Jon Kyl

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: The Senator from Oklahoma, Mr. Inhofe.

Mr. KYL

Mr. KYL. Mr. President, I rise today to speak on my amendment to the fiscal year 2010 Energy and Water Appropriations bill. This amendment prevents the Department of Energy from spending taxpayer dollars on companies that invest significant resources or do business in Iran's energy sector to fill the Strategic Petroleum Reserve. Earlier this year, the Department signed contracts with energy giants Shell, Vitol, and Glencore to add almost 17 million barrels to the Strategic Petroleum Reserve. Open source material indicates that these three companies make up a majority of Iran's gasoline imports. Companies that sell gasoline to Iran should not receive the support of the American taxpayers, and this body has now gone on record multiple times opposing government contracts with companies that have substantial investment in or do business with Iran's energy sector. My amendment does not penalize the Department of Energy for this activity, but prevents this sort of thing from happening again. Ending taxpayer support for Iran's energy sector is a commonsense step and crucially important. Most major importers of gasoline to Iran have substantial ties to the U.S. Government, and unanimous adoption of my amendment sends a clear message to those involved in Iran's energy sector: You can do business with us, or you can do business with Iran-- not both. Modeling and Simulation R & D

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Florida (Mr. Martinez).

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that an article by Martin Feldstein, ``Obama's Plan Isn't the Answer'' printed in the Washington Post, Tuesday, July 28, 2009, printed in the Record.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.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 that I be allowed to speak in morning business for up to 20 minutes.

Mr. KYL. Thank you, Mr. President.

