Daniel Lungren

Mr. DANIEL E. LUNGREN of California

Mr. DANIEL E. LUNGREN of California. I thank the gentleman for yielding. Mr. Speaker, it is probably the highest honor of my life is to serve in this House, and as a part of that to serve on the Judiciary Committee. I have great respect for the members of that committee and the work that we do. But in some ways, I would echo the comments of the gentleman from New York, although I would not agree with his conclusions, of the disappointment that this primary obligation of the Judiciary Committee, that is to deal with legislation that goes to the common defense of this Nation, would be viewed in the legislative agenda as an afterthought. I am the author of the sunset provisions from the 2005 extension of the PATRIOT Act. I put those sunset provisions in, or I offered them and got the support of Members on both sides of the aisle precisely because I understood there was some controversy about those three, and that there was a need for us to take a serious look at it. Unfortunately, while we have established other priorities in this Congress, in this House, it does not appear that the PATRIOT Act has been one of them. Because if it were otherwise, we would be spending hours, if not days, on this floor talking about the implications of the PATRIOT Act. And in the context of that debate, I am absolutely assured that the vast majority of this House would support the continuation of these provisions, as is the conclusion of this administration. These three provisions provide tools for our intelligence community to not only connect the dots, but gather the dots. There seems to be a misunderstanding at times that if we were to take some of these provisions and establish a higher degree of proof, or a higher degree of suspicion that somehow that would make these tools more available. That I believe is a misunderstanding of some of these tools. These tools allow to us start the search. You don't know if someone is involved with a terrorist group under some circumstances. Someone like Abdulmutallab, having his father come to the embassy and just report his suspicions about his son would not be sufficient for us to believe that he was necessarily allied with some terrorist group. In fact, you would believe that by the terms of the lone wolf provision, he would be right squarely in the middle of that provision. And yet what did our committee do? Our committee decided that because it had not been used before, we should reject it. Well, you know, we were never hit by airplanes with unbelievable amounts of fuel and human beings into towers in New York until it happened. Now, the argument that, well, it never happened before so we shouldn't have been prepared for it doesn't ring true. And so while I believe that we did take a look at these three provisions in our committee, I was extremely disappointed by the resolution of that review. And we could, it seems to me, if we had this as a priority, bring this bill to the floor, look at it and say if it is important enough for us to have these tools against al Qaeda and similarly situated terrorist groups and individuals, then maybe we ought to extend it for more than a year. Does anybody on this floor, does anybody within the reach of my voice believe that al Qaeda is going to stop 1 year from the 28th of this month? Maybe we have a new 72-hour rule. We have been talking about a 72- hour rule meaning we should have bills on the floor for 72 hours. Here we have the fact that we wait until we are within 72 hours of the expiration of key parts of the law which allow us to protect ourselves against terrorists before we act. The American people must be scratching their heads and saying, This is the leadership we look for? These are the people who take an oath to the Constitution and to give us the ability to defend ourselves against enemies? Mr. Speaker, I guess I would say as proud as I am of my service on the Judiciary Committee, I am profoundly disappointed that this bill is being brought forward with just a single year, within a 72-hour space, and we still have not had an examination on this floor of the seriousness of the profound protections of civil liberties contained in these provisions of the law. This is in fact a good law. These are good provisions of that law being utilized by our intelligence community.

Mr. DANIEL E. LUNGREN of California. I thank the gentleman for the additional time. So these are individual parts of a law that has served us well. Ironic it is that on the very day that our committee considered the lone wolf provision and decided because it had not been used before we should withdraw it, we had the terrible I won't call it a tragedy, I will call it a terrible terrorist attack at Fort Hood. Within hours of us rejecting the notion that we needed a lone wolf provision, we had a domestic lone wolf. Now, of course the PATRIOT Act does not apply to someone who is an American citizen. But my point is had we had such an attack before that attack took place, doesn't it seem a little nonsensical to say because it hadn't happened before we ought not to have some tools at our disposal which would help us fight it? Let me just underscore again, these provisions in the law allow our intelligence community to collect the dots. The 9/11 Commission criticized our government for a failure to connect the dots. You need to first have the dots. You need to first have the information. And that is what these tools allow us to provide to our intelligence community so that they can analyze those things. So Mr. Speaker, I reluctantly support this legislation because it is a mere 1-year extension. It deprives us of the debate that should be front and center of this representative body. If we truly believe our first obligation is to protect the people we represent, we must provide for the common defense. The PATRIOT Act does this. These provisions do this. We should act on this with full knowledge, full debate, and full confidence in our intelligence communities that we can move forward and protect the American people.

