Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent to lay aside the pending amendment for the purpose of sending a motion to recommit with instructions to the desk.

Mr. KYL. Mr. President, I will take just a moment to explain what this motion is. It is very simple. Incidentally, I wish to say at the outset that because of the way it reads, as the clerk read, ``forthwith,'' there is no intention in this motion to delay the bill whatsoever. It requires the committee to report back forthwith. Although I believe the discretionary spending increase in this bill, which is 23 percent above last year's level, excluding the stimulus bill, is far too high, my motion does not touch spending in this appropriations bill. Let me repeat that. This amendment does not change in any way the spending in this appropriations bill. My motion simply instructs that the bill be sent back to the Appropriations Committee so it can be amended and sent back here forthwith to provide for rescissions of any amounts that are unobligated for the fiscal year 2010 in the stimulus bill that are available in nonhighway spending accounts. In other words, whatever has not been obligated under the stimulus and relates to the spending in this appropriations bill that is duplicative of that spending and does not relate to highway spending would be rescinded. Why is it necessary? The stimulus, I do not believe, has provided what was promised--namely, jobs. A report at the end of August issued by the President's Chief Economist, Christina Romer, found that only $151.4 billion of the original $787 billion had been spent. The real total cost of the stimulus is over $1.1 trillion when you include interest. That is a mere 19.2 percent--less than a quarter of the total package. In other words, the majority of this funding will be spent over the next several years, by which time the recession, hopefully, will be long over. The administration claimed this spending would halt the unemployment level at 8 percent. Seven months after we passed the stimulus, unemployment levels are now at 9.7 percent and growing. We have lost over 2 million jobs. I know the administration likes to say the stimulus has saved or created 1 million jobs, but most people recognize there is no way to measure saved jobs. In fact, Christina Romer stated recently: You know, it's very hard to say exactly what the jobs effect is because you don't know what the baseline is. My point is this: This discussion of the wasteful and nonjob- producing stimulus is important to this bill because our Nation is about to hit its debt ceiling of $12.1 trillion in October. This Congress will have to, again, raise the debt limit after having done so through the so-called stimulus. The public debt level is currently at $11.8 trillion. This motion will lead to more than $11.6 billion in savings, which is less than 1 percent of our Nation's debt level. But we need to start somewhere, sometime. I urge my colleagues to support this amendment which, to reiterate, does not take one dime out of this appropriations bill. It simply says the committee should go back and rescind from the stimulus bill any funding in the stimulus bill that is duplicated in this transportation and housing bill as long as the money has not yet been obligated and does not relate to highway spending. We would save about $11 billion. That is a good thing to do. I urge my colleagues to support this motion when we are able to call it up and vote on it.

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 North Carolina (Mr. Burr), the Senator from Oklahoma (Mr. Coburn), the Senator from South Carolina (Mr. Graham), the Senator from New Hampshire (Mr. Gregg), the Senator from Texas (Mrs. Hutchison), the Senator from Arizona (Mr. McCain), and the Senator from Louisiana (Mr. Vitter). Further, if present and voting, the Senator from South Carolina (Mr. Graham) would have voted ``yea.''

Mr. KYL

Mr. KYL. Mr. President, following this moment of silence, I think all of us on this morning are reflecting on where we were and what we were doing on the morning of September 11, 2001. In this body, we are reflecting on the things that occurred thereafter that enabled us to respond to that heinous terrorist attack. I wanted to read some comments I wrote for the Arizona Republic that were printed this morning: Eight years have passed since al Qaeda terrorists attacked the United States. Today, we remember the thousands who lost their lives and are reminded of the brutality and evil of our enemy. Terrorists have not struck on our soil since 9/11 because we gained useful intelligence and have been able to thwart attacks. This is due in part to intelligence improvements implemented after a bipartisan commission investigated the terrorist attacks and provided recommendations to protect against future attacks. Known as the 9/11 Commission, it described in detail a lack of cooperation among the Justice Department and members of the intelligence community prior to 9/11 that made the United States more vulnerable to attack. It also described how second guessing of intelligence operations had caused intelligence agents to be risk-averse and overly cautious in carrying out their duties. Following the release of the commission's report, Congress and government agencies made critical changes to improve intergovernmental cooperation and pushed the agencies to be bold in acting to protect the American people. The result was an intelligence community that was aggressive in tracking, capturing, and interrogating terrorists, and devising other technical means of gathering key intelligence. The interrogation techniques employed during the post-9/11 period produced information that saved lives. For example, interrogations of Khalid Sheik Mohammed, the mastermind of the September 11 attacks and the man the CIA has called its ``preeminent source'' on al Qaeda, revealed plans to carry out a September 11-type attack on the West Coast and attack landmarks in New York, such as the Brooklyn Bridge. But, the passage of time since 9/11 seems to have dimmed memories of important lessons learned, as demonstrated by Attorney General Eric Holder's recent decision to appoint a prosecutor to reopen a previously closed investigation into the techniques intelligence officers used to interrogate terrorists. There is little doubt that this step, which could lead to criminal charges against intelligence officers, will drive a wedge between the Justice Department and the intelligence community and discourage the intelligence community from acting aggressively. Intelligence officers will not be able to focus on their critical responsibility if they are worried that actions they take today will be subject to legal recriminations when the political winds shift. Indeed, CIA director Leon Panetta has sounded a similar warning--that he's become increasingly concerned that this focus on what happened in the past will distract intelligence officers from their core mission of protecting America. It will also spur distrust between the Justice Department and the intelligence community and return us to the days when a virtual ``wall'' separated government agencies charged with fighting terrorism. The attorney general's decision to reopen this investigation will have serious repercussions--and it is wholly unnecessary. When he announced the appointment of the prosecutor, the attorney general failed to acknowledge that the Justice Department has already investigated the alleged interrogation abuses that are the subject of this new probe. One individual was prosecuted and convicted for abuses. Three former attorneys general and numerous career prosecutors have examined the evidence and determined that it does not support further prosecution of intelligence officials. The president himself has repeatedly said that he wants to look forward, not backward on this issue. But, the actions of his administration (over which he has control) are inconsistent with his stated intent. I believe the nation would be better served if the administration focused more on supporting the intelligence community as it continues every day to do the hard work of intelligence gathering, rather than distracting it from its duties and chilling its activities.

