Don Nickles

Mr. NICKLES

Mr. NICKLES. Mr. President, I ask unanimous consent to proceed as in morning business for 2 minutes.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Pennsylvania (Mr. Specter), is absent because of illness.

Mr. NICKLES

Mr. NICKLES. Mr. President, the question is really, Do we have a budget or not? This bill says the budget does not apply. Read page 181. It says, ``the amount of * * * appropriations shall not be included in the estimates required under section 251 of [the Budget Act]. In other words, all these hundreds of billions of dollars of spending are over and above the budget that we agreed to, that the President agreed to. This clearly breaks the budget. If we are going to have a budget, we should sustain it. This point of order is well made. And I urge my colleagues to support it and vote against the motion to waive the Budget Act.

Mr. NICKLES. Mr. President, how much time remains on our side?

Mr. NICKLES. Mr. President, I yield the Senator from Tennessee 1 minute.

Mr. NICKLES. I announce that the Senator from Pennsylvania (Mr. Specter) is absent because of illness.

Mr. NICKLES. If we invoke cloture, we will not have the ability for a substitute. Senator Hatch has a substitute with Senator Feinstein. It will not be offered. The Gramm amendment won't be offered and couldn't be offered. So I urge my colleagues to vote ``no'' on cloture. If we have a point of order, every dime of this bill is above the budget, the budget the President agreed to with bipartisan Members of Congress last year. Clearly, a budget point of order should be sustained. This bill is above the budget. It breaks the budget. It is a violation of the budget agreement which the President agreed to with Members of Congress. I urge my colleagues to vote ``no'' on cloture and then to sustain the budget point of order. I thank my colleagues.

Mr. NICKLES. I ask for 1 minute of the leader's time.

Mr. NICKLES. Mr. President, I urge my colleagues to vote ``no'' on the cloture vote. We have already had three cloture votes. This is going to be the fourth. This is our fourth week on this legislation. If cloture is invoked, I guess we will probably spend another 2 or 3 weeks on this legislation and not do the work of the Senate. Why should we get rid of this bill for the time being? I heard one of my colleagues say that there are no new programs in this bill. That is not correct. There are lots of new programs in this bill. We don't have a current international tobacco control awareness program that gets $350 million a year for the next 5 years, and then ``as such sums as are necessary.'' That is in this bill. We presently don't have a tobacco farmer quota payment of $1.6 billion per year that is going to make some tobacco farmers multimillionaires. That is not current law. It would be if this bill became law. We don't have a situation right now that gives advantages to one cigarette company over another one. Under this bill, some companies have an increase in price of at least $1.10. Some have zero. Some we increase the price of smokeless tobacco by 80-some cents; others, only 50-some cents. That is in this bill. There are lots of reasons to be against this bill. This bill prohibits smoking in buildings that are engaged in international traffic and international trade--far greater than any restriction on any Federal building. This bill goes way too far. If we vote cloture-- --

Mr. NICKLES. I yield the Senator from Washington 1\1/2\ minutes.

Mr. NICKLES. Mr. President, what time remains?

Mr. NICKLES. I yield to the Senator from Missouri 2 minutes.

Mr. NICKLES. How much time remains on both sides?

Mr. NICKLES. Any building.

Mr. NICKLES

Mr. NICKLES. I yield the floor.

