Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, the Senator from Kansas makes a very good point. There are cascading effects of this, first, on private insurers, who will not have the people to cover; second, the Senator mentioned providers. Physicians, for example, will get paid a lot less under this program than they would otherwise. We have seen what happens with Medicare when they reduce their reimbursement to physicians. You have a lot fewer physicians available to treat the patients, as a result of which, probably not only will you have the problems I discussed, but you will have a problem with access and quality of care as a result. That is something that had not occurred to me, and I appreciate the Senator from Kansas making that additional point.

Mr. KYL. Mr. President, I had promised the Senator from Michigan I would go no more than 5 minutes, and I would appreciate being advised when I am at the 5-minute mark.

Mr. KYL. I appreciate that. My presentation is now going to have to be interrupted yet a third time here. I will describe what the amendment does in precise terms. It calls for various reports and studies and efforts by States to ensure they have a plan for making sure there is a minimum amount of crowdout and calling for the Secretary to determine if a State is doing a good job of covering these low-income kids. We can go into more detail about that. Again, it is not language I wrote; it was written by the House and Senate Democrats. Why is this important? One of the reasons is that as we keep expanding the people who are entitled to coverage here, why are not the lower income kids being covered? There is a very simple explanation. The Senator from North Carolina brought it out earlier: It is easier to identify a higher income cohort of families and cover their kids than it is to find the low-income kids. This is the problem with a State such as New Jersey. It is why we cover up to 350 percent of poverty there. What they are doing is taking the higher income people. They can find them, they can get them covered, they already have insurance. And as the Senator from Kansas pointed out, on the higher income families, there is almost a one-to- one ratio. You add a person on, one person drops off of private health insurance coverage. It is much easier to do that and build up your numbers than it is to do the tough work of finding those low-income kids, and that is who this program is supposed to be all about. I regret we did not adopt the amendment of the Senator from Kentucky, because the thrust of his amendment was to find the low-income kids, the kids at 200 percent of poverty or below, and get them into this coverage. That is where we are failing. Instead, under the bill we are considering, we keep adding more and more people at higher incomes. Sure, you can find them, we are covering more kids, but are we covering the kids who need the help? The answer is no. That is why this is so important. That is why this crowdout issue, in addition to the points the Senator from Kansas pointed out, is so important for us to try to resolve. Again, I do not understand why it is not appropriate to include the same language that was in the legislation last year that went to the President of the United States, because at least it is a modest effort to address the problem of crowdout. One more point here. What has happened since this effect has become apparent to us. Since 1997, 11 States expanded their programs to make families at 300 percent of the poverty level or higher eligible for SCHIP. That is the problem, that we are going up, rather than finding those kids in the lower income bracket. When Secretary Leavitt tried to do something about that, and on August 17 of last year issued his crowdout directive to try to cover the low-income kids first, Members of this body objected. I will predict that what will happen is that it is likely Secretary Leavitt's directives are going to be rescinded because what they try to focus on are the low-income kids, rather than simply allowing more higher income kids to be covered. If that happens, then the entire crowdout issue falls directly in our lap. If we do not have language to deal with it, such as that which I am proposing in my amendment, then not only will the bill become far more expensive, not only will fewer families be covered by private insurance with the attendant consequences there, but we will still have the problem of the low-income kids who are not covered and who have not been found. We will be speaking more on this amendment before we have the vote on it a little bit later on this afternoon. I will at that time deal with a couple of other points that I want to make. I yield the floor.

Mr. KYL. Mr. President, that leaves about 6 minutes. What I wish to do is speak for about 3 minutes and then reserve the balance of my time and then close out the debate, if that would be all right. Mr. President, again, to remind my colleagues, this amendment is designed to deal with the problem of crowdout, which the Congressional Budget Office says will affect 25 to 50 percent of the people on SCHIP. In fact, about 2.4 million people would leave private health insurance coverage and go to the public coverage of SCHIP. There are a lot of problems with that, as we have discussed before. The main argument I have heard is that the amendment I have offered here would affirmatively restrict coverage and get kids off the rolls. There are two answers to that. No, it wouldn't. In fact, it has exactly the opposite effect; it would ensure coverage. Secondly, it is not my language. This is language that was written by House and Senate Democrats. Every single Democrat--in fact, every single Republican who voted for this legislation last year that the President vetoed has already voted for the precise language of my amendment. I didn't change a word. I simply took the language the chairman and others in the House had drafted to deal with the crowdout and put it into this bill. It is actually very minimal language. The official description we have is as follows: Provisions to prevent crowdout. It removes section 116--the underlying bill removes section 116 from the bill that was passed last year. That section required that all States submit a State plan detailing how each State will implement best practices to limit crowdout. It requires the GAO to issue a report describing the best practices and requires the Secretary of HHS to ensure that States which include higher income populations in their SCHIP programs cover a target rate of low-income children. In other words, as I said, ensuring coverage rather than restricting coverage. So the bottom line is it is the same language that was developed by the Democrats in the House and the chairman last year. Every person who voted for the bill last year has voted for this. There is nothing wrong with it. I wish it would go further. But I think we have to acknowledge that this is a very real problem. One of the reasons it is a real problem is because, unfortunately, some of the States are adding more and more higher income kids. Now, we understand why: because it is easier to find them and cover them, and that is why the State of the Presiding Officer, for example, covers kids up to 400 percent of poverty. It is easier to find those populations. The tough kids to find and get involved in the program are the very low income, at the poverty level, or 200 percent of poverty. That is what we should be striving to cover. What our amendment does is to simply ensure that as many of the kids who have private insurance as possible aren't going to lose their private insurance, thus encouraging coverage of higher and higher income kids. Let me reserve the last 3 minutes of my time to see if there is anything else I think I need to respond to. I urge my colleagues to support this amendment. It is the same language they have all already voted for. It certainly is not going to do any harm, and I think it could do a lot of good.

