Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that following the remarks of Senator Nickles we proceed to consideration of the legislation which the leader announced so that Senator Feinstein can commence her presentation and hopefully have her first presentation concluded before 1 o'clock.

Mr. KYL

Mr. KYL. Mr. President, I ask for the yeas and nays.

Mr. KYL. Mr. President, on behalf of Senator Hatch, I yield back the time that he has remaining.

Mr. KYL. Mr. President, I ask unanimous consent that Senator Shelby be added as a cosponsor of the legislation.

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

Mr. KYL. Notwithstanding the previous order, I ask the technical amendment at the desk be considered and agreed to and the motion to reconsider be laid upon the table.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. KYL. I withdraw the request until it is clear. I suggest the absence of a quorum.

Mr. KYL

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. KYL

Mr. KYL. Mr. President, I would like to speak for a moment about the historic day tomorrow, which is the 1-year anniversary of the liberation of Iraq, and the experience which Senator McCain and Senator Chambliss and Senator Cochran and I just had with a few others in meeting the Ambassador-designate from Iraq, Ambassador-designate Rend Al-Rahim. She has been a leader in the movement for women's rights in Iraq, and has been designated by the Iraqi Governing Council to represent her country here in the United States at this historic time. In listening to her message, it simply should remind all of us of the importance of what we, as Americans, have been doing in support of freedom for the Iraqi people. I wish to share a few of the comments which she made to us, and a bit of the response to that. First, she is a remarkable woman in her own right; she, as I said, has been fighting for Iraqi rights for a long time. It is no surprise that someone with her background and qualifications has been selected to represent her country in the United States. Her first remarks were to thank the United States for helping to free the Iraqi people and making an opportunity available to them to govern themselves. She said that the main word in Iraq today is the word ``democracy,'' that is what the Iraqi people are talking about, and they are going to be ready and, indeed, demand that when June 30 comes, they will be able to take control of the political affairs of their country. This is something they have been waiting for a long time to accomplish, and they are very grateful to the United States for making this opportunity available to them. She made the point that democracy died in Iraq 35 years ago; that under the repressive regime of Saddam Hussein there was no freedom of expression, no ability to debate, political parties ceased to exist; he would not permit anyone to question him. But today she talked about the 150 new newspapers that have cropped up, debating all sorts of issues in the country, and the opportunity for people to present their views on free television. She said throughout the country of Iraq today there is free and robust debate about the political future of their country; that political parties have grown, and the ability of Iraqis to govern themselves, in her view, is not in doubt. She made the point the security problems the United States and coalition and Iraqi forces are facing today, while grave and serious, are not representative of any kind of popular uprising in the country as a whole; that in her view they represent a very thin slice of the Iraqi population, and Americans should not view this as the view of the Iraqi people in general. Indeed, the opposite would be the case; that most Iraqis support the presence of the United States, appreciate what we are trying to accomplish with the help of the Iraqi people there, and that this relatively small group of disaffected people does not represent the view of the Iraqi people as a whole. In fact, her quotation, almost exactly--and she repeated it three times--was that the vast, vast, vast majority of the Iraqi people reject this point of view and support the presence of the United States and assistance to the people. It was a remarkable performance by the Ambassador-designate who told us about the condition in which they found the Embassy when they came in and simply reminded us that we have a lot to do in supporting this new government and helping it to be a viable force, not just in the country of Iraq itself but in representing itself to the rest of the world, and most especially in the United States. I was also moved by the strong statement made by my colleague from Arizona, Senator McCain, who had talked about his experience in Iraq and his experiences elsewhere in admonishing all of us to remember that there is no alternative to victory in this war on terror, and especially in the front we are conducting in Iraq today. Defeat is not an option. The consequences of defeat for the United States and the West and our position in the war on terror would be catastrophic. Our credibility would be lost, and that credibility is our primary asset in dealing with terrorism around the world. Our ability to affect the future with respect to the terrorist threat would be diminished significantly if we were not to persevere and complete our job in Iraq. This means, as Senator McCain pointed out, we will have to acknowledge the hard reality that it will not be easy, and it will not be cheap. There will be casualties, and it is going to take a long time. Remember President Bush first told us that when this war commenced, and in his State of the Union speech, pointing out that it would be a long, difficult struggle and that the American people would have to be prepared to persevere. The American people have persevered. We are at a crossroads now. There are some among us who are raising questions. That, in and of itself, in a democracy is not only fine but critically important. The question is the tone of the criticism and the effect that it can have both on the morale of the Iraqi people and our own troops fighting there, as well as the message it conveys to the enemy terrorists. If the criticism is constructive and goes to questions of how we should be doing what we are doing, it could be very beneficial. If, on the other hand, it suggests political motives for the President and the administration, suggests there is no support for the position we are taking, and suggests what little support there might be will erode to the point that we will not be able to sustain our position, then people begin to wonder. The people of Iraq who are still not secure, who are still fearful there are those among them who would cause them harm if they only had a chance, including the old Baathists, are going to be less secure and bold going forth with their new government and less willing to continue to support the United States. Our allies, the same message. Our troops would wonder, Is this a fight worth fighting; their families wondering, Is it worth my son or daughter dying? Of course, the message to the terrorists, If we wait these people out, these Americans have shown that they are willing to only fight for so long, and then they will cut and run if we make life difficult enough for them. This is a message we cannot afford to send. It is important the tone of the debate, the content of debate, the motives ascribed to leaders in this country all take into account the way the message is portrayed elsewhere, the way it will be played on Arab television, for example. These are not small matters. These are matters of fine-tuning a debate in the United States so that it will not adversely affect the way we can conduct the war on terror generally, and on operations in Iraq specifically. I think sometimes we fail to take into account how our words are listened to all over the world. I know as a Senator, it is still hard for me to appreciate, knowing who I am and where I came from, that when I speak, my words may have pretty significant consequences to an awful lot of people. It is hard for me to remember that. I don't look at myself any differently than I did when I was a lawyer 20 years ago. But we in the United States tend to forget that others view us very closely, and everything we do they pay a lot of attention. So the words we speak in this Chamber and in other forums are going to be parsed very carefully by others around the world for meaning. When those words suggest either there is a lack of support in this country for the policies being pursued, that were overwhelmingly supported by the Members of this body, the House of Representatives and, of course, the administration, when there is a suggestion that there is a lack of support for that policy or that support is eroding, and if terrorists continue to ply their trade they can undercut us to the point we will cut and run, when the words are interpreted in that way, then they undercut not just our policy but the people who are fighting for us in that region, and the people on whose behalf we are trying to help secure freedom. That is why it is so important for us to conduct this debate in a civil and measured and responsible way. I urge all of my colleagues to try to approach the subject in that fashion. I criticize no one for raising questions or even for criticizing the President or the administration. It is perfectly appropriate in our country to do that. There is certainly no right or wrong in exactly how we are approaching each of these issues. The decisions are made in the fog of war. Many of them are somewhat gray. I would only ask my colleagues, as we conduct this debate, that we consider the tone so it doesn't have an adverse effect on the actual war on terrorism itself. As my colleague, Senator McCain, said, defeat is not an option. It is impossible, given our military power, for us to lose the war in Iraq, but it would be possible to lose that war at home if we don't conduct ourselves in the same fashion and same spirit we ask our troops to conduct themselves when they are fighting for us abroad. That is an important responsibility we take on. When I listened to the words of the Ambassador-designate today about looking at the future of her country with such optimism and such courage and such hope, it rekindled in me the desire to come and talk about the fact that we have to do our part. Our troops are doing their part. We have to do our part as well. We need to make wise decisions. We need to support the troops. We need to support the administration to the absolute extent we can. Our partisanship should stop at the shores, as it historically has. I know in an election year it is going to be difficult for us to discipline ourselves in that way, but we have to do so because of the stakes involved. I find after 1 year of the liberation of the Iraqi people, great cause for hope. We should not minimize the difficulties that lie ahead. I think we need to be extraordinarily candid about the problems we will continue to confront. But at the end of the day, if we persevere as we know we can, if we have the same resolve and strength of character our young men and women do who are there fighting right now--and you only have to talk to a few to be imbued with their spirit--then I have no doubt the United States will stay strong, our great ally Great Britain will do the same, as well as other members of the coalition that have assisted us so strongly; and in persevering and staying the course, we will be able, No. 1, to turn over political control of Iraq on June 30 to the Iraqi Governing Council and, No. 2, we will be able to stay for as long as it takes to help secure that country. Just as we have had the opportunity to govern ourselves, the Iraqi people will have the same opportunity. That will, in turn, show others in the region how they too can govern themselves democratically, they can live in an environment of freedom, and that is infectious and probably would do more than any other single thing to ensure that region of the world can enjoy peace, and that peace can even come to the troubled relationship between the Palestinians and Israelis. It is something to be hoped for. It all depends on our ability right now to persevere, stay the course, and to maintain the hope and optimism we had when we began this operation. I suggest the absence of a quorum.