Mr. NICKLES. Mr. President, I rise in opposition to this bill. And I take offense to some of the comments that were made by some of our colleagues on the other side of the aisle who said, that anybody who wants to kill this bill is an instrument of big tobacco. That s simply not true. I did not support this deal when the tobacco industry and the administration and attorneys general got together and made a deal. They didn't consult this Senator. I was never in favor of the deal they were in favor of that some people have tried to promote and some people have tried to push, including, this administration. So let me just make that very clear. Now, I have many reasons to oppose this bill, and I am going to enumerate these. Not one of them has anything to do with the way the tobacco industry wants this Senator to vote. And so people making allegations--I wonder if that can be turned the other way around, but I am not going to do that. I do not impugn people's motives or their integrity. I think people have the right to make decisions on whether or not legislation is good legislation or bad. I spent a little bit of time studying this legislation. And everybody is entitled to their own opinion. They can brag on the legislation; they can be critical of it. I am going to be critical of it. I have read the legislation. First, let me just comment on a comment that the President made. It was reported in the Washington Post recently, Monday June 15. This past Monday, President Clinton said his critics contend that ``this [is a] dark scheme in Washington to build some new federal bureaucracy, and it's the biggest load of hooey I ever heard in my life.'' So President Clinton thinks that those of us who are critical of this legislation, who say this is just a big bureaucracy, that that is just a big bunch of hooey--as a matter of fact, ``the biggest load of hooey I ever heard in my life.'' I told my colleagues this is one of the worst pieces of legislation I have seen in my Senate career. The only thing I can think of that was worse was the health care legislation promoted by President and Mrs. Clinton. Mr. President, this chart that was put together by the Budget Committee, showing where the money was coming from, where the money goes, on Commerce I--and that was the bill that was reported out of the Commerce Committee--shows that the President was incorrect. This is a lot of new government. There are about 30 new programs, spending hundreds of billions of dollars, all above budget, all outside the budget. So I just think the President is incorrect. And I wanted to make that comment. He is entitled to his own opinion, but I think we are entitled to look at the bill and we are entitled to look at the facts. This is Commerce II. This is the bill that the administration basically had rewritten--the bill. And this is the bill that we have on the floor, although it has been added to. And we have new mandates and new spending, and a tax cut and a drug provision. I don't show those on this chart. But this is the current bill that we have before us. There is a lot of new government in this. So the President calls its ``hooey.'' My comment is, these just happen to be the facts. That is what this bill has in it. This bill has a lot of money in it. It has a lot of spending in it. And I want to get into that because a lot of people have said, ``Well, this bill, it is really only a $65 billion bill. It only raises taxes by $65 billion.'' And this Senator, for one, has been saying, ``Wait a minute. It's a lot more than that.'' Where does this thing say in this bill, if you look at the bill and look at the language of the bill--and I would encourage my colleagues to do so, and anybody else. I had to ask unanimous consent to get the bill printed. The committee printed the Commerce I. They did not print Commerce II. This is the bill we have before us that is now printed on the Senators' desks. If they would look at the bill, maybe look at page 183 of the bill, it talks about annual payments. The bill does not say anything about 65 cents a pack; it does not say anything about $1.10 a pack. It does say consumers pay $10 billion the first year, $14 billion the second year, $15 billion the third year, $17 billion the fourth year, and $21 billion in the fifth year, without even considering look-back penalties. So if you total that, that is all $102 billion. That is what the bill says--$23.6 billion in the fifth year. And after that, those amounts are adjusted by inflation. That is on page 183 of the bill. If you put those figures in and you adjust them for inflation--it says 3 percent or inflation, whichever is greater. I just plugged in 3 percent. You do that, and you come out with $755 billion over 25 years. What is this nonsense we hear, ``Well, we think it's only $516 billion''? This is $755 billion. That is in the bill. That is what we are considering, not $516 billion. And then the look-back potential. I show $130 billion of look-back potential. I say ``potential'' because it can be assessed. No one knows exactly how much that will be. But evidently a lot of people felt it should be much more, because this chart is obsolete. My colleague from Illinois, Senator Durbin, had an amendment to increase this to $7.7 billion and then index that for inflation. As a matter of fact, if you put the new figures into the chart, this $130 billion goes to a maximum of $241 billion. So you add that to the $755 billion and you get really right at $1 trillion--$1 trillion potential tax on consumers. And I say ``tax on consumers'' advisedly, because this bill mandates that 100 percent of this money be paid for by consumers. It does not say, ``Tobacco companies, you pay this.'' Basically, it says, ``Tobacco companies, you pass this cost on. You pass every dime of this on.'' So I make the point we are talking about, President Clinton may think it is a bunch of hooey, but this is a big government bill. It has lots of new agencies and hundreds of billions of dollars of new spending. With the new look-back potential, up to $1 trillion in money transferred from consumers to government. I make those points because I think it is important that we know the facts. Some people say this is not a budget buster, this is responsible, we are raising taxes. This bill doesn't say anything about taxes. It says these funds shall be paid, and 100 percent of the funds shall be passed on to consumers. It is not clear. It is not direct. It is confusing. And it is hard to tell exactly who is taxed how much. I will give an example. If a person looked at page 186 of the bill, we find out there are exclusions for some companies. To give an example--I looked this up--Marlboro, a Philip Morris brand, would have to pay presumably a price per pack of $1.10 