not being managed with their best interests in mind. Mutual fund boards must have greater independence from fund managers and be more accountable to shareholders of the fund. Directors and chairmen must exercise greater oversight to ensure that funds are run in the interest of their shareholders--and be accountable to shareholders for failing to do so. Additionally, this legislation directs the SEC to determine whether directors and chairmen need additional tools to carry out that job. This legislation mandates that corporate governance requirements created in the Sarbanes-Oxley Act, such as director independence requirements, financial expertise, and certification measures apply to mutual funds. Of particular note, this legislation mandates that funds employ a chief compliance officer to ensure that internal controls, policies and procedures are met by the fund in the interest of shareholders. We need to improve the disclosures to investors about the fees and costs associated with mutual funds. Current disclosures are inadequate in providing investors the information necessary to understand the true costs of investing through mutual funds. The current expense ratio by no means includes all of the fund's expenses. This legislation requires that currently unaccounted for expenses, such as brokerage commissions, advertising fees and research costs, among others, are fully disclosed. Additionally, the legislation requires the breakout of these respective costs to be displayed as a graph provided to shareholders that will enable them to compare the costs associated with owning shares of different mutual funds. The ability to compare the total costs of mutual funds with each other will drive competition and lower costs for investors. Investors deserve to know if their broker has a financial incentive to steer them into particular mutual funds. This legislation mandates greater disclosure of financial incentives provided to intermediaries and requires fund companies and investment advisers to fully disclose certain sales practices, including revenue-sharing and directed brokerage arrangements and disclose the value of research and other services paid for as part of brokerage commissions. The recent abuses that we have seen with respect to late trading and market timing must be stopped to restore investors faith in mutual funds. Insider dealings at mutual funds must never recur. Fund insiders must be prohibited from trading against their own shareholders' interest. Neither fund insiders nor preferred customers must enjoy privileges like market timing that are denied to the millions of average mutual fund investors. Late trading is already illegal, but we now know it isn't isolated. The system for prohibiting late trading in mutual funds must be strengthened, so all mutual fund investors are treated fairly. This legislation creates new requirements for intermediaries and funds to ensure that illegal late trading activities are stopped. As a result of the recent widespread scandals in this area, we must rededicate our regulatory oversight of the mutual fund industry. Due to the tremendous size of mutual funds and how critical of an investment tool they are to small investors, this legislation directs the General Accounting Office to consider the value of creating a new self regulatory body and/or independent regulator for mutual fund oversight. Lastly, this legislation calls for improved efforts to promote financial literacy among mutual fund shareholders. Ensuring that investors have the resources available to them to understand the benefits and costs of mutual funds is a fundamental importance. The Mutual Fund Investor Confidence Restoration Act is an important step in the right direction of restoring the integrity of the mutual fund industry and will greatly improve the basic protections given to investors who rely upon these investment vehicles for their economic security.

Mr. DODD

Mr. DODD. Mr. President, I rise today, with my colleague from New Jersey, to introduce a measure that is critical to improving the investing public's faith in our capital markets. This legislation, the ``Mutual Fund Investor Confidence Restoration Act'' will fundamentally strengthen protections for the millions of investors who rely on mutual funds for their financial security. America is the land of opportunity. Millions of Americans and countless others around the world seek the opportunity to participate in the economic life of our nation. Mutual funds are a principal pathway through which most investors achieve financial security. Mutual funds have in the past not only lived up to, but in many cases exceeded, the grand expectations of investors. They are a true success story of our securities markets and our system of securities regulation. However, in recent months, a series of revelations has shaken investor confidence in the promise of mutual funds. We must restore the faith of investors in mutual funds and those who manage them. This legislation is designed to address some of the abuses and shortcomings which have received so much recent attention. There are five broad areas which this legislation addresses: corporate governance, disclosures to investors, late trading and market timing, increased regulatory oversight, and financial literacy. This legislation significantly improves corporate governance standards at mutual funds. Investors have begun to lose faith that their hard earned savings are not being managed with their best interests in mind. Mutual fund boards must have greater independence from fund managers and be more accountable to shareholders of the fund. Directors and chairmen must exercise greater oversight to ensure that funds are run in the interest of their shareholders--and be accountable to shareholders for failing to do so. Additionally, this legislation directs the SEC to determine whether directors and chairmen need additional tools to carry out that job. This legislation mandates that corporate governance requirements created in the Sarbanes-Oxley Act, such as director independence requirements, financial expertise, and certification measures apply to mutual funds. Of particular note, this legislation mandates that funds employ a chief compliance officer to ensure that internal controls, policies and procedures are met by the fund in the interest of shareholders. We need to improve the disclosures to investors about the fees and costs associated with mutual funds. Current disclosures are inadequate in providing investors the information necessary to understand the true costs of investing through mutual funds. The current expense ratio by no means includes all of the fund's expenses. This legislation requires that currently unaccounted for expenses, such as brokerage commissions, advertising fees and research costs, among others, are fully disclosed. Additionally, the legislation requires the breakout of these respective costs to be displayed as a graph provided to shareholders that will enable them to compare the costs associated with owning shares of different mutual funds. The ability to compare the total costs of mutual funds with each other will drive competition and lower costs for investors. Investors deserve to know if their broker has a financial incentive to steer them into particular mutual funds. This legislation mandates greater disclosure of financial incentives provided to intermediaries and requires fund companies and investment advisers to fully disclose certain sales practices, including revenue-sharing and directed brokerage arrangements and disclose the value of research and other services paid for as part of brokerage commissions. The recent abuses that we have seen with respect to late trading and market timing must be stopped to restore investors faith in mutual funds. Insider dealings at mutual funds must never recur. Fund insiders must be prohibited from trading against their own shareholders' interest. Neither fund insiders nor preferred customers must enjoy privileges like market timing that are denied to the millions of average mutual fund investors. Late trading is already illegal, but we now know it isn't isolated. The system for prohibiting late trading in mutual funds must be strengthened, so all mutual fund investors are treated fairly. This legislation creates new requirements for intermediaries and funds to ensure that illegal late trading activities are stopped. As a result of the recent widespread scandals in this area, we must rededicate our regulatory oversight of the mutual fund industry. Due to the tremendous size of mutual funds and how critical of an investment tool they are to small investors, this legislation directs the General Accounting Office to consider the value of creating a new self regulatory body and/or independent regulator for mutual fund oversight. Lastly, this legislation calls for improved efforts to promote financial literacy among mutual fund shareholders. Ensuring that investors have the resources available to them to understand the benefits and costs of mutual funds is a fundamental importance. The Mutual Fund Investor Confidence Restoration Act is an important step in the right direction of restoring the integrity of the mutual fund industry and will greatly improve the basic protections given to investors who rely upon these investment vehicles for their economic security.

Mr. DODD. Mr. President, I rise today to introduce important legislation designed to ensure that corporate wrongdoers are held fully responsible for their illegal actions and that investors are given fair compensation for such actions. As most of my colleagues are aware, in April of this year, 10 large securities firms agreed to pay a total of $1.4 billion in fines and payments for giving their investment clients tainted and misleading advice--advice which cost those clients hundreds of millions of dollars. The ``global settlement'' was initially lauded as a historic victory against corporate wrongdoers. And indeed, thanks to the efforts of Federal and State securities regulators, and New York State Attorney General Eliot Spitzer, the settlement has the potential to fundamentally change pervasive business practices that were so harmful to so many. But the settlement's impact could be significantly weakened by a loophole that would allow the firms to avoid paying taxes on nearly $900 million of the penalties--by deducting them as standard business costs. Only one-third of the total settlement is specifically prohibited by law from being tax-deductible. If the firms are able to write off the remainder of the costs as business expenses, then the total price tag of the settlement will be much smaller than advertised. However, there is much more at stake. America's financial markets are the most vibrant in the world for one reason--investor confidence. The securities laws of the 1930's built the foundation for the deepest, most liquid markets in the world. They have created a public trust in our markets among investors worldwide who know that we have a zero- tolerance policy towards corporate malfeasance. If we allow firms to write off fines as the cost of doing business, then we will perpetuate the idea that fraud is no longer a crime, but an accepted business practice. And we will compromise the very principles on which our markets are based--credibility, honesty, and responsibility. We need to send the strongest possible message to corporate America that defrauding people of their life savings can never, under any circumstances, be considered ``business as usual.'' Our tax code should not reward these practices--it should discourage and punish them, to the greatest extent possible. Otherwise, the victims of corporate misconduct will include not only individual investors, but the credibility of our capital markets. And if our markets suffer, so will America's place in the world economy. That is why I rise today to introduce my legislation. This legislation takes two important steps towards fixing this problem. First, it expressly prohibits any tax deduction on payments for violations of securities laws, including those required by the global settlement. Second, it directs all of the tax revenues gained from those payments into existing funds administered by the Securities and Exchange Commission which repay money to defrauded investors. Under my bill, the perpetrators of corporate misdeeds will be fairly punished, and the victims will be fairly compensated. Everyone agrees that restoring investor confidence is a crucial part of getting our economy back on the right track. The vitality of 10 largest securities firms represent an important piece of this puzzle. But Americans will only be willing to entrust them with their hard- earned money if they can be sure that they are being dealt with ethically and honestly. The global settlement represents a tremendous opportunity to help mend the tattered relationship between corporate America and the American people. We can't afford to lose that opportunity in a tax loophole. We need to show Americans that corporate fraud is a real crime--not business as usual. I urge my colleagues to support this bill.