Mr. KYL

Mr. KYL. I want to express my great disappointment with this conference agreement and to explain why I will vote against it. This legislation, H.R. 3108, was originally intended to provide a temporary solution to a legitimate and serious problem facing all defined benefit pension plans--the interest rate used to calculate funding liabilities, the 30-year Treasury bond, is no longer being issued by the Federal Government, and consequently the rate has dropped to a point that companies would be forced to contribute far in excess of what is necessary to their pension plans if Congress does not provide a remedy. I have always supported efforts to make this necessary change to the interest rate and, in fact, I believe that President Bush put forward a reasonable permanent solution last year. Because of disagreements over that permanent interest rate change, however, Congress was forced to seek a temporary solution to give us additional time to resolve our differences. H.R. 3108, as originally approved by the House, only included temporary interest rate relief; and that is all it ever should have included. When it came time for the Senate to consider H.R. 3108, it was viewed as a ``must do'' bill, and thus attracted additional items that I believe should not have been included. My primary concern is that the Senate added relief from the ``deficit reduction contribution'' for certain severely underfunded plans. The DRC is a special catch-up contribution that seriously underfunded plans--generally, plans that are 90 percent funded or less--are supposed to make to bring their plans back to full-funding. When the Senator began discussing adding DRC relief for airlines, steel companies, and possibly other industries, I expressed my opposition. I believe that the DRC relief is harmful to workers, unfair to healthy pension plans, unfair to competitors who are not receiving the relief, and exposes taxpayers to unacceptable risks. Underfunded plans are harmful to workers because they jeopardize expected pension benefits--especially for workers who are to receive larger pensions than the Pension Benefit Guarantee Corporate--PBGC-- will guarantee, such as airline pilots. Companies should be required to fund their pension promises to their employees, they should not be excused from these promises. DRC relief is unfair to healthy plans because an underfunded plan that fails will pay benefits using the insurance premiums paid to the PBGC by healthy plans. Further, many plans have made the difficult yet responsible financial decisions to fully fund their pensions. It is unfair to excuse other companies, who may have been less responsible, from these same promises. The DRC waiver in the conference agreement applies only to certain airline and steel companies. The DRC waiver is really a back-door bailout for some companies and is unfair to their competitors that cannot benefit from the waiver, either because they have fully funded their pension plans or because they offer a different kind of retirement benefit to their employees. Finally, the DRC waiver exposes taxpayers to a greater risk that the PBGC will require a taxpayer bailout. The PBGC recently reported a deficit of $11.2 billion in its single-employer insurance plan for fiscal year 2003--a record. While the PBGC estimates it will have sufficient assets to meet obligations for years to come, the failure of several large plans could change that. Further, PBGC estimates that the sum total of all single-employer pension plan underfunding is about $400 billion. And Congress--meaning the U.S. taxpayers--would certainly bail out the PBGC, rather than allow the entire insurance system for defined benefit pension plans to collapse. Because the Senate was insistent upon providing some DRC relief, however, I worked with my colleagues in the Republican leadership and on the Senate Finance Committee to scale back the relief so that it would cause less damage to our pension system, would be less harmful to competition, and would expose the taxpayers to marginally less liability. I worked to reduce the DRC waiver to 80 percent of the DRC liability in the first year and 60 percent in the second year. The idea was that by the second year, and with the interest rate relief, plans should begin turning their finances around such that they can make a greater percentage of the necessary payments to bring their plans back to full funding. This is what the Senate approved in its version of H.R. 3108 and I am very disappointed that the Senate position was abandoned during the conference negotiations. I am also disappointed that we could not agree to protect the taxpayers from increased liabilities that could occur as a result of the DRC waiver. At a minimum, we should have stipulated that the PBGC would be ``held harmless'' for any benefit increases that occur during the waiver period. I believe we should have protected healthy plans and taxpayers by adopting a ``hold harmless'' provision for the PBGC. One of the big dangers with the DRC waiver is that the plans claiming the waiver will fail anyway in the near future, and by granting these plans a DRC waiver their funding situation will be even worse when the PBGC assumes these plans. A ``hold harmless'' provision would have mitigated this harm and limit the drain on healthy plans. The DRC waiver is exactly the wrong thing to do. The system of DRC payments was devised because companies were habitually underfunding their plans. We should not aid and abet habitual underfunders by waiving much of their DRC liability. I must vote against the conference agreement because the DRC waiver is more comprehensive than what was approved by the Senate; because it fails to protect taxpayers; because the waiver is unfair to healthy plans that have responsibly funded their promises; and because the waiver provides a back-door bailout to certain airlines and steel companies, which is unfair to their competitors. I agree that there may be problems with the DRC system and that reforms may be in order. But we should make any reforms through a more thoughtful and deliberate process, taking into consideration the experience and recommendations of the PBGC.