more; this brand, Chesterfield, by the Ligget Group, pays zero. Now, both companies presently pay 24 cents per pack. Both of them do. Under this bill, supposedly, the price per pack on this item goes up $1.10; the price on this item goes up zero. So they will have a $1.10 advantage over all other competitors. Why? Because their sale volume isn't so large? Wait a minute; is that good tax policy? They have the same excise taxes today, but we are going to give a $1.10 advantage to one company versus another company? We do that in this bill? That doesn't make sense. We did the same thing in other tobacco products. Looking at smokeless tobacco, again if a person looked at page 186, we find out some companies have a significant differential. This product, Copenhagen, is made by U.S. Tobacco Company. This product is Kodiak, made by Conwood Company. Both have a current excise tax of 2.7 cents per product. This product made by U.S. Tobacco, the new tax increase is 82.5 cents; that is a 3,056-percent increase. This product, the tax increase is 57.8 cents; that is a 2,141-percent increase. This has a 25-cent advantage under this bill. This product has a 25-cent advantage. Why should we be choosing winners and losers in this bill? Is that good tax policy? Is that good consumer policy? We will encourage some people to buy this product over another product, but in the language in this bill on page 186, it gives certain items a competitive advantage over their competitors. Is that right? Is that in this bill? Sure it is in this bill. It is on page 186. I mentioned it on the floor before, and at some point I plan on addressing it if this bill stays on the floor. So the President said it wasn't a bunch of new government and I showed the charts. There is a lot of new government, tons of new government. There are new taxes that run into almost $1 trillion over 25 years. The money is all off budget, and that bothers me. Somebody was complaining Republicans may make a budget point of order. We well should. If a person looked at page 181 of the bill, talking about the national trust fund, it says, ``The amount of such appropriations shall not be included in the estimates required under section 251 of the act,'' talking about the Budget Act. So all the appropriations that were mandated out of this trust fund shall not be included in the budget, the budget that the President signed just last year with both Houses, the House and the Senate, and I will say with bipartisan support. We finally did get a budget that was supported by Democrats and Republicans. The President said we will stay by these caps. Even at the State of the Union, we will not spend one dime, not one dime unless we don't cut taxes. We want to save Social Security. But what he does in this bill is basically ignore the budget. The budget makes no difference. All this spending, hundreds of billions of dollars, are over and above the budget. They don't count towards the cap. They don't count toward the budget. It is over and above. All the taxes are above, all the expenditures are outside the budget realm. So certainly a budget point of order lies against this bill. As a matter of fact, if we don't make a budget point of order, I think we just might as well say we don't have a budget. There is no need to have a budget. There is not a budget. Why should the conferees, and I am a conferee on the budget for this year's budget, why should we worry about a budget if we are going to pass a bill that has tax increases and expenditures larger than any tax cut that anybody else is talking about in the budget that the President signed last year or in the budget that we are talking about this year? This has a larger tax increase, larger spending increase, than either the budget that was passed last year or the one that is contemplated for this year. So why have a budget, if it will all be outside the budget as stipulated on page 181 of the bill? So my colleague who earlier said we have taken a poll and now the people by some majority support this bill--they don't know what is in this bill. If you told the people that we are giving one brand of cigarettes an advantage of at least $1.10 over another brand, would they say that is fair? Don't we have a constitutional responsibility to be fair? Or if you are giving one smokeless tobacco product a competitive advantage over another one, does that make sense? What about some of the other tax provisions--if a person looked at page 104 of the bill, it talks about the look-back assessment. The look-back penalties, which I mentioned in the earlier charts originally, were $2 billion under the settlement, $4 billion under the Commerce Committee bill, Commerce II, the last bill we had on the floor, and then we had an amendment to increase the look-backs to $7.7 billion a year and index those for inflation. Who determines whether there is a look-back penalty or assessment or tax? The Secretary of Health and Human Services. How does she determine it? She takes a poll; she does a survey. It is in this legislation. She does a survey. I am talking about Secretary Shalala, the Secretary of Health and Human Services. She does a survey, and from the survey she has the power to assess fines, penalties or taxes equal to $7.7 billion a year. That is an unbelievable transfer of authority, of taxation authority, to the Secretary of Health and Human Services. In her survey, under the legislation, the survey-using methodology required by this subsection is deemed ``conclusively to be proper, correct, and accurate for purposes of this act.'' So her survey is deemed by this act, deemed to be correct, deemed to be accurate. And she has the capability to assess fines and penalties up to $7.7 billion per year, an unbelievable power of taxation by her survey which Congress is deeming to be correct. So they can assess companies $1,000 for whoever answered the survey wrong or inappropriately according to her wishes. Unbelievable power. Then we passed an amendment, I believe it is Senator Reed's amendment, that said we will deny deductibility of advertising to tobacco companies if they don't comply with FDA advertising restrictions. That is now part of this bill. What does that mean? FDA promulgated a long list of rules which, incidentally, I will comment on in a minute. This legislation deems to be law. That is interesting. But in the amendment Senator Reed says if they don't comply with FDA advertising restrictions, then they will lose deductions of their advertising. Basically, what we have done now is turned the power to tax over to the FDA. Now, that is unconscionable for those who think the power to tax belongs to Congress, not to a bureaucrat, a bureaucrat that may or may not have an agenda. And if one thinks that all the FDA regs