Mr. KYL. Mr. President, I wonder if the chairman would respond to a question. I am not certain I understood the point with regard to Secretary Leavitt's August 17 directive. Do I understand that the chairman supports the policy directive of August 17 dealing with crowdout?

Mr. KYL. That is what I assumed was the case. Of course, the August 17 directive was designed to try to deal with the problem we are talking about. It is quite likely that directive is not going to exist, which is precisely the reason for the kind of language that we need to have in this bill that is the Kyl amendment. The whole point is that without something, either the directive such as Secretary Leavitt issued, or the language that is in the Kyl amendment, you are not going to have any Federal directive with respect to States ensuring that the crowdout effect is kept to an absolute limit. That is exactly why we need to do it. Circumstances are no different than they were 6 months or so ago with respect to the problem of crowdout, except that the problem is getting much worse because we keep adding more and more higher income kids. As the CBO said, and as the Senator from Kansas noted before, CBO estimates that with regard to the higher income kids, it is about a one-for-one ratio. For every one that you add, you take one away from private health care. That is not something we should be fostering. I don't think any of us intends that result. The only people who would intend that result are those who want to wipe out private health insurance coverage and get everybody on government health care. That is where this is taking us. If that is the real motivation of people, well, at least I can understand it, and this legislation certainly would carry us in that direction. But I haven't heard too many people who are willing to admit that that is what they are trying to do, and I don't think that is what the chairman of the committee is trying to do. So there needs to be something to deal with the problem of crowdout. If it is not going to be the directive of Secretary Leavitt, then it has to be the language prepared by the House and Senate Democrats when they passed the bill last year that President Bush vetoed. That language is not strong enough, in my view, but at least it does require a study of best practices and it requires the States to show whether they are putting those best practices into effect. The final provision with respect to that is that with respect to two States and two States only, were they not to do that, they would--there would be a limit on the States of New York and New Jersey as a result of the requirement of the best State practice. The higher income States--and there are two--

Mr. KYL. Mr. President, I appreciate that. I certainly wouldn't need the half of 15 minutes, but I certainly appreciate that, at least to finish my thought, if not another couple of minutes. The language that was written last year and that would be in my amendment is that in the higher income States, the low-income kids must be covered at a rate equal to the top 10 States, and if a higher income State fails the test, then it wouldn't receive the payment only for those higher income kids. So there is no difference between all of the other States and even New York and New Jersey with respect to the lower income kids, but the incentive here is obviously not just to cherry pick the higher income kids but to try to make sure you are covering the lower income kids too. To conclude my comment, either you go with something such as Secretary Leavitt proposed--and I don't think that with the new administration that is going to remain on the books--or you are going to have to have something such as the language that was prepared by my Democratic colleagues last year which at least minimally deals with the problem of crowdout by identifying the best practices and ensuring that the States at least have some kind of a plan to apply those best practices to prevent this huge problem of crowdout.

Mr. KYL. Mr. President, I find this argument curious because the chairman of the committee made the point that the language he and others drafted was in response to the August 17 directive of Secretary Leavitt. This was their answer to it. They did not like it, so they said: We don't like that directive, we are going to propose some language that is going to solve the problem. It is going to solve it his way, not our way. That is the Kyl language. It is the identical language they wrote last year in response to the Leavitt directive. That is the point. They did not like the Leavitt directive, so they wrote this language. The Leavitt directive is going to be history, I suspect, in short order. They wrote this language because they knew there had to be something to deal with the problem of crowdout. They could not support the Leavitt directive, so they wrote their language. I am the one who called it watered down. I will take authorship of that phrase. It is watered down from what I would have done is what I meant by that phrase. I am not speaking of it in pejorative terms. I would have done much more. But my Democratic colleagues, in response to the Leavitt directive, said: We don't like that; we are going to write something that is better. And that is what they wrote. They knew there had to be something in here dealing with crowdout. All I am saying, since the Leavitt directive is likely to be history soon, No. 1, and No. 2, we do need to do something about crowdout, and No. 3, there isn't any other language they have been willing to adopt, surely language they already voted for that they wrote would be OK. So anybody who voted for the bill last year, you are flipping. By not voting for this amendment, you are saying: I guess I was wrong then, but I don't see how that could be, given the fact this was specifically designed for the purpose the chairman identified. I will close with this point. Everybody knows it is a problem. It is real. CBO has identified it. I don't think anybody doubts the problem of crowdout. You either do something about it or not, and I am doing the least thing about it by taking the language proposed by Democrats last year, passed by Democrats last year, and I don't know why the language now, this year, all of a sudden is not any good. What is wrong with the language? That question has never been answered. What is wrong with the crowdout language that was written last year and passed last year? We have to address the problem somehow. This is the least way to do it, in my view. I urge my colleagues, think about this and think about what you will be voting against if you fail to support the Kyl amendment. I urge my colleagues to support the Kyl amendment. I thank the Chair.