Mr. KYL

Mr. KYL. Mr. President, tomorrow we will cast an important vote for our constituents. Once again we have come back to the Senate floor to press for legislative change on an issue that is critical to health care for all Americans. Time and again we have attempted to stop skyrocketing health care costs due to the runaway tort system under which trial lawyers abuse the court system with spurious claims that drive up insurance premiums for physicians and hospitals and drive them to practice expensive defensive medicine; in other words, performing costly and unnecessary procedures to be sure they won't be sued. Last year I was a cosponsor of S. 11, the Patients First Act of 2003. The Democratic minority precluded us from completing work on that legislation. In February, we targeted a very narrow range of the medical profession to try to see if our colleagues would help us out in one area, the OB/GYN specialty, with S. 2061, called the Healthy Mothers and Healthy Babies Access to Care Act. Again the Democratic minority denied us cloture so we could not consider the bill. It is time to stop this obstructionism. Here we are again. This time I hope my colleagues will join in voting for cloture so we may enact the needed reforms to the medical liability system. This legislation addresses lawsuits for health care liability claims related to the provision of obstetrical, gynecological, emergency, or trauma care. With good reason, we again include the OB/GYN specialty. The dramatic increase in OB/GYN premiums--more than 160 percent over the last 16 years--has greatly outpaced the rate of inflation, and many physicians and hospitals have been unable to keep up with these escalating costs. In my State of Arizona, OB/GYN practices face premiums averaging $67,000, up 16 percent in just 1 year's time. Think of this for a moment. I am not sure what the average salary or wage of an American earner is today, but it is nowhere close to $67,000. That is what your OB/GYN doctor has to pay before he or she can even think about delivering your baby. That is the cost we have driven up. My colleague from Iowa talked about the large number of people who can't afford health insurance. This is one of the reasons they can't afford health insurance. We have so driven up the cost of practicing medicine and the cost of health care by virtue of this broken tort system that a lot of people can't afford insurance and, in fact, employers can't afford to provide insurance for them. Let's do something about it. This legislation does something about it. I would like to share the account of a physician in Paradise Valley, AZ, a woman with whom I spoke about 3 or 4 weeks ago who told me the story of her desire from the time she was a preteen to deliver babies and how she worked hard all through school to get good grades so she could go to medical school and eventually complete her residency. She did that. She had started out as a little girl volunteering in the hospital. She always wanted to deliver babies. After hard work and her degree, she ultimately delivered more than 5,000 babies over the course of 17 years. By the way, the vast majority were without any complications, and she has one of the best reputations as a physician in our community. On one occasion, much to the surprise and dismay of the labor and delivery team, a baby was delivered with complications and cerebral palsy. While a group of doctors conducted a peer review of the case and determined there was no fault on the part of any of the physicians, the doctor who delivered the baby--this woman of whom I speak--3 years after the incident got sued. Initially the plaintiff requested $2 million which was her insurance policy limit. Deciding it was better to settle and avoid long, costly litigation, the insurance company persuaded her to offer to settle the case, which she did. But then the plaintiff asked for $10 million from the physician and another $5 million from the hospital. This highly competent, highly dedicated, and motivated physician found herself consciously practicing medicine differently. For instance, performing a lot more cesarean deliveries in order to lessen the risk of complications to the baby, just in case. She was filled with a new anxiety that had never been present before. Frankly, she said it took a lot of joy out of the work she had enjoyed so much for the previous 17 years. Eventually she stopped delivering babies because of the skyrocketing insurance premiums due to the claim that had been filed against her and, candidly, because of the trepidation she felt now she had been sued and the fact she might be sued again. Incidentally, her case was ultimately settled for less than the policy limits. But here is a physician who was a tremendous contributor to the profession, to our community, to the health of mothers, and the health and viability of a lot of new babies. She is no longer practicing her profession because of the tort system. This physician's story is far too common. It needs to be addressed, and we can address it through the legislation before us. In addition to the reforms for obstetricians and gynecologists, S. 2207 will cover physicians who treat patients in emergency circumstances--not just in the emergency room but in any emergency circumstance--from frivolous lawsuits. Many physicians find themselves distanced from what led them into the profession in the first place-- their desire to help people, just as the physician I talked about. Emergency rooms and trauma centers are flooded with patients who need help from accidents and disasters, all very unfavorable situations. These professionals give their very best to try to address the patient regardless of the circumstance, without even asking whether they have the ability to pay, focused on stabilizing the patients and providing excellent care. Imagine the effect on the physician and the hospital when after treating a patient in an emergency situation, they are faced with a lawsuit, particularly a lawsuit that does not have merit or seeks an excessive