Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, I will briefly summarize it. The President is visiting in Ohio, I believe, today to highlight the case of a particular Ohio resident. I believe she is a breast cancer survivor. Her insurance eventually became too expensive for her to keep up. She now has a diagnosis of another disease, and the President is highlighting this type of case. I think it is important to highlight it for another reason. I presume the President or the Senators or Representatives of Ohio are finding an alternative way to ensure she is cared for. Frequently, we have constituents come to us with situations such as this. They represent very heartrending situations, problems with which you want to deal. The real question is how to deal with it. The answer to her problem is not to pass this health care bill. There are alternatives. For example, for those who cannot get insurance that is affordable to them because of preexisting conditions--Republicans have put ideas on the table, as have Democrats, but that is a specific kind of problem that can be solved with a specific solution rather than this entire health care bill the President is trying to sell to us. What Robert Samuelson points out in his article is there are a lot of different situations such as this, where people who are not insured nevertheless get care. In fact, the argument is made that we need this kind of health care bill because there are too many people who are uninsured and get expensive and ineffective treatment at the emergency room. He says: ``Unfortunately it's not true.'' He quotes a study by the Robert Wood Johnson Foundation that finds that the insured population ``accounted for 83 percent of emergency- room visits, reflecting their share of the population.'' In other words, there is not a difference of who visits the emergency room and who does not depending on whether you are insured. He goes on to say: After Massachusetts adopted universal insurance, emergency- room use remained higher than the national average, an Urban Institute study found. The point is, even after you get the so-called universal coverage, you do not find any difference in terms of emergency room visits. If anything, with universal coverage, you had even higher emergency room visits. His point is, and I quote Robert Samuelson: If universal coverage makes appointments harder to get, emergency-room use may increase. So you are not making the problem better; if anything, you are making it worse. My guess is, you are not affecting it much one way or the other. It is simply not an argument that because people who are uninsured go to the emergency room, therefore, we have to pass some kind of nationwide health care bill such as has been suggested to us. He goes on to point out: You probably think that insuring the uninsured will dramatically improve the nation's health. He goes on to debunk that myth: I've written before that expanding health insurance would result, at best, in modest health gains. He goes on to point out that studies have validated the fact it does not make a difference one way or another. Claims that the uninsured suffer tens of thousands of premature deaths are ``open to question.'' Conceivably, the ``lack of health insurance has no more impact on your health than lack of flood insurance. He goes on to detail the reasons why that is so. He concludes with this point: Though it seems compelling, covering the uninsured is not the health-care system's major problem. The big problem is uncontrolled spending. That is a point Republicans have been trying to make from the very beginning, to point out we ought to first focus on dealing with what is driving up health care costs. That will, if we are successful, have a positive impact on getting people insured because it will reduce the cost of insurance they have to buy or their employer is buying on their behalf. That is what we should be focusing on rather than this rather elusive issue of coverage of the uninsured. To be sure, nobody is arguing we should not help cover the uninsured. That is not the argument we are making. The argument we are making is, it does not justify a $2.5 trillion expenditure and that, in any event, if you focus first on dealing with costs, you are going to reduce costs, which is a good thing in and of itself, and, thereby, also enhance coverage because the cost is less expensive. Here is the penultimate paragraph in the piece. I will quote him and close. What Samuelson said is the President is: . . . telling people what they want to hear, not what they need to know. Whatever their sins, insurers are mainly intermediaries; they pass along the costs of the delivery system. In 2009, the largest 14 insurers had profits of roughly $9 billion; that approached 0.4 percent of total health spending of $2.472 trillion. Four tenths of 1 percent. He goes on to say: This hardly explains high health costs. What people need to know is that Obama's plan evades health care's major problems and would worsen the budget outlook. It's a big new spending program when government hasn't paid for the spending programs it already has. His point is, instead of trying to make insurance companies the villain, the President should be honest about what their true cost is. Somebody pointed out--my colleague, Lamar Alexander--if you take all the profits of all the insurance companies, it pays for 2 days' worth of health care expenditures in the country. What about the other 363 days? Nobody is defending the insurance companies, but you cannot say they are responsible for the high costs of health care in this country, since they are primarily just passing those costs on. The bottom line is, we need to be honest and explain to the American people what we are trying to accomplish or what we should be trying to accomplish is reducing health care costs. That will have the salutary effect of making access easier for people because they will be able to afford the insurance that now may be unaffordable for them. But the idea that the insurance companies are the reason we have the problem or that emergency rooms are used more because of the uninsured are two myths that are dispelled in this piece by Robert Samuelson. I yield to my colleague from Oklahoma. Exhibit 1 [From the Washington Post, Mar. 15, 2010] Obama's Illusions of Cost-Control (By Robert J. Samuelson) ``What we need from the next president is somebody who will not just tell you what they think you want to hear but will tell you what you need to hear.''--Barack Obama, Feb. 27, 2008 One job of presidents is to educate Americans about crucial national problems. On health care, Barack Obama has failed. Almost everything you think you know about health care is probably wrong or, at least, half wrong. Great simplicities and distortions have been peddled in the name of achieving ``universal health coverage.'' The miseducation has worsened as the debate approaches its climax. There's a parallel here: housing. Most Americans favor homeownership, but uncritical pro-homeownership policies (lax lending standards, puny down payments, hefty housing subsidies) helped cause the financial crisis. The same thing is happening with health care. The appeal of universal insurance--who, by the way, wants to be uninsured?--justifies half-truths and dubious policies. That the process is repeating itself suggests that our political leaders don't learn even from proximate calamities. How often, for example, have you heard the emergency-room argument? The uninsured, it's said, use emergency rooms for primary care. That's expensive and ineffective. Once they're insured, they'll have regular doctors. Care will improve; costs will decline. Everyone wins. Great argument. Unfortunately, it's untrue. A study by the Robert Wood Johnson Foundation found that the insured accounted for 83 percent of emergency-room visits, reflecting their share of the population. After Massachusetts adopted universal insurance, emergency-room use remained higher than the national average, an Urban Institute study found. More than two-fifths of visits represented non- emergencies. Of those, a majority of adult respondents to a survey said it was ``more convenient'' to go to the emergency room or they couldn't ``get [a doctor's] appointment as soon as needed.'' If universal coverage makes appointments harder to get, emergency-room use may increase. You probably think that insuring the uninsured will dramatically improve the nation's health. The uninsured don't get care or don't get it soon enough. With insurance, they won't be shortchanged; they'll be healthier. Simple. Think again. I've written before that expanding health insurance would result, at best, in modest health gains. Studies of insurance's effects on health are hard to perform. Some find benefits; others don't. Medicare's introduction in 1966 produced no reduction in mortality; some studies of extensions of Medicaid for children didn't find gains. In the Atlantic recently, economics writer Megan McArdle examined the literature and emerged skeptical. Claims that the uninsured suffer tens of thousands of premature deaths are ``open to question.'' Conceivably, the ``lack of health insurance has no more impact on your health than lack of flood insurance,'' she writes. How could this be? No one knows, but possible explanations include: (a) many uninsured are fairly healthy--about two- fifths are age 18 to 34; (b) some are too sick to be helped or have problems rooted in personal behaviors--smoking, diet, drinking or drug abuse; and (c) the uninsured already receive 50 to 70 percent of the care of the insured from hospitals, clinics and doctors, estimates the Congressional Budget Office. Though it seems compelling, covering the uninsured is not the health-care system's major problem. The big problem is uncontrolled spending, which prices people out of the market and burdens government budgets. Obama claims his proposal checks spending. Just the opposite. When people get insurance, they use more health services. Spending rises. By the government's latest forecast, health spending goes from 17 percent of the economy in 2009 to 19 percent in 2019. Health ``reform'' would probably increase that. Unless we change the fee-for-service system, costs will remain hard to control because providers are paid more for doing more. Obama might have attempted that by proposing health-care vouchers (limited amounts to be spent on insurance), which would force a restructuring of delivery systems to compete on quality and cost. Doctors, hospitals and drug companies would have to reorganize care. Obama refrained from that fight and instead cast insurance companies as the villains. He's telling people what they want to hear, not what they need to know. Whatever their sins, insurers are mainly intermediaries; they pass along the costs of the delivery system. In 2009, the largest 14 insurers had profits of roughly $9 billion; that approached 0.4 percent of total health spending of $2.472 trillion. This hardly explains high health costs. What people need to know is that Obama's plan evades health care's major problems and would worsen the budget outlook. It's a big new spending program when government hasn't paid for the spending programs it already has. ``If not now, when? If not us, who?'' Obama asks. The answer is: It's not now, and it's not ``us.'' Pass or not, Obama's proposal is the illusion of ``reform,'' not the real thing. The ACTING PRESIDENT PRO TEMPORE. The Senator from Oklahoma.