Mr. KYL

Mr. KYL. Mr. President, I wish to reflect on the speech President Obama gave on Wednesday evening. We have had time to reflect on its meaning, time to have the pundits give their views on it, time to see some reaction by the American people, and time to visit with colleagues about their reaction to answer the question of whether it moved us further along to a bipartisan solution to the health care challenges that we all acknowledge face our Nation. I must report this morning, with some disappointment, I do not believe it achieved that purpose. During the month of August, when we were back home talking with our constituents, they spoke to us about their concerns and their fears about the plans that have been put forth by the House of Representatives and Senate committees, and we brought those ideas back to Washington. I had hoped, with the thought that there could be a readjustment--a pressing of the restart button, as it were--to have these bills in the House and Senate more accurately reflect the will of the American people. The public opinion surveys are virtually unanimous that public opinion does not favor the plans that have been presented to the Congress. In fact, by roughly 52 to 42, the surveys say the American people disagree with or disapprove of those proposed solutions. But rather than reflecting on what the public has been saying, which the President did not do on Wednesday evening, it seemed he simply recharged the same program he has been pushing for all these many months now and criticized those who disagreed with him and effectively threw down the gauntlet and said it is going to be this way or no way. I don't think that is the way to reach a bipartisan consensus or reflect the will of the American people. I am especially disappointed because, in the President's comments, there seems to be no room for honest disagreement. I must tell you, after working with colleagues on both sides of the aisle for months, there are honest disagreements and some honest disputes about some of the facts. There has to be room for that honest debate, rather than simply calling each other by pejorative names or condemning anything they say. Let me quote some of the words the President used: ``partisan spectacle.'' The opposition's ``unyielding ideological camps''--trying to ``score short-term political points.'' He talked about the ``bogus claims spread by those whose only agenda is to kill reform at any cost.'' Maybe some people believe that, but that is not the people in this body or in the other body. In order to reach out to those with whom there are disagreements, I think the President has to use a different phraseology than suggesting the only reason people disagree with him is to ``kill reform at any cost.'' He talked about lies from prominent politicians and arguments that were false and said: ``To my Republican friends, I say that rather than making wild claims about a government takeover of health care, we should work together. . . .'' And so on. Well, I talked to my constituents, and they are very concerned about the role of government in their health care decisions and the decisions of their families and their doctors. When you read the legislation, I don't think they are wild claims to say the role of government would be much greater than it is today and, to many people, to an extent that causes great fear and concern. The President talked about the ``demagoguery and distortion'' and said: ``So don't pay attention to those scary stories.'' Of course, he had some pretty scary stories in his speech. There is nothing wrong with pointing out serious problems in order to spur people to action. But if it is OK for one side to do that, it ought to be OK for the other side--for those who disagree with him. Finally, he said he is not going to ``waste time with those who have made the calculation that it's better politics to kill this plan than improve it.'' Certainly, that isn't the motivation of the people in the other body or this body with whom we disagree. He also said: ``If you misrepresent what's in the plan, we will call you out.'' That is a threat and the kind of Chicago-style politics that I don't think has a place in the presentation in the House of Representatives, where I have heard five Presidents give speeches. Far and away, this was the most political. Therefore, I think it was the least effective in bringing people together for a bipartisan solution. Also, the most disappointing thing was what I would say is an inability to confront honest differences of opinion and have an honest debate about those disagreements. The President is very good at what I have called setting up a straw man. He sets up an argument that nobody has made and then knocks it down and declares success. That is a disingenuous way to make an argument. I will illustrate this with maybe five different points he covered in his speech. You have heard the President say for months that if you like your insurance, you get to keep it. How many times have you heard that? The problem is, it is not true--under either the House or the Senate bills. I will explain why in a moment. But it is not true. Eventually, I think the President's advisers must have told him you cannot say that. Let's reform the way you say it so that what you say is legally and technically true. Wednesday night, here is what the President said: Nothing in this plan will require you or your employer to change the coverage or the doctor you have. Then he repeated that. Well, nobody ever said there was anything in the bills that required you or your employer to change. We simply read the bills and observed that, as a result of the legislative language, they would change because their plans would no longer exist. Naturally, if your plans no longer exist or if your employer said: I am not going to cover you anymore because it is cheaper to go to the public option, then you would lose your coverage. So the President changed the language to be technically correct, leaving the impression that what he said before is still true when, in fact, it is not. Both the CBO and the Lewin Group--a totally objective analysis--demonstrate that for two separate reasons, it is still true if you like your insurance, you are not going to be able to keep it. Most people are not. The Lewin Group notes that of the over 100 million Americans-- probably close to 120 million Americans--who will go to the public option or government-run plan, as the President proposed, 88 million of those will lose their employer-sponsored insurance because it is cheaper for the employer to drop their coverage, pay the fine, and allow them to enroll in the government program--88 million. For senior citizens--and this is especially important in my State of Arizona--7 million seniors, according to CBO, will lose their private Medicare plan coverage, and that is because the President's plan, these bills, drastically reduces the support that is provided to insurance plans called Medicare Advantage, where their primary purpose is to serve people in more rural and less populated areas, but they exist in urban areas as well. Over 10 million seniors are enrolled in Medicare Advantage plans. In my State, we have one of the highest rates of enrollment, with about 39 percent of Medicare beneficiaries in the Medicare Advantage plans. The President and the Democrats who have written this legislation would like to do away with those Medicare Advantage plans. As a result of the language of the bills, according to the CBO, at least 7 million seniors will be moved off Medicare Advantage because those plans will no longer be available. The point being that while, of course, the President is correct that nothing in the plan requires you to leave your coverage if you like it, the reality is that over 88 million people who have insurance through their employer and 7 million seniors who have Medicare Advantage plans will lose their coverage because of the provisions of the bill. The fact remains it is still not true, if you like your insurance, you are going to be able to keep it--at least for almost 100 million; to be totally accurate, about 95 million Americans. The President made another argument. He said: I know you Republicans have been interested in medical malpractice reform, so I am going to do something about that. I have to characterize it as a very disingenuous proposal. Everybody knows there is a huge amount of money that could be saved in health care delivery if we did something to reform this jackpot-justice system that requires physicians to pay, by one estimate, about 10 cents of every health care dollar spent for their premiums for malpractice insurance. Another study demonstrated that over $100 billion a year is wasted in physicians and hospitals practicing defensive medicine in order to protect themselves from these liability suits, these malpractice suits. We have been pushing for malpractice reform for years. What was the President's response? He is going to ask the Secretary of HHS, Kathleen Sebelius, to look into an idea that the Bush administration was promoting after the Senate rejected, on almost partisan lines, medical malpractice reform proposed by Republicans. Secretary Sebelius was the director of the Kansas Trial Lawyers Association from 1978 to 1986. Some kind of encouragement to the States to develop some kind of alternative dispute resolution mechanism is hardly tort reform. Given the fact that this is a huge problem, a lot of money could be saved if we have meaningful tort reform. We believe it would be better to develop real tort reform and include it in the legislation rather than simply direct the Secretary to look into something I think is bound to result in virtually nothing. A third point I think is highly misleading--and this received a lot of publicity because of the unfortunate comments by a Member of Congress in a very uncourteous comment to the President--the President said: The reforms I am proposing would not apply to those who are here illegally. In one sense, that is a true statement because there is not a provision that says we are going to cover illegal immigrants. By the same token, on repeated occasions when Members of the House of Representatives sought to ensure that illegal immigrants would not be covered, amendments to ensure eligibility requirements and confirmation of eligibility by assuring only U.S. citizens would receive the benefits of the program, those amendments were defeated. So it has been proposed that maybe we can just resolve this question of who is right by agreeing to a simple amendment that says illegal immigrants will not have the benefits of