award. The result is frequently the emergency rooms are understaffed, sometimes even have to close. The trauma centers are losing specialists and, in some cases, closing. The physicians are not there to provide this kind of emergency care. Since no one knows exactly whether and where an emergency will take place, this legislation covers emergency services anywhere, not just those that occur in the emergency room. For example, if a family practitioner assists a person in an emergency at a mall where somebody had a heart attack, the doctor would be subject to the protection of this bill. If an internist helps a person in an automobile accident at the side of the highway and assists that individual, that care would also be protected by this legislation. The benefit of this legislation is while it makes specific reference to the OB/GYN doctors, it also addresses any emergency services, not just those performed by emergency room physicians or in a trauma center. As with previous bills, this legislation will hold physicians and insurers accountable for medical expenses in instances when they are clearly wrong. S. 2207 will maximize returns to the patients instead of the trial lawyers by setting percentage caps on contingency fees. These are the fees the lawyers receive. The bill would allow lawyers to be well compensated for their work but not at the unfair expense of the plaintiffs. Patients would have 3 years from the date of injury to bring forth a claim. In the case of minors, that statute of limitations would be extended. The bill will allow for unlimited awards of economic damages but place reasonable caps on the so-called noneconomic damages or pain and suffering damages. If we can pass S. 2207, we should therefore see tremendous benefits: a reduction in the backlog of these cases in our courts; a reduction and perhaps elimination of these excessive jury awards; a reduction in the amount of money paid by the insurance companies to settle the cases. They incur great expenses in defending the cases in court and even processing the claims for settlement. Even those that are dismissed cost money. Physicians spend a large amount of money to defend themselves even in those cases they win. A large number of these cases are settled out of court to prevent the so-called mega award, the big award that can bankrupt a practice. But something else will happen if we pass this bill. As I said, my colleague from Iowa complained about too many people not having insurance and one of the reasons why is because it has been expensed beyond their ability to pay or their employer's ability to pay. Why? Because the insurance company has to take into account these malpractice awards, even the possibility a physician will be sued. Imagine this: When a physician has to pay $67,000 in premiums for the ability to deliver babies, think about how that additional cost has to be shifted to the beneficiaries, the patients, the people who receive the care, because the insurance companies have to make sure whatever happens, their costs are covered. So if we are going to talk about making it easier for people to get insurance, making it easier for physicians to be able to continue their practices, for hospital emergency rooms to continue to stay open, and all of the other kinds of care to be provided, even that situation where you have a wreck on the side of the road and a doctor stops and renders emergency care to you--any one of those situations--then we need to deal with this bill tomorrow. This has been around far too long, and tomorrow is our opportunity to right this wrong, vote for cloture, and enable us to take a final vote on the bill. We should not condone a system that literally forces physicians to retire early, as the physician from Paradise Valley I spoke of had to do. Sometimes they relocate to a different State with friendlier laws. We should not force that either. Sometimes they drop high-risk services or they go into teaching or hospital administration. We lose a lot of very competent physicians that way. This leads not just to improper staffing among physicians, obviously; more important, it compromises patient care. We have heard the patient and physician stories and we have seen the charts about the skyrocketing costs. We know of the facilities that have had to close, emergency rooms and labor and delivery sections--all as a result of the high cost of a broken tort system. I ask my Senate colleagues to join me in support of S. 2207 so we can provide quality health care to citizens across this Nation. Mr. President, our constituents deserve nothing less, and that is all we are asking for tomorrow--to give our constituents a chance to receive the best health care they can receive, the best health care our system can provide. That is not occurring today and, far worse, it is going to continue to deteriorate in the future if we allow the trial lawyers and those who serve the trial lawyers to continue to obstruct this commonsense legislation. I urge my colleagues to end the obstructionism, end the partisan bickering. Our constituents sent us here to accomplish and work together for sound results. Everyone knows we need this kind of reform. The vote tomorrow is a vote to determine whether there will be a final vote on the bill. It only takes 40 Senators on the other side to say, no, we won't allow a vote to occur. That is a filibuster. That is obstructionism. That is a negative, partisan unwillingness to allow the will of the majority to work on behalf of the people of this country. I urge my colleagues tomorrow to please support the cloture vote, which will enable us to get to a final vote on this important bill. If we do that, I think we can go home this fall and all be very proud, whether we are Democrats or Republicans, or others, tell our constituents we accomplished something for them in the area that perhaps, other than freedom, is most important for every one of us, and that is quality health care. We owe our constituents nothing less. Mr. President, I suggest the absence of a quorum.