Mr. KYL. If I can conclude with a quick point, to the extent we do not use time, we can have it run equally. If that would be part of the unanimous consent request, I would support that.

Mr. KYL. Mr. President, this is a useful exchange because the chairman has now made the point that the language of the Kyl amendment was written in response to Secretary Leavitt's attempt to deal with the problem of crowdout. Again, everybody realizes the problem is real. Something should be done about it. Secretary Leavitt did something about it. Most of my Democratic colleagues did not like that, so they wrote the language of the Kyl amendment to respond to that directive. The Leavitt language is probably soon going to be history because of the new administration. So the chairman of the committee is, in effect, saying now that because that no longer exists, the Kyl language, the language he supported before is not needed because we do not have to top the Leavitt language. But, of course, what that means is there would be no language dealing with crowdout. I thought almost everybody agreed that it is a real problem and needs to be dealt with and that States should be engaging in the best practices to deal with it. That is all this amendment does, is to require that the best practices be identified and that they apply those best practices to deal with it. It is not much, but it is something, and if the Kyl amendment is not adopted and nothing is done in conference, then there is nothing. There is no Leavitt directive, there is no crowdout language in this legislation. There is nothing to deal with the problem that everybody acknowledges exists. The mere fact that it was written in response to the Leavitt language and that the Leavitt language is no longer going to be extant is an argument for the language, not against it. Perhaps the amendment would have done better if I had identified the Democratic leadership in the House who actually drafted it, and instead of calling it the Kyl amendment, I would call it the amendment of the Democratic colleague in the House who drafted the language. Don't take the fact that it now has that name to mean it cannot be any good. I say to my colleagues on the Democratic side of the aisle, this is something they supported before. It was a good idea then and a better idea now given there is not going to be an administration directive to deal with the problem and something has to be done to deal with the problem.

Mr. KYL. Mr. President, that is a good point. I certainly concur with the chairman that we need to do national health care reform. But that is not an argument not to deal with crowdout in the very bill that is going to deal with crowdout and in the very bill that we dealt with crowdout last year. In other words, the language of the Kyl amendment is the language that was put in the bill last year. It was not put in comprehensive health care reform. It was put in the SCHIP bill because it is in the SCHIP bill that the problem of crowdout occurs. The chairman notes that we do not know exactly how big the problem is, but CBO has given a good estimate. It provides that an Institute of Medicine study would describe the best way to measure crowdout. That has to be submitted 18 months after enactment. This is not exactly warp speed. We have 18 months to figure out the magnitude of the problem. GAO would submit a report to analyze the best way to address the crowdout. And then within 6 months of receiving the reports, the Secretary of Health and Human Services would develop recommendations on how to deal with it. We are now 2 years from now, or when the bill passes, and then 6 months after that the Secretary would publish the recommendations, and eventually we get to the point, after the studies, to figure out how big the problem is and what to do about it. The Secretary publishes it, and then the States have the obligation to look at these options and best practices and to institute them, probably 2\1/2\ years after this bill becomes law. So we are not exactly jumping the gun here, and it is far more appropriate to put the language in this bill, the SCHIP bill, as we did last year, than it is to wait for some future health care legislation. I don't buy that argument. Again, I urge my colleagues to support the Kyl amendment. It is the same thing everybody who will be voting for this legislation voted for last year.