this program, and there is going to be enough confirmation of their eligibility or noneligibility to ensure that is the case. That is how we could resolve it. We could do the same thing with regard to funding of abortions. There is an argument, are they or are they not? There is a very simple answer. Instead of rejecting the Hatch amendment, which was done in committee, adopt the Hatch amendment that simply says no funding of abortions. I think we are going to know pretty clearly if there is an intent to deceive, to have the language seem to prevent illegal immigrants or funding for abortions but in reality it ends up that they get the coverage or that abortions are funded. There is a very simple solution: adopt the Republican language that makes it very clear. But, no, that has not been done, and we will see whether it will be done. I thought one of the most unfortunate phrases the President used was, in speaking to America's seniors: Not a dollar of the Medicare trust fund will be used to pay for this plan. The President acknowledged in his speech that about half of the cost of the almost $1 trillion expense of this plan will be by virtue of cuts in Medicare. I think he used the word ``savings'' in Medicare. The question is, what exactly are those cuts? What is that savings? What the President said was, ``Not a dollar of the Medicare trust fund will be used to pay for this plan,'' as if that answers the questions and seniors should not be worried. First of all, nobody said the trust fund is going to be used. Does anybody know how much money is in the trust fund? I will tell you. Zip. The trust fund is broke. Medicare is in big financial trouble. There isn't any money in the trust fund to pay for anything. Nobody ever suggested that was the problem. Here is the problem, twofold: One, they are going to get somewhere a little less than $200 billion by reducing the allocations to the plans that provide Medicare Advantage. I talked about that earlier. They don't like Medicare Advantage because it is a private alternative, so they want to get seniors off Medicare Advantage. That is why seniors who like Medicare Advantage are out of luck because they reduce the support for those plans by almost $200 billion. That is where part of it comes from. The rest of it, $300 billion or so, comes from getting rid of waste, fraud, and abuse. That is when I heard some laughter in the Chamber because we have been trying to get rid of waste, fraud, and abuse for years, and it is very hard to do. The President provided absolutely no specifics. None of the bills have any specifics about this point. Nobody knows how this is going to be done. It is very unrealistic to expect it will occur in any way except what some have acknowledged, which is that the payments to providers--that is to say, doctors, hospitals, nurses, and others--will be reduced. That is how we will ``save'' that money. Bear in mind, these are providers who today receive on the order of 70 percent of reimbursement from Medicare, 70 percent of what it costs them to provide the services. That is why those who buy private insurance have to pay more than 100 percent. They have to subsidize the other 30 percent or thereabouts that Medicare does not cover. What happens when that is reduced even further, when that is cut down to 60 percent, let's say, or 50 percent? It is going to raise the premiums of everyone else who has to increase their subsidy for the government program, and it ends up reducing the care available for seniors. There are not as many doctors, the waiting lines get longer, the care that is available decreases, and we end up with rationing. That is what seniors are concerned about. This is not a wild charge. This is not a falsity. It is in the bills. The President attempts to distract attention from it by saying we are not going to spend any money in the trust fund to pay for this. So what. There isn't any money in the trust fund. The question is, are you going to hurt seniors' care by cutting physician and hospital payments under Medicare and eliminating the support for Medicare Advantage bills? That is what is in the two bills. That is what is going to hurt seniors. There are a lot of arguments that do not really match up to the claims made. They set up a straw man and knock down the straw man, but still standing is the fact that the bills that are in the Congress will give the government a much greater role in our health care decisions, will increase premiums for millions of people, will result in rationing of care, and will put the government in charge of decisions with respect to treatment. All of these are concerns people expressed during the month of August and some before that need to be addressed. Instead of simply doubling down, as some folks said, and saying: It is going to be my way or else we will call out those who disagree with us--I think we ought to listen to the American people. What I hear they have said is the following: First of all, rather than taking on a massive new spending program of close to $1 trillion, adding several trillion to the debt over the next couple of decades, rather than increasing our debt, rather than having another government takeover following all those that have occurred so far, let's focus on the most pressing problems facing Americans, and that is putting America back to work, getting the economy going again, reducing our debt, and making sure we don't have new taxes. That is what we would like to have you focus on. To the extent there are specific problems with health care, deal with those as well, but you can do that on a step-by-step basis in a way that targets specific solutions to specific problems. I mentioned the problem of defensive medicine costs, over $100 billion a year in money we should not be spending but doctors force us to spend it, in fact, to protect themselves from this jackpot-justice system. All right, the way to resolve that is with real medical malpractice reform. We do not need a demonstration project. I will give you a couple--Texas and Arizona. By passing modest malpractice reforms in those two States, significant progress has been made in reducing medical costs, reducing premiums, and attracting doctors. I am told that something like 7,000 doctors have moved into Texas in the last 4 years pretty much as a direct result of the more benign climate in which they can practice medicine as a result of this malpractice reform. Premiums have been cut to--I forget precisely--I think it is 21 or 23 percent. We know what works. Let's target a specific solution to a specific problem. We don't have to worry about taking over the whole private sector system of health care delivery, putting at risk the insurance people already have that serves them well. Finally, I note that there is some discrepancy between what the President said about his plan and the bills that are pending in Congress. My colleague, Senator Corker, has written to the President and asked if we could get a copy of his bill because some of the things he described are not in either the House or Senate bill. At least they do not accurately describe those two bills. I will give one example. He said: I will not sign a plan that adds one dime to our deficits-- either now or in the future. Period. That is great. Unfortunately, the House and Senate bills, according to the CBO, add to the deficit: the HELP Committee in the Senate about $750 billion worth, and in the House committee about $239 billion worth. Clearly, these two bills are not what the President is talking about. Obviously, he has something else in mind. If he is going to be selling that to the American people, we need to see it. So I encourage the White House to send up the legislation they have so we can see what it is they are talking about that is different from these other two bills. I said finally, but one final point. The President did not talk about how he was going to pay for it except for Medicare cuts. He did not mention the taxes on small businesses, the taxes on jobs, the taxes on employers, the penalties individuals would have to pay if they do not buy insurance as mandated here, even a tax on the chronically ill. Senator Baucus is proposing to limit flexible spending account contributions to $2,000, which would raise about $18 billion. What it would do is penalize those who have significant illnesses and would like to make larger contributions to their flexible spending accounts. Americans have a right to be concerned about the cost of this, the way it is paid for, the effect on their health care, and the effect on their family's future. I think we need to debate it in an honest and forthright way. I am not pulling any punches this morning, but I am hoping we can bring people together to recognize what the American people are asking for is a step-by-step approach that targets solutions to specific problems and does not try to do it in the kind of comprehensive way that results in a 1,300-page bill that, frankly, nobody will read except some staffers, and we won't know what is in it until well after the fact and which is very hard for Congress to get right. The unintended consequences of that kind of legislation are always enormous. The costs are always far greater than anybody predicted, and the impact on the American people can be very deleterious. So my hope is that we will listen to the American people on this, take our time to do it right, do it in a step-by-step approach, target our solutions, get away from this massive government intrusion--which is reflected in both of the bills that have been considered by the House and Senate--and, most importantly, focus first and foremost on what is most on the minds of the American people domestically; that is, the economic situation here that will be made worse if we impose new taxes on small businesses, for example. It will be made worse if we take on massive new debt. We need to focus on putting people back to work, not spending as much money, not adding to our debt, and then decide what kinds of solutions we can afford with respect to health care. If we do that, I think we will have complied with the request of our constituents, which, after all, is what we are here to do. We will have done something good for the American people, and we will not have violated that first principle of medicine, which is, of course, to first do no harm. I think the American people were pretty clear over the month of August that they wanted us to start with that proposition, and it would be a good place for us to start in the so-called health reform we are about to take up over the next several weeks. I thank the Chair.

