Bill Nelson

Mr. NELSON of Florida

Mr. NELSON of Florida. Mr. President, I thank the leaders for giving me this time. I want to have the Senate recognize an American citizen who, very likely, prevented the entry into the United States of what is suspected as the 20th hijacker. I want to tell you this story about this immigration officer, who is at the Orlando International Airport. His name is Jose Melendez Perez. Mr. Melendez, a little more than a month before the attacks on September 11, 2001, denied entry into the United States at the Orlando Airport of a Saudi national who had arrived at the airport from the Middle East by way of London. Federal authorities now believe that this man, Mohamed al-Qahtani, was the missing 20th hijacker. He was later captured in Afghanistan. He is now being held in Guantanamo Bay, a place I have just visited with our four-star general, General Hill, just before Christmas to have Christmas dinner with our troops who are conducting that operation there. This story is quite an interesting story. It is beginning to get a flurry of recognition, and that is just recognition for this great American. The fact is, he was just doing his job, but he was so expert in it that he stopped the entry into the United States of this person. He alertly denied al-Qahtani entry into the Orlando Airport based on a combination of indicators that suggested he was up to no good. Mr. Melendez's experience, training, and instincts served our Nation very well. It is interesting that what he told me, when I met with him last Friday to congratulate him, was that he just got a feeling about this guy as he was referred to Mr. Melendez for secondary questioning, since he did not speak English. After questioning al-Qahtani and discovering many holes in his story--holes about why he was there, how long he was going to stay, who was going to meet him--and it is thought, very possibly, that it was the hijacker pilot of the first plane that went into the World Trade Center who was the guy upstairs to pick him up--Mohamed Atta. We don't know that for sure. But also there was the fact that he didn't have a return ticket or enough cash to purchase one. After having that uneasy feeling about none of these answers and a very belligerent manner, by the way, by the man being questioned, Mr. Melendez put it into his own hands to make the decision that he was going to have him arrested, put into detention, and sent back the next day on a plane. By refusing al-Qahtani entry into the country, Mr. Melendez very well may have helped save many additional lives on September 11. So this is a proud professionalism in the Immigration Service which so often gets nothing but complaints. I think it is time for us to stand up and salute Mr. Melendez and his service. He modestly protested to me last Friday that he was only doing his job. But we know because of the replicated actions of folks like him being done every day, not only in our Border Patrol and other immigration activities, but in the State Department and in decisions being made as to whether or not to grant a visa in embassies around this country, and with all of our intelligence services as they are making these decisions day by day, hour by hour, it is working to protect us. Mr. Melendez has shown us what correct protection of our borders looks like. Now we want to rededicate and congratulate all of the hard- working colleagues at the Department of Homeland Security. We want to provide them with the resources they need to protect our borders and the ports of entry. Dedicated security personnel are not there to make travel more difficult; they are there to make us safer. Mr. Melendez in this instance apparently prevented the compounding of a national tragedy on September 11, 2 years ago. Mr. President, I thank you for the opportunity that I could recognize a wonderful American, an American who spent 27 years in the U.S. Army. When Mr. Melendez retired, he decided to continue his Federal service, in this case with the Immigration Service. He is a wonderful American who has a big family centered in Orlando, with nine grandchildren spread over several cities and some back in his native Puerto Rico. I am very proud today to share his story so our colleagues in the Senate might also recognize his brand of modest heroism. I thank the Chair.

Mr. NELSON of Florida

Mr. NELSON of Florida. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. NELSON of Florida

Mr. NELSON of Florida. Mr. President, I express my appreciation to the Senator from North Dakota for the case that he has made, which has been very disturbing to us as two Senators, because the information we have received over the last several days causes us not only to scratch our heads but to shake our heads--that the intelligence we received in the secure rooms of this Capitol complex was either so faulty that we are in a considerable degree of vulnerability, that we are not getting accurate information upon which to defend this country, or that the information that was presented to us was faulty not because of the sources of that information and the analysis but there was some suggestion of coloring that information to reach a certain conclusion. I think this is far beyond Republicans and Democrats. This is about defense of the homeland. This is about America. Just because this has come up in January of an election year, with Dr. Kay coming forth and telling us today in the Armed Services Committee that he concluded this last November, then it is sure time for us to get some answers for the protection of this country and its people. I want to take this occasion to inform the Senate of specific information that I was given, which turns out not to be true. I was one of 77 Senators who voted for the resolution in October of 2002 to authorize the expenditure of funds for the President to engage in an attack on Iraq. I voted for it. I want to tell you some specific information that I received that had a great deal of bearing on my conclusion to vote for that resolution. There were other factors, but this information was very convincing to me that there was an imminent peril to the interests of the United States. I, along with nearly every Senator in this Chamber, in that secure room of this Capitol complex, was not only told there were weapons of mass destruction--specifically chemical and biological--but I was looked at straight in the face and told that Saddam Hussein had the means of delivering those biological and chemical weapons of mass destruction by unmanned drones, called UAVs, unmanned aerial vehicles. Further, I was looked at straight in the face and told that UAVs could be launched from ships off the Atlantic coast to attack eastern seaboard cities of the United States. Is it any wonder that I concluded there was an imminent peril to the United States? The first public disclosure of that information occurred perhaps a couple of weeks later, when the information was told to us. It was prior to the vote on the resolution and it was in a highly classified setting in a secure room. But the first public disclosure of that information was when the President addressed the Nation on TV. He said that Saddam Hussein possessed UAVs. Later, the Secretary of State, Colin Powell, in his presentation to the United Nations, in a very dramatic and effective presentation, expanded that and suggested the possibility that UAVs could be launched against the homeland, having been transported out of Iraq. The information was made public, but it was made public after we had already voted on the resolution, and at the time there was nothing to contradict that. We now know, after the fact and on the basis of Dr. Kay's testimony today in the Senate Armed Services Committee, that the information was false; and not only that there were not weapons of mass destruction-- chemical and biological--but there was no fleet of UAVs, unmanned aerial vehicles, nor was there any capability of putting UAVs on ships and transporting them to the Atlantic coast and launching them at U.S. cities on the eastern seaboard. I am upset that the degree of specificity I was given a year and a half ago, prior to my vote, was not only inaccurate; it was patently false. I want some further explanations. Now, what I have found after the fact--and I presented this to Dr. Kay this morning in the Senate Armed Services Committee--is there was a vigorous dispute within the intelligence community as to what the CIA had concluded was accurate about those UAVs and about their ability to be used elsewhere outside of Iraq. Not only was it in vigorous dispute, there was an outright denial that the information was accurate. That was all within the intelligence community. But I didn't find that out before my vote. I wasn't told that. I wasn't told that there was a vigorous debate going on as to whether or not that was accurate information. I was given that information as if it were fact, and any reasonable person then would logically conclude that the interests of the United States and its people were in immediate jeopardy and peril. That has turned out not to be true. We need some answers, and I saw the ranking member of the Armed Services Committee ask the chairman for a further investigation into this matter. I heard the chairman say: I will take it under consideration. I hope that is a positive sign and not a negative sign. We need to get to the bottom of this for the protection of our country. It is too bad this is coming up in the year 2004, which happens to coincide with the Presidential election, because people are going to immediately say this is partisan politics. The fact is, this is the politics of the protection of our country, and we need some answers. I don't want to be voting on war resolutions in the future based on information that is patently false when everybody is telling me, looking me eyeball to eyeball, that it is true. I am hoping, as the Senator from North Dakota has suggested, that we have a convening of the appropriate intelligence officials in the secure room and that members of the intelligence community, as well as members of the administration, will come and explain, in addition to what Dr. Kay has explained on the public record--which is revealing enough in itself--what, in fact, happened and how we are going to correct the process and the analysis of information so that we never have this kind of miscalculation and misinformation again. Either the intelligence community's self-examination, its analysis was hugely faulty, or there were the hints at taking information and coloring it, called stacking the news and coming out with a conclusion that was wanted. I think we have to find out what happened. It is not a question of whether or not Saddam Hussein ought to be gone. Thank goodness he is gone. That probably had a very salutary effect on the United States in that part of the world, that the United States will back up its intentions with force. But when the United States makes decisions about a preemptive war, a war now that has claimed the lives of over 500 American men and women, then we have to have a much higher standard of accuracy of the information upon which we make the judgments to send America's finest on to the battlefield. I can tell you about all the soldiers from Florida who are now laid to rest. There are plenty of reasons I am raising these questions, but if for no other reason than to raise the questions for the mamas and the daddies and the spouses and the children of those soldiers. That is plenty justification enough. But the justification is much greater, and that is the justification of making sure we can protect ourselves in the future. In a war against terrorists, our defense is only going to be as good as the information we receive to stop the terrorists. We had a colossal failure of intelligence on September 11, 2 years ago. We can't afford that kind of failure again. Yet we have just found out that when we were given the reasons for going to war, that was faulty intelligence. America can't afford too many more of these, for the protection of ourselves and our loved ones. This is something of considerable concern to me personally. I know it is of considerable concern to the rest of the Senate. I hope the majority leader of this Senate, Senator Frist, is going to listen to those of us in this Chamber who say that this request has nothing to do with politics. Let's get to the bottom of what is the truth and how we make sure that information in the future is true. Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. NELSON of Florida