Mr. DANIEL E. LUNGREN of California

Mr. DANIEL E. LUNGREN of California. So we have right now, taking place across the street from the White House, a summit on health care. We should be having a summit today on the intelligence community, in our effort against those who would wish to destroy us by terrorism. The way we act suggests to the American people this is not on the top of our priority list but on the bottom. Later, we are going to have the rule on the PATRIOT Act. Why? Because, within a couple of days, three provisions of the PATRIOT Act are set to expire. Monday, we rushed in here. We had an extra day of voting. What did we do? We worked to rid the country of the scourge of unnamed post offices. We were here to make sure that--man, we've got to find some more post offices to name. Why couldn't we give additional time to allow amendments that are serious in nature and that the American people want us to deal with on this floor? But no. Once again, the Rules Committee has said we are not going to allow it, but we are going to incorporate in the manager's amendment an amendment which actually provides greater rights to those who are being held and put at jeopardy our intelligence community.

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, the gentleman asked: Why? Well, you know, it's not just in my backyard. I don't want them in any American's backyard. Guess what? The American people agree with me. That's why Mr. King and I went before your committee, to ask permission if we could possibly debate this issue on the floor. Everything you just said is part of a debate that could take place, and we could resolve it, but the Rules Committee decided, in their infinite wisdom, not to allow us to debate that on the floor. Mr. King's and my amendment did one simple thing. It said that those who are currently in or in the future will be in Guantanamo Bay will not be transferred to U.S. sovereign territory for any trials. That is, they will stay at Guantanamo with the specially created courtroom that we have there--absolutely secure-- under the Military Tribunal Act, which we, the Congress, passed in 2005. I mean that's the answer to your question, but it must seem strange to the American people that the majority would be afraid, seemingly, to allow us to debate that with real consequence. You can allow us to debate that in the rule, knowing it has no consequence. The real consequence would be if we had an opportunity for the American people to actually be heard by way of legislation. It is interesting that you did make in order the manager's amendment, which will give newly established rights, by way of penalty, to our members of the intelligence community if they would dare deprive one of these individuals of sleep or if they would isolate them for too long a period of time--neither one of them defined in the statute. So what we have done is we have said we will continue to ignore the American people who have said loudly and clearly, We do not want Khalid Sheikh Mohammed and his confederates to come to New York. We do not want those in Guantanamo to come to the United States. I find it strange that the gentleman from Florida would compare H. Rap Brown to a terrorist involved in a terrorist network. He doesn't understand--I know he does understand. I'm sure it was a rhetorical device the gentleman was using--the difference between someone who is an American citizen and the rights that he has versus someone who happens to be a noncitizen--in fact, an unlawful enemy combatant. There is a distinction that has always been known in our courts, and the idea that we are going to extend the full parity of constitutional rights to someone whose only connection with the United States is that that person was captured on the battlefield, attempting to kill Americans, is inconsistent with the history of this Nation and is inconsistent with all of the decisions of the Supreme Court.