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Utah (Mr. Bennett), the Senator from Kentucky (Mr. Bunning), the Senator from South Carolina (Mr. DeMint), the Senator from New Hampshire (Mr. Gregg), the Senator from Utah (Mr. Hatch), and the Senator from Ohio (Mr. Voinovich). Further, if present and voting, the Senator from Kentucky (Mr. Bunning) would have voted ``nay.'' The Senator from South Carolina (Mr. DeMint) would have voted ``nay.''

Mr. KYL

Mr. KYL. Mr. President, the economic downturn has continued for a year-and-a-half now and has affected most Americans in some way. Congress has approved a number of measures, which I supported, aimed at helping those Americans. It recently extended unemployment benefits for those who do not have a job. It also expanded the eligibility requirements and duration for COBRA health benefits for those between jobs, and provided a subsidy for those premiums. I could not, however, support the so-called jobs bill put forward by the majority leader and recently passed by the Senate. A jobs bill should create jobs. Beyond some of the tax extenders, there is little in this bill that provides a foundation for jobs creation. The bill is essentially a large spending package that extends, through 2010, aspects of current law. The provisions it contains, such as long-term extensions of unemployment insurance, COBRA, and FMAP State aid, do not promote jobs growth, and, in fact, anticipate that unemployment will still be a serious problem for the remainder of the year. A negative correlation exists between unemployment benefits and work incentives. As President Obama's chief economist Larry Summers has written: Government-assistance programs contribute to long-term unemployment by providing an incentive, and the means, not to work. Each unemployed person has a 'reservation wage'--the minimum wage he or she insists on getting before accepting a job. Unemployment insurance and other social-assistance programs increase that reservation wage, causing an unemployed person to remain unemployed longer. He further concludes: Unemployment insurance also extends the time a person stays off the job. That analysis underscores my point. While I do not disavow the need for unemployment benefits and have supported every short-term extension, I do believe that long-term extensions of those benefits do not lead to job creation and should not be touted as part of a jobs bill. The cost of this bill is also a problem. When President Obama signed the pay-go Act 4 weeks ago, he said: Now, Congress will have to pay for what it spends, just like everybody else. This bill waives those brand new pay-go requirements and adds more than $100 billion to the already-exploding deficit. Good jobs legislation would address the underlying problem of unemployment, rather than treating the symptoms of a weak economy. Good jobs provide far more security to American families than temporary government benefits do. There are a number of steps Congress can take that will actually put Americans back to work. One is ending the constant cycle of spending billions of dollars the Treasury does not have. When the government borrows money--it borrowed $1.4 trillion last year--it's more difficult for the private sector to borrow and invest. When businesses can't grow their operations, they can't afford to hire new employees. Congress can also ameliorate the uncertainty that is preventing new hiring by not raising taxes and costs on employers. Unless they are extended, the lower tax rates that have been in place since 2001 are set to expire at the end of this year, triggering a $2 trillion tax increase over the next decade. Businesses will remain timid about hiring if they think new taxes will add to the cost of their business and consume the capital that could be used to pay new employees. There are other steps Congress can take--promoting our Nation's exports by passing free-trade agreements with Colombia, Panama, and South Korea, and increasing production of domestic energy resources, for example. Passing bills that increase our Nation's debt and create disincentives to work will not encourage investment in the economy. If we want business owners and entrepreneurs to start creating jobs, Congress should act so that it does not become harder and more expensive to do business.

Mr. KYL

Mr. KYL. Mr. President, I appreciate my colleague asking. There are 330,000 seniors in the State of Arizona who rely on Medicare Advantage. It is exactly as Dr. Barrasso said: Medicare Advantage is a program that helps people with preventive care, with coordinated care, and with some of the things that aren't available under regular care, including vision care, audio care, and the like. These benefits would be drastically cut under the proposal in this legislation, so they are naturally very much opposed to it. I think Arizona represents the second largest State in terms of the number of seniors participating in Medicare Advantage. The other part of this that concerns them is the fact that if it is such a good idea to eliminate this program--or to drastically curtail it, to be perfectly accurate--then why is it that in one State the Senator was able to get his senior citizens who have Medicare Advantage programs exempted from the bill? If it is such a wonderful idea, why shouldn't it apply to everybody? But the seniors in Florida would be grandfathered in their Medicare Advantage plans because, of course, they don't like these cuts any more than seniors in Arizona or Wyoming or any other State. So this brings up the question: How can these provisions that are objected to by the American people be fixed in the process that has now been settled upon, this so-called reconciliation process? If I could address that for a moment. The author of this so-called reconciliation process is our esteemed colleague, the senior Senator from West Virginia, Robert Byrd. Here is what he had to say about using the process he created, this reconciliation process, for the purposes of consideration of health care legislation. I quote him from the Washington Post, March 22, 2009: I am certain that putting health care reform and climate change legislation on a freight train through Congress is an outrage that must be resisted. Using the reconciliation process to enact major legislation prevents an open debate about the critical issues in full view of the public. Health reform and climate change are issues that in one way or another touch every American family. The resolution carries serious economic and emotional consequences. The misuse of the arcane process of reconciliation--a process intended for deficit reduction--to enact substantive policy changes is an undemocratic disservice to our people and to the Senate's institutional role. That is what Senator Byrd had to say. Yet that is the process that has been selected by the Democratic leaders to force this legislation through the Congress. The final point I wish to make with respect to this is I think, to some extent, it may be a cruel hoax on some of our Democratic colleagues in the House of Representatives who are counting on the Senate to back up the reconciliation bill that might be passed in the House of Representatives. What they are assuming is, when they attempt to fix the Senate bill they don't like very much by amending it through this reconciliation process and then sending that bill over to the Senate, the Senate is simply going to pass the bill. Voila: The bad Senate bill has been fixed, the President can sign the reconciliation bill, and we will now have national health care reform. Well, not so fast. As a matter of fact, the author of this reconciliation process also created what is known around here as the Byrd rule, which means that if you go outside the narrow lanes of the reconciliation process and try to include things in the bill that don't belong in the reconciliation process, then it is, of course, subject to a point of order, as it should be, and it would take 60 Senators to override that point of order. Well, there are a lot of things that are going to be attempted to be fixed in the reconciliation bill that are subject to a point of order-- the Byrd rule. Those points of order will be upheld because I am going to predict to my colleagues that 41 Republican Senators are not going to allow that misuse of the reconciliation process--going outside what is clearly a reconciliation process--which means the bill that is passed in the House of Representatives, if it is, would not be passed by the Senate. Key provisions of it would have been stricken on points of order. Then, our friends in the House of Representatives would be faced with the prospect that they had already passed this bad Senate bill they don't like very much--and that I don't like very much--but the President can sign that into law. Yet the process by which they would attempt to fix it has failed because of the points of order that can be raised and that will be raised and that will be sustained, as should be the case, under the application of the so-called Byrd rule. So when my colleague from Wyoming talks about his constituents in Wyoming objecting not only to the substance of the bill but also the process by which it has been handled, I can answer the question: Yes, I met with a whole group of people from different States this weekend-- from Pennsylvania, California, New Jersey, New York--I visited with folks from literally all over the country, and they had the same objections, both as to the substance of the legislation, but they were also very curious about this reconciliation process because they had heard it could be used to ram the bill through by a process that it was never intended for, and they wanted to talk about that. When we explained the fact that the legislation adopted by the House--if it is--would not necessarily be adopted in the Senate but would be subject to these points of order--and, by the way, amendments, an unlimited number of amendments--then at least they understood why House Democrats who will insist on amending the Senate bill should not rely on the Senate to do their bidding. That isn't going to happen. Let me say one other thing before I turn it back over to my colleague from Wyoming. It has been such a learning experience for us and an inspiration to have a couple real physicians in the Senate. Our only two physicians here are Dr. Barrasso, an orthopedic surgeon from Wyoming, and Dr. Tom Coburn, a physician from the State of Oklahoma, to talk about the real world of treating patients and how there are ways that care can be given in a less expensive way but retaining both the essential quality of care and that intangible but incredibly important--almost sacred--relationship between the doctor and the patient. I see Dr. Coburn has joined us on the floor. It is key for the rest of us to understand how this process works when physicians sit down with patients and determine the best course of action to preventive care, that can both be the least expensive and yet still deliver the quality care that their patients deserve. I think we ought to pay more attention to the advice they have provided to us, and I commend both Senator Barrasso as well as Dr. Coburn for the advice they have given to us, and I hope we will continue to listen to that advice as this debate unfolds.

