Don Nickles

Mr. NICKLES

Mr. NICKLES. Mr. President, I want to speak today on the Women's Health Research and Prevention Amendments of 1998 introduced by my colleagues Senator Frist and Majority Leader Lott. This bill would amend the Public Health Service Act to revise and extend certain programs with respect to women's health research and prevention activities at the National Institutes of Health and the Centers for Disease Control and Prevention. Education and Research are the key to providing the best health care for women and for that matter, all Americans. The Women's Health Research and Prevention Amendments promote precisely that. Just two examples are the extension of NIH research programs for basic and clinical research and education efforts with respect to cancer, breast cancer, and ovarian and related cancer; and the extension of the CDC National Breast and Cervical Cancer Early Detection Program. These are the kinds of programs that will improve women's health. I am pleased to be a cosponsor of the Women's Health bill because I believe that research is the best way for Congress to respond to the concern over women's health issues and health issues generally. I make this point, Mr. President, because I have been disappointed that Congress has recently put on lab coats and begun practicing medicine. We have gotten into the dangerous habit of legislating clinical procedures which are not based in science or research but rather driven by social opinion and special interests. You only have to look back to the end of the 104th Congress to illustrate my point. A majority of Congress supported an effort last year to mandate that all insurance plans cover 48-hour maternity stays in hospitals. However, serval months following the passage of that legislation an article appeared in the Journal of the American Medical Association stating that the ``content does not solve the most important problems regarding the need for early postpartum/postnatal services. The legislation may give the public a false sense of security. It may call into question the reasonableness of relying on legislative mechanisms to micro manage clinical practice.'' In other words, Congress made a nice, laudable attempt. We said we are going to mandate 48 hours, but it has had no appreciable improvement on the quality of health care. It appears that our so- called victory in passing 48 hours may have in fact done more harm than good in helping women and newborns. This experience, and others like it, should have taught us what not to do. It should have taught us that before we endeavor to decide what is the best therapy, procedure, or treatment for any one disease, let us look for a minute at what we are doing. What are the unintended consequences of federal mandates on health insurance companies regarding treatments and coverage of services? Let's take breast cancer as another example. Various bills have been introduced in the last few months that mandate a length of stay for mastectomies or require coverage of an inpatient stay for women undergoing breast cancer surgery for an unspecified length of time, to be determined by the physician. Were Congress to legislate in favor of one form of treatment over another, we are sending the message that one treatment is preferable to the other. Treatments are constantly changing. Health care needs to be flexible and should not lock doctors in to a specific approach. Shouldn't we allow medical research to decide the best course of action? If the federal government mandates a specific treatment, length of stay or procedure, that then becomes the standard. In addition, employing mandates in the place of valid research runs the risk of discouraging innovative treatments. For example, recent improvements in anesthesiology are a result of patient appeals to cut down on nausea and vomiting after breast surgery as well as a desire to recover at home. Longer mandated stays could discourage doctors and patients from developing the best possible plan for recovery. Patients may choose to stay in the hospital for an extended period of time out of fear or lack of knowledge and risk infection. Patients may have the false idea that longer hospital stays equal the best possible treatment when, in fact, recent research indicates that is not necessarily the case. According to a November 6, 1996, article in The Wall Street Journal, The Johns Hopkins Breast Center in Baltimore, which has gradually eliminated inpatient stays for some women undergoing certain types of mastectomies, has found that outpatient mastectomies are associated with lower infection rates and high levels of satisfaction among women. We have the responsibility to arm patients with the kind of sound research and education this legislation provides, not prescriptive mandates from Dr. Congress. Lillie Shockeney, R.N. the Education and Outreach Director at the Johns Hopkins Hospital Breast Center and a breast cancer survivor, summed up best in a Finance Committee hearing on November 5, 1997. ``. . . I am concerned that it [S. 249, The Women's Health and Cancer Rights Act of 1997] doesn't solve the real medical dilemma that women battling breast cancer are faced with today. We need to be striving to improve patient care for patients undergoing breast cancer surgery rather than unknowingly promote keeping it at status quo. We need to be promoting the development of a comprehensive patient education program and have teams of health care professionals dedicated to striving to improve the care and treatment provided to women with breast cancer.'' Mr. President, I want to congratulate Senator Frist and Senator Lott for bringing this issue before us in such a responsible and proactive bill. These programs go a long way to serve women. I thank the chair and encourage my colleagues to support this common sense legislation.