Mr. DANIEL E. LUNGREN of California

Mr. DANIEL E. LUNGREN of California. Perhaps the gentleman is suggesting that all the Members on his side of the aisle who supported this amendment share in his description of the motivation of those of us who have presented it. I thought maybe we were above that. I thought maybe we were engaged in civil discourse here. But rather, if the gentleman or any gentleman wishes to talk about the motivations of others, I will tell you any idea about bipartisanship is lost in this House. The suggestion that all you have to do is shout louder than somebody else and accuse them of motivations other than what they articulated is just absolute nonsense. The fact of the matter is, properly done, the sharing of historical data is not anticompetitive. The fact of the matter is the underlying bill, with my amendment, would still allow actions taken by the Justice Department and the various States Attorney General if there was bid rigging, if there was price setting, if there was determination before the hand of which markets you would act in and which markets you would not act in. And so this is a lot of sound and fury signifying nothing, essentially. I have never seen such an attack on an amendment that was adopted on a bipartisan basis in the committee. Now, I realize it is only the committee of jurisdiction that has expertise in this area. I understand that those of us who have done antitrust law ought not to be listened to because those who have said on this floor that they have no expertise in this and they don't understand it, therefore, they don't want to debate it, should have the upper hand in the Rules Committee. But frankly, I will say once again at some point in time you have to accept yes for an answer. I support the bill. I am trying to help the bill. I am trying to get it back to where it was when Jack Brooks introduced it. And in response to that, rather than saying hurray for bipartisanship, I hear from other people, well, we got to question your motivations. Hardly a high point in this Chamber.

Mr. DANIEL E. LUNGREN of California. I thank the gentleman for yielding. Mr. Speaker, as I've said repeatedly--and perhaps the gentlelady from Ohio who just spoke didn't hear--I support the bill. I think she also heard--well, maybe she wasn't here to hear the ranking Republican say he is not going to oppose the bill, so let's be clear about what we're talking about here. While I do support this bill and while I do think it could be perfected and while I hope that the motion to recommit will be adopted to actually make it a better bill, I would say, however, this is not the first bill we should have on the floor dealing with the overall issue of health care. The first one should be the one the American people have asked us to look at, and that is reform of the medical malpractice system. The interesting thing is, as the gentleman from Texas pointed out, that in the bill that we have in the Senate and the House, there is reference, as the President of the United States said, to medical malpractice litigation alternatives. That bill does give incentives, financial incentives, Federal moneys from the Federal Government to the States if they will engage in alternatives to the litigation system in areas of medical malpractice. But as the gentleman from Texas pointed out, there is a kicker in there, and it says that if your State dares to in any way put any limitations on attorneys fees or on any part of the recovery in medical malpractice cases, that State will be ineligible for the funds; in other words, you will be punished relative to other States. Now, the gentleman from Texas referred to the landmark legislation we had in California called MICRA, which was adopted in the mid-1970s at a time when we had a crisis in medical malpractice premiums. We actually had an exodus of doctors, particularly in the specialties. Neurosurgeons, I remember anesthesiologists, other high specialties with high-risk practices were actually leaving the State of California because of the significant increase in premiums on a yearly basis as a result of the true historical data of what was happening in the courts. I recall at this time, because I actually did some representation in the courts of doctors and hospitals and of even a couple of plaintiff cases--but primarily defense cases--that it was becoming a crisis. So, in California, it came together on a bipartisan basis, and we passed legislation better known as MICRA. In there, we have a limitation on a sliding scale on the amount of money that can go to the attorneys, and it's a slightly higher percentage at the lower recoveries. As the recovery gets larger and larger, the percentage of return to the attorneys, percentage-wise for that segment of the recovery, is less. While putting no limitation whatsoever on recovery for loss of income and for all medical costs, there was a cap put on noneconomic damages. As one who has been in the courtroom and has seen what happens, that is logical because the one area in which you saw extraordinary amounts of money that really were not truly indicative of approvable damage--I'm not saying there isn't pain and suffering, but trying to quantify it is extremely difficult, and it proved to be impossible, and it proved to be the area in which you had the outrageous jury verdicts that had the impact of distorting the system. So California adopted both of those. In other words, the bill that has been presented by the President and Democrats in the House and the Senate not only does not really deal with reform of the medical malpractice system, but it takes us back more than 30 years to the position in which we were then when we had not an academic exercise about the possibility of a crisis but a true crisis. We literally had a crisis in medical care in the State of California until we enacted this change. So that is why it is at least as strange to ask and to see why we don't have some litigation reform moving through our Judiciary Committee and through the other committees that may have jurisdiction in the House of Representatives and placed on the floor. That's why it was very important for the gentleman from Texas to make reference to the California system, because that is one that has worked, and it specifically is the one that is singled out in the legislation that the President supports to be punished. Now, if that is not irony, I don't know what is.