Mr. KYL. If my colleague would yield for a quick comment on that point.

Mr. KYL. The Mayo Clinic in Arizona, unfortunately, has had to announce that in several of its key facilities there, it will no longer accept new Medicare patients. Why is that so? Because the government program of Medicare, which our seniors rely on, is getting to the point where it does not pay physicians what they require just to stay in business, just to have their office practice continue. The Medicaid Program, which is the other government program, is already so low in its reimbursements to physicians that--the numbers differ, but 50 to 60 percent of physicians are no longer taking Medicaid patients. As a result, these government programs end up getting very close to rationing care because there aren't enough physicians and facilities to take care of the people who are enrolled in the programs. Imposing yet another entitlement for even more people to have this care with fees regulated by the Federal Government and reimbursements at levels too low for physicians to take advantage of will simply continue to drive physicians away from the treatment of the patients they have treated over the years and want to continue to treat. It would be our hope we could bring the incentive for physicians to continue to treat these patients, rather than the disincentives the Mayo Clinic is pointing to in backing out of the treatment of folks in Arizona.

Mr. KYL. Mr. President, I remember sitting back in the cloakroom and listening to Dr. Coburn when he was talking about how he treats patients who come into his office. A child, he said, comes in who has had a fall on the playground and the parents, understandably, are very concerned. Dr. Coburn said to me: If I just sit down and talk to that young man, that child, talk to his parents for a while, I can usually figure out what kind of treatment is going to be necessary without necessarily ordering a bunch of tests. But under the medical malpractice situation we have to work under today, I am almost required to order those tests or, if something should go wrong, be accused of malpractice. I wonder if my colleague could relay that story.

Mr. KYL. Mr. President, might I just inquire how much time remains on the Republican side?

