Don Nickles

Mr. NICKLES

Mr. NICKLES. Mr. President, I suggest the absence of a quorum.

Mr. NICKLES. I ask unanimous consent to proceed as if in morning business.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. NICKLES

Mr. NICKLES. Mr. President, over the last 9 days, a firestorm has erupted over President Clinton's announcement that he intends to nominate Dr. Henry W. Foster as the Surgeon General of the United States. I believe that the President erred when he chose Dr. Foster as Surgeon General, and I believe the President should withdraw his nomination. I would also recommend to Dr. Foster that he withdraw his name from consideration. Mr. President, much has been made about the fact that Dr. Foster, by his own admission, has performed abortions. President Clinton said yesterday when he was defending Dr. Foster that the only people who are fighting this nomination are people who oppose abortion. I believe the President is wrong. Mr. President, I might mention that I do oppose abortion. I do not make any qualms about that. I do believe it is the deliberate taking of a human life, and I think it is a mistake to have as our Surgeon General a person who routinely performs abortions. To be named as Surgeon General, you are named as the Nation's No. 1 public health officer. Some people say, should a person be totally disqualified because of that? I would not vote for him, but that does not mean that this body would not. Likewise, I could not help but think of the reaction of many people in this body and what they would say if the medical researcher for American Tobacco Institute was appointed as Surgeon General. Smoking, like abortion, is legal, but I expect that there would be significant opposition because that is probably, again, not the right person to have as the Surgeon General. Mr. President, my reason for speaking today and my reason for saying that the President should withdraw the nomination, is not just because Dr. Foster has performed a lot of abortions. It is because in this period of 9 days, there has been a real lack of candor from Dr. Foster. There has been a real misleading of the American people and the American Congress to the facts. I think that alone disqualifies him for this office. The office of Surgeon General has been referred to as a bully pulpit, and it is. It is an office which gives the Surgeon General the ability to educate and to lead. And it is an office that, if one is going to educate and to lead by speaking, one has to have credibility. I think Dr. Foster has lost that credibility. Mr. President, this morning's New York Times, in the lead editorial, calls on President Clinton to withdraw the Foster nomination. The editorial states: Although Dr. Foster is a highly respected obstetrician, his lack of candor about his abortion record disqualifies him from serious consideration. Misleading statements by candidates for high position cannot be condoned. The editorial concludes: President Clinton promises to fight for his nominee and Dr. Foster pledges to stay the course. But this is a fight that neither the White House nor Congress really wants over a crippled candidacy. It is time to withdraw the nomination. Mr. President, I ask unanimous consent to have the New York Times editorial printed in the Record at this point.

Mr. NICKLES. Mr. President, I do not often agree with the New York Times editorial page, but I think this editorial is correct. President Clinton should withdraw this nomination immediately because Dr. Foster has serious credibility problems. The New York Times editorial says Dr. Foster is guilty of lack of candor in making misleading statements about his abortion record. They are correct. In less than a week, he has given three different estimates on the number of abortions he has performed. Initially, he told the administration officials he had performed just one abortion. Then, last Friday, he issued a statement that said: As a private practicing physician, I believed that I performed fewer than a dozen pregnancy terminations. Mr. President, I ask unanimous consent that a statement by Dr. Henry Foster on February 3, 1995, be printed in the Record.

Mr. NICKLES. Mr. President, on Wednesday, on ABC's ``Nightline,'' Dr. Foster recanted an earlier estimate and provided a new estimate of the number of abortions he has performed. Dr. Foster said: I have worked at George W. Hubbard Hospital. At Meharry Medical College, all of my patient records and all of the operative logs from the time I went to Meharry in 1973 until tonight have revealed that I was listed as the physician of record on 39 of those cases, in 38 years of practice, in 22 years at Meharry. Dr. Foster's statement on ``Nightline'' indicates he performed a grand total of 39 abortions in 38 years of medical practice, and all of those abortions were performed since 1973. But the Associated Press today reports that Dr. Foster performed an undetermined number of abortions prior to 1973, abortions that are not included in the 39 abortions he admitted on ``Nightline'' to having performed. The article quotes Dr. Calvin Dowe, general practitioner and then a colleague of Dr. Foster at John A. Andrew Hospital in Tuskegee, AL, with William Hill, Dr. Foster's uncle, as saying Dr. Foster performed abortions in Alabama during the period from 1965 to 1973. The article states: Dowe and William Hill, Foster's uncle, said they do not know how many abortions he performed at Andrew Hospital, which closed in 1987. But both said Foster did only what was medically necessary. The article also quotes Dr. Dowe as saying: I don't see how any obstetrician has said he has never done an abortion. It's the nature of the business. Mr. President, I ask unanimous consent to have printed in the Record the article I just referred to.

Mr. NICKLES. Mr. President, Dr. Foster became dean of Meharry Medical College later