Mr. DANIEL E. LUNGREN of California. Madam Speaker, once again I know I run the risk of trying to introduce some expertise into this debate. For that, I apologize. But the American Bar Association appeared before the subcommittee of Judiciary dealing with the underlying bill, or the bill that was presented before our committee, and in there, they voice support, as they have for decades, for removal of the McCarran-Ferguson antitrust exemption for the health care insurance industry. However, they said, as point number one of the five major points they made, insurers should be authorized to cooperate in the collection and dissemination of past loss-experience data so long as these activities do not unreasonably restrain competition, but insurers should not be authorized to cooperate in the construction of advisory rates or the projection of loss experience in the future in such a manner as to interfere with competitive pricing. That second part deals with trending data. I do not allow that under my amendment. And as I presented my effort to have my amendment considered in the Rules Committee, I was told by the representative of the American Bar Association, they did support my position, they supported my amendment, and they supported the arguments that I made before the committee. Now, maybe they're wrong because they have some expertise in this area, but perhaps this is one time we might look to them. The ABA has not been known as a Republican, conservative, pro-insurance company operation. Last time I looked, they have a major element of the bar association that's involved with antitrust law.

Mr. DANIEL E. LUNGREN of California. So I would just hope that people would understand, as important as this bill is, that we should be at least listening to the American people, who have said number one on their issue list in dealing with this problem, as they see it, as they understand it, as they are affected by it, is the reform of the medical malpractice litigation system as it currently exists. So it is somewhat disappointing that we don't have that even on the horizon. I think the gentleman, the ranking member on the committee, would agree we haven't seen anything on this subject that has been scheduled for our committee. While I support this legislation--and let me repeat that--I support this legislation. I think it is good legislation. I think it may have a slightly bigger impact than, maybe, my ranking member thinks it will have, although not as large an impact as suggested by the other side. I would hope that the other side would look with open eyes and would listen with open ears to our motion to recommit because I think it will make a better bill, will clear up some definitions that are not defined in this bill and will help us move in the right direction.

Mr. DANIEL E. LUNGREN of California. Thank you. Since the gentleman refused to yield when I asked him to, despite the fact he was using my name and attributing motivations to me that are questionable under the rules of the House, I might say this. The gentleman is absolutely incorrect in his analysis. The report said that it would harm the small insurance companies if they were not able to get this historical data, number one. Number two, the gentleman conflates two completely different things: one is historical data and the other is trending data. And they are two different things. My amendment does nothing about allowing insurance companies to work together and compare trending data, which is data going forward, despite the fact that some in the insurance industry wish that is the case. The dirty little secret is that some in the insurance industry don't want to have my amendment, they want it to be silent so that in addition to historical data, they can also have trending data. But the gentleman hasn't looked at the data in that way, hasn't examined or, I presume the gentleman would not have examined the reports to know the difference that was in that and my specific decision not to include trending data in my amendment. Secondly, I find it interesting that the gentleman suggests that I am trying to do something other than what I say that I am doing. This is an interesting argument made on this floor, that if you disagree with someone you suggest that what they say can't possibly be true. The fact of the matter is I have quoted outside reports to support my position, number one. The fact of the matter is I have used the language from the Jack Brooks legislation, I have used language from the gentleman's party's health care bill, and I have used the language that was adopted on a bipartisan basis in Judiciary Committee unanimously.