Mr. KYL

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

Mr. KYL. Mr. President, the legislation that is before us is a reauthorization of the Children's Health Insurance Program, but it is, as I said yesterday in my remarks, seriously flawed in a number of respects. Because of that, the minority leader, the Senator from Kentucky, and I have offered an alternative. It is called the Kids First Act. The Kids First Act is an effort to reauthorize this important program but address the numerous flaws in the pending proposal so we can adopt something that literally puts kids first. I spoke yesterday about several of the problems with the underlying bill. First, the problem of crowding out private coverage. We created this Children's Health Insurance Program in order to help families who did not have insurance. But the bipartisan Congressional Budget Office has noted that because of provisions in the underlying bill, there are actually over 2 million people--in fact, 2.4 million people--who will go to the Government insurance program who already have private health insurance that is perfectly adequate to their needs. The reason primarily is because their employers obviously appreciate the fact that it is costing them money to insure their employees' families and it will be a lot cheaper if those families go to this Government-run program. Our effort was never to cause people to leave the health insurance coverage they have to come to a new Government program. Our effort, when we adopted the kids insurance program, was to provide insurance for those who did not have it already. This crowdout effect is well known, and it is well understood. It can actually be quantified as the Congressional Budget Office did. Last year, we offered a couple of amendments to ensure that the crowdout effect would be minimized. The amendment I offered was not adopted. But recognizing that there was a serious problem, when the Democratic leaders in the House and the Senate wrote the bill that ended up passing both the House and the Senate, though it was vetoed, it was supported by Democratic majorities in both the House and Senate, and it had some language related to crowdout. I thought it was insufficient language, but nevertheless I understood the necessity of dealing with the issue. That language is not in this bill. So in the committee, I offered the Democratic language. The Senator from Montana, the chairman of the committee, helped draft it. As I said, it was supported by Democratic majorities in both the House and Senate. Essentially on a party-line vote, that amendment was rejected. We need to deal with the problem of crowdout. The legislation Senator McConnell and I have drafted does put kids first. It tries to deal with the problem of kids who do not have insurance rather than taking families who are already insured and transferring them to a Government program. Another problem we spoke of is the fact that as this program has expanded, it does not just relate to families who are at the poverty level or even twice the poverty level but three and four times the poverty level. In other words, it can actually cover families in two States--up to $88,000 a year in New York and about $10,000 less than that in New Jersey. That is clearly wrong. We are trying to talk about low-income families. In fact, if you add other assets of a family that are not counted in income, you could literally have $40,000 in additional assets and, in New York, be making $128,000 a year for a family and be eligible for this low-income children's health care-- $128,000-a-year income. That is wrong. What that does is take money from the State of the Senator from Oklahoma, it takes money from my State of Arizona and other States and transfers that. We are trying to be as frugal as we can. Our limit is 200 percent of poverty. That is twice the poverty level. That is what we pay for in Arizona. But we are having to pay for more than twice that much for families in New York. That is not fair. The program Senator McConnell and I have offered as an alternative deals with that problem as well. In addition, we ask that people demonstrate that they are eligible for this coverage. That has always been a part of the program. The bill that is before us weakens those provisions so that you do not have to have the same kind of documentation that you are eligible for the program. It expands the program to legal immigrants in this country who have always had a contract that they will not become part of our public welfare system. One of the really interesting things is the budget gimmick that is used which Senator McConnell and I believe should not be part of this program. It is a budget gimmick to circumvent the Senate's so-called pay-go rules by which we ensure whatever the costs are, there is a way to cover those costs. The way that is done is that the program, even though it is a 10-year program, as all of our authorizations are--after 5 years, there is just an assumption that it does not cost very much anymore. Of course, under that assumption, we would have to disenroll millions of people from this program. That is never going to happen. Everybody knows that. Everybody knows that gap in financing would be filled, and as a result, the program would actually cost $40 billion more than it is alleged to cost as the bill came out of the committee. And that is by CBO's number, $41 billion-plus. Those are some of the deficiencies with the legislation. The amendment Senator McConnell has offered, the Kids First Act, is very targeted and I think a much more responsible approach to the problem. It does reauthorize the children's health care insurance program. It preserves health care coverage for millions of low-income children. It actually adds 3.1 million new children to SCHIP. It minimizes the reduction in private coverage, the so-called crowdout I spoke about earlier, by targeting SCHIP funds to low-income children, not higher income families who may already have access to insurance. By the way, it is offset without new tax increases or a budget gimmick such as the program before us is. I encourage my colleagues to ask us questions about this amendment. If they have concerns about it or would like to debate, I would love to have that debate on the floor, if anyone would like to engage me in a discussion about why this is not a superior alternative. The bottom line is, we have two choices. We have a budget buster that does not protect SCHIP coverage for low-income children, that represents an open-ended financial burden on taxpayers and takes a significant step toward Government-run health insurance or the amendment Senator McConnell has filed, a fiscally responsible SCHIP reauthorization that preserves coverage for low-income children. It is fully offset without a budget gimmick or a tax increase, and it minimizes the so-called crowdout effect on employer-sponsored health coverage that people have today. I think the answer is clear. The Kids First Act is the right solution. And when we have an opportunity to vote on that, hopefully a little bit later this afternoon, my colleagues will take a good hard look at it and see if they don't agree that is a good approach to the reauthorization of SCHIP and support the McConnell amendment.

Mr. KYL. The following Senator is necessarily absent: the Senator from Louisiana (Mr. Chambliss).

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Georgia (Mr. Chambliss).

