Michael Enzi

Mr. ENZI

Mr. ENZI. Mr. President, I ask unanimous consent that the Senate go into a period of morning business, with Senators permitted to speak therein for up to 10 minutes each.

Mr. ENZI

Mr. ENZI. Madam President, I rise, again, in opposition to the nomination of Patricia Smith to serve as the Solicitor of the Labor Department. As I noted on Monday, the Framers crafted a system of checks and balances to ensure that each government branch has a means to review the actions of other branches. In the Senate, one of those checks is our constitutional duty to provide advice and consent on executive branch nominations. The leader earlier talked about the amount of time it takes for cloture on people. It does take quite a while, but it is part of the process. I can tell you, when there is a hearing on a person, if there are 270 questions to start with and the other people in a similar position have a couple dozen questions, you know there is a little bit of a problem that could develop with that one person, depending on how they answer or don't answer the questions. This isn't something new. This isn't something that happened just this year. I was chairman of the HELP Committee for 2 years and then ranking member for 2 years. During that time, President Bush had an appointment as the FDA Commissioner that was stopped. We never even got him to the floor. We had an MSHA Director--I think it was the first MSHA Director--who worked in a mine. That was the mining safety person. We had a Surgeon General and others. Then the schedule was set up so there were no recesses so there couldn't be recess appointments. So this is an ongoing matter and both sides should take note of that and ask the person making the nominations to come up with reasonable nominations, not people who have an agenda already set out that will result in the kind of conflicts we have had on some of these nominations. This advice and consent is a responsibility I take seriously. Nominees before the Senate must be qualified and present their credentials to us completely and honestly. Senators have an obligation to confirm nominees who possess the strength of character and experience required for a position of public trust. I rarely oppose Presidential nominees and to date have supported over 50 nominees reviewed in the HELP Committee since the President was inaugurated. I believe the President is ultimately responsible for the conduct of his administration, so he has a right to select his team, up to a point. New York commissioner of labor Patricia Smith's long record of public service--which my colleagues in the majority have discussed in detail-- would ordinarily have made her a bipartisan choice to lead one of the most important offices in the U.S. Labor Department. Unfortunately, her misleading testimony to the HELP Committee has caused me to lose confidence in her nomination. I spoke on Monday about the specific factual inconsistencies, and on Tuesday I discussed a number of other concerns about Ms. Smith's agency and a program she created and implemented in New York. I have also posted a 41-page report detailing my concerns with Ms. Smith's nomination on the HELP Committee Web site. The report found that Ms. Smith misled the HELP Committee over the course of several months. That report may be found at http://help.senate.gov/imo/media/doc/ 2010_02_011.pdf. The majority acknowledges that there are factual inconsistencies between what Ms. Smith said before the HELP Committee and official documents from the State of New York. The suggestion that the rationale for these inconsistencies lies in the fact that Ms. Smith was busy running a large agency and cannot really be held accountable for this small program is simply not supported by the facts. Official documents show the following: Ms. Smith named the program. She personally met with the union organizer and community organizing advocates developing it with her subordinates in November 2008. She personally met with the five trade associations concerned about the program. She personally promoted the program in speeches, internally to her staff and to the media. Ms. Smith was involved in close to 100 communications about the program, either being referenced or as a sender or recipient. Moreover, she admits her program was the topic of numerous personal discussions she had with the New York Governor's Office: Beginning in the late fall of 2008, I also discussed the pilot on numerous occasions with Jeff Mans, the Deputy Secretary to the Governor for Labor and Financial Regulation. I have no written notes from the conversations and can not tell you on what days the discussions took place as I speak with Mr. Mans at least three times a week and there was never a conversation specifically devoted to the pilot. The purpose of the conversations was to apprise him of the Labor Department's ideas for the pilot and to get the approval of the Governor's office. . . . I had a telephone conversation with the Assistant Counsel David Weinstein of the Governor's counsel's office, and Deputy Secretary Mans, on February 4th. I answered questions about how the program operated. I have heard the suggestion from the other side of the aisle that because the program does not appear illegal or immoral, Ms. Smith should get a pass for her factual inconsistencies. However, the question of whether Wage and Hour Watch was ethical or legal is irrelevant to whether Ms. Smith's testimony was inaccurate or misleading. The majority also argues there was a possible breakdown between Ms. Smith and her deputy that caused the misleading testimony. Ms. Smith, however, has worked with her deputy for more than five years. Moreover, if confirmed, Ms. Smith would be in charge of legal compliance for a Department whose budget projects spending ten times what she oversees in New York--$104.5 billion in 2010. Leaving aside the extensive documentation showing she was heavily involved in this program, I ask my colleagues: why would we consider expanding her responsibility tenfold when she has been unable to oversee her subordinates effectively in New York? In August, I noted my concerns to President Obama, and offered my assistance in ensuring a qualified replacement would be confirmed quickly. I also joined nine Republican HELP Committee members in urging Chairman Harkin to refrain from approving this nominee in committee and made the same offer of assistance in ensuring a qualified replacement is given a swift review and confirmation. I was forced to insist on a full debate on her nomination, which advanced on a party-line vote this past Monday. It is clear that Ms. Smith's statements misled the committee. It is also apparent that each inconsistent statement in effect downplayed concerns held by Republican members. Most disturbing, however, is that her written committee responses suggest Ms. Smith knew her testimony was misleading as early as July 2009 but did not correct the problem until contacted by a. majority staff in September--more than 2 months later. I strongly believe that confirming someone as a head legal officer for a Cabinet agency under these circumstances sends the wrong message to the American people and the career staff she will oversee. I am also particularly disappointed that such a controversial nominee is being forced through before newly elected Senator Scott Brown is sworn in. These sorts of actions may be part of the reason public confidence in Congress and the government is so low. I urge my colleagues to oppose this nomination. I yield the floor and reserve the remainder of my time.

Mr. ENZI. Madam President, what is the time situation?

Mr. ENZI. Madam President, this argument about using the filibuster-- I have to say that both sides have used the same cloture techniques. I think if you check with the Bush nominees, we usually withdrew those and put someone else in. Of course, that had something to do with the relative size of the majorities. But the problem here is with how the program was run. We keep talking about whether it was legal. It probably was legal, but there are some things done there that I don't think the average person wants done to them. The Wage and Hour program was to recruit and train union organizers and public interest groups to go into businesses with compliance literature and interview employees to discover violations of the wage and hour law. It was expanded to include OSHA. The State of New York gives participants materials to disseminate and official cards identifying them and their group as part of a program for when they enter businesses and speak with the employers and employees. As part of this process, union and community organizers were directed to gather personal telephone numbers, vehicle license plates and home addresses of business owners, as well as details about the employees working there. Labor organizers and community activists were allowed to use this information for their own organizing activities. State identification cards were provided to the individuals, but the State conducted no background check on those they trained and provided identification cards. Is that the kind of program we would expect Ms. Smith to federalize if she became a Solicitor? A deep concern to me is how Ms. Smith described the decision not to conduct vetting or background checks for the Wage and Hour Watch participants who could collect this personal information. When questioned about it, she explained there is no formal vetting process for the New York State Department of Labor to partner with an entity. They did not consider the possibility of background checks on the groups, but ultimately rejected the idea after inquiring as to why the Neighborhood Watch groups were subjected to background checks. The department was informed that the groups participating in this more sensitive crime prevention partnership are not subject to a check. But there is a major difference in the way they work. The National Sheriff's Association Neighborhood Watch Program, unlike the Wage and Hour, is purely an observe and report program. Calling the police about suspicious activity in a public area is different than investigating the wages and hours of individual employees and recording their personal contact information. So for these reasons, and the ones I have given on previous occasions, and that Senator Isakson has given and members of the committee have expressed, I urge my colleagues to oppose the nomination. I yield the floor and the remainder of my time.