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I would like to refer to that part of the motion to recommit that deals with the amendment that I offered and that was contained in the bill that passed out of the Judiciary Committee. It simply allows historical data to be utilized by insurance companies large and small. This is something that is requested by the small insurance companies, this is something supported by the American Bar Association. Their representative who testified before our subcommittee on behalf of or in support of the underlying legislation supported this amendment so that in fact small insurers would not be disadvantaged. Let's get this right. There are some who have told me on the other side that, well, we don't need this because it will be allowed by the U.S. Justice Department or by the courts. We ought not to wait for that. We ought to give some real solid certainty to insurance companies, particularly the small insurance carriers. So if we wish to permit the collection of historical data, let's make it clear what we intend. Just because we haven't brought forward on this floor some answer to the medical malpractice litigation issue is no reason for us to commit legislative malpractice here. We ought to do our job. We ought to not pass it on. Now, there are a few people who don't think that historical data should even be allowed. If that is the way they feel, I understand it. Most Members I have spoken to believe it ought to be allowed. They understand the absolute essence of it in terms of the continued existence of small insurers across the country. Let's get it right. I have the language virtually the same that was contained in the majority's health care bill that passed just a couple of months ago. It is the same as contained in the bipartisan bill that came out of our committee. And most importantly, it is the same language contained in the various bills presented to this House by the late great Jack Brooks, chairman at that time of the House Judiciary Committee, about whom Members on the other side have waxed eloquently. And in tribute to him, I would hope they would support the gentleman's motion to recommit that contains my amendment.

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I ask that the gentleman's words be taken down.

Mr. DANIEL E. LUNGREN of California. I thank the gentleman. It is better if they have actual data upon which to make their decisions. And here's the rub: As was mentioned by the gentleman from Wisconsin, it is the small companies which depend on the availability of information the most. Smaller companies simply do not have a sufficiently large volume of information to price their products efficiently. So it's for this reason that it is of the utmost importance that insurers have the ability to share historical data. Now, am I just saying this? No. In this record, a Congressional Research Service report raises the possibility that were such data not available to small insurance companies, we might see the ironic outcome of further concentration in the insurance industry. Again, not my conclusion; the conclusion of the Congressional Research report done most recently. So, yesterday I did approach the Rules Committee to ask my amendment, the Brooks amendment, as I call it, be restored to the health insurance antitrust bill. And even though it was approved unanimously by my colleagues on the Judiciary Committee, my request was inexplicably rejected by the Rules Committee. This is not the way, I would say, Madam Speaker, that this body should do business. Let's respect the integrity of the institution and the work that has been done in the duly established committee process. I would hope that when this part of the recommittal motion is discussed, we'll discuss it in light of the history of this bill--the language taken from the Jack Brooks bill; the language taken from the majority's health care bill passed just this year.

Mr. DANIEL E. LUNGREN of California. Will the gentleman yield?