are accurate and make sense, one of the regs is that you can't have any tobacco sponsorship for sporting events. The Indianapolis 500 comes to mind. An automobile runs around with ``Marlboro'' painted on the side. If you had that, or the driver had ``Marlboro'' on the side, it would be a violation. They would lose deductibility of all their advertising expenses. Or even if you had a hat that said ``Marlboro'' on it, or ``Winston'' or ``Salem'' or whatever, any tobacco product, if you had a hat or T-shirt or car that had that emblem, you are violating the FDA advertising restrictions and therefore you would lose your deductibility. So we would have tax policy being set, one, by the Secretary of Health and Human Services, and another by FDA. The combination of that is probably the worst tax policy I can imagine. Unbelievable. On page 99 of the bill, we do something else dealing with FDA regulations, and Congress is a legislative body. We are supposed to legislate. If we want to ban advertising of tobacco products, we should do it. Somebody should introduce a bill to ban advertising. We didn't do that. FDA promulgated some rules restricting tobacco sales, labeling and advertising. On page 99, it talks about the rules, and it says, ``The code of Federal regulations dealing with tobacco are hereby deemed to be lawful and to have been lawfully promulgated by the secretary under Chapter 9 in Section 701 of the Food and Drug Act.'' Here is a whole list of FDA regulations. This bill deems them to be the law, makes them the law. I am bothered by that. If somebody wants to make it the law, let them try to pass a bill--we are the legislative body, not FDA--not taking a whole section of FDA regs, some of which make no sense whatsoever, some of which are not workable. Here is one example. One reg deals with checking IDs, identification on people when they purchase tobacco products. Every State in the Nation has a law, and it is against the law to sell tobacco products to teenagers, people less than 18. Some States have higher age limits. They said we need to check that, and the rule said they are going to check the identification of people up to age 27. And if a convenience store, or something, doesn't comply, they are subjected to fines and penalties, which range, for the fifth violation, up to $10,000. Wait a minute, that isn't in the bill. But the bill says they are all deemed to be lawful. So we are making it law by this one paragraph on page 99. Now, if we stay on this bill, I am going to have an amendment saying, wait a minute, should it be against the law for a convenience store not to check the identification of people up to age 27? The law is 18. You could have a combat veteran of the Persian Gulf who is 26 years old and has four kids, and somebody could be fined up to $10,000 if they don't check his ID. Obviously, he is older than 18. Yet, the FDA reg says you check their identification, and if they are less than 26 or 27 and you didn't check the ID, you are subject to fines and penalties up to $10,000. And we are codifying that; we are deeming that to be lawful. That bothers me. That is crummy legislating. That is not good legislation. We have another provision that I don't even know many of our colleagues are aware of. They had better become aware of it if, Heaven forbid, this becomes law. This bill prohibits smoking of cigarettes in almost any building in the United States. I will read you the language. It prohibits the ``smoking of cigarettes, cigars, pipes, and any other combustion of tobacco within a facility or on a facility or property within the immediate vicinity of the entrance to the facility.'' I could go on. How is ``facility'' defined? It means ``any building used for purposes that effect interstate or foreign commerce, regularly entered by 10 or more individuals at least one day per week.'' Unbelievable. Unless you have a real small building, you are going to be covered by this ban. So we are banning smoking on almost every single building--certainly every business building in the United States, or significant business building. Are people aware of that? What kind of fines and penalties will be imposed if you don't comply with that? I could go on and on. My point is, when I heard my colleague say, ``We think the public supports this bill,'' maybe a lot of the public really haven't looked at what is in this bill. There are a couple of sections I will point out just for the information of our colleagues. I heard somebody say, ``You can't be opposed to this bill now on attorney's fees,'' because we passed an amendment by one vote that had a limitation on attorney's fees. They can only make $4,000 an hour for the old cases and, for future cases, $500 an hour. Well, Mr. President, there is language in this bill that is an invitation for litigation that would not stop, that would be probably the most expensive litigation piece I have ever seen. There is a presumption. I will just read this part on page 233 of the bill. It is just a couple of paragraphs, but the paragraphs would cost consumers hundreds of billions of dollars. General Causation Presumption. In any civil action to which this title applies involving a tobacco claim, there shall be evidentiary presumption that nicotine is addictive and that the diseases identified as being caused by use of tobacco products in the Centers for Disease Control and Prevention Reducing the Health Consequences of Smoking: 25 Years of Progress: A Report of the Surgeon General [back in 1989], The Health Consequences of Smoking: Involuntary Smoking [done in 1986]; and The Health Consequences of Using Smokeless Tobacco [Health Service in 1986], are caused in whole or in part by the use of tobacco products . . . There is an evidentiary presumption that nicotine is addictive and diseases are identified as being caused by using tobacco products. In other words: Come sue. Come sue for anything. There are three books, and they touch on all kinds of diseases, including diabetes. It can have some little relationship to smoking, and we made a presumption that: tobacco is the fault; come sue. This is an invitation for litigation. Here you go, the trial lawyers will love this. They came out with a big one. They may have snuck it in, I don't know. This is a big invitation to sue. I heard Senator Domenici talking about this. I compliment him for raising it on the floor. Other people acted like they didn't know it is in the bill. It is still in the bill. So I make those comments. I will make a couple of other comments. I see my friend from Kentucky here. I have already related the inequity of some of the taxation provisions in this bill dealing with either cigarettes or other tobacco products. We have currently pending an amendment by my colleague to