Mr. KYL

Mr. KYL. Mr. President, I opened the newspaper, the New York Times, on Sunday morning and was surprised--shocked--at a full-page advertisement I saw. It had a big headline that said: ``What will it be, Mr. President? Change or more of the same?'' Then it had four photographs or artist's renderings. The first one was of President Barack Obama. It gradually morphed from Barack Obama into George W. Bush, so the last in the frame of four was clearly a likeness of President George W. Bush. This was an advertisement paid for by the American Civil Liberties Union, the ACLU. I do not know what surprised me more, whether it was the audacity and the blatant partisanship of the ad or its ignorance and misrepresentation of the law. Either way, it deserves some comment today. The essence of the ad was to obviously try to put some pressure on President Obama not to change his initial decision to transfer the trial of Khalid Shaikh Mohammed to the Manhattan Federal district court, the so-called article III court, back to a military commission where it had originally been. The ad makes the point that ``Barack Obama vowed to change Bush-Cheney policies''--I am quoting now--``and restore America's values of justice and due process.'' Of course, those values didn't exist under the Bush administration, according to the ACLU. They then say they are ``shocked and concerned'' the President is considering changing the 9/11 defendants' trials from criminal court back to military commissions. They say that: ``Our criminal justice system will resolve the cases more quickly and more credibly than the military commissions.'' That is a matter of dispute, which I will get back to in a moment, but then there is this sentence: ``Obama can vigorously prosecute terrorists and keep us safe without violating our Constitution.'' The implication, of course, being if you go to a military commission, you are violating the Constitution. If that is what they mean to convey, and it is clear they do, the writers of this ad are obviously intentionally misrepresenting the law. The U.S. Supreme Court has upheld military commissions. You can go back to the 1950s case of Johnson v. Eisentrager, involving German war prisoners. The current U.S. Supreme Court in the Hamdan decision made it clear the President, with authority from Congress, could establish military commissions to try the very people we are talking about, these Islamic terrorists. Indeed, the President came to Congress and, with changes from the administration recommended by the Justice Department, Congress passed the Military Commissions Act of 2006. That act is available to try many of these same terrorists. Indeed, the Attorney General has made it clear there are four categories of these terrorists held at Gitmo. They want to try to release some of them back to their country of origin; they believe some of them should be tried in article III courts--that is like the Federal district court in Manhattan; others of them should be tried before the military commissions that the ACLU seems to think would violate due process; and, finally, that they intend to hold some of them for the duration of the conflict, which is also authorized. Here you have one of the, at least I thought, preeminent legal authorities in the country--granted they always seem to take the side of the little guy without representation or the person who is not looked upon with great favor who needs legal representation, frequently to represent cases that represent different points of view--certainly, performing a service to our legal community over the years, most people I think would acknowledge. But now they have turned into a blatant partisan political entity that I think can have no more credibility in court for both reasons: First, because of the nature of this, morphing President Obama's face into President George W. Bush's face and talking about changing the Bush-Cheney policies, which obviously they believe do not represent America's values of justice and due process, contending that you have to go to article III courts to try these people or else you are violating our Constitution. The final conclusion: ``The President must decide whether he will keep his solemn promise to restore our Constitution and due process or ignore his vow and continue the Bush-Cheney policies,'' which in their view, I gather, means not having constitutional rights and due process. Again, this administration helped the Congress write the military commissions law. That law is in effect today. The administration intends to try many of these same terrorists before those military commissions. The constitutionality of military commissions has been upheld in the past. The constitutionality of the President and the Congress doing so in the future was acknowledged by the Supreme Court in the Hamdan case. No court has ruled that the military commissions that were thus created in the 2006 act would, as the ACLU suggests, violate our Constitution or due process. So what exactly is the ACLU talking about? Moreover, I said I would get back to it, the ad suggests that the ``criminal justice system,'' meaning the article III courts, ``will resolve these cases more quickly and more credibly than the military commissions.'' Absolutely false, demonstrably false. Khalid Shaikh Mohammed, the kind of poster child here, the mastermind of 9/11, was before the military commission at Guantanamo, and he said he wanted to plead guilty in the military commission. That case could have been over with had his guilty plea been accepted. I cannot think of a quicker and more successful outcome than accepting the guilty plea of Khalid Shaikh Mohammed. When the Attorney General came before the Judiciary Committee and hemmed and hawed about what his reason was for moving this trial to the Manhattan Federal district court, he basically settled on the proposition that it would represent a more sure way to gain a conviction. I asked him: ``Mr. Attorney General, this defendant has agreed to plead guilty before the military commission. How much surer of a conviction do you get than that?'' Well, the Attorney General said he wasn't sure he still wanted to plead. But he also assured us, pursuant to a question one of my colleagues asked--what would happen if, for