Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, Governor Sebelius is a talented public servant. Nonetheless, I will oppose her nomination for several reasons. Others have emphasized her relationship with Dr. George Tiller, so I will address another matter--my concerns about the use of comparative effectiveness research under the administration's proposed health care plan to ration health care. Comparative effective research is currently used to evaluate the strength and weaknesses of various medical interventions. If structured appropriately, it can be a great help to both physicians and patients, to help them make health care decisions. But without the appropriate safeguards, the Government can misuse it to deny or delay patient coverage and services based on factors such as age, relative health, or the number of people ahead in line for a particular treatment. Unfortunately, Governor Sebelius's answers to my questions made clear that the administration and Health and Human Services under her watch would be unwilling to support patient safeguards. She did not provide any assurance that Health and Human Services, Federal health care programs, or any new Government entity, such as the Federal Coordinating Council, will not use this tool to ration or deny care. This should be a matter of concern for every American. We must not enable a panel of Washington bureaucrats to decide who is eligible for a particular treatment or when they can get it. In countries that have government-rationed health care, patients sit on long waiting lists to have procedures such as an MRI or dental surgery or hip replacement, to name a few. I recently read an article in the Wall Street Journal by Nadeem Esmail, Director of Health System Performance Studies at the Fraser Institute in Calgary, in Alberta, Canada, entitled: ``Too Old For Hip Surgery.'' The article recounted stories of our neighbors in Canada who routinely wait months and even years for a specialist's care. Many cross the border to see U.S. doctors to get the immediate treatment they need. Lawsuits tied to Canada's health care rationing system often wind up decided by their courts. Is this what we want in America? Governor Sebelius's answers about comparative effectiveness research relied on two points, which were inaccurate and contradicted one another, raising more doubt rather than providing assurance. Let me briefly address those points. When Governor Sebelius stated during her hearing, ``The law prohibits Medicare from using comparative effectiveness research to deny coverage,'' she was referencing the 2003 drug bill which applies only to prescription drugs and not to any other aspect of medical treatment. So she is factually wrong to suggest that could be a future limitation on health care generally. Of course, the fact that we so limited it in the 2003 prescription drug bill makes the point that it does need to be limited. In this regard she also said: ``When authorizing comparative effectiveness research in both the Medicare Modernization Act and the American Recovery and Reinvestment Act, Congress did not impose any limits on it.'' That statement is true. It also is precisely the problem. The National Institutes of Health is already taking the steps necessary to make cost-based research a priority and to use it to ration health care. A recent National Institutes of Health project description states: Cost effectiveness research will provide accurate and objective information to guide future policies that support the allocation of health resources for the treatment of acute and chronic conditions. Allocation of health resources is, of course, a euphemism for denying care based on cost. And Governor Sebelius will not agree to terminate this project. There is no question that health care reform is badly needed, and I want to work toward that goal. All Americans, especially those who are unemployed or who work for a business that doesn't provide health insurance or who have a preexisting condition deserve a better approach. But rationing based on cost is neither a practical nor satisfactory route to achieve it; it will delay access to treatment that may be urgently necessary and discourage the kind of research that leads to promising new treatments. I believe every American has the right to choose the doctor, hospital, and health plan that best fits his or her needs. Flexibility is essential in medicine, and each patient should be cared for as an individual, with a treatment regimen crafted and tailored by his or her own physician, not by a Washington bureaucrat. So I oppose the nomination of Governor Sebelius to head the Health and Human Services Department, because I do not believe she is sufficiently committed to these same principles.

Mr. KYL. The following Senator is necessarily absent: the Senator from Alabama (Mr. Sessions).

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Kansas (Mr. Brownback), the Senator from Kentucky (Mr. Bunning), the Senator from North Carolina (Mr. Burr), the Senator from Texas (Mr. Cornyn), the Senator from Nevada (Mr. Ensign), the Senator from Florida (Mr. Martinez), the Senator from Kansas (Mr. Roberts), the Senator from Louisiana (Mr. Vitter), and the Senator from Ohio (Mr. Voinovich). Further, if present and voting, the Senator from Kentucky (Mr. Bunning) would have voted ``yea.'' The Senator from Texas (Mr. Cornyn) would have voted ``yea.''

Mr. KYL

Mr. KYL. Madam President, in an April 16 Wall Street Journal column, ``Speaking Truth to Muslim Power,'' former CIA officer and Middle East expert Reuel Marc Gerecht writes about the fierce internal debates over Islam, jihadism, and modernity within the Muslim Middle East. As Gerecht writes, while Western countries cannot determine the outcome of those debates, they can help shape them and provide a boost to Muslim reformers. While it is fashionable to criticize President George W. Bush's Middle East policies, Gerecht says that Arab democracy activists ``have never been so hopeful as they were'' from 2002 to 2006, during which time democracy promotion flourished. He argues that President Bush's pro-democracy rhetoric ``energized the discussion of representative government and human rights abroad.'' I ask unanimous consent that Mr. Gerecht's column be printed in the Record, and I urge my colleagues to consider his thoughtful views.