Mr. NELSON of Florida. Mr. President, I had the privilege of addressing the Senate yesterday on this bill. This is the bill that we are considering--some 675 pages. My statement yesterday announced that after spending the better part of the weekend trying to comprehend some of the details of this bill, I have come to the conclusion that I will vote against this legislation for a number of reasons. As has been stated by so many Senators, there is a lot that is good in this bill. Clearly, the part about reimbursement to doctors and other health care providers is very important. Interestingly, while giving enormous subsidies to PPOs and managed care to the tune of some $12 billion, they take away from oncologists and other cancer providers in this bill $11.5 billion. That is a part to which I strenuously object. For my predecessor, Senator Connie Mack, who has been at the forefront of the fight against cancer, this is one of the provisions that is causing him enormous agony. Visiting with so many of the oncologists all over the country, it is just inexplicable to them as to why there would be a $11.5 billion cut on cancer care. The truth is, it was a tradeoff. It was a tradeoff back when we originally considered the bill in the Senate to provide for rural health care. You had to get the money from somewhere. The choice was to take it from cancer care. I think that was not only a poor choice, but I think it was a tragic choice. But that is in this bill. That is one of the reasons I am against it. But there are other things that are good in this bill, and a lot of that has to do with trying to get physicians and other health care providers adequately compensated instead of cuts that were enacted some 5 to 7 years ago in the Balanced Budget Act of 1997, which really started cutting health care providers to the bone in their Medicare reimbursement. But there is a lot more in this bill that is causing me great concern. It is why I am going to vote against it. I want to share that with everybody. One of the toughest jobs that I have had in a lifetime of public service is the years that I served as elected Insurance Commissioner of the State of Florida. I inherited a mess in the aftermath of Hurricane Andrew. I had to learn something about insurance marketplaces and how in a devastated insurance market we could encourage and nourish the free market back to competition. In the aftermath of Hurricane Andrew, the insurance companies--other than the 12 that went bankrupt--were fleeing the State of Florida. Those who stayed were cancelling homeowners right and left. We had to dig in to see what would make that insurance marketplace tick, and what would encourage insurers to come back into the marketplace; at the same time, what would provide the needed commodity--namely, in this case homeowners insurance--to the consumers of Florida. Because a marketplace had been disrupted by the most costly natural disaster in the history of the country in insurance losses, a lot of it we had to learn by first impression. We were successful in doing that. It took a long time. It was very difficult. One of the things that I learned about insurance in the marketplace is when you get to health insurance, you should let the principle of insurance work for you; that is, you take the health risk and spread it over the largest possible group so that the health risk--when it comes out in costs because people get sick and they have to have health care expenditures--because it is a huge group and it is a diverse group in age and health, the per unit cost comes down. One of the things that used to frustrate me the most as the Insurance Commissioner of Florida was when the new products would be filed, they would be filed for a very small group. The insurance company would drive the cost of the premium down so that it made it very attractive for people to take that particular brand of health insurance. But over the course of time, instead of the insurance company continuing to expand that group, they would keep it stagnant. Over time, people would drop out. Over time, people would get older. Over time, people would get sicker. The group would start getting older and sicker and smaller. Since the group was defined and not expanding, what do you think the costs were going to be? The costs were going up. That meant the premium was going up in order to make that group actuarially sound in what they were charging for that insurance. People were stuck in an insurance group. They had no place else to go because they weren't employed by a big employer. They certainly couldn't go out on their own and buy a policy for one individual. The cost would be astronomical for that. They were stuck in a spiraling, upward cycle of insurance costs and insurance premiums that went to the Moon. I saw people literally cry giving testimony about how they could not afford it. I learned something from that. I learned that if you are going to have a logical way of handling health insurance, it can't be with a small group. It can't be with a segmented group. It needs to be with a large group. Beyond this particular bill, as we look ultimately to the future of what we are going to do about health care delivery and its costs in this country, in my judgment, since I would like to see it delivered by the private sector and free market competition, you are going to have to expand the groups. You are going to have to make them as large as possible so that the companies compete for that business. It is when you start to shrink that large group that you get into trouble. Senators, that is what this bill starts to do. It starts to selectively take people in Medicare, segmenting them, separating them, dissecting them, and ultimately when the healthier people in America-- in this particular case, Medicare--when the healthier people in Medicare are siphoned off, it leaves the sicker seniors to be dealt with in Medicare. And what will happen to the cost? The cost will go up and it will go up big time. The figure has been thrown out in this bill that the starting point for the premiums for the Medicare prescription drug benefit will be $35 a month per person. That is not going to happen. It will happen when it starts off in 2006, but as the group gets sicker, the costs are going to go up and the premiums--that $35 per person per month--are going to go through the roof. Why are they getting siphoned off? Look at the provision. The provision says we are going to divide up the country in regions. Say one State is a region. First of all, it says that you are going to offer the benefit in 2 ways. It will be offered with what is called a PDP, or prescription drug plan, and there is going to be the alternative of managed care, either a PPO or an HMO. What this bill provides is the incentive for the healthier seniors to go into the PPO or the HMO because this bill has a very generous subsidy--as a matter of fact, $12 billion--to be used at the discretion of the Secretary of HHS, to nourish the PPOs so they can bring their costs down, so they can make it very attractive to senior citizens to come into the PPO because they can get their health care cheaper-- indeed, all of their health care, including the Medicare fee for service. Also in this bill is a healthy subsidy for HMOs. This bill does not allow reimbursement for HMOs per patient like Medicare at 100 percent but kicks it up an additional 9 percent, 109 percent reimbursement. So the Medicare HMO then will be able to offer lower costs for services, thus enticing the senior citizen population, particularly the ones who are healthier, particularly when they use such recruiting methods as going into bowling alleys and recruiting seniors to come into the managed care operation, the PPO or the HMO. What will that do? That is going to leave the rest of the seniors to get their drug benefit from the only other available way, which is the prescription drug plan. And if their seniors are sicker, what do you think will happen to the cost? The cost is going to go up and the marketplace under this bill is starting to be fragmented, violating the principle of insurance which is, take the largest possible group, spread the health risk over the group, and it brings down the per unit cost. There is another way it is being fragmented, and that is the basic health care population in America. If another 5 or 10 years down the line we ever want to do major health care insurance reform--and it is done around employers just because we have done it that way historically--if your employer is a big employer, such as the Federal Government or General Motors, you have a big group in which to spread the health risk. But what happens if the employer has five employees or two employees or one employee? It is not an efficient way of delivering health care through an insurance system. Indeed, that provision in this bill is another way of fragmenting that population, another way of segmenting that population that ultimately, when we have to face this crisis--as surely we are going to someday--you cannot keep operating in a country this large, with 44 million people who do not have health insurance, who at the same time get health care because when they get sick they go to the most expensive place at the most expensive time--to the emergency room--when sniffles have turned into pneumonia. Sooner or later, the crisis will become apparent and we will have to deal with it, if the entire population has been so fragmented as a provision of this bill in creating health savings accounts. Now, for people who have some means of income, this is a very attractive alternative. Health savings accounts will allow someone to take dollars, without paying tax on them, and put them into a health savings account at the end of the year. Unlike in present law regarding medical savings accounts where, if the dollars are not used, they self- destruct, these dollars will accumulate. And it will not be just for medical emergencies. Those dollars can be put aside. They can go out and buy an insurance policy that has a high deductible, such as $5,000. Even if they put $5,000 into the health savings account, they have saved a lot of money because of the cost of insurance if they were getting, say, a $500 deductible policy. That money can accumulate and they can pay for other things than medical expenses, such as cosmetic surgery. So, for a good part of our country that has the financial wherewithal, that is very attractive. It is dissecting the overall insured population, and when the crisis comes, it will make it very difficult to get these large pools upon which we can spread the health risk and where private sector insurance companies can come in and bid for that particular pool. That is another reason I oppose this legislation. It violates the principle of insurance. Some talk about it as a giveaway to the HMOs and the PPOs, pushing seniors into managed care where they lose their choice of doctors. That speaks for itself. Over time, when this kicks in, in January of 2006-- that is another 2 years and 1\1/2\ months--people are going to start realizing what has happened. There is another reason I oppose this bill. That is, you cannot go out and offer the alternatives I have just explained for prescription drugs, subsidized by the Federal Government for managed care, without private employers who have drug coverage for their former employees, now retirees, without the private employer asking, why do I want to continue this costly prescription drug coverage for my retirees when, in fact, I will let these retirees go on in to the Medicare system of prescription drugs. If it were an equal prescription drug benefit, that would be OK for the senior citizen, the retiree. But the shock they are going to get is when their private employer, former employer, drops them as a retiree and they look to Medicare under this bill to give them a prescription drug benefit, and, lo and behold, they will find it is a very inadequate benefit. If they have $5,000 worth of drugs that they have to buy in a year, the senior citizen under this plan is going to pay out of his own pocket $3,600, $3,600 under this prescription drug plan for the senior citizen who has an annual prescription drug cost of $5,000. So all of these retirees who are going to be dropped are going to be quite shocked and quite unhappy and quite disappointed, when they thought they were getting a full prescription drug benefit. So in my State, for example, it is estimated by one of the very credible studies--and I have heard no one who has disputed this study-- that 2.7 million retirees will be dropped from their private drug coverage. In my State of Florida, that translates to 166,000 people. And I suspect that is going to be a very unhappy 166,000 people in the State of Florida. It is true that since this bill does cover those up to 150 percent of the poverty level, there is going to be, for that group, some increased coverage that they do not have now, but it is not going to be much. It is not going to be much because a lot of that group who would otherwise qualify because they meet the income test of being at that level of the poverty level, lo and behold, this bill now puts an asset test on them. That asset test is going to disqualify thousands of them. And if it does not, they are going to see that they are limited, under this bill, in the brands of drugs, the brand name drugs, because this bill defines their receipt of drugs in a class, and that class of drugs is yet to be determined. There are going to be some disappointed seniors. There is another reason for opposition to this bill. We talked about there not being any competition for the prescription drug plan and how--since there do not have to be two prescription drug plans competing against each other and therefore holding the cost down, holding the premium down--that $35 monthly premium is going to go up. But in this bill there is also another violation of a principle we have found in Medicare ever since Medicare was set up in 1965; and that is, the premium is universal. The farmer in Iowa who is retired is paying the same premium as the retiree in Miami Beach, even though the costs of health care in Iowa and Minnesota are much less than the cost of health care in south Florida. There is a universality of the Medicare Part B premium. That is going to be broken up, not on the Part B premium but on the Part D premium, because this bill causes the division of the country into at least 10 and some say as many as 50 regions in this country, each to be actuarially determined what is going to be the premium that will be actuarially sound with regard to that premium, with regard to the group, and with regard to the cost. So I do not think this bill is procompetition even though that is how it is being sold. The last reason I will state tonight of my reasons for opposition is one that has been mentioned many times here. Mr. President, $400 billion is lot of money. It depends on how you look at it. The Senator from Nevada, who just stood up and announced he was voting against the bill, has made a very eloquent statement about the cost being so high, $400 billion, at a time we are hemorrhaging to the tune of half a trillion dollars in deficit financing this year. But I might want to take it in another direction and say, yes, $400 billion is lots of money, but it is not being efficiently used. The reason it is not being efficiently used is that Medicare is strictly forbidden, in this bill, from negotiating with pharmaceutical companies for bulk purchases. Now, I thought we were for free market competition. I thought we were for letting the market forces determine what the price is. But this is an exact opposite of that. This is an interference in the private marketplace for it says Medicare cannot negotiate in bulk purchases a price less than the retail price. It is in here. It is in here not only on one page, it is in here on two pages. It is unlike what has been done for nearly 20 years in the Veterans' Administration, in a bill that passed this Senate on a voice vote because it was so noncontroversial that the U.S. Government would negotiate through bulk purchases for the acquisition of drugs for the Veterans' Administration. The Veterans' Administration is serving a population of about 25 million veterans. Medicare is serving a population of about 41 million Americans. If the Veterans' Administration can negotiate prices downward, why should not Medicare be able to lower the cost of the drugs to seniors? It is not logical that you would not. And it certainly is not logical when you consider we are constrained under the Budget Act that we cannot spend more than $400 billion, until we waived that today. So $400 billion, at a retail price of a drug, that on the retail market is going to cost at least twice the cost of the drug to the Veterans' Administration, which is buying in bulk--we would be able to provide so many more of the benefits of prescription drugs to seniors without their having to pay so much in a deductible and in copays; and in some cases the copay is an entire 100 percent until they get past the threshold of spending $5,000 a year for drugs. Now, I have counted noses. This thing is going to pass. It is either going to pass tonight or it is going to pass in the morning. It passed the House two nights ago, when they held the vote open for 3 hours until they twisted arms and turned the vote around. So it is going to pass. Well, it is not going to pass with my vote for the reasons I have stated, that I think are against the interests of the United States and my State. But I am going to do something about it after it passes because I have already started drafting a bill that is going to say, what is good for the Veterans' Administration ought to be good for Medicare as well, and that if the Veterans' Administration--under a law that has been in effect for two decades, that was noncontroversial when it was passed--can purchase in bulk and therefore bring the price down, so, too, ought Medicare, for the sake of our senior citizens, be able to get a more extensive prescription drug benefit than the meager one they are going to get in this bill. I will be introducing that bill. I think one of the people I am going to work with is my senior Senator, Mr. Graham, since he has announced his retirement in the last year of his service as a Senator, and the two of us will put together a comprehensive package. But that is certainly one aspect of it that we are going to be following. I thank the Senate for its attention. I yield the floor.