Mr. KYL

Mr. KYL. Mr. President, what I wish to talk about today is the subject that probably more than any other is on the minds of the American people and certainly probably the No. 1 item on the agenda of most of us in the House and the Senate; namely, what we do about the escalating cost of health care in America and the need for all Americans to have access to coverage. Those two questions are animating a debate which has captured the time of the people in the House and the Senate, who represent to the American people, and, as we have found more and more--and I found out this weekend when I was back in my home State--the attention of our constituents. Let me begin by saying, I think that is good. There was a question about whether the Congress would pass legislation on the House floor or the Senate floor before the beginning of the August recess. Most of us on this side of the aisle felt it would be beneficial if we could go back home and take the month of August, when we are supposed to be home visiting with our constituents, to have some townhall meetings and other fora, and engage them in a conversation about what they think the best ideas are. Because, at the end of the day, legislation this important, that is going to affect every single American, needs to be well understood by them. And we need, as their representatives, to get their input on what they think is a good idea. The reality is that very few, if any, Members of either the House or the Senate have read the major bills yet, let alone be able to post them on the Internet so the American people can see them or get them in some kind of hard copy for other people to understand, evaluate them, and discuss them with the American people. Anything this important cannot be done quickly. It has to be done right. And the first principle is: People need to understand what it is. I have found--and I confess, first of all, I have not read the three House bills nor have I read the HELP Committee bill, the Health, Education, Labor, and Pensions Committee bill. I have read a great deal of what has come out of the Finance Committee. But there is no bill put together in the Finance Committee yet. The thing that strikes me is the complexity and the degree of government takeover involved. I can't begin, in the brief period of time I have, to describe all the different ways in which the government would take over the key decisions about health insurance and health care in America if these bills were to pass. They are replete with references to the most minute things about people's health that the government will then be taking over. There are major decisions being made here. We don't know the ramifications of them all. Among other things, the cost. One thing we are learning is ideas Members have about reducing costs don't translate into actual cost reduction because the Congressional Budget Office, which is the entity we have charged with the obligation of telling us how much these things cost, has come back with estimates that are very low in terms of savings and very high in terms of cost. For example, in the main bill in the House of Representatives, the deficit is increased by $240 billion, and in the bill that has come through the HELP Committee in the Senate, the deficit is increased by $600 billion. Nor has the CBO been able to find much savings. I think it was last Friday that they examined the latest idea to come to the White House; namely, to put a group in charge--it used to be called MedPAC, but it would have a different name now--and they would be in charge of identifying what coverage for federal programs there was and how much would be reimbursed to the providers. Unless both Houses of Congress affirmatively voted to reject those recommendations, they would automatically go into effect. Well, apart from the obvious concerns about that, CBO came back and said it will only save perhaps $2 billion over 10 years, which is a drop in the bucket when given the over $1 trillion cost of the legislation in the House, when it is fully implemented, $2 trillion cost to the Senate bill. I mention this simply to point out the order-of-magnitude issue we have facing us: a hugely complex subject; huge amounts of money to be spent, big increases in the deficit, lots of new taxes proposed to help pay for it, and ramifications that will affect all of us in terms of the health care we are entitled to receive. Because of the amount of government involvement in both what insurance can and cannot cover as well as what the government programs such as Medicare can and cannot cover, every American will be affected in terms of the health care our physician says our family or we need but which the government says not necessarily can we receive from our physician; in other words, putting the government between the patient and the physician. That will result in delay and denial of care and outright rationing of health care. This is something that is also of concern to the American people. When we take $500 billion in proposed cuts from Medicare at the same time we are adding a brandnew group of baby boom generation retirees, there can be only one result: a cut in health care for seniors. So seniors also have a right to be concerned. Young people have a right to be concerned when we say that in order to reduce the cost of insurance for the sickest people, we are going to put everybody in the same pool, basically, and they will all get the same basic insurance premium or at least within a dictated range. The sticker shock for younger people in America is going to be incredible. They are going to see their premiums increase. So for many people, the cost of health care is not going to go down, it is going to go up. Very few people believe we can actually reduce the cost of something by putting the government in charge of it. The final issue people are concerned about after the cost of it, the increase in deficits, the increased taxes to pay for it, the fact that it will result in delay and denial of care, is the fact that it will not enable people to keep what they have. This is one of the reasons the President has said so many times that if you like your insurance, you get to keep it. The President is wrong when he says that. He hasn't read the bills. On this I will take just a little bit of time because he is wrong on two counts. First of all, the statement comes with significant conditions; second, it comes with an expiration date. There are two primary reasons why it is not true that if you like your insurance, you get to keep it. Let's back up a little bit. According to a Fox News survey, 91 percent of Americans say they have health insurance. Eighty-four percent of them rate their insurance as either good or excellent. This is why the President makes the comment ``If you like it, you get to keep it,'' because most Americans have it and they like it, they want to keep it, and they don't want to sacrifice their coverage in order to solve some of the other problems that are inherent in our system. But the promise, as I said, is not true. First of all, what the President and our Democratic colleagues want is what they call a public option--a government-run insurance company-- to compete with other insurance companies. To the extent that a lot of Americans don't particularly like insurance companies--and I must confess there are some things insurance companies do that I don't like--it is easy to put them out there as a target and say, as the President has said, we need somebody to keep them honest. Well, let's examine that for a moment. Do we need to have a government-run business in every business in America in order to keep the privately run businesses honest? In the first place, the health insurance industry is the most regulated--or one of the most regulated--industries in America. Every State regulates the health insurance that is issued in their State. They don't need to be kept honest by a competitor from the government. In the second place, having the regulator--the government--also be a competitor has its obvious limitations. It won't be long before the other competitors are put out of business. I think most people who look at this say that is exactly what would happen. But it also represents a point of view that I find very troubling. I know the government has now taken over our biggest automobile manufacturers. It has gotten into the business of other insurance. It has gotten into the business of banking. It has gotten into the business of student loans; in fact, it now has a monopoly in that. But I can't believe the American people want there to be a government business to compete with private businesses in other elements of our economy. That is socialism. I don't think the administration wants to do that. Certainly, the American people don't want to. So why would you have a government competitor in the private market? For one reason only, and most people who are honest about this acknowledge that it is in order to have the government take over health care. It is called single payer. There is a group in America that wants single payer very badly. Members of Congress have said: Well, we can't get there in one giant step; the American people won't stand for that. It is going to take two steps. First, we will create a very powerful government-run insurance company to compete with private business and eventually put them out of business and then we will have one insurance company for all of America. It will be a government company, and there won't be any more private companies, at least to speak of. So it is a two-step process. That is the hidden agenda of those who want a government-run insurance company. There is no other reason to have one. We have 1,300 insurance companies in America. We don't need yet one more competitor. They sell thousands of different kinds of insurance policies. We don't need yet one more competitor. Honesty is not the issue. We have a highly regulated industry by the States and by the Federal Government. The only reason to have it is to put the private insurers out of business. Is that what would happen? How does this relate to people who like their insurance and won't get to keep it? Well, the Lewin Group, which is a highly respected, nonpartisan health care think tank, says that within a couple years, we will have 119 million people on the government-run insurance plan, 88 million of whom were previously insured by private business. In other words, 88 million people will lose their coverage because it is much cheaper to have the government- run plan take care of them than for their employer to continue to do so. As much as their employer likes the employees, if it is substantially cheaper to provide health care to them by paying the fine that the bills have--$750 per employee, 8 percent of the payroll tax; there are different fines in here--it is still cheaper for the business to pay the fine than it is to pay the health care they are currently providing. So 88 million people: Sorry; even if you like your health care, you don't get to keep it, according to the Lewin Group. I think their estimate is, if anything, conservative. There is a second reason why if you like your insurance you won't be able to keep it. Those who are not insured by larger businesses--the ones whom I have just been talking about--but by smaller businesses or who are self-insured, there is an expiration date on this promise. After 5 years, you don't get to keep it and probably sooner than that. Because if there is a change in your policy or if the insurance company enrolls anybody else in it, then automatically it loses its protected or grandfathered status and is now under the regulatory regime that is established by these bills. That regulatory regime will totally change what that insurance coverage is. They dictate what is covered, what isn't covered, what the premiums are, what the companies can make, and a whole host of other things. So even though you may like your insurance, you are not going to get to keep it because no plan is static; that is to say, it never enrolls any more people and it never changes any of its terms. If either of those two things happen under the House bill, you lose your insurance. So it is not true that if you like your insurance, you get to keep it. That is the final reason people are concerned. They are concerned about the huge cost: $1 trillion, $2 trillion; they are concerned about the deficit, the increase in the deficit, even with more tax increases. These numbers are not mine; these are from the Congressional Budget Office--nonpartisan, which is in business to tell us how much these things cost. So these are facts, not opinions. It is my opinion that based upon the language of these bills, we will lose the ability to determine with our doctor what health care we get. Secondly, even if you like your health insurance, you are not going to be able to keep it for the reasons I mentioned. Mr. President, may I inquire how much time is remaining?