Mr. NICKLES

Mr. NICKLES. Mr. President, I want to speak today on the Women's Health Research and Prevention Amendments of 1998 introduced by my colleagues Senator Frist and Majority Leader Lott. This bill would amend the Public Health Service Act to revise and extend certain programs with respect to women's health research and prevention activities at the National Institutes of Health and the Centers for Disease Control and Prevention. Education and Research are the key to providing the best health care for women and for that matter, all Americans. The Women's Health Research and Prevention Amendments promote precisely that. Just two examples are the extension of NIH research programs for basic and clinical research and education efforts with respect to cancer, breast cancer, and ovarian and related cancer; and the extension of the CDC National Breast and Cervical Cancer Early Detection Program. These are the kinds of programs that will improve women's health. I am pleased to be a cosponsor of the Women's Health bill because I believe that research is the best way for Congress to respond to the concern over women's health issues and health issues generally. I make this point, Mr. President, because I have been disappointed that Congress has recently put on lab coats and begun practicing medicine. We have gotten into the dangerous habit of legislating clinical procedures which are not based in science or research but rather driven by social opinion and special interests. You only have to look back to the end of the 104th Congress to illustrate my point. A majority of Congress supported an effort last year to mandate that all insurance plans cover 48-hour maternity stays in hospitals. However, serval months following the passage of that legislation an article appeared in the Journal of the American Medical Association stating that the ``content does not solve the most important problems regarding the need for early postpartum/postnatal services. The legislation may give the public a false sense of security. It may call into question the reasonableness of relying on legislative mechanisms to micro manage clinical practice.'' In other words, Congress made a nice, laudable attempt. We said we are going to mandate 48 hours, but it has had no appreciable improvement on the quality of health care. It appears that our so- called victory in passing 48 hours may have in fact done more harm than good in helping women and newborns. This experience, and others like it, should have taught us what not to do. It should have taught us that before we endeavor to decide what is the best therapy, procedure, or treatment for any one disease, let us look for a minute at what we are doing. What are the unintended consequences of federal mandates on health insurance companies regarding treatments and coverage of services? Let's take breast cancer as another example. Various bills have been introduced in the last few months that mandate a length of stay for mastectomies or require coverage of an inpatient stay for women undergoing breast cancer surgery for an unspecified length of time, to be determined by the physician. Were Congress to legislate in favor of one form of treatment over another, we are sending the message that one treatment is preferable to the other. Treatments are constantly changing. Health care needs to be flexible and should not lock doctors in to a specific approach. Shouldn't we allow medical research to decide the best course of action? If the federal government mandates a specific treatment, length of stay or procedure, that then becomes the standard. In addition, employing mandates in the place of valid research runs the risk of discouraging innovative treatments. For example, recent improvements in anesthesiology are a result of patient appeals to cut down on nausea and vomiting after breast surgery as well as a desire to recover at home. Longer mandated stays could discourage doctors and patients from developing the best possible plan for recovery. Patients may choose to stay in the hospital for an extended period of time out of fear or lack of knowledge and risk infection. Patients may have the false idea that longer hospital stays equal the best possible treatment when, in fact, recent research indicates that is not necessarily the case. According to a November 6, 1996, article in The Wall Street Journal, The Johns Hopkins Breast Center in Baltimore, which has gradually eliminated inpatient stays for some women undergoing certain types of mastectomies, has found that outpatient mastectomies are associated with lower infection rates and high levels of satisfaction among women. We have the responsibility to arm patients with the kind of sound research and education this legislation provides, not prescriptive mandates from Dr. Congress. Lillie Shockeney, R.N. the Education and Outreach Director at the Johns Hopkins Hospital Breast Center and a breast cancer survivor, summed up best in a Finance Committee hearing on November 5, 1997. ``. . . I am concerned that it [S. 249, The Women's Health and Cancer Rights Act of 1997] doesn't solve the real medical dilemma that women battling breast cancer are faced with today. We need to be striving to improve patient care for patients undergoing breast cancer surgery rather than unknowingly promote keeping it at status quo. We need to be promoting the development of a comprehensive patient education program and have teams of health care professionals dedicated to striving to improve the care and treatment provided to women with breast cancer.'' Mr. President, I want to congratulate Senator Frist and Senator Lott for bringing this issue before us in such a responsible and proactive bill. These programs go a long way to serve women. I thank the chair and encourage my colleagues to support this common sense legislation.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Vermont (Mr. Bennett), the Senator from Indiana (Mr. Coats), the Senator from North Carolina (Mr. Helms), and the Senator from Texas (Mrs. Hutchison) are necessarily absent.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Kansas (Mr. Roberts) and the Senator from Vermont (Mr. Jeffords) are necessarily absent.

Mr. NICKLES. I understand. Mr. President, one of the reasons why I rise in opposition to the amendment is, the penalty is too hard. I care just as much about the child that Senator Lautenberg alluded to as anybody else. I care just as much about wanting to eliminate drunk driving as anybody in this Chamber. The penalty under this bill is too harsh. And 10 percent of the highway funds is--looking at any State--the State of Texas is $1 billion over 6 years. That is a pretty big penalty. The penalty in my State of Oklahoma is $200 million. That is a pretty big penalty. The reason why I was asking or inquiring about is it amendable is that maybe we should change the penalty from 5 percent and 10 percent to half a percent and 1 percent. You are still talking about real money that would be a real incentive, but 10 percent is too high. In other words, we want to encourage States. I mention the Commerce Committee amendment has an incentive program. It is not a lot. I think we found out from staff--I did not know when I made my earlier comments--$25 million, not much of a carrot, a little bit of a carrot. So we encourage States to do it. Maybe that should be enhanced a little bit. But I look at the draconian penalties in this thing. This thing is really a dagger at the highway program to take 10 percent of the funds. In the State of Michigan you are talking about $477 million. That is a lot of money. I mean, so the penalties, in my opinion, are too high. The reason why I was inquiring about a second-degree amendment is maybe we should change the penalty and make it 1 percent or 2 percent instead of 10 percent. I think it is too much of a gun at the head of the States and saying, ``You have to do this or you're going to lose hundreds of millions of dollars.'' The State of Texas would lose $1 billion over 6 years. The State of California over $1 billion. For the State of California it would be $1.3 billion over a 6-year period of time. That is a lot of money. So I understand the desire that some people want to Federalize alcohol-content crimes. That, I believe, should be left in the State's jurisdiction. I kind of wonder, if you have States that are not complying--maybe the States are going to change their law but do not really enforce it. Are we going to have the Federal Government come in and say, ``Wait a minute. Now you're going to have to monitor the amount of enforcement''? We cannot have the State of Rhode Island say, well, they are going to change the law but not really enforce it until you get over the .1. I do not know that that would happen, but I question the wisdom of Federalizing blood alcohol content. It has not been a Federal crime. It has not been a Federal incidence. Now we are saying the Federal Government is telling the States, you have to do this or you will lose hundreds of millions of dollars--in some States billions of dollars. I think it is overkill. I think it is too punitive. I think we should consider--and maybe we will not do it now; I know the bill has a little ways to go; it still has the conference--but if this provision is going to be in, I think we should reduce the penalties. I think it is far too harsh. It is too much of a dictate, too much of a mandate, too much trampling on, I believe, of the Federal Government saying, ``Before you get your money back, you must do the following: Before you get your highway money back, we're going to put an additional string on it, an additional penalty, up to 10 percent, which is hundreds of millions of dollars.'' I think it goes too far. So, Mr. President, one other comment. My colleagues alluded to the fact that in 1984 we did something comparable, and we had a national drinking age of 21. Now, it might surprise some of my colleagues on the other side. I supported that. And the reason is, I live very close to the border in Oklahoma. And Oklahoma had a 21; Kansas had an 18. And we had people running back and forth across the State line to take advantage of that situation. Not a very safe situation. So I supported it. I saw some differences in that provision, although the penalty was still very high. It was too high then, in my opinion. This, I think, is a little bit different. Now we are Federalizing blood alcohol content, and I seriously doubt the wisdom of doing that. And we are putting far too heavy of a burden on the States for noncompliance. Again, for those of us that read the Constitution and say all of the rights and powers are reserved to States and the people, I think some of our colleagues and proponents, who have very good intentions, in the bill are saying, there is a problem and, therefore, we have to have a Federal solution. We are going to use the heavy hand of the Federal Government and withhold funds that come from the States, come from the people, and say, you cannot have that money back unless you do as we determine what is proper. I think that is a mistake. Mr. President, I yield the floor.