strike out what some people have referred to as the Lugar provision, and I expect that there will be an amendment pending to strike out the Ford provision. Both of them deal with compensation for tobacco farmers. I think both are too generous. One has a total cost, over 25 years, of $28 billion; one has a cost of $18 billion. Both would compensate tobacco farmers far in excess of the value of the land--value of the land that you could buy today on the open market, but we would pay several times the value. I think that is a mistake. I am troubled by that provision. Mr. President, I don't know if this has been entered into the Record. I have a letter from the Governors urging opposition to this bill. These are the Governors whose attorneys general originally put together the package that said: Yes, we want to make a deal; we won't sue the tobacco companies if you will give us a couple hundred billion dollars over the next 25 years--about 8 billion a year. If you give us $8 billion a year, collectively, then we will drop our class action suits. They have now looked at this bill and said: Don't pass it. It is not acceptable in its current form. I happen to agree with the Governors--maybe for different reasons-- but I don't think this bill is salvageable. I don't think we should pass it. Does that mean I am against doing something to reduce the teenage consumption and addiction of tobacco and drugs? Absolutely not. I want to do something. I have indicated that I am willing to pass a bill that would be directed, targeted, at reducing teenage consumption and addiction to tobacco. Do you have to spend hundreds of billions to do that, as we have in this legislation before us? The answer is no, absolutely not. As a matter of fact, I think what we are doing is funding an addiction of government to more government and doing very little on tobacco. If we want to do some things to reduce teenage consumption and addiction to tobacco, let's do it. We have the HHS appropriation bill. We can put in more money for NIH, for cancer research, for money to have programs to discourage drug consumption, tobacco consumption. Let's do that, increase it, and cancel some other programs. We are spending now $1.7 trillion per year. Let's move some of that around and put it into functions that would actually be targeted at our youth, to reduce their addiction and consumption of tobacco. I think that would be a giant step in the right direction. I think passing this legislation is not really targeted to kids; it is targeted more to government. The President was absolutely wrong when he said those people who oppose this bill and think it is more government, that is a bunch of hooey. I think we did something. We read the bill. This bill is a bunch of hooey. This does not deserve to be passed. I think this bill is a serious, serious mistake. If our colleagues on the other side of the aisle want to increase tobacco taxes, they can do so. This bill is, in my opinion, one of the worst pieces of legislation this Congress has considered in my legislative career. It should not pass. We should defeat this bill. We should defeat it either in the form of not agreeing to cloture--we have already had three cloture votes. We may well have one more. I hope my colleagues will not vote for cloture. I hope that a budget point of order, if that is made, will be sustained. This bill is clearly outside the budget. It says so in its language. Do we agree with the budget that we passed last year, or are we just going to ignore it on this issue? We ignored it on the urgent supplemental. We violated the budget on those. There were some emergencies. There were some floods and other emergencies required funding and we have done that for before. But to ignore the budget on these programs, all of which are in governmental entities, or creating governmental entities for new programs--for example, international tobacco control. That is $350 million a year for the first 5 years, and such sums as necessary for the future years. That is a brand new program. I don't know that we need to fund it. But if we do, let's fund it under the budget. Why have it be outside the budget? I look at a lot of these other programs. My colleagues were successful in saying, let's spend a couple billion dollars more in child care. We mandated that in this side of the equation. We have the tobacco community grants; opportunity grants. We have got a lot of new spending. I say that spending should be in the budget. It shouldn't be outside the budget. So I urge my colleagues, let's defeat this bill. Let's come back to something that is responsible, something that is within the realm of the budget agreement. Mr. President, I ask unanimous consent that a letter from of Governors' Association, as well as an article from the Washington Times on Monday, June 15 that says the tobacco bill is packed with programs and agencies be printed in the Record, as well as two charts that I referred to in my speech, one of which is the national tobacco settlement trust fund that shows the total cost of this bill could easily well reach $997 billion. That is $745 billion under the annual industry payments; maximum look-back. Maybe that would happen, part of it would happen; maybe not. There are some who would say, ``Wait a minute. You didn't take into consideration the volume adjustment.'' The bill said, if volume comes down below 20 percent, there will be some reduction in these industry payments. Maybe tobacco consumption would fall by more than 20 percent. Maybe it wouldn't. I don't know. It is hard to guess. There might be some reduction on that figure. I don't know. For cost analysis purposes, though, I note that the OMB did not figure volume adjustments down within their original proposals. The attorneys general did not in their original proposal. Since it is impossible to do, I haven't done it in mine, either. I make mention of that for the Record, and also ask to have included a chart that shows the disparity between products of companies. I absolute don't think it is right for us to have different excise taxes on cigarette products because one company sells more than another company. That doesn't make sense to me. We have that throughout this bill. That needs to be remedied. If we stay on the bill, I will have an amendment to do. So I ask unanimous consent that two charts, a letter, and newspaper articles be printed in the Record.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Pennsylvania (Mr. Specter) is absent because of illness.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Montana (Mr. Burns) and the Senator from Oklahoma (Mr. Inhofe) are absent on official business. I also announce that the Senator from Pennsylvania (Mr. Specter) is absent because of illness.