Mr. ENZI

Mr. ENZI. Mr. President, since we are technically under 30 hours of debate on the nomination of Patricia Smith to be Solicitor of Labor, I will rise in opposition to that nomination, as I did yesterday. I will elaborate a little on my concerns about the personal privacy violations in a program she created in 2009 called the Wage and Hour Watch. The Wage and Hour Watch program recruits and trains union organizers and public interest groups to go into businesses with compliance literature and interview employees to discover violations of wage-and- hour law. The State of New York gives participants materials to disseminate and official cards identifying them and their group as being part of the program for when they enter businesses and speak with employers and employees. As part of this process, union and community organizers were directed to gather personal telephone numbers, vehicle license plates, and home addresses of business owners, as well as details about the employees working there. These are people with 1 day's training and a special card from the government. Labor organizers and community activists were allowed to use this information for their own organizing activities. State identification cards were provided to individuals from various unions and community organizing groups to investigate businesses--but the State conducted no background checks on those they trained and provided identification cards to. Is this the kind of program we could expect Ms. Smith to federalize if she is confirmed as Solicitor? Another deep concern to me is how Ms. Smith described the decision not to conduct any vetting or background checks for Wage and Hour participants who could collect this personal information. When Ms. Smith was questioned about this by the HELP Committee last year, she explained that ``there is no formal vetting process for the New York State Department of Labor to partner with any entity. . . . The Department did consider the possibility of background checks on the groups but ultimately rejected that idea after inquiring as to whether Neighborhood Watch groups are subjected to background checks. The Department was informed that the groups participating in this more sensitive crime prevention partnership were not subject to a check.'' Ms. Smith explains the lack of a background check because the program is modeled after the National Sheriff Association's Neighborhood Watch program. However, unlike Wage and Hour Watch, Neighborhood Watch is purely an observe-and-report program. Calling the police about suspicious activity in a public area is different than investigating the wages and hours of individual employees and recording their personal contact information and investigating OSHA violations. For all of these reasons, I have grave concerns about Ms. Smith's decision to allow those who may have criminal records or may not be legal residents of the United States to be trained and gather information under the auspices of New York State authority. These instances reinforce the serious reservations I hold regarding Ms. Smith's judgment, competency, and ability to lead the Solicitor's Office. I urge my colleagues to oppose this nomination for those reasons. I want to also elaborate on my concerns about her agency's treatment of small businesses. Ms. Smith's Wage and Hour Watch program specifically targets small- and medium-size businesses, including, for example, supermarkets, laundromats, nail salons, for State-authorized investigations by unions and community groups. Five trade associations representing small- and medium-size businesses wrote to Ms. Smith to question her agency's decision to target them and launch her program without any input from them. To quote them: The image painted by the Department of Labor in its January 26 release is of a posse of activists, duly deputized by the weighty imprimatur of the Department, demanding access to any employer in the state whom they have chosen either at random, or by prejudice. Notably, the program had been launched and in existence for 2 months before she met with the trade associations. The New York Post characterized the program as ``vigilante labor justice'' targeting small business. In documents produced to the committee, we also find that there is a culture in the New York State Department of Labor where bureaucrats often feel little responsibility for treating business fairly. For example, when a reporter misquoted Ms. Smith's Deputy and protege, Terri Gerstein, she responded in an e-mail: I never have said that any part of our job is to protect employers against employees who abuse their rights. I have been in this field for 15 years, and I have never said anything like that. Employers have attorneys who can play that role. All the workers have is us. Small business doesn't just run out and hire attorneys, and they are not used to having people come in at random and flash cards and take a look at their business. In announcing the Wage and Hour Watch program, Ms. Smith stated her opinion of the business community as follows: And as the economy continues to reel, businesses find any way they can to cut corners. Unfortunately, this is often at the expense of the workers who keep them going. . . . The future is now, it's here, and today the Labor Department expands its field of battle. I have found that whether it is employees or employers, there is probably about 1 to 1.5 percent that will do the wrong thing no matter what the law is. We have to set up mechanisms to make sure that doesn't happen and that people are properly treated. But to assume they are all going to cut corners and harm employees is the wrong approach. Moreover, according to internal e-mail, the program was designed for ``community enforcement'' and created by organized labor, allied public interest groups, and her Deputy without any consideration of small business. There are also questions whether the State honors its commitments to business. Ms. Smith met with the trade associations concerned about Wage and Hour Watch in March 2009--2 months after it started--and personally committed to banning the pilot participants from promoting their individual organizations simultaneously with Wage and Hour Watch activities. The official documents received from New York, however, do not show this agreement was implemented and, in fact, appear to show the Department allowing the groups to continue these activities. These instances reinforce the serious reservations I hold regarding Ms. Smith's judgment, competency, and ability to lead the Solicitor's Office--more reasons I oppose her nomination. Leaving aside the clear inaccuracies of her testimony to the Senate, you will recall that I spoke extensively on that yesterday, where she gave us testimony and then we gave her a chance in written questions to correct her testimony. She did not. So there are also concerns with Commissioner Smith's ability to be a fair arbitrator and enforcer of our Nation's labor laws. In every instance I am aware of, Ms. Smith has shown herself to be a trusted ally of organized labor and even allows them to participate heavily in the formulation of her agency's initiatives. Indeed, the State of New York's official records show that two of the pilot groups for Wage and Hour Watch, a senior union organizer and a public interest entity financed in part by unions, were heavily involved in developing all aspects of the Wage and Hour Watch program, including participant eligibility, program documents, training, and press strategies. One of the union's written work plans stated they were going to use Wage and Hour Watch in ``all of our organizing campaigns,'' including those outside their designated area. Also, a food and commercial worker union's newsletter states plans to specifically investigate ``nonunion'' groceries as part of the Wage and Hour Watch. The cochairman of the State's Wage and Hour Watch program is the president of a union. Several program expansion applicants have as their sole purpose union organizing. State officials also planned to ensure upstate trade unions would be eligible. Documents also show the New York Labor Department allows unions to participate in the wage-and-hour law investigations, including interviews of workers with potential claims. Ms. Smith's interaction with some of the organized labor allied groups goes back to when she headed the labor bureau for then-New York State Attorney General Elliott Spitzer. Records show these same groups teaming up to coerce neutrality agreements and organize business. With the Wage and Hour Watch program, union organizers now had official State identification cards they could use to enter any business in New York--possibly allowing them to avoid nonsolicitation laws or policies--to gather information on employers and employees. The unions were allowed to contact employees or employers at their homes or at the business as part of ``community organizing.'' Ms. Smith twice also attempted to alter a longstanding legal position to restrict charter schools for the benefit of organized labor--once while in the Attorney General's Office in 2007 and again when she became Commissioner of Labor. In both instances she was reversed by a court. Commissioner Smith also maintains a senior executive for outreach solely to organized labor--currently staffed by someone who worked for 23 years for the AFL-CIO in organizing and with the SEIU. Notably, there is no such equivalent role for outreach to small business or nonunion employees. While I appreciate that organized labor is an important stakeholder in New York, this record of favoritism, including allowing union organizers to participate in State labor law enforcement, strikes me as clearly inappropriate. Indeed, I cannot imagine how my colleagues would react if a Republican nominee in a future administration deputized trade associations to investigate or enforce laws with regard to unions. As you can tell, I have grave concerns about this nominee because of these actions. But having also learned that she misled the Senate, and then didn't correct her answers when she got the chance, I cannot support her. I urge my colleagues to oppose Ms. Smith. I yield the floor and suggest the absence of a quorum.