Mr. NICKLES. Is it subject to amendment prior to a motion to table?

Mr. NICKLES. I understand. Is the amendment amendable?

Mr. NICKLES. Mr. President, parliamentary inquiry. Is the situation such that we are going to vote either up or down on the amendment or a motion to table the amendment?

Mr. NICKLES. Mr. President, regretfully I rise in opposition to this amendment. I say regretfully because if I were in the State Senate of Oklahoma, I would vote in favor of this amendment. Presently, there is no Federal standard or Federal law for blood alcohol level--none. So we have an effort now to federalize a national problem. I don't think we should do that. I led the effort years ago that would allow the States to set speed limits. I thought the States should set the speed limits, not the Federal Government. I didn't say that I thought every State should increase their speed limits. I thought States should set the speed limit. What about the alcohol level? Again, if I were a State legislator, I would support the lower level. Fifteen States have this level--.08. Maybe it should be lower. Let the States make that decision. I hate to federalize problems, and I hate to tell the States that if they don't do such and such we are going to withhold 10 percent of their money, or 5 percent of their money the first few years and 10 percent thereafter. Whose money is it? Is that Federal money? No. That money is paid for by our constituents, by our consumers, and by our people who are on the road. They pay that money. It comes to Washington, DC, and now we start putting strings on it. We basically tell the States if you do not pass a law that we have determined is best--and I don't know anything about blood alcohol limits. I have heard three beers, I have heard four beers. I don't know. I have not done the homework. I will take their word for it. But really, should we be dictating or mandating that on the States? I don't think so. And tell the States if they don't pass such and such, we are going to withhold 5 percent of their funds. We are talking about millions and millions--hundreds of millions--of dollars. In a few years, it will be 10 percent. So it is a real heavy penalty if they don't subscribe to our Federal dictate. I just disagree with that. That money came from the States. It came from individuals. This is not Federal money. For us to put on these strings, I think is a mistake. I am very sympathetic to the goal of the authors of the amendment, and I compliment them for trying to say we want to reduce drunken drivers on the streets. I want to do the same thing. I just do not agree with their tactics. The Commerce Committee amendment has some incentives to encourage States to lower levels, and if the States lower those levels, they can get more money. In other words, a little bit of a carrot. This is a heavy stick. As a matter of fact, this is more than a heavy stick. This is a dagger. This says you have to do it. I think we should encourage it. Again, I go back to the Constitution. Sometimes we ignore the Constitution. But the 10th amendment to the Constitution says: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Time and time again we come to this body and we find a problem. And drunk driving is a real serious problem. But we want to have a Federal solution: The Federal Government knows best. I think the framers of the Constitution were right when they said we should reserve those powers to the States and to the people, and encourage the States--maybe even give them a little bonus--if they make some moves that we think would be positive. But to federalize it and now, for the first time in history, have a blood alcohol content which has always been the prerogative of the States, in my opinion, is wrong. I can count the votes. My guess is that the proponents probably have the votes. But I think, again, we are trampling on States' rights. We are also trampling on this idea or encouraging this idea that if there is a problem, we need a Federal solution, and we will not give back your money. I resented that when I was a State legislator. I resented the fact that when we sent our highway moneys to Washington, DC, from our State, we only got about 80 cents back. That bothered me. We would only get about 80 cents on the dollar back. Then, not only that, when we got the 80 cents back, we got all the strings attached: You have to have the Federal highway speed limit; you have to have all of these other Federal requirements; you have to have the Davis-Bacon standard. You have to pass all of these rules. By the time we complied with those rules, that dollar would only buy about 60 some cents' worth of road. It wasn't a very good deal for our State. So I would like to not put more punitive actions on the States if they don't comply with what we think--Government knows best. Again, I want to compliment the authors. But I think this is an intrusion into States and I urge my colleagues to vote no on the amendment. Mr. DURBIN addressed the Chair.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Colorado (Mr. Allard) is necessarily absent.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Utah (Mr. Bennett), the Senator from New York (Mr. D'Amato), the Senator from North Carolina (Mr. Faircloth), the Senator from North Carolina (Mr. Helms), the Senator from Oklahoma (Mr. Inhofe), the Senator from Alaska (Mr. Murkowski), the Senator from Oklahoma (Mr. Nickles), the Senator from Alabama (Mr. Shelby), the Senator from Maine (Ms. Snowe), and the Senator from Virginia (Mr. Warner), are necessarily absent.