Mr. KYL. Five minutes. Thank you very much. The American people are becoming concerned about this as well. The more they hear about it, the more they don't like what they are hearing. I resent those who say we have to do this quickly or it might not happen at all. It is a lot like the stimulus. We were told we had to do it quickly. Nobody read that bill. It was over 1,000 pages. It had a lot of stinkers in it. It had porkbarrel spending. It made a lot of promises it couldn't keep: We are going to cap unemployment at 8 percent. Well, it is on its way to 10 percent. It hasn't created 4 million jobs. It is not going to. And it is going to cost us over $1 trillion. So I think fooled once, maybe that is your fault; fooled twice is my fault. The American people are saying we are not going to be fooled twice. We want time to look at this one. It is over 1,000 pages. We want to read it. We want you, the Senators and Representatives, to read it, and when you do, you will find a lot of things you are going to be surprised about and you do not like. The American people, as I said, are beginning to answer polling questions, and I wish to share some of the data. A majority--this is from the Fox Poll I cited earlier--say slow it down. We would rather have it slowed down and done right than moved quickly. They are afraid it will raise taxes and costs. By 2 to 1 they believe it will reduce the care they currently receive. By the way, they are right. I mentioned the fact that 91 percent have insurance and 84 percent rate it as good or excellent. Fifty-three percent, according to a Rasmussen Poll--and this was just at the end of last week--53 percent disapprove of the Obama health care plan. It is no longer true that the majority of Americans want this plan. Now that they know about it, they don't like it. They want us to deal with the deficit first. That is another one of the things the polls say. By the way, on this idea of a public plan, they oppose it by 50 to 35. All this has resulted in some reduced polling numbers for the President. His job performance now has actually gone under 50 percent. People disapprove rather than approve 51 to 49. I don't wish him ill, but if he keeps pushing proposals such as this, that approval rating will probably continue to decline. What have some people said about these bills? Representatives of the Mayo Clinic basically said this won't create affordable care for patients. In fact, it will do the opposite. In other words, it will increase costs. The Congressional Budget Office, in looking at the House bill, said it won't reduce the trajectory of Federal health care spending. In fact, it will increase the budget deficit by $239 billion. Incidentally, that assumes taxes will be raised by the amount of $583 billion. Incidentally, if anybody wants to check what I said about if you like your insurance, you get to keep it, check the University of Pennsylvania Annenberg School of Public Policy Web site. They have a site called factcheck.org. This is a totally nonpartisan organization. They contradict on factcheck.org the notion that if you like your insurance, you get to keep it. The last thing I want to say about this today is that: it is not enough for us to say what is wrong with the bills that are before us. There are a lot of great ideas Republicans and Democrats have put forth that aren't in these bills. Unfortunately, a lot of amendments were offered in the HELP Committee--for example, to try to inject some of these Republican ideas into the bill--and they were defeated, every one of them. In fact, when he was a Senator, President Obama voted against several of these ideas. Let me give you a flavor of some of these things to illustrate that there are a ton of good ideas on how to address access and costs in health care. They don't require us to scrap the entire system we have and superimpose a brandnew system of huge government regulation or a government takeover of health care, which results in these huge expenses, deficits, and dictating what care we can get and what care we cannot. There are solutions that go right to the specific problems. For example, you never hear the President talking about medical malpractice reform, lawsuit liability reform, or, as some have called it, ``jackpot justice.'' There are a lot of estimates out there that, because of the defensive medicine physicians have to practice, we can save over $100 billion every year if we have some modest reforms in the lawsuit liability area. Two very prominent Arizona physicians were in my office this morning, and both of them talked at length about the specific situations that require the practice of defensive medicine because of the fact that maybe 1 out of 10,000 people who come before them may have something go wrong, a lawsuit is filed, and they have to, therefore, go to excessive lengths to protect themselves by ordering all kinds of tests, calling in specialists, and doing things that cost a lot of money, not because they are necessarily needed or provide better care but simply to protect against a lawsuit. Annual premiums of $200,000 are not uncommon. That is more than most of us make. Before you can start practicing medicine on January 1, you have to pay your liability carrier. The President doesn't even mention liability reform. Let's start with that. Next is the interstate sale of insurance. This is a great idea. Why do they always vote it down? Because if you actually let insurance in the health field be sold like home insurance, liability insurance, and car insurance--you can buy a State Farm car insurance policy in virtually every State, and it doesn't matter where you move to; you are still covered. Why can't you do that with health care? They don't want that because they want the government to control it instead of allowing private companies to sell it all around the country. If they were able to do that, they could reduce premiums and provide greater access. That is one of the bills the President voted against. Why not let small business compete like big business with small business plans or association health plans? Basically, you could allow all the small businesses in your town--the Rotary and Kiwanis Clubs--to associate together and create a bigger risk pool, which brings down premiums, just as big businesses do. If you are a small business owner with 30 employees and one of them gets really sick, your premiums skyrocket the next year. By making a 3,000-person risk pool rather than 30, your premiums will come down. We have tried to get that into the bill. The Democrats say no. There could be greater affordability by giving individuals the same tax deduction businesses get. The President voted against that when he was in the Senate. We could expand health savings accounts so you can use the money saved there to buy health insurance--pay the premiums. Again, the President voted against that when he was in the Senate. These are Republican ideas, good ideas, and they have been voted down in these bills. Here is another one: require insurance companies to share the claims data. One big business told me they couldn't compete and get a lower cost because their current health care insurer wouldn't give them their claims data. That information ought to belong to the company. So we can make that requirement. Another thing is--the last thing I will mention--we need to encourage less first-dollar coverage. Our automobile insurance would be very expensive if we insisted that it cover every tire we have to buy or every battery we replace or any other thing we do. Yet with health insurance we complain about a $15 or $20 copayment or a deductible of $50. It is common to have a $500 deductible or even a $1,000 deductible on your car insurance. Certainly, health care ought to be more important to us than owning a vehicle. These are just some of the comments I have about the reaction my constituents are having to the bills being proposed out there and the fact that they want to slow it down and look at it carefully because they are concerned about the cost of it, the increase in the Federal deficits, the increased taxes that will result, the government takeover, and that the net result will be our health care will be rationed, we will have delay and denial of care, and we won't be able to keep the insurance most of us have and like. Those are legitimate concerns, and they should not be answered by simply saying we have to hurry up and get this done. No, we don't. We need to let the American people evaluate it and have them tell us what they want to be done. I think they have already spoken in some of the polling, and I think it is important for us, therefore, if we approach our duties the way we are supposed to here, by carefully considering what our constituents want, asking whether we can solve some of the specific problems with, for example, some of the ideas I laid out--good Republican ideas--rather than having to throw out the baby with the bathwater, tossing overboard what we know works for most people most of the time just because it doesn't work for everybody all of the time, in exchange for a new government takeover--it is a bad bargain. I urge my colleagues, in the last week or two before the August recess, we have to start planning for opportunities to visit with constituents over the recess, get the information together so we can present it to them and they can tell us what they think about these ideas. I suspect that, at the end of the day, they will say they don't want a government takeover, just fix what needs to be fixed and leave the rest of it, which works, alone.