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Kansas (Mr. Roberts) and the Senator from Ohio (Mr. Voinovich).

Mr. KYL. The following Senators are necessarily absent: the Senator from Kansas (Ms. Roberts) and the Senator from Ohio (Mr. Voinovich).

Mr. KYL. The following Senators are necessarily absent: the Senator from Kansas (Mr. Roberts) and the Senator from Alaska (Ms. Murkowski).

Mr. KYL. The following Senators are necessarily absent: the Senator from Kansas (Mr. Roberts) and the Senator from Ohio (Mr. Voinovich).

Mr. KYL. The following Senators are necessarily absent: the Senator from Alaska (Ms. Murkowski) and the Senator from Kansas (Mr. Roberts).

Mr. KYL. The following Senators are necessarily absent: the Senator from Alaska (Ms. Murkowski) and the Senator from Kansas (Mr. Roberts).

Mr. KYL. The following Senators are necessarily absent: the Senator from Alaska (Ms. Murkowski) and the Senator from Kansas (Mr. Roberts).

Mr. KYL

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

Mr. KYL. Madam President, I have an amendment pending--I believe the number is amendment No. 989--and I wish to speak to that amendment and three other amendments which differ only in the amount of a cap on recoveries. The amendments pending are amendments Nos. 989, 988, and 987. Madam President, 986 is the pending amendment. So we will get this straightened out. Let me speak to the issue first generally, and then I will engage my colleague in a couple of unanimous consent requests that may resolve the issue. If not, then we can vote on the final one. The point of these amendments is to limit the amount that can be deducted from the money that is due to the Government under the False Claims Act as compensation for what are called private realtors. A private realtor is a whistleblower or an investigator who goes to court with evidence that the Government has been defrauded and is entitled to money under the False Claims Act. In order to encourage these private parties to come forward, the False Claims Act not only entitles these private realtors to recover from the defendant their costs and expenses for investigating and pressing the claims but also allows the private realtor to receive a portion of the proceeds due to the United States. I think we would all agree it is right and proper that the private realtors be compensated for exposing incidents for which the Federal Government has been defrauded. Such actions have saved the Government billions of dollars over the years. Unfortunately, the formula for compensating private realtors uses a percentage range to award a portion of the Government's recovery to the realtor. The law allows the private realtor to collect up to 30 percent of the proceeds that are due to the Government. Now, when this formula was first set back in 1986, I don't think any of us contemplated that the massive billion-dollar recoveries we have seen today would allow this kind of recovery to the private parties as well. So although I think we all agree whistleblowers deserve to be compensated when they save the Government money, I would also think we could agree there has to be some limit; that they don't deserve to be grossly overcompensated, especially when that compensation comes at the expense of the Federal Treasury. Let me note a few cases. I will put this entire statement in the Record which has a lot of other cases as well, but my colleagues will get the idea from just a few that I will mention. Private realtors shared $95 million as their share of a $559 million civil settlement paid to the United States by TAP Pharmaceutical Products. Private realtors shared $78 million as their share of a $438 million Federal settlement paid to the United States by Eli Lilly. A private realtor will receive $47.8 million as his share of a recently announced $325 million settlement paid to the Government by Northrop. Another will share $46.4 million as their share of a $375 million settlement paid to the United States by Cephelon. There are several more of these cases, all in the $30-, $40-, $50 million range, for payments that have been made to the Government as a result of this law. The point is, when they are sharing in that much of the proceeds, they are denying the taxpayers the benefit of the False Claims Act which was, of course, intended to benefit the Treasury and not to significantly benefit these private realtors. So, again, it is fair to generously compensate them when they help expose malfeasance that has cost the Federal Government money. We want them to receive an incentive to blow the whistle on fraud or corruption. However, the amounts I have described--$95 million in just one case, for example--are wildly in excess of what is necessary to spur such whistleblowing. These amounts all come at the expense of the Treasury. Let me indicate the kind of savings the Government could achieve under this amendment. The first request I will make today would cap the private realtor recovery at either $5 million or 300 percent of the expenses and costs in investigating and proving fraud against the Government. In other words, it is sort of a triple damages: for the amount of money they put into it, there is, in effect, a 400-percent recovery; they get 100 percent of their expenses, plus another 300 percent above that. It seems to me this provides more than adequate incentive for the whistleblowers who become aware of fraud and therefore expose it. In the eight cases I have described in my statement, five of which I mentioned, private realtors received more than $427 million at the expense of the Government. When just one case awards the private realtors $95 million, the numbers add up pretty quickly. So under this request I will make in just a moment, these same private realtors would still have received a grand total of at least $40 million from the Government. Under my amendment, the Government would have been able to keep an additional $387 million. So think about it. This amendment would have saved the Government $387 million. So let me conclude at this point. I have been advised there are very few law firms--but some law firms--that specialize in these cases. Obviously, they are fighting the amendment because quite a little cottage industry has grown. But I would note to my colleagues if my recommendation is not accepted--if my colleagues conclude that $5 million is not enough for the Government to pay a whistleblower--then what I would suggest is we make that amount higher, and I will offer subsequent requests to support a higher amount. I wish to note as well there will inevitably be new cases in which outsized awards are paid at the expense of the Government's recovery. For example, just last week, a False Claims Act suit against Quest Diagnostics resulted in a $302 million recovery for the Federal Government, but out of that amount, the Government was forced to pay $45 million to the private realtor. Had my amendment been law, the private realtor would still have received at least $5 million for exposing the fraud, but the Treasury would have received, and therefore saved, an additional $40 million. So let me ask, rather than having a vote on each of these four amendments--and I have discussed this with the chairman of the Judiciary Committee and we have had a genial discussion; and I suspect I know, at least the first couple of times, the fate of my unanimous consent requests. Nonetheless, amendment No. 989 would provide a $5 million cap. I would therefore ask unanimous consent that amendment No. 989 be considered and that the Senate be on record as supporting amendment No. 989 with the $5 million cap.