Mr. DODD

Mr. DODD. Madam President, let me first of all commend my colleague from New Jersey for a very fine statement on the pending matter, the Medicare bill. I intend to take some time to speak on the same matter and then I plan to yield my remaining time to the Democratic leader for his purposes. This is the third time I have spoken on this matter since last Friday. We are now in a situation, I am sure people are aware, where we have had a cloture motion which was approved earlier today. We then considered a point of order which was not sustained, and as a result our efforts to try to use a procedural move short of final passage have been, I gather, exhausted. So we are down now to the question of whether or not we ought to vote for this bill at this juncture or whether or not people will come to the conclusion there are enough flaws in the pending matter that we ought to take some additional time to review it before it becomes the law of the land. Before I get into some discussion of the substance of the bill, I will take a minute or so and talk about the process of law. Putting aside the matter before the Senate, which has obviously been contentious, I am very worried about how we are doing our work in this institution--not just this body but the legislative branch in general. I will have served, at the end of this term, some 30 years in the Congress, 6 years in the other body and 24 years in the Senate. I have enjoyed serving in this fine institution and watched it carefully over the years. In that time, I have noticed that there are ebbs and flows in how the institution functions and operates. There have been periods affectionately referred to as the golden age of the Senate and other times when they have been less than golden. I will not use language to describe what others have used to describe the less than golden periods of the Senate. I am very worried about how we are proceeding at this time with the underlying measure. It is so important in these institutions that we not only just be concerned about what we accomplish but how we go about working toward these accomplishments. The Founding Fathers of this country were very concerned about that. If they were looking for efficiencies of systems, if they were looking for a process that would guarantee quick results overnight, this is certainly the last system they would have constructed. Particularly in this institution, the Senate, the rights of a minority are paramount. We have always said in the other body, the House Chamber, the rights of the majority should prevail. And the Founders, in their wisdom then, in the creation of the Senate, emphasized the rights of a minority. In so doing, they wanted to guarantee that matters would be thoughtfully deliberated. I am very worried, over these last number of months, including the bill presently before the Senate, that we are not devoting the time necessary for deliberate consideration of matters before this body. In fact, I was stunned to just learn that when conferees were named on the Medicare bill before us--and for those who are not students of this institution or follow the Congress on a regular basis, when the Senate passes a bill, and the House passes a bill, invariably, with some exceptions, there are differences. So this body, the Senate, will appoint conferees, representatives of this body--usually from the committees of jurisdiction over the legislation--to meet with conferees of the other body, usually coming from their committees of jurisdiction. And those two smaller groups then meet to resolve the differences between the two bills. Over the years, of course, many conferences have been lengthy, many have been contentious, particularly those involving difficult matters, but it is the nature of the institution, learned over our 220-year experience that it is in the tension of debate that some of the best ideas emerge, when there is full expression of the views of the American public in those meetings, when people of different persuasions and ideologies come together and work to resolve their differences. What I find stunning is that it has become popular, in recent days, to have conferees named and then have conferees excluded from meeting in these conference committees. That is exactly what happened here with the measure presently before us. Whether you are a Republican or Democrat, liberal, conservative, or moderate, you ought to be deeply concerned if this becomes the precedent, the operating standard procedure, that when bills are passed and conferees are named, then people are excluded from meeting to try to resolve their differences. I can only suspect, Mr. President, that most Americans are not aware that this 675-page bill, the Medicare reform bill, was crafted by only Republican Members of the House of Representatives. There was not a single Democratic Member of the House of Representatives from the Ways and Means Committee included in the room to write this bill--not one-- despite the fact that the House is controlled by Republicans by only a small majority. Yet not one member of the minority party of the House of Representatives was brought into the room to sit down when the conferees met to resolve their differences on this bill. And out of this body, only two conferees from the minority side were included, despite the fact that only one Member separates us. Senator Daschle and Senator Rockefeller, duly appointed as conferees, were excluded from meeting. In fact, Senator Daschle, the Democratic Leader of the Senate, was excluded from the conference on this important measure. To say to the Democratic leader, the minority leader of the Senate, and to Senator Rockefeller, two senior members of the Senate Finance Committee: You are not allowed to come into the room to help draft a piece of legislation dealing with 41 million Americans, Medicare beneficiaries, to frame a prescription drug benefit. I am stunned, Mr. President, that a 675-page bill, on as an important a matter as the healthcare of nearly 41 million elderly Americans, that not a single Democratic Member of the House, and only two members of the Senate Finance Committee already supportive of this bill could meet to craft the bill before us. I find it breathtaking that the process was so flawed in the development of this bill that Members of our own respective Chambers were not allowed to come in and work to resolve differences on matters as important as this. Then, in the House of Representatives on Friday evening and well into Saturday morning, when the vote was being cast on the final passage of this bill, we witnessed a historic moment as the House held open for almost three full hours--the longest recorded vote in the body's history--a vote that was supposed to take 15 minutes to pass this bill. The Presiding Officer said: There will now be 15 minutes to record your votes by electronic device. Having served in the House of Representatives when electronic balloting came into place, I heard that message over and over again: Members will have 15 minutes in which time they can record their ballots by electronic device. And almost 3 hours later, that ``15 minutes'' elapsed, as every possible bit of arm twisting, every possible maneuver you could make to change the outcome of that vote transpired. I believe that this vote constitutes one of the worst moments I can think of in the conduct of the House of Representatives. Then, when several other members of the minority decided they would change their votes in light of the arm twisting and in light of the final outcome, the gavel came down within a nanosecond, and the traditional opportunity given to Members to change their votes before a final vote is recorded was denied them. I am stunned as I watch a process around here so deteriorated that it has come to this. And I say to my friends on the other side: Beware. The wheel does turn. The day will come when we will be in the majority. And in the House that will happen as well. Changes in leadership have occurred throughout our history and they will continue to occur. What sort of precedent are we setting if this is how we conduct our business? Then, last Thursday, late in the afternoon, those of us who were excluded from having Members who represent our views work on this conference report, were delivered this 675-page document. Suffice it to say, there is not a Member here who has read this in its entirety, nor could they possibly understand it even if they tried to, since last Thursday. Yet we have just voted on several procedural motions here to say that within a matter of hours, we are now going to adopt this historic piece of legislation without fully, in my view, understanding the implications of what is actually contained in the bill. Mr. President, a bill of 675 pages, delivered just last Thursday, and here it is, Monday at 6 p.m., and we find ourselves only a few hours away from deciding the fate of 41 million Medicare beneficiaries and coming generations of them as to whether or not they will have the incredible safety net the Medicare Program has provided for 38 years. These process questions cannot go unnoticed, Mr. President. And while we talk about the implications of what we are told is in this bill, I am deeply troubled that the shutting out entirely of Democratic Members of the House, the denial of the Democratic leader of the Senate, along with Senator Rockefeller, the ability to meet and discuss this bill and its full implications. Further troubling then to witness a 3 hour vote in the House of Representatives in the middle of the night, under the guise that we must get this done. As my colleagues know full well, this is the end of a session, not the end of a Congress, and to not take a few more weeks to analyze what we are doing with this bill, to see if there is not some compromise that can be reached, when you consider the great implications of this bill, I think is a sad commentary on the condition of the Congress. I have been here for a quarter of a century, and I do not recall a time like this in my 24 years where we have come to this. So beware. Beware, America. Beware, America, of what happens when this process breaks down, as it has here with this bill. Beware, America, when you have a bill of this magnitude and size passed in the wee hours of the morning in one Chamber, and rushed through the other in a matter of hours of debate and discussion--more a litany of speeches than any real debate. Beware, when almost one-half of the entire Congress is excluded from sitting and working on a product as important as this. There is something wrong when that happens, Mr. President. I don't care what your politics are; I do not care what your ideology is. Beware, Americans, when you find out other voices are denied being heard. It is the critical quotient, the critical element of what constitutes this democracy: the importance of debate and discussion, the tension the debate brings, and the ultimate improved product that occurs when that happens in America. When other voices are not heard, when other ideas are not brought to the table, then we all suffer. That is what has happened in the construct, if you will, of this legislative package. Let me take a few minutes, if I may, and try to share with my colleagues what I believe is included in this bill. I have talked about it to some degree already, and I know, in a sense, why we are being called on to do this as rapidly as we are. Because based on the time I have spent going over this bill, and looking at it, and others who are more knowledgeable than I am about health care issues, who have dedicated almost their entire careers to examining these issues, I would say one of the reasons this is being pushed through as rapidly as it is, is there is a lot in this bill that the more you know about it, the less you would like it, and the more opposition would grow to its passage. The more people are aware of what is included in these 675 pages, the greater concern they ought to have. There are those who have never liked the Medicare program, who fought against its very creation 38 years ago, and since then have been seeking an opportunity to undo it. Congratulations to them. Congratulations to them because I think, in effect, they have achieved that result with what I think is going to happen in a few hours; that is, the adoption in the Senate of this particular package, the approval already in the House and the likelihood, of course, that the President is going to sign this into law. Then I would tell America, as you get to know this bill, you will come to have greater and greater concerns about it. Let me explain why I think that is the case. We have all been talking about--certainly this side of the aisle has--the great need for a prescription drug benefit for years. However, I have reservations about the prescription drug benefit contained in this bill. Under this bill, 2.7 million retirees are going to lose their existing drug benefit package--2.7 million of the 41 million Medicare beneficiaries. While some might say that doesn't amount to much, when combined with the other millions of seniors who are going to have their premiums increased, and possibly their benefits reduced if this bill is to pass, you begin to realize how troubling this bill is. That is literally what is going to happen under this bill. 2.7 million retirees are going to lose their present prescription drug coverage. Why? Because they presently are covered under plans offered by their previous employers. They have retired and yet they carry with them those plans. The estimates are that 2.5 million retirees are going to lose coverage because their employers are going to drop those plans if the benefit under this bill is enacted. In my State, just to put it in local terms, this will mean that 39,000 people in Connecticut who fall into that category will lose their present drug coverage. In Connecticut there are approximately 515,000 people who are of retirement age, and of that number, I am going to have 39,000 who are going to be dropped from their prescription drug coverage. Further troubling, I am then going to have 74,000 Medicare beneficiaries in my state of Connecticut, and 6.4 million nationwide, who are going to lose as well under this bill. What happens to these people? These are seniors with severely limited incomes, making them eligible for both Medicare and Medicaid. These senior citizens are going to face less access to and higher prices for the drugs they need due to this conference agreement requiring drug co-payments and the creation of an assets test. I have heard Members say that the price increases these low income seniors will face are not that significant. Well, it isn't much, if you make $158,000 a year as a Senator. A few bucks a month amounts to nothing. But if you are a person making $13,000 a year or less, as these people do, and you are on Medicaid and Medicare and you are working each month trying to pay a mortgage, to put food on the table, to pay for the other essential needs you have, then believe me, these cost increases are terribly hard to bear. We in this body do not have such worries because we have such a great health care program. Members of Congress enjoy a fabulous healthcare plan. We offer nothing like that to the rest of the American public so we don't quite understand what other people go through in many ways. Taken together--those losing their present prescription drug coverage and those low-income beneficiaries facing increased costs--you have one fourth of all Medicare beneficiaries negatively effected by this bill. Those are, to begin with, some of the concerns we have with what happens to close to 9 million of this nation's nearly 41 million retirees. Now let me move to address some of the other issues of concern in this bill. While others have already talked about the prescription drug benefit portion of this bill at length, I want to point out that I am worried about certain aspects of this portion of the bill which will present real problems for our seniors. Under the proposed prescription drug benefit, this bill before us contains a gap in coverage, the so- called donut hole. The donut hole is nearly $2,800, twice the size of the one we adopted when this bill was adopted by the Senate back a number of months ago. Under the conference report, Medicare beneficiaries with costs within this so-called donut hole will be forced to pay for the full cost of their prescribed medicines as well as a monthly premium of an estimated $35. This will mean that when your prescription drug spending falls within this coverage gap that you will receive absolutely no assistance purchasing your prescribed medicines under this bill. To add insult to injury, you're still on the hook for the monthly premiums while receiving no assistance affording your needed medicines. Also troubling, Mr. President, is the notion of the monthly premium of an estimated $35. Under this conference agreement, if you end up having only one private plan providing the drug coverage in your area, these plans could charge whatever they want, because the lack of a another competing plan. The $35 figure often cited is not a cap; it is the estimate of what the average may be. There is nothing in this bill that prohibits one of those private plans from charging whatever they want in that area. You would end up being forced to charge whatever these plans determine is their price or not having any drug coverage at all. Despite all of the problems with the prescription drug benefit portion of this package, even with the concerns I have outlined, I would have supported this portion of the bill if it stood alone as I believe it offers a first--though not nearly complete--first step toward adding a prescription drug plan under the Medicare program. I think the idea of doing something in this area made some sense. I would have, even with these bad features, supported this legislation in the hopes that in the coming years we could have modified it and changed it. But something that few people want to talk about on the other side of the package before us are the structural reforms of Medicare contained in this bill. The conference report we are considering today is not just about prescription drugs. It has a second, much more troubling part. It is over this part that most of us who are expressing our strong objections to this bill have found concern. It is this part of the bill that gives us all pause because it is no less, in our view, than an attempt to end Medicare, certainly as we have known it over these past 38 years. I tell America to watch carefully. This is the part on which you want to focus. The more you read about it, the more you will draw the same conclusion as those of us who are strenuously fighting adoption of this bill. It is an attempt to force seniors into private plans, producing billions in profits for HMOs but denying seniors access to the benefits to which they have become accustomed and the doctors they trust. This bill provides a $12 billion subsidy to the private companies and a 9-percent kicker, in effect, to make sure the competition called for by this bill is rigged in such a way that they cannot possibly lose in that competition. The supporters of the bill will tell you it is not forcing seniors out of traditional Medicare. They claim they are creating competition and, as a result, offering seniors a choice. Let's talk about the so-called competition in this bill and what it would create. Private plans under this conference report will be reimbursed at a higher rate than traditional Medicare--9 percent higher to be exact. How does Medicare compete when you have a 9-percent higher reimbursement for the private insurance plans they are supposed to be competing against? What kind of a competition is that, when all of a sudden you get a 9-percent higher reimbursement rate and claim to have a level playing field? Additionally, this bill makes available $12 billion to be used to lure private plans into the marketplace. If it is going to be a competition, let it be a competition--but we are going to stick $12 billion into the pockets of the HMOs, give them a 9-percent higher reimbursement rate, and say to Medicare: Go out and compete. That is like tying both hands behind their back and tying their legs together and then saying go run a race. A 9-percent higher reimbursement rate and $12 billion to lure private plans into the market amounts to the inclusion of a corporate subsidy in this bill of major significance. Under this plan, private plans can design their benefits to attract certain beneficiaries, and that is a critical piece. These private plans can design them to attract wealthier, healthier Medicare beneficiaries. In the beginning, one of the magnificent features of Medicare was that we didn't discriminate based on wealth or illness. We said if you reach the age of 65, we are going to provide a safety net for you. The idea was that regardless of whether or not you are healthy, sicker, wealthy, poor, all are together under Medicare. For the first time--and this is a major change--we are going to start to discriminate if this report is adopted. So the wealthier and healthier people are going to join plans designed by the private companies, leaving in the traditional Medicare program only the sickest and the poorest beneficiaries. When this happens, the premium costs are going to go up and for these seniors, and when they do, they are going to face higher costs and reduced benefits. I don't know what other conclusion you can draw. You cannot accept the notion that we are creating a level playing field. It is not a balanced competition if I provide you a 9-percent higher reimbursement rate than Medicare gets and I then give you an additional $12 billion to lure you into the market. It is just not. America, pay attention. If you are, today, in the Medicare Program, you could end up watching this program be radically changed. So you end up paying higher premiums and watching your benefits be cut and watching only the poorest of the poor or the very sick be left in a program, as these designer programs created by the private plans will find ways of causing the healthier and wealthier to desert traditional Medicare. This is not a fair competition. It is a rigged game. This bill stacks the deck against traditional Medicare. The effects are self-perpetuating. Traditional Medicare will grow weaker and private plans will grow stronger, forcing more beneficiaries out of the traditional program and into the arms of HMOs. It is very easy to get bogged down in the complexities of this bill. So let me state very simply that the weakening of the traditional Medicare caused by this 675-page bill is going to force seniors to pay more and face the prospects of fewer benefits. Ironically, this bill will mean less choice for seniors. One of the things we are being told is there is going to be a lot more choice under this agreement. One of the great features of Medicare is that you get to choose your doctor. I don't know a single American who doesn't like that feature, who doesn't appreciate the opportunity they have to choose which physician they want to have treat them. Under this 675- page bill, that is over with for many seniors. That fact alone ought to cause people to pause. Why? Why would you deny people the choice of which doctor they use, someone they may have dealt with for years? That choice is gone with this bill. America, pay attention. It is gone. If this bill gets adopted in the next few hours, that is gone. That is not choice at all. Nothing would make me happier than to find out these predictions are wrong, but they are not. I truly hope seniors can retain the choice that they already have and that traditional Medicare survives. Let me explain briefly why I get as passionate as I do about these issues, Mr. President. When the Medicare+Choice Program was created and these private plans first came to our communities, many offering zero premiums. People joined in droves, jumped from traditional Medicare at the promise of reduced cost and increased benefits. Then, of course, once the plans looked around in certain areas and discovered there weren't quite as many wealthier, healthier people in certain areas but there were poor and sicker people, they decided--and they can do this at a moment's notice--they said: We are leaving, packing up and getting out. They did that in my State. They packed up and left. I remember going to a meeting because the senior Medicare beneficiaries I represent were so upset and concerned about these decisions to leave. I convened a town meeting in Norwich, CT. About 350, 400 people showed up, and it was on a Saturday morning. They could not believe what happened to them. One individual was so upset about his wife losing her Medicare+Choice plan--a man who served in the U.S. Navy in World War II and worked at the Electric Boat Division in Groton, CT, for many years. As he spoke passionately about what happened to his wife, being dropped from this program, in his great worry and concern about that, he passed away at this meeting. I will never forget it. It was, obviously, a stunning moment for the people there. He was so upset about what happened to him because his wife's HMO left, and she was left with nothing in terms of the promised health care coverage. He was a man by the name of Frederick Kral from eastern Connecticut. I have never forgotten that tragic incident and the deeply personal stories shared at this town meeting. I remember how people felt when these HMOs came running in and then walked away. I cannot say that will happen here. I don't know what is going to happen. We are just playing such a risky game with all of this. Why are we taking these kinds of risks on such an important issue? We should realize the tremendous damage we can do to people. I recall very well what happened when we had HMOs promise they were going to step in and provide choice and do all these wonderful things. Remember, these are companies that have to make money and they want, as their customer base, healthy people. They would like wealthier people because then they don't have to pay out as deep a benefit. When these plans discover people are not quite as wealthy and healthy, then they design plans that exclude them. My fear is that will happen here. Even more ironic is this highly unfair system is being championed by the self-proclaimed champions of free enterprise. The bill, as I mentioned, will provide $12 billion to help HMOs unfairly compete against traditional Medicare, along with a 9 percent higher reimbursement rate. It does nothing to control drug prices. If we really want to do something to promote competition under this plan, wouldn't you think we might have allowed the purchasing power of nearly 41 million Americans to achieve lower prices for prescribed medicines? That is what we allow with veterans hospitals. The veterans hospitals collectively get together and negotiate with the drug companies for the best price. If you are a veteran in the country, you get a much reduced cost of prescription drugs because the VA has negotiated these prices on your behalf. As my friend from Florida, Senator Bob Graham, so eloquently described earlier today--what do you say to two people who walk in--a husband, who is a veteran of the Korean war, who is paying one price for drugs because as a veteran the VA has negotiated a lower price, and his wife who stayed home and raised a family and maybe held down another job during that time? She is not a veteran, but she is on the same drug as her husband and she pays two, three, four times what he pays. How do you explain that to people? Why can we not do in this bill what we have done in the VA? This 675- page bill specifically prohibits the Medicare program to negotiate for lower drug prices. How is this representative of free market principles? On the other hand, we are being told that we ought to have competition between private plans and Medicare. When it comes to negotiating for lower prices for prescription drugs, this law categorically prohibits the Federal Government from doing so. It is OK for the VA, and I applaud them for doing that, but it is not OK for Medicare. Yet we are told this is supposed to provide a fair competition. The reason, of course, for all of this is simple: The champions of free enterprise know private plans cannot compete with traditional Medicare on a level playing field. The subsidies are absolutely necessary because Medicare is actually more efficient. Medicare delivers services at a lower cost. That isn't one Senator's conclusion. Those who have examined this program from top to bottom, in every different manner, say Medicare is a very efficient program. And it delivers terrific services at a much lower cost than private plans, and we are about to walk away from that with the adoption of this bill. We are going to go off now and take 41 million Americans and make them guinea pigs, despite the fact the system works. There is that old expression: If the wheel ain't broke, don't fix it. This wheel is working well--the Medicare wheel. I am afraid we can only conclude one thing: The architects of this bill are going to spend billions and billions of taxpayers' money not to reform Medicare, but to dismantle it, to push patients out so that it will, indeed, wither on the vine. I remember so well when the former Speaker of the House, Newt Gingrich, speaking in front of a group of people here in Washington, a group of lobbyists from the health care industry, talked about Medicare withering on the vine. I heard the other day Mr. Gingrich, no longer a Member of Congress, showed up at the House Republican caucus and gave a strong pitch for this bill: It is a great bill, according to the man who wanted to make Medicare wither on the vine. Either he had a great conversion on the road to Damascus, along the lines of St. Paul, or he still believes what he did a few years ago, and he is finally going to be able to achieve what he talked about doing then. I suspect it is more the latter than the former. I have seen no evidence that there has been a change of heart by Mr. Gingrich in his views about Medicare. So the individual who promised you we are going to let this tremendously-successful program wither on the vine is now applauding the fact we are going to finally achieve what he suggested a few years ago. I predict we will be back, unfortunately, at great cost to the American taxpayers and at great cost to older Americans. We will be back in this Chamber rewriting this bill. That much I will guarantee will happen. Unfortunately, we will squander billions of dollars unnecessarily. We will put a lot of people who shouldn't have to go through this, given their age and the problems they face--older Americans shouldn't have to go through the added frustrations and anxieties and wonder every day, as millions of them do, about how they are going to pay for the healthcare needs they have. They are going to have to go through this wringer because there are people around here who just never could stand Medicare and have been looking for ways to undo it since its inception. This part of this bill, these structural changes to Medicare, if they were to offered before this Chamber as a sole proposition, I don't think would get 15 or 20 votes, but because they have been linked inexorably to the prescription drug benefit, the bill will pass. As I mentioned at the outset of these remarks, the prescription drug benefit, while it is flawed, in my view, is worthy of support, despite the objections I have to certain parts of it. But it is not so good, in my view, that it ought to override the great damage to the Medicare program that will be caused by this bill. Allow me to express my concerns about another provision. The conference agreement before us today establishes the dangerous precedent of instituting so-called cost containment measures that could directly lead to service cuts in what Medicare covers and just-as- severe increases in costs to Medicare beneficiaries. Specifically, the conference report calls on the Congress and the administration to address Medicare's costs when general revenue spending on Medicare reaches 45 percent of the program's total cost. Let me read that again. Specifically, this conference report, calls on Congress and the administration to address Medicare's costs when general revenue spending on Medicare reaches 45 percent of the program's total cost. Does anyone in this Chamber know of any other Federal program that has a similar provision in it, when we pay for anything else you can think of, when 45 percent of the cost comes out of general revenues, that we must take enact cost containment measures? Only Medicare; there is no other Federal program that has similar handcuffs on it that Medicare does under this bill: It states that when you reach 45 percent coming out of general revenues, then cost containment measures must be taken. The adoption of this purely arbitrary cap will lead to almost certain erosion of this critical program's scope of coverage and affordability. It is yet another attempt of opponents of Medicare to destroy this program that so many of our senior citizens rely on every day. Today, after nearly 40 years of Medicare's inception, we find ourselves truly at a crossroads. The opportunity is before us to move Medicare toward the future without threatening its proven availability, to provide for the health and well-being of this Nation's seniors citizens. Sadly, the conference agreement represents an opportunity lost, an opportunity not only to add comprehensive coverage for prescribed medicines under the Medicare Program, but also an opportunity to strengthen the Medicare Program for future generations. So it is with a great deal of sadness that I find myself faced with this 675-page document. The entire House minority was not allowed in the room on this bill. There were secret meetings of the conference committee that crafted this agreement--I am not making this up-- clandestine meetings so no one could find out where they were meeting. Not a single representative of the minority in the House was allowed to sit in and help craft this bill affecting 41 million Americans--and all but only two members of the minority on this side were excluded as well from these deliberations. The Democratic leader, a member of the Finance Committee, was told he had no right to go to the meetings. In fact, the chairman of the committee said: If the Democratic leader shows up, then the meeting will be canceled. What kind of arrogance is that? The chosen leader of a minority of this body was told if he shows up as a member of the conference committee, the House chairman of this conference would close down the meeting and walk out. This process is broken, Mr President. How much confidence can America have in a product that in the construct of these 675 pages, minority views were almost totally excluded. I warn my colleagues, a dangerous precedent is set when a bill of this significance is crafted in the manner of the bill before us. This bill before us affects not just those who are direct recipients of Medicare. Think what Medicare has meant to the children and grandchildren of its beneficiaries. Think what costs would have had to have been borne by children trying to raise their own children while they were taking care of their parents had it not been for Medicare. How many college educations would not have been achieved if the families were forced to choose between making sure that mom and dad could see a doctor or their children might go on to college? That is not hypothetical at all. Think how many people's dreams of home ownership, making investments in things families need, were made possible because there was a program called Medicare. It said to Americans: You have given so much, particularly the generation that Tom Brokaw has called the greatest in our history, that carried us through a Depression, through World War II and Korea, that after all of that, we said to them, look, we are going to create a program that makes it possible for you and your families not to have to face poverty or worse when you face expenses for needed medical attention. Despite the fact the program works well, has been efficient, and produces services at low cost, we are about to enter a casino, under the best of circumstances, and start playing roulette with people's health care and with the costs associated with it. That is why I am so saddened by the emergence of this conference report. The process has broken down. This is a product in which one can have little or no confidence. I am being asked as one Member, with only 3 or 4 days to review this product, to agree to sign on to something of this magnitude. There is an opportunity, I think, to get this right and to make this better. We owe it to the people of this country to seize this opportunty. Older Americans are not Democrats or Republicans. They are not conservatives or liberals. They are just hard-working people. The least they deserve is to have a Medicare Program they do not have to worry about. They need a comprehensive prescription drug benefit so they do not have to make choices between the medicines they need and the food they must have or the heat they must purchase to warm their homes. We should be able to find a way to achieve that. I am deeply saddened that we have not achieved that goal with this conference report. After all of the reasons I have laid out, I will vote against this bill and I urge my colleagues to do likewise. I deeply regret we did not prevail on opposing cloture or on the point of order that was raised so that we might have been able to go back and work on this again and come back in January with a better product. This is not the end of this Congress, it is only the end of a session. Yet every effort is being made to see to it that we jam this flawed bill down the throat of America. We will be back; unfortunately, at great cost to the Treasury, and at great cost to the well-being of an awful lot of people who deserve better than they are going to get through the adoption of this bill, in order to fix this bill. I truly wish this were not the case. I reserve the remainder of my time and designate the Democratic leader as the beneficiary of any time I may have remaining.