Mr. KYL

Mr. KYL. I would say to my colleague from Ohio, I commented on the same point. It is pretty obvious Senator Kennedy could have, because of who he was, done just about anything. He certainly would not have had to work as hard as he did. But I have never known a harder working Senator than Senator Kennedy.

Mr. KYL

Mr. KYL. Madam President, Professor Cass Sunstein's academic credentials are impressive. He has taught at the University of Chicago School of Law and at the Harvard School of Law, and has been a prolific writer on a wide variety of topics. He has some fine ideas on cost-benefit analysis, and I hope they will be reflected in his approach as administrator of Office of Information and Regulatory Affairs. I do, however, find that some of the arguments he has made, and the positions he has taken in his writings and speeches, fall outside the mainstream. One theme that has appeared repeatedly in his writings and speeches is his strange belief that animals should have legal standing in court. Professor Sunstein wrote in his book Animal Rights: Current Debates and New Directions that, ``We could even grant animals a right to bring a suit without insisting that animals are persons. . . . We could retain the idea of property but also give animals far more protection against . . . neglect of their interests.'' He goes on: ``It seems possible that before long Congress will grant standing to animals in their own right. . . . Indeed I believe that in some circumstances, Congress should do exactly that, to provide a supplement to limited public enforcement efforts.'' In a paper for the University of Chicago School of Law, Professor Sunstein wrote that, ``Representatives of animals should be able to bring private suits to ensure that anticruelty and related laws are actually enforced. If, for example, a farm is treating horses cruelly and in violation of legal requirements, a suit could be brought, on behalf of those animals.'' Of course, no one favors animal cruelty. That is why there are laws against it. That should go without saying. But there is a big difference between having concerns about the treatment of animals and taking Professor Sunstein's position that an animal deserves a lawyer in court. An animal is not a person, and it cannot function as a plaintiff during a trial. Laws and regulations that would give animals legal standing in court could open the door to a flood of ridiculous lawsuits that would wreak havoc on research labs, restaurants, farms, and the like. Imagine what could happen if a group wanted to represent lab rats or farm chickens in a class-action lawsuit. Even if claims were found baseless in courts, someone, farms, laboratories, business owners, would still bear the costs of litigation. There may be room for this kind of thinking in academia. But it has no place in the executive branch of the U.S. Government, especially in the top regulatory office of the administration. As the Discovery Institute's Wesley J. Smith has written on Professor Sunstein's position on animal standing in courts, it ``would do more than just plunge the entire animal industry into chaos . . . the perceived exceptional importance of human life would suffer a staggering blow by erasing one of the clear legal boundaries that distinguishes people from animals.'' Professor Sunstein was also out of the mainstream when, in a 2003 paper, ``Lives, Life Years, and Willingness to Pay,'' he explained his views on a life-valuation system: ``No regulatory program makes people immortal. The only issue is life extension, and, in terms of welfare, a program that saves 10,000 life years is better than one that saves 1,000 life years, holding all else constant. In welfare terms, a program that saves younger people is unquestionably better than one that saves older people.'' That is plainly not true if you believe in the moral equality of all lives. While discussions about the value of an older person's versus a younger person's life may be acceptable inside the cozy confines of elite academic settings, they raise serious concerns when written by the person nominated to be America's regulatory czar. This is especially true at a time when we are engaged in a debate over the future of our healthcare system and as Congress considers several proposed bills that call for the administration to act on new healthcare regulations that could end up under the purview of OIRA. Cost-benefit analysis is fine, but not as a means to ration healthcare, e.g., to America's elderly. Professor Sunstein's views call to mind the British basis for healthcare rationing: the Quality- Adjusted Life Years, (QALY.) I am also troubled by the outcome of a Democratic retreat in which Professor Sunstein participated after the 2000 election. As the New York Times reported in May of 2001, the ``principal topic was forging a unified party strategy to combat the White House on judicial nominees.'' The strategy that resulted from this retreat led to two fundamental, and I believe, corrosive, changes in the way judicial nominees are considered. The first was to encourage filibusters, previously unknown for judges, and the second was that when voting for a judicial nominee, a Senator should determine the political views of nominees and vote against those with whom you disagree. As the Times reported, one participant said of the panel discussion in which Professor Sunstein's participated, ``They said it was important for the Senate to change the ground rules and there was no obligation to confirm someone just because they are scholarly or erudite.'' The net result, a very negative result, of these changes was a hyper- partisan judicial confirmation process during the Bush administration, one that tarnished many nominees and in which too many votes were determined by party affiliation and ideology. Some very worthy nominees, such as Miguel Estrada, were filibustered and, therefore, wrongly denied a confirmation vote. I see this nomination as part of a broader pattern: One that shows that the Obama administration has repeatedly nominated or hired individuals with overly-partisan or bizarre views. Just last week, the facts came to light about the radical ideology and associations of Van Jones, President Obama's now-former green jobs czar, who was not subject to a Senate confirmation process. While he has tried to explain away some of his views and assure Senators that he won't try to apply his personal opinions as part of his official duties, I believe that Professor Sunstein's nomination reflects this administration's pattern of favoring out-of-the- mainstream individuals for key jobs. If a Republican judicial nominee harbored such views, I have no doubt that the participants at the Democratic retreat in which Professor Sunstein participated would have found justification for a filibuster or negative vote, notwithstanding his fine legal credentials. While I have serious concerns about the standard, Democrats won that debate and now apply the standard. There cannot be one standard for Democrats and one standard for Republicans. Therefore, I must oppose this nomination.

Mr. KYL

Mr. KYL. Mr. President, as Senator Martinez knows, the minority leader of the Senate could not be here this morning. I made some brief remarks yesterday, but let me say, just kicking off some comments I know others of my colleagues want to make, that in addition to the other attributes that Senator Martinez has brought to the Senate representing the people Florida, his personality, his engaging wit, and his love of people, his spirit, his friendliness, and his genuineness, all have been appreciated by all of us, I know, very much. So it is even more difficult for us to see him leave because, in addition to being a good colleague and a great Senator, he has been a wonderful friend. I think all of us appreciate that quality of genuineness, which is not always the order of the day when it comes to people in politics. With Kitty and Mel Martinez, it is. We appreciate and love them very much and we will miss them.

Mr. KYL

Mr. KYL. Mr. President, the United States is a very popular tourist destination. According to the Department of Commerce, foreign travel here reached record highs in the year 2008--an increase of 16 percent over the previous record set in 2007. So our tourism industry is booming. People from all over the world want to visit our cities and see our sights. Almost every State and community has tourism promotion programs that are very robust which help to accommodate that desire for foreign travelers to come here. So I am a bit baffled by the legislation that is pending before us. The Tourism Protection Act, in my view, is both unnecessary and the wrong approach to attracting visitors from abroad. The bill would create yet another government-affiliated office of tourism. Why do we need that? The Department of Commerce already has a tourism office and private sector businesses and other entities already have the demonstrated capability to promote tourism. According to the companies and lobbyists who are pushing this bill, they already are. So why spend almost $100 million a year for a new and unnecessary Federal entity to market and research travel and tourism? Research tourism? What is there to research? I wonder if this is one of the reasons why the American people have a lot of questions about the capability of their representatives here in Washington to do the right thing. The bill would impose a new $10 fee on foreign visitors. Now there is a way to attract more visitors: Charge them for coming here. Maybe we need that research after all. Of course, imposing a new user fee or tax on nearly every foreign visitor is hardly a route to promoting new tourism. Obviously, we should avoid creating impediments to tourism if your first goal is to attract more tourists. The tax actually could hinder visits by families. For those families who do visit, every dollar they have to spend paying the Federal Government is one less dollar they can spend on American businesses, on our local communities, on the restaurants and shops and hotels and cab rides, and so on. The $10 fee may not sound like much, but for a family of five, that is fifty bucks to promote tourism. We all agree that tourism boosts our economy in numerous ways and is vital to our economic recovery. Nobody has to lecture me about tourism. My State of Arizona relies a great deal on tourism for our economy, and it is a wonderful destination place for folks to visit. I don't think we need--the Federal Government--to take another bite out of our tourism dollars. I am also concerned about the inevitable retaliatory effect of this legislation. Senator DeMint wrote an op-ed in the Washington Post on Monday and pointed out that the European Union and other governments have said that if we impose a tax on foreign visitors, they will follow suit and impose a reciprocal tax on American visitors to their countries. That is not a very good idea either, is it? Do we want to pass legislation that will lead to new travel fees on Americans? Instead of creating an additional government tourism office, I think we should work to fund the actual Federal responsibilities we have that relate to visitors coming to our country such as upgrading or adding infrastructure at our ports and making visa service improvements. There are always improvements we can make in this regard. The easier we can make it for tourists to come here, the more likely they will come. So if we want to spend $100 million, for example, to make it more attractive for tourists to enter the United States, there are plenty of ways to do it that relate directly to our responsibilities. We don't have to create another redundant office of tourism and charge the tourists to fund it. At a time when much of the world is experiencing economic hardship, we should support policies that make tourism in the United States more attractive, not more costly. That is why I believe this legislation is misguided, unnecessary and, in the end, harmful.