Mr. KYL

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

Mr. KYL

Mr. KYL. Madam President, this week the Senate is considering the so- called SCHIP bill, the State Children's Health Insurance Program, which is what SCHIP stands for. It is a program that has been worthwhile to take care of kids who are from families of lower income and need help with their health insurance. Last year, we attempted to work in a bipartisan way to get a reauthorization of the so-called SCHIP bill. This year, however, the Democratic majority has decided to work it alone, to write a partisan bill without Republican input. In fact, every single one of the Republican amendments offered during the Finance Committee markup of this bill last week was defeated. There was one small amendment that was accepted; otherwise, they were all defeated. It is my judgment that this is not the best way to start off the year--working together, bridging the partisan gap, all of the things President Obama talked about, trying to put the old politics behind us--if we are simply going to approach something this important on a partisan basis. I rise to talk about four specific ways in which I hope we can come together and work in a more bipartisan way to improve the bill. It doesn't put low-income children first, and that should be the whole point of the SCHIP bill. First, it expands SCHIP to higher income families--in fact, for two States and only two States, for families making $88,200 a year. That is not for the State of the Presiding Officer or for my State. That is only for New York State. People in New York State would be able to make $88,000 per year--actually, about $40,000 even above that--and qualify. So it is not about helping low-income children. Second, it removes about 2.5 million people who are already in private insurance programs with their employer. It will result in their leaving the employer's health care coverage to come to a Government- sponsored program, something called the ``crowd out'' effect. Third, it is actually not even paid for in the sense that we normally treat these authorization bills. We try to make sure that whatever new spending we provide is offset by some other spending. But there is a budget gimmick that is used to account for the spending in this bill. Finally, for the first time it significantly expands the program to include not only citizens but legal immigrants, primarily green card holders. It eliminates most of the requirement for demonstrating eligibility for citizens, which would result in a lot of illegal immigrants getting coverage. In these four important areas, we ought to work together and find a way to amend the bill before we end up voting on it, perhaps at the end of the week. Let me first turn to the question of the budget gimmick. Sometimes you say how much something costs. In the Senate, our scoring always requires that we show a 5-year cost and a 10-year cost. That is a good thing to do. What they do in this bill is make it work, in effect, for about 4.5 years, then they slow the spending way down so that it doesn't look as if it is going to cost any more. The result would be that we would have to disenroll millions of children. Think about it. Are we being honest when we have a level of spending for 4.5 years and then it drops off a cliff to virtually nothing? Are we honest to say that is the 10-year cost of the bill when we know we would have to disenroll kids in order to make it work that way? No. The reality is, we are going to continue to keep the level of spending for the entire 10 years, and the bill, therefore, will cost about twice as much as we say it is going to cost. In fact, the Congressional Budget Office, which pays attention to these things, says the cost of the bill is going to be about $115.2 billion over 10 years, of which only $73.3 billion is offset. So the net result is a $41.6 billion deficit spending bill for fiscal years 2009 through 2019. That is the first problem. The second problem is that the bill is not limited to low-income families. In fact, it is extended to quite high-income families. It permits States to cover children from families earning as much as $66,150 per year. That is 300 percent of poverty. That is well above SCHIP's original intent of 200 percent of poverty. Of course, the more you increase the income level, the more likely it is that you are going to crowd out people who already have insurance. As I mentioned, there is even an exception for New Jersey and New York which would allow families in New Jersey earning approximately $77,175 per year to qualify, and in New York, $88,200 a year or 400 percent of poverty. Let me put this in perspective. In Arizona, the Arizona KIDS Program covers families earning $44,100 per year or 200 percent of poverty. That is low-income families. But under this bill, Arizona's hard-earned taxpayer funds will be sent to cover families who earn twice that much in New York State. That is not fair. It is not right. To make matters worse, the committee acknowledged that States may intentionally disregard tens of thousands of dollars worth of income in order to make a child eligible. They could disregard, for example, $20,000 a year in housing expenses, $10,000 a year in transportation expenses, $10,000 a year for clothing expenses. The net result is that if Congress sets this level of $88,200 for New York and then allows $40,000 worth of income disregards, children could actually come from families earning nearly $130,000 and still be eligible for SCHIP. That does not comport with what either Senator Obama said he wanted or what most of us think would be fair. Third, I talked about the crowd-out effect, especially by extending this to higher income families. We are going to replace a lot of private insurance with Government insurance. In fact, according to the Congressional Budget Office, about 2.5 million individuals will lose their private coverage under this bill. It is interesting that last year we raised this problem. It was considered to be a serious problem. But my amendment to try to deal with that failed. Nevertheless, when the Democratic House leaders and Democratic Senate committee members got together, they wrote a provision to deal with the crowd-out, recognizing that it was a serious problem. They passed the bill. This was written in part by the chairman of the Finance Committee. That crowd-out provision, however, was dropped from this year's version of the bill. There is no crowd-out provision. So in the committee, I offered an amendment to insert their crowd-out language, the language drafted by the chairman of the committee, passed by the House and Senate last year. That amendment failed. Well, maybe it is premature to deal with the problem of crowd-out. We know there is going to be crowd-out. The Congressional Budget Office says there will be, and the time to deal with it is before we adopt the legislation, not after. Finally, let me close with the immigration-related section, section 214. This eliminates the current 5-year bar allowing Federal coverage of Medicaid or SCHIP coverage for legal immigrants. These are primarily green card holders. Not even the House bill goes this far. The Senate bill actually eliminates the requirement that sponsors of immigrants reimburse the Federal Government for immigrants' coverage. This would be for the first time since actually 1882--our Federal law dates back that far--with regard to immigration. We are a nation of immigrants. We invite immigrants to come here. My grandparents are immigrants. We want to make sure that when they come here, they don't immediately become a public charge or go on welfare. That is why, starting as far back as 1882, we said: You need to take care of yourself when you come here and not ask the Government to do it or at least have your sponsor affirm that he or she will take care of you. That was affirmed in 1996 when we updated the legislation. This mark would eliminate that requirement, so that from now on legal immigrants, primarily green card holders, would be able to avail terms of this coverage. It is about 300,000 individuals estimated at a 5-year cost of $1.3 billion. I don't have the CBO number for the 10-year cost. That number doesn't even begin to take into account people who are here illegally but who might actually make legal under some kind of immigration reform, if that were to happen. It is also estimated that about 100,000 of these 300,000 individuals would be crowded out from either private insurance or State insurance coverage. So we continue to have the crowd-out effect here. The problematic section is section 211. This will likely increase the number of illegal immigrants and other ineligible individuals because it eliminates the current document verification to demonstrate that you are entitled to accept the benefits of the program. What this does is to say that all you have to do is provide a Social Security number. In my State, all of the illegal immigrants--virtually all of the illegal immigrants have Social Security numbers. In fact, they have a lot of Social Security numbers sometimes, most of which are probably not valid, some of which, however, are valid. So even if they are checked through the system, which this bill does not require, you would catch them. All you have to do is to say: Here is a Social Security number. Now let me avail myself of the benefits. That is the whole point of the immigration reform legislation. That Social Security number proves nothing with regard to eligibility. That would be substituted for the requirements already in the bill. Are the requirements already in the bill onerous? I think not. There are four different levels of documentation you can provide. The last document, tier 4, is when you can't do any of the other things, you can simply have two individuals affirm your citizenship. You can do this by mail. You don't even have to show up in person. So it is not as if we have onerous requirements today to participate in the program. Even with the very generous provisions we have, it is my understanding from a GAO study in 2007 that we think most of the people who are eligible are signing up and we are not getting a lot of ineligible people signing up. In other words, people are not gaming the system, and that is a good thing. But why make it easier to game the system, especially to play into the hands of those who are here illegally, who use a Social Security number for work purposes and now could use it for this purpose, signing up for SCHIP. We will have amendments that deal with each of these subjects. The bottom line is, we should get back to dealing with this subject in a way in which both Democrats and Republicans can have input into the bill and actually solve some of the problems. I know some of my Democratic colleagues were interested in this eligibility issue because they don't want a lot of people getting benefits who aren't entitled. It will only hurt those who are entitled. We need to have strong eligibility requirements. We don't want to begin to expand this program to people who are not citizens of the United States and who have a contract with the United States when they come here as our guests, either on a temporary basis or on a green card. They understand their obligations when they come here. One of their responsibilities is not to begin to receive benefits of this kind from the taxpaying American citizen. For these four reasons, I hope that when this legislation comes before us, we are able to not only amend the bill, work to amend the bill, but will actually have amendments adopted and that we can improve the legislation so that we can all be proud to support it at the end of the day. If not, an awful lot of Republicans, including myself, will not be able to support the legislation.