Mr. KYL

Mr. KYL. Madam. President, a spate of new polls reveal that, while Americans want health care reform, just as all of us in Congress do, most of them oppose the plan put forward by President Obama, disapprove of his handling of health care, and have serious concerns about the cost of his plan and how it would affect the quality of their own health care. For example, a Rasmussen poll released July 22 shows a full 53 percent of voters oppose the health care legislation ``working its way through Congress.'' A July 17 Zogby poll backs up these findings, revealing that a full 50 percent of Americans disapprove of the health care bill introduced in the House of Representatives and endorsed by President Obama. A July 20, USA Today/Gallup poll shows that 50 percent of Americans disapprove of the President's overall handling of this issue. These findings dovetail with polling that indicates Americans are very wary of the projected costs of the President's health care plan. Zogby's July 17 poll shows that 59 percent of Americans say the President's proposals, including health care, call for too much government spending. And a whopping 78 percent of U.S. voters believe it is at least somewhat likely that taxes will be raised on the middle class to cover the cost of health care reform, a July 16 Rasmussen poll tells us. Nearly half of respondents--44 percent believe ``government-managed coverage'' will increase--not decrease--the price of health care, according to a July 21 Public Strategies Inc/Politico poll. Only 27 percent think a government-managed health care system would lower costs, while 29 percent said prices would remain the same. Americans' concerns about how the President's plan would affect health care access and quality are reflected in this same Public Strategies/Politico survey. Asked by pollsters ``what effect a government-managed health care coverage option would have on access to health services, 40 percent said it would make the situation worse, 38 percent said it would make it better, and 22 percent said it would remain the same.'' Asked what effect the President's plan would have on the quality of health care, ``42 percent said it would make health care worse, 33 percent said it would make it better, and 25 percent said it would not have an effect.'' We, in Congress, have heard Americans' concerns about the President's proposed health care reform for weeks now--and these concerns were not allayed at all when the Director of the nonpartisan Congressional Budget Office told us that these reforms would actually increase, rather than decrease, costs, and drive our Nation more deeply into debt. That statement, along with congressional Democrats' plan to raise taxes on small businesses--creators of two-thirds of new jobs in America--as well as individuals, should put to rest any claims that we need this Washington-run health care system to help the economy. Moreover, except for tax increases, many of the proposals in the President's bill wouldn't take effect for at least another 4 years, by which time the recession will hopefully be over. In a recent radio address, President Obama criticized those ``who make the same old arguments'' in opposition to his health care plan and painted those who object to it as obstructionists. I would like to know why the President equates having legitimate, honest objections to a government-run regulatory health care system with being an obstructionist? No one in Washington wants to block health care reform. But many of us want to take the time to achieve the right kind of reform--the kind Americans are looking for. Republicans want an approach that will bring costs down, make sure health care is accessible to all, and fix parts that aren't currently working. We have put forward many sensible ideas on how we can get there, without jeopardizing the care many happily insured Americans have. To reiterate some of those ideas: We want to root out Medicare and Medicaid fraud, reform medical liability laws to discourage ``jackpot justice,'' allow small businesses to band together and purchase health insurance as large corporations can, allow insurance companies to sell their policies across State lines--just as car-insurance companies can--and strengthen wellness and prevention programs that encourage healthy living. We believe we should apply specially tailored solutions to specific problems, rather than scrap the whole current system and impose a one-size-fits-all Washington-run health care system. If the President's plan is implemented, Americans could be left with a health care system that few people would recognize, or even want. And they would be stuck with it, permanently. I urge President Obama and congressional Democrats to take a harder look at Republican ideas, which the Republican leader, many of my colleagues, and I have spoken of repeatedly. These reforms would put patients first, lower costs, make health care more accessible to the uninsured, and most wouldn't cost taxpayers a dime. I believe that is an approach Americans would be sure to support. Madam President, I ask unanimous consent that the Wall Street Journal article ``Health Reform's Hidden Victims'' be printed in the Record.

