Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. We are rotating back and forth. I am happy to work that out.

Mr. KENNEDY. We will stay on the subject matter.

Mr. KENNEDY. I ask to be yielded 8 minutes on the Democratic time.

Mr. KENNEDY. Mr. President, I thank my friend and colleague, the Senator from Alaska. I hope to have an opportunity to get into this in greater detail than I will for the few minutes I have this afternoon. There are certain points I want to make. That is, the waters around the area described by the Senator from Alaska, the Nantucket-Martha's Vineyard-Cape Cod area, has been designated a state ocean sanctuary and it is an unreplaceable asset to the people of Massachusetts. Up to 1986, it was generally recognized to be under the jurisdiction of the Commonwealth. In the 1970s, Massachusetts was concerned about potential development threats and made the entire area a protected state ocean sanctuary--where no structures could be built on the seabed and where no offshore electricity generation facilities could be constructed. The legislation was passed easily through the State House. And the specific part of Nantucket Sound that is no longer protected by the state laws, because of a Supreme Court decision, is under consideration for national marine sanctuary status. My second point, Mr. President, is that I am for wind energy. We all know we need it to meet our future needs, and we've seen the successes that onshore wind energy farms can be. We ought to have offshore wind energy, but we need to get it right. The problem in Massachusetts is that we have a developer who's basically staked a claim to 24 square miles of Nantucket Sound back when there were no rules on offshore wind development, and then got the project written into the new law so the new rules won't apply to this project. And the practical effect is that there will be no competition for the developer and that his application is being reviewed and processed before the Department of the Interior can even complete a national policy. In the Energy bill, section 388 says: . . . the Secretary shall issue a lease, easement or right-of-way under paragraph (1) on a competitive basis unless the Secretary after public notice of a proposed lease, easement or right-of-way that there is no competitive interest. The next provision says: Nothing in the amendment made by subsection (a) requires the resubmittal of any document that was previously submitted or the reauthorization of any action that was previously authorized with respect to a project for which, before the date of enactment of this Act-- (1) an offshore test facility has been constructed; Well, where in the country was there a project that had an offshore test facility?--only in Nantucket Sound. So this was a real special interest provision. Because of this ``savings provision,'' the developers are pushing Interior to complete this review before the rules of the game are even established and before the ocean is zoned. So while Interior is setting a uniform program--and deciding which sites should be used--this project is on the fast track. The developer and the developer alone picked the site. And this is a serious problem. Look at what the EPA said about this project's draft environmental impact statement. They called it ``inadequate.'' That's from the EPA, the agency charged with protecting the environment. And the EPA wasn't alone. Look at what the US Geological Survey said about Cape Wind's draft environmental impact statement: . . . the DEIS is at best incomplete, and too often inaccurate and misleading. Inadequate--Incomplete--and too often inaccurate and/or misleading. Does this sound like project that should be on the fast track? But because they've been written into the law, the interests of our state have been basically submerged to a special interest developer. They complain about the provision in this bill that Senator Stevens negotiated with the House. He's right. He's trying to at least bring this back up for review under the sunlight and ensure that the interests of the state for safety and for environmental protection aren't run roughshod over. The project's developer is the one that got the special interest legislation. This Coast Guard provision is designed to check that and preserve the public interest. The provision Senator Stevens crafted tries to remedy an injustice the developer created, and at least let the people of our State be heard. We wish this provision wasn't necessary, and it wouldn't be if the developer was content with following the rules that apply to everyone else. That would have been satisfactory, but no, we are denied that equal treatment. We are prohibited from that. That is not right. Our State went out and created the Cape and Islands Ocean Sanctuary as a protected area. Then the Supreme Court cut a hole in those protections, and now the interests of the State to preserve the fisheries and environment of the whole region is being undermined. It is being handed off to private interests. It's not right. We deserve to have at least a little fairness in this. I will not take the time to list the various national marine sanctuaries, including the Channel Islands, all the Florida Keys, and other national treasures, like Stellwagen Bank outside of Boston, which I am so happy we have protected into the future. The law says you can't build energy facilities in those sanctuaries and we shouldn't--and Nantucket Sound is just as important as those. For 400 years the Sound was considered Massachusetts waters, and it was a protected by the people of our state. In preparation for the 1986 Supreme Court decision that would specify that this narrow area would be carved out as Federal land, we took special care to get on the national marine sanctuary site evaluation list. We didn't want to take any chances then, and we're still on the list. At a minimum, no industrial project should be built there until we can resolve that status. And now we have a developer who wants complete control over 24 miles in the middle of the Sound, even though no government agency has zoned it for energy development yet. We know that the U.S. Commission on Ocean Policy called for a comprehensive siting policy, and that Interior is now working on it. We endorse that approach completely, but this developer is undermining that. And the American people should know just what this developer is getting for this no-bid, no-compete contract. There will be at least $28 million a year in federal tax benefits available to the developer that's $280 million over 10 years. And in Massachusetts, the developer will be eligible for between $37 million and $82 million a year in price subsidies under the renewable energy credit program. That's $370 million to $820 million in price subsidies over 10 years. Then there's the fact that the company will be able to write off the $800 million cost of this project off in just 5 years. This is a boondoggle, and it's an outrage the developer's getting a no-bid contract to a public resource. We've seen what no-bid contracts can do, Mr. President. Who pays when we talk about subsidies? It comes out of the taxpayers' pockets when we talk about subsidies. It is a great deal for this developer. It is a great deal for his investors. It is a great deal for the venture capitalists. They will get so much money they will not be able to count it. But it shouldn't be done without the voice, without the consideration, and without the interest of the State, let alone the many groups that oppose this project and fear that it will undermine the safety, environment, and economic interests of the region for years to come. I thank the Senator from Alaska for his hard work on this bill and this provision. Let me ask the Senator--and I know the time is up--I understand if this proposal were for an LNG facility in Nantucket Sound, the Governor of Massachusetts would have the same authority under the Deepwater Port Act that we're seeking here for this project. Am I correct?