Mr. ENZI

Mr. ENZI. Mr. President, I rise in opposition to the nomination of Patricia Smith to serve as the Solicitor of the Labor Department. I have got to tell you, this is my 14th year in the Senate, and this is the first time I have taken the lead in opposition to a nomination that has come through my committee. I take this very seriously. When the Founding Fathers drafted our Constitution, they were very concerned about concentrating too much power in any branch of the government. That is why they carefully crafted the system of checks and balances to ensure that each branch of the government has a method of checking the work and operations of the other. Here in the Senate, one of our great checks has been our duty to provide our advice and consent to the nomination of the executive branch. That is a responsibility I take seriously. That compels us to ensure that nominees who were brought before us are qualified and they have presented their credentials to us completely, thoroughly, and honestly. Each nominee must pass the vetting process to ensure he or she possesses the strength of character and the experience to ensure that the public can trust in his or her ability to carry out the duties of the office for which they have been nominated. My Senate colleagues know I rarely oppose Presidential nominees. I believe the President is ultimately responsible for the conduct of his administration and is also answerable to the Nation's voters, so he has the right to select the members of his team, up to a point. That is where the advice and consent comes in. Before I elaborate on her nomination, I do want to recognize her accomplishments as the Commissioner of Labor in New York and the commitment she has shown to serving the people of New York. Her prior service would ordinarily have earned her our support and make her a bipartisan choice to lead one of our most important offices in the Labor Department. Unfortunately, there are other considerations which must be taken into account in reviewing her credentials for this position, which I believe disqualify her for this position. I have released a ranking member's report detailing my concerns with Ms. Smith's nomination and posted them on the HELP Committee's Web site. Today I will explain the factual inconsistencies between what Ms. Smith said before the HELP Committee, for the record, compared to what is recorded in the official documents I have received from the State of New York. The Solicitor of Labor is an important role. He or she is the chief legal officer of the U.S. Department of Labor, the third ranking official in that Department, General Counsel to the Secretary, and is asked to manage one of the largest legal offices in the Federal Government, with more than 400 attorneys serving on the Solicitor's team. Unlike most legal offices in Cabinet agencies, the Solicitor of Labor has independent litigating authority from the Department of Justice and exercises that authority on behalf of the Department of Labor. The Solicitor is also responsible for ensuring that all stakeholders, including small businesses, are treated fairly. In the course of conducting a thorough review of Ms. Smith's background and qualifications, the committee discovered a program in New York State called Wage and Hour Watch that she announced in January of 2009. The program was established to recruit and train union organizers and public interest groups to leaflet businesses with compliance literature and to interview employees in an effort to find violations of the law that could be used to bring State actions against businesses. As part of the program, Ms. Smith committed to providing the groups with a direct pipeline to senior State enforcement personnel to report any violations found. Participants were given official cards by the State of New York identifying them and their group as being part of the program. Here is a copy of one of the cards. You will find down there across from ``date'' that this is for a 2-year period starting on February 7, 2009. You got one of those cards after 1 day of training. According to the New York State Department of Labor's press release on January 26, 2009, Wage and Hour Watch is: modeled in part after Neighborhood Watch, [the program] will help promote labor law compliance through formal partnerships between the New York State Labor Department and community groups and provide ordinary people with a formal and systematic role in the fight against wage theft. That sounds good, except Neighborhood Watch was set up so that people would notify law enforcement authorities of things they thought were strange and should be looked at. They did not have permission to go into people's homes and investigate unannounced. The release also identifies the six groups, two labor unions and four community organizing groups, chosen by Ms. Smith for the program and explains that they have been active in labor issues and referred cases to her agency. Upon the conclusion of my remarks, I will ask unanimous consent that all documents referenced be made part of the Record. In addition to her May 7 confirmation hearing, Ms. Smith also participated in a committee staff interview and answered questions for the record. In her responses, Ms. Smith suggested the committee seek relevant documents from New York, which I did obtain through a Freedom of Information request. My staff reviewed the several thousand pages of documents eventually produced by New York, and we sent Ms. Smith some additional questions that she answered in late July, and former Chairman Kennedy sent questions that she answered in September. My concerns with the nomination relate primarily to four areas where Ms. Smith provided at best incomplete and factually inaccurate testimony to the HELP Committee, both during her May confirmation hearing as well as in the followup questions. The first inconsistency I wanted to highlight is with Ms. Smith's plan to expand this program. In the May 7 hearing, Ms. Smith was asked by Senator Burr about her plans to expand Wage and Hour Watch. She responded that there were no such plans. His question was: Have you had any discussions relative to your being at the Department of Labor that would extend Wage Watch in any fashion on a Federal level? Ms. Smith said: No, we have not had any discussions of that. I have not had any discussions with the Department of Labor in New York about whether we would extend it across New York State. Again, it is a pilot program which we just did in January. We specifically limited it to a small number of groups, and we limited it to a small geographic area. We limited it to basically New York City, Long Island, the lower Hudson Valley, so we could assess what the successes would be, what the problems would be. On May 13, 2009, Ms. Smith made a similar statement in writing in response to three separate questions from committee members, including me. She said: This initiative was designed as a local model in a limited geographic area in a state, for a particular issue under a particular statute. It was not designed for other laws or to be used on the Federal level. Until the pilot is completed and evaluated-- As she said up here-- I would not advocate expanding it to other areas in New York, to other areas of the country, to the Federal level or to other Federal or state laws. That is what she said. The problem here is that many documents, including press releases, Ms. Smith's talking points for her own speeches, and e-mails she was copied on, show there were plans in place to expand the program in virtually every instance, many with June 2009 deadlines. Documents show that in April 2009, the State was maintaining lists of possible new entrants into the program. I have a copy up here of groups that were being solicited with the Wage Watch expansion, and that is in April of 2009. That is before she testified. The State even sent out applications to a number of groups to join Wage and Hour Watch during May, when Ms. Smith had just testified to the HELP Committee there were no plans to expand the program. This was the plan to expand the program: Dear friend, we are preparing to expand Wage and Hour Watch beyond the original groups in the pilot program. We are writing to you because you have expressed an interest in becoming or joining a Wage and Hour Watch group, as are a number of other organizations and individuals. Later on it says: In order to allow us to plan for the next stage of the program, please return the completed application form with the reference letter by Monday, June 15. The records show that Ms. Smith's department also planned to expand the scope of Wage and Hour Watch into investigating occupational safety and health matters from day one. That is not the original intent. The original intent was a Wage and Hour Watch group. But we can show where it was intended to investigate occupational safety and health matters. Of course, originally it was not sold as enforcement of wage, it was sold as an educational program. But it changed to enforcement, infiltration, and spying, and then added investigating occupational safety and health matters. In a January 15, 2009 e-mail from Ms. Smith to dozens of staff announcing the program, she states: After 6 months, once we have had the chance to get the program rolling, we would like to expand to other groups (particularly upstate), including community based organizations, student groups; churches and other faith-based organizations and labor unions. . . . This is an exciting new initiative and one which we could potentially replicate elsewhere in the country. In the press release issued to announce the program, Ms. Smith's agency states: After a six-month pilot period . . . , the Labor Department will begin seeking additional groups who wish to participate statewide. . . . The release also directs the public to contact her agency by telephone or through a dedicated e-mail address to establish additional New York Wage and Hour Watch groups. In an article, the New York Times noted the plans for expansion. They said: After the first experiment in New York City and on Long Island, the Labor Department will seek additional groups for the program. The groups must be nongovernmental and nonprofit and can include religious organizations, student groups, labor unions, business associations and neighborhood groups. Here is a sampling of other program expansion activities before Ms. Smith testified on May 2009: A December 1, 2008, e-mail to Ms. Smith listed potential expansion groups in upstate New York. A February 2, 2009, e-mail from Ms. Smith's deputy to two individuals explained how to set up a Wage and Hour Watch group. A February 18, 2009, e-mail from Ms. Smith's deputy to an outside group noted plans to expand the program. A February 23, 2009, e-mail from Ms. Smith's deputy memorialized a meeting with the six pilot groups and included a paragraph on training in June in both New York City and upstate for purposes of expansion. An April 9, 2009, e-mail exchange among Ms. Smith's subordinates listed several groups for expansion. After Ms. Smith testified and answered written questions in May denying expansion plans, her department continued to promote expansion and looked to recruit new members. For example, a May 15, 2009, e-mail to over 20 outside individuals requested that application forms be submitted by June 15; a June 1, 2009, e-mail to outside parties announced preparations to expand Wage and Hour Watch; a June 3, 2009, e-mail from an outside public interest group offered over 40 individuals the opportunity to join Wage and Hour Watch; a June 9, 2009, formal application was submitted to Ms. Smith's department by the Laborers International Union of North America's Organizing Fund to conduct wage watch activities in the construction industry. Contrary to Ms. Smith's responses to written questions that the program was only about wage and hour laws, her subordinates expanded the program to occupational safety and health enforcement. It says: Thank for your offer to insert something about safety and health enforcement in the training the DOL is conducting on Saturday. Unfortunately, given the late notice and training schedules and grant deadlines, we will not be able to put it together by Saturday. However, what we would like to do for you is to announce that we will contact each of the participating groups and offer their organization a training on what safety and health issues they should be looking for while conducting the oversight for wage and hour issues. If that works for you, it would be great for us. It wasn't supposed to be oversight. It was supposed to be education so that people would know what they were supposed to get and be able to take the kinds of actions that individuals could take. But you can see it has changed dramatically. An e-mail from the New York Committee on Occupational Safety and Health, a safety and health public interest group closely tied to organized labor, sent to Ms. Smith's deputy on February 6, 2009, notes that: We will contact each of the participating groups and their organization training on what safety and health issues they should be looking for while conducting the oversight for wage and hour issues. In response, Ms. Smith's deputy solicits a list of things to train wage and hour watchers to look for, and they respond, as well as suggesting that the groups take pictures of working conditions they believe unsafe. Sounds like an investigation. Ms. Smith's own public pronouncements contradict her testimony to the Senate. A May 19, 2009, National Public Radio article quoting Ms. Smith and her deputy states: New York's Wage Watch is just a few months old, and officials say it is too soon to measure success. But the pilot program is set to expand across the state this summer. A set of talking points for Ms. Smith to deliver to an upstate coalition group sometime after January 2009 but before she testified at her confirmation hearing states that the program ``will'' be expanding and solicits volunteers. We have it here: They are currently expanding with six distinct labor unions and advocacy organizations in New York City and plan to roll it out across the state in the coming months and years. We will be expanding this program and when it does come upstate, we will need the help of many of you to roll it out. There also does not appear to be any document that supports Ms. Smith's statement that there were no plans for expansion. Indeed, I am told the public documents actually contain more than 50 specific references to expanding the Wage and Hour Watch Program. All of these red tabs are references to expanding the program. All of the red tabs talk about expanding the program. It doesn't look incidental. Concerns about the factual inconsistencies in Ms. Smith's testimony are not solely held by the minority. Former Chairman Kennedy's staff submitted questions about the expansion of the program. Ms. Smith responded at the time of the confirmation that she had had ``no discussions about a potential expansion with anyone, other than generally indicating that if it were proved successful, my goal would be to expand to it other areas of New York.'' Despite all of this evidence, Ms. Smith's defenders have claimed that she misspoke and that she delegated a small program to a deputy. However, the documents show Ms. Smith herself promoting expansion and recruiting members in her own speeches and media interactions. In addition, I question Ms. Smith's ability to lead the Solicitor's Office if her subordinates, including her deputy, were allowed to act outside of their authority as suggested by earlier explanations. It is difficult to see how it would be appropriate to blame a breakdown between Ms. Smith and her deputy for inaccuracies regarding program expansion plans. Ms. Smith worked with her deputy for more than 5 years. When Former Governor Spitzer appointed Ms. Smith to the New York Labor Department, news articles noted that she brought her deputy and protege with her. I find the explanation even more surprising because of Ms. Smith's pedigree. Her prior boss, former attorney general and Governor Eliot Spitzer, was known for his aggressive prosecution of corporate officials, including some who were accused of not overseeing their subordinates properly. I find it unlikely that the State of New York would accept ignorance as an excuse if an executive on Wall Street tried to use it as a defense. Why should we accept a similar excuse now? A little more information about her background and the Spitzer education program and her participation there. Some have also suggested that this program was reasonably beneath Ms. Smith's notice, noting that her agency has an $11 billion budget with almost 4,000 staff. If confirmed, Ms. Smith would be in charge of legal compliance for a department whose budget projects spending 10 times what she oversaw in New York, $104.5 billion in 2010. Leaving aside the extensive documentation showing she was heavily involved in this program, I ask my colleagues, why would we consider expanding her responsibility tenfold if she was unable to oversee her subordinates effectively in New York? Former President Harry Truman had a sign on his desk that read ``The buck stops here'' to show that responsibility for the conduct of subordinates ultimately rested with him. Ms. Smith ought to own up to the responsibility that ultimately rests with her. With regard to the second inconsistency, Ms. Smith stated that the program was developed internally and only then did the New York Department of Labor approach or recruit outside groups. However, e- mails obtained by the committee directly contradict this statement, instead showing much of the driving force and even legal research for a program model came from organized labor and its allies. Here are a couple of examples: an April 16, 2008, e-mail from Mr. Jeff Eichler, coordinator for retail organizing projects for the Retail Wholesale and Department Store Union, RWDSU, to Ms. Smith's deputy regarding an ``Enforcers'' program, with four pages of attached research explaining potential models for their ``concept of wage and hour enforcers;'' an August 18, 2000, e-mail in which Ms. Smith's deputy responds to Mr. Eichler's ideas that the State consider allowing participants to infiltrate businesses that are part of the program. Most disturbing, however, to me about this inconsistency is the fact that Ms. Smith admitted in her response to a question that she apparently saw the e-mails contradicting her testimony in July but did not correct the problem until directly asked in September about this issue by majority staff; that is, 2 months later. A third inconsistency is that Ms. Smith also characterized Wage and Hour Watch as an educational program in testimony. However, the record shows it was designed and intended to be enforcement from the very beginning, with the union organizers and community organizer participants serving as amateur investigators and informants. The very first documents discussing the program describe potential participants as ``community enforcers.'' I refer to the previously introduced April 2008 e-mail from union official Mr. Eichler describing this as an enforcers program and a November 28, 2008, e-mail from one of Ms. Smith's subordinates disseminating draft training material stating: The one day session [of training] will not turn enforcers into labor law experts but will assist them in identifying labor law violations and make the referral of greater value. The ``role of community enforcer'' is where we will have to come up with original material . . . Notably, Ms. Smith is personally copied on that e-mail. Ms. Smith's own words, her subordinates' internal and public statements and deliberations, the media, and the groups involved in the program all emphasized and portrayed wage and hour watch as an enforcement from its very beginning. It was only when she was questioned by HELP Committee members about the program that Ms. Smith chose to portray the program's substance as educational in nature. Quite a difference. Finally, Ms. Smith stated that the two unions that were selected for the pilot program, United Food and Commercial Workers Local 1500 and RWDSU, were told not to use the program for organizing. However, the agreement created by Ms. Smith and entered with the unions and special interest groups specifically allows the pilot groups to make use of information gathered for ``community organizing,'' which Ms. Smith also admitted in response to a written request. The committee has a copy of the United Food Commercial Workers, UFCW, Local 1500 work plan sent to Ms. Smith's deputy which also directly contradicts Ms. Smith. The plan states that the union intended to use wage and hour in ``all of our organizing campaigns,'' including those outside their designated Wage and Hour Watch area. UFCW Local 1500 also published plans to target nonunion workplaces as part of the program in its publicly available union newsletter. It is difficult for me to believe Ms. Smith and her department did not know union organizing was intended by those joining the pilot program. All the participants and signatories from two labor unions involved appear to be employed as full-time organizers. Other individuals and groups purely responsible for union organizing also applied to join when the program was expanded. It is clear that Ms. Smith's testimony and responses to follow-up questions are repeatedly contradicted by documents I received from the State of New York. It is particularly troubling that inconsistent statements to the committee were in each instance an attempt to downplay concerns about the Wage and Hour Watch Program raised by Republican members. At best, the inconsistencies in her testimony lead me to question her ability to interact with Congress in a candid manner and manage the enforcement of labor laws by the Office of Solicitor in an evenhanded and fair manner. I have tried for months to resolve these concerns. In August, I asked President Obama to withdraw Ms. Smith's nomination and offered my assistance in ensuring a replacement would be confirmed quickly. I also joined all my nine Republican colleagues on the HELP Committee in urging Chairman Harkin to refrain from approving this nominee in committee and made the same offer to him of assistance in ensuring a qualified replacement being given swift review and confirmation. I mentioned I joined all nine. As to a couple people on there, I do not know that they have ever opposed a Presidential appointment. Because the President and the majority did not consider it a problem that Ms. Smith provided factually inconsistent information to the Senate, I am forced to insist on a full debate on her nomination. Giving my consent to a Presidential nominee is not something I take lightly, even with the benefit of the doubt I have always given to the candidates sent over to us by the White House. However, the integrity of the Senate committee process and the responsibility of advice and consent demands honest and accurate testimony when the witnesses come before us. For that reason, I have lost confidence in Ms. Smith's ability to manage the Solicitor's office. I urge my colleagues to oppose this nomination, and I ask unanimous consent that documents referred to in my speech be printed in the Record.