Mr. KYL

Mr. KYL. Mr. President, I rise today to discuss an amendment I submitted with 12 cosponsors that the Senate adopted yesterday by voice vote. My amendment, No. 1760, as modified by a second-degree amendment I offered, No. 1807, sets some important benchmarks for the President to meet as his administration negotiates and prepares for Senate ratification of a follow-on to the 1991 START agreement, which expires this December 5. As my colleagues know, the Constitution entrusts the Senate with the responsibility of advice and consent on treaties. It is entirely within the Senate's prerogative--in fact, it is the Senate's responsibility--to consult with the administration at the beginning of a treaty negotiation, during the process, and at the end. I have said before, if the administration wants to have the Senate on board at the end of the treaty process--at ratification--it must listen to Senators throughout that negotiation. That is why the National Security Working Group which I co-chair with my friend Senator Byrd is so important. It is also why this amendment is so important. The amendment is simple and straightforward so that there should not be any confusion about what the Senate expects in this treaty process. First, the amendment requires the President to submit a report on the plan to modernize the U.S. nuclear deterrent, including the nuclear weapons stockpile, the infrastructure and the delivery systems. This report must be put together in consultation with the experts: the directors of the national weapons labs, the Administrator of NNSA, the Secretary of Defense and the Commander of the United States Strategic Command. And it must be accompanied by a plan to pay for the modernization of the deterrent over the next decade. This report is due within 30 days of enactment of S. 1390 or at the same time the President sends the START follow-on treaty to the Senate, whichever occurs earlier. And to make sure there is no confusion about what the Senate expects, I joined my colleagues Senators Levin, McCain, Kerry, Lugar, and Byrd in sending a letter to the President to make clear that this plan must be in place, and funded in fiscal year 2011 and the outyears, at the same time the START follow-on treaty is sent to the Senate. I will ask to have this letter printed in the Record at the conclusion of my statement. Let there be no mistake about what we mean: if the administration does not submit to Congress a plan for the modernization of the U.S. nuclear deterrent, with funding to implement that plan, at the same time it submits a START follow on agreement, that treaty will not be ratified by the Senate until it does. I know modernization is a dirty word to some arms controllers who believe that our nuclear weapons will simply go away if we neglect them enough. It should now be clear that that plan of nuclear disarmament through neglect and atrophy is dead. Second, the amendment addresses the Russian Federation's demands that the U.S. place limitations upon its missile defenses, space capabilities, or advanced conventional modernization in order to reach an agreement on the treaty. Any such treaty would be dead on arrival in the Senate. To strengthen the President's position with the Russian Federation on these matters, the amendment makes clear the Senate expects the administration will not change its position by including any of these limitations in the follow-on treaty, no matter how hard the Russians huff and puff and stomp their feet. And the Senate has now joined the House of Representatives in unanimously backing my amendment and the similar House amendment offered by Congressman Turner so the Russians and the Obama administration should have no question about what both Houses of the Congress expect from this treaty process. I would like to say a few words about why I felt it was necessary to offer these measures. In recent months, it has become clear that our nuclear deterrent is in need of serious attention. As high an authority as Secretary of Defense Robert Gates warned: At a certain point, it will become impossible to keep extending the life of our arsenal, especially in light of our testing moratorium. It also makes it harder to reduce existing stockpiles, because eventually we won't have as much confidence in the efficacy of the weapons we do have. And: To be blunt, there is absolutely no way we can maintain a credible deterrent and reduce the number of weapons in our stockpile without either resorting to testing our stockpile or pursuing a modernization program. The Perry-Schlesinger Commission, which recently issued its final report, also warned that: For the indefinite future, the United States must maintain a viable nuclear deterrent. The other NPT-recognized nuclear- weapon states have put in place comprehensive programs to modernize their forces to meet new international circumstances. Yet, it is clear that the steps necessary to do that are not being taken. The administration's fiscal year 2010 budget for the nuclear deterrent has been described by its own officials as ``treading water'' and a ``placeholder.'' The physics and chemistry that are causing our nuclear weapons to deteriorate will not wait for the next Nuclear Posture Review--NPR-- though. I make that point because I'm sure there are those who will make the argument that a comprehensive modernization plan should wait for that NPR. To that I have two points: one, modernization is interrelated with the size of our stockpile this is the point made by the Secretary of Defense. And, apparently, decisions about the size of our stockpile--which is a significant element of the NPR Congress ordered--are being made right now; in fact, it appears they were made in early July in Moscow. If the cart can be put before the horse, the Senate can and should require the horse be brought along. I say again, my amendment doesn't say that the treaty or agreement can't be signed until there is a modernization plan put forward. It merely says the DOD can't implement the reductions called for in the treaty until the modernization plan, at least the fiscal year 2011 elements of it, are submitted by the President and funded by the Congress. My personal belief, consistent with the warnings of the Secretary of Defense, is that we should not ratify the treaty until the long-term modernization plan is submitted by the President and funded by the Congress. But that is not what this amendment would do. Additionally, it is clear from that Joint Understanding that issues totally unrelated to strategic arms reductions, like missile defense and conventional modernization programs, are at risk of being sewn into the START agreement anyway. As Dr. Keith Payne, a member of the Perry-Schlesinger Commission, recently noted in testimony before the House Foreign Affairs Committee: It would seem self-evidently a mistake to include any limits on U.S. [Ballistic Missile Defense] BMD as a price to be paid for an agreement that requires nothing of the Russians beyond discarding the aged systems they plan to eliminate in any event and will not touch the real problem of Russian tactical nuclear weapons. Yet, despite the logic of Dr. Payne's statement, and disregarding the photo ops and positive press statements, President Medvedev made clear that little had changed from the especially pugnacious Russian statements before the July summit when he said at the G-8 summit just a few days later: ``If we don't manage to agree on the issues, you know the consequences,'' referring to the deployment of Russian tactical missiles to Kaliningrad. And his Foreign Minister, Mr. Lavrov, further elaborated that if the Third Site goes forward, ``then that will doubtless place a big question mark over the prospects for further reductions in strategic offensive weapons.'' Congress has a long history of making its views known on arms control negotiations in this fashion, including on the SALT-I negotiations in 1972 and the START II negotiations in 1996. Given the issues at stake in the follow-on treaty, it is clear that this amendment is necessary. Mr. President, I also ask unanimous consent to have printed in the Record a Dear colleague letter I circulated to Senators concerning my amendment No. 1760, in addition to the letter to President Obama which I referred to earlier.