Mr. DODD. I suggest the absence of a quorum.

Mr. DODD. Mr. President, I commend my colleague from California. Bring that chart down here. Talk about alphabet soup, this is very instructive, it seems to me, in terms of why people are so confused about what is in this bill. There is incredible language here that even the most determined person to learn about this bill would be hard pressed. There it is. I thank the Senator from California because she has laid out here a lexicon of language which would glaze over the eyes of the most determined people to try to sort out what this bill means. One of the points the Senator made is worth noting again. This is not the end of a Congress. This is only the end of a session. If we were at the end of a Congress, I presume the argument made that we have no other choice, we can either do it now or it doesn't get done would be valid. Each new Congress has to begin all over. But we can actually come right back, pick up where we left off, and try to work this legislation out to serve a better interest. I thank her for this. Some of this really needs further explanation. Let me say this--and I am being repetitive to some degree--the prescription drug piece of this is of concern to me. I was willing to accept the argument that having a prescription drug benefit of $400 billion over the next 10 years, while not perfect, was a start. If that is all we were voting on today, I would probably vote for it. What is not being discussed at any great length is the second half of the bill, which is very confusing to people because it has language in it that is unclear as to what the ramifications mean. So people need to pay attention and understand that if we are just dealing with the second half of the bill, the Medicare-exclusive parts of Medicare, I think there would be a very different reaction in the Chamber to what we are proposing. I suspect the prescription drug benefit piece would pass overwhelmingly, and I suspect that a free- standing Medicare piece might not get 15 votes, when you consider what is being proposed. You are absolutely prohibited, under this bill, from joining to go out and buy prescription drugs collectively. You are banned under this legislation. Under this legislation, of course, you are going to give a significant advantage in the competition because of the $12 billion subsidy. That is the reason the order holds here. This piece of legislation has a significant subsidy coming up to the private piece of this proposal. Nothing like that is being offered anywhere else. In fact, a similar point of order was raised in July of last year--at the end of July of 2002--making the exact same point of order that has been made on this legislation. That point of order was raised by the majority leader and the chairman of the Finance Committee against the piece of legislation offered by Senators Graham, Miller, and Kennedy. There, the point of order was against section 302(f) of the Budget Act because it broke the budget ceilings. That is what is being offered here for exactly the same reasons. It will be curious to see whether or not the people who felt so strongly about not waiving the Budget Act back then will do the same here. This legislation being proposed, obviously, also makes it extremely difficult for people, down the road, to be able to have a prescription benefit plan that is going to be fair and balanced. I take note that none of these provisions, by the way, will go into effect rather immediately. You can impose many of the things we are talking about here in a matter of days if you are truly interested. Yet they are delaying it until 2006, until after the 2004 elections when, obviously, what happens to beneficiaries under the so-called fair competition-- Medicare, remember, was a program designed to take the wealthy and healthy and the poorer and sicker together, not to discriminate, and to provide for both of these constituencies. Over the years, that is why the program has been so successful. What is going to happen, of course, with this unfair competition of a 9-percent differential and a $12 billion subsidy is that those who are wealthier and healthier will spin off out of Medicare, and only the poor and the sicker will be left in the program; thus, raising the premium costs or reducing benefits. That is what is going to happen here. There is no doubt in my mind about where we are headed with this proposal. We have raised this point of order to suggest that there is a better way of crafting this legislation. We urge our colleagues to support the point of order when the vote occurs.

Mr. DODD. Mr. President, I yield myself 9 minutes. Mr. President, let me commend the Senator from Iowa, the Senator from Louisiana, the Senator from Montana, and others who have worked on this so very hard. I want to express my gratitude to them for spending so much time on this issue. Let me also briefly thank my own staff. I am not a member of the Finance Committee. But this issue transcends committees. This is legislation that all of us have a deep interest in. I thank Jim Fenton and Ben Berwick of my staff for the tremendous effort and time they have put in. I spoke at some length on Friday about this issue. Let me divide the issue very quickly. A prescription drugs benefit, I think, would pass 100 to 0. If we had a vote on the prescription drug benefit--you would hear speeches that it didn't go far enough and concerns about the donut hole and whether or not 150 percent of poverty was the right margin to be drawn--but I suspect all Members in the final analysis would support the initiation of a prescription drug benefit on the assumption that we would work to improve it in the years ahead. If I were voting on that issue alone, I would stand here and raise concerns about matters included in that provision, but it would have my wholehearted support as a long overdue proposition. I won't dwell on that aspect of the legislation here this morning. The second piece of this bill, however, is one that causes me concern. This second piece is more difficult to understand, it is less clear than just $400 billion for prescription drugs. The second part of this bill is a major change in Medicare. The program has been around for 38 years and is currently serving 41 million Americans. It is probably the most successful and the most wildly supported Federal program of the 20th century. I can't think of any program, except Social Security, which has been so widely supported. We are about to take that program which has worked so tremendously well, and I think disadvantage it significantly. Let me explain briefly why. The sponsors of the legislation say they are not forcing seniors out of traditional Medicare. They claim they are simply creating competition as a result of offering seniors a choice. Let us talk about this so-called ``competition.'' Private plans under this bill will be reimbursed at a higher rate than traditional Medicare--9 percent higher. On top of that, this bill also makes available $12 billion in a slush fund to be used to lure private plans into the market on a corporate subsidy. You get a 9 percent differential and $12 billion. That is what you get to compete with Medicare. You do not have to have a Ph.D. in math or a Ph.D. in business law to understand that kind of an advantage certainly is not what I call a level playing field. It is not competition, it is a rigged game. The bill stacks the deck against traditional Medicaid and the effects are self-perpetuating. Traditional Medicare grows weaker, private plans grow stronger, forcing more beneficiaries out of the traditional programs and into the open arms of HMOs. It is easy to get bogged down in the complexities of this bill. Let me state it simply: The weakening of the traditional Medicare Program caused by this bill will force seniors to pay more and face the prospect of fewer benefits. Remember, Medicare initially said whether you are wealthier and healthier or poorer and sicker, we all work together. Now we are splitting off the wealthier and healthier and leaving the sicker and poorer on the side. This bill will actually mean less choice, in many ways, for seniors. Seniors like the traditional Medicare Program precisely because it offers choice, the very thing the supporters of this bill claim to be providing. Under the current system, seniors have a choice of doctors. But that choice would soon disappear with a rise in private managed care plans. I hope this prediction is wrong but I am fearful it is right. If this prediction is wrong, it most likely means seniors have elected not to move into private plans and HMOs will leave the market in many areas, as we have seen in the past with the Medicare+Choice plan, taking $12 billion with them that might have been used to reduce the cost of prescription drugs rather than provide a subsidy for the private plans to compete with Medicare. Even more ironic is that this highly unfair system is being championed by self-proclaimed champions of free enterprise. This bill gives $12 billion to HMOs to unfairly compete and it does nothing to control drug prices. In fact, it actually prevents the Medicare Program from negotiating lower drug prices. Under law, Medicare is prevented from using its purchasing power to negotiate with drug companies for lower prices. What is wrong with letting free enterprise work here in order to lower drug prices? If Medicare is so in need of reform, why in this bill are we subsidizing private companies and not allowing the Medicare beneficiaries to compete for lower drug prices? The reason is simple: The champions of free enterprise know that private plans cannot compete with traditional Medicare on a level playing field. The subsidies are necessary because Medicare is actually more efficient. Medicare delivers services at a lower cost. In 2010, a provision included in this bill will go into effect that begins an experiment with our Nation's seniors. Why we are taking our seniors, the most vulnerable, and turning them into guinea pigs for an experiment is beyond me. That is what we are beginning to do. Given the unlevel playing field I have described, such a competition would further disadvantage the traditional Medicare Program. The bill writes into it right now a cap of 5 percent premium increases for each year in regions effected by this premium support experiment. The bill anticipates premium increases even before we have tried the program, and they are going to take 6 million seniors and throw them into an experiment, a pilot program, the outcome of which has already been determined by the bill's authors when they talk of a cap at a 5 percent premium increase. How is Medicare going to compete then? The outcome is predetermined, forcing those seniors into a disadvantaged program. The weaker and the poorer and the sicker seniors will end up paying more or having benefits cut. I am afraid we can only conclude one thing: The architects of the bill, with all due respect, spend billions of dollars not to reform Medicare, but to dismantle it. It puts patients out there to wither on the vine, as Newt Gingrich said 8 years ago. If the man who wanted that embraces this legislation, that could mean one of two things: Either his opinion has changed or this legislation really is intended to end Medicare. I submit that I see no evidence his opinion has changed. We set out to add a prescription drug benefit to Medicare. I applaud that. We could have had a bipartisan bill that did just that. It could have been approved by this Chamber overwhelmingly. But instead, we are being asked to vote on a wolf in sheep's clothing. The second part of the bill, the changes in Medicare that will effect 41 million seniors, two-thirds of whom make less than $80,000 and above $13,470, for those in that category, this bill offers disturbing alternatives. For those reasons, I urge that when the cloture vote occurs, Members vote against it. We can do better. I applaud the efforts made, but we can do better on this legislation than we have done. I don't believe I used all 9 minutes, but others have gone over 9 minute. I yield back my time for those on the Democratic side who would like to be heard on the legislation.