Mr. DANIEL E. LUNGREN of California. I thank the ranking member for the time. Let me say at the outset, I do not believe that health insurance companies should be exempt from our Nation's antitrust laws. As one of those who believes and hopes that those applauding would join me in supporting the idea of buying health insurance across State lines, when we reach that accomplishment, I think it is appropriate for us not to have a Federal antitrust exemption. When health care has been primarily and in a very real sense exclusively the province of the States, under their jurisdiction, the attorney generals of the States have retained the ability to enforce the antitrust laws of those States. So we're entering a new era, I would hope, where we would be able to, if, in fact, this one Republican idea finds its way into legislative enactment, find an opportunity to extend the universe of decisions that might be accessed by individuals or their employers by way of insurance policies that may be available in other States. My intention is to vote in favor of this bill. However, my concern is that the bill before us is not nearly as good as it should be because normal bipartisan committee process has been circumvented. As has been noted by some in advancing this bill, I did vote in favor of the Health Insurance Industry Antitrust Enforcement Act of 2009 when it marked up in the Judiciary Committee. At that time, I offered an amendment to the bill to allow the sharing of historical data and the performance of actuarial services by insurance companies. Not future trending data but rather looking-backward historical data. At that time, it was adopted unanimously by the committee, therefore, on a bipartisan basis. Our distinguished chairman of the committee supported my amendment, which he described at the time as ``a helpful clarification.'' If there's one thing that we ought to understand when we have this downturn in the economy, if you want to make sure things don't happen in the private economy, insert uncertainty. If you want to make sure that things cost more than they otherwise would, insert uncertainty. And that's what we are doing by not allowing that in the bill before us. In fact, I should point out to my friends on the other side, section 262 of your health care bill, your health care bill, adopted on this floor, allowed for the sharing of such information. It contained the language of my amendment. Unfortunately, for whatever reason, it has been held out of the bill before us. Unless anyone thinks I have risen to speak because of sour grapes because my amendment with my name on it was not included in this bill, let me clarify the case. I can give you assurance that is not the case for the simple reason that I cannot take personal credit for the guts or the contents of this amendment. The truth of the matter is that the hard work done to repeal the McCarran-Ferguson Act began with the efforts of then Chairman Jack Brooks, Democratic chairman, in the 101st, 102d, and 103d Congresses. Ironically, at the beginning of our committee markup, our chairman described the repeal of McCarran-Ferguson ``as a tribute to Jack Brooks.'' So if we really wish to pay tribute to Jack Brooks, and I believe we should, perhaps a good place to start would have been to allow an amendment to include Chairman Brooks's language in any legislation before us. I'm hopeful that the motion to recommit might contain that language, and I would hope that people would set aside partisan differences and support it. So aside from the issue of the denigration of the committee process-- and I think that's an important thing we ought to take into consideration. The subcommittee, committee, you act on this bill. You debate it. You consider amendments. You vote out the amendment on a unanimous bipartisan vote. Then you have bipartisan support for the bill as it comes out of committee. And then what happens? It's changed before it comes to the floor. And we had one of the members of the Rules Committee say she wasn't going to engage me in debate because, she said, I don't have the expertise on this issue. So I presume that means if you have expertise, and that's what committees are supposed to have, you ignore that so you can come to the floor and not allow debate utilizing that expertise because you prohibit that amendment from being considered on the floor. H.R. 4626 will have precisely the opposite effect of its stated intention if, in fact, the notion of sharing historical data is not considered appropriate and legal. The economics of the insurance industry are such that companies depend on information. Why? In order to enable them to price their products. They have to base it on something.

Mr. DANIEL E. LUNGREN of California. Madam Speaker, I would like to make an inquiry of the Chair.

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I ask the gentleman's words be taken down once more.

Mr. DANIEL E. LUNGREN of California. Reserving the right to object, has the Chair ruled as to whether the gentleman's words are inappropriate under the rules of the House and the precedents of the House?

Mr. DANIEL E. LUNGREN of California. Is it not correct that Members are supposed to address the Chair?

Mr. DANIEL E. LUNGREN of California

Mr. DANIEL E. LUNGREN of California. Well, I know we have had people on this floor who say they have no expertise but they say this amendment does certain things. I did spend 8 years as the Attorney General of California. We had the most active antitrust public law office in the country other than the U.S. Justice Department. I might just say, this is the first time I have ever heard that Jack Brooks was presenting legislation on the floor of the House or in Judiciary that was to protect insurance companies or allow collusion. The language I used is taken from the Jack Brooks bill. The language I use is specifically the language that was adopted on a bipartisan basis and said by the chairman of the Judiciary Committee was an excellent clarifying amendment.

Mr. DANIEL E. LUNGREN of California. The fact of the matter is that under the law under this bill, the State action still applies, State action principles still apply. States can still do what they will, including what the gentleman talked about before. So this is a red herring. This is so silly that you would take something that got bipartisan support, unless you're suddenly suggesting that the chairman of the Judiciary Committee has a secret plan to somehow allow the insurance companies to gouge people and that Jack Brooks had that secret plan. This is total nonsense, to bring a bill to the floor and take out an essential element from committee and then suggest, when you want to put it back in committee for revision, you're trying to protect somebody.

Mr. DANIEL E. LUNGREN of California. Could I just ask my friend from California, isn't it true that if there was collusion utilizing this information, that would still be prosecutable under the amendment that I suggest because it is prosecutable at the present time under State action theory and has been pursued by various States?

Mr. DANIEL E. LUNGREN of California. Will the gentleman yield?