Mr. ENZI. I yield the floor.

Mr. ENZI. Mr. President, in light of the 20 minutes that we just heard in defense, and he had spoken previously before I spoke, I ask unanimous consent for an additional 5 minutes to briefly comment.

Mr. ENZI. Mr. President, there are so many places that a person needs to go if Ms. Smith does make it through the cloture vote. Of course, I have a lot more documents and information I will be sharing with people. I don't even know where to begin on the rebuttal to what has been said. Internally crafted, no. It was brought to them by the unions. We can show where that came from. The Senator from Iowa mentioned that she met with small businesses in March. The program started in January with no input from small business. This is going to affect small business. They should have had the opportunity to comment on how the program would work, because there are a lot of privacy and other related issues in this. When somebody comes to you with a State card from the Department of Labor of New York, they could probably go anywhere in the business they want to. They have only had 1 day of training in order to be able to do this. Does that make them an expert in OSHA and in wage and hour law? I don't think so. But there are safety and security and invasion of privacy issues that were ignored, or it was consciously decided they weren't important. We asked about background checks on those who were trained and gave the State identification cards to: There is no formal vetting process for the New York Department of Labor to partner with an entity. Instead, the Department relies primarily on prior experience working with the group. For the Wage and Hour Watch pilot, the Department selected the groups that were asked to join based on prior experience working with them on a more informal basis. They did consider the possibility of a background check on the groups but ultimately rejected that idea after inquiring as to whether Neighborhood Watch groups are subjected to backgrounds checks. The Department was informed that the groups participating in this more sensitive crime prevention partnership were not subject to a background check. In her Senate response, Ms. Smith in part explains the lack of a background check because the program is modeled on the National Sheriff Association's Neighborhood Watch program. Notably, however, unlike Wage and Hour Watch, Neighborhood Watch is purely an observe and report program. Participants do not investigate crimes and are strongly cautioned against doing so, nor are they allowed to enter private property or businesses in conducting their operations. Calling the police about suspicious activity in a public area is significantly different than investigating the wages and hours of individual employees and recording their personal contact information. This decision to allow those who may have criminal records--no backgrounds check--or may not be legal residents--no background check-- in the United States to be trained and gather information under cover of New York State authority is also compounded by the types of information being gathered. That is a little different than Neighborhood Watch too. Ms. Smith authorized the training provided to participants that directed them to gather the personal telephone number, vehicle license plate, and home address of business owners they visited. As noted above, the State also allowed that information to be kept and used for other purposes outside of Wage and Hour Watch. I have more things I could go into. For instance, in a memorandum to Ms. Smith in January 2009, NYDOL officials point out that all pilot groups would be taught ``guidance on what level of information is needed for `anonymous' Wage and Hour Watch tip.'' They wouldn't be able to tell if an anonymous tip was inaccurate. In other words, it could be used for harassment. There are a lot of problems with the program. I will be going into them tomorrow if cloture is successful. I yield the floor.