Mr. DODD

Mr. DODD. Mr. President, are we in morning business?

Mr. DODD

Mr. DODD. Mr. President, I will take a few minutes and comment on the upcoming debate on Medicare. Let me begin by expressing my appreciation and my respect for those who have worked on this issue for a great deal of time. I have nothing but the highest admiration for my colleagues, Senator Baucus, Senator Grassley, Senator Breaux, Senator Kennedy, and others who have spent a great deal of time over the last number of months trying to put together a proposal to provide Americans with a comprehensive prescription drug benefit while not undermining the core program of Medicare which has served millions of Americans so well for the past 38 years. Whatever other views I may have on this proposal, it does not diminish my respect for the efforts they have made to put this bill together. I begin on that note. Let me state the obvious. I don't know of many other programs that have enjoyed as widespread and as deep and profound a degree of support in our Nation's history as the Medicare Program. I cannot think of another program which has done as much for as many people as Medicare has over the past 38 years. When you look back at the statistics of the poor in America prior to 1965, without exception, the poorest group of Americans were older Americans, our senior citizens. That was, of course, because they had left the labor force and to what extent they had any coverage at all, it was usually lost upon their retirement. As happens when people age, health problems often emerge, people become sicker and require more help. America could only watch as parents and grandparents got sicker and poorer and faced great difficulty making ends meet. Through a very extensive and elaborate and lengthy debate, our predecessor Congress, both in this body and in the House of Representatives, under the leadership of Lyndon Baines Johnson, in 1964, giants in this body, crafted the Medicare Program. In fact, President Johnson went to Missouri, to the home of Harry Truman, who had been such a great advocate of universal health care, to sign that historic piece of legislation into law. There have been a lot of other things we have done over the years, such as Title I of elementary and secondary education, that might come close--certainly Social Security--I suspect if we had to pick two programs this Government has fashioned in the 20th century that have meant as much to such a critical part of our society, one would certainly have to identify Social Security and Medicare. It is with that background that I rise this afternoon to express my deep concern and worry over what we may be doing in the next few hours in a rather hasty manner. That does not mean to suggest that the conferees and others who have worked a long time on this have acted in haste; although I disagree with their product, I respect the amount of time and effort they have put into this. The Presiding Officer and this Senator are the only two Members present at this moment, and our ability to go through this and to understand what is about to happen in the coming days is rather limited. Sometime tomorrow, Sunday, or Monday, but certainly no later than that, we will be asked to vote up or down on a conference report that does something all Members have wanted to do for years--provide a prescription drug benefit for older Americans under the Medicare program. Knowing, as we all do, that had we been writing the Medicare bill in the year 2003 for the very first time, or several years ago, we would never have considered a Medicare proposal without the inclusion of a prescription drug benefit. But those who wrote the bill in 1964 were not confronted with the terribly high cost of prescribed medicines. At that time, there simply were not that many pharmaceutical products out there, so prescription drugs were not as major a factor as they are today. The idea of providing basic healthcare services was what originally drove Congress to enact the Medicare Program. Obviously, the world has changed. So the need for a prescription drug benefit today, given the tremendous costs our elderly face every single day across this country, where they literally, without any exception at all, are forced to make choices about whether or not to take the drugs they have been prescribed, to have a meal, or to pare back on their prescriptions so as to spread them out over a longer period of time so they will not have to go back in and pay for the drugs which they cannot afford, in which case they are not getting the full benefit of the prescriptions because they are self-medicating themselves, and in many cases can do far more harm than not taking a drug at all, as any good doctor can tell you--that is the reality today fro millions of our senior citizens. It is my belief that if we were solely dealing with the prescription drug benefit piece of this package, it would pass 98 to 2, maybe 100 to 0. There is no doubt in my mind that would be the case. If that were the only issue before the Senate, that would clearly be the outcome. Although I would quickly tell you there are parts of this prescription drug benefit that could be drawn far more wisely and far more fairly in many ways, I could not argue over the fact that a $400 billion appropriation over the next 10 years offered a good start. But also just as quickly I would say to my colleagues, if we were dealing with the portion of this package dealing with the structural reform of Medicare, and they were standing alone just as I suggested a moment ago if the prescription drug benefit package were standing alone, the parts of this package instituting structural changes to Medicare would not get 10 votes. I don't know of many people who would support a Medicare package that had the sections this bill does that would so dramatically alter Medicare. The only reason it is getting any consideration at all is that we have lured people into this on the prescription drug benefit aspects of this conference agreement. So if you set that aside for a minute and begin to look at the structural side of this, and understand how many years it originally took to put together the Medicare program, what a difference it has made in people's lives--when you consider the tremendous salvation this has been to people--and then recognize the direction in which we are about to go if this conference agreement is adopted--and I suspect it may be--then it will not take long, in my view, when you will find what we saw only a few years ago, with the Congress coming back in to reverse itself in 2006 or shortly thereafter when the provisions of this bill go into place. The more you look at the structural side of this particular proposal, then the more people are going to be concerned about what they are doing. So I applaud those who have worked on the prescription drug side of this bill. But I have great concerns about what this conference report would do to the foundation of Medicare. In June of this year, when S. 1 was before this Senate, I based my support for that measure on the belief that it offered a strong, though not complete, first step towards ensuring prescription drug coverage for America's seniors and strengthening the overall structure of the Medicare Program. This conference report, I say with deep regret, can now be accurately characterized, in my view, as a misguided step down the wrong path. The agreement before us today will lead us down the path towards greater privatization of Medicare, towards a greater burden on our States trying to meet the needs of their own low-income senior citizens, and towards an overall weakening of the Medicare Program. A very simple way to describe this, as we look at the great success the Medicare program has enjoyed over the past 38 years, is to remember that this is a universal program. This program says to everybody who reaches a certain age, regardless of how healthy you are, or how wealthy you are, or how poor you are, or how sick you are, you can qualify and be a part of this Medicare Program. We are about to do something now that is going to say to those who are wealthier and healthier, you can move off into private plans, in which case the only ones who will be left within traditional Medicare are those who are less wealthy and those who are most sick. Now, you do not have to have a Ph.D. in mathematics to understand what the outcome will be if this conference report is adopted. If Medicare becomes a program of poor, sicker people because wealthier, healthier people have left, as I believe they will under this bill, then you have just forced either a reduction of benefits or increased costs for those under traditional Medicare--those who can least afford it. There is no other outcome you can draw from that which we are about to do. That is the eventual outcome. It fundamentally changes and alters the basic concept that was part of the plan passed in 1965--its universality. The underlying concept of wealthy, healthy people joining with poorer, sicker people--being together--has been the cornerstone of this tremendously successful program. When you begin to pick off those who are wealthier and healthier, for all the obvious reasons, into private plans, the sicker and poorer people will be left with either Medicare benefits getting cut or premium costs going up. That is the sadly predictable outcome of this legislation, Mr. President. Medicare is first and foremost a program to protect our Nation's seniors from the often insurmountable costs associated with securing quality health care services. Prior to its inception in 1965, as I mentioned, many seniors--the overwhelming majority, in fact--faced abject poverty as a result of skyrocketing health care costs. The creation of the Medicare Program provided a critical safety net for those seniors and allowed them to retain both their access to quality health care, as well as their financial security. Earlier this year, and prior to the Senate's consideration of the underlying legislation, I had the opportunity to convene a series of forums in my home State of Connecticut on health care issues in an attempt to frame the scope of this debate for them. At those forums, I heard from my constituents on many matters regarding health care. I heard from seniors who literally could not afford to fill prescriptions--and I know my colleagues have heard the same stories--called for by their doctors. I heard from elderly Medicare beneficiaries forced to choose between purchasing groceries or filling their prescriptions. I heard from seniors who were forced to skip dosages of their medicines in an attempt to stretch their limited supplies of these needed medicines. I heard from Medicare beneficiaries requiring more than 10 prescribed medicines a day unable to afford even half of those prescriptions. Clearly, what I heard from hundreds of my own constituents is their grave concern over the present lack of a prescription drug benefit under the Medicare Program. When Medicare was first enacted, few could have envisioned the tremendous costs associated with prescription medicines. However, it is the great need for prescription drug coverage under Medicare that was firmly behind my initial support for S. 1. Sadly, however, the conference report before us simply does not go anywhere near far enough to provide sufficient coverage for prescription medicines for the great majority of Medicare beneficiaries. That said, we cannot turn our backs on what this bill would do for Medicare beneficiaries with severely limited incomes. This bill says, if you make under $13,470, representing 150 percent of the federal poverty level, then you will get real help under this bill. But if you make anything more than $13,470, which is what two-thirds of our seniors citizens do, then you are going to be offered little in the way of help under ths bill. That is why it is my belief the prescription drug benefit aspect of this bill should be greatly strengthened. But I believe for most seniors that it is terribly unrealistic to suggest that someone making more than $13,470 can somehow manage to afford the cost of their prescription medicines, particularly if they have costs that would push their spending into the bill's gap in coverage, or donut hole, as it is often described. But, nonetheless, that is the direction we are going with this conference agreement. The emerging bill contains a gap, as I mentioned, of more than $2,800, twice the size, by the way, contained in the Senate-passed legislation. Under this conference agreement, Medicare beneficiaries with costs within this so-called donut hole will be forced to pay for the full cost of their prescribed medicines as well as the monthly premium of an estimated $35--and I stress the word ``estimated''; I will get to that in a minute--and receive absolutely no financial assistance whatsoever. Only 4 percent of seniors in the country make over $80,000 a year. Two-thirds of seniors make somewhere above $13,470. The idea that somehow people are going to have enough money, as a senior, trying to pay a home mortgage or pay whatever obligations they have, not to mention food and other things, and also be able to pick up as much as $2,800 a year for prescription drugs, is, I think, terribly unrealistic. This bill would require Medicare to move dangerously toward privatization, which is what I want to get back to, because it is the side of this bill calling for structural change to the Medicare program that causes me the greatest concern and greatest worry, and undermines this incredibly fine program. I can't tell you how disappointed I am in the AARP for endorsing this conference agreement. I truly wish that AARP's affiliates across the country had been heard on this issue before their national leadership decided that they would support this bill and disregard the 38 years of history when it comes to Medicare and the millions of people who have greatly benefitted from its coverage. As one who has witnessed firsthand the tumult and confusion created by Medicare+Choice organizations entering and then quickly withdrawing from communities in my home State of Connecticut, I can say assuredly to my colleagues here today that this would establish a dangerous precedent that may very well lead to the devolution of the Medicare Program as we know it. Also of great concern to me is the effect this legislation will have on employers that have already provided their retirees with prescription drug coverage. In my State of Connecticut, more than 225,000 Medicare beneficiaries, fully one-third of my State's senior citizens, receive coverage for their prescribed medicines from their former employers. Under this bill, about 40,000 of those elderly will lose this coverage as a result of employers dropping their prescription drug plans. I don't know the numbers in every other State, but if 40,000 of my 225,000 beneficiaries presently with prescription drug plans from their former employers are going to be dropped from their prescription drug programs, how many in other States are going to be? Where do the States of other Senators fall in this category? I additionally have another 74,000 people in my State--and I represent a small State with a little more than 3.5 million people--who qualify for both Medicare and Medicaid. These beneficiaries--and there are 6.4 million of them across the country that are eligible for both Medicare and Medicaid--will face increased prescription drug costs under the underlying bill. There will be a significant cost increase for those people who fall within both Medicare and Medicaid if this conference report is adopted. So even before we start talking about what will happen in the year 2010 and down the road under this bill, Mr. President, we are going to witness significant numbers of people lose their present coverage or be forced to withstand both higher costs and diminished benefits. Also very troubling to this Senator in the underlying conference agreement is its unqualified support for private for-profit insurers at the expense of traditional fee-for-service programs. Particularly disturbing are the provisions securing $12 billion to be solely reserved for these private insurers in order to entice them to enter the Medicare market. Twelve billion dollars is going to the private companies, just so they can compete against the traditional Medicare program. They are calling this competition. Back in the Roman Empire, they had a competition like that. You would go to the forum and on one side were the lions. Under this bill is a similar situation, private insurers will get $12 billion to compete, but Medicare will not get anything. Under this bill, we are going to cap Medicare spending and then say: Go out and compete against enriched private plans. I was born at night, Mr. President, but not last night. I know and most other people know, without a great deal more knowledge about this, that if you provide $12 billion, as this bill does, to private companies to go out and compete against a company that doesn't get that kind of help, do you know who is going to win that competition? I wonder. I wonder what the outcome will be there. Yet that is what this bill does. Twelve billion dollars reserved for private insurers in order to entice them to enter the Medicare market. The inclusion of this provision truly represents a solution in need of a problem, Mr. President. Traditional Medicare already serves 89 percent of all Medicare beneficiaries and the addition of $12 billion to entice private plan participation is wholly unwarranted and unnecessary. In fact, this bill will also prohibit the Medicare program from going out and forming a consortium to drive down the cost of prescription drugs. Under this bill, you are violating the law if you go out and do that. While we are going to provide $12 billion instead to others to allow them to compete with Medicare, we will not allow Medicare itself to go out and lobby or negotiate to lower the costs of prescription medicines. The traditional Medicare Program is a proven success and would be better served if this valuable funding of $12 billion were directed toward further strengthening its foundation. Lastly, the conference agreement before us today establishes the dangerous precedent of instituting so-called cost containment measures that could directly lead to severe cuts in what Medicare covers and just as severe increases in the costs Medicare beneficiaries will be forced to bear. Very specifically, the conference report calls on the Congress and the administration to address Medicare's costs when general revenue spending on Medicare reaches 45 percent of the program's total cost. Can anyone cite for me any other Federal agency where that kind of provision has been imposed? There is not one--not one. Yet this bill goes out and places this kind of a restraint on Medicare, and on no other part of our Government do we do it, only on Medicare. It is my belief that the adoption of this purely arbitrary cap, which you will find nowhere else, will lead to almost certain erosion of critical programs, scope of coverage, and affordability. Today, nearly 40 years after Medicare's inception, we find ourselves at a crossroads. I can truly say that I am somewhat stunned that we are about to make a decision on a program that has worked so well for so long within a matter of hours here, without any of us fully understanding--at least most don't seem to understand--the implications of what we are about to do. How could you take a program that has worked so well for so many people and, in the waning days of a session, with just a few hours remaining, get up and ask the Congress to do what we are about to do here? I don't understand how we could allow this to happen. We are on the cusp of fundamentally altering a program that has worked so well for this nation's elderly and most frail citizens. Again, Mr. President, we find ourselves at a crossroads. The opportunity is before us to move Medicare toward the future without threatening its proven availability to provide for the health and well- being of our Nation's senior citizens. Sadly, however, this conference agreement before us represents an opportunity lost, an opportunity not only to add comprehensive coverage for prescribed medicines under the Medicare Program, which would have been a great success story, but also an opportunity to strengthen the Medicare Program for future generations. So it is with great sadness that I find myself, only months after originally supporting the underlying legislation when it was first considered by the Senate earlier this year, now having to oppose this conference agreement in its current form. Under the guise of providing needed prescription drug coverage under the Medicare Program, this conference agreement falls far short of addressing this need for the great majority of our Nation's nearly 41 million Medicare beneficiaries. Forty-one million Americans take note. Over the weekend, in the next 72 hours, a program that has served you for 40 years, serving more than 40 million people presently, is going to be fundamentally altered unless this body, and only this body, stands up and says: Stop. Go back. Let's rethink this before we go out and make the kind of changes that are being proposed in this legislation. While there have been numerous articles and commentaries written about this plan over the last number of days, people trying to attract attention, numerous editorial comments that I have found tremendously compelling, I come back to the basic point that this is dangerous policy. I put my colleagues on notice; I tell you this will happen. In the Senate passed bill, which, again, I supported, in order to receive prescription drug coverage, there had to be two drug-only providers available. However, this conference agreement calls for only one of these plans and an HMO. This is a fundamental change. Let me describe what this can mean in the clearest terms I have seen written about this. Under the conference report, we have now learned that the Medicare guaranteed fallback is only triggered if a senior does not have a choice of two private plans, one of which can be an HMO. Again, that was not in the Senate bill and it is in the conference report before us. In order to receive prescription drug coverage under this bill you have two choices: One, you can choose traditional Medicare and receive no prescription drug coverage. Two, you can choose to keep traditional Medicare and purchase a drug-only plan. The problem is that there is no limit on the monthly premiums these drug-only plans can charge. When you hear about the $35 cost of premiums for these plans, you must remember that this is only an estimate. If there is only one provider of the drug-only plan in your area--and that is all there has to be under this bill the monthly premium could be $100 or more. Nothing in this bill caps what the premium should be on a monthly basis for the drug coverage. That is what the offer is under this bill. In other words, it will be permissible for only one insurer to offer the new Medicare drug benefit and charge whatever premium they desire, as long as there is also an HMO option in the area. This type of arrangement strategically avoids the protection of a traditional Medicare fallback benefit from being made available to seniors. As a result, seniors in these regions, many of which will be rural areas, will be financially forced into HMOs just to obtain an affordable drug benefit. In the meantime, they will lose their choice of doctors. Does this sound familiar? Earlier this year, President Bush and his administration made clear that he wanted to reform Medicare by providing a prescription drug benefit, but only to those seniors who were willing to go into a private insurance plan and HMOs. This compromise has been designed to help achieve that goal. So that it is further understood, it is important to note that the Senate required that there be at least two private stand-alone options for Medicare beneficiaries. This would have ensured that there would at least be competition for premiums for the new stand-alone drug benefit. Some have argued that the competition between the drug-only plan and an HMO or PPO will force down the premium of the drug-only plan. The fact is, drug-only plans cannot compete on an even playing field with PPOs or HMOs. This is because HMOs and PPOs are provided additional subsidies under this bill and, by definition, offer a wide variety of services that give these plans a competitive advantage over the stand- alone drug plans. Any losses on the drug side can be offset by gains on the medical side, in a sense. This is yet another example of how all financial incentives are designed to advantage the private HMOs and PPOs over traditional Medicare. People need to understand the fundamental changes in this bill that will greatly alter the very structure of the Medicare program. I have taken a lot of time this afternoon, Mr. President, and I apologize to my colleagues. But I feel very strongly about this critically important issue. Last week in this body we had a filibuster that went on for 4 days because people were upset over the nomination of 4 judges. I contend that perhaps there ought to be a filibuster on this legislation as nearly 41 million Medicare beneficiaries are going to be adversely affected if this legislation is adopted by this body. Here we are toady, Mr. President, down to the waning few hours of the session, and we are about to consider fundamentally altering and setting back Medicare for years to come. When the roll is called on this, I will vote no. I will seek other options between now and then to see if there is a way to delay consideration of this until we have more time to examine more fully the implications of this bill. Under the guise of providing needed prescription drug coverage under Medicare, the conference agreement before us today offers far too little coverage for the great majority of Medicare beneficiaries, while at the same time institutes structural reforms to the underlying Medicare program that will significantly weaken its ability to provide for the health and well being of our nation's senior citizens. It should be soundly rejected. I thank my colleagues and I yield the floor.