Mr. KENNEDY. We need LNG and we need more energy sources, but if they had decided here to do an LNG on this site, the Governor would have a voice in that, am I correct?

Mr. KENNEDY. So this idea about having a voice on this makes a good deal of sense. I thank the Senator from Alaska. I yield the floor.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I ask the Chair to let me know when I have 1 minute remaining. Mr. President, this should be a historic week. The Senate has the opportunity at last to have a debate on the basic questions of health care. Senator Enzi has put forward a proposal that deserves debate and the opportunity for amendment, and I commend him for his diligence in bringing forward his proposal. But after careful study and debate, I believe the Senate will conclude that the course laid out in this proposal is the wrong one for health care. The legislation will make health care coverage less affordable and less accessible for millions of Americans. It will raise premiums for Americans when they are older or when they fall ill. It will mean the end of laws to guarantee coverage for cancer, for diabetes, for mental health parity, and other essential services. It will undermine the laws that protect consumers from fraud and abuse, and it will give no real help to the self-employed. We have a better approach. The proposal offered by Senators Durbin and Lincoln will allow small businesses to band together to get the same low rates offered to larger employers. It provides real help for small businesses with the high costs of health care through tax credits and reinsurance programs to defray the cost of the most expensive claims. When our debate concludes, I believe the Senate will agree with the over 200 organizations that have written letters of opposition to this legislation. These organizations represent patients with diabetes and cancer and mental health needs. They represent older Americans, workers, health care professionals, small businesses, and Americans in all walks of life. They represent the over 15,000 Americans who have called the Senate to ask this body to oppose legislation that will take a step backward from our commitment to quality health care, and they represent the millions more who will be harmed if we do not reject the legislation before us. We have heard from Governors, insurance commissioners, and attorneys general from Maine to Hawaii and from Florida to Alaska, and all of them--all of them--have urged the Senate to reject this bill. I urge my colleagues to oppose the current legislation, but I hope they will vote to proceed to consideration of this bill. The Senate has been denied the chance to take action on major health priorities for too long. Next week, seniors will be forced to pay a steep penalty if they are unable to navigate through the tangle of confusing Medicare plans and options. The Senate ought to vote on Senator Nelson's proposal to let seniors make their choice without the threat of heavy fines if they do not meet this arbitrary deadline. The Republican Medicare law also includes a provision so contrary to commonsense that people hardly believe you when you tell them it was included. The legislation makes it illegal for Medicare to bargain for discounts on drugs for seniors. We have a proposal to end that shameful prohibition, and we should vote on that proposal. On Medicaid, we should take action to end the cruel cuts imposed on the poorest of our fellow citizens by the Deficit Reduction Act, which paid for tax cuts for the wealthy through health cuts for the poor. We have been promised and promised that the Senate would vote on drug importation, but the vote never comes. Senator Dorgan, Senator Snowe, Senator McCain, and I have a proposal that will allow safe importation of lower cost medicines from Canada and elsewhere. Surely, Health Week is the time for a vote. Before the week is out, the Senate should see that the promise of stem cell research--stem cell research--is no longer denied to the millions of patients and their families who look on with anger and bewilderment as the bill passed by the House languishes for month after month after month in the Senate. And we have failed year in and year out to fulfill the promise of this century of the life sciences by making quality care a right for every American. Let us at long last take action to extend quality care to every American. So I say to my colleagues: Vote for cloture on this motion. Vote for a health care debate. Vote for a chance to go on record with your answer to these important questions on Medicare, on Medicaid, on stem cell research, on drug importation, on coverage, and on many other health priorities. Let's have a debate, and let's let the Senate decide where it stands. Mr. President, I reserve the remainder of my time.

Mr. KENNEDY. Mr. President, I will mention at this time some of the organizations. We will have a chance during the course of the debate to get into the reasons why. The American Academy of Pediatrics; the American Cancer Society; the Diabetes Association; the Nurses Association; Families USA; the lists of Governors--and I will include those--more than probably 15, 18 Governors; the attorneys general. I think there are probably close to 40 of the attorneys general representing States North, South, East, and West who have opposed this bill. The Insurance Commissioners of the States--a whole list of those. At the appropriate time, I will include those in the Record. I hope our colleagues will put their ear to the ground and find out what people are saying back home, what your cancer society, diabetes, pediatric nurses and doctors are saying about this, what the attorneys general are saying about this, and what those in the medical profession are saying about this. We think we have a better way to help small business, and during the course of the debate, we will show how that can be done. Mr. President, I yield the floor.