Mr. KYL

Mr. KYL. Mr. President, I am pleased that the Senate is debating this sensible measure, and I certainly hope that the outcome will be the rejection of the two amendments and passage of the underlying bill. Such an outcome will lead immediately to the enactment of the Unborn Victims of Violence Act, as the legislation has already passed the House and the President has stated that he will sign it. The Unborn Victims of Violence Act would recognize an unborn child as a victim when he or she is killed or injured during the commission of a Federal or military crime. The gist of this debate is the question of whether there are one victim or two in such instances. Polling suggests that upwards of 80 percent of the American people believe that there are two victims, a view no doubt reinforced by the well-known case of Laci and Connor Peterson. It has been noted that when definitive evidence of foul play in that case came to light, two bodies washed up on the shore, not one. The Unborn Victims of Violence Act would codify that common sense observation in Federal law. Opponents of the bill contend that the bill's ``two victims'' premise is ``unprecedented,'' but 29 State laws--including the law in California, where Laci and Connor Peterson were killed--relfect that exact understanding of what merits punishment when a violent crime is committed against a woman and her unborn child. It is the ``one victim'' idea the Feinstein amendment would inscribe in law that would depart form the understanding embedded in the State laws addressing this question. Finally, I sincerely hope that my colleagues--whatever their views on the question of one victim versus two victims--will firmly reject the amendment offered by the senior Senator from Washington State. I am very proud of my record of support for victims of domestic violence, and I believe that some of the ideas contained in the Murray amendment merit our consideration. But passing the amendment we are presented with today would be a serious mistake. First, I must note that the Murray amendment was obviously drafted in haste because it contains serious technical flaws--not the least of which is a provision that would--as I understand it--give an abusive family member the same rights as a victim! The Murray amendment would create an unpaid leave provision that is distinct from the provisions contained in the Family Medical Leave Act, FMLA, and State laws. This new leave provision would apply to employers with as few as 15 employees--compared to 50 for FMLA. FMLA applies to workers who have been employed for at least a year, but the proposed Murray leave program has no minimum requirements for length of service. Moreover, under this amendment, domestic violence leave could be taken without advance notice, and without corroborating evidence beyond the employee's own sworn statement. Given the extraordinary degree of uncertainty such a regime could create for employers, Congress must proceed cautiously here. To pass the Murray amendment today would be to flout that imperative. I strongly support the unamended version of this bill.