Mr. DODD

Mr. DODD. I will not get into the introduction of the letter and so forth, but I will quote from the Governor of a New England State. First, the Governor says the bill undermines the delicate balance of Federal and States rights. Under this legislation, this bill gives unprecedented authority and standards of review exclusively to the Federal appeals court in the District of Columbia to review actions required for the construction of a natural gas pipeline. State environmental and siting laws would essentially be reduced to a process of rubberstamping the Federal Energy Regulatory Commission certificates of public convenience and necessity. The letter goes on: In addition, any delay, however well founded it may be, such as considering ways to protect the State's natural resources, may be grounds for an appeal and Federal override of a State's ruling. State courts would be stripped of jurisdiction over matters arising in the State that not only affect the State, but also relate to the interpretation of State statutes and regulations. Now, I have historically opposed a State's right to veto important national efforts, and I include energy as one of them. So I know there have been efforts in the past to say States ought to be able to veto matters that come before them affecting energy policy, but as strongly as I have felt that States ought not to have exclusive veto power, I do not think the Federal Government ought to also have veto power when it comes to States needs and necessities. I do not care where one lives in America, but they should pay attention to this provision. This is an incredible overreaching by the Federal Government. To come in and strip a State's ability to protect its own citizens when it comes to natural resources and the energy needs they may have, or a variety of other issues, and to shove those matters up to an appeals court in the District of Columbia, whether one is from Georgia, Connecticut, or anywhere else, I think would be highly offensive to most people in this country. That is not to say we have it all right. We do not. Lord knows our States can make very parochial decisions, particularly when it comes to energy policy, but the idea that the Federal Government could go into any State in this country, regardless of our needs, our concerns, our well-being, and say, I am sorry, you lose, you have no rights at all in these matters. My Governor is right on that issue alone. This bill ought to be sent back to the conference. We are about to adopt something that overreaches beyond what I think most of my colleagues would support in any other area of law, and yet they are going to do it here. If a precedent is set here, it will happen in other areas as well? My Governor goes on to explain that there are other reasons: The bill generally limits the time frame for development of Coastal Zone Management consistency appeal records, constraining the States and the Secretary of Commerce in making informed decisions. In the same vein, this legislation limits the record on consistency appeals addressing pipelines to the record developed by the FERC. Historically, FERC's record has been inadequate to evaluate and protect the State's natural resources. The legislation deprives Connecticut and other coastal States of the tools they need to manage their coastal resources. I mention this because the Presiding Officer--we share a lot of things in common, not the least of which we share is having an Atlantic coastline. All of the States on the eastern seaboard, the gulf, the west coast, if they care about coastal zone management--and I know how important that is all along the Atlantic coast--and wanting a say in determining how those very delicate and fragile resources will be managed, this bill makes it more difficult for our States to continue in that vein. Reading from the letter: The legislation authorizes the postponement of ozone attainment standards across the country when the problems are shown to have originated outside of the State. This not only hinders Connecticut's progress towards improving our air quality, but also likely has significant health ramifications for Connecticut's residents. Contrary to general practice, this language was added behind closed doors, without meaningful opportunity for public debate. It would be one thing if this bill were just about energy policy. To be able to now postpone the ozone attainment requirements written in law, there are literally hundreds of thousands of people in this country who suffer from significant ailments affecting their respiratory functions. I know of what I speak. I have family members who suffer from asthma. To roll back the provisions of the ozone attainment standards in States such as mine and elsewhere is a major health setback for people. I suspect that various health organizations around the country will have strong feelings about this. If no other provision to this bill moves one to reconsider whether or not we ought to be moving forward, the idea that we could do such great damage to the health of American citizens is enough. We know what causes these problems--and in my State of Connecticut we suffer because of the prevailing southwesterly winds for most of the year. So we get a lot of the poor air quality coming out of other States. So we have to live with the pollution that exists elsewhere. We are trying to stop that on a national level. This legislation will make it very difficult for that to happen in the future. My Governor goes on and says: The bill contains language that would permit a State's siting process in areas of interstate congestion, if the FERC were to find that the State delayed or denied a project. State siting authorities may very well be justified, however, in delaying approval or imposing condition for reasons such as public safety or environmental protection. It may also be that the more complex the project, the more time that may be needed to review its complexities. In addition, the applicant may need an extension of time in which to compile additional information for submittal to the siting authority or to negotiate with adverse parties. The existing language [in this bill] fails to take those reasons into account. Again, this goes right back to the first point I made earlier, where one can come in and basically shove these matters up to the Federal appeals court in Washington. Again, I am not suggesting that States ought to have outright veto power. But the idea that this legislation would say, as categorically as it does, that the FERC could come in if they find that a State denied a project or delayed a project to gather more information, and just roll right over you. Listen to this. The Governor goes on to say: The proposed legislation provides immunity, retroactive to September 5, 2003, to the MTBE producers from defective product liability arising from groundwater contamination of MTBE. It also provides $2 billion in transition assistance to producers, in preparation for an MTBE ban effective in 2014. It is precisely because of groundwater contamination caused by MTBE that Connecticut has banned its use as a gasoline additive effective January 1, 2004. MTBE has been proven to be especially harmful; we likely do not yet know how much damage it has done or perhaps will do [to people]. It may be premature at this time to provide such immunity. There is a growing body of evidence that this gasoline additive could have caused great damage to people and now we are going to reach back to September 5 of this year and provide immunity to the producers of this product to the great detriment of maybe millions of people in this country. What is that doing in this bill? We talk about tort reform, and here we are providing immunity. The idea in this bill that we would provide immunity from recovery for people who get sick and suffer as a result of being exposed to MTBE, I think is outrageous. I am confident my colleague from New York, Senator Schumer, has spoken eloquently on this subject matter. I heard him address the matter the other day in a closed meeting of Senators, and I was moved by the evidence that he provided to us. I am confident he has or will lay it out again here. So I will not dwell on it. It's bad enough we provide immunity, but now we are going to provide MTBE producers with $2 billion in assistance, in preparation for a ban effective 11 years from now. Lastly, I mention a rather parochial matter and I don't want to make my opposition to this bill based on parochial issues. But my constituents are very concerned about a provision in this bill that was written into the bill in conference--never in the House bill, never in the Senate bill--and really tramples all over States rights. It would codify a Department of Energy order that resulted in the operation of the Cross Long Island Sound Cable that runs from New Haven, CT to Brookhaven. This Cross Sound Cable was not operational before the August 14 blackout because the cable failed to meet the Federal and State permitting requirements concerning its depth. Section 1441 of the bill states: The Department of Energy order No. 202-03-2, issued by the Secretary of Energy on August 28, shall remain in effect unless rescinded by Federal statute. You may say, ``I am sorry that has happened to your State, Senator,'' but it could be yours next. We didn't argue during the blackout about allowing that cable to be used, but its continued operation violates state and federal permitting requirements. But that emergency is over. Yet, written into statutory law, now it says, whether we like it or not, this temporary order is now permanent and it will require a Federal statute to overturn it. Not even FERC can overturn it. I have to pass a bill in the Senate to overturn it. I grant you it is a local issue, but you ought to be worried about it. That is what happens around here: The precedent gets set. These are several of the reasons why I believe this bill deserves to be sent back. It is November. We have another session of Congress coming up. Why can't we go back and do some work on this? I have to believe that most Members think that this bill is just too tilted in one direction. It is not in the best interest of our country to be adopting this type of energy policy. As I mentioned earlier, knowing how important it is for our economy, for our energy self-sufficiency, for our environment, and for health reasons, this legislation deserves reconsideration. It is not balanced. So I hope when the hour arrives tomorrow morning, our colleagues respond. This is the kind of bill we will spend a good part of the next decade undoing. When people discover what is really in this bill, they will want to make changes. I think a wiser course of action would be to go back and correct the legislation now and have a bill that would enjoy broad bipartisan support. Instead, there will be broad bipartisan opposition to invoking cloture tomorrow. These new provisions giving extraordinary power to the Federal Energy Regulatory Commission are really stunning in their scope and breadth. I am rather amazed that there has not been more outspoken opposition to this, in more predictable quarters, when States rights are involved. I mentioned earlier the issue of health. I pointed out that dirty air from outside our State impacts our air quality. It is a major cause of asthma and may play a role in the development of that disease. An estimated 86,000 of Connecticut children have asthma that's 10.4 percent of the children in my state. And 7.3 percent of the adult population, approximately 180,000, have it as well. I represent a small State, about 3.5 million people. These are significant numbers. The fact that this bill rolls back the provisions on air quality is going to mean that people in Connecticut are going to suffer. If for no other reason, this bill ought to be sent back. We are going to debate Medicare in a few days and talk about how to keep down costs. Asthma doesn't go away. In fact, there is nothing worse than an adult onset of asthma. I know because my wife has it and she didn't have it as a kid. It is crippling. Anybody who has it or has a family member with it knows what I am talking about. There is time left to do this bill right. I hope this institution would take a moment to do so. I yield the floor.

Mr. DODD. I also ask unanimous consent that a letter from the attorney general of the State of Connecticut expressing other reasons to oppose this legislation also be printed in the Record.