Mr. KENNEDY. Mr. President, I thank the chairman of our committee, Senator Enzi, for his diligence in the development of the legislation. It is legislation that I cannot support. But the chairman of our committee has put his finger on an area of health policy, which is enormously important for us to consider, and that is the general kind of challenge that is out there for small businesses in this country. By and large, they pay two or three times higher premiums than many of the very large businesses in their States, and they are also seeing a turmoil in the market. More often than not, they are changing companies every year, or every other year, and increasing numbers of those small businesses have to drop coverage. This is a real problem. If the proposal that is before us, the Enzi bill, was only to deal with that particular issue, it ought to be given focus and attention and full debate and support. But his bill goes far beyond that. Fortunately, we have an alternative, as the closing remarks of my friend and colleague from Connecticut pointed out, in the Durbin and Lincoln legislation, which addresses the small business needs. It does it creatively and effectively, and it does it without threatening the health protections that are there for States. The message and word ought to go out to all those who support the Durbin-Lincoln proposal that workers in those small businesses will effectively have the same kind of health care coverage that we have in the Senate of the United States. That has been certainly a goal of mine for all Americans in the time I have been in the Senate, and it still is. We have an opportunity for the small business community, and for the workers in those companies of 100 or less, to provide for them the same things that we have for the Members of the U.S. Congress and Senate. That statement cannot be made by the Senator from Wyoming. His bill does not do that. It has all kinds of adverse impacts in terms of workers and health care protections. So as we start this debate, we ought to recognize that there is an alternative which we on this side strongly support which will focus and give attention to the small business community. The other proposal by Senator Enzi does not do that. Mr. President, I am going to take a few minutes, because that is all I have, to review what I think are the most dangerous aspects of this legislation. The fact is, today, as has been pointed out, there are some 85 million Americans who have protections that will be effectively lost with the Enzi proposal. Those are protections for screening on cancer, for help and assistance in terms of diabetes, for medicines. There are different protections that are given to other diseases that are threatened, and it threatens American families. Those have been discussed in local communities and in States that are now providing those protections; and effectively, under the Enzi bill, those will be prohibited. There are a number of groups. First of all, this is what the State insurance commissioners say, and why they are important is because they have a responsibility in terms of protecting consumers. This is what they have pointed out, Mr. President: Standardizing the rating laws among States will do little or nothing to reduce health insurance costs. And also: S. 1955 will result in older and less healthy employees being priced out of the market as a result of expanding the rate bands. Small New Jersey employers with older and sicker employees would see a dramatic rise and increase under the Federal approach, effectively driving them from the insurance market and leaving them vulnerable citizens without adequate health coverage. They are talking about ratings. Insurance companies are going to be able to charge for the proposal that the Senator from Wyoming has talked about. They are going to have a flexibility of up to 26 percent difference--26 times the difference in terms of premiums. Do you understand that? If you are an older worker and have had sickness in your family, you will pay a rating that will be up through the roof. That is not true in Massachusetts. In Massachusetts, no matter how sick or young you are, you are still within a 3-point or 3 times rating increase. That has worked very effectively. That is something that every older worker, every family that has had some kind of health challenges ought to recognize--that they, under the Enzi bill, could well be priced out of the market. This is what the attorneys general have said: The Health Insurance Marketplace Modernization And Affordability Act should be more appropriately labeled the Health Insurance Cost Escalation Act. That was the attorney general from Minnesota. The attorney general of New York said: This legislation is not the answer here. It eliminates many of the protections that consumers enjoy, without addressing the underlying problem of cost containment. They are also eliminating protections, as we have mentioned, for breast cancer and diabetes. Another one by the attorneys general: There are no legitimate grounds for exempting the type of insurance plan for State laws that provide essential safeguards for persons covered by insurance. It is not just Democrats, but Democrats and Republicans; 41 out of the 50 attorneys general charged with protecting consumers are saying this bill doesn't get it. Mr. President, this is very interesting by the New Hampshire Governor on S. 1955: In 2003, New Hampshire passed a law establishing rating rules similar to those contemplated under S. 1955. New Hampshire passed almost the identical bill that is now being considered in the Senate. With the rules allowing insurance companies to discriminate against businesses with sick workers, or based on geography, this law sent small business health insurance costs skyrocketing across New Hampshire. Small business could not grow, could not hire new workers, and some considered ending their health insurance plans altogether. They have done it. It is rare around here when you have a new proposal that you have had experience with--and the State of New Hampshire has it--and they ended up withdrawing that proposal. Finally, we have the various patient groups. Here is the American Diabetes Association: S. 1955 would result in millions of Americans with diabetes losing their guarantee of diabetes coverage. The Cancer Society said: Passage of this legislation would represent a retreat in this Nation's commitment to defeat cancer. The National Partnership for Women and Families said: Instead of making health care more affordable for those who need it most, S. 1955 would roll back the reforms adopted by many States to require fair pricing. We look forward on this side to debating these issues--the Durbin- Lincoln proposal and the Enzi proposal--and we also look forward to debating stem cell research, the real Medicare alternative in the prescription drug debate, the ability of Medicare to be able to negotiate lower prices for our senior citizens, and drug importation. If we are going to have a health care debate, let's make sure we are going to deal with many of the issues that people in our country want us to deal with. Mr. President, I yield the floor.

Mr. KENNEDY. Mr. President, as I understand it, we are rotating back and forth. Could the Chair tell us how much time we have on this side?