Mr. NICKLES. Mr. President, how much time is in opposition to the amendment?

Mr. NICKLES. Mr. President, I urge my colleagues to vote against this amendment. First, let me say to the proponents that if they want to have an amendment to ban advertising, or deduction of advertising, for tobacco products, they can do so. But to turn it over to the FDA, I think, may be some of the worst tax policy we have seen. This bill already has some of the worst tax policy we have seen. The look-back penalties, as I have stated a couple of times, are clearly not working. But if I read this amendment right, advertising is deductible, unless it doesn't comply with FDA regulations. What are the FDA regulations? You are in violation of FDA regulations if you have a ball cap that says ``Marlboro'' on it. If I have a staff member who went to a car race, or something, that has a ball cap that says ``Marlboro,'' they would be in violation. I don't know if a ball cap under FDA regulations would be in violation of advertising restrictions. They would lose deductibility of their advertising expenses. Again, if people want to be more direct, let's be more direct. Just say, I have an amendment to disallow all advertising expenses for tobacco products. I expect some may have that. They probably will have it on this bill. But to say you cannot have the deduction unless you comply with FDA regulations, and treating FDA regulations as sacrosanct, as if they make sense--some of them don't make sense. For example, there is an FDA regulation that says people selling tobacco must check IDs up to age 27. A lot of people aren't aware of it. But that is part of the same FDA regulation that we are talking about. I don't think that is workable. It is legal to buy cigarettes if you are over 18. But if you are 18, and they come up with a regulation that says we are going to mandate that you check identification of people up to age 27--they also have restrictions on advertising that says you can't have a T-shirt, a ball cap, or tobacco companies--you can't advertise during the races. This is auto racing time--Indianapolis 500. My friend from Indiana is here. My guess is there was a car running around the track that had ``Marlboro'' on it. Somebody probably said, ``Wait a minute. That is directed at youth.'' I don't know if it is directed at youth or not. If they did it, if they sponsored a sporting event, they would be in violation of this provision and they would lose deductibility of advertising. I just do not think we should have FDA making tax policy. I do not think we should have FDA deciding what is compliance or whether a company is allowed to take the deduction. If Senators do not want to have tobacco advertising, they want to ban it, let them introduce that on a tax bill, but let's not turn that kind of authority over to FDA. I think this bill has already granted FDA too much authority, including the authority to totally ban nicotine without prior congressional approval, which I think is a mistake, and I think the ID check up to age 27 is a mistake. I think that is FDA overreaching. I think their ban on ball caps and T-shirts, again, is overreaching. Now, I do not want them targeting teenagers either, but I think to turn over tax policy to FDA would be a serious mistake. So I urge my colleagues to vote no on this amendment.