Mr. DODD. Mr. President, I know the hour is late, and I appreciate the indulgence of the staff on the floor of the Senate. It has been a long day for them in the Senate to listen to a lot of speeches predominantly about the Energy bill, although I gather there has been some discussion about the Medicare prescription drug bill as well. I apologize to those who have been around here a long time today to have to listen to yet one more Member of this institution express his views on the matter we will be voting on tomorrow morning at around 10:30 a.m.--and that is the Energy bill. I listened with great interest to my good friend from Iowa, with whom I have served now in the institutions of the Senate and the House of Representatives for about 30 years. We have been through a lot of battles, both together and on opposite sides. I always find his remarks compelling, interesting, and admire him immensely. He has been a very effective Member of this body for a long time. I appreciate his work. He has been through a lot in the last couple of years. He is chairman of the Finance Committee, and he has an awful lot of matters with which to deal. I appreciate his service. I regret on the matter before us we have a different point of view on the Energy bill. I care deeply about the subject matter. I know my colleague from Iowa does. Certainly, he raises some very significant issues as they pertain to renewable energy resources. Were this a bill about just that question, he would have my unyielding support. Unfortunately, there is more to this bill--it is more than 1,100 pages. My Governor--a Republican Governor--of the State of Connecticut and most of the membership of the State legislature have taken a different view because of the adverse impacts on my State, just as it has positive impacts on the State of Iowa and the grain-producing States. That is a major reason many of our colleagues, both Democrats and Republicans, are opposed to the bill. They must understand, for those of us who come from other parts of the country, we have to evaluate a bill such as this and take a look at what it does to our economy, our environment, our energy needs, as well as the health of our people. For those reasons, on a bipartisan basis in my State, there have been strong expressions of opposition to this bill. I wish to take a few minutes to outline those reasons. Tomorrow morning at 10:30 o'clock, there will be bipartisan opposition to invoking cloture. This is not a question where, on many issues, Democrats and Republicans line up very neatly on one side of the aisle or the other. There will be Democrats who will oppose cloture; there will be Democrats who will support cloture; there will be Republicans who oppose cloture; there will be Republicans who support cloture. This is a matter of people looking at legislation that evolved in the conference committee. My respect for the Senator from New Mexico, Mr. Pete Domenici, as he knows, is tremendous. I have great regard for him. I admire his leadership in the Senate. I have enjoyed working with him on numerous occasions. He has been a very fine Senator for many years. I know he put a lot of work into this bill. If I were to vote on this measure exclusively on the basis of friendship, I would be a strong supporter of this bill because I happen to like Pete Domenici a great deal. But I cannot, in all good conscience, vote for something that does such damage to my State, to my region, to my country. This legislation would have been better crafted at the end of the 19th century and the beginning of the 20th century than the beginning of the 21st century. This is a 20th century Energy bill, not a 21st century Energy bill. It is important, with the few hours remaining between tonight and tomorrow morning, to know what this bill may do to the country and the people of this country might express to their elected representatives their strong feelings about what is in this bill. Like any other legislation in my 24 years here, there are good pieces to this. I am not going to stand here and suggest everything in this bill is wrong. It is not. The Senator from Iowa has already mentioned the idea of using some of our natural resources to provide a renewable source of energy. As a Senator from Connecticut, I tried to be very sympathetic and supportive of those kinds of issues. If this bill were exclusively about that, I would not have any real difficulties with it. But no Member ought to vote for a bill such as this for the simple reason that one provision of this bill is good for their State. You must take into consideration all the damage that can be done to the very people of that State if we adopt the measures included in this bill. This is not, as I say, a 21st century energy policy. Let me quote the Orlando Sentinel of November 18. This is not a Connecticut newspaper, it is a Florida newspaper. Listen to what they say: Start Over: The Energy bill before Congress is worse than what exists. They continue: Two-thirds of the tax breaks would go to the oil, natural- gas and coal industries, helping to perpetuate the country's dependence on fossil fuels. Less than a quarter of the breaks would promote the use and development of renewable energy sources, and less than a tenth would reward energy efficiency or conservation. Tonight there are literally thousands of young Americans who are stationed in a place called Iraq. I don't believe they are there exclusively, as some do, because of the oil issue, because of the dependency that this Nation and the Western alliance has on the Middle East for its energy supplies. I also don't think it is not a reason. It is certainly part of the reason. I know there are others who believe it is the whole reason. I don't subscribe to that. If I did, I would never have supported the authorization of use of force by the President to go into Iraq, for which I voted. I believe it is part of the reason. I believe we are over there trying to protect the economic and energy interests of the United States in part because of our dependency on that part of the world. Why at a moment such as this, when our country is at such risk, particularly over its future economic policy, would we pass an Energy bill such as this? Now more than ever, this bill ought to be doing everything in its power to support energy resources that are truly renewable, such as the Senator from Iowa suggested, balanced with other resources that have been supported by other Members of this Chamber. And it certainly should do more on conservation and efficiency. As the Orlando Sentinel pointed out, as I mentioned a moment ago, less than a tenth of this bill would reward energy efficiency or conservation--less than one-tenth of this bill. Here we are in 2003, with all of the problems we face in the Middle East and elsewhere, and one-tenth of this bill is dedicated to energy conservation and efficiencies, and only a quarter of the tax breaks would be to promote the use and development of renewable energy sources. On that basis alone, this bill ought to be reconsidered before we go forward. The Governor of my State, John Rowland, has served as the president of the Republican Governors Association during his tenure as Governor. John Rowland and I have significant differences on a lot of issues. But on this issue, he has written to all members of our delegation in response to what is in this bill. I want to read into the Record some of the comments of the Republican Governor of Connecticut, shared, I might add, by many Governors all across this country. This is a bipartisan notion of caution about what we are about to do. He mentions five or six reasons why this bill ought to be reconsidered. I ask unanimous consent that the full text of this letter be printed in the Record.

Mr. DODD

Mr. DODD. Mr. President, today is a truly historic day. After nearly three-quarters of a century of trying, a national museum dedicated to telling the story of the African American struggle and contribution to the founding and development of this country is about to be realized with passage of H.R. 3491, legislation to create a National Museum of African American History and Culture. Many individuals are to be congratulated and thanked for their efforts to bring this dream to fruition. In the Senate, my distinguished colleague and author of legislation this Congress to authorize the African American Museum, Senator Sam Brownback, has been a champion of this effort for the past two Congresses. I was pleased to be his coauthor on this measure. As chairman of the Senate Rules Committee last Congress, it was my great honor to work with him to produce legislation to create the Presidential Commission, whose report underpinned the legislation we introduced earlier this year. We would not be voting on this matter today but for the continuing efforts of Senator Brownback. In the House, my good friend, Congressman Bob Ney, and my friend and colleague from Connecticut, Congressman John Larson, worked with us to find a compromise that could be supported in the House and shepherded this legislation to passage on the House suspension calendar on Wednesday by an overwhelming vote of 409 to 9. Their diligence and dedication to this effort was tireless. But no one deserves more credit for helping to realize this dream than does my dear friend from Georgia, Congressman John Lewis. This bill is truly his dream, his inspiration, his vision, his mission. For nearly 12 years John Lewis has made creation of this museum his personal crusade. It has been a labor of love and while the road has been long and filled with bumps, the victory today is his victory. I salute John Lewis for his courage and tireless dedication to this cause. But the ultimate winner today is not just a handful of Members, it is our Nation as a whole. For today, Congress has acted to heal old wounds of the past and formally acknowledge that the stories and contributions of African Americans to the birth and growth of this great Nation must be told to complete our history. Since 1929, efforts have been made to recognize the contributions and unique history of Americans of African descent. It is past time that we publicly acknowledge and incorporate the African American experience into our collective identity. This legislation will help ensure that the compelling stories and invaluable contributions of African Americans to our national fabric will no longer be ignored, but shared with all Americans, indeed, all peoples of the world. With the creation of the National Museum of African American History and Culture, Americans of all races, ethnic backgrounds, and personal histories can come together to celebrate the contributions of all Americans to the rich heritage and culture that is the American melting pot. That is the essence of this legislation--the completion of the American story of our quest for freedom and truth through the public incorporation of the experiences and contributions of African Americans to that struggle. This Museum offers the promise and hope that all Americans can come to understand the full story of how this nation was formed. The House bill before us is virtually identical to the bill Senator Brownback and I introduced in May of this year, S. 1157, which the Senate passed on June 23rd. This legislation directs the Smithsonian Institution to establish a museum known as the National Museum of African American History and Culture. Within 12 months of enactment, the Smithsonian Board of Regents will choose a site for this Museum from among four sites listed in the bill. With regard to the sites available for selection, the House bill deletes the Capitol grounds site contained in the Senate-passed bill and substitutes a fourth site, known as the ``Banneker Overlook site'' located on 10th Street Southwest at the foot of the L'Enfant Plaza promenade on axis with the Smithsonian Castle. The bill directs that, prior to the selection of the site, the Board of Regents will consult with the chair of the National Capital Planning Commission and the chair of the Commission on Fine Arts, as well as the chairman of the Presidential Commission, Congressional oversight committees and others. In the meantime, the Smithsonian Board of Regents will appoint a 19 member council, comprised of leaders within the African American community and others, to advise the Regents on the development, design and construction of the Museum. With regard to the selection of these council members, I was disappointed that the House deleted a provision in the Senate-passed bill which would have required that at least 9 members of the council be of African American descent. This important provision in the Senate-passed bill was modeled on provisions of the act which created the National Museum of the American Indian. As in the case of that Museum, this language was intended to ensure that the sensitivities and perspectives of those individuals whose stories this Museum will tell are properly considered and portrayed. Although I regret that the House deleted this provision, the bill still requires that, in appointing 17 of the 19 members of the council, the Board of Regents take into consideration individuals recommended by organizations and entities that are committed to the advancement of knowledge of African American life, art, history, and culture. Although this change weakens the Senate version of this bill some, the Smithsonian Institution can still ensure the integrity of the content of this museum by appointing members to the council in keeping with the Senate's original intent. As the ranking member of the Rules Committee which has oversight jurisdiction over the Smithsonian, I look forward to working with the Smithsonian to see that this happens. This Museum will include exhibits and programs relating to all aspects of African American life, art, history, and culture from the time of slavery through present day and will provide leadership to other museums and will collaborate with historically Black colleges and universities and educational organizations to ensure the integrity of the exhibits and programming and to broaden the reach of its story and mission. The House compromise also retains provisions of the Senate-passed bill which authorizes a grant program within the National Institute of Museum and Library Services. This program is intended to support organizations dedicated to expanding the knowledge of the African American experience and slavery by providing support for improving operations, care of collections, and intern and scholarship programs. Equally important is a provision which will provide grants to nonprofit organizations whose primary purpose is to promote the study of the African American diaspora. Such grants can be used to increase existing endowment funds for the purpose of enhancing education programs and maintaining and operating traveling exhibits. In Connecticut, we are fortunate to have such an organization in Amistad America, Inc. Amistad America is a national, non-profit educational organization dedicated to promoting the legacies of the Amistad incident of 1839 through the traveling exhibit of the freedom schooner Amistad. The Amistad is literally a floating classroom which celebrates and teaches the historic lessons of perseverance, leadership, cooperation, justice, and freedom inherent in the Amistad Incident. Although its home port is New Haven, CT, the freedom schooner Amistad travels to both national and international ports to bring the story of our collective history and the continuing struggle for equality and human rights to school children and adults around the globe. It is through the efforts of such organizations as Amistad America, with the support of the new Museum of African American History and Culture and the National Institute of Museum and Library Services, that we can ensure that the lessons of the past are not lost on current or future generations. In short, this legislation offers the hope that through knowledge and education, the history of the struggles for freedom and equality of some Americans becomes the interwoven history of all Americans and ensures that future generations will not have to repeat such struggles. I was honored to be the lead Democratic sponsor of this legislation in the Senate, and I am honored to stand before the Senate today to urge my colleagues to adopt this compromise which the House has passed and send this measure to the President for his signature. We would not be at this point today without the dedication and assistance of many people, including the staff who labor many hours and late into the night to facilitate the legislative process. At the risk of leaving someone off the list, I want to recognize those staff for their considerable contributions to this measure, including LaRochelle Young of Senator Brownback's staff; Michael Collins and Tammy Boyd of Congressman John Lewis's staff; Paul Vinovich and George Hagijski of Congressman Bob Ney's House Administration Committee staff; George Shevlin and Matt Pinkus of Congressman John Larson's House Administration Committee staff; Susan Brita of Congressman James Oberstar's House Transportation and Infrastructure Committee staff; Dan Mathews of Congressman Steven LaTourette's Transportation and Infrastructure Committee staff; Bill Johnson of Congressman Jack Kingston's staff; and Kennie Gill of my Rules Committee staff. The action we take today is historic not only in its ability to unify this nation, but in its message to the world that we recognize and cherish the contributions of all Americans to the creation of this great democracy.