Mr. NELSON of Florida

Mr. NELSON of Florida. Mr. President, this week, leaders from thirty- four countries around the Western Hemisphere gathered in Miami for the Free Trade Area of the Americas (FTAA) Ministerial and Americas Business Forum for the purposes of expanding free trade within the Western Hemisphere. The negotiations at this and future Ministerial meetings will greatly impact my State of Florida. This event drew large headlines in the papers across the hemisphere as leaders converged upon Miami and anti-globalization protesters gathered outside to voice opposition. In this context, I feel it appropriate to commend Miami-Dade County, the City of Miami, and all the local and Federal law enforcement officers who helped keep the peace during a tense week of negotiations, and everyone who made it a success. But in light of these talks, I want to share my own concerns regarding the FTAA negotiations, and the path ahead. These talks did generate positive movement forward, towards greater economic integration in the hemisphere. Trade Ministers agreed to a baseline of minimum standards for a full and comprehensive agreement that takes into account differing levels of development among nations. This framework is a step forward that gives nations flexibility. A carefully negotiated Free Trade Area of the Americas could generate new economic opportunities for Florida, our country, and the entire Western Hemisphere. Yet, the FTAA poses opportunities and challenges for Florida as we work to make Miami the premier U.S. candidate city for the location of the permanent FTAA Secretariat, while at the same time protecting the viability of a key part of our way of life in Florida--the domestic citrus industry. We must be cautious about the scope of the final FTAA and consider how it affects our domestic industries. I urge U.S. negotiators to take some important concerns into account as an agreement is shaped in the months ahead. The different parties, alliances, and groups involved in the negotiations have gone back and forth on which goods and products to include in a final agreement, and the flexibility provided for in the final Miami Declaration reflects this fact. Citrus is one product that must not be included in these negotiations. I again call upon the Administration, as I have done in the past, to give citrus special consideration; given the unique nature of the citrus fruit and juice trade. The administration should state unambiguously that it will not agree to any reduction of the current tariff on imported orange juice in the context of the FTAA or any other trade negotiation, until Brazil ceases its monopolistic, anticompetitive trade practices. Let me explain why this is so important to the State of Florida. This tariff is a lifeline for Florida's citrus industry and the State's economy because it helps to promote competition--and it enables us to compete in the global marketplace. It is very clear that any reduction in the tariff would destroy Florida's citrus industry and devastate the State's economy. The citrus industry is the State's second largest, contributing over $9 billion to our economy. And the citrus industry accounts for nearly 90,000 direct and indirect jobs throughout Florida and the country. A collapse of this industry would not only cost tens of thousands of jobs, it would also cost the State and county governments of Florida up to $1 billion in lost tax revenues. This would mean less money for other vital public services, such as police and firefighters. This spring, I arranged for Andrew LaVigne, Executive Vice President and CEO of Florida Citrus Mutual to testify before the Senate Foreign Relations Committee and share these arguments, for the benefit of my colleagues in the U.S. Senate so that they could be made a permanent part of the record, because they are so strong. Orange juice consumption is concentrated chiefly in two places: the United States and the European Union. Unlike other agricultural products, production is also limited chiefly to two places: the United States and Brazil. Florida's growers provide the vast majority of U.S. citrus that is used for orange juice. Florida's citrus industry is efficient, competitive, and environmentally responsible; it is also one of only a handful of U.S. agricultural commodities that receives no federal or state subsidies. Let me say it another way: American taxpayers do not subsidize the citrus industry, unlike many other sectors that reaped benefits in last year's farm bill. Florida's citrus industry is composed of 12,000 growers, many of them small family-owned operations, in addition to the many tens of thousands of others around the state and country who contribute to this $9 billion industry. But, this is more than just an economic engine to Florida. It is an American way of life. Brazil's citrus industry, in contrast, is dominated by four large producers who form large export cartels to maximize their advantage and squeeze small producers. The industry also benefits from advantages brought by years of past subsidization and dumping, lax environmental laws, weak and largely un-enforced labor laws, and price manipulation. And, Brazilian orange juice already has access to U.S. markets. Their government's pronouncements to the contrary are counterproductive to advancing greater hemispheric economic cooperation. Brazil's citrus industry also continues to rely heavily on child labor and the low wages associated with using children. In Florida, we do not allow children to work in our orange groves. Until Brazil whole-heartedly enforces its labor laws, putting an end to child labor and paying workers a decent living wage, there will not be a level playing field for competition. Florida's citrus industry can compete with Brazil, or anyone else, as long as there is a fair playing field. WTO negotiations should deal with these problems. But in the meantime, the tariff on frozen concentrated orange juice imports acts to balance the anti-competitive practices of Brazil. It also acts to prevent the large Brazilian producers from overwhelming the U.S. market and driving Florida's 12,000 growers out of business. During the Trade Promotion Authority debate in 2001, Senator Graham and I offered an amendment that would have prevented tariffs from being reduced on commodities imported from other countries in violation of trade laws, such as Brazilian orange juice. Although this amendment was defeated, we were successful in including language that required the Administration to study and report to the Congress on the economic effects that a tariff removal would have on import-sensitive commodities like frozen concentrated orange juice and citrus. I look forward to reviewing the results of these studies as the debate progresses. Without this tariff, the Florida citrus industry could collapse, and Brazil would have a monopoly over the global market. Already, Brazil produces 53 percent of the world's orange juice and has a virtual monopoly over the European market. Removal of this tariff would not enhance free trade--it would, rather, giver Brazil a total world monopoly and make that country the world's dominant citrus and citrus juice producer and enable them to control market supply, access and prices with no competition. This would not only devastate Florida's citrus industry, it would also be bad for all consumers. Absent competition from Florida's growers, the large Brazilian cartels would have all consumers at their mercy. I have worked to bring these issues to the attention of the Administration and to ensure that one of Florida's primary industries is not traded away at the negotiating table, and I will continue to do so. In fact, I plan to travel to Brazil in the coming weeks and have asked to meet with President Lula da Silva so that I can carry the message of the Florida citrus growers: free trade can only benefit American consumers if it offers free and fair competition and is not monopolistic--so Brazil must reform its monopolistic citrus industry. It is past time for this administration to acknowledge the inequalities between the U.S. and Brazilian citrus industries, and recognizing these inequities, to treat citrus accordingly. I would like to conclude by again urging the administration not to agree to any reduction of the current tariff on imported orange juice, because if they do, an American industry and American consumers will pay a steep price. These issues are too important to the people of Florida to be ignored, and we will all be watching closely in the months ahead. I ask unanimous consent to have printed in the Record conclusions in the testimony from Andrew LaVigne, Executive Vice President and CEO of Florida Citrus Mutual, from a hearing before the House Agriculture Committee on June 18, 2003, and Squire Smith, President of Florida Citrus Mutual, before the House Agriculture Committee, Subcommittee on Livestock and Horticulture on November 5, 2003, and an Op-Ed that appeared in the Miami Herald on November 19, 2003.