some reason, the court decided to let him go--the Attorney General said: ``Failure of conviction is not an option.'' In other words, he will be convicted, and both he and the President have talked about execution. If the ACLU and the administration are so intent on showing off the great American judicial system which presumes innocence over guilt--and it is literally unethical for prosecutors to go out before the public and guarantee the conviction and execution of a defendant--then it seems to me to be rather odd that this Attorney General would say: Oh, failure is not an option. He will be convicted and, by inference, he will be executed by our wonderful article III courts which, of course, presume innocence. How the ACLU can say he would be more quickly and more credibly treated than through military commissions is beyond me, after these particular statements. I go back to my original perplexity: As I say, I don't know whether to be more surprised by the audacity of this organization with a blatantly partisan political ad, obviously highly critical of the Bush- Cheney administration, implying it did not believe in America's values of justice and due process or by the ignorance and misrepresentation of the law by the ACLU. They have smart lawyers, so I assume it is not ignorance, but they are clearly misleading anyone who reads this ad in suggesting both that military commissions would not be pursuant to the Constitution or due process but would rather be a continuation of Bush- Cheney policies. Bear in mind, the new Military Commissions Act of 2006 is not a Bush-Cheney military commission, this is a current U.S. Congress Obama administration military commission law, signed into law by President Bush. When the ACLU says prosecuting them in the article III courts would keep us safe without violating our Constitution, one has to assume they believe the Military Commissions Act would be violative of the U.S. Constitution, and that is incorrect. It is unclear to me what is gained by politicizing this issue. My colleague, Lindsey Graham, has talked about the idea of some kind of bipartisan arrangement, whereby the President will acknowledge the will of the American people, which is very strongly against trying these terrorists in the article III courts and in favor of trying them in military commissions. It seems to me there is sufficient understanding. The administration certainly agrees with the Military Commissions Act. It has said it would use that act to try some of these terrorists. It doesn't believe that act represents an unconstitutional approach to deal with these people. According to public opinion surveys, the American public opinion is very strongly of the view that these cases should be tried before military commissions. That being the case, it seems to me there is an opportunity for us not to try to make this a partisan issue but to try to follow what the American people believe should be the case; that these cases can and should be tried before military commissions when appropriate; that there is also a place for them to be tried before article III courts; that some of them potentially can be returned to their country of origin, although that represents a significant danger, considering the fact that about 20 percent of them return to the battlefield to fight our forces or that there is a category that cannot be tried in either article III courts or before military commissions. It seems to me we can have a legitimate discussion of this; that the law that the previous President signed into law that represents the point of view of both Democrats and Republicans, that allows for military commissions, can be used; that the President would be well within his rights to use military commissions; that it would comport with the law as acknowledged by the U.S. Attorney General and would reflect the views of the American people that it is important these terrorists be treated, first and foremost, as enemies of the United States and only if appropriate in article III courts as common criminals. Finally, the last point I would make is, to some extent, the location of the trial is a lot less important than the primary objective when an enemy terrorist is captured; that is, to get intelligence. I think this is what upset the American people: when, the first thing that happened, after 50 minutes of questioning of the so-called Christmas Day bomber, that he was read his Miranda rights and he stopped providing intelligence to those who were interrogating him. Subsequently, that intelligence interrogation has resumed. But we will never know what kind of real-time intelligence was lost as a result of the reading of Miranda rights. When we try people in article III courts, we are going to have to quickly provide these Miranda rights. That ordinarily will mean we give up important--potentially give up important intelligence that we could gain by interrogating the individual. Now, it is not the case that necessarily we would be foreclosed from trying the individual in an article III court because we can rely on something other than the confession of the individual to gain his conviction. In the case of the would-be bomber on Christmas Day, there was plenty of physical evidence: he was burned badly, there were eyewitnesses, and we did not need a confession of the individual. So the Mirandizing in that case was largely irrelevant; the point being that what we ought to be doing is getting the intelligence first and then deciding which is the appropriate court in which to try the individual. In many cases, that will be military commissions. An organization which has studied the history of the ACLU should appreciate the fact that military commissions are constitutional. They do not violate due process rights. A defendant such as Khalid Sheikh Mohammed could be tried before a military commission in a perfectly appropriate and constitutional way, and it takes nothing away from our article III court system or from President Obama's leadership as President of the United States to hold those trials of this kind of individual in the military commissions. To describe this advertisement, I ask unanimous consent that a Fox News article dated March 7 be printed in the Record at the conclusion of my remarks.