Mr. KYL. Mr. President, I appreciate the points made by the chairman of the Judiciary Committee. There does need to be a reward, and there is some subjective judgment in what kind of a cap is appropriate for the reasons that he pointed out. As a result, reasonable people could differ as to whether a $5 million cap would be too much. For that reason, I indicated if the chairman thought it was too much, I would suggest doubling the amount to a $10 million cap which might be appropriate. That is actually encompassed in amendment No. 988. So at this time I ask unanimous consent that amendment No. 988 be considered pending and be adopted by unanimous consent, setting a $10 million cap on these recoveries.

Mr. KYL. Mr. President, as I said, I think it is going to be a little harder to object to a $20 million cap, but at this time let me ask-- again, this is subjective. How much of a reward is enough to cause people to come forward? Given that we have this cottage industry of firms that has found they can make a lot of money on these cases, it seems to me there is adequate reward for whistleblowers who usually-- and I am sure the chairman would agree--usually come forward simply because they see something that is wrong and they have the moral courage to come forward and say: We don't think this practice is right. And they usually don't do it for the financial reward. The law firms that are involved do very well out of this. So my last unanimous consent request would be to consider amendment No. 987 as pending, which would set a $20 million cap on these awards.

Mr. KYL. Mr. President, finally, amendment No. 986, which is pending, sets a $50 million cap. I certainly agree with the chairman that you don't want to fix something that is not broken. I submit that back in 1986, a long time ago, these multibillion-dollar awards were not contemplated, and times have changed. In the 20 or 30 years' passage of time, we have seen this cottage industry of litigation grow, when the kinds of awards that can be recovered--for example, a $97 million award--are simply beyond the pale. They were not contemplated. So it is broken to the extent that we have no upper limit in a case such as that. Amendment No. 986 Therefore, I call up amendment 986, which is pending, and I request the yeas and nays on that amendment. If the chairman wishes to respond, I will withhold calling for the vote until he has responded.

Mr. KYL. That is correct, yes.

Mr. KYL. Yes.

Mr. KYL. Mr. President, the purpose of this amendment is to provide a limitation of $50 million for the recovery of the whistleblowers who bring actions that result in recovery for the Government of money that otherwise would have been lost due to fraud. There needs to be a reward, and most of these whistleblowers, frankly, are not looking for money. But it seems to me, from 1986 when we did this, we never contemplated these multibillion-dollar settlements or awards, and to provide up to 30 percent of that to the people who bring the action is too much. We could save the Federal Government a lot of money if we put in a modest limitation. I would argue a $50 million award per case is a pretty liberal award. My amendment would cap the award at $50 million, and I ask my colleagues to support the amendment.

Mr. KYL. The following Senators are necessarily absent: the Senator from Tennessee (Mr. Alexander) and the Senator from Kansas (Mr. Roberts). Further, if present and voting, the Senator from Tennessee (Mr. Alexander) would have voted: ``yea.''

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent to lay aside the pending amendment for the purpose of offering four amendments.

Mr. KYL. Mr. President, I will offer one amendment at this time.

Mr. KYL. Mr. President, amendment No. 986 is at the desk. I call it up for its consideration.

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

Mr. KYL. I am happy to share these amendments with the other side, but I was not aware the other side had a veto over amendments offered by Members of this side of the aisle.