Mr. NELSON of Florida

Mr. NELSON of Florida. Mr. President, here it is, about 675 pages of a bill. I have spent the better part of this past week trying to comprehend all of the nuances in this legislation, and of course a lot of that was difficult since the conference committee was still negotiating up through Thursday night, and some of the final things that are in the legislation we didn't find out until late in the game. But having spent a considerable bit of time, I believe I have a fairly comprehensive knowledge of it. I want to give my comments and conclusions as to why this legislation is not in the best interest of this country and is it not in the best interest of our seniors. Therefore, I am going to give my reasons why I am going to vote against this legislation. At the end of the day, what we need in America is a health care delivery system that is organized in a logical manner. The way we organize health insurance, as it has grown up historically around employers, if the employer is large enough, then the group of people who are insured for their medical expenses, you can spread the health risk over that large group. That brings down the per-unit price or the costs, the premiums that people pay. But all employers are not large. Indeed, in my experience for 6 years as Florida's elected insurance commissioner, what I found was that not only was it very difficult for individuals to get health insurance and pay the prohibitive costs of the premiums but there was a gaming of the system that went on by some insurance companies. By having group coverage, a group was established, a rate was set for that group. Usually the rate was a very low rate or premium in order to entice people into that group to be insured for their health care. And then, as the group got older and it got sicker, they would not expand the group, so the size of the group began to contract. Yet people in the group are getting older and sicker, and you can guess what happens to the cost of that health care; and as those costs rise, so do the premiums and those people in that group had no other choice. They could not go out and get into another group, unless they happened to join an employer who had a large one. That is the way the system in America is organized. That is not a logical system. What we ought to do is be creating the largest groups possible, the largest pools, so that you can take the health risk and spread it over that large number of people--young and old, sick and well, geographically disbursed--so that the cost of that health care is spread over the larger number and, therefore, the cost per person, the premiums, are much lower. One of the reasons I oppose this legislation is that it is the beginning of the violation of that principle of insurance, for what this legislation is doing is beginning to fragment the seniors as a group and beginning to create groups where well senior citizens will be encouraged to join, leaving the sicker senior citizens for the traditional fee-for-service Medicare and for the prescription drugs that go along with that Medicare. For example, what we have in this bill is that prescription drugs will be provided in an area. I think the country is divided into 10 areas. I heard it said earlier that it may be as many as 50. But whatever it is, the whole country is divided. In that particular area, there has to be a prescription drug plan for Medicare, as the basic underpinning of fee-for-service, and also the opportunity for managed care, either a PPO or an HMO. Now, here is what is going to happen. First of all, the PPOs and the HMOs, under this bill, are heavily subsidized by the U.S. Government. There is $12 billion in this bill that is a subsidy to PPOs, money to be released at the discretion of the Secretary of HHS. This money would be to help the PPOs, managed care, to become more competitive. And guess what. It is going to help them go out and recruit senior citizens to come into the PPOs. So, too, there is a subsidy here for HMOs. Medicare fee-for-service is reimbursed at 100 percent. In this bill, a kicker is given to HMOs of 109 percent; they are going to be reimbursed for those medical expenses. So, by this legislation, we are setting a policy that says we are going to encourage seniors to go into those managed care plans--managed care plans that, in fact, will then take away a lot of the choice for seniors to select their own doctor. What is that going to leave then? As they recruit the more well senior citizens, then Medicare, with its own prescription drug plan, is going to have all others. And guess what is going to happen to that $35 premium that has been promised. It hasn't been promised that it is going to stay the same. To the contrary, that $35 premium per month is going to start escalating. It is going to be hiked. Therefore, what is going to happen to the poor and the sick among our senior citizens? It is not going to be as it has been represented here. So I see this as a giveaway to HMOs and PPOs. I see it as pushing seniors into managed care, where they will lose their choice of doctors. That is my first objection. Of course, there is a lot in this bill that is salutary. I voted for the bill when it came through the Senate because I believed that it was a first step in what I thought was a very important policy goal--that we modernize Medicare with a prescription drug benefit. But what has been added has made it too onerous for me to support. Let me tell you about the second reason I am not going to vote for this legislation. It is widely acknowledged by several very respected studies that the private sector employers who are covering the prescription drugs for their retirees, from their private employment, are going to drop that drug coverage that is now coming from the private sector. It is estimated by several, including CBO, the Congressional Budget Office-- an arm of the Congress of the United States--that some 2.7 million seniors in this country are going to be dropped, which means they will only have the choice of getting prescription drugs under the deficient plan that comes under this bill. So they are going to be getting less. You talk about being mad. You talk about being upset. When they have a very robust plan and they could go to the pharmacy and have their former employer, under that retiree plan, pay for their drugs and suddenly they get dropped because now there is an inadequate prescription drug plan, well, in my State of Florida alone, it is going to be 166,000 people who are going to be dropped. There is going to be, indeed, some increase under the bill of those who are not covered now up to 150 percent of the poverty level of senior citizens, and I salute that. You would think that in a State such as mine, which only covers poor seniors with Medicaid, a Federal and State health care program, you would think, since our State of Florida only covers up to 88 percent of poverty level, that would be a big benefit--to go from 88 to 150 percent of poverty level. Yet, in fact, there is some help there, but it is not much because this 675 pages includes a new assets test that is going to drop a lot of those people who are not covered by Medicaid in Florida, who would be covered under the bill--they are not going to be eligible because there is now a new assets test and there is a part in this 675-page bill that will not allow them to receive all of the brands of drugs that they want because there is a limitation in here on the class of drugs, and how it is defined. Let me tell you, Mr. President, there are going to be some upset seniors who think they are in the range of 150 percent of the poverty level and below, and they are going to get covered and then they are going to suddenly realize they are not. That is going to happen a lot in my State of Florida. This is another reason I am not going to vote for the bill. A third reason is that there is no competition for the prescription drug plan. I happen to think if we want to have a comprehensive, overall health insurance plan in this country, it ought to be as wide as possible with the biggest possible pools, and there ought to be private sector competition so we get the efficiencies and economies through competition. That is not what happens in this bill. What happens in this bill is if you don't have two prescription drug plans attached to Medicare in that particular region of the country, there is no competition between the two. You can't say there is just going to be competition with the PDP and the PPO or the HMO. No, they are going to siphon off the more well seniors so if you don't have two prescription drug plans competing in price and there is only one, what do you think is going to happen to the cost? What do you think is going to happen to the monthly premium that was set initially at $35 a month? It is going to go one way. It is going to go up because the cost of those drugs is going to go up. This bill is not pro-competition. This bill is pro private plans. Another reason 35 bucks is going to go up is the fact that right now under the Medicare system, Medicare Part B, seniors pay the same premium throughout the country, but we know in some parts of the country health care costs are higher than in other parts. The costs in South Florida are higher than the costs in Iowa. But now the country is going to be divided up, in how many regions? I thought it was 10. I heard earlier in the debate it is 50. However many regions, it is going to be divided up, it is going to more reflect the cost in that region. You might say that is a good thing unless you come from a State such as mine which has a higher percentage of the population of seniors than any other State because, why? When they retire they want to come to the land of sunshine and enjoy the benefits of our environment. So because there is no competition and because the universality of the Medicare premium that has been in effect since 1965 