Mr. ENZI

Mr. ENZI. Mr. President, we have debated whether to increase the amount of money the Federal Government can borrow at the same time that we created a massive new entitlement program that will cost the Federal taxpayer trillions of dollars over the coming decade. Sponsors of the Reid bill have claimed that their bill would reduce the deficit and extend the solvency of the Medicare trust fund. We heard today from the nonpartisan Congressional Budget Office that these claims are false. In reviewing the Reid bill, CBO stated that claims that the bill would both improve the government's ability to pay future Medicare benefits and financing new spending outside of Medicare would double count a large share of those savings and overstate the improvement in the government's fiscal position. My Republican colleagues and I have argued for 3 weeks now that the Reid bill takes money from Medicare and spends it on a new, unsustainable health care entitlement. Instead of strengthening the Medicare Program, today we received confirmation that the Reid bill robs Medicare to the tune of nearly $\1/2\ trillion and threatens its solvency. CBO has said that this robbery does not really strengthen the solvency of the Medicare Program. Instead the bill uses government accounting gimmicks to merely make it look like it is doing something to help the Medicare Program. The Reid bill cuts $470 billion from the Medicare Program. Rather than reserving those monies to pay for future Medicare benefits, the bill spends those monies to pay for a new program to provide health insurance for the uninsured. But because of government accounting rules, any savings are assumed to be used to purchase government bonds that will be saved to pay for future expenses. That allows sponsors of the bill to claim that they are extending the solvency of the Medicare trust fund. As the only accountant in the Senate, I find it disturbing to see the government using its accounting rules to allow it to spend these savings twice. The sponsors of the Reid bill are counting the savings towards the Medicare Program at the same time those monies are being spent to pay for other Federal spending. This would constitute fraud in the private sector. If they had to come under the same laws as private business, the administration and Congress would go to jail. If there is any doubt, listen to what the Congressional Budget Office said: Unified budget accounting shows that the majority of the [Medicare] trust fund savings would be used to pay for other spending under the [Reid bill] and would not enhance the ability of the government to redeem the bonds credited to the trust fund to pay for future Medicare benefits. This means the claim that the Reid bill strengthens Medicare is false. The bill robs Medicare to pay for new spending. Unfortunately this example of government accounting is just one example of the growing problems that our Nation faces. Our Nation's debt is now more than $12 trillion and our deficit for fiscal year 2009 was over $1.4 trillion. As a percentage of the economy, our deficit is 10 percent of GDP--the highest it has been since the Second World War. We are faced with increasing the debt limit at a time when our Nation's credit card is maxed out. I worry about the country that I am leaving for my children and grandchildren. Our Nation is being buried under a mountain of debt, which poses a deadly threat to the future of our Nation. The government will make up the current deficit by borrowing more money, mostly from China and other foreign governments. These levels of debt are not sustainable. The Chinese Government already made it very clear that they are growing apprehensive about our ability to pay these debts. As China's apprehension grows, the interest rates we pay on our debt will grow. That means that it will soon cost us considerably more to allow Washington to continue to borrow the money it needs to fund its current spending binge. As the Chinese Government grows concerned about financing Washington's appetite for rampant spending, it should give everyone in this Chamber pause. Our most fundamental duty as Members of Congress is to wisely manage the power of the purse for our Nation. Congress is currently failing to carry out this obligation. According to David Walker, the former head of the GAO, at the end of fiscal 2000, the Federal Government had about $20.4 trillion in total liabilities, commitments, and unfunded promises for Social Security and Medicare. That number rose to $56.4 trillion at the end of fiscal 2008--a 176-percent increase in just 8 years. By the end of this year, that number is expected to have risen to $63 trillion. On January 15 of this year, the Senate Budget Committee held a hearing on the long-term outlook for Federal debt. We heard testimony from a bipartisan panel of experts, including Dr. Richard Berner, chief global economist for Morgan Stanley; Dr. Allen Sinai, president and chief global economist/strategist for Decision Economics, Inc.; and Dr. Douglas Holtz-Eakin, former Director of the Congressional Budget Office. Some of these economists were Democrats and some were Republicans, yet all three agreed that the long-term outlook for U.S. debt was grim and that our Nation's creditworthiness was at risk without a plan to address the costs of future entitlements and the multiple bailout/ stimulus proposals Congress has passed. All three panelists endorsed bipartisan commission concepts to address entitlement spending such as the one sponsored by Senators Conrad and Gregg. And the experts all agreed that the current budget process needs to be reformed to remove incentives to deficit spend. Yet none of those recommendations are evident in the legislation we are voting on today. Dr. Sinai--one of the Democrat's invited witnesses from that day-- testified that we have exceeded several tipping points in creditworthiness in the U.S. economy, but the only reason we don't feel the effects of it now is because ``everyone else is drowning too'' and investors are fleeing to quality. But how long can that continue? Further, Dr. Sinai states: The deficit and debt prospects under almost any scenario are daunting, with deficit-to-GDP and debt-to-GDP ratios not seen before in a G-7 country. This territory is uncharted with no real historical analogue to this kind of financial situation for a major global economic power. . . The answer to whether the U.S. can afford all of the initiatives on its wish list--economic, societal, defense, and otherwise--is no. Dr. Holtz-Eakin echoed similar statements from other panelists and strongly urged Congress to adopt a plan that conveys to markets a clear path for stabilizing and reducing the debt burden. That panel appeared before us in January, but we still lack any coherent plan to stabilize our debt. Just last week on Tuesday, Dec. 14, the Peterson-Pew Commission released its first report, Red Ink Rising: A Call to Action to Stem the Mounting Federal Debt, which encourages lawmakers to act immediately to stabilize the national debt. Crafted over the past year by former heads of the CBO, OMB, GAO, and the congressional budget committees, the report strongly urges Congress and the President to commit immediately to stabilize the debt at 60 percent of GDP by 2018 and develop a specific and credible debt stabilization package in 2010. But there is nothing in this debt limit bill that does either of these things. Some Senators will argue today that raising the debt ceiling is the only fiscally responsible choice before us. I disagree. A vote to raise the debt ceiling is merely a vote to raise taxes on our children and grandchildren. This cycle of kicking our responsibilities to the next generation must stop and it must stop today. In my view, the only fiscally responsible choice is to live within our means and balance our Federal budget. A newspaper columnist, Diane Badget from Lovell, WY, said it best when she wrote how her mother would react to what is happening in Washington today. Diane wrote, ``Momma always said, `If you don't have enough money to buy a quart of milk you don't take someone else's hard- earned cash and buy ice cream.' '' If we fail to heed that warning, we will be responsible for passing along unsustainable costs and obligations to our children and grandchildren. That is where the Reid bill is taking our country. The only remaining question is whether we will have the courage to stop this process and preserve our Nation's strength for future generations.

Mr. ENZI

Mr. ENZI. I ask unanimous consent that our time be extended in the same amount as their time was extended.

Mr. ENZI. I yield myself 15 minutes.