Mr. KYL. I yield the floor.

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Texas (Mrs. Hutchison).

Mr. KYL. The following Senator is necessarily absent: the Senator from Texas (Mrs. Hutchison).

Mr. KYL. The following Senators are necessarily absent: the Senator from Missouri (Mr. Bond), the Senator from Texas (Mrs. Hutchison), and the Senator from Alabama (Mr. Sessions).

Mr. KYL. The following Senators are necessarily absent: the Senator from Missouri (Mr. Bond), the Senator from Texas (Mrs. Hutchison), and the Senator from Georgia (Mr. Isakson).

Mr. KYL. The following Senators are necessarily absent: the Senator from Missouri (Mr. Bond), the Senator from Texas (Mrs. Hutchison), and the Senator from Georgia (Mr. Isakson).

Mr. KYL. The following Senators are necessarily absent: the Senator from Missouri (Mr. Bond), the Senator from Texas (Mrs. Hutchison), and the Senator from Georgia (Mr. Isakson).

Mr. KYL. The following Senators are necessarily absent: the Senator from Missouri (Mr. Bond), the Senator from Texas (Mrs. Hutchison), and the Senator from Georgia (Mr. Isakson).

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Texas (Mrs. Hutchison).

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Texas (Mrs. Hutchison).

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Texas (Mrs. Hutchison) and the Senator from Oklahoma (Mr. Inhofe).

Mr. KYL. The following Senator is necessarily absent: the Senator from Texas (Mrs. Hutchison).

Mr. KYL

Mr. KYL. Madam President, I recommend to my colleagues a February 11 Wall Street Journal column by Stanford economist Michael Boskin, entitled, ``When Deficits Become Dangerous.'' Boskin's premise is that the new taxes and ``enormous deficits and endless accumulation of debt'' in President Obama's budget will create a ripple effect of problems through our economy. He explains that the debt will eventually force additional growth- smothering taxes: ``Such vast debt implies immense future tax increases. . . . It's hard to imagine a worse detriment to economic growth.'' Boskin also notes that ``so worrisome is this debt outlook that Moody's warns of a downgrade on U.S. Treasury bonds, and major global finance powers talk of ending the dollar's reign as the global reserve currency.'' He describes President Obama's budget as ``the most risky fiscal strategy in history.'' I ask unanimous consent that this article be printed in the Record, and urge my colleagues to consider the facts and arguments it contains.