is going to be abolished for prescription drugs, what is going to happen? The prescription drug premium is going to get hiked all the way to the Moon. A fourth reason for opposing this legislation is that $400 billion is a lot of money, indeed, and if we were getting a true comprehensive drug benefit for $400 billion, it would well be worth it because Medicare needs to be modernized. If we were doing Medicare again in 1965, would we include a prescription drug benefit? Of course we would, because of all the wonders of these miracle drugs. So $400 billion is a lot of money, but it is not being efficiently spent in this bill. Why? Aside from all of these provisions I talked about--about splitting up all of the groups and making them inefficient and siphoning off well seniors and leaving the sick seniors for the remainder--we cannot do anything in this bill about the prices of drugs. In this bill, there are two little paragraphs that do not allow Medicare to negotiate the price. I always thought the free market was about economies of scale, of being able to get better prices. That is the whole theory of Wal-Mart. In bulk purchasing, they bring down the price. This is an anti-Wal-Mart policy bill because it does not allow bulk buying, as has been stated many times before, which has been done with other agencies of Government, particularly the Veterans Administration. Mr. President, I supported the bipartisan bill we crafted in the Senate earlier this year. Unfortunately, this agreement does not adequately protect seniors' retire coverage, moves too many seniors into private plans, and fails to do anything about the escalating costs of prescription drugs. When Medicare was passed 40 years ago, we promised our seniors they would have access to medical care as they grew older. As a matter of fact, since the passage of Medicare, seniors' life expectancy has increased about 25 percent. The agreement that we will be voting on has little to do with providing a prescription drug benefit to seniors and a lot more about enticing private insurance companies to take over for the Government. The financial incentives to private companies and creative trappings inserted in the bill will do nothing less than limit seniors' choices-- mostly because of cost. Seniors may be forced into HMOs or PPOs because it may be the only affordable way to at least have access to a prescription drug benefit. Affordable, because the bill provides a $12 billion subsidy for PPOs and a reimbursement rate of 9 percent above Medicare for HMOs. Since 1999, in Florida alone over 260,000 seniors and people with disabilities were abandoned by their private Medicare HMOs. As Florida's former insurance commissioner, I recall having to beg these plans to stay in our State and continue providing care to our seniors. This conference agreement, with its various incentives--from a $12 billion slush fund, to its risk buyout, is nothing more than a give- away to insurance companies. Private health plans are in the business of making money, and have routinely blamed low profit margins as their reason to drop seniors. In comparison to Medicare, they have failed to be as effective in controlling their own costs. HMOs have managed to lure the healthiest of our seniors in order to maximize their reimbursement from the government. Currently, they receive about 16 percent more per beneficiary than is paid out through the traditional Medicare program. If these savings aren't enough to feed their profit margins, then the increased payments included in the bill will. The agreement proposes payments to HMOs of 109 percent of the fee- for-service rate. This cumulative effect results in our government paying private plans 25 percent more than what it would cost Medicare to provide that same care. How can that be considered competition? I am also concerned that the agreement before us could create premium variations across the country, and even within my own State of Florida. While we all keep hearing about this $35 monthly premium, there is nothing written in the law that limits the premium to that amount. That number is simply an average which between now and 2006 could certainly increase just as the rest of the costs of health care are. In addition, I am envisioning a scenario where seniors who do not have access to a fallback because there is one HMO or PPO plan and one prescription drug plan are left without any real choice. Then, if the drug plan, PDP, has no competition, it can raise the annual premium at will. Since there are no limits and the premium from a private drug plan could be hiked to the moon, they could essentially create a situation where a senior has no other choice--based on costs--but to join an HMO or PPO and give up their choice of doctors. Again, we see an example of this bill's failure to allow true competition to take place. Under the fallback plan included in the Senate bill there would be at least two of the same kinds of plans competing in each region. This would have created an incentive for the drug plans to keep their premiums competitive. During a careful examination of this agreement, I also became aware that the private drug plans are allowed the greatest flexibility possible. Little consideration is given to the particular needs of the beneficiary. For example, each Medicare drug plan could have its own list of covered drugs, or formulary. The only requirement is that the private drug plan covers at least one drug in each ``therapeutic class.'' The definition of a therapeutic class; however, is left up to the plan itself. A plan might choose to exclude certain high-cost drugs for financial reasons, leaving seniors who depend on those drugs without coverage for them. I am also very disappointed that this agreement prohibits Medicare from negotiating better prices from drug manufacturers. In 2001, the cost of prescription drugs rose more than 15 percent-- the seventh straight year of double-digit increases. When we consider the fact that drug prices have been increasing by double digits in recent years, it does not make any sense to let these prices go unchecked. In light of our limited resources, wouldn't our seniors have been better served if we had addressed the issue of drug costs? We even have a proven model for success in the Veterans Administration, which has used its bulk purchasing power to negotiate with the drug companies for dramatically reduced prices. Medicare could do the same, saving our seniors and the taxpayers billions of dollars. Our Nation's seniors, when unable to afford their own drugs, turned to Canada for relief. This bill continues the stalemate between supporters of importation and the FDA by including the poison pill provision requiring a certification from the Secretary of Health and Human Services before medications can be legally imported. At a Commerce Committee hearing last week on this exact issue, supporters of importation argued that in the absence of trying to control the increasing prices of drugs, importation should be at least an option to provide short-term price relief. In making my decision to oppose this legislation, I considered who would be better off versus who would be worse off. One-third of Medicare beneficiaries have no drug coverage at all, another one-third of them have access to prescription drugs through their retiree health care plans. The legislation before us will cause private employers to drop 25 percent of their retirees. In the State of Florida, that could mean over 166,000 retired seniors would lose the coverage they worked all of their lives to earn. Another group that fares worse under this agreement are those seniors who are over 65 and also eligible for Medicaid. We fought long and hard to have these duel-eligible seniors covered under Medicare. However, provisions in the agreement raise the asset tests and restrict the Medicaid program from paying the senior's copayment, and that leaves seniors worse off. Medicaid beneficiaries in Florida have access to all classes of drugs and all drugs within those classes. Should patients have trouble getting their medications, their physicians are allowed to appeal directly to Medicaid. The limited formularies allowed under the agreement for Medicare could jeopardize a senior's access to the drugs they need. Despite our best efforts in trying to minimize cuts to cancer care in this legislation, the agreement will result in an $11.5 billion cut. The ripple effect of these cuts and the reaction of private sector insurers will threaten community cancer centers' ability to continue treating patients. I reiterate my support for the providers of care to America's seniors. To our doctors, our hospitals, and nursing homes--I support the provisions in this bill that will allow them to continue to serve our seniors. For Florida's hospitals alone, this bill means almost $740 million in improved Medicare reimbursement over the next 10 years, and I am pleased about that. But these reimbursements to health care providers should not be held hostage in a 675-page bill that has many defects. In the final analysis, this agreement fails to fulfill my promise to provide comprehensive prescription drug benefit to seniors. We can do better. Regardless of whether this bill passes or fails, I intend to keep working to provide that comprehensive benefit. Our seniors deserve nothing less. I want to yield the rest of my time to one of my colleagues who needs some time. I wanted to state at least these reasons and try to give the comprehensive overview of the health insurance marketplace, where we need to go eventually to straighten out the mess so that all people can be insured and not just the ones who have it and the 42 million people in this country who don't have it. Indeed, this bill is not the first step toward that kind of health care reform. I yield to the Senator from North Carolina the remaining time that I have, which should be about 13 minutes.