Mr. KYL

Mr. KYL. The author of the letter in the first paragraph--I will not cite the entire letter but the national president of the Fraternal Order of Police, whose name is Chuck Canterbury, wrote this: I am writing on behalf of the membership of the Fraternal Order of Police to advise you of our concerns regarding an amendment which is expected to be offered tomorrow on the floor of the Senate concerning the proposed regulations governing the exemptions from overtime pay under the Fair Labor Standards Act, and to renew our opposition to any such effort which would have the effect of delaying or hindering the Department of Labor's ability to issue a final rule. The reason I quote that letter is to make the point that this is the FOP, a very large and important union in our Nation today, which would like to see this rule issued. It is an illustration of one of the groups that has been involved in the process that understands what the Department of Labor is doing and appreciates the positive effect of the rule that has been proposed. I also want to make it clear that this is only a proposed regulation. After the rule is promulgated by the Department, obviously there would be a final implementation of the rule. At the earliest, that would come out next year sometime, and clearly the Senate would have the ability at that time to address any complaints about the final rule. The agency, I am advised, has received over 80,000 comments with respect to its proposed rule and is currently working its way through those comments. So this is not something that is going to be happening tomorrow. Once they get through all of those comments, they will promulgate the final rule, again perhaps coming out sometime next year. The Senate, in any event, would have plenty of time to work on it. That is essentially what I wanted to say, to make the point that those who have been scared or frightened by some of the comments about this proposed rule should stop and get more information about the rule. They should listen to some of the debate we are trying to bring to the floor and contact the Department of Labor if they have a question, or contact our offices so we can clarify what this proposed rule really does. We can make it clear it is not being put into effect to take a bunch of people out of the market for time-and-a-half guarantee of overtime, but in point of fact it would actually guarantee that more people would have the ability to get overtime, and because of the clarification of definitions, it would remove the potential for even more litigation that simply raises confusion about whether people are covered. We can make it clear we are talking about people who make a lot of money, who have a lot of control over the negotiation of their salaries, who have supervision over other employees, and so on. Those are the people who are being exempt. It is not the people who are just regular workers, who don't supervise a lot of people, who don't hire and fire people, and so on. Those folks may or may not wear white collars to work, but the bottom line is they are not exempt from the requirements under the Fair Labor Standards Act to provide them time and a half for overtime for the hours they actually work. It is important to get that message out to folks; that it is not something about which they should be concerned. Rather, the intention behind the rule is to clarify and expand the number of people eligible for it. I hope folks who have concerns about that will be in touch with us so we can allay those concerns. Perhaps the amendment I am talking about will come up for a vote, perhaps it will not. If it does, I hope it is defeated because we need to move forward with the regulations the Department is working on right now and see them promulgated. Once that occurs, you will see labor unions and workers all over the country looking at the final product and saying, yes, that is fair. That is protective of me. It clarifies the situation, and we can support it. Mr. President, I suggest the absence of a quorum.