Mr. ENZI. Mr. President, the majority has voted to cut off further amendments to this bill. Senator Reid has used a procedural tool that prevents Republicans from offering amendments. Several of my Democratic colleagues have come to the floor to argue that Republicans don't have any ideas on how to improve the bill. Nothing could be further from the truth. Republicans have filed over 200 separate amendments. Yet the majority is refusing to allow us to vote on any. On a bill that will affect the health care of every American and one sixth of the Nation's economy, the majority has not allowed us to have more than 10 votes to try to improve the bill. This bill needs to be fixed. We know this bill currently will cut Medicare, raise taxes, and increase insurance premiums. If we had the chance to offer amendments, I believe we could make changes to fix the problems. I filed nine amendments, but I have not been allowed to offer any. I believe any reform should reflect the following core principles: reducing health care costs so that all Americans get the quality, affordable care they need, ending discrimination based on preexisting conditions, ensuring everyone has access to at least catastrophic care, preserving the right of patients to choose the doctors and health insurance plans that meet their needs, eliminating junk lawsuits and reforming our medical liability system, reducing health care costs for all Americans, improving patient safety, encouraging incentives for healthy behaviors by allowing insurers to charge low premiums to people who eat healthy, exercise regularly, and abstain from tobacco use, protecting Medicare for seniors by ensuring that any savings found in Medicare, a program that is going broke, are used to strengthen that program, not to create new entitlements, and helping all Americans afford health care coverage by fixing the flawed Tax Code so that all Americans can get tax benefits for purchasing health insurance. Unfortunately, the bill fails to do these things. I know most Members agree on those principles for reform. The hard part is making the principles come to life by translating them into bill language. I did that a few years ago when I introduced 10 steps to transform health care. Once the bill was introduced, I went on a tour of Wyoming in March of 2008 and hosted town meetings to talk about health care to my constituents. Some of the ideas I included in my 10 steps plan I also filed as amendments to the Reid bill. We need to end discrimination based on preexisting conditions. No one that has at least catastrophic coverage should be denied coverage for a preexisting condition. Everyone should have catastrophic coverage, but no one should be forced to buy anything. If someone does not at least have catastrophic coverage, then they should have to pay more if they want coverage in the future. Everyone should get the choices for health care that Senators get. Senators get to choose between competing private plans. So should all Americans. Senators get the same choices as any other Federal employee. No more, no less. The janitor in the building, the mailman, the forest ranger, we all get the same choices. All choices are from private insurance. The Federal Government does not have its own plan. Like other employers, the Federal Government does pay part of our health care, but not all of it. Our choices allow us to pick a plan with a higher premium at a lower deductible or a plan with a lower premium and a higher deductible. Everyone should have these same choices, but they would have to work for a company willing to make a contribution to be personally willing to make that contribution and pay the remaining premium and deductible. No matter how the health care reform bill comes out, there will not be free insurance. Everyone will pay something. The amount we pay should have a relationship to the choices we make. Insurance costs will only come down if we are encouraged to make the best choices. Speaking of choices, there is no reason shopping for health insurance should be any more complicated than purchasing an airline ticket. Everyone should be able to fire up their computer and look up health insurance options as they look up airline flights. Each State should set up a Web site or an exchange where consumers can find the listing of all the health insurance plans sold in their State. The public should be able to pick their health insurance using the information on the Web site. Each health plan would list what is covered, the premium, the deductible, and the copay, not what Washington says they have to put on there. Every insurance company should be allowed to list their plan on any exchange, and the State could certify whether the plans meet the minimum requirements and whether subsidies could be used for those plans. There could also be ratings for how well the company provides for its insured customers, but people could buy from any company, having been warned. Everyone could use the transparencies of the exchange to find the insurance that best suits them. Transparency would also bring the costs down. Another thing that will bring down cost is changing the system from one that provides sick care to one that provides health care. One way to do this is to focus more on preventing preventable diseases. We know that incentives to encourage changes in behavior can result in lower costs for patients and employers. We know this because 70 percent of all health care costs are driven by behaviors. If you provide incentives to change those behaviors, you have a potential decrease in cost of 70 percent of all of the health care costs for an organization. Companies such as Safeway have designed plans that focus on personal responsibility and provide targeted incentives that lead to behavior changes that can reduce the risk of developing four of the most costly chronic conditions. Safeway's model, focused on four chronic conditions, can be attributed to 75 percent of all health care costs: Cardiovascular disease, which is 80 percent preventable; cancer, some types are 60 percent preventable; type 2 diabetes, which is 80 percent preventable; and obesity. As a result, Safeway has seen their health care costs remain flat over the past 4 years, while other employers experience annual cost increases as high as 6.3 percent. This is a huge accomplishment for Safeway and its employees, and the employee satisfaction is fantastic. Senator Harkin and I had an amendment that would do that. It was inserted into the HELP Committee bill and then pulled out without talking to us before it was printed in September. Never heard of that being done to Senators before. Health care reform legislation should include the necessary provisions to ensure that companies can continue to provide successful prevention programs that lead to better health and lower costs but also allow those programs to be replicated across public and private health programs. We should encourage these programs and allow people to reap the benefits of better health outcomes and lower health costs. Additionally, people who smoke should have to pay more. People who don't smoke should pay less. People should be encouraged to quit smoking, start exercising, and eat healthy. To put it simply, allow folks who follow healthy practices to pay less for their health insurance. People should be able to buy insurance across State lines. Companies should be able to sell insurance anywhere in the United States. Policies should be listed on the State exchanges with a disclaimer stating the policy is an out-of-State policy. The exchanges would also say whether the policy meets minimum credible standards according to Washington and the State. Insurance commissioners in both the insurance company's State and consumer's State, each get their usual amount for the sale--originators, because they can be consulted, and purchaser State, as they have to handle complaints. We need to help small businesses. I have been working on health care reform for some time. Small business owners are seeing their insurance premiums go up and up every year. They need real help. What they don't need is for the Federal Government to make their insurance even more expensive. CBO says the Reid bill will drive up insurance costs for small businesses. I have proposed a bill that CBO scored as saving small businesses money by lowering their health insurance premiums by up to 6 percent. Small business health plans allow businesses to join together through their trade association across State lines even nationwide so they can form big enough purchasing pools to effectively negotiate with the insurance companies and providers. Ohio has enough people they were able to do this within their State. It is effective. It brought down the cost of health care. They were able to save 23 percent just on administrative costs. They were sure if I could get my bill through, they would save even more by going across State borders. That is one that has been in the lab. It has been proven to work. Not in the bill. Small Business Health Plans, which was S. 1955, drafted by myself and Senator Nelson of Nebraska, former Governor and insurance commissioner, was voted out of the committee in March 2006. On May 2006, cloture on the bill was not allowed in the Senate by a vote of 55 to 43. I know how tough health care reform is to pass. I had a majority of the votes but not enough to begin debate. At the same time, Senator Snowe was poised to do a single amendment that would have solved the objection for 80 percent of those who voted against it. Without cloture, that amendment could not be offered. The Snowe amendment would have solved the question of what health plan mandates would be required. The desire for mandate clarification was the objection that had the disease groups working against the bill. The insurance companies worked against the bill and successfully defeated other versions called associated health plans for over a decade. I was able to neutralize much of the insurance lobby. By creating Small Business Health Plans, we can put small business owners in the driver's seat instead of the Federal Government or insurance companies. Through their associations, small business owners will have the kind of clout in the marketplace needed to negotiate high-value and high-quality health insurance for their members on a regional or even national basis. Additionally, throughout the health care debate, we have heard Democrats say we need a public option in order to keep insurers honest and to have more choices for Americans. However, the only place where we don't currently have competition is for the millions of Americans who are currently trapped in the Medicaid Program. Democrats believe it is OK to lock 54 million poor American people into Medicaid and have them languish in a system that is broken and they are unwilling fix. Their solution is to keep adding more Americans to this broken system. A 2007 Wall Street Journal article stated that Medicaid beneficiaries have poorer health than their peers with private insurance. A study published in the Journal of the American College of Cardiology found that Medicaid patients were almost 50 percent more likely to die after coronary artery bypass surgery than patients with private coverage. Merritt Hawkins found that in 15 major metropolitan areas and in seven particular cities, including Washington, DC, Medicaid acceptance was below 50 percent. A 2002 MedPAC report stated that 40 percent of physicians--let me repeat that: 40 percent of physicians--will not treat Medicaid patients because of their concerns about reimbursement and the time and added cost of completing the billing paperwork. Even the Office of the Actuary at the Centers for Medicare and Medicaid Services has stated that providers will accept more patients with private insurance than government-run health care due to the more attractive private physician payment rates. If you cannot see a doctor, you do not have insurance, no matter what the special name. As we increase dramatically the number of people eligible, we should find a way to offer them regular insurance so they do not have the stigma of being on Medicaid. They should be able to choose between the usual Medicaid and a private policy with a subsidy. Unfortunately, the Reid bill expands Medicaid, and the reason is because it is cheap. According to the Congressional Budget Office, it costs 20 percent more to cover a person in the exchange, funded by Federal dollars, than through Medicaid, which is shared between Federal and State governments. One of my amendments would change all of this. Senators and their staffs all have the ability to choose between competing private plans, and I believe we should give that same kind of choice to low-income Americans. Instead of trapping people in a broken Medicaid Program, my amendment would provide individuals who would otherwise be enrolled in Medicaid through the expansion in this bill the right to choose to be covered by Medicaid or a qualified private health plan offered through their State exchange. Every American should be able to choose to enroll in private insurance, and my amendment would provide real choice access to a network of physicians and fix this problem. It would also assure them they would have coverage for an entire year, not just while their income fluctuates. On the topic of expanding government programs, I would also like to mention that if you save money in Medicare, it should only be used to help Medicare because it is already going broke. The current bill takes money from Medicare and uses it for other government programs. This bill takes $466 billion from Medicare and uses it to start new entitlements that have nothing to do with Medicare. Yet they start a new commission to figure out where to make additional Medicare cuts in order to keep the system going--doesn't that seem counterproductive-- after limiting where the cuts can come from because of hidden deals to get support for the bill. Whatever we do has to reduce costs for all individuals and be deficit neutral. It has to truly be paid for. Why does it have to be paid for? Because America is going broke. We have maxed out the credit cards, and now we are driving down the value of our money. We have to use honest cost, not gimmicks such as the doc fix delay or collecting revenues before the benefits kick in and showing years of revenue for a shorter time benefit. What ways can the government pay for anything? Unfortunately, they can cut benefits, cut payments to doctors and other providers, increase taxes, or cut waste, fraud, and abuse--which government seldom does and even more seldom does effectively--or, more honestly, allow a checkoff for donations to other people's insurance--perhaps even a tax-free donation--so people who want a bigger role in seeing that everybody has insurance could directly participate. People who argue that it is imperative we extend health benefits to everyone should put their money where their mouth is. People should have an opportunity on their income taxes to make an instantly deductible gift to the health care of others. If the deductible size of the gift is a refund, then they would not have to include a check. On the subject of taxes, taxes have to be fair to everyone. Right now, big companies can write off the health care they provide their employees, so those employees are getting health care with zero income tax. Individuals who buy insurance pay income tax on all the money they use to buy insurance. That is not fair. I have covered just a few of the ideas I have. I have several more ideas I have been talking about time and time again, none of which show up in the bill. These meet the promises that were made. The bill does not meet the promises that were made. Health care is too complicated and encompassing to be done by a single bill. I have never worked on a bill that affects 100 percent of America. Adequately done, rather than assigning details to agencies, a comprehensive bill has to contain details. Assigning the tough parts to the Secretary of Health and Human Services makes it easier to legislate, but you don't know what the final outcome will be. Done in smaller incremental steps, the bill would be more understandable. More importantly, with the huge, more comprehensive bill, the more people who each don't like a particular part will defeat the whole bill over a few parts. We need to start over. We need to pursue a step by step, bipartisan, approach. We need to match up a Republican idea with a Democrat idea. We need to leave out a Republican idea and leave out a Democrat idea. Pursing this type of strategy, what I call the 80-percent rule, would likely mean broad support from both sides. This would mean that the rigid ideologies of both sides would oppose such a bill, but I am confident that majority of the American people would support a bill like this. We need health care reform, but it has to be done the right way. The best way to reform our health care system is to do it step by step. We need to start by focusing on the issues where we already have broad, bipartisan agreement. I know how to pass bipartisan legislation. Since I came to the Senate 13 years ago, I have worked with both Democrats and Republicans to reform our Nation's health care system. Over my years in the Senate, there have been several times when I have worked across the aisle to get health care bills signed into law. When I joined the Senate, the Health, Education, Labor, and Pensions Committee was one of the more contentious committees. I believe that people can agree on 80 percent of the issues 80 percent of the time and, if they leave the other 20 percent out, they can get a lot done. With that in mind, Senator Kennedy and I worked to make it one of the most productive and bipartisan committees, with a substantial number of bipartisan bills signed into law each year. Whether it is the reauthorization of the National Institutes of Health or the renewal of the Ryan White and PEPFAR programs for people with HIV/AIDS here and abroad, I am committed to working across the aisle on issues of importance. Working together, we got patient safety, mental health parity, and genetic nondiscrimination legislation over the finish line. These proposals had been pending for years. We were also able to have a strong bipartisan bill to overhaul the drug safety functions at the FDA. By working together, instead of against each other, we can achieve passage of many more pieces of critical legislation. Everyone agrees we need real changes that will allow every American to purchase high-quality, affordable health insurance. Not a single one of my Senate colleagues on either side of the aisle supports the status quo. The argument that Republicans support the status quo is simply false. We understand that the current system fails too many Americans. We want to support reforms that will provide real insurance options to all Americans and help lower the cost of that insurance. But I have said from the start of this year, and frankly throughout my 13 years in the Senate, true reform should be developed on a bipartisan basis, so that the legislation will incorporate the best ideas from both sides and will have the broad support of the America. That should be a prerequisite for any proposal that will affect the nearly 20 percent of our Nation's economy and the health care of every American. We have only had 10 votes on Republican amendments. It is not because Republicans agree the status quo is acceptable or because we think the health care system works fantastically; quite the opposite. Republican Members have filed 223 amendments to this bill. Unfortunately the majority leader has blocked us from offering our amendments. This bill is too important to get wrong. We need the opportunity to improve this bill, and I would urge my colleagues in the Democrat leadership to allow us the opportunity to do so. Madam President, I ask unanimous consent that an editorial by David Broder, ``One Is the Loneliest Number for President Obama,'' be printed in the Record. It mentions some of the editorials and key points of editorials that I put in my speech last night.