Mr. NELSON of Florida

Mr. NELSON of Florida. Mr. President, I rise to oppose the energy bill. I wanted to support this bill, but the many environmentally questionable provisions and the large price tag prevent me from doing so. This bill is not an energy policy bill. It is a special interest bill. We are at war in two countries, and we receive more than 50 percent of our oil from sources beyond our shores. But this bill does not provide a way for us to break free from the security threat that poses. It lacks clear vision for how this country moves away from our dependence on foreign oil and dirty fuel and towards new, cleaner sources of energy. There are no oil saving provisions or climate change provisions. I do support the incentives for nuclear energy, wind energy, solar energy and other renewable energy sources. I also support the provisions for tax credits for the sale of hybrid and alternative fuel vehicles. The repeal of the Public Utility Holding Company Act and reform of the Public Utility Regulatory Act's mandatory purchase obligation are positive changes. But I can't get past the MTBE liability waiver, the coastal zone management changes, and the huge tax credits for the oil and gas industry. Half of the tax benefits--approximately $11.9 billion of the $22.9 billion--in tax provisions will go to the oil and gas industries, some $72 billion in authorized spending, a 50 percent increase over the price tag going into conference. And this price tag is not offset anywhere in this budget. With regard to MTBE, my State of Florida has more MTBE spills than any other State in the country--more than 20,000--and those communities in Florida may be held responsible for the cleanup of those sites if the liability waiver in this bill passes. And the ratepayer in these communities, instead of the producers of MTBE, will have to pay the price for the cleanup. In fact, a lawsuit filed by Escambia County Utilities Authority would be nullified by this bill. And at least 11 other water systems serving 629,000 people will be prevented from seeking redress from the refiners of MTBE who caused the contamination. My staff talked to the Executive Director of the Escambia County Utilities Authority, Steve Sorrell, and he told my staff that if Escambia's suit cannot go forward the County will be on the hook for an expensive cleanup and the ratepayer will have to pay the price. So if this energy bill passes, the main cause of action in Escambia County FL's suit will be taken away and the ratepayers, the citizens of Escambia County, not the producers or oil refiners, who knew this substance was a health and environmental hazard when it was introduced, will pay the price. Some have said that we shouldn't hold the producers responsible for the contamination, they just produced the MTBE. They didn't know it was a health risk or environmental hazard. But the successful lawsuits have uncovered that the refiners did know it was a health and environmental risk and why not let the courts decide whether they are at fault instead of the U.S. Congress. In a document dated April 3, 1984 an MTBE producer employee said: We have ethical and environmental concerns that are not too well defined at this point; e.g., 1. possible leakage of [storage] tanks into underground water systems of a gasoline component that is soluble in water to a much greater extent [than other chemicals], 2. potential necessity of treating water bottoms as a ``hazardous waste,'' [and] 3. delivery of a fuel to our customers that potentially provides poorer fuel economy . . . Another memo by an energy company engineer in 1984 is even more egregious. This memo says: Based on higher mobility and taste/odor characteristics of MTBE, Exxon's experiences with contaminations in Maryland and our knowledge of Shell's experience with MTBE contamination incidents is estimated to increase three times following the widespread introduction of MTBE into Exxon gasoline . . . Later the memo notes: Any increase in potential groundwater contamination will also increase risk exposure to major incidents. These memos were written more than 5 years before the Clean Air Act amendments passed that ushered in the widespread use of MTBE in gasoline. These documents were uncovered in lawsuits in California in which manufacturers and distributors of MTBE, the very entities immunized from product liability suits in this bill, were found guilty of irresponsibly manufacturing and distributing a product they knew would contaminate water. The jury found by ``clear and convincing evidence'' that these companies acted with ``malice'' by failing to warn customers of the almost certain environmental dangers of MTBE water contamination. The coastal provisions of this bill are also troubling. Under section 321, of the Oil and Gas title, the Secretary of the Interior will be given broad new authority to grant leases, easements or right-of-ways on the Outer Continental Shelf in moratorium areas. Interestingly, this provision left the Senate prohibiting these oil and gas activities in the moratorium areas, but came back allowing those projects to go forward in moratorium areas--without input from the Department of Commerce as required under the Outer Continental Shelf Lands Act. Section 325 restricts the appeals process for coastal states appealing an oil or gas exploration or development plan to the Department of Commerce. The timeline put in place by this provision is even shorter than that requested by the Bush administration. Section 330 circumvents the Coastal Zone Management Act and deems the Federal Energy Regulatory Commission record the record for a Coastal Zone Management Act appeal-- limiting a State's input into the process. For these reasons, I cannot support the bill.