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Missouri (Mr. Bond).

Mr. KYL. Madam President, I thank the Senator from Iowa for allowing me to speak very briefly. I had intended to support Mr. Geithner's nomination. He is not the only person who can do this job, but he is the President's choice and is entitled to some deference and I actually believe he will give the President some good advice. However, there must be an element of trust between us, based on candor and forthrightness. Secretary Paulson and I trusted each other and it benefited both of us for the benefit of the American people, I believe. Unfortunately, Mr. Geithner, in his appearance before the Finance Committee, I believe did not demonstrate the requisite candor in answer to our questions. As a result, I therefore regret I cannot support his confirmation.

Mr. KYL

Mr. KYL. Mr. President, today I am pleased to introduce the White Mountain Apache Tribe Water Rights Quantification Act of 2009. The legislation would authorize and confirm the tribe's water settlement and authorize funding for a key drinking water project on the tribe's reservation in northern Arizona--the Miner Flat Dam and Reservoir. The legislation is the product of nearly 3 years of negotiation and the tremendous work of the settlement parties. On behalf of the tribe, the United States filed substantial claims to water in the Gila River and Little Colorado River General Stream adjudications in Arizona. The settlement of these claims would, among other things, resolve the tribe's claims to water by allocating to it a total annual water right of 52,000 acre-feet per year through a combination of surface water and Central Arizona Project water sources. Without a settlement, resolution of the tribe's claims would take many years, entail great expense, prolong uncertainty concerning the availability of water supplies, and seriously impair the long-term economic well-being of all of the parties to the settlement. Late last year, the representatives of the non-federal water settlement parties indicated that a settlement was nearly finalized. The parties' representatives expressed their written support for the settlement and indicated that they will be submitting the settlement to their respective governing bodies for review and action. A number of the parties, including the White Mountain Apache Tribe, have already formally approved the settlement. A major factor driving the settlement is the drinking water needs of the White Mountain Apache Tribe. Currently, a relatively small well field serves the drinking water needs of the majority of the residents on the tribe's reservation, but production from the wells has declined significantly over the last few years. As a result, the tribe has experienced summer drinking water shortages. The tribe is planning to construct a relatively small diversion project on the North Fork of the White River on its reservation this year. It indicates that when the project is completed it will replace most of the lost production from the existing well field, but will not produce enough water to meet the demand of the tribe's growing population. The Miner Flat Project would provide a longterm solution for the tribe's drinking water shortages. A significant percentage of the water and funding for the White Mountain Apache settlement has already been set aside in legislation I sponsored, the Arizona Water Settlements Act. The Arizona Water Settlements Act, which became law in 2004, settled expensive and lengthy litigation concerning the Gila River Indian Community's rights to Gila River water and other water supplies, and the claims of the Tohono O'odham Nation for damages from groundwater pumping in southern Arizona. It also set aside 67,300 acre-feet of Central Arizona Project, CAP, water per year to resolve Indian water claims in Arizona and established a $250 million fund for future Arizona Indian water settlements. Under the White Mountain Apache Tribe's settlement legislation, a portion of the CAP water set aside in the Arizona Water Settlements Act will be used to settle the White Mountain Apache Tribe's claims and a portion of the $250 million will be used to construct the Miner Flat Project. While a potential scoring issue exists relating to the use of these funds, I am confident that these issues will be resolved as the legislation progresses. In sum, not only would the legislation I have introduced today provide certainty to water users in the State of Arizona regarding their future water supplies, it would provide the tribe with a long- term reliable source of drinking water. Therefore, I urge my colleagues to support this legislation. Mr. President, I ask unanimous consent that the text of the bill and letters of support be printed int he Record.