Mr. KENNEDY. Well, Mr. President, I thank my friend from Connecticut for an excellent presentation and summation of the principal concerns about this legislation. I ask the Chair to let me know when there is 1 minute remaining.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, this legislation, S. 22, is not a serious attempt to address a significant problem being faced by physicians in some States. It is the product of a party caucus rather than the bipartisan deliberations of a Senate committee. It was designed to score political points, not to achieve the bipartisan consensus which is needed to enact major legislation. In fact, the legislative language was not even available for review until late last week. For these reasons, it does not deserve to be taken seriously by the Senate. We must reject the simplistic and ineffective responses proposed by those who contend that the only way to help doctors is to further hurt seriously injured patients. Unfortunately, as we saw in the Patients' Bill of Rights debate, the Bush administration and congressional Republicans are again advocating a policy which will benefit neither doctors nor patients, only insurance companies. Caps on compensatory damages and other extreme ``tort reforms'' are not only unfair to the victims of malpractice, they do not result in a reduction of malpractice insurance premiums. Not only does this legislation fail to do what it claims, but it would do many things that its authors are attempting to conceal. In reality, this legislation is designed to shield much of the health care industry from basic accountability for the care it provides. While those across the aisle like to talk about doctors, the real beneficiaries will be insurance companies and large health care corporations. This amendment would enrich them at the expense of the most seriously injured patients; men, women and children whose entire lives have been devastated by medical neglect and abuse. S. 22 would drastically limit the financial responsibility of the health care industry to compensate injured patients for the harm they have suffered. This legislation is extremely broad in its scope. It defines a ``health care liability claim'' as any claim ``based upon the provision of, use of, or payment for--or the failure to provide, use, or pay for--health care services.'' It is attempting to use the sympathetic family doctor as a Trojan horse concealing an enormous array of special legal privileges for every corporation which provides a health care service, or insures the payment of a medical bill. For example, this proposal would shield HMOs and health insurers that refuse to provide needed care. Less accountability will never lead to better health care. Every provision of this bill is carefully designed to take existing rights away from those who have been harmed by medical neglect and corporate greed. This legislation would deprive seriously injured patients of the right to recover fair compensation for their injuries by placing an arbitrary cap on how much they can receive for non-economic loss, that is for the very real pain and suffering these victims experience every day. This cap only serves to hurt those patients who have suffered the most severe, life-altering injuries and who have proven their cases in court. They are the paralyzed, the brain-injured, and the blinded. They are the ones who have lost limbs, organs, reproductive capacity, and in some cases even years of life. These are life-altering conditions which deprive a person of the ability to engage in many of the normal activities of day to day living. It would be terribly wrong to take their rights away. The Bush administration talks about deterring frivolous cases, but caps by their nature apply only to the most serious cases which have been proven in court. A person with a severe injury is not made whole merely by receiving reimbursement for medical bills and lost wages. Noneconomic damages compensate victims for the very real loss in quality of life that results from a serious, permanent injury. It is absurd to suggest that $250,000 is fair compensation for a person paralyzed for life. The sponsors of this bill claim that they have increased the cap from $250,000 to $750,000. But that claim is very misleading. The $250,000 limit would still apply to the overwhelming majority of malpractice victims, no matter how severe their injuries. The $750,000 limit would apply only to the small number of cases in which three different defendants--one doctor and two health care institutions--were all responsible for the victim's injury. It would not even apply in cases where three doctors all committed malpractice. In reality, nothing has changed from prior Republican bills. Nearly all victims would still be prohibited from receiving more than $250,000 for their injuries. Caps are totally arbitrary. They do not adjust the amount of the compensation ceiling with either the seriousness of the injury, or with the length of years that the victim must endure the resulting disability. Someone with a less serious injury can be fully compensated without reaching the cap. However, a patient with severe, permanent injuries is prevented by the cap from receiving full compensation for their more serious injuries. Is it fair to apply the same limit on compensation to a person who is confined to a wheelchair for life that is applied to someone with a temporary leg injury? Caps discriminate against younger victims. A young person with a severe injury such as paralysis must endure it for many more years than an older person with the same injury. Yet that young person is prohibited from receiving greater compensation for the many more years he will be disabled. Is that fair? Caps on noneconomic damages discriminate against women, children, minorities, and low income workers. These groups do not receive large economic damages attributable to lost earning capacity. Women who are homemakers and caregivers for their families sustain no lost wages when they are injured, so they only receive minimal economic damages. Should a woman working in the home receive less compensation for the same injury than a woman working outside the home? Is that just? A seriously injured child may be confined to his or her home for years of painful recuperation, but that child has no lost wages. Should he get less compensation than an adult with a similar injury? Is that fair? Noneconomic damages--compensation for lost quality of life--is particularly important to these vulnerable populations. In addition to imposing caps, this legislation would place other major restrictions on seriously injured patients seeking to recover fair compensation. At every stage of the judicial process, it would change long-established judicial rules to disadvantage patients and shield defendants from the consequences of their actions. First , it would abolish joint and several liability for all damages. This means the most seriously injured people may never receive all of the compensation that the court has awarded to them. They may not even receive full payment for their lost wages and medical bills. Under this provision, health care providers whose misconduct contributed to the patient's injuries will in many cases be able to escape responsibility for paying full compensation to that patient. Second, the bias in the legislation could not be clearer. It would preempt State laws that allow fair treatment for injured patients, but would allow State laws to be enacted which contained greater restrictions on patients' rights than the proposed Federal law. This one-way preemption contained in section 11(c) shows how result-oriented the legislation really is. It is not about fairness or balance. It is about protecting defendants. Third, the amendment preempts state statutes of limitation, cutting back the time allowed by many States for a patient to file suit against the health care provider who injured him. Under the legislation, the statute of limitations can expire before the injured patient even knows that it was malpractice which caused his or her injury. Fourth, it places severe limitations on when an injured patient can receive punitive damages, and how much punitive damages the victim can recover. Under the bill, punitive damages can only be awarded if the defendant acted ``with malicious intent to injure'' or ``deliberately failed to avoid unnecessary injury.'' This is far more restrictive than current law. It entirely prohibits punitive damages for ``reckless'' and ``wanton'' misconduct, which the overwhelming majority of States allow. In the very small number of cases where punitive damages would still be allowed, the bill would cap them at twice the amount of economic damages, no matter how egregious the defendant's conduct and no matter how large its assets. Fifth, it imposes unprecedented limits on the amount of the contingent fee which a client and his or her attorney can agree to-- limiting it to 15 percent of most of the recoveries. This will make it more difficult for injured patients to retain the attorney of their choice in cases that involve complex legal issues. It can have the effect of denying them their day in court. Again the provision is one- sided, because it places no limit on how much the health care provider can spend defending the case. If we were to arbitrarily restrict the rights of seriously injured patients as the sponsors of this legislation propose, what benefits would result? Certainly less accountability for health care providers will never improve the quality of health care. It will not even result in less costly care. The cost of medical malpractice premiums constitutes less than two-thirds of 1 percent, 0.66 percent, of the Nation's health care expenditures each year. For example, in 2004, health care costs totaled $1.88 trillion, while the total cost of all medical malpractice insurance premiums was $11.4 billion. Malpractice premiums are not the cause of the high rate of medical inflation. This bill will not make health care more affordable. The White House and other supporters of caps have argued that restricting an injured patient's right to recover fair compensation will reduce malpractice premiums. But, there is scant evidence to support their claim. In fact, there is substantial evidence to refute it. Between 2000 and 2003, there were dramatic increases in the cost of medical malpractice insurance in States that already had damage caps and other restrictive tort reforms on the statute books, as well as in States that did not. No substantial increase in the number or size of malpractice judgments suddenly occurred which would have justified the enormous increase in premiums that many doctors were being forced to pay. Now rates have stabilized, again both in States with and States without damage caps. Comprehensive national studies show that medical malpractice premiums are not significantly lower on average in States that have enacted damage caps and other restrictions on patient rights than in States without these restrictions. Insurance companies are merely pocketing the dollars which patients no longer receive when ``tort reform'' is enacted. Let's look at the facts. Slightly more than half of the States have a cap on medical malpractice damages. Many of them have had those statutes for a substantial number of years. The other half of States do not have a cap on malpractice damages. The best evidence of whether such caps affect the cost of malpractice insurance is to compare the rates in those two groups of States. Based on data from the Medical Liability Monitor on all 50 States, the average liability premium in 2005 for doctors practicing in States without caps on malpractice damages $45,719--was actually lower than the average premium for doctors practicing in States with caps, $51,405. There are many reasons why insurance rates vary substantially from State to State. This data demonstrates that it is not a State's tort reform laws which determine the rates. Caps do not make a