Mr. ENZI. Madam President, I also ask unanimous consent that an editorial by George Will from the Washington Post titled ``The Indispensable Dispenser Opens Up'' be printed in the Record. It shows how Medicare is left up in the air after the Reid bill.

Mr. ENZI. Madam President, I yield the floor and reserve the remainder of our time.

Mr. ENZI

Mr. ENZI. Mr. President, since that was the broader context of that intent and there are other States that are hurting as well, I ask unanimous consent that the pending amendment be set aside in order to offer an amendment to the extent that Colorado and Montana and Virginia would get the same benefit that provides 100 percent Federal funding to the State of Nebraska forever for their expanded Medicaid Program, which would give the same treatment to these other States that I have mentioned that currently only Nebraska would enjoy under the bill.

Mr. ENZI. Mr. President, reserving the right to object, we are not the party that spent 8 weeks putting this together to delay everything. We are not the party that spent all the time putting this amendment together that we are trying to do without any input from the Republicans. We are trying to have time to both review this and let America know what is happening. We know the Democrats have kept people from going home now for 3 weeks so they wouldn't have to listen to the voters at home who are really upset with this bill. So we would agree to the request to set the vote at 9 a.m. if the Senator will modify and strike the retroactive cloture time. We want the time.

Mr. ENZI. I object.

Mr. ENZI. Mr. President, the reason I wasn't on the floor for a large part of yesterday is I was wading through this amendment and also the CBO score and also the Joint Tax score. Then I had to talk to experts who could interpret what is in there. The American people don't have that privilege. They have to rely on the stuff they are hearing on the floor. I can tell you, they are pretty upset. I get letters and calls from all over the country saying: Stop this bill any way you can. Make them get it right. I have to tell you, some of those from other States, they are saying: My Senator is not listening to me. I am counting on you. I rise to speak on the issue of the health care reform. I rise with a great sense of disappointment as I reflect on the debate that might have been. From the very start, I have said we need to reform our health care system. Everyone agrees we need real changes that will allow every American to purchase high-quality, affordable health insurance. Not a single one of my Senate colleagues on either side of the aisle supports the status quo. The argument that Republicans support the status quo is simply false. We understand the current system fails too many Americans. We want to support reforms that will provide real insurance options to all Americans and help lower the cost of that insurance. I have said from the start of this year--and, frankly, throughout my 13 years in the Senate--that true reform should be developed on a bipartisan basis so the legislation will incorporate the best ideas from both sides and will have the broad support of the American people. That should be a prerequisite to any proposal that will affect nearly 20 percent of our Nation's economy and the health care of every single American. Unfortunately, that was not the process followed in developing this bill. Instead, we have the Reid bill, which was developed in secret without the input of a single Republican. This morning an adviser to President Obama was asked about the partisan nature of this bill and the overwhelming opposition of the American people. His response spoke volumes of what is wrong with Washington today. He essentially responded that the American people don't understand what is in this bill and that once it is implemented, they will come to support it. In plain English, the White House is saying: Washington knows best. That attitude is part of the reason why support for Congress is at a historic low and why public support for this bill is so weak. Instead of having a bill that will provide greater choices and reduce costs, we have a bill that will do the opposite. The Reid bill will deny consumers the ability to make choices and instead substitute the judgment of government bureaucrats who will decide what kinds of insurance you will be allowed to purchase. The bill also fails to address the most important issue for the majority of Americans. It fails to do anything to help reduce the cost of health care. President Obama promised the American people that health care reform would reduce health care costs. Yet this bill fails to deliver on the President's promise. According to the President's own independent Medicare Actuary, this bill will actually increase how much we spend on health care. According to Rick Foster, the person from the administration who keeps track of all Medicare and Medicaid spending, the bill increases health care costs $234 billion more than if we did nothing. That is a huge cost. In addition to increasing total costs, the Reid bill will increase our national debt and threaten the health care provided to millions of Medicare beneficiaries. Some of my Democratic colleagues are going to come down to the floor and argue that the Reid bill will reduce the deficit and extend the solvency of the Medicare Program. They have been doing that for days. They will even cite the Congressional Budget Office to support their arguments. I hope every American hears those arguments and remembers a few inconvenient truths my Democratic colleagues are going to forget to mention. The way my colleagues on the other side of the aisle were able to force CBO to conclude that the Reid bill will not increase the deficit was by requiring them to use budget gimmicks and assumptions that would make Bernie Madoff blush. Every time you hear one of my Democratic colleagues argue that the bill reduces the deficit, you should ask that Senator if he believes that Medicare will cut physician payments by 21 percent in March. That is right. While the Reid bill cuts over $470 billion from the Medicare Program, it will also require that every doctor treating Medicare patients have his or her payments cut by 21 percent in just 2 months. That is what CBO had to assume when they did their estimate. If you believe Congress will never allow this to happen--and we never have-- you cannot believe this bill will actually reduce the deficit. The truth is Congress has never allowed that level of cut. Senate Democrats, however, chose to ignore this reality and relied on the promise of a cut to make their bill add up. You should also ask my Democratic colleagues if they believe that Medicare payments to doctors will be cut more than 45 percent over the next decade. Again, that is what the Reid bill required CBO to assume. If you don't think that will happen, then you cannot believe this bill reduces the deficit. You should also ask my Democratic colleagues if they think that within a decade one out of every five hospitals, nursing homes, and home health agencies will be operating at a loss because of the unsustainable payment cuts in this bill. We just got a revised CBO estimate that says there was a little error there, and so there will be less savings by $600 billion. According to the administration's Actuary, Rick Foster, that is exactly what is going to happen if the Reid bill is enacted. He said if these policies have to be modified, such changes would likely result in smaller actual savings. This means this bill will not reduce the deficit. Finally, you should ask anyone arguing that this bill reduces the deficit whether they believe Medicare patients will not be able to get the care they need. Again, the administration's own Actuary says payment cuts in the Reid bill could jeopardize access to care for beneficiaries. I do not know if my colleagues believe these things will happen. Taking note of these facts pushes up the total cost of the bill well over $1 trillion and destroys any pretense of budget balance. Unless all the things CBO was required to assume actually happen, this bill will actually increase the deficit. Health care reform has to be truly paid for. Why? Because the Federal Government has maxed out its credit cards. Our out-of-control spending is now even driving down the value of our money. As the government borrows more money to finance even more spending, the devalued dollar will drive up the cost of goods. Oil is a good example. Take a country such as Saudi Arabia, which is already raising prices for their oil to compensate for the lower value of our dollars. This means every American will end up paying more for a gallon of gas because of our failure to address growing deficits. If we are going to enact real health reform, we need to use honest accounting and not budget gimmicks and fake assumptions that we all know will not happen. We should pay for expenses such as fixing doctors' Medicare payments, and we should not delay the start of spending 4 years after the start of the new taxes just to make the bill look good over 10 years. The problem for the President and my Democratic colleagues is their bill is being sold on the strength of accounting tricks that make it appear that it will not add to the deficit. In case they have not noticed, they are not fooling the American people. It showed up in August. It showed up every time since then. That is why we are not getting to go home on weekends. We don't want the Democrats to hear from the people at home who are upset about this. In a recent poll, 68 percent of Americans said they believe the Democrats' health reform bill will increase the deficit. They are right. The American people understand that if the Reid bill is enacted, deficits will increase. They are right. The same is true for the claims that the Reid bill will extend the solvency of the Medicare Program or reduce beneficiary premiums. That can only happen if you make all the assumptions I previously described. If you don't believe those things will actually happen, then this bill will do nothing to extend Medicare or lower premiums. Besides driving up the deficit, the Reid bill will also eliminate more than 1 million jobs. The mandate that employers offer health insurance or pay a penalty will be a massive new job-killing tax. Our national unemployment rate is at 10 percent. The majority leader is attempting to cut off debate on a bill and force its passage before Christmas, again, because he doesn't want the people to hear what is happening, but we are going to see that that does happen--that will force employers to eliminate jobs and reduce wages. Businesses do not deny health care to their employees because they are cruel or mean- spirited. They do it because they can't afford it. Most businesses that do not provide coverage do so because they cannot afford health insurance. They can't afford it for their employees or for their own families. They have looked at the cost and figured out they cannot pay for health care and still stay in business. The Reid bill fails to do anything to actually lower the cost of health insurance, which might mean these businesses could actually afford health insurance. Instead, it will place a new tax on these businesses, which the CBO has said will lead to these businesses reducing wages for their workers and eliminating jobs. That is why the National Federation of Independent Business, which represents small business across America, estimated the Reid bill would cause 1.6 million jobs to be eliminated. That is why they said the Reid bill will create a reality that is worse than the status quo for small business. The worst thing about the Reid bill is not how it will increase the deficit or kill 1 million American jobs. The worst thing about the Reid bill is it will reduce the quality of health care we all receive. No longer will you and your employer be able to choose the health insurance that best meets your needs. The government will tell you what kind of insurance you have to buy, and if you don't, you are told the government will place a fine on you. Under the Reid bill, the government will tell your health plan which types of doctors they have to contract with, irrespective of whether that is a doctor you want or need to see. The Reid bill also traps 15 million Americans in the worst health care program in America. Approximately half the people who get the promised health care coverage under the Reid bill will get it through the broken Medicaid Program. States already use price fixing to limit how much they have to pay doctors under the Medicaid Program. That is why as many as 40 percent of all doctors will not see Medicaid patients. I have said, if you can't see a doctor, you don't have health care. Yet that is exactly what the Reid bill will do: Promise 15 million people coverage but trap them in a system where we know they will not be able to get the care they need. If anyone doubts what effect the Reid bill will have, they only need to look at Massachusetts. The Massachusetts plan was the model for many of the reforms in this bill. The problems they are encountering give us a good indication of what will happen to us all if the Reid bill is enacted. To make the Massachusetts reforms work, they now have a 10-member commission trying to impose a global payment system. Under this system, doctors and hospitals will be forced to join large networks and be paid at a set rate for each patient. This is the same kind of government control we already see with Medicaid. The results of these changes are equally predictable. Fewer doctors will be willing to see people at the exact time when the number of people seeking care is increasing. These are just some of the more serious problems with this bill. Because many of my colleagues want to be able to discuss the problems with this bill, I have limited my remarks for now. Because the bill was drafted behind closed doors and thrust upon the American people without time to consider all the ramifications, I am sure we will find more problems with the legislation after this rushed vote. Over the next few days, I plan to lay out specific and concrete alternatives to how we could do better. I have been doing that for a long time, but they have not been accepted. Republicans have many ideas on how to make this bill better, including several that have bipartisan support. However, if Senator Reid is successful in cutting off debate, we will never get the chance to discuss any of these ideas. Health care reform is too important for too many Americans to be rammed through the Senate with little or no debate on the weekend before Christmas. It appears my colleagues understand how deeply unpopular this bill is with the American people, and they want to force it through when they believe most Americans are not paying attention. I wish to assure my Democratic colleagues that the American people are watching, and the voices of August will only grow louder. They will remember the vote to cut off debate on this bill for a long time because they understand what it will mean for their health care and the future of this country. The person with whom I served in the Wyoming Legislature sent me a little note and said: If it is broken, don't break it more. That is what we are doing. I have some articles I wish to include in the Record. One is by Howard Dean that suggests this reform falls short. Of course, he is the former chairman of the Democratic National Committee. Another is an editorial by Matthew Dowd, a political analyst for ABC News, who talks about the danger of success and where the polls are on this and says: If this legislation passes, Democrats will be held accountable for any failures or problems in the system. So if any Americans' insurance premiums rise, they will blame the Democrats. If patients have to wait in line at emergency rooms, it will be seen as the Democrats' fault. If health care costs don't drop, the Democrats will face the wrath of the electorate. I also have an editorial by E.J. Dionne, Jr., about Democratic fratricide and an article by George Will, where he says ``More talk, less support.'' The more we talk, the less support there is for this bill. Finally, I have an editorial by David Broder, of December 18, 2009. I ask unanimous consent to have these articles printed in the Record. There being no objection the material was ordered to be printed in the Record as follows: [From the Washington Post, Dec. 17, 2009] Reform That Falls Short (By Howard Dean) If I were a senator, I would not vote for the current health-care bill. Any measure that expands private insurers' monopoly over health care and transfers millions of taxpayer dollars to private corporations is not real health-care reform. Real reform would insert competition into insurance markets, force insurers to cut unnecessary administrative expenses and spend health-care dollars caring for people. Real reform would significantly lower costs, improve the delivery of health care and give all Americans a meaningful choice of coverage. The current Senate bill accomplishes none of these. Real health-care reform is supposed to eliminate discrimination based on preexisting conditions. But the legislation allows insurance companies to charge older Americans up to three times as much as younger Americans, pricing them out of coverage. The bill was supposed to give Americans choices about what kind of system they wanted to enroll in. Instead, it fines Americans if they do not sign up with an insurance company, which may take up to 30 percent of your premium dollars an spend it on CEO salaries--in the range of $20 million a year--and on return on equity for the company's shareholders. Few Americans will see any benefit until 2014, by which time premiums are likely to have doubled. In short, the winners in this bill are insurance companies; the American taxpayer is about to be fleeced with a bailout in a situation that dwarfs even what happened at