Mr. DANIEL E. LUNGREN of California. That's the most interesting thing. You did change it. You changed the bill from the bill that came out of committee. So don't tell me you didn't want it changed. You did change it. That's the whole point we're making. The bill that we produced out of committee on a bipartisan basis that was called a clarifying amendment was taken out. So you're the folks that changed it. I didn't change it. My God, is this 1984 doublespeak around this place? I thank the gentleman for yielding.

Mr. DANIEL E. LUNGREN of California. I thank my colleague from North Carolina for the time. Mr. Speaker, I might say this is an interesting point. I don't think I've ever been on the floor in 16 years and have faced this kind of a rule. It is a closed rule. I've been here before with closed rules, but the effect of the closed rule is to prohibit me from providing or from presenting my amendment. Now, that is not unusual. Usually, you come to the floor, and you present an amendment to try and amend the bill to change it from the way it was reported out of the committee that did the work on it. But in this case, I am being prohibited from offering an amendment to change the bill back to the way it was as reported out of the committee on a bipartisan basis. For whatever reason, the majority on the Rules Committee decided that an amendment that was cited by the Democratic chairman of the Judiciary Committee, Mr. Conyers, as an excellent clarifying amendment is not going to be here. When one of the chief cosponsors of the bill, or coauthors of the bill, being presented on the floor today announced the bill last week, she said publicly that this was similar to the bill that was passed out of the Judiciary Committee with the bipartisan support of Congressman Lungren from California. So, naturally, I was interested to look at the bill that they were presenting to see how it was the same as the bill we presented. I found out that they'd left out my amendment which allowed for the sharing of historical data by insurers so that they might look at the experience evidence and utilize that in making their decisions with respect to how they conducted their business going forward. I had been assured that my amendment was not necessary because committee staff on the Judiciary Committee had researched it. Nobody believed that the Justice Department of any administration going forward would find the compiling of historical data among the insurers to be noncompetitive and violative of the antitrust laws. I was further assured that they did not believe that that would be the case with any of the attorneys general of the States. Now, I had the privilege of serving as attorney general of my State for 8 years, being a member of the National Association of Attorneys General--an organization which does support legislation of this type-- and of course, attorneys general of the various States have independent authority under their State laws to enforce antitrust laws, which I did during my 8 years. Sometimes we went beyond what the Federal Government did because we understood better the unique circumstances of our State. I remember, one time, we were dealing with a merger between two large banks. They were national banks, and they had branches in the State of California. We were working in conjunction with the antitrust division of the Justice Department, and we were moving in the same direction, but I remember getting a phone call from one of the attorneys at the Justice Department in Washington, DC, who asked this question: Well, how close is San Jose to San Diego? About 400 miles, but they thought they were next to one another. Why was that relevant? That would be relevant as to whether you had competition among the bank branches that were then going to be merged. Would that then give increased and illegal concentration of power in those areas? The point I am making is that attorneys general of the States may know a little bit more about their States than attorneys working as hard as they can here in Washington, DC. So the idea that attorneys general are somehow impotent, from a legal standpoint, such that they cannot bring forward antitrust cases, is just not true. At the same time, I voted for the bill coming out of committee because I thought it had, in fact, reached an appropriate balance. Interestingly enough, the gentlelady from New York, the chairperson of the Rules Committee, stated in her support for this rule and in support for the underlying bill that this is really a tribute to Jack Brooks, who attempted to do this for years. I was privileged to serve with Jack Brooks, an interesting Texan Member, someone who was the Chair of the Judiciary Committee for some time. When the bill in the Judiciary Committee was originally introduced this time around, the distinguished chairman of the committee, Mr. Conyers, cited Jack Brooks, and said, This was the Jack Brooks bill. So I went back, and I looked at it. I found out that my amendment, or the language that I had then put in in amendment form, was in the Jack Brooks bill but not in the bill before us. So I brought it forward. So you might say, if we are doing this in homage to Jack Brooks, you would do him further homage by allowing the language of his bill to be put into this bill, and that's all I ask for. It's all I ask for. Now, the other part of the bill that came out of