significant difference in the malpractice premiums which doctors pay. This is borne out by a comparison of premium levels for a range of medical specialties. The average liability premium in 2005 for doctors practicing internal medicine was more--18.7 percent more--for doctors in States with caps on malpractice damages--$16,212--than in States without caps on damages--$13,658. Internists actually pay more for malpractice insurance in States that have caps. The average liability premium in 2005 for general surgeons was more-- 19.4 percent more--for doctors in States with caps--$57,662--than States without caps--$48,267. Surgeons are paying more for malpractice insurance in the States that have caps. The average liability premium for OB/GYN physicians in 2005 in States with caps--$80,341--was also more than for doctors in States without caps--$75,233. OB/GYNs in States with caps paid slightly more--7 percent more--than in States without caps. Clearly, a State's tort laws do not determine that State's medical malpractice insurance rates. This evidence demonstrates that capping malpractice damages does not benefit the doctors it purports to help. It only helps the insurance companies earn even bigger profits. As Business Week Magazine concluded after reviewing the data at the height of the malpractice rate crisis ``the statistical case for caps is flimsy.'' In 2003, Weiss Ratings, Inc., a nationally recognized financial analyst, conducted an in-depth examination of the impact of capping damages in medical malpractice cases. Their conclusions sharply contradict the assumptions on which this legislation is based. Weiss found that capping damages does reduce the amount of money that malpractice insurance companies pay out to injured patients. However, those savings are not passed on to doctors in lower premiums. The Weiss Report, stated: Since the insurers in the states with caps reaped the benefit of lower medical malpractice payouts, one would expect that they would reduce the premiums they charged doctors. At the very minimum, they should have been able to slow down the premium increases. Surprisingly, the data show they did precisely the opposite. Between 1991 and 2002, the Weiss analysis shows that premiums rose by substantially more in the States with damage caps than in the States without caps. The 12-year increase in the median annual premium was 48.2 percent in the States that had caps, and only 35.9 percent in the States that had no caps. In the words of the report: On average, doctors in States with caps actually suffered a significantly larger increase than doctors in states without caps . . . In short, the results clearly invalidate the expectations of cap proponents. Since malpractice premiums are not significantly affected by the imposition of caps on recovery, it stands to reason that the availability of physicians does not differ between States that have caps and States that do not. AMA data shows that there are 283 physicians per 100,000 residents in States that do not have medical malpractice caps and 249 physicians per 100,000 residents in States with caps. Clearly there is no correlation. If a Federal cap on noneconomic compensatory damages were to pass, it would sacrifice fair compensation for injured patients in a vain attempt to reduce medical malpractice premiums. Doctors will not get the relief they are seeking. Only the insurance companies, which created the problem, will benefit. Insurance industry practices were responsible for the sudden dramatic premium increases which occurred in some States between 2000 and 2003. The explanation for these premium spikes can be found not in legislative halls or in courtrooms, but in the boardrooms of the insurance companies themselves. There were substantial increases in a number of insurance lines, not just medical malpractice, during that period. Insurers make much of their money from investment income. Interest earned on premium dollars is particularly important in medical malpractice insurance because there is a much longer period of time between receipt of the premium and payment of the claim than in most lines of casualty insurance. The industry creates a ``malpractice crisis'' whenever its investments do poorly. The combination of a sharp decline in the equity markets and record low interest rates several years ago was the reason for the sharp increase in medical malpractice insurance premiums during that period. What we witnessed then was not new. The industry has engaged in this pattern of behavior repeatedly over the last 30 years. When ``tort reform'' laws are enacted, the insurance companies pocket the resulting savings to bolster their profits. Data from the National Association of Insurance Commissioners shows that in 2005, the profits for the five largest for-profit medical malpractice insurers were more than double those of the Fortune 500 average 17.7 percent v. 8.7 percent. Doctors, especially those in high risk specialties, whose malpractice premiums have increased dramatically do deserve premium relief. That relief will only come as the result of tougher regulation of the insurance industry. When insurance companies lose money on their investments, they should not be able to recover those losses from the doctors they insure. Unfortunately, that is what is happening now. Doctors and patients are both victims of the insurance industry. Excess profits from the boom years should be used to keep premiums stable when investment earnings drop. However, the insurance industry will never do that voluntarily. Only by recognizing the real problem can we begin to structure an effective solution that will bring an end to unreasonably high medical malpractice premiums. There are specific changes in the law which should be made to address the abusive manner in which medical malpractice insurers operate. The first and most important would be to subject the insurance industry to the Nation's antitrust laws. It is the only major industry in America where corporations are free to conspire to fix prices, withhold and restrict coverage, and engage in a myriad of other anticompetitive actions. A medical malpractice ``crisis'' does not just happen. It is the result of insurance industry schemes to raise premiums and to increase profits by forcing antipatient changes in the tort law. I have introduced, with Senator Leahy, legislation which will at long last require the insurance industry to abide by the same rules of fair competition as other businesses. Unlike the harsh and ineffective proposals in S. 22, this is a real solution which will help physicians without further harming seriously injured patients. Unfortunately, the Republican leadership continues to protect their allies in the insurance industry and refuses to consider real solutions to the malpractice premium crisis. I want to conclude with a quotation from the analysis of medical malpractice premiums by Weiss Ratings, Inc. Weiss Ratings is not speaking from the perspective of a trial lawyer or a patient advocate, but as a hard-nosed financial analyst that has studied the facts of malpractice insurance rating. Here is their recommendation to us based on those facts: First, legislators must immediately put on hold all proposals involving non-economic damage caps until convincing evidence can be produced to demonstrate a true benefit to doctors in the form of reduced med mal costs. Right now, consumers are being asked to sacrifice not only large damage claims, but also critical leverage to help regulate the medical profession--all with the stated goal that it will end the med mal crisis for doctors. However, the data indicate that, similar State legislation has merely produced the worst of both worlds: The sacrifice by consumers plus a continuing--and even worsening--crisis for doctors. Neither party derived any benefit whatsoever from the caps. Before yielding the floor, I want to briefly address the second malpractice bill, S. 23, that the Republican leadership has brought before the Senate. The only difference between them is that the first bill would take basic rights away from all patients, while the second bill takes those rights away only from women and newborn babies who are the victims of negligent obstetric and gynecological care. That difference does not make the latter bill more acceptable. On the contrary, it adds a new element of unfairness. The proponents argue that they are somehow doing these women and their babies a favor by depriving them of the right to fair compensation when they are seriously injured. It is an Alice in Wonderland argument which they are making. Under their proposal, a woman whose gynecologist negligently failed to diagnose her cervical cancer until it had spread and become incurable would be denied the same legal right as a man whose doctor negligently failed to diagnose his prostate cancer until it was too late. Is that fair? By what convoluted logic would that woman be better off? Both the woman and the man were condemned to suffer a painful and premature death as a result of their doctors' malpractice, but her compensation would be severely limited while his is not. She would be denied the right to introduce the same evidence of medical negligence which he could. She would be denied the same freedom to select the lawyer of her choice which he had. She would be denied the right to have her case tried under the same judicial rules which he could. That hardly sounds like equal protection of the law to me. Yet, that is what the advocates of this legislation are proposing. Of course, this bill does not only take rights away from women. It takes them away from newborn babies who sustain devastating prenatal injuries as well. These children face a lifetime with severe mental and physical impairments all because of an obstetrician's malpractice, or misconduct by a health care provider or insurer. This legislation would limit the compensation those children can receive for lost quality of life to $250,000 in nearly all cases--just $250,000 for an entire lifetime. What could be more unjust? There are babies who suffered serious brain injuries at birth and will never be able to lead normal lives. There are women who lost organs, reproductive capacity, and in some cases even years of life. These are life-altering conditions. It would be terribly wrong to take their rights away. The Republicans talk about deterring frivolous cases, but caps by their nature apply only to the most serious cases which have been proven in court. These badly injured patients are the last ones we should be depriving of fair compensation. The entire premise of this bill is both false and offensive. Our Republican colleagues claim that women and their babies must sacrifice their fundamental legal rights in order to preserve access to OB/GYN care, that they must leave their rights at the door. The very idea is outrageous. For those locales--mostly in sparsely populated areas-- where the availability of OB/GYN specialists is a problem, there are far less drastic ways to solve it. This bill is based on the false premise that the availability of OB/ GYN physicians depends on the enactment of Draconian tort reforms. If that were accurate, States that have already enacted damage caps would have a higher number of OB/GYNS providing care. However, there is in fact no correlation. States without caps actually have 29.1 OB/GYNS per 100,000 women, while States with caps have 25.5 OB/GYNS per 100,000 women. States without caps actually have more OB/GYNS serving their female population. This is not a more acceptable bill because it applies only to women and newborn babies injured by obstetrical and gynecological malpractice. That makes it even more arbitrary, even more outrageous. Not one victim should be denied the basic rights that this bill would take away. I urge my colleagues to oppose both of these very unfair bills.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I ask unanimous consent that the order for the quorum call be dispensed with.