Mr. NELSON of Florida

Mr. NELSON of Florida. Five minutes.

Mr. NELSON of Florida. I thank the Senator from Washington. Mr. President, I simply cannot support an Energy bill that suddenly eases the process of permitting or weakens the Coastal Zone Management Act, weakens the process of a State to object to the Federal Government doing anything having to do with oil and gas leasing off of the coast or with regard to the permitting process with regard to oil and gas pipelines. That is inimical to the interests of Florida and causes me to come down on the side that even though there are lots of meritorious parts of this bill, which I will continue to work for, at the bottom line, this is clearly not in the interest of my constituency. So I thank the Senator for yielding so that I could state my position, after a very deliberate consideration of this complicated legislation. That is the way I will vote when these issues are brought up tomorrow. I thank the Senator for yielding.

Mr. NELSON of Florida. I rise in the Senate to tell the Senate that I have concluded after studying this matter considerably that I will vote against this Energy bill, and I will vote against the motion for cloture because I have concluded that it is clearly against the interests of the State of Florida. I am going to try to point out two particular areas of the bill that violate what everyone should consider in supporting the interests of the people of the State of Florida. This is a map of Florida with stars on it in dark colors. Each one of the dark-colored stars represents a hazardous material spill and an MTBE spill. There are 30,000 hazardous material spills in our State. There are over 20,000 MTBE spills. In the dark of night, in a conference committee that was closely controlled, a provision was inserted in this conference report that has come back to us for consideration, that all liability of the oil companies would be removed forever on any of the contamination that came as a result of those MTBE spills. That simply is not right. It is not right to wipe out the ability of 18 counties and cities in Florida that are presently contemplating suit to sue for those oil spills with MTBE, nor is it right that you would wipe out Escambia County's present suit--Escambia County, up here on the map, the cradle of naval aviation, Pensacola--that you would wipe out their present suit against the oil companies because of the damage that has been done to the water supply from the MTBE leeching. There is a lot in this Energy bill that I would like to support. There is a lot in this Energy bill that I have helped put in and that I will continue to support, such as the incentives for wind energy. That is certainly desirable. There is a major Florida investor-owned utility that has wind energy in other parts of the country. I want to help encourage that renewable source of energy. But I cannot take the good parts of this bill and overlook the kinds of things such as this: wiping out any liability of oil companies for the harm they have caused to the environment. Now, there is another major part I have considerable objection to, and that is the coastal parts of this bill. Under section 321, the Secretary of the Interior will be given broad new authority to grant leases, easements, or rights-of-way on the Outer Continental Shelf in areas where there is a moratorium against oil and gas exploration. It is the ``Holy Grail'' of Florida that we do not want oil and gas drilling off of our shores, not only for environmental reasons but for an economic reason. We have a $50 billion a year tourism industry, a lot of which depends on the pristine, sugary white beaches that we have in Florida.

Mr. NELSON of Florida. If the Senator from the State of Washington would yield.

Mr. NELSON of Florida. Mr. President, may I ask the Senator for 2 additional minutes just to complete my statement?

Mr. NELSON of Florida

Mr. NELSON of Florida. Mr. President, on November 14, 2003 I was necessarily absent and unable to cast my vote on rollcall votes 450, 451, and 452. In each case, I would have voted ``nay,'' which would not have affected the outcome of the vote.

Mr. NELSON of Florida

Mr. NELSON of Florida. Mr. President, I rise to talk about the VA-HUD NASA flat-line budget. The bill has NASA funded at $15.3 billion. This is the same as the amount enacted in fiscal year 2003. As many of you may recall, I have fought to plus up the shuttle upgrades program for years. I still firmly believe that adequate supportability and safety upgrades budgets, coupled with supporting infrastructure, are needed to keep the shuttle operating safely. The Columbia Accident Investigation Board chaired by Admiral Gehman concluded that throughout the decade, the Shuttle Program has had to function within an increasingly constrained budget. Both the shuttle budget and workforce have been reduced by over 40 percent during the past decade. The White House, Congress, and NASA leadership exerted constant pressure to reduce or at least freeze operating costs. As a result, there was little margin in the budget to deal with unexpected technical problems or make shuttle improvements. Most people believe we will continue to fly the shuttle for the life of the station, but we continue to base our budgetary decisions on the long-lost premise that the shuttle will be replaced in the near term. The fact of the matter is that the shuttle must return to flight to complete the assembly of the International Space Station. Return to flight will take funds, and we don't know if NASA has enough funds to fully cover the cost of return to flight since the fiscal year 2004 supplemental was never sent to Congress and the fiscal year 2005 budget remains embargoed. We do know that NASA plans to reprogram $200 million out of station reserves and $107 million out of the Service Life Extension Program, SLEP, to cover some of the fiscal year 2004 costs. The requisite funds should not be robbed from other NASA accounts as has been practiced in the past. Perhaps it would be better to provide NASA enough money to adequately fund all the NASA initiatives without resorting to starving one account to feed another. The shuttle needs to be able to fly safely as long as this country needs it. To even consider using upgrade and infrastructure funds for return to flight is unconscionable and certainly not in the long-term best interest of our Nation's space program. It is important that we build, maintain and fly the safest vehicle possible. We cannot afford to have accountants making technical decisions instead of engineers and program managers if we want to maintain our technology edge. Reducing the NASA budget for the International Space Station program in fiscal year 2004 could force NASA to transfer skilled, knowledgeable personnel--civil service and contractor--to other programs. A lesson learned from the Columbia accident was that we must retain the technical knowledge within human space flight programs so that potential life-threatening problems can reliably be identified and correctly addressed. The science and technology payback from the ISS is proportional to the size of the crew working there. There are now two crew members onboard but the program plan calls for an increase up to seven when the shuttle is returned to flight and emergency crew return capability is onboard. That increase also requires that the ISS's life support systems be beefed up to provide greater oxygen generation and carbon dioxide removal among other capabilities. The fiscal year 2004 ISS budget request includes capability upgrades that are the upfront systems that will allow that increase in crew size. This development is programmed to be continued in fiscal year 2005 from program budget reserves. If the ISS budget is reduced in fiscal year 2004 that reduction will come from existing reserves that would have been carried forward to fiscal year 2005 and paid for the continuation of these necessary developments. A cut this year will most likely force NASA to cut back on this development and further delay crew size increase and consequently the scientific return from the ISS. Because a reduction in the ISS budget for fiscal year 2004 will likely be taken from program reserves that is like tying one arm behind the program's management. ISS is a developing human space flight vehicle, with inherent schedule and technical risks. Managing the unknowns that will occur requires appropriate flexibility in the management's budget, budget reserves. Reducing the program budget and as a consequence reducing those reserves is simply dangerous. We cannot allow this budget to be flat lined from fiscal year 2003. NASA cannot do everything it hopes to do on the cheap. The fiscal year 2004 Presidential request should be approved and in addition $300 million added to ensure human space flight achieves its objectives without jeopardizing safety and delays to completing the ISS. I urge my colleagues to join me in supporting an increase to the NASA top line.