Mr. KYL

Mr. KYL. Madam President, obviously, whatever is most convenient to the chairman and ranking member is fine, subject to I had planned, because of our conversations last night, to be able to do this this morning. By this afternoon, I am going to have a lot of conflicts. In fact, I too am on the Finance Committee where Senator Kerry is right now and I am supposed to be there but made this arrangement. I don't believe the business before the Finance Committee is going to last very long at all. In fact, it was a very quick matter to be resolved. So as long as we can try to get the amendments relating to the START treaty resolved before afternoon, I am perfectly willing to agree to anything that is acceptable to everybody else here, and it seems to me we should be able to accomplish that.

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

Mr. KYL. Madam President, let me take a moment to indicate to colleagues where we are at the moment. The pending business is my amendment, amendment No. 1760, dealing with the START treaty. We need to have our nuclear weapons program modernized consistent with the START treaty. What we are thinking of doing is to start the debate with about 2 minutes of conversation, and then if we are able to work out an agreement with the chairman of the Armed Services Committee and other members who have an interest in this, we can avoid a long, protracted debate and potentially a lot of votes on alternatives as well as this amendment. In the meantime, other business on the bill could be conducted. I think the next business the chairman intends would be for Senator Schumer to speak. So what I would suggest is that we move forward to try to work out an agreement. The essence is simply this, for my colleagues who are interested in this START treaty: We know there is a treaty, or at least we hope a treaty is going to be submitted to the Senate late this year. We would be reducing the number of nuclear warheads and delivery systems in an agreement with the Russians. That makes it even more necessary to put some money into our current nuclear program, the infrastructure and our nuclear stockpile, to bring it up to snuff, to modernize it, and to ensure that it meets the test for safety, security, and credibility. We need to have a plan for doing that, that is at least no later than the point at which the treaty would be submitted to the Senate so we know what we are going to be able to support. Hopefully, what we would do is convey to the administration jointly, Democrats and Republicans, our desire to have that submittal to the Senate to have a study we could put into law as a part of this bill that would call for bringing in that modernization program and thereby avoid voting specifically on the amendment No. 1760 I have proposed. We are trying to work out the details of that. If we can do that, we can probably save quite a bit of time.