Mr. KYL

Mr. KYL. Mr. President, until my voice gives out, I wish to address the bill that is on the floor. The bill has been denominated by my colleagues on the Democratic side as a jobs bill, but it will not create any new jobs and when considered in conjunction with the health care legislation the President has proposed will actually cost jobs and I wish to address that. This legislation extends some current provisions of law, including tax provisions, unemployment compensation, COBRA insurance. It extends a provision of Federal subsidies to the States for Medicaid, and there are a few other provisions. None of these create new jobs. The tax extenders are useful. That is our Washington, DC, speak for provisions of the Tax Code that last 1 year and have to be renewed each year. They are generally used to enable businesses to deduct from their taxes ordinary business expenses and include things such as research and development tax credits which I think are supported by all 100 Senators. So we do this every year. We extend these tax provisions for another year. It should have been done at the end of last year; it wasn't. So it has to be done now and made retroactive to the beginning of the year. One could argue that some of those may theoretically create a few jobs, but they are something we do every year, and they are not for the purpose of creating jobs; they are simply good business practices. So this bill takes on the usual business of the Senate. There is nothing new, as I said, to create jobs. What of the subject of unemployment coverage extension which we have just been debating? That doesn't create new jobs. In fact, if anything, continuing to pay people unemployment compensation is a disincentive for them to seek new work. I am sure most of them would like work and probably have tried to seek it, but you can't argue it is a job enhancer. If anything, as I said, it is a disincentive and the same thing with the COBRA extension and the other extensions here. So it is not a jobs bill, and it is beyond me how it could be denominated as such. Moreover--and the reason for my colleague's objection to the temporary bill--the Congressional Budget Office preliminary estimate shows this bill adds $104 billion to the deficit over the next 10 years, and that is in addition to the $10 billion that would be added that my colleague, Senator Bunning, has been talking about. This number is primarily due to the extension of unemployment insurance, the expanded COBRA extension, and the new Federal assistance to States for Medicaid patients. These are given emergency designations. As a result, we don't have to supply an offset, a spending reduction, to pay for the cost of these provisions. This comes just a week after our Democratic colleagues were bragging about the fact that they passed a bill called the pay-go bill. The pay-go bill is supposed to require that if we are going to spend money, we find an offset in the form of a spending deduction or revenue enhancement that covers the cost of that new spending. We predicted that as soon as we passed the pay-go legislation, our Democratic colleagues would come to the floor and seek to have their next legislation exempted from it. Sure enough, that is exactly what was done. Both the matter Senator Bunning has objected to and the bill we are on now have to be exempted from the pay-go requirements and, therefore, add to the Federal deficit--in this case, $104 billion. Some of these provisions are useful provisions. But the truth is you can't, on the one hand, say everything we do has to be offset with spending cuts or tax increases and then waive the pay-go legislation every time you want to do it--as it turns out so far, every time we have considered legislation. The reality is, we could pay for this legislation and, as Senator Bunning said, we could pay for the so-called temporary extension of unemployment benefits because we have money we authorized and appropriated earlier in the so-called stimulus bill which would more than offset the cost of this legislation. Republicans, of course, would like to offer an amendment to pay for it from the stimulus funds. According to recovery.gov, the Web site for the stimulus bill, only $186 billion of the $499 billion in appropriated and direct spending from the stimulus has been spent so far. That means $313 billion or 63 percent remains unspent. So $160 billion of these funds hasn't even been made available to be spent yet. The original CBO estimate of the stimulus shows 21 percent of the money, $122 billion of the appropriated and direct spending, will not occur until 2012 or thereafter. We have an immediate crisis. Our Democratic colleagues say we have to extend unemployment insurance. In fact, it is such an immediate crisis, they have to waive the pay-go requirements that would ordinarily apply because it is an emergency. If that is the case, then why not simply take this money that isn't going to be spent until after 2012 and pay for the legislation that is before us right now? Why would we put aside stimulus money to spend in 2012 when people need it today? That is the very argument my colleague from Illinois was making to my colleague from Kentucky. Why pile on the deficit if we have this money available? Therefore, my colleague from Kentucky made a good point when he suggested this money should be paid for out of the stimulus funding. I am sorry to see my Democratic colleagues object to that request. The conclusion is, therefore, the bill will do nothing to create new jobs. What is more, when considered in conjunction with the health care legislation, it will actually cause a loss of jobs. The President, who talked about his plan last Thursday at the so- called health care summit, noted that the bill costs a lot of money and, therefore, they had to raise taxes in order to pay for it. Among other things, the President's plan, unlike the plan that passed the House or the Senate, would raise the Medicare payroll tax on small businesses. It would raise taxes by 31 percent. It would also apply the Medicare payroll tax to investment income, such as interest, dividends, rent, and royalties. We all know if you tax something, you get less of it. Taxing investment income would, therefore, reduce investment in the economy. Putting a tax on the employment of people means businesses are going to hire fewer people or there are going to be fewer people on their payroll. We cannot afford to lose more people to unemployment. We need to begin hiring people. How do we do that? You surely don't do it by making it more costly to employ people or by increasing by almost one- third the Medicare payroll tax. That makes no sense. To apply it now to investment income will directly drive down productivity and economic growth. Less investment will, obviously, lead to lower productivity, slower economic growth, weaker wages and salaries, and lower household wealth. For example, each new dollar of tax paid by a small business is one less dollar that could go toward hiring new employees. The Heritage Foundation just did a study on this proposal. It found that between 2011 and 2020, regarding this investment income proposal alone, it would result in an average of 115,000 lost job opportunities per year; it would reduce household disposable income by $17.3 billion per year; it would cut wages and salaries by $14 billion per year; and it would decrease household wealth by $267 billion per year. Last week, Congress passed a new job-hiring tax credit. With great fanfare, my colleagues on the other side of the aisle said this is the way to help small businesses hire more people. The whole idea was to put more people to work. The very same week, the President announces his health care proposal that will make it harder for people to go back to work. If the goal is to get more people to work, I submit that my Democratic friends should shelve their health care plan, which will have the opposite result. It is very hard to justify legislation that is going to hurt job creation. As I say, when you consider the fact that, No. 1, the bill before us creates no new jobs--and I challenge my Democratic friends to show us how doing what we always do and what was done last year--extending the R&D tax credit, extending COBRA insurance, extending unemployment benefits--creates jobs. What is the estimate for job creation by the CBO on this? It can't be very much. Finally, my colleague from Illinois, in responding to Senator Bunning a little bit ago, said Republicans always object--and we have many times on previous occasions--to the consideration of unemployment legislation. I recall back in October--in fact, I will quote from a story, dated October 13, 2009, by Dan Friedman. He says: Last Thursday, Democrats announced a deal that gave all 50 States a 14-week extension. I think that was about three extensions ago. I have forgotten exactly. The Senate Finance Committee Chairman, Max Baucus, within hours of that sought unanimous consent to pass the bill. Even though Republicans had already indicated that they would object so that they could try to amend the bill to replace the extension of the tax or to provide a pay-for in the Democrats' plan with the use of stimulus money. It noted the fact that I had also asked that we see the CBO score on that. It noted that Senators Reid, Baucus, and other Democrats quickly bashed Republicans: ``The delay is a threat to millions of workers struggling to feed their families as they retain or search for new jobs,'' my friend, the chairman of the committee, said. Earlier in this particular article--I will read how it starts off: Senate Democrats in recent weeks have repeatedly used unanimous consent agreement requests to rack up talking points against Senate Republicans--a tactic that GOP aides said the majority is using deceptively to blame Republicans rather than internal disputes for stalled legislation. Senate leaders have long used the tactic of asking for unanimous consent to pass legislation they know will draw an objection from the minority and then blasting the objectors for obstruction. I fear that is what we are seeing here. Immediately after Democrats, behind closed doors, develop legislation, they immediately come to the floor and say: Let's pass it, and Republicans say: Let's at least see how much it costs and give us a chance to amend it. We thought the Democrats liked to do that. Oh, no, we cannot have that, not when it applies to unemployment extension. That is all my colleague from Kentucky is trying to do. As I said, that is $10 billion not paid for. The bill before us is another $104 billion not paid for, and it doesn't create a single new job. Yet my colleagues on the other side of the aisle are unwilling to use stimulus money to pay for it. I will be very interested, when we do have an opportunity to amend the bill before us--I assume we will, and I assume one of those will be to pay for the bill with the stimulus funds--maybe we can make it clear these are not funds that would be spent until after the year 2012. It will be interesting to see if my Senate colleagues who support pay-go would support that kind of amendment. After all, if this is supposed to be a stimulus bill for job creation, you would think it could be used for that purpose. I hope my colleagues will consider that every time we pass one of these bills, we are adding to the deficit and we are not creating new jobs. It is a legitimate point for Republicans to make. I hope we will have the opportunity to address that subject with amendments as this bill goes forward.