Mr. NELSON of Florida

Mr. NELSON of Florida. Mr. President, I have said often what a great privilege it is for me to be here and to represent the State of Florida. Little did I think 3 years ago when I came into the Senate that I would be speaking to an empty Chamber at 7:30 in the morning. But, indeed, it is a privilege to be here and to offer the ideas of this Senator and the perspectives. It is pretty clear to me that when I vote for 172 judges and only 4 of 172 are rejected, I am doing my duty. It happens to be this Senator from Florida. Of those 4 who were rejected, I voted for 1 of those 4. But the notion that somehow this is not being fair for the Senate to advise and withhold consent on 4 judges out of 172 just seems to me to be something that we in the South would say is ``just beyond me.'' Mr. President, 172 judges have come in front of this Chamber. I have voted for 169. I have voted against 3 of those judges. Now why? Why did I? Well, because what I want is a judge, particularly at the level of the appellate court, but for that matter any Federal judge because they are there for a lifetime appointment, they are there beyond any kind of influences that would remove them from the bench save for skulduggery and unethical behavior, they are there to be free to exercise their judgment--in so doing that, I want a judge who is open-minded, who approaches the bench in a fairminded way. I don't want a judge who comes to the bench and his mind already made up. In the South we have a phrase for that. It is a ``know-it-all.'' I don't want a know-it-all as a judge. I want a judge who has an open mind, who is going to listen to the facts, and apply the law. That is what the security and sanctity of this judicial system is based on: Fair and equal justice for all. That means that a judge ought to have judicial temperament to open their mind and not have all the answers as they approach the bench. So for this Senator, it is pretty clear, when I vote on 172 judges, and 3 of those 172 don't meet my test, and in the will of this body, 4 of those 172 don't meet the test, it seems to me that is a fairly reasonable point of view. That is inserting the check and balance of the constitutional system that is so unique to our system of government, where a legislative branch offsets, and checks and balances the executive branch, and so, too, a judicial branch offsets and checks and balances the other two branches. I am delighted to be here with my colleague from Oregon today and to share the floor as we give some of our ideas about this all-night session. It was quite a challenge getting here. There is a real wind storm in Washington today. Fortunately, since the power went out at my residence, my stopwatch and also alarm clock wristwatch went off, and I had to stumble around in the dark with a flashlight and race over here. But I am delighted to be here and to join with my colleague from Oregon.

Mr. NELSON of Florida. Will the Senator yield?

Mr. NELSON of Florida. Mr. President, I will pick up on that theme the Senator from Oregon has mentioned. I must say this has been one of the greatest experiences, and most enjoyable, to get to know all of these Senators. I must say there is not one Senator here I do not personally like. I must also say that my degree of frustration--and usually if I am frustrated, it is with a smile because of enjoying my colleagues here so much; but my one frustration is that this place is way too partisan. And, from time to time, this place is way too ideologically extreme. When you have a country as big and as broad and as complex and as diverse as ours, it is very difficult to govern this country when it becomes highly partisan and ideologically extreme. It makes it very difficult for the people who are in the political center trying to reach out and bring people together to build consensus when there is sharp, highly charged partisanship and ideological extremism. It is very hard to build that consensus.

Mr. NELSON of Florida. On that point, we have been fortunate to have a bipartisan approach in Florida with regard to the confirmation of judges as well. My senior colleague, Senator Graham, as Governor back in 1978 to 1986, was able to get the legislature to pass a series of panels called the Judicial Nominating Commission. This would be composed of lay people and members of the bar, leaders of the community who would receive applications for a vacant judgeship, and then that committee would screen them, interview them, look at their credentials, and nominate three, and then the Governor would select. That is still law today. When Governor Graham was elected to the Senate in 1986, he started to institute a similar situation, but rather by custom instead of law, in the confirmation of nominees to the Federal bench. It has worked well, while there have been two Senators of the same party and, indeed, while Florida has had two Senators of both parties. Indeed, the judicial nominating commissions formed back in Florida nominate three for the vacancy. The Senators sit down and interview all three of those. Now we are operating under a system that we have worked out with the existing Governor of Florida that it will be six nominees for the vacancy. Senator Graham and I sit down and interview all six, and we make a recommendation to the White House if we have an objection. Otherwise, the White House then goes about and selects which one they want. It is a way of working this in a bipartisan fashion, with a bipartisan commission; and all of our judges have gotten through without controversy. The fact is exactly what the Senator from Oregon says. If you put your mind to it and you want to be bipartisan, you can have this process work, work efficiently, work effectively, and work timely in order to have good, fair, and open-minded judges.

Mr. NELSON of Florida. Mr. President, I thank the Senator from Virginia, who is one of my favorites here. I have the privilege of serving with him on a number of committees. Back to what I was saying, if we would stop this excessive partisanship--you cannot get things done with this excessive partisanship. Especially, you cannot get it done in a Senate that is basically split down the middle, 50-50. I think it is 51-49 now. So if you are going to get anything done, we ought to be Americans first, not partisans first. That is what part of all this fight is. That is what part of this all-night session has been. Do you know what. The folks out there in America--and I think all of you know this--don't like these partisan food fights. I would like the perspective of the Senator from Oregon on that.

Mr. NELSON of Florida. If the Senator will yield, I want to discuss another subject where partisanship gets in the way, and that is putting our fiscal house in order. The Senator will remember about 2\1/2\ years ago, the wonderful optimistic view that we had of the Federal budget, where we were sitting on a budget surplus in the year 2001--something in excess of $250 billion in that 1 year, with a projected surplus over the next decade that was going to allow us to pay down and almost pay off the entire national debt, and still have enough left over in order to enact a substantial tax cut, and still have enough left over to start new programs that were needed, such as the adequate funding of the bill that we ultimately passed but did not adequately fund--the No Child Left Behind Act--and modernizing Medicare with a substantial prescription drug benefit. We had the opportunity to do all of that and still be fiscally conservative and fiscally responsible in not invading the Social Security trust fund, letting that Social Security trust fund surplus pay off the national debt over the next decade. Instead, 2\1/2\ years later, we are looking in this fiscal year at a budget deficit--not a surplus but a deficit--of a half trillion dollars. That means we are spending $500 billion more than we have coming in in tax revenue. What do we do? We go out and borrow it. Who do we borrow it from? We borrow it in part from the average American citizen when we buy Treasury bonds. Do you know what surprises people? We end up borrowing it from countries such as China and Saudi Arabia. If we are going to get out of this fiscal briar patch, it is going to take bipartisanship. The excessive partisanship gets in the way, just like it has gotten in the way of having us in session all night for that side of the aisle to make their point of view, and our side of the aisle to say that we have taken up 172 judges and approved 168 of them. This country has its challenges and we have not even talked about Iraq and Afghanistan and the war on terror. But it certainly has its challenges with this fiscal mess that we are in of bleeding to the tune of deficit financing of $500 billion in this fiscal year. Again, I thank my colleague. What he represents, my colleague from Oregon, and our colleague from Louisiana, who is with us--what they represent is the bipartisanship of reaching out and trying to bring people together and build consensus. That is what we need to do when we are dealing with Iraq and Afghanistan, the budget deficit, the environment, education, prescription drug benefits, and the approval of judges.

Mr. NELSON of Florida. Yes.

Mr. NELSON of Florida. Mr. President, has the half hour expired?

Mr. NELSON of Florida. Mr. President, I thank my colleague from Oregon, and I thank the Senator from New York, who has already shared his comments. I am looking forward to the comments of the Senator from Louisiana and also the Senator from Iowa. Bottom line: What is this about? This is about fair and equal treatment for the American people and producing a Federal judiciary that will be open minded. Over two centuries ago, a group of political geniuses got together and crafted a written document called the Constitution, which would not allow power to be concentrated in the hands of any one person or any one institution but, rather, that an arrangement of sharing of power would occur. Each institution would have a check and balance against the other. You are seeing that check and balance play out now in the nomination and confirmation, and/or the advice or nonconfirmation of this body, the Senate. So it is a great privilege for me to participate in it, along with the Senator from Oregon. Mr. President, I yield the floor.

Mr. NELSON of Florida. I would love to yield to my colleague, but it is my understanding that, under the rules, we are given, in each hour, one-half hour for the Senator from Oregon and me to make a presentation, and one-half hour is given to the Senator's colleagues to make their presentation. It would be my intention for Senator Wyden and I to continue our remarks, since we only have about 12 minutes left.

Mr. NELSON of Florida. Mr. President, it is my understanding that I have the floor. I have some thoughts I want to express. Rather than have those interrupted, I prefer to just continue on.