Mr. KYL. The following Senator is necessarily absent: the Senator from Utah (Mr. Bennett).

Mr. KYL. Mr. President, I call up the second-degree amendment to my amendment No. 1760 and ask for its immediate consideration.

Mr. KYL. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. KYL. Mr. President, I wish to thank the ranking member on the committee, my colleague John McCain, and the chairman of the committee, as well as Senator Kerry and Senator Lugar, for working through this amendment. We have a good resolution. We will be writing a letter to the President. We will be adding a short provision to the bill that calls for appropriate studies and reports to accompany the START Treaty when that treaty is sent to the Senate. I think it is a good resolution of this issue. I call for the immediate disposition of the amendment. We do not need the yeas and nays.

Mr. KYL. The following Senator is necessarily absent: the Senator from Utah (Mr. Bennett).

Mr. KYL

Mr. KYL. Mr. President, every American should be proud that a Hispanic woman--one with a very impressive background--has been nominated for the Supreme Court. In evaluating a nominee, it is important that the Senate examine all aspects of the individual's career and his or her merit as a judge and not make judgments on the basis of gender or ethnicity. It starts with the judge's decisions and opinions. Also important to understanding what an individual really thinks about things are his or her speeches, writings, and associations. Judge Sotomayor's most widely known speech is, of course, her ``wise Latina woman'' speech, which was given in various fora over the years. It is clear that the often-quoted phrase is not just a comment out of context but is the essence of those speeches. Judge Sotomayor's central theme was to examine whether gender and ethnicity bias a judge's decision. Judge Sotomayor concludes they do, that it is unavoidable. She develops this theme throughout the speech, including examining opposing arguments and examining evidence that suggests that gender makes a difference. She then quotes former Justice Sandra Day O'Connor's statement that men and women judges will reach the same decision and, in effect, disagrees, saying she is not so sure. That is when she says she thinks a ``wise Latina'' would reach a better decision. Her attempt to recharacterize these speeches at the committee hearing strained credulity. I will address this issue at greater length during the confirmation debate, but suffice to it say that I remain unconvinced that she believes judges should set aside these biases, including those based on race and gender, and render the law impartially and neutrally. Judge Sotomayor's address to the Puerto Rican ACLU, entitled ``How Federal Judges Look to International and Foreign Law under Article VI of the U.S. Constitution,'' also raises red flags. In this speech, she inferred that foreign law should be used but later testified it should not. I will also discuss at length my concerns related to this matter during the confirmation debate and the problems I have squaring her testimony with the contents of this speech. The central point, of course, is that it is completely irrelevant to consider foreign law in U.S. courts. I don't believe Judge Sotomayor is sufficiently committed to this principle. Judge Sotomayor's supporters argue that we should not focus on her speeches but on her ``mainstream'' judicial record. They claim she agreed with her colleagues, including Republican appointees, the vast majority of the time. That may be true, but as President Obama has reminded us, most judges will agree in 95 percent of the cases. The hard cases are where differences in judicial philosophy become apparent. I have looked at Judge Sotomayor's record in these hard cases and have found cause for concern. The U.S. Supreme Court has reviewed directly 10 of her decisions--8 of those decisions have been reversed or vacated, another sharply criticized, and 1 upheld in a 5 to 4 decision. The most recent reversal was Ricci v. DeStefano, a case in which Judge Sotomayor summarily dismissed before trial the discrimination claims of 20 New Haven firefighters, and the Supreme Court reversed 5 to 4, with all nine Justices rejecting key reasoning of Judge Sotomayor's court. In my view, the most astounding thing about the case was not the incorrect outcome reached by Judge Sotomayor's court--it was that she rejected the firefighters' claims in a mere one-paragraph opinion and that she continued to maintain in the hearings that she was bound by precedent that the Supreme Court said did not exist. As the Supreme Court noted, Ricci presented a novel issue regarding ``two provisions of Title VII to be interpreted and reconciled, with few, if any, precedents in the court of appeals discussing the issue.'' One would think that this would be precisely the kind of case that deserved a thorough and thoughtful analysis by an appellate court. But Judge Sotomayor's court instead disposed of the case in an unsigned and unpublished opinion that contained zero--and I do mean zero--analysis. Some have speculated that Judge Sotomayor's panel intentionally disposed of the case in a short, unsigned, and unpublished opinion in an effort to hide it from further scrutiny. Was the case intentionally kept off of her colleagues' radar? Did she have personal views on racial quotas that prevented her from seeing the merit in the firefighters' claims? Judge Sotomayor was asked about her Ricci decision at length during the confirmation hearing. Her defense, that she was just following ``established Supreme Court and Second Circuit precedent,'' as I said, is belied by the Supreme Court's opinion noting ``few, if any'' circuit court opinions addressing the issue. When I pressed Judge Sotomayor to identify those controlling Supreme Court and Second Circuit precedents that allegedly dictated the outcome in Ricci, she dissembled and ran out the clock. Her ``answers'' answered nothing and, in my opinion, violated her obligation to be forthcoming with the Judiciary Committee. I am also concerned about Judge Sotomayor's analysis--or lack thereof--in Maloney v. Cuomo, a second amendment case that could find its way to the Supreme Court next year. Maloney was decided after the Supreme Court's landmark ruling in District of Columbia v. Heller, which held that the right to bear arms was an individual right that could not be taken away by the Federal Government. In Maloney, Judge Sotomayor had the opportunity to consider whether that individual right could also be enforced against the States, a question that was not before the Heller Court. In yet another unsigned opinion, Judge Sotomayor and two other judges held that it was not a right enforceable against States. What are the legal implications of this holding? State regulations limiting or prohibiting the ownership and use of firearms would be subject only to ``rational basis'' review. As Sandy Froman, a respected lawyer and former National Rifle Association president, said in her witness testimony, this is a ``very, very low threshold'' that can easily be met by a State or city that wishes to prohibit all gun ownership, even in the home. Thus, if Judge Sotomayor's decision were allowed to stand as precedent, then States will, ironically, be able to do what the Federal District of Columbia cannot--place a de facto prohibition on the ownership of guns and other arms. As we have seen, Judge Sotomayor's testimony about her previous speeches and some of her decisions is difficult, if not impossible, to reconcile with her record. Similarly, her testimony about the extent of her role with PRLDEF is in tension with the evidence that we have. The New York Times has detailed her active involvement as recounted by former PRLDEF colleagues, who have described Judge Sotomayor as a ``top policy maker'' who ``played an active role as the defense fund staked out aggressive stances.'' What were the litigation positions advanced by PRLDEF during Judge Sotomayor's tenure there? Well, it argued in court briefs that restrictions on abortion are analogous to slavery. And it repeatedly represented plaintiffs challenging the validity of employment and promotional tests--tests similar to the one at issue in Ricci. Unfortunately, I have not been persuaded that Judge Sotomayor is absolutely committed to setting aside her biases and impartially deciding cases based upon the rule of law. And I cannot ignore her unwillingness to answer Senators' questions straightforwardly. For these reasons, I oppose her nomination.