Mr. KYL

Mr. KYL. Mr. President, today I am pleased to introduce the White Mountain Apache Tribe Water Rights Quantification Act of 2009. The legislation would authorize and confirm the tribe's water settlement and authorize funding for a key drinking water project on the tribe's reservation in northern Arizona--the Miner Flat Dam and Reservoir. The legislation is the product of nearly 3 years of negotiation and the tremendous work of the settlement parties. On behalf of the tribe, the United States filed substantial claims to water in the Gila River and Little Colorado River General Stream adjudications in Arizona. The settlement of these claims would, among other things, resolve the tribe's claims to water by allocating to it a total annual water right of 52,000 acre-feet per year through a combination of surface water and Central Arizona Project water sources. Without a settlement, resolution of the tribe's claims would take many years, entail great expense, prolong uncertainty concerning the availability of water supplies, and seriously impair the long-term economic well-being of all of the parties to the settlement. Late last year, the representatives of the non-federal water settlement parties indicated that a settlement was nearly finalized. The parties' representatives expressed their written support for the settlement and indicated that they will be submitting the settlement to their respective governing bodies for review and action. A number of the parties, including the White Mountain Apache Tribe, have already formally approved the settlement. A major factor driving the settlement is the drinking water needs of the White Mountain Apache Tribe. Currently, a relatively small well field serves the drinking water needs of the majority of the residents on the tribe's reservation, but production from the wells has declined significantly over the last few years. As a result, the tribe has experienced summer drinking water shortages. The tribe is planning to construct a relatively small diversion project on the North Fork of the White River on its reservation this year. It indicates that when the project is completed it will replace most of the lost production from the existing well field, but will not produce enough water to meet the demand of the tribe's growing population. The Miner Flat Project would provide a longterm solution for the tribe's drinking water shortages. A significant percentage of the water and funding for the White Mountain Apache settlement has already been set aside in legislation I sponsored, the Arizona Water Settlements Act. The Arizona Water Settlements Act, which became law in 2004, settled expensive and lengthy litigation concerning the Gila River Indian Community's rights to Gila River water and other water supplies, and the claims of the Tohono O'odham Nation for damages from groundwater pumping in southern Arizona. It also set aside 67,300 acre-feet of Central Arizona Project, CAP, water per year to resolve Indian water claims in Arizona and established a $250 million fund for future Arizona Indian water settlements. Under the White Mountain Apache Tribe's settlement legislation, a portion of the CAP water set aside in the Arizona Water Settlements Act will be used to settle the White Mountain Apache Tribe's claims and a portion of the $250 million will be used to construct the Miner Flat Project. While a potential scoring issue exists relating to the use of these funds, I am confident that these issues will be resolved as the legislation progresses. In sum, not only would the legislation I have introduced today provide certainty to water users in the State of Arizona regarding their future water supplies, it would provide the tribe with a long- term reliable source of drinking water. Therefore, I urge my colleagues to support this legislation. Mr. President, I ask unanimous consent that the text of the bill and letters of support be printed int he Record.

Mr. KYL

Mr. KYL. Mr. President, for nearly half a century, the Equal Pay Act of 1963 and the Civil Rights Act of 1964 have made it clear that discrimination on the basis of sex with regard to compensation paid to women and men for substantially equal work performed in the same establishment is illegal. As do my colleagues on both sides of the aisle, I strongly support both of these antidiscrimination laws. Unfortunately, some of my colleagues are misleadingly stating in the debate about the legislation pending that it is about pay discrimination. That is not true. The only issue is the length of time of the statute of limitations that will apply in such cases. In the case Ledbetter v. Goodyear Tire & Rubber Company, the Supreme Court considered the timeliness of the civil rights title VII sex discrimination claim that was based on paycheck disparities between a female plaintiff and her male colleagues. Under title VII, a plaintiff must file suit within 180 days of the alleged unlawful employment practice. In this case, the plaintiff attempted to argue that each paycheck constituted a new violation of title VII and consequently restarted the 180-day clock. The Supreme Court disagreed with that argument and held that: A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from past discrimination. In other words, the Court held that the plaintiff's suit had not been filed in a timely manner since the 180-day statute of limitations had long since passed. In the Ledbetter case, the Supreme Court restated its support for and the rationale behind a statute of limitations, stating they: Represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them. In creating a 180-day statute of limitations period, Congress sought to encourage the prompt processing of all employment discrimination cases. Now, there are some additional commonsense reasons why virtually every criminal and civil law articulates a timeframe within which the charge or the complaint must be filed. The loss of evidence, which is more likely to occur with the passage of time due to loss of documents, cloudier memories, or even death can have a significant impact on the defendant's ability to mount a fair defense in the case. The other side has raised an interesting point, because information about an individual's paycheck is frequently a private matter, and the idea is, well, there was no way this plaintiff could have known she had, in fact, been discriminated against. So the argument is that there should be in effect no statute of limitations along the lines of the act today of 180 days but, rather, should be tolled with each succeeding check. While everybody agrees with the argument, the point is there is already an answer to this and it has been in the common law for hundreds of years. It has been in statutory law, and it has been adopted by courts. It is the doctrine of equitable tolling, which essentially is, when you should have become aware of something, that is when the statute begins to run. When an employee did not know and could not be expected to know about certain facts relating to alleged discrimination, then the Equal Employment Opportunity Commission, the EEOC, and the courts may ``toll'' or freeze the running of the clock as it relates to the filing of the deadlines. In fact, there is a U.S. Supreme Court case square on point called Cada v. Baxter Health Care Corporation in which the Supreme Court clearly established the doctrine of equitable tolling which in the Court's words: Permits a plaintiff to avoid the bar of the statute of limitations if, despite all due diligence, he is unable to obtain vital information bearing on the existence of his claim. That has always been the law. Senator Hutchison has introduced an amendment--an alternative to the bill that is before us--which preserves the balance between an employer's need for certainty with the right of an aggrieved employee to file a valid claim of discrimination. It does this by preserving the existing 180-day filing period for standard claims while offering employees the right to assert claims beyond the filing period in situations where they were unaware of the discrimination or where there were impediments to discovering the discrimination--exactly the allegation in this particular case. In essence, the Hutchison amendment codifies the doctrine of equitable tolling, which is the remedy to the alleged injustice in the Ledbetter holding, and makes sure that such tolling is applied more uniformly. Unfortunately, the majority legislation goes far beyond the remedy to the particular problem I have just discussed. It arguably provides the greatest expansion of the Civil Rights Act since 1964. It does this in three specific ways. First, it effectively eliminates the statute of limitations, as I said, by imposing this arbitrary paycheck rule which eviscerates the statute of limitations. Second, it expands the class of people who may file a claim by applying the statute to ``affected persons'' without defining what the limitation on affected persons is. So this class expansion would allow not only the aggrieved plaintiff or employee but any spouse, children, or other individuals who might claim to be affected by the discrimination to file a claim. Finally, the expansion would not just apply to sex discrimination but to all protected classes of multiple employment laws covering civil rights, age, disability, and so on. So it is a much broader statute than is being portrayed by some who are simply saying this is about employment discrimination and changing the statute of limitations. So I wish to stand with all Members of this body who I am sure agree that we need to have laws such as the Civil Rights Act to protect our Nation's citizens. I believe Senator Hutchison's amendment strikes the right balance between the needs of employers for certainty and the need of an aggrieved employee to file a valid claim alleging discrimination. I hope my colleagues will be supportive of the Hutchison amendment as a good-faith attempt to combine these two doctrines and in a way that has already been blessed by the U.S. Supreme Court in the Cada decision. Mr. President, I yield the floor.