Mr. KYL. Mr. President, I say to my colleague two things. First, the statistics I quoted were for the last 2 years, 2007 and 2008. I don't have the statistics for I believe he said 10 years ago.

Mr. KYL. Mr. President, I say to my colleague I was not specifically referring to Canada and Mexico. I didn't even mention those two countries by name. I would be happy to get the source of the statistical information I presented, provide that to my colleague so we can make a comparison. The other point I would make with regard to fees, I am not doing anything except reporting the news, which is that countries abroad say if we propose this fee, they will reciprocate. The fact that some of them already impose a fee may mean they are going to increase their fee, and that is obviously not a good thing. It seems to me any fee that any of the countries imposes gets us into a little bit of a bidding war. Are we going to try to attract tourism from other countries by raising fees on the tourists who come here? I don't think that is a very good policy. If those countries want to have a fee, I don't think it is very smart for them to have it, but I can't affect that, except by trying to ensure that they don't have a reason to reciprocate against the United States if we impose a fee.

Mr. KYL. Mr. President, if I could interrupt my colleague for 1 moment to make a quick point and then I will have to leave the floor. I think the headlines my colleague reads are an important part of this debate. That is why I made the point that if we are going to concentrate on trying to attract more people to our shores, there are a lot of things we can do to take the hassle out of traveling that do directly relate to our responsibilities at our ports of entry, our visa system, and other things we can do to take that hassle out of traveling to the United States that are our responsibility and that we should do. I would put those responsibilities ahead of fancy brochures and advertising campaigns to try to tell people it could be nice to come to the United States when there are other ways we can make our shores more attractive to them. So as I promised my colleague, I will get the source of the information I quoted with regard to the statistical information demonstrating more travel in the last few years and then we can have a further conversation about that.

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 hoped that my colleague from North Dakota might be here, and perhaps we will still get together before the debate concludes on the tourism bill. But I think we were two ships passing in the night earlier today. He was quoting statistics that had to do with individual people. I was quoting statistics that had to do with monetary receipts. We were both getting at the problem of whether tourism was up or down, and I told him I would get the source of my statistics and we could reengage in that debate. The primary point the Senator from North Dakota was making was that from his statistics, relating to the number of people, tourism was down. I had asserted that based upon Commerce Department statistics tourism receipts were very much up. So let me quote the statistics from the Office of Travel and Tourism Industries at the Commerce Department for 2008. I quote: Total travel receipts reached unprecedented levels in 2008, with a record-breaking $142.1 billion on travel to, and tourism-related activities, within the United States--an increase of 16 percent over the previous record set in 2007. That is what I had quoted earlier today. The Senator from North Dakota said: Well, my statistics show that tourism is down. I think he was quoting numbers of tourists. I do not know whether that discrepancy is real. I do not question his statistics, but I did want to verify mine come from the Department of Commerce. Presumably they are valid. He had also raised a question as to whether that includes travel from Mexico and Canada. My understanding is, yes, this statistic does include receipts for travel and tourism for all travelers to the United States, which would include Mexico and Canada. Also, according to a press release and information that was gathered by the Senate Republican policy committee, the Commerce Department's Office of Travel and Tourism Industries also issued a travel forecast in May of 2009 that foreign travel will reach a record high of 64 million travelers to the United States by the year 2013. Again, that includes travel from all countries, which would include Mexico and Canada. The Commerce Department also estimates that travel to the United States by visitors from countries other than Mexico and Canada should rebound by 2012. The point is that through a series of situations, including, primarily economic conditions, there has been a lower level of travel after 2008 by overseas travelers. This Commerce Department forecast also said, as I said earlier today, it is important to continue to work on those initiatives which will facilitate visits by overseas travelers, including adequate infrastructure of ports of entry, visa services, and funding to make the online registration requirements for foreign visitors truly easy and operational. My point earlier today was that rather than charging $10 a visa for foreign travelers to come here to encourage more foreign tourism, which seemed to me to be rather counterproductive, and since there is plenty of travel promotion activity by the Department of Commerce, by States, by localities--you can hardly turn on the TV without seeing some community or State advertising, promoting tourism within its area--that what we should be doing is devoting any resources we have available for this purpose to improving the infrastructure at our ports of entry, our visa requirements, and other travel accommodations for those visitors who do come here so it is easier to come here. I would note I just read a story in the Arizona papers today that talked about the passport requirements from Mexico and Canada. They have been in effect for Mexico, but they are newly instituted with respect to Canada. As a result, theme parks in New York State, for example, had noted their activity from Canada was down somewhat. They attributed it to soggy weather, the state of the economy, and the additional passport requirement. I am sure all of these are factors. So I suspect the statistics my colleague from North Dakota was citing were accurate statistics, as were, obviously, the ones I cited from the Department of Commerce. The bottom line point I was trying to make is that we have a lot of people who come to this country. We make a lot of money from them. We want to encourage that, to be sure. But I did not think we were encouraging it when we put a $10 fee on every visa for foreign tourists, and that we might want to--if we had that money available, or if we wanted to attract more visitors, the better way to do it would be to make our ports of entry and the other facilities by which people access entry to the United States more accommodating to them. Those were reasons I believed made this legislation unnecessary and unwise. Mr. President, I suggest the absence of a quorum.

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

Mr. KYL

Mr. KYL. Mr. President, we can proceed to the recess.