Mr. KYL. If my colleague will yield, I said it is not a job creator. If anything, it could be argued it is a disincentive for work because people are being paid even though they are not working. I certainly did not say, and would never imply, that the reason people don't have jobs is because they are not looking for them. It is true that a lot of Americans have gotten so tired of looking for jobs or believe they are not going to find them that they have stopped looking and, as a result, the unemployment numbers are probably higher than the roughly 10 percent that is quoted now. Some people believe it could be as much as 17 percent. This is why I have supported every extension of unemployment benefits. I have voted for them. As my colleague says, there are five people looking for every job that exists. If they cannot get the jobs, they needed support. But what I said is true, and if my colleague can find a source that says it is not true, show me. But providing unemployment benefits doesn't create jobs. The bill we have before us is denominated around here as a jobs bill. That is the biggest single expenditure in the bill, and it doesn't create jobs.

Mr. KYL. Mr. President, I respond to my colleague, the point I was making is that it is hard to describe this as a jobs bill because it does not create jobs. Each year, we extend these tax provisions. That is why we in Washington call it the tax extenders bill. This is not some new job creator. I agree with my colleague that to the extent we continue this in practice--though everybody who takes advantage of it knows it will be extended. So they have not made decisions based upon the prospect that we are not going to do it. They know we are going to do it retroactively, so it is not creating any new jobs. I support the extension. I think it is a good thing. But let's don't call it a jobs bill. By contrast, as I said, the health care legislation my colleague supports is a job killer. I pointed out just one provision: 115,000 jobs per year lost just because of the one provision taxing the so- called passive income, the dividends. And we are not even sure whether capital gains are taxed in that. Their estimate may even be low. The reality is, if we are really talking about saving or creating jobs, let's forget this massive health care legislation that now adds two more job-killing provisions to it: a 31-percent increase in the payroll tax and taxing for the first time passive income as a part of Medicare. That is a job killer. If we are going to talk about jobs with regard to the legislation we have before us, I think it is a fair point to also talk about legislation our colleagues on the other side of the aisle want very much to try to get passed.