Mr. KYL

Mr. KYL. Madam President, I intend to vote against the resolution disapproving the release of the so-called second tranche of funds for the troubled asset relief program, or TARP, albeit with some reservations. When I first decided to support the TARP last fall, I did so because I believed it was essential to preventing the collapse of our financial markets. I believed we were facing an emergency that would hurt every American unless Congress stepped in to provide temporary assistance to our financial system. I continue to believe this today. The conditions that called for the first one-half of the $700 billion authorized still exist today. Last fall, credit stopped flowing. The root of the problem, and I think we all agree, is that the banks didn't know if their mortgage- backed securities had value. No one was willing to loan based upon that lack of knowledge. When they stopped lending to each other, they also stopped lending to businesses, large and small, and to ordinary Americans. People couldn't even get a loan for a car or a major appliance, and that condition persists throughout the country today to some degree. We learned very quickly that the dubious business model of Fannie Mae and Freddie Mac to securitize more and more mortgages was causing the entire system of credit and financing to seize up. Every American has been hurt by this market failure. So the Secretary of the Treasury recommended that a $700 billion investment program that was flexible enough to change with market conditions and that would be focused on addressing the underlying problem in our financial market, namely, these mortgage-backed securities and the Treasury has deployed or committed the first half of the money--$350 billion--and is now asking for the second half. Unfortunately, as I said, the same circumstances that called for the initial $350 billion I believe pertain today. For the most part, I have supported the Treasury's actions, although I wish that the conditions enabled the banks to be more aggressive in their lending. I don't view the program as a gift to the banking industry because the funds must be paid back with interest. I did not and do not support their decision to use TARP funds to bail out the automobile industry, a purpose for which it was clearly not intended. I wish to make it clear, I always understood and believe that the full $700 billion would likely be needed to get our credit markets working again. That is why I support giving the Treasury Department the authorization for this second tranche of $350 billion, and it is why I will vote against the resolution to disapprove releasing the funds. I have had many conversations with officials of the incoming Obama administration, and they promised me and all Republicans, for that matter, that they intend to dedicate the fund to shoring up the financial markets. They promised they will not use the funds to prop up failing companies outside of the remaining commitment to the automobile industry made by the Bush administration, my understanding about $4 billion, and the possibility of debtor possession financing under certain circumstances. They promised greater transparency and accountability, and I intend to stay in close contact with them to see that these commitments are kept. I know this is not a popular decision, but I believe, in the long run, this program will help to keep our economy from collapsing. It will eventually help it to recover, and that will benefit every Arizonan and every American. I wish to be clear that I am not asking any of my colleagues to join with me on this vote unless they have concluded, as I have, that we simply did not take a chance that we don't have the financial ability to deal with crises as they develop. It is, unfortunately, my view that crises will continue to develop in the finance and banking sector of our economy so we are going to need the authority for the next $350 billion.

Mr. KYL. The following Senator is necessarily absent: the Senator from Kentucky (Mr. Bunning). Further, if present and voting, the Senator from Kentucky (Mr. Bunning) would have voted ``yea.''

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Kentucky (Mr. Bunning). Further, if present and voting, the Senator from Kentucky (Mr. Bunning) would have voted ``nay.''