Mr. KYL

Mr. KYL. Mr. President, I want to speak to the same issue my colleague Senator McCain spoke to in a couple minutes. But first I wish to make some brief comments about two of our colleagues who will no longer be with us--of course, our friend and colleague, Senator Kennedy, and Senator Martinez. Let me, first of all, speak to Senator Kennedy's departure from this body due to his untimely death. During his five decades of public service, Senator Kennedy served with diligence, tireless passion, and, of course, vigor--the word that immediately evokes the Kennedy spirit. Because of who he was, he could have gotten by without a lot of hard work. But that was not his way. He believed deeply, so he worked hard-- as hard as any Senator I have known. One thing that has been commented on by many who worked with Senator Kennedy was his willingness to compromise. I have characterized Senator Kennedy as a legislator's legislator, often a results-oriented pragmatist, who knew that clashes between the two parties are inevitable and, in fact, an integral part of our political system, and that it was important to reach across the aisle if you wanted to get things done. He believed that people with dramatically different points of view could usually find some common ground. While Senator Kennedy and I did not share a perspective on very many issues, and he was always ready to make an ideological or political point, my colleagues and I appreciated his efforts to actually legislate as well. His dedication, his hard work, humor, and high spirit will always be remembered. My wife Caryll and I extend our thoughts and prayers to his family.

Mr. KYL

Mr. KYL. Mr. President, I also want to say a couple words about our colleague Mel Martinez from Florida who will be leaving the Senate on this coming Thursday. He has been an admirable public servant, both in this body and as Secretary of Housing and Urban Development. To each position he brought his considerable talent and devoted himself to solving problems in a practical, thoughtful, and bipartisan way. Senator Martinez never sought the limelight; he simply wanted to make a difference. He was disappointed, I know, that he was unable to move immigration reform forward. But we will try to apply what he has taught us about that issue. His positive influence here in Washington will be greatly missed. A farewell to Senator Martinez would not be complete without a note about his compelling life story and about his wife Kitty. As a Cuban emigre who came to America with few ties, Senator Martinez represents one of the most inspiring aspects of American life: that talent and hard work unlock the door to great success. He has not forgotten those who helped him, just as all of us will not forget him. His wife Kitty has, likewise, made many friends in Washington and will also be missed. Although I know he will not need it, I wish him all the best in his future endeavors, and I know he will remain an important voice in our party and on issues important to all Americans.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent to speak in morning business for not to exceed 15 minutes.

Mr. KYL. Yes.

Mr. KYL. Thank you, Mr. President. I thank my colleague.