Mr. KENNEDY. Mr. President, today I come to the Senate floor to speak briefly about stem cell research and the hope it holds for millions of Americans in the years ahead. Hope is one of the qualities of spirit that make us human. Hope allows us to dream of a better life for our children, our community, and our world, especially for loved ones now suffering or in pain. Hope is what stem cell research holds for the parents of children with diabetes, who dream of a day when their constant fears for their children's well-being are things of the past. Hope is what stem cell research brings to those with Parkinson's disease, who think of the time when the tremors of that disease are banished forever. Hope is what stem cell research brings to millions of Americans who seek better treatments and better drugs for cancer, diabetes, spinal injury, and many other serious conditions. Hope cannot be extinguished or destroyed but it can be frozen. And it has now been frozen for 5 long years, ever since President Bush shut down the stem cell research program begun in the Clinton administration, and imposed arbitrary and unwarranted restrictions on this lifesaving research, based on ideology, instead of science. For 5 years, we have watched as America has abdicated its global leadership in this important new field, by keeping our best scientists on the sidelines. In those 5 years, we have squandered the opportunity to set strong ethical guidelines for this research through the oversight that NIH funding can bring. Through NIH, we have made progress consistent with our values in new fields of in as recombinant DNA research, which once also seemed strange and controversial. We can do the same for stem cell research but only if NIH is allowed to become a leader in this new field. Hope soared anew a year ago, when the House of Representatives set aside partisan differences and courageously approved legislation to end those restrictions, and give our scientists the tools they need to make progress in the fight against disease. The same strong bipartisan support exists in the Senate for ending the unwarranted restrictions on stem cell research. There is no one in the Senate with stronger pro-life credentials than Senator Hatch, but he knows that supporting stem cell research is the pro-life position to take. There is no greater supporter of medical research in the Senate than Senator Specter, and he feels strongly that stem cell research is one of the great breakthroughs of modern medicine. There is no one with a greater depth of conscience than Senator Smith, and he has searched his heart and prayerfully decided that support for stem cell research is the moral choice. Bipartisan legislation was passed by a vote of 238 to 194 in the House of Representatives on May 24, 2005, a year ago this month. It was ordered placed on the Senate Calendar on June 6, where it has remained stalled ever since. If the House bill was put to a Senate vote today or tomorrow or next week, it would pass by a solid bipartisan majority in the Senate too. Why? Because the Republican Senate leadership stands in the way. Summer came and went with no action in the Senate, then the winter, then the spring, and now we are about to reach an anniversary none of us ever wanted to see. On May 24, it will be 1 year since the House acted, and the Senate still refuses to act. Let us vow that we will not mark this anniversary with yet more inaction and indifference. The Senate has had a busy schedule, but in that schedule we have found time for all manner of giveaways to those who already have much in the way of wealth and power. Now, it is time to turn our attention to those who need our help the most. And that includes the millions of Americans who have seen their hopes blocked by the administration's cruel policies and the Senate's shameful inaction. The Senate leadership has scheduled a Health Week for later this month. Will we use this opportunity to debate the flawed Medicare drug program? Or the soaring number of the uninsured? Will we do what we need to do to unlock the vast potential of stem cell research? Sadly, the answer to each of these questions is probably no. These and many other major priorities for the Nation will remain unaddressed. I urge my colleagues to join me in asking the Senate leadership to schedule a vote on House Resolution 810, the House-passed stem cell research bill, during the coming Health Week and to do so before May 24, the first year anniversary of its approval by the House of Representatives. Millions of patients and their families look with hope to stem cell research, and they should not have to tolerate any greater delay or any further failures. I yield the floor.