Mr. KYL. Mr. President, I would like to speak about the Harkin amendment. I wasn't here for the earlier conversation, but I was advised about some of the arguments that have been made. It concerns me because people are concerned about the proposed rules that have been promulgated by the Department of Labor. I think it is incumbent upon us to clarify the situation so American workers are not frightened of these proposed rules because of the mischaracterization by certain people. The amendment here would stop the rules from going into effect. I fear there are things being said about these rules that are very inaccurate, misleading, and therefore are frightening people into thinking somehow the rules would prevent them from receiving overtime pay, when the reality is more people would be ensured they could qualify for overtime pay than is the case today. I want to speak for a few moments to try to allay the fears of people so they are not concerned about these proposals and they embrace them, because the possibility of overtime extends to a larger universe of people than it does today. I will talk about this for a moment. The amendment would prohibit the Department of Labor from pursuing this proposed rule, which clarifies something called the white-collar exemption from the FLSA overtime rules, or the Fair Labor Standards Act rules. What it has to do with is the requirement that non-white-collar workers are entitled to overtime under certain circumstances. The question is, how do we define the non-white-collar workers as opposed to the white-collar workers to understand who is entitled to receive compensation for the overtime and who is not. The proposed changes would actually guarantee payments to 1.3 million low-wage workers who were not entitled to overtime before. I think this is the key point. It does not take away people; it adds to the number of people who would qualify for overtime. This is one of the ways in which that occurs: It would raise the minimum salary level at which workers are ensured overtime pay from $155 to $425 a week, $22,100 annually. So it raises the level at which this kicks in, which would be the largest increase since the law was enacted in 1938. So we are making the availability to a much larger group of people, people at a higher salary level, than has ever been the case. It will actually ensure that the lowest 20 percent of all salaried workers get pay of time and a half for overtime work. Now, that is a substantial increase in the number of American workers who will be ensured overtime pay. This is so important because I have heard from workers who have personally spoken to me and they are very frightened about this. They believe that somehow or another these proposed rules are going to make it more difficult for them to get overtime pay. The reality is that a lot more people are going to be ensured that they will receive overtime pay. First, as I said, because we are raising the level of people who would be covered. That is the largest reason why we can make that claim. Another thing that this proposed rule does is to clarify the definitions of who is actually covered and who is not covered. In recent years, there have been a large number of class action lawsuits that have been brought over this definition of white-collar status; therefore, the question of whether they are exempt from overtime requirements. This has actually surpassed the Equal Employment Opportunity class action lawsuits in number, and there are a lot of those. The trial lawyers end up making millions of dollars off of this confusion in the current system over the definition. This law would eliminate all of that cost and all of the wasted energy in litigation and paying a lot of trial lawyers by clarifying who is covered and who is not covered. Now let's talk a little bit about that definition because, once again, people are asking whether they are going to be covered anymore; they will be exempt from this guarantee of overtime pay with the new definitions. I want to make it very clear that in most of the situations I have heard described that just is not true. Employees who earn more than $65,000 annually would be exempted from the overtime pay requirements if their job involves executive, administrative, or professional duties. Now, again, we are talking about time-and-a-half pay. When one is making over $65,000 a year and they are in an executive position, the theory is that they can negotiate their own salary, that they are not in the situation in which they would be getting time and a half for the time they put in, and that is the reason for this particular exemption. Those who earn between $22,100 and $65,000 will remain eligible for overtime pay if they meet what is called the short test. That determines whether they are exempted white-collar workers. That test basically includes definitions such as whether one supervises two or more employees, whether they have the authority to hire and fire or they need an advanced degree or some kind of specialized training. One would have to clearly be in one of those categories in order not to be guaranteed the protection of this time and a half for overtime. That is between $22,100 and $65,000. There is a study out that I think also has some faulty data in it which have skewed the effect of the proposed rule that has been used by the opponents of the proposed regulation and by the supporters of the amendment that would prevent the regulation from going into effect. The claim is that 8 million workers would become exempt from overtime pay requirements based on this so-called EPI study. One of the reasons that the number is so large is because the study counts part-time workers who do not work 40 hours a week and therefore do not receive overtime pay. Well, we have to extract all of those workers in order to have a relevant cohort because one has to work 40 hours a week in order to qualify for overtime pay. The study also includes individuals who are not affected by the rule. Again, I do not see how one can have a valid study that allegedly shows how many people would no longer qualify if a lot of people are included in the study who do not qualify in the first instance. So it is very unclear what the actual number of people would be who would not qualify for the overtime pay. Clearly, this study is fatally flawed in those two significant respects and therefore it should not be used to scare people into suggesting they would no longer be covered. I will give some other examples of different professions in which there have been questions raised, and I think it is important we allay the fears of these people. Cooks are concerned, people who cook in restaurants, for example. Well, all cooks are not exempted from the overtime pay in the proposal. Only chefs who have college degrees in the culinary arts will be deemed white-collar workers and therefore exempt from this requirement. So when one hears the conversation about all of the cooks who are no longer going to be entitled to time and a half because that is--I mean, when a person is working in a restaurant, for example, there is a lot of time and a half involved in that and here we are not talking about most of the people. The people who would be exempted are only those who have a college degree in culinary arts, which does not represent most of the people who are actually doing the cooking. One of the arguments is as to the process, and there has been a suggestion that this rule was just passed in the middle of the night and somehow people are not aware of it. Nothing could be further from the truth. Prior to the drafting of the rule, the Department of Labor held over 40 meetings of stakeholders, people who had an interest in the proposed rule, 50 different interest groups, including, by the way, 16 labor unions. Some of the labor unions have raised questions, I think some will support it, but the bottom line is they were included in the consultations. I am advised that the Department of Labor invited 80 groups to participate in these stakeholder meetings. So I do not think anybody can claim this was done in the middle of the night. I ask unanimous consent that a letter which was provided to me--it was sent to the majority leader and minority leader from the Grand Lodge Fraternal Order of Police--be printed in the Record.