Mr. NICKLES

Mr. NICKLES. Mr. President, I rise in support of the amendment by the Senator from Alabama and the Senator from North Carolina to try to put at least some limit or some reasonableness on legal fees in this bill. I have heard some of my colleagues say, ``Wait a minute. What about the Michael Jordans and the Bill Gates, and others?'' They are not compensated out of the public trust fund that comes from a tax, that comes from a fee, whichever you want to call it. I call it a tax that is set up by Congress. Congress is in the process of raising taxes and fees in the first 5 years of $102 billion. That is a lot of money. And over the 25-year period, you usually hear the figure of $516 billion. But it is a lot more than that. $516 billion doesn't index for inflation, and so on. We have already had charts on the floor that show it to be up to $880-some billion. That doesn't even count the amendment of Senator Durbin that was passed the other night that increased the look-back penalties from $4 billion a year to about $7.7 billion a year. So we may well have a tax package that over the next 25 years will transfer from consumers--not tobacco companies, from consumers-- maybe $900 billion; maybe closer to $1 trillion. These legal fees are coming out of this fund. This is a fund created by Congress. If this bill should become law--and I hope and pray that it doesn't, but if it does--these moneys are mandated by an act of Congress, and we have every right to say we want to make sure that the money goes to where we intend it to go. I have heard everybody say we want it to go to reduce teenage consumption of tobacco. Now we say and also consumption and addiction to drugs. I think likewise we have every right--as a matter of fact, we have an obligation--to make sure that we don't spend excessively on legal fees. We want the money to go to its stated purpose--not to be going to enhance a few trial attorneys. In some cases these trial attorneys would become not just millionaires but billionaires. Mr. President, there was an article in the Washington Times on June 7th. It talked about attorneys saying they deserve up to $92,000 an hour. This is written by Joyce Price in the Washington Times. It goes on. I will read a couple of paragraphs and insert it in the Record. It says the Orioles owner in Baltimore, Peter Angelos, who earlier this decade earned about $250 million for representing ailing factory workers exposed to asbestos, stands to receive as much as $875 million if he settles the State suit against tobacco companies to recover the cost of treating a smoking-related illness. It goes on. It talks about the Florida case. It talks about the Texas case. It talks about the total settlement of $113 billion. But the trial attorneys would receive $2.8 billion, or as much as 24.7 percent of the total received in Florida. In Texas, the total amount of settlement was $l5.3 billion in legal fees and $2.2 billion or $2.3 billion, or about 15 percent. Mr. President, those are outlandish fees. Those are fees in the neighborhood of $100,000 per hour. If those States negotiated, maybe that is one thing. But for crying out loud. We shouldn't set up a fund that is going to compensate trial attorneys all across the country to receive those kind of fees, and act like we are doing it so we can reduce teenage consumption and addiction to tobacco. That is ridiculous. Certainly it makes sense for us, if we are going to create this trust fund, if we are going to have amendments, as my friend and colleague from Massachusetts just had, an amendment which said let's spend maybe $2 billion more in child care development. I didn't support it. He won. He had the votes; congratulations to him. But we have the authority to say here is where the money is going to go. This is Congress. So he won on his amendment. I don't agree with it. I think it further confirms that this bill is a tax-and-spend bill. But on the spending side we have a right to say we are going to limit on how much money we are going to spend in administrative costs and in legal fees. I think it is one of the most important amendments that we have. I urge my colleagues to vote yes. I will tell my colleagues if they don't support this at $1,000 an hour we are going to come back with another one and maybe another one. Where is the limit going to be? Surely we are going to have a limit? I ask unanimous consent that an article from the Washington Times be printed in the Record.