Mr. DODD

Mr. DODD. Mr. President, the majority has indicated that as part of this debate to invoke cloture on these three nominees to the Federal judiciary, they may move to consider S. Res. 138, a resolution introduced by the majority leader, Senator Frist, which would amend the Senate rules to treat debate on Executive Calendar items differently than matters on the Legislative Calendar. Nothing is more fundamental to the ability of the Senate to fully exercise its constitutional responsibility to provide advice and consent to the President's executive nominees than to subject such nominees to full and deliberative debate. And any move to amend the Senate rules to place additional limitations on that debate is tantamount to a ceding of legislative branch powers to the executive. I appreciate the opportunity to speak on the issue of proposed changes to Senate rule XXII. The filibuster is widely viewed as one of the Senate's most characteristic procedural rules. I believe we can all agree that the best way to consider a change to Senate rules is to do so in accordance with existing Senate rules. I believe this 30-hour debate will follow Senate rules and precedent. Any attempt to change Senate rules, particularly cloture rule XXII, should be in keeping with the deliberative rules, precedents and practices that have been the hallmark of this institution since it was conceived during a steamy summer in Philadelphia over 217 years ago. Senate rules have endured the age-old test of time, people, places, and events. Senate rules delineate the constitutional responsibilities of the body and define the character of the institution. Making changes to the rules and the precedent of the Senate is not an action that should be taken lightly or for partisan purposes. In the history of the institution, the rules of the Senate have been through general revision just seven times: 1806, 1820, 1828, 1868, 1877, 1884, and 1979. The architecture of our Senate rules and precedents is built on the foundation of the right to debate and amend, the two basic principles that make the Senate the upper House in all of the legislative bodies of the world. If you chip and change this keystone, then you chip and change the Senate as an institution. Herein lies the central paradox and towering majesty of the Senate. What makes this institution so revered and unique is what can simultaneously gall us the most: the practice of extended debate. But the Founders insulated the Senate from sanction for debate and explicitly left it to ``determine the rules of its proceedings.'' The rules of the Senate reflect the intent of the Framers that the Senate be the ``saucer into which the nation's passions may be poured to cool.'' The ability to fully examine and debate any matter of national importance is the hallmark of the Senate. Nowhere more than in the advice and consent responsibility of the Senate do we see the Framer's intent to balance the fear of a resulting tyranny of a majority against the principle of majority rule. As Alexis de Tocqueville observed: ``. . . the main evil of the present democratic institutions of the United States. . . . [arises from] the very inadequate securities against tyranny. . . . if ever the free institutions of America are destroyed, that event may be attributed to the unlimited authority of the majorities, which at some future time may urge the minorities to desperation. . . .'' The President nominates, but his power is balanced, and checked, by the power of the Senate to provide advice and consent. Neither can act alone. And in the case of the judiciary, the creation of the third, separate and equal, branch of Government, the powers are deliberately counterposed. This is not the first controversy over Senate rules, precedents and practices of the right to extended debate. Through our history, the right of extended debate has never been seriously questioned as other than a vital foundation of our Republic. This right has been a catalyst for achieving the most remarkable feature of our civilization: the degree to which we have been able to provide our citizens with, at one and the same time, both great freedom and great stability. As Robert Caro, author of ``The Master of the Senate,'' for which he was awarded his second Pulitzer prize, has observed, and I quote him, ``in creating the new nation, its founding fathers, the framers of its constitution, gave its legislature not only its own powers specified and sweeping, but also powers designed to make the Congress independent of the President, and to restrain and to act as a check on his authority, including power to approve his appointments, even the appointments he made within his own administration. And the most potent of these restraining powers the framers gave to the Senate.'' The power to approve Presidential appointments was given to the Senate alone. A President could nominate and appoint Ambassadors, Supreme Court justices, and other officers of the United States, but only with the advice and consent of the United States Senate. This is the American way and it must remain the American way. While the Founding Fathers recognized the inherent dangers in granting a minority of Senators a veto over the will of the majority, the Constitution did just that. But proposals to limit debate would change that. S. Res. 138, a proposal by Majority Leader Frist, would amend Senate rule XXII to provide for a declining number of votes required to invoke cloture on Executive Calendar items, such as judicial nominations. I have deep reservations about Majority Leader Frist's resolution to amend Senate rule XXII. I fully appreciate the majority leader's desire to expedite the business of the Senate. I fully understand the frustration with respect to the deep desire to invoke cloture on Executive Calendar items, including executive nominations such as judicial nominations. But there is simply no crisis facing our judiciary today that necessitates the damage to the very fiber of this institution that such a rules change would render. The vacancy for the Federal judiciary is at its lowest level in 13 years. Since President Bush came into office, the Senate has confirmed 168 of his nominees and has decided not to proceed with only 4. That is a 98 percent success rate for the President. In my view, this is a great success rate. The Senate must not act to change its rules. To do so now would amount to a ``hijacking'' of the Senate's constitutional duty to provide advice and consent to the President's nomination authority. The supermajority requirement is consistent with the intent, spirit and language of the Constitution. S. Res. 138 presents the question of whether rule XXII should be revised to accommodate a targeted remedy for filibusters of judicial nominations. The real question should be whether S. Res. 138 strikes the most appropriate balance between existing Senate rules and the advice and consent duties of the Senate. In the view of this Senator, it does not. The cloture rule exists by virtue of the longstanding rules of the Senate enacted pursuant to authority under the Constitution, article I, section 5. The Constitution expressly authorizes such procedural rules and sets no standard to limit the Senate's discretion in formulating such rules. Further, the Constitution does not compel the Senate to take any action, much less a final vote, on any matter, legislative or executive. There is no argument to the fact that the Senate has plenary authority to devise its own rules. Nor is there any argument to the fact that there is no right to mandatory majority rule. Most importantly, the Senate tradition on filibuster offends no constitutional edict. In the words of Chief Justice Burger, ``there is nothing in the language of the Constitution or history or our cases that require a majority always prevail on every issue.'' At its most fundamental core, the Senate is a testament to the coexisting rights of the majority and the minority. Small states have an equal say in the Senate's tradition, and rules protect debate no matter whether it is a principled stand of one Senator or a chorus of the convinced. The Senate rules balance majority rule with minority right. As a Senator in this body, I recall watching the Senate as a very determined minority insisted on their right to be heard on the issue of civil rights. Their position on civil rights was unfair, unpopular, and illegal. Yet the majority of Senators did not question the right of the minority Senators to assert their right under Senate rules and precedent to debate, delay, diminish or defeat civil rights legislation. And, the minority did so for years. Ultimately, both the noble principles of racial equality and extended debate prevailed in the Senate. But the Senate rule that had been long thwarted was left essentially unchanged. Prior to 1917, there was only a century old rule that required unanimous consent to cut off debate. This means that for 111 years, the Senate practice of extended debate was absolute in its scope. All Senators had to consent in order to bring consideration of a matter to a close. For the subsequent period of 58 years, two-thirds of the Senate were required to end debate. Currently, three-fifths are required. Until 1949, there was no procedure for limiting debate on nominations in the Senate. For the past 212 years, there has never been a Senate rule that permits a simple majority to force a vote on any matter up for consideration, including judicial nominations. In this historical context, S. Res. 138 would be without precedent to require a simple majority to invoke cloture, in my view. S. Res. 138 would reduce to a majority vote that Senate procedural rule which girds the independence of the coequal judicial branch. There is an irony to S. Res. 138 that cannot go unstated or unexamined. It would reform the cloture process only for nominations and leave cloture for the remainder of the Senate debate as it is. Arguably, it is precisely in the area of nominations, particularly judicial nominations, that the Framers intended these powers to be utilized. S. Res. 138 would fundamentally alter the nature of the Senate and the balance of powers created by the Framers of the Constitution. It would undermine the Senate's role in our constitutional democracy, cede enormous power to the Executive and upset the deliberate system of checks and balances intended by the Framers. S. Res. 138 would fundamentally diminish the Senate's power in relation to that of the Executive. And if the Senate cedes such power to the Executive, then I do not think the Senate will ever get that power back. Of all the issues that the Senate faces now and in future Congresses--such as war, the economy, health, education, election reform, jobs--none is more important than this one on Senate rule changes. Why? Because how we resolve this issue will, in many respects, determine how we resolve all others. S. Res. 138 proffers change that is historically significant. However, S. Res. 138 does not proffer filibuster reform that will permit ample debate while rejecting delay in perpetuity. Nor does S. Res. 138 fit squarely within Senate tradition of balancing the right to debate with the responsibility to conclude the people's business. Instead, S. Res. 138 would shift the balance of power on advise and consent to the executive branch. To accommodate this proposal means a profound change in the Senate as an institution and the character of the Senate as a body itself. It reduces the constitutional advice and consent authority, indeed duty, to a mere rubber stamp of the President's prerogatives. We must always attempt to find the right checks and balances between a rubber stamp and a deliberative body on both legislation and nominations. This is what makes the Senate, as an institution, so powerful, so special, so unique. We must remember that during the Constitutional Convention, only after lengthy debate, was the power to appoint judges committed to the President as well as to the Senate. Why? John Rutledge of South Carolina said it best: ``the people will think we are leaning too much toward monarchy'' if the President is given free rein to appoint judges. The final compromise was characterized by Governor Morris of Pennsylvania as giving the Senate the power to appoint judges nominated to them by the President. In Federalist 76, Hamilton explained, ``the Senate's review would prevent the President from appointing justices to be the obsequious instruments of his pleasure.'' Against this backdrop, I find it quite troubling that Majority Leader Frist now suggests that we narrow deliberation, debate, and the rights of the minority with respect to the nomination process and thereby enhance the ability of the majority to turn the Senate into a rubber stamp of a President's nominee. What is at stake in this debate is nothing less than the integrity of the Senate and the independence of the judicial branch--the deliberate intention of the Framers to ensure against the excess of the Executive. In describing the role of the Senate to provide advice and consent to executive nominations, Roger Sherman noted: ``the Convention, who formed this Constitution, thought it would tend to secure the liberties of the people, if they prohibited the President from the sole appointment of all officers. They knew that the crown of Great Britain, by having that prerogative has been enabled to swallow up the whole administration . . . but this government is different, and intended by the people to be different.'' The real problem here is not constitutional, but rather it is institutional. Senators must think of themselves as part of an institution, held together by a common respect for its rules and traditions. We have a responsibility to the President, the people, and to the institution. This is a moment for Senators, as Senators, to stand up for the Senate. Those of us fortunate to serve in this body are but its temporary custodians. We are stewards of an institution governed by rules and practices that have withstood the test of more than two centuries of time. Now is not the time to retool the rules to achieve goals that are, in essence, transient and partisan in nature, no matter how deeply felt. When in history has the will of a minority--through extended debate been able to stop anything that this Nation desired or that had the broad support of its people? The Senate works its will, extended debate and all, as it was intended to work--in the words of James Madison--`` . . . to consist in its proceedings with more coolness, with more system, and with more wisdom, than the popular branch.'' The disagreements that we have over judicial appointments, and over some legislation, will likely be long forgotten, and of limited consequence, in years to come. But to change the rules and practices of the U.S. Senate in the manner that is here proposed, in my view, would do permanent and lasting damage, not only to this institution but to our democracy that has served us so long and so well. I hope that cooler heads will prevail and that the majority leader will not bring up S. Res. 138 to amend the rules of the Senate. But if that happens, I urge my colleagues, as Senators, to uphold the unique authority of the Senate to give equal voice to all States, indeed to all people, and to forego the political expedience of the moment in order to ensure the integrity of the Senate, and the functioning of this Republic, for generations to come.

Mr. DODD

Mr. DODD. I thank the Chair very much. I apologize to my colleagues for going a little bit. I appreciate the indulgence of the Chair.

Mr. DODD. Mr. President, first, I thank my colleague from Michigan not only for her work today but her tremendous contribution in the relatively short time she has been a Member of this body. We thank her immensely for her very balanced and deliberate approach. I thank her particularly for raising the issue she has today. While the subject matter defined by the majority is the question of judicial nominations, I think the point she has raised, that there are an awful lot of people all across this country who are--while they may be interested from an intellectual standpoint, even some maybe on a more passionate level on the question of judicial nominations, there are a significant number, the overwhelming majority, I think, of people, if asked how they would like to see the Senate of the United States allocate its time and resources, the Senator from Michigan has identified a subject matter that is of far more compelling interest to a larger number of people in this country, the issue of putting people back to work; what has happened to the closure of so many small manufacturing firms all across the United States that have seen their products no longer marketable in this country and elsewhere because of the onslaught of foreign products that have come in through misguided and failed trading agreements we have reached, particularly with the People's Republic of China and elsewhere. So I thank her. I suspect there are an awful lot of people across this country who appreciated the fact that she took 15 or 20 minutes to talk about the 3 million people who over the last 29 months have lost their jobs in this country and who are sitting there today wondering whether or not they are going to be able to keep that home, whether or not they are going to be able to afford their children going on to college, whether or not if they get sick they will be able to pay for that illness, if they had a job that provided health insurance for them. So I thank her and I suspect there are an awful lot of people across this country who appreciate immensely her determination to see that those jobs, not just the jobs of some people who were unable to have a vote on the Senate floor to confirm them for a judicial nomination, will be the consideration of this institution. I must say as well, I appreciate my colleague's kind comments about my efforts as a legislator. I try to take some pride in that. I think my colleagues on the other side know this. I work very hard to maintain my relationships with every Member. Regardless of what battle may ensue today, tomorrow is a new day and I always reach across the aisle wherever I can because I have never seen an issue in my 24 years here that had any value and merit be accomplished without it being bipartisan, ever. I defy any Member to mention a single issue of any significance that was ever adopted by this body that was not bipartisan in nature. When we lose our ability to do that, we not only suffer as an institution but the people we seek to represent suffer terribly. So it is critically important that we make those efforts. I have spent a lot of time over this last number of weeks trying to get something done on asbestos reform. My colleague from Michigan and my colleague from Oregon know of the efforts we made in this regard. It is terribly worrying to me that we are about to end this session. We have 700,000 lawsuits that have been filed for people who were exposed or could get ill from exposure to asbestos. Seventy thousand cases are being filed a year. There are major companies that have gone bankrupt because of the problems with exposure and the liabilities as a result of the asbestos issue. I would have hoped, maybe vainly, that we might spend some time on an issue such as that, candidly. I noticed to my colleagues the other day that while I voted against cloture on the class action reform issue, I immediately took the floor to say I am very interested in a class action reform bill and I am prepared to support one. There were issues that needed to be worked out. I know there are businesses all across this country that would like very much to see us address the issue of class action reform. There is nothing like 30 hours' worth of debate on class action reform. There will be no 30 hours of debate on asbestos issues here, unfortunately. So I say with all due respect--and I do respect my colleagues, all of them--that it is a reflection to some degree of what your sense of priorities is. There are a lot of issues that deserve attention, but I would ask any average American to identify for me, when given the choices to debate, whether or not we ought to do something about class action reform, something about asbestos legislation, something about joblessness, something about Medicare reform, prescription drug benefits. I have seen nothing even remotely close to 30 hours of debate in this Chamber on any of those issues at all--none, absolutely none. So while we in the minority cannot set the agenda, the power of the majority is the power to be recognized, and the power to be recognized means you set the agenda. Even though our ranks are only separated by two Members, the division of two Members makes it possible for the majority to decide what this Chamber will do, what this institution does, on a daily basis, on an hourly basis. The majority, in their judgment, have decided that this issue, the issue involving four judicial nominations, is far more important than anything else on which this Congress, this session, with hours away from terminating it, should spend its time and efforts. I do not disagree that this is an important issue. I think it is an important issue, particularly where we may be asked to vote on changing the rules of the Senate to either eliminate or virtually eliminate the right to filibuster judicial nominations. That is a profound question, and I just regret that it ends up being debated at 2, 3, 4, and 5 o'clock in the morning and not something that ought to consume a serious debate in this Chamber as to the wisdom of such a potential move. I am not sure that amendment is going to be offered, or that idea will be suggested to us by tomorrow, but I have been told it will. I will come to that in a minute. I do think it is important that people wonder whether or not this body, or politics or Congress, ever gets it. One of the questions we all face from time to time when we conduct our town meetings is: Do you have any idea, Senator, what it is like to raise a family today, with all the pressures we are under? Do any of you in Congress--I do not care whether you are Democrats or Republicans--do you have any idea what we are going through out here? When we conduct 30 hours of debate about four judicial nominations, I sometimes think that question has a lot of merit, unfortunately. So I wish we were spending some more time on some of these other issues. Maybe we will get to them. Hope springs eternal, and I will keep trying to work on it. I have been asked to come and spend some time to protect our interests on the floor and so I will utilize some time, as I did last night, to talk about the issue at hand. I am terribly disappointed that we are spending the time of this institution on something such as this when we need to be spending our time, what little time we have, on so many other questions, that so many people in this country want to see us address and try to come up with some answer for. They know it is difficult. Look, what we love about this institution is also what galls us the most about it. The beauty of the Senate is not only the manner in which we do things but also the frustrations that are evoked as a result of how we do things. Had the Founders of this great Republic sought efficiencies, they never ever would have set up this system. The last system you would ever set up, if you were trying to get the job done expeditiously, is the one we have lived with for 217 years. This is a terribly frustrating system. It will drive you to madness watching it happen, particularly this institution of the Senate. When the Framers were debating the existence of a legislative branch--in fact, the idea was pretty much to have a unicameral system I think in the early discussions: One house, simple majority rules. I sit in the seat of a man by the name of Roger Sherman, from the State of Connecticut, who was one of those Framers of the Constitution, the only one of the Framers, by the way, to ever have signed all four of the cornerstone documents of the United States. He signed the Articles of Confederation, the Declaration of Independence, the Constitution of the United States, and the Bill of Rights. I am very proud to sit in his seat in the Senate, after 217 years. In that Constitutional Convention, it was Roger Sherman, my forbearer in this job, who suggested, along with Oliver Ellsworth from Connecticut as well, the creation of a separate body in the Congress of the United States that we have come to know as the Senate. The argument was about small States and large States. The fear was, for people who came from smaller States, that in the House of Representatives, since it would be determined by population, large States by population would so dominate the Congress of the United States that those who lived in smaller States would be overwhelmed. They were about to vote against the Constitution when Sherman and Ellsworth came up with the idea of a Senate, where every State, regardless of size, would have equal representation--two Senators from every State. My colleague from New Hampshire and I from Connecticut, small States, we have two Senators; my colleague from Michigan, a large State, and from California, two Senators. It is a rather beautiful system in a way. They went beyond the idea of just small States and large States. The seed of the notion that there ought to be a place where the rights of a minority get protected was also included in this concept. In the House of Representatives, in which I had the privilege of serving for 6 years before coming to this body 24 years ago, the majority rules. If you are in the minority in the House--I do not know if my colleague from New Hampshire ever served in the minority in the House, but I certainly did not; I was always in the majority there-- being in the minority in the House is painful because it can roll right through you. What the majority wants to do happens. That is it. In this body, the idea was to create a place where the minority interests, including a minority of one, would have rights that you would never get in the House of Representatives. Hence the right of one Senator, if they stand up and can stand long enough and do not leave the floor, to have the right not to be interrupted, extended debate; the right to amend. It has been a wonderful balance. The rights of a majority are down the hall. The rights of a minority are here in this Chamber. We have tried over the years to see to it that those unique rights give us a sense of balance, what one of the Framers called the saucer--the Senate--in which the passions would cool, because the tyranny of a majority can be overwhelming. So the Senate was a place to say let's stop, let's take a look, let's think again about whether or not this is the right way to go. Now, if we go back and look at the genesis of the thought process that was involved in the creation of the Constitution in this Republic, a unique event in the history of mankind, certainly they had been through an experience where a king had been overbearing. Remember, two- thirds of the population of this country in 1776 was not terribly enthusiastic about a revolution. Only about a third of the population thought that was necessary. As the tyranny of a king grew larger and people's rights were being deprived, taxations levied without their ability to be heard, they decided: We need to move away from that. So as this system evolved and a discussion of what it would look like, the last thing the Founders wanted to do was create an executive without some checks and balances on it, an unlimited tyranny of an executive. In fact, as I pointed out last night, there is ample evidence, of course, that when it came to judicial nominations, the Framers did not want to give the right to nominate to the President. It was only an afterthought that said, on judicial nominations, they ought to go to the President, and then the Senate would provide its advice and consent. I carry with me every day a copy of the U.S. Constitution. It was given to me by my seatmate Robert C. Byrd many years ago. It is a rather worn-out copy of this wonderful document, but I carry it with me 7 days a week. I read it constantly. As I get older, my appreciation for the wisdom of these people grows deeper. It is very clear article III of the Constitution lays out judicial power, the judicial part of it. It says that people are appointed to the courts, supreme and inferior courts, and they will serve for life, during good behavior for life. It is unique. It is the only office in the country where one gets a lifetime appointment. The President does not. Members of Congress do not. A Federal judge gets a lifetime appointment. If you are appointed when you are 35 years of age and you live to be 85--50 years--unless you do something terribly wrong, you are there; you are not going anywhere. Of course, in article II, they lay out in section 2: He--speaking of the President--shall have the power, by and with the advice and consent of the United States Senate, to make treaties, and so forth. It goes on. And by and with the advice and consent of the Senate shall appoint ambassadors, other public ministers, and so forth, judges of the Supreme Court, and all other officers of the United States. Does anyone really believe for a single moment that the Framers of this unique document intended that the President, the executive branch, would appoint and that it was then the duty of this body to just rubberstamp that choice? Of course not. In fact, they did not even want to give him the power to appoint to begin with because they were uneasy about someone having too much power in their own hands. I suspect our predecessors probably had in mind what some of the more recent predecessors did with postmasterships. I remember my father talking about the postmastership appointment. He used to say that this was a dreadful idea, to give Senators the right to appoint postmasters, because he said inevitably you would have about 100 applicants for the job. Of course, once they were confirmed, they could never get involved in politics again. So he used to say you would end up with 99 enemies who did not get the job and 1 ingrate who did who could never talk to you again. I suspect that may have been true as well about Federal judgeships, that our colleagues in the Senate, in the earliest days, probably said: Look, we do not want the business of having to nominate these guys because inevitably we are going to pick someone and the other guys are people who are going to be upset with us. So why do we not give that to the President, let him appoint them, and then we will decide whether or not they deserve to be confirmed. The notion somehow that one has a constitutional right to a vote--I have read this document; I read it every day--there is nowhere in this document one gets a constitutional right to a vote on anything, any more than the American people have a right to a constitutional vote on the minimum wage or on Medicare reform or any other matter I want to bring up. There is no constitutional right to that. There is certainly no constitutional right that if one gets nominated to be a judge, they have a constitutional right to be voted on. Nowhere does the Constitution give someone that, in any area whatsoever. The idea somehow that we would only apply a filibuster to legislative matters and not judicial nominations, so one can filibuster a sense-of- the-Senate resolution----