Mr. KENNEDY

Mr. KENNEDY. I am. I was going to make comments for 2 or 3 minutes and then make a consent request.

Mr. KENNEDY. I will wait.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, first of all, I thank my colleague and friend from Vermont for his excellent statement and comments. I look forward to joining with him on the debate of that issue when we have a chance on Monday and Tuesday next. I share the disappointment of the Senator from Vermont that we will not have an opportunity to address the stem cell issue on the floor of the Senate, which can offer such extraordinary hope to so many families in this country. We are in the life science century. We have seen this enormous progress that has been made with the mapping of the human genome, with imaging, nanotechnology--breathtaking advances--and stem cell research offers a very similar kind of opportunity. We have legislation that is on the calendar that was approved in a bipartisan way in the House of Representatives, and it has been on the calendar now for about a year. I think most of us were heartened when we heard our majority leader indicate his general support--a change in position--his general support for the items which are in the House bill that is on the calendar now before the Senate. Evidently, though, we will not have an opportunity next week to consider that stem cell bill. When I think of the stem cell legislation, I think of the possibilities of hope for families who are facing Alzheimer's disease or cancer, Parkinson's disease, diabetes because the possibilities in research are virtually unlimited. There are no assurances of the outcome, no absolute assurance that we are going to come up with cures, but for those who are on the cutting edge of basic and applied research in the science area or in the health area believe that this stem cell research offers enormous possibilities. I wish that had been included in the agenda for next week's discussion about health care, but it has not been.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I ask unanimous consent that at a time to be determined by the majority leader, following consultation with the Democratic leader, but no later than May 25, 2006, the Senate proceed to the consideration of Calender No. 251, S. 1086, and that it be considered under the following limitations: That there be 1 hour of debate on the bill, with the time equally divided and controlled by the two leaders or their designees; the only amendment in order, other than the committee-reported substitute amendment, be a Kennedy-Smith hate crimes amendment on which there will be 2 hours of debate with the time equally divided and controlled in the usual form; that upon the use or yielding back of time on the amendment, without further intervening action or debate, the Senate proceed to vote in relation to the amendment; that upon disposition of the Kennedy-Smith amendment and the yielding back of time on the bill, the committee substitute, as amended, if amended, be agreed to; the bill, as amended, be read a third time, and without further intervening action or debate, the Senate proceed to vote on passage of the bill.