Mr. ENZI. I yield the floor.

Mr. ENZI

Mr. ENZI. I suggest the absence of a quorum and ask unanimous consent that the time be divided equally.

Mr. ENZI. Mr. President, I yield up to 20 minutes to the Senator from Alabama out of the leader time.

Mr. ENZI. Reserving the right to object, we have had constant speakers over here, so we have used a lot of our time. If we had known there was more vacant time, and if we could have had some of the majority's time, we could have had a steady stream of speakers over here the whole time. So we would reluctantly agree to the time being divided between the two sides, as we have done that in all the times in the past, but we want to reserve some time for our speakers as well. We could have easily had people over here to speak.

Mr. ENZI. Yes, the Senator objects.

Mr. ENZI

Mr. ENZI. Mr. President, I rise today to talk about prescription drug importation. As my colleagues know, I oppose this proposal. It is our job as Senators to debate the issues, put forward our ideas, and show where we stand. I was disappointed that Democratic leadership chose to prevent the Senate from voting on amendments to improve this bill for the past 6 days. I am, however, glad the impasse has finally been resolved. I am not afraid to show where I stand on this issue. Some of my colleagues on both sides of the aisle support importation. Some, like me, oppose it. But my position is clear, and does not change with the political winds. The winds I am referring to include the arrangement that was reportedly negotiated with the drug manufacturers. Under the terms of this backroom deal, the drug manufacturers have reportedly agreed to $80 billion in price cuts and provided a commitment to spend $150 million in ads supporting the Reid bill. In exchange, Senate Democratic leadership and President Obama have reportedly agreed to block efforts to enact drug importation from Canada. According to one Wall Street analyst's report, the Reid bill is expected to increase drug company profits by more than $137 billion over the next 4 years. Let's do the math on that: $80 billion in cuts, leading to $137 billion in increased profits. While this may be a good deal from the drug manufacturers and Senate Democrats, it certainly is not a good deal for the American people. Part of the reported deal will actually increase Medicare costs to the taxpayer, because it creates an incentive for Medicare beneficiaries to continue using brand-name drugs. According to the Congressional Budget Office, Federal Medicare costs will be increased by $15 billion over the next decade as a result of this deal. In the last few days, there have been new press reports highlighting how the drug manufacturers may have agreed to provide even deeper discounts on their brand-name drugs. No one knows how much more this deal will cost the taxpayers. In addition to increasing the price Americans will pay for the Reid bill, this deal appears to have also undermined Democratic support for a drug importation amendment. My colleagues who believe importation is the right way to lower drug costs say that it will save the government $19 billion and consumers $80 billion over the next 10 years. The majority leader has previously voted for drug importation. President Obama supported drug importation when he was in the Senate. The supporters of drug importation should be able to easily pass this amendment without any limitations. Yet it looks like the supporters of drug importation will not succeed today. It appears likely that safety certification language, similar to language included in prior years, will be added to this proposal. My colleagues each know where they stand on the issue. But the deal with the drug manufacturers is apparently so important that supporters of drug importation are going to vote against the proposal. It is important for the American people to understand why there has been this change of heart on this issue. The drug manufacturers are one of the few remaining health care groups that still support the Reid bill. They have committed to spend $150 million to buy television ads to support the Democrats efforts on health reform. If my Democratic colleagues fail to adopt drug importation without the safety language, it is because the Senate Democratic leadership and the White House have decided they will do whatever it takes to keep the support of the drug manufacturers. They believe that the money these companies will spend will be enough to convince the American people to support their efforts. The American people already understand that the Reid bill is not a good deal for them. They understand how this bill will raise their taxes, increase their insurance premiums and cut Medicare benefits for millions of seniors. That is why over 60 percent of Americans now oppose the Democratic health reform proposals. No amount of advertising, funded by the drug companies or anyone else, is going to change that reality.