Mr. KYL

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

Mr. KYL. What I am going to do now is seek to get an amendment which is filed pending. The other side will want to offer a side-by-side amendment. I understand there may be an opportunity to debate some of this tonight. Some of the other debate may have to be tomorrow, and that is fine. But at this point, is there an amendment pending?

Mr. KYL. I call up amendment No. 1760 and ask for its immediate consideration.

Mr. KYL. I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. KYL. If there are others who wish the floor, I would be happy to accede to their wishes so that I can come back tomorrow and discuss it further. This is identical to an amendment that was unanimously adopted by the House of Representatives in their version of the Defense authorization bill. So I would hope that on both sides of the aisle this should not be particularly controversial. It has to do with the START negotiations, the negotiation the administration is engaged in with the Russians right now on the number of warheads and delivery vehicles that both Russia and the United States will field in the next many years. Whatever those numbers are, whatever the agreement is, that treaty will be presented to the Senate later this year. Presumably we will act on it either late this year or early next year. All this amendment does is say that during the 7 years when the START Treaty is implemented, the United States needs to do certain things. We want to make sure the treaty is verifiable. That is something we all agree with. We need to ensure that our missile defenses are protected; that our conventional strike capability is protected, that is, our submarines and bombers that deliver conventional weapons, for example, and, very importantly, we want to make sure the modernization program for our nuclear weapons complex and the weapons themselves, the modernization program that was recommended by the bipartisan Perry- Schlesinger Commission begins to be implemented. In fact, this amendment does not identify exactly what that program is. It does not say it has to be a particular amount of money or describe the details of it. But it does say we need to get a modernization program underway. The point of this is to simply acknowledge the obvious; which is, as we begin to reduce the number of warheads and delivery vehicles in our strategic nuclear deterrent, we need to make more and more sure what we have works and works well. It is an aging stockpile. The Perry-Schlesinger Commission noted that there is a lot of work that needs to be done to bring these weapons up to modern conditions to maintain them appropriately to ensure they are safe and reliable. The work that has to be done on that is going to take some time and cost some money. So it makes sense to put Congress on record with the administration as insisting that we begin this process right away. The amendment does not say this, but my strong recommendation to the administration is, since they are going to begin putting the budget for fiscal year 2011 together starting in another month or two, that they need to be working now on what their budget recommendations for 2011 are for the modernization of our nuclear complex and stockpile. So what this amendment would do is to say, as the START Treaty is implemented, whatever that treaty is, it does not bind the administration in terms of what it negotiates, whatever it is, that that money cannot be spent on that until these other conditions are met as well. I hope that since this received a unanimous endorsement in the House, it would not be particularly controversial on this side. I would just reiterate one final time, this does not bind our negotiators at all. It does not tell the negotiators what they can and cannot negotiate with the Russians. What it says is, once they have negotiated whatever they have, then we need to start a process of modernizing our nuclear weapons program and stockpile. I think that is something, since it was the unanimous recommendation of the Perry-Schlesinger Commission, that we ought to be able to agree upon. I yield the floor.