Mr. NICKLES. I thank my friend.

Mr. NICKLES. I announce that the Senator from Pennsylvania (Mr. Specter) is absent because of illness.

Mr. NICKLES. Mr. President, I thank my colleague from Arizona for not moving to table just yet because I would like to make a couple of comments concerning the amendment that is pending. The amendment that is pending deals with section 452 of this bill. Section 452 deals with how the money is going to be spent, or at least how it applies to the States. It has a couple of different sections. It states: ``Restricted Funds.'' That is, 50 percent that States could spend any way they wish. That is under title (b). Under the funding for child care, under section 418 of the Social Security Act, it has some new language that was put in. I don't know what the purpose of it is, but it states that notwithstanding subsection (b)(2) of that section--we looked that up and basically it means we eliminate the means testing for this program. The program that we are dealing with in child care is supposed to be for low income, and now we find this tobacco bill coming in and saying, well, we are going to eliminate means testing. So millionaires' kids will qualify for this. That is not the purpose of the child care block grant program. And then the child care block grant program was supposed to be on a State share identical to Medicaid. In some States, that is 50-50, 50 percent Federal, 50 percent State. We put in a little change in this bill that says it is 80-20, 80 percent Federal, 20 percent State. Now, I am bothered by that. I am bothered by it for two or three different reasons. One, I have stated all along I have felt this entire bill was a tax-spend bill. We raise a lot of taxes. We are transferring about $102 billion from consumers over the first 5 years--I think over 25 years probably well in excess of $8- or $900 billion but just for the first 5 years alone, $102 billion. Half of that money we allocate and we say to the States, you are going to get your fair share, you are going to get part of it, and now we dictate how the States have to do it. But now we find out there is a little language change to say, well, we are going to allocate this new money; we are going to take child care development block grants, which right now total about $3 billion, and we are going to make it $5 billion. This is $2 billion on top of what we already have. That is a 66-percent increase per year. Then we change the eligibility and say it is not means tested. Then we change the ratio where the States don't have to put up their matching share in Medicaid. We just say the Federal Government is going to pay 4 to 1--80 percent Federal Government, 20 percent by the State. So we have a massive expansion of an entitlement program, a massive expansion of who is eligible. We make higher income people eligible. It is just another way to see, can't we funnel more money? Can't we spend more money? This is living proof this amendment is not about curbing smoking. It has nothing to do with curbing smoking--nothing, not one thing. It is not going to reduce consumption by teenagers one iota, but it will spend $50 billion. The amendment that we have before us says to the States, you will spend 50 percent, or basically $49.25 billion, over the next 25 years in child care, basically $2 billion a year--$2 billion a year for a program in which we are already spending $3 billion. So we spend $3 billion now. We increase that $2 billion per year, a 66-percent increase in spending on child care development block grants. Then we change the rules and say, well, we don't have means testing on the new money. And we won't use the old Federal match of Medicaid. We are going to come up with a new match that says, Federal Government, you have to pay four times as much as the States. I think that is a serious mistake. Mr. President, I hope that our colleagues will say, wait a minute, this is not about reducing smoking. This amendment has nothing to do with reducing smoking. It does have to do with increasing social spending. It is something that some people maybe have wanted to do. It is something we have had an increase on in the last couple of years. But I would just urge my colleagues, this is not the right way to spend this money. This is people saying, wait a minute, there is money available. Let's take it and use it for what we deem is right. It has nothing whatsoever to do with curbing teenage consumption or addiction to tobacco or drugs, and so I would urge my colleagues to vote in favor of the McCain tabling motion.