Mr. DODD

Mr. DODD. Mr. President, I begin by thanking my colleague from Michigan for his comments. I intend to share some similar thoughts this evening. First of all, let me begin by stating my own views about this process this evening and note--some have chosen to use the word anger--but I rise more in sadness. We are gathered to engage in this--I do not know what it is properly called--I guess a filibuster. It is unique in that the majority is conducting a filibuster. Normally, a filibuster, for those who are interested in how this works, is conducted by a minority within a minority, but we find ourselves this evening a few short days away from the end of this particular session with a tremendous amount of unfinished business, and we are spending the next 30 hours--or 26 hours, whatever is left--on this particular debate and discussion, which I suppose has some value in the mind of some. As far as this Member is concerned, I regret in some ways even addressing the matters before us this evening. The better approach might have been to protect the rights of the minority but not to engage in this debate. There may be four votes that will occur on Friday. Three of them involve individuals who are seeking appointment to the Federal judiciary. With all due respect to these particular nominees, putting aside one's views or whether they are for or against them, history will probably little note nor record for any great length of time who they were. That is not in any way to suggest they are not worthy individuals, but in the passage of time, these nominations will not register terribly significantly in the history of the debates of this great Chamber. I arrived as an employee of the Senate about the age of 17 when I sat on these steps. Lyndon Johnson was the majority leader of the Senate. There was Everett Dirksen and Senator McClellan. It was a sea of giants who served in this body. I tried to imagine this evening whether or not they might proceed in a debate like we are having, but I cannot imagine them doing so, quite candidly. I am afraid we are diminishing dramatically the incredible historic role of this institution by this process. When I think of all the matters that deserve our attention, when I think of all of the Herculean debates that have occurred in this Chamber throughout the 217-year history of our country, some of the great debates deciding who we were as a society--I sat on that step over there and listened to the all-night debates on civil rights in the early 1960s. I listened to southerners argue vehemently on behalf of their position regarding States rights. They were incredible debates. Never once in all of that process that I watched as a child sitting out there did I ever hear anyone suggest we ought to change the rules of the Senate. Even among those who were outraged that there were those who were arguing about denying a substantial minority of citizens of this country the right to participate freely in the democratic institutions of America, never once did anyone suggest we ought to somehow curtail the right of a minority to be heard in debate, extended debate. Never once. Yet here we are tonight, having an extended debate over three or four judicial nominations. We may be asked on Friday to cast a ballot about amending the rules of the Senate to fundamentally change what has been a central ingredient of why this institution has been as celebrated and honored throughout the 217-year history of this country. That I find rather appalling, that we would gather at this hour with all of the other issues in front of us. I spent 2 hours yesterday at Walter Reed Hospital. I took my 2-year- old daughter out to visit with the young men there, many of whom are missing limbs. I saw several of my colleagues out there, by the way. Sam Brownback was out there. I went to spend a quiet couple of hours to express to these young men my great admiration for what they had done for their country. I would like to think they might think something larger of this institution other than that we would engage in a discussion and debate tonight about three or four judicial nominations. Other of my colleagues have made comments about the numbers that have been approved and not approved. I am not a member of the Judiciary Committee. I have heard my colleagues extol the virtues of these nominees. I have heard others excoriate them. I will leave that debate for others. The vote I am most worried about is the possible fourth vote that may occur on Friday, and that is whether we are going to change the nature of this institution because some of us are disappointed about some outcomes of votes. I would hope whatever else ensues or passes over these next 30 or 40 hours that when it comes to that vote, maybe there will be those who will get up and defend this institution. It is inappropriate for me to do so, but I will note the fact that there are those watching this debate this evening in this Chamber who are of a younger generation. They are students, I suspect, in some way wanting to participate or witness what some have tried to describe as an historic event. I would hope they take note of the arguments in debate about what is important, why the Founders created this institution, why we are not a unicameral body, as some State legislatures--why we are a bicameral body, why it is there is down this corridor a House of Representatives at that end of the building and a Senate at this end. What are the fundamental distinctions between these two branches of one House? Why are we different? Why do we exist? What did the Framers have in mind when they created this institution? It is this very debate that gives justice, gives rationale to the existence of the Senate. One needs only to go back to the Federalist papers, and as I look around this Chamber there are the forebears of those who sit in these seats who made the most eloquent arguments on behalf of the notion, of the idea, of having extended debate and the right and power to amend. Those are the two central ingredients which make this institution so unique. When we begin to erode those very powers, then the very justification for this institution begins to diminish. We end up creating nothing more, potentially, than a mere image of the body that is at the other end of this hall. I gave some remarks going back a number of weeks ago in front of the Rules Committee. I am the ranking Democrat of the Rules Committee. As such, I bear a responsibility, along with my colleague from Mississippi, who is the chairman of the committee, to consider such matters. I have great respect for the majority leader, but I would hope as we discuss the idea of amending rule XXII, that we would keep in mind what the Framers had in mind when it came to nominations, particularly nominations of a life tenure. It is one thing to be talking about nominations during the duration of a given administration, but with judicial nominations it is for life. Depending on how young that person may be, an Federal judicial appointment can go on for decades. And so the Framers, given the experience they had come through, with the tyranny of a king, desired to create a system whereby the third coequal branch of government would have powers delineated between the executive branch to appoint and the legislative branch to approve, to provide its advice and consent. If the ability of this institution to thoroughly exercise that right of advice and consent is destroyed, then we run the risk of creating a judicial branch, a coequal, that becomes nothing more than the hand servant of the executive. That is what the Founders worried about. It is what Senator Rutledge of South Carolina argued for when he spoke eloquently about the importance of keeping an independent judiciary. In fact, for many weeks, during the constitutional convention, they argued the President ought to have no rights when it came to judicial nominations, that that right ought to be exclusively contained in the Senate of the United States. As a result of compromise, it was ultimately decided that the power to nominate individuals should reside in the executive, and the power to approve should remain here, thus guaranteeing, to the extent possible, an independent judiciary. What is being suggested by the fourth vote we may be asked to cast on Friday is that we undermine that very principle which has survived for 217 years. I would hope with a resounding vote, both Democrats and Republicans, whatever strong feelings there may be about these three or four nominees, or whatever the number is, that we would not allow this institution to be diminished, caught up in the passions of these nominations. History will not record nor remember who these people are, but if we undermine this institution's ability to do what our Founders asked us to do, then history will record forever our shortsightedness. I regret in a sense having to engage in this debate. I was stunned to learn that in addition to this 30 hours of ``circusry'' going on here, and the three votes that will occur on Friday, there may be a serious effort to vote on whether this institution should give up its right to be able to have extended debate on judicial nominations. This institution and its history deserve more. The fact that the Senator from Michigan and I have to arise at 10 at night to argue about something as fundamental as a rule change in the Senate and to be asked to vote on it with maybe 5 minutes of deliberation before that ballot is cast on Friday is incredible to this Member. It is incredible we would have to do this. Does not anyone care about being here? We are only temporary stewards. My colleagues and I are just guaranteed a short amount of time to be a part of this institution. We do not own this. We bear an historical responsibility to those who came before, but an even greater one to those who come afterward, to see to it we maintain the order and the ideals embodied in the creation of this institution. That we would relegate a fundamental change in the rules of the Senate to a debate occurring between 10 and 2 and 3 and 4 and 5 a.m. in the morning, with a vote to that may be cast on Friday without further deliberation, I find stunning in its dimensions. This is a matter that deserves far more deliberation and thought, whatever one's views may be on these nominations. To find ourselves, with all of these other issues that are in front of us, to have to defend the Senate in the wee hours of the morning about a rule that has sustained us as an institution, is something I regret deeply. I hope my colleagues, whatever their passions may be about Miguel Estrada, Priscilla Owen, William Pryor, and Charles Pickering--I do not know these individuals. I presume they are good people, whatever differences we may have, as I am sure there have been people who have been nominated in previous administrations who are also good people who were rejected because the majority today disagreed with them. I am sorry that happens to people, but unfortunately, that is one of the aspects of a process such as we have, as imperfect as it is. The idea that our passions are so wrapped up in these individuals that we are willing to squander the rules of the Senate is disturbing. We should always know that it may only be a short time before roles may be reversed. This party in the minority may be the party of the majority in the future. And in the future, the party of the President may, of course, be different. I would hope we would never suggest changing the rules of the Senate because we are momentarily disappointed that certain individuals, whatever contributions they may have made in their lives and to their communities, are so deserving that they warrant changing the rules of the Senate because they are not getting a position they seek. I hope we have not come to that. I yield the floor.

Mr. DODD

Mr. DODD. Mr. President, I rise today to urge my strong support for S. 1753, the National Consumer Credit Reporting System Improvement Act of 2003. I would like to commend both Chairman Shelby and Ranking Member Sarbanes on this legislation and the thoroughness of the hearings which preceded this legislation. I applaud their deep commitment and thank them for their strong leadership on this issue. This legislation is not perfect. It is not the bill that I would have written. Nor do I believe that this legislation represents a perfect bill from the perspective of the chairman or ranking member. However, I believe that it is a bipartisan bill that does a lot of very good things, and was put together in a very balanced manner. The Banking Committee, both during the hearing process and the mark- up of this legislation examined the numerous issues surrounding the Fair Credit Reporting Act: accuracy, privacy, security, financial literacy, among others. We learned some critical information during this process. I believe that the hearing process shed significant light on the positives of the Fair Credit Reporting Act and gave us insight on how to enhance its effectiveness. The consumer credit system is critically important to our nation's economy, and this legislation attempts to balance the greater access to credit for consumers, more efficiency in the credit granting process and the needs of consumers to have greater accuracy and privacy protections. Numerous witnesses testified to the need to improve accuracy in the credit reporting process. Concerns were raised that currently the critical information that is used in the credit granting process is not as timely and accurate as is necessary. Accurate credit reporting is essential to the proper functioning of our credit system and to the financial security of American consumers. Also, consumers must have a clearly articulated remedy for correcting errors when they do occur. Additionally, consumers must be given greater knowledge and control over their personal financial information. The hearing on affiliate sharing shed light on current practices and the positives and negatives associated with those practices. The committee heard from numerous witnesses that consumers were not provided with the tools necessary to fully understand the credit reporting process and become adept to using it to their maximum advantage. Financial literacy is not a one time event--it is a long process--educating more and more Americans as they become consumers. Of special concern, we learned about the epidemic of identity theft. Identity theft is a growing problem affecting millions of Americans and that we must devote our full attention to increasing the security of financial information. We heard from a witness named John Harrison, a retired Army Captain from Connecticut who was the victim of identity theft. His credit reports clearly contained false information-- misinformation that was planted there by a criminal--but Captain Harrison has had--and continues to have--enormous difficulty restoring his credit worthiness. These are just some of the lessons regarding the current operation of the Fair Credit Reporting Act. This legislation addresses many, if not all, of the concerns raised throughout the six hearings conducted by the committee. This legislation strengthens consumers' ability to control both their personal financial and medical information. I have long supported the need to improve the privacy rights of consumers with respect to genetic, medical, and financial information. I am a cosponsor of legislation which would provide greater choices for consumers to prevent sharing of information between affiliates and unaffiliated third parties. While this legislation does not go far enough to completely protect consumers, I believe it is an important step in the right direction. This legislation provides consumers with the ability to prohibit affiliates from using their personal financial information for solicitations and other marketing purposes. In addition, an important amendment was adopted on the floor to provide consumers with additional protections against the misuse of sensitive medical information. It also contains important provisions that will significantly enhance consumer protections against the growing problem of identify theft. Additionally, it grants consumers with access to one free credit report per year from the credit reporting bureaus. This access will allow consumers to monitor the accuracy of the information contained in their credit files and ensure that information resulting from identity theft does not end up destroying their financial reputation. And by providing consumers with a free credit report, and access to the information used by creditors to judge their creditworthiness, this bill equips consumers with the tools to competitively shop for sources of financing and will lead consumers to make better informed and more judicious, credit-related decisions. I believe that we can do more to give consumers better control over their personal information and how financial institutions share their information with their affiliates, for marketing as well as other purposes. This legislation is an important step in the right direction. Irrespective of any changes that I, or others, may wish to raise with regard to S. 1753, there is no doubt that this legislation significantly improves the current privacy and accuracy standards of our consumer credit reporting system. Again, I would like to thank Senators Sarbanes and Shelby and their staffs for their hard work on this legislation. I urge my colleagues to support S. 1753.