Mr. NICKLES

Mr. NICKLES. Mr. President, recent Congressional oversight of the Internal Revenue Service has revealed an agency which has virtually limitless power to enforce the tax code. One aspect of this power is the ability of the IRS to use its summons authority to force taxpayers to turn over books, papers, records, or other data in the course of an audit. Recently, the IRS has started to use its administrative summons power to gain access to the source code for computer software products. Source code for software is a human-readable form of computer language written by software programmers, and it contains all the ``tricks of the trade'' which a programmer uses to ultimately make the software product do its job. After a programmer writes the source code, it is ``compiled'' into machine-readable form called executable code or object code. If the software is being sold or otherwise distributed to customers, the executable code is copied onto diskettes or CD-ROM's for the customers' use. The IRS has used its summons power to obtain computer software source code in several different audit situations. The IRS has sought the source code for the software used to produce the tax return from the vendor of the software. The IRS has sought the source code for a software product in connection with a Section 482 transfer pricing audit with respect to a license for the software product to a foreign subsidiary, and the IRS has summoned the source code for software developed by a computer service company in the course of an audit of the firm's research and experimentation credit. The IRS has summoned the executable code of taxpayer's tax preparation software in order to run ``what-if'' scenarios based on the taxpayer's records during an audit. The primary problem with complying with these summons is that, in each instance the IRS would need to hire an outside consultant in order to make any meaningful use of the source code. Such outside consultants likely would be competitors or potential competitors of the software company. A skilled computer programmer can discern the software company's trade secrets from an examination of the source code, whereas trade secrets cannot readily be discerned from an examination of the executable code. Further, problems can also arise when the IRS issues a summons to a computer software company in connection with an audit of one of their customers. This requires the software publisher to look through its own, not the taxpayer's, voluminous records for the relevant versions of the programs in question. This can place an undue burden on the software publisher by requiring their key technical personnel to be diverted from their regular work to help with the tax audit of a customer. Finally, if the IRS is allowed to use a taxpayer's tax preparation software and records to run ``what-if'' scenarios during an audit, the taxpayer will be forced to justify a tax return they did not file. In several of these situations, Mr. President, the owner of the computer software source code has objected to the summons in order to protect their trade secrets. Unfortunately, because the IRS summons authority is so broad, the courts have been constrained to side with the IRS in most cases, leaving computer software companies with inadequate protection for their trade secrets. Perhaps a better way to explain the issue, Mr. President, is with the following analogy. Imagine that during an audit of the Coca-Cola Company, the IRS issues a summons for the secret recipe for Coke. Even though the IRS can see the Coke, taste it, and read the ingredients on the side of the can, they still insist on examining the secret recipe. Now, imagine further than the IRS admits that since they employ no one with expertise in this area, they will have to contract with experts from Pepsi to examine Coke's secret recipe. This is the dilemma facing the computer software industry. For these reasons, Mr. President, I am introducing the Software Trade Secrets Protection Act. This legislation is similar to a bill introduced in the House of Representatives by Congressman Sam Johnson, and the section 344 of H.R. 2676, the House-passed IRS reform bill. The Software Trade Secrets Protection Act provides a general prohibition on the IRS using summons authority to obtain computer software source code. The bill then sets out three exceptions to the general prohibition: (1) cases where the Secretary can demonstrate need, (2) criminal investigations, and (3) internally developed software where competitive issues are not implicated. In the first exception, the Secretary has the burden of showing that the need for the source code outweighs the burdens placed on the summoned person and the danger that its trade secrets might be exposed. The bill further provides a series of protections for both source code and executable code if it is eventually examined by the IRS, including provisions intended to prevent the IRS from using a taxpayer's software and data to run ``what-if'' scenarios during an audit. Mr. President, the U.S. software industry leads the world in the development of innovative products and cutting-edge technology. They are one of the fastest growing and most competitive industries in the nation, and their products are unique and ofttimes require special consideration. I believe Congressional hearings have shown what the IRS can and will do if its power is unrestrained. The Software Trade Secrets Protection Act creates good, common-sense restrictions on that power. I look forward to working with my colleagues on the Senate Finance Committee to include this legislation in IRS reform legislation this year. Mr. President, I ask unanimous consent that additional material be printed in the Record.