Mr. KYL

Mr. KYL. Mr. President, my colleague, Senator McCain, has spoken to the issue that is on the minds of all Americans today and which the Senate and House of Representatives will again take up as we return from the August recess; that is, how to deal with the issues that confront us in the delivery of health care today without doing damage to the care and the coverage that most Americans have and believe serves them well. The approach I heard from my constituents over the recess was very similar to what Senator McCain has spoken about, which should not seem to be a big coincidence since we represent the same State. On one occasion we called about 50,000 Arizonans, had them on the telephone for about an hour and a half, and asked for their views, and gave our thoughts in response to their questions. What I have been struck by is the consistency of the views that have been expressed in the various forums I had around the State, consistent with the townhall meetings Senator McCain had right in the heart of the Phoenix metropolitan area, views people expressed to me in every location, from the doctor's office I went to, to people meeting with me in my office, to folks at church. The message seems to be pretty much the same. And I think Senator McCain articulated it well when he characterized it as anxiety and concern. One of my colleagues said he denoted in his constituents, in these townhall meetings, real fear. I think that is true. Because even though we know there are some things that need to be done to improve health care delivery in this country, most people, according to surveys, have insurance and believe what they have serves them very well or at least well. Our goal, therefore, is to try to solve the specific problems that exist without doing harm to the system that treats the others. As I said, a lot of our constituents were very fearful that they were going to have to pay much more in taxes; that their debt burden as a part of what this entire country owes would be increased significantly because of the costs of the health care reforms that have been proposed; that they wouldn't be able to keep the insurance they have even if they like it; that the way they receive care--the advice they get from their doctor about what their family's needs are--would not necessarily be respected if the government has a large role in deciding what to pay for and what not to pay for; and generally that the government's continued takeover piece by piece of the American economy would not serve individual Americans well. To be sure, they agreed that some health care costs are growing too fast and need to be controlled and that there are some Americans who don't have health coverage and really don't have a way to get it without public health. Those are the two key areas in which they recognize there is a role for government to play in reform. But they also wonder why certain problems are not being tackled--the problem, for example, of what one characterized as ``jackpot justice,'' where trial lawyers bring lawsuits and sometimes get big rewards but frequently simply settle the cases, and the net result is that the medical profession in this country--doctors primarily but hospitals and others--spend an enormous amount of money, estimated to be at least $100 billion a year, on what is called the practice of defensive medicine; that is to say, doing things--ordering tests, referring patients to other physicians and so on--all of which are really unnecessary for the care and treatment of the patient but which will protect the doctor in the event there is a claim of medical malpractice. This happens because the lawyers involved get so-called expert witnesses who come to court and tell the jury that the standard of care in the community is that if the child falls down on the playground and gets a bump on the head, you order a CAT scan. It doesn't matter whether or not from the physician's observations he can see that the child really, if the parents just watch him carefully that evening, should be just fine; no, to protect himself or herself against medical liability or malpractice claims, they order a CAT scan or some other kind of test. The net result of that, as I said, is an expense of over $100 billion a year in unnecessary medical tests and procedures. The cost of those items, of course, is passed on to all the rest of us. Another estimate is that 10 percent of every health care dollar is spent on the premiums physicians spend for their malpractice insurance. As lawyers, some of us know you have to pay some money for malpractice insurance before you can start work on January 1. That is fair. But how about $200,000 in medical malpractice premiums for a neurosurgeon, for example. That is an awful lot of money if you are an OB-GYN, for example. This estimate of 10 percent of health care dollars spent on premiums means that if we could reduce the incidence of malpractice claims, we could reduce that premium cost, the physicians wouldn't have to pass it on to the insurance companies, who wouldn't have to pass it on to us, and again, our health care could be cheaper. So because of premium costs and because of the practice of defensive medicine, this jackpot justice system has not served us well. One would think that if we are interested in controlling costs, if we are making insurance more affordable for small businesses--for big businesses, for that matter--for their employees, and for us as individuals, and if we want to encourage more physicians to stay in practice, then what we would do is tackle this problem. Is there one word about medical malpractice reform in any of the bills, the bill that came out of the HELP Committee in the Senate, the bill currently pending in the Finance Committee, or the bill that came out of the House of Representatives? The answer is no, not a word about medical malpractice reform. Why? Well, Howard Dean, the former Democratic Governor of Vermont and Democratic National Committee chairman, was very honest about this on August 17 at a townhall meeting with Representative Moran in Virginia. He was asked that question, and he said: When you write a big bill, you don't want to take on too many special interests, and the people who wrote this bill simply didn't want to take on the trial lawyers, and, he said, that is the truth. It is the truth. The reality is that the President is going to ask everybody else to sacrifice. For example, seniors are going to have to take a $400 billion to $500 billion cut in Medicare, which will mean less care for them. If small businesses are going to have to pay a tax on every one of their employees in order to make sure they get covered with insurance; if the pharmaceutical companies are going to have to pony up--I have forgotten how many hundreds of billions of dollars it was for more drugs for seniors, for example; if everybody else is going to have to sacrifice, why didn't we ask the poor trial lawyers to give up just a little bit here? We are not saying malpractice claims couldn't be filed. That is the way doctors and hospitals and others are kept honest. When you make a mistake, you