Mr. KENNEDY. Mr. President, I regret that the Republican leadership has blocked our efforts to have a vote on this amendment. I expect that they will move forward on the immediate passage of the underlying bill. We should also get a vote on hate crimes. It is long overdue. It is clear that the Republican leadership will do anything to stop our hate crimes bill. I don't think it is right to delay consideration of the Senate bill on sex offenders, so the battle on hate crimes must continue. Given today's objections, let's move ahead on S. 1086. Mr. President, I suggest the absence of a quorum.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I share the disappointment of many that the Republican leadership has delayed calling up the sex offender registration bill. The House passed its version last September and the Senate Judiciary Committee reported a much improved version to the full Senate last October. When the House passed its bill, it approved an amendment to improve the Federal hate crimes laws as well. The Senate bill does not include that provision, but many of us had hoped to add it as an amendment. I urge my colleagues to support it. The inclusion of the Federal hate crimes law is not inconsistent with the goals of the legislation to stop crimes against children. We can clearly do more to protect our communities and encourage them to do so. Hate crimes are a violation of everything our country stands for. These are crimes against entire communities, against the whole Nation, and against the fundamental ideals on which America was founded, and they have a major impact on children. The vast majority of Congress agrees. Last year, Senator Smith and I offered our hate crimes bill as an amendment to the Defense Authorization Act, and it passed by a bipartisan vote of 65 to 33. The House passed a nearly identical hate crimes amendment by a vote of 223 to 199, which made it part of its sex offender registration bill. The substantial majority of both Houses of Congress have now voted in favor of the hate crimes proposal, and the time is long overdue to pass these protections into law. The hate crimes bill is supported by a broad coalition. Over 200 law enforcement and civil rights groups, including the National District Attorneys Association, the National Sheriff's Association, and the National Association of Chiefs of Police, the Anti-Defamation League, and the U.S. Council of Mayors. A strong Federal role in prosecuting hate crimes is essential for both practical and symbolic reasons. In practical terms, the bill will have a real world impact on the actual criminal investigations and prosecution. The symbolic value of the bill is equally important. Hate crimes target whole communities, not just individuals. Attacking people because they are gay, African American, Arab or Muslim or Jewish, or any other criteria is bigotry at its worst. We must say loudly and clearly to those inclined to commit them that they will go to prison if they do. The vast majority of us in Congress recognize the importance of passing a hate crimes bill. This year we can make the statement even clearer by turning it into law.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, May 25th marks the 85th birthday of an extraordinary American artist--Hal David. Hal is one of America's most prolific and beloved lyricists, and I congratulate him as he celebrates this birthday and a lifetime of memorable songs. Hal David's music has been entertaining millions for generations. His collaborations with Burt Bacharach on songs performed by Dionne Warwick are legendary. He has won the hearts of music lovers of all ages, and has earned 20 gold records, several Grammys, and an Academy Award. Over the years he has also earned the immense respect of his colleagues nationally and internationally. He was elected to the Songwriter's Hall of Fame and awarded their prestigious Johnny Mercer Award. He received the Grammy Trustee Award from the Academy of Recording Arts and Sciences, and the Ivor Novello Award from the British Performing Rights Society. He has written film scores including ``The April Fools'' and ``A House is Not a Home.'' His brilliant works for the theater include ``Promises, Promises,'' which received a Grammy Award and a Tony Award nomination. Hal has been an inspiring advocate for young songwriters as well. He is a member of the board of directors of ASCAP and formerly served as its President. He is also chairman of the board of the National Academy of Popular Music. It is worth pointing out, as we debate immigration reform, that Hal wrote the song, ``America Is,'' which was the official song of the Liberty Centennial campaign for the restoration of the Statue of Liberty and Ellis Island. Many of us are privileged to know Hal personally. He is a remarkable artist and an outstanding humanitarian. Hal wrote the famous ``What the World Needs Now is Love,'' and in so many ways, Hal has always expanded that love with his magnificent songs that have enriched all of our lives. I congratulate him on this special birthday, and I wish him many more beautiful years. As my mother would have said, ``Tell that nice young Hal David not to worry about turning 85--he won't slow down for another 10 or 15 years.'' May the raindrops keep falling on your head, Hal, and keep nourishing your special genius.

Mr. KENNEDY

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

Mr. KENNEDY. I understand there is an understanding that we vote at noontime and I have 1 minute remaining.

Mr. KENNEDY. Madam President, I move to reconsider the vote.

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