Mr. NICKLES

Mr. NICKLES. Mr. President, recent Congressional oversight of the Internal Revenue Service has revealed an agency which has virtually limitless power to enforce the tax code. One aspect of this power is the ability of the IRS to use its summons authority to force taxpayers to turn over books, papers, records, or other data in the course of an audit. Recently, the IRS has started to use its administrative summons power to gain access to the source code for computer software products. Source code for software is a human-readable form of computer language written by software programmers, and it contains all the ``tricks of the trade'' which a programmer uses to ultimately make the software product do its job. After a programmer writes the source code, it is ``compiled'' into machine-readable form called executable code or object code. If the software is being sold or otherwise distributed to customers, the executable code is copied onto diskettes or CD-ROM's for the customers' use. The IRS has used its summons power to obtain computer software source code in several different audit situations. The IRS has sought the source code for the software used to produce the tax return from the vendor of the software. The IRS has sought the source code for a software product in connection with a Section 482 transfer pricing audit with respect to a license for the software product to a foreign subsidiary, and the IRS has summoned the source code for software developed by a computer service company in the course of an audit of the firm's research and experimentation credit. The IRS has summoned the executable code of taxpayer's tax preparation software in order to run ``what-if'' scenarios based on the taxpayer's records during an audit. The primary problem with complying with these summons is that, in each instance the IRS would need to hire an outside consultant in order to make any meaningful use of the source code. Such outside consultants likely would be competitors or potential competitors of the software company. A skilled computer programmer can discern the software company's trade secrets from an examination of the source code, whereas trade secrets cannot readily be discerned from an examination of the executable code. Further, problems can also arise when the IRS issues a summons to a computer software company in connection with an audit of one of their customers. This requires the software publisher to look through its own, not the taxpayer's, voluminous records for the relevant versions of the programs in question. This can place an undue burden on the software publisher by requiring their key technical personnel to be diverted from their regular work to help with the tax audit of a customer. Finally, if the IRS is allowed to use a taxpayer's tax preparation software and records to run ``what-if'' scenarios during an audit, the taxpayer will be forced to justify a tax return they did not file. In several of these situations, Mr. President, the owner of the computer software source code has objected to the summons in order to protect their trade secrets. Unfortunately, because the IRS summons authority is so broad, the courts have been constrained to side with the IRS in most cases, leaving computer software companies with inadequate protection for their trade secrets. Perhaps a better way to explain the issue, Mr. President, is with the following analogy. Imagine that during an audit of the Coca-Cola Company, the IRS issues a summons for the secret recipe for Coke. Even though the IRS can see the Coke, taste it, and read the ingredients on the side of the can, they still insist on examining the secret recipe. Now, imagine further than the IRS admits that since they employ no one with expertise in this area, they will have to contract with experts from Pepsi to examine Coke's secret recipe. This is the dilemma facing the computer software industry. For these reasons, Mr. President, I am introducing the Software Trade Secrets Protection Act. This legislation is similar to a bill introduced in the House of Representatives by Congressman Sam Johnson, and the section 344 of H.R. 2676, the House-passed IRS reform bill. The Software Trade Secrets Protection Act provides a general prohibition on the IRS using summons authority to obtain computer software source code. The bill then sets out three exceptions to the general prohibition: (1) cases where the Secretary can demonstrate need, (2) criminal investigations, and (3) internally developed software where competitive issues are not implicated. In the first exception, the Secretary has the burden of showing that the need for the source code outweighs the burdens placed on the summoned person and the danger that its trade secrets might be exposed. The bill further provides a series of protections for both source code and executable code if it is eventually examined by the IRS, including provisions intended to prevent the IRS from using a taxpayer's software and data to run ``what-if'' scenarios during an audit. Mr. President, the U.S. software industry leads the world in the development of innovative products and cutting-edge technology. They are one of the fastest growing and most competitive industries in the nation, and their products are unique and ofttimes require special consideration. I believe Congressional hearings have shown what the IRS can and will do if its power is unrestrained. The Software Trade Secrets Protection Act creates good, common-sense restrictions on that power. I look forward to working with my colleagues on the Senate Finance Committee to include this legislation in IRS reform legislation this year. Mr. President, I ask unanimous consent that additional material be printed in the Record.

Mr. NICKLES

Mr. NICKLES. I move to lay that motion on the table. The motion to lay on the table was agreed to. Mr. LOTT addressed the Chair.