are going to have to pay for it. But we can make sure the system works to prevent the kind of jackpot justice I spoke about. There are at least five different kinds of medical malpractice reforms that have worked. One was offered by Senator Enzi in the HELP Committee; it is called health courts. The State of Texas and the State of Arizona have both adopted certain kinds of medical malpractice reforms. In Arizona, it has begun to work. In Texas, something like 7,000 doctors have moved into the State, with premiums being reduced by either 21 or 23 percent. In other words, medical malpractice costs can be reduced to provide care, and by reducing that cost, people's premiums can be cut, and that will make insurance more affordable and more people will be able to get it. My point here is simply to say this: What we found as we talked to our constituents was a fear that in order to solve two or three very discrete problems, there were people here in Washington who wanted to remake the whole system, throw out what we have, and impose on it a new regulatory regime. Whether there is a government option or government insurance plan is only part of the issue. The problem is that there is government control of everybody irrespective of that, and people are concerned as a result that their care will be rationed, that taxes will go up, and that, in fact, their premiums will go up. How could that be if we are going to try to make care less expensive? I will give one example. I talked to people who are relatively young and relatively healthy, and they are very aware that if they are put in the same pool with everybody else, with the people who are sicker and older, they are all put into one pot and you can't discriminate on the basis of health condition--and we do believe people with preexisting conditions should be able to get insurance--then, naturally, the people who are younger and healthier are going to be paying more for their insurance than they would if they were in a category all by themselves, and that is what the actuarial data shows us. So it might make insurance more affordable for somebody who is older and sicker, but it will definitely raise the cost of insurance for those who are younger and healthier. There have to be ways to avoid that perverse result. There are, in fact, and Senator McCain talked about a couple of those that I will mention in just a moment. There ought to be a way to ensure that everyone in this country can get affordable, quality health insurance without taxing all employers, especially small businesses--the very entities we are counting on to bring us out of this recession. We know that almost all of the jobs created in this country in the last 2 or 3 years were created by small business. Large businesses lost--in fact, we have lost about 3 million jobs in this country. In this recession, 3 million jobs have been lost. How are those jobs going to come back? It is going to be through small business. That is where over 80 percent of the jobs are created, and that is where they will be re-created to get us out of this recession. Why, when we are in the middle of this recession, would we want to tax people to say: If you want to hire somebody, it is going to cost you X amount. Why don't we give them an incentive to hire more people, not give them a disincentive through taxation. Why would we raise the taxes of all businesses, including, by the way, raising taxes on insurance? Insurance companies are fun to pick on, I grant. But does the insurance company just pass the cost of that tax that is going to be imposed on it to its premium holders? Of course. There is no free lunch. We end up paying the taxes. As everybody knows, corporations don't pay taxes, people do. The net result is that when people are concerned about the economy, No. 1, about our rising debt, about the potential they are going to be taxed, and about the need to re-create jobs, what they are telling us and what they told me when I was back home is: Solve those problems first. When you get that solved, then if you still want to look at health care, go ahead and do that. But in the process of doing that, don't throw the baby out with the bathwater. Don't try to throw out a system that works for most people. If you have a specific problem, target solutions to that problem. You could cover the 12 million people who can't afford insurance and who need to get it today, you could buy them all insurance with the savings you get with malpractice reform. Why don't we do that? The jackpot justice system is a problem in and of itself, and we have a problem because some people can't afford insurance and we need to help them get it. The money we save from one can help pay for insurance for the other. Why not do that? We don't need to change the entire system of health in this country in order to do that. Since everyone knows Medicare is in trouble, why would we get it in further trouble by cutting it by $500 billion, and instead applying that savings back in to help make Medicare solvent, provide coverage for people with that money when, in fact, you could get the money elsewhere. That is what people are concerned about. They see some problems, but they see a solution that does not fit the problems, and they are afraid of it because it is too big, it is too much. People are trying to do it too fast. In fact, one asked why were they trying to rush this bill through before the end of August when it doesn't even take effect in most aspects until the year 2013. Good question. It has been a good thing that the American people have had a chance to consider this, that we have had a chance to read it and we have had a chance to talk about it. Here is the bottom line. Republicans have a lot of alternatives. Senator McCain talked about them: the malpractice reform; getting rid of the waste, fraud, and abuse in programs such as Medicare; selling insurance across State lines; providing association health plans so that small businesses can compete with the insurance companies in the same way the big businesses compete. These are ideas that can discretely be put into place to solve specific problems, and at the end of the day we will have achieved two things: We will have reduced the cost of health care premiums and the cost of health care for everybody, not just a few, and at the same time we will have been able to, with that savings, provide coverage for people who need it and cannot get it. To do that, it is not necessary to scrap everything we have and create a whole new system where the government takes over health care just as it has insurance and banking and automobiles and everything else. So that is what I am hearing from my constituents, and I hope, as we are reengaged in this debate, we will do the one fundamental thing our Founding Fathers had in mind when they set up the kind of system we have here, and that is that we will listen to our constituents, never forgetting they are our bosses and we work for them. I thank the Chair.

Mr. KYL

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

Mr. KYL. Mr. President, I ask unanimous consent to speak for up to 20 minutes.