the Judiciary Committee, which is not in this bill, is to remove the antitrust exemption that currently exists for medical malpractice insurance providers, but somehow that has been taken out of this bill with no explanation whatsoever. So we have cherry-picked from the bill that came out of the Judiciary Committee with bipartisan support, and yet we acclaim the bill as being, essentially, the bipartisan bill that came out of committee. As I said before the Rules Committee yesterday, sometimes you just have to learn to take ``yes'' for an answer. I support the underlying bill. I support this effort. I am trying to make it better. It was accepted on a bipartisan basis. Yet, in the Rules Committee, there wasn't one, in my judgment, credible argument about why you wouldn't have it. On the one hand, I've heard from the staff of the Judiciary Committee that it is not necessary because no single administration will have a Justice Department that finds this to be anti-competitive. On the other hand, I hear from the chairperson of the committee, Well, we don't want to give this power to the insurance companies. We want the Justice Department to investigate it. Well, if that's the case, you can't have your cake and you can't eat it, too. It's either one or the other. If it is, as I was told, unnecessary, redundant because nobody looking at it will find this to be noncompetitive because it is essential information--and by the way, the absence of this information will not hurt the big guys as much as it will hurt the little guys. Why? Because if you are a large carrier, you have a far greater experience database than if you are a small carrier. You understand the market better in terms of information that is at your fingertips. If you are a smaller provider, you need the information to understand the universe that you might be attempting to present your product to. So we have, on the one side, being told that no reasonable antitrust division of any Justice Department of any administration will find this to be anti-competitive. Then you have the chairperson of the Rules Committee saying, No, no, we have to keep this in here because we want to make sure that the Justice Department will be able to determine whether or not it is. So what does that give the market? What does it give the smaller insurers? It gives them uncertainty. So the very thing that you are saying you want to do you are prohibiting from being accomplished by not allowing this amendment to be considered. This amendment, as I might say, was described by the chairman of the committee as an excellent clarifying amendment. We are therefore removing clarification, and we are replacing it with uncertainty. Look, I can go down on the floor and bash the insurance companies as well as anybody here. Let's just knock them all around here. The point is we are making an adjustment in law, which is what is good for the people. So why not do it in an intelligent way, in a way that will actually assist in the marketplace and allow for greater competition? Outside studies have said, if, in fact, this information is not allowed to be collected together and shared among those in the industry, it might--they said ``might''--might have the impact of harming the smaller insurance carriers. So I don't know why you're doing this. I don't know if there is a political reason for it. I don't know if it's because I happen to be a Republican. I'll give it up. Any Democrat who wants to put his name on it can add his name to Jack Brooks' and present it on the floor. But this kind of silliness on this floor has got to stop. You ask for bipartisanship, and you throw it away. We have complete bipartisanship in the committee, and you ignore it. As one member of the committee, a Republican member who voted with me in support of this bill on a bipartisan basis, said afterwards when he found out that that bill wasn't going to be presented on the floor, Why do we need committees and subcommittees? What are we holding hearings for? Why are we having the experts testify before us if, in fact, somehow in the--I don't know where it is. There are closed doors somewhere that decided that this bill was going to come out instead of the bill we worked on in committee and then give no good answer. It's such a shame you don't have TV cameras in the Rules Committee. If people could have seen the argument yesterday, if the public could have understood what we were talking about, I mean they would have shaken their heads and said, Do the people's business. Please do the people's business. Don't get involved in partisanship. Again, I would say I give up my name on this amendment. I will gladly dedicate it to Jack Brooks in his memory. I'm glad to give it to any Member of the Democratic side. Let's do the people's business and get rid of this silliness of unstated partisanship, without any rationale, that undercuts the impact of the bill. Once again, this is unique. I've spent 16 years in this place. This is the first time I've ever come to the floor and have been denied an amendment that would put back in something we voted on on a bipartisan basis in committee that has been removed at the direction of somebody, including the Rules Committee, so that we can't have the chance to work on the product that came out of a bipartisan effort in the committee.

Mr. DANIEL E. LUNGREN of California. Will the gentleman yield?