Mr. NICKLES

Mr. NICKLES. Mr. President, as I mentioned earlier, we are going to have two votes at 11 o'clock on campaign finance. One will be on the so-called McCain-Feingold amendment, as amended by the Snowe amendment yesterday, and the other one will be on the underlying bill that is called the Paycheck Protection Act. That is my bill. Maybe I misnamed the bill. Maybe I should have called it voluntary campaign contributions. I am going to speak on that just for a moment. Mr. President, we are talking about campaign reform. I see there are charts on the floor--money is exploding, we need to ban soft money, we need to have more regulations of campaigns. I will tell my colleagues, I am willing to support campaign reforms, and maybe we can come up with different things we might be able to agree on, but I think a fundamental principle should be agreed upon at the outset, and that principle is this: No American should be compelled to contribute to a campaign against their will. No American. It is a fundamental principle. We want to encourage people to contribute to campaigns, we want to encourage people to participate in the election process, but no one should be compelled to give. No one should have money taken out of their paycheck every month--against their will--to fund candidates who they don't agree with or to fund a philosophy that they are opposed to. Unfortunately, that happens today, and it happens today to the tune of hundreds of millions of dollars. Some of my colleagues have irritated me and almost impugned the integrity of Senators--in violation of the rules of the Senate that, incidentally, go all the way back to Thomas Jefferson. They said the purpose of this bill is a killer bill because anybody who supports that bill wants to kill campaign reform. I am the author of that bill, and I take very strong exception to that statement. Granted, the New York Times said it, but the New York Times doesn't know this Senator. I am the author of that bill, and I sponsored this bill because a union member came to a town meeting in Owasso, OK, raised his hand and said, ``I don't like my money being taken from me every month and being used for political purposes of which I totally disagree. I want to have a voice, I want to have a vote, and if they ask me, I would say no.'' I told that person at that town meeting that I was going to work to make sure that his campaign contributions would be voluntary, and that is the purpose of this bill. It was not designed to kill McCain- Feingold. It was not designed to kill campaign reform. I have stated time and time again, I am willing to try and work out a decent campaign reform bill, but it must be premised on voluntary contributions. That is fundamental. It is a basic American freedom, no one should be compelled or coerced to contribute to a campaign against their will. No one. No one should be compelled to contribute to a campaign, period. It should be against the law. All we say in our bill is that all campaign contributions must be voluntary. Before money is taken out of a person's paycheck, he or she has to say yes. If they say no, it means no. After all, it is their money. It is not the union's money or somebody else's money; it is the individual's money. Unfortunately, that is the situation today for millions of Americans. We are talking about hundreds of millions of dollars. There is a movement growing out in the States, and there is going to be a vote on an initiative in California to protect workers paychecks and ensure all contributions are voluntary. It is also happening in many other States. It should happen all across the country. Frankly, we should do it on the Federal level, because we regulate Federal elections; we protect the freedoms of all Americans. This is supposed to be the body that protects the United States Constitution. How in the world did we even allow a system to start where someone can be compelled to contribute to a political campaign or cause against their will? That is wrong, we ought to fix it, and the way to fix it is to support the underlying bill. I say vote against the McCain-Feingold amendment. Why? Because McCain-Feingold did not say in addition to the underlying bill they want to add the following. It said strike the voluntary contribution language, strike that language, and replace it with McCain-Feingold. McCain-Feingold eliminates soft money. Soft money is at least done voluntarily. They want to end soft money contributions but they want to continue to have forced campaign contributions from union members. The language we drafted in this bill said it would be voluntary for employees of banks, it would be voluntary for employees of corporations, it would be voluntary for all employees--all employees. McCain-Feingold doesn't say, ``Well, we'll take that language and we'll add to it.'' No, it says strike that language. McCain-Feingold is the killer. It says, ``We don't want voluntary contributions but we will try and micromanage campaigns and what people can say in elections.'' Some of those things in McCain-Feingold are pretty debatable on constitutional grounds. The Senator from Kentucky has done a good job in handling that debate. I want to say that all campaign contributions should be voluntary. This is not an anti-union member provision. There is nothing further from the truth. This is a proworker bill. This allows every single member of a union to say yes or no to campaign contributions. It gives them a voice. There are millions of union members who get up every day and work hard, pay their taxes and union dues, and are rewarded with a gag order over how those dues--their wages--are spent on politics. That is not right. If you go to a union hall and ask a bunch of union members, ``Hey, do you think you should have the choice to be able to say whether or not your money goes for campaign contributions or not?'' they will say, ``Yes, I want that right.'' Let's give them that right. That is not anti-union, it is prounion worker. Unfortunately, some people say, ``Oh, no, that's wrong; that's a killer bill; that is going to stop campaign reform.'' Why? Why is that a killer bill? Because organized labor bosses don't like it? Since when do they have a veto over this body? Since when do organized labor bosses say, ``Wait a minute, we don't think campaign contributions should be voluntary. So if you adopt the Nickles-Lott bill for paycheck protection--voluntary campaign contributions--we don't have a bill.'' Why? Because President Clinton says he will veto it? Why? Because a few leaders in organized labor don't like it? Why? Because organized labor bosses put in hundreds of millions of dollars in campaigns for the Democratic Party? Do they have a blank check veto over this body, over this Congress? Why, I should hope not. I would hope that one group cannot just say, ``Well, we don't like that bill. Therefore, if you add to that bill, no deal.'' And that is basically what is happening. I strongly disagree with that position. I strongly believe that all Americans should have the right to contribute to campaigns; no one should be compelled against their will to contribute to political causes and campaigns. So, Mr. President, at 11 o'clock, we are going to vote on McCain- Feingold, which is a substitute amendment, which strikes the underlying voluntary campaign contribution language. I hope that we will defeat McCain-Feingold. Then I hope that we will pass--regardless of what happens to McCain-Feingold, the underlying bill, the Paycheck Protection Act, the voluntary contributions act. I hope that my colleagues, regardless of what happens on McCain- Feingold, will vote for voluntary campaign contributions for all Americans. That is what the second vote is about. I hope that we will vote for it and we can get cloture. I yield the floor. Several Senators addressed the Chair.

Mr. NICKLES

Mr. NICKLES. Mr. President, I join my colleagues and friends from North Carolina to not only congratulate the guest Chaplain but also his son, who is an outstanding leader in the House of Representatives.

Mr. NICKLES

Mr. NICKLES. I yield the floor.

Mr. NICKLES. Mr. President, I ask unanimous consent that Senators have until 11 a.m. in order to file second-degree amendments as under section 22.

Mr. NICKLES

Mr. NICKLES. Mr. President, this morning there will be 1 hour for morning business to be followed by two consecutive cloture votes. The first cloture vote will be on the McCain-Feingold amendment and will begin at approximately 11 a.m., to be followed by a cloture vote on the underlying bill, S. 1663. Following those two votes, Members can anticipate a period for morning business for Senators to make statements and introduce legislation. It is hoped later this afternoon that the Senate will be able to begin consideration of the ISTEA legislation, the highway bill. Subsequently, additional rollcall votes are possible this afternoon. As a reminder to all Members, there will be two back-to-back rollcall votes at approximately 11 a.m. this morning.

Mr. NICKLES

Mr. NICKLES. Mr. President, first, I compliment our guest Chaplain for a beautiful prayer, a wonderful way to start the day. I hope this body will have its Chamber flooded with the light of our Lord. So, thank you very much for a great opening.