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

Mr. KYL

Mr. KYL. Mr. President, I support the nomination of Neil Wake to the Federal District Court for the District of Arizona. Neil Wake is an Arizona native and has practiced law for 29 years in Phoenix as a partner in several law firms and most recently as the sole proprietor of his own firm. Mr. Wake received a bachelor's degree with honors from Arizona State University in 1971 and a law degree, cum laude, from Harvard University, in 1974, where he was a member of the Harvard Civil Liberties Law Review. His law practice has focused almost entirely on civil litigation. He has handled a wide range of business litigation, administrative and public law litigation, and constitutional litigation under the federal and state constitutions. He has practiced extensively in both state and federal courts, in trial courts and appellate courts, including the Supreme Court of the United States. Mr. Wake has spoken often at continuing legal education programs on civil procedure, administrative law and judicial review of government action, appellate practice and procedure, and other subjects. He has published articles in the fields of administrative law and appellate procedure. Mr. Wake has received high recognition from his peers at the bar. Since 1989 he has been listed in The Best Lawyers in America for business and appellate litigation upon recommendation of other lawyers so listed. Less than 1 percent of attorneys are so recognized. Since 1993 he has been a Fellow of the American Academy of Appellate Lawyers, a professional society of fewer than 300 members nationwide who are admitted by invitation only and after careful investigation. The American Bar Association's standing committee on Federal Judiciary unanimously gave Mr. Wake its highest evaluation of well qualified for appointment as a Judge of the United States District Court. He has given many years of service to the bar, to the courts, and to the community. He has served for nearly 20 years on the Arizona State Bar's Committee on Civil Practice and Procedure and for over 20 years on the State Bar's Appellate Handbook Committee. He is a founding member of the State Bar's Indian Law Section and its Appellate Practice Section, of which he is now the Chairman. He has served five times as a judge pro tempore of the Arizona Court of Appeals and is a Member of the National Board of Visitors of The University of Arizona College of Law. He and his wife Shari and other parents founded ICU Care Parents, a support group for parents of critically ill newborns. Mr. Wake and his wife Shari are the parents of three sons, ages 21, 18, and 10. Neil Wake will be an outstanding addition to the bench.

Mr. KYL

Mr. KYL. Mr. President, it is my understanding that as a result of the suggestion of the chairman of the Budget Committee, the four pending matters would not be voted on, which would include the proposal I offered, the proposal of the Senator from Illinois, and the proposal of the Senator from Pennsylvania, who will speak last, and as Senator Kennedy mentioned, his as well. I want my colleagues to know this is being done by the four of us in an effort to try to get finished here very soon. It seems to me we ought to take one lesson from what has occurred here tonight, which is that those of us who wish to bring amendments to the floor, to have them debated and voted on, who I think have every right to have those amendments voted on, will have to in the future offer these amendments at a different time in the process. I hope my colleagues will recognize that when we do that, it is for the purpose of getting that vote. I think my colleagues would have to agree that the process followed here tonight was not fair and the only reason I have withdrawn the amendment I proposed was so we can complete action. Rest assured that the proposal will be back and my colleagues will have an opportunity to vote on it in the future.

Mr. KYL. Mr. President, I withdraw my amendment.

Mr. KYL. Mr. President, perhaps before I yield back the time, I would like to ask my colleague from Illinois if he would be willing to have two back-to-back votes?

Mr. KYL. Mr. President, I would respond to the ranking member of the Budget Committee, what he says is absolutely true. Everything has been done, up until now, by comity. And I complimented--I am not sure you heard it, but to the Senator from North Dakota, I complimented his handling of this issue as much as the chairman's. As the chairman of the Budget Committee will acknowledge, I had been waiting for a long time to offer my amendment. He urged me to wait, to wait, to wait. Had I offered it earlier, this issue would not even be before us. Many of the other amendments that were offered had political overtones. I think we all have to acknowledge that. I will acknowledge mine does. I think you would have to acknowledge an awful lot of the amendments that have been offered here on which we had rollcall votes had political overtones. We all understand that. I do not need to take any more time on this. I simply put forth an amendment that took me about 5 minutes to discuss. I would like to get a vote on it. I have no objection to the Senator from Illinois offering his proposal and getting a vote on that. We can probably get this done quickly instead of talking about it, and just get it done.

Mr. KYL. Mr. President, if the Senator from Illinois wishes to lay down an amendment, I have, as I said, no objection to having a vote on his amendment.

Mr. KYL. Mr. President, I would be happy to yield to my colleague, the chairman of the Budget Committee.

Mr. KYL. Mr. President, let me renew my request, with all due respect to my friend from Illinois. I do not know how many scores of amendments have been voted on by this body in the last 48 hours or so, most of which have been offered by Members on the Democratic side. We have not second-degreed a single one of those amendments. I have checked. Of course, it is possible to get a vote on an amendment. Everybody around here knows that. At this late date, I just wonder if my colleagues want to go through the time and the process that requires. I have no objection to my colleague having a vote on the proposal which he says he is going to propound here as soon as I yield back my time. But I also think he should permit me to have a vote on the amendment I have laid down, as we have done for every one of the other amendments here. Therefore, again, I would ask my colleague, if he wishes to lay down an amendment and have a vote on that amendment--and I certainly would not do anything to get in the way of that or object to it--that he permit a vote on this as a freestanding amendment. Because if that does not happen, then it is going to take us a very long time tonight. But we will still get a vote on each of these amendments.

Mr. KYL. If the Senator does not wish to lay down his second-degree amendment, then that is fine, because we have not had any second-degree amendments yet. If it is not his intention to lay it down, then we can proceed to a vote on the amendment I have offered.