Mr. NICKLES

Mr. NICKLES. Mr. President, I want to make some statements dealing with health care. There has been a lot of discussion on health care and improving the quality of health care. Some of our colleagues have introduced legislation dealing with the quality of health care. I think that is important. But I think it is also very important that we actually improve quality, not improve the number of regulations. Today, Mr. President, Americans enjoy the highest quality of health care in the world. In 1993, President Clinton proposed a plan that would have devastated health care quality. It would have limited the amount of health care that Americans could receive by limiting the amount of money, whether private or public, that could be spent on health care services. It would require that everyone have the same one-size-fits-all package of health insurance benefits. And it would have enrolled everyone in managed care plans. Had President Clinton had his way, Americans would now be trapped in a health care system with the efficiency of the post office and the compassion of the IRS at Pentagon prices. The Republicans led the fight against President Clinton's health care plan because we believe Americans deserve the best. We believed it then and we believe it today. Now President Clinton wants to lead an assault on private managed care plans. The man who wanted to put everyone in an HMO now wants the Government to wage war on HMOs. That is a pretty dramatic change. But one thing has not changed: President Clinton still wants Government-run health care. As he said to the Service Employees International Union less than 5 months ago regarding his rejected universal health care program: If what I tried before won't work, maybe we can do it another way. That's what we've tried to do, a step at a time, until we eventually finish this. President Clinton is now attempting to impose on you his newest attempt at Government-run health care and masking his efforts with the name ``quality.'' Mr. President, Republicans want only the highest quality health care. But I have not seen anything to convince me that bigger Government, more regulations, and expanded bureaucratic control is the means to higher quality. Look at just one example of Government-controlled health care: The Medicare system. I am a member of the Finance Committee, the tax- writing committee of the Senate. We have been looking at the IRS and its treatment of taxpayers. There are 12,000 pages that deal with tax policy. I might mention, that is about 10 times the size of the Bible and, unlike the Bible, has no good news. Well, there are 12,000 pages dealing with tax policies. That is a lot. But, Mr. President, do you know how many pages govern Medicare? Forty-five thousand, about four times as much as we have on tax policy. That comes from Dr. Robert Waller, the Mayo Clinic, Health Care Leadership Council. Forty-five thousand pages, yet the system is archaic, inefficient, and on the path of bankruptcy despite astronomical tax increases. We know many people have believed they were denied coverage that their plans were supposed to cover. We recognize that some individuals fear that their health care plans will not give them access to specialists when they need them. We know that some Americans think their health care plans care more about cost than they do about quality. These are real fears of unacceptable conditions. We must do better. I think we can do better. But the way to do better is not by politicizing health care quality or entrusting Government bureaucrats with policing health insurers. The way to do better is to emphasize what makes our system the best in the world--employers who insist their employees have access to the best plans, doctors and hospitals who aspire to excellence, and informed consumers who will not settle for anything less than the best. Quality health care cannot be managed and directed from Washington, DC. Unfortunately, Mr. President, in the rush to respond to both real and perceived problems in managed care, members of both parties have introduced comprehensive proposals which potentially threaten--not enhance--the quality of health in our health care system. Some of my colleagues may ask how I can make such a statement. You only have to look back to the end of the 104th Congress to illustrate my point. A majority of Congress supported an effort last year to mandate that all insurance plans cover 48-hour maternity stays in hospitals. Many of my colleagues on both sides of the aisle felt that it was socially unacceptable to discharge newborns and mothers from the hospital after only 24 hours and crafted legislation largely around social opinion. Many Members felt great about voting for something positive for women and children. However, several months following the passage of that legislation an article appeared in the Journal of the American Medical Association. And here is what the clinical researchers and physicians had to say about what Congress accomplished. While the spirit of the current legislation may be laudable, its content does not solve the most important problems regarding the need for early postpartum/postnatal services. The legislation may give the public a false sense of security. It may call into question the reasonableness of relying on legislative mechanisms to micromanage clinical practice. Good clinical judgment, based on careful consideration of available evidence, suggests that the difference between a postpartum stay of 24 hours and a stay of 48 hours is unlikely to be a critical determinant of newborn or maternal health outcomes. In other words, Congress made a nice, laudable attempt. We said we are going to mandate 48 hours, but it has had no appreciable improvement on the quality of health care. It appears that our so-called victory in passing 48 hours may have in fact done more harm than good in helping women and newborns. This experience, and others like it, should have taught us what not to do. So what should our guiding principles be? I believe that there are three. Whatever the proper role for Government in the health care debate, we must assure that it does not increase health insurance premiums, reduce the number of people who have health insurance coverage, or create massive new bureaucracies that will harm health care quality. Why are these things important? Well, let us take a look at cost. We have a bill pending in Congress--the Patients Access to Responsible Care Act--and that is a pretty nice title. It is one of many that attempts to address health care by expanding Government control. But a recent study concluded that provisions in that bill alone would raise premiums by an average of 23 percent. That was done last year, 1997, by Milliman and Roberts. Let us take a look at what that means. To the average family, that is an increase of about $1,220 per year. That is over $100 per month. That is real money. And I think a lot of families cannot afford that. Cost is a very real issue. We do not want health care costs and prices to rise. We already know from the Congressional Budget Office that without any additional regulations at all, the growth in private health care premiums will be about 5.5 percent in 1998. That is up from 3.8 percent in 1997. So why in the world would we want to do anything that would accelerate the increase? I do not think we should. No. 2, we do not want to do anything that will drive people from health insurance. For a long time we have heard people beat up employers for not offering health care to their employees. But what are the facts? Well, someone looked into it and now we know that more employers than ever are offering health insurance. The problem is that employees are choosing not to take advantage of it because of cost. That came out from a study in 1997 by Cooper and Schone. A separate study concludes that every 1 percent increase in private health insurance premiums results in 400,000 additional uninsured Americans. That was from a 1997 Lewin study. So, 400,000 additional uninsured Americans every time health insurance premiums increase 1 percent in real terms. Now, wait a minute. If the PARCA bill--the Patient Access to Responsible Care Act--is estimated to increase costs by 23 percent, and every one of those percentage points equals 400,000 additional uninsured Americans, my calculations work that out to over 9 million Americans would lose their health insurance. Mr. President, we do not want to do that. That may not be sound science, but the potential for such an outcome would be a disaster. It is too big of a gamble, in my opinion. Higher prices and more uninsured Americans does not sound like better health care quality to me. So let us not do that. Thirdly, and finally, we want to make sure that the very best entity is monitoring the health care industry. And what are the options? Many in Congress seem to think the answer is Government, so let us talk about Government overseeing health care. I can think of a few examples of the government's bad track record. We have the Indian health care in New Mexico and Oklahoma. There is an Indian hospital in Oklahoma right now that provides, I am going to say, pathetic service. And it happens to be bankrupt. We have had this problem, in addition to Medicaid and veterans hospitals and on and on and on. I mention that Government facilities, 100 percent Government-run facilities, are not the solution. It is probably some of the poorest quality of health care, not the best quality of health care. We want to improve quality, not reduce quality. Some of the Nation's leading health care facilities today are expressing their concerns about Government oversight. I am thinking of the Mayo Clinic, Baylor Health Care System, and the Cleveland Clinic. They are all raising their voices in opposition to more Federal regulation of health care quality. I would like to share with my colleagues a few of their comments. I will ask unanimous consent that their letters be printed in the Record following my statement. Baylor Health Care System--I will just read a couple of the paragraphs. It says: There has been an enormous commitment on the part of Baylor Health Care System and providers throughout the country to evaluate and put in place the processes for continuous quality improvement. We believe it must be done at this level. Providers of care are in the unique position, based on their personal commitment to the well-being of the individual patient, to drive quality improvement initiatives. Nothing could stifle innovation quicker than external mandatory standards. * * * * * We strongly believe that the private sector is heavily committed and working very diligently on continuous quality improvement and that this will bring about the best outcome for the patients and communities we serve. The Cleveland Clinic--one paragraph says: Second, we are already subject to extensive federal, state and private regulations through oversight by private payors and accrediting bodies. Adding yet another layer of regulation will only further complicate matters, add administrative costs to our organization, and in all likelihood have little or no effect on the actual quality of care provided. Dr. Bob Waller of the Mayo Clinic has stated: Quality is a continuous process that must be woven into the fabric of how we think, act and feel. Government regulation places a stake in the ground that freezes in place a quality standard that may become obsolete very quickly. The Government simply cannot react quickly to the changing quality environment. The goal of quality is to continuously improve patient care--not to achieve some defined regulatory standard. On January 28, several organizations--including the Joint Commission on Accreditation of Health Care Organizations, the National Committee for Quality Insurance and the American Medical Association--sent a letter to the President and Republican leadership stating their concern and opposition to the Federal Government preempting the private sector and creating new Federal agencies and entities. Specifically, they said quality would: * * * become hamstrung by political considerations, with the practical effect of retarding innovation and advance in the field of accreditation and performance measurement. In our experience, the private sector is more capable of keeping pace with the rapid changes in health care delivery and medical practice that affect quality of care considerations. Therefore, we cannot support proposals that might have the unintended effect of undermining marketplace incentives for rigorous accreditation programs and robust performance measures. Mr. President, I don't think the Government is the best caretaker of health care quality. I'm much more inclined to trust the independent organizations like the Joint Commission on Accreditation of Health Care Organizations and the National Committee for Quality Insurance. Because the Government alternatively leaves oversight to the folks at the Department of Labor and the Health Care Finance Administration--who, I might mention, took 10 years to implement a 1987 law establishing new nursing home standards; who have not bothered to change the fire safety standards for hospitals since 1985; and--in a most egregious instance-- who are running end-stage renal disease facilities under Medicare using 1976 health and safety standards. I think the answer is plain. We will not and we must not create massive new bureaucracies that will harm health care quality. We have a real challenge ahead. We have to figure out how we can best address the very real complaints and concerns of the American people while not rushing to pass legislation that will exacerbate the problems or create new problems altogether. To that end, our majority leader has instructed me to take a hard, honest look at issues that affect health care quality. At his instruction, I have put together a health care quality task force to examine the problems in our current system. Senators Roth, Chafee, Coats, Collins, Frist, Santorum, Hagel and myself will be working together to find real answers to hard questions. I know some of my colleagues have introduced legislation and they have very good intentions. We want to work with those colleagues, but again we want to make sure that we don't pass legislation that increases health care costs, we want to make sure we don't pass legislation that will put millions of people into the uninsured category for the first time. That would be a real mistake, and we don't want to pass legislation that will increase bureaucracy and reduce quality health care. Mr. President, we have a big challenge: We will ask what the real- life impact of proposals like PARCA and President Clinton's Consumer Bill of Rights has on cost and on coverage. What will it mean to quality? We will ask whether Americans, given the choice, would rather have cutting edge institutions like Johns Hopkins setting trends in health care quality or the folks at the Department of Labor, or the Health Care Finance Administration. We will ask whom Americans should trust to monitor health care quality. Should the Federal Government do it or independent organizations who have been studying the issue and setting the pace for many years? It is incumbent upon us as elected leaders to address these questions fairly, honestly, openly, and with an eye toward what is best for the health of a nation and not what is politically expedient. Our objective at the very minimum is to do this: Ensure that Congress in its haste to do good does not cause an increase in the cost of health insurance, that we do not pass legislation that will unintentionally force individuals to give up their coverage, and we want to protect consumer quality by ensuring that the best possible caretakers are monitoring the quality of your health care, and not bureaucrats at the Department of Labor or at HCFA. Mr. President, I want to make something very clear. This Republican Congress will not hijack the quality of our Nation's health care for political gain. We will, however, thoroughly and thoughtfully debate this issue and ensure that Americans continue to enjoy the highest quality health care in the world. I ask unanimous consent the letters previously mentioned be printed in the Record, in addition to a letter that is signed by the American Medical Accreditation Program, the Joint Commission on Accreditation of Health Care Organizations, and the National Committee for Quality Insurance.

Mr. NICKLES

Mr. NICKLES. Mr. President, thank you very much.

Mr. NICKLES

Mr. NICKLES. Mr. President, this morning the Senate will be in a lengthy period of morning business through the hour of 2 p.m. for a number of Senators to speak. Following morning business, the Senate may proceed to any legislative or executive business cleared for action. Therefore, votes are possible during today's session of the Senate. As always, announcement will be made as soon as any rollcall votes are scheduled. As previously stated by the majority leader, there will be no rollcall votes during Friday's session of the Senate. I thank all Senators for their attention.

Mr. NICKLES

Mr. NICKLES. Mr. President, the Senate pro tempore, thank you very much.

Mr. NICKLES

Mr. NICKLES. Mr. President, I want to thank our Chaplain again for a beautiful opening prayer and excellent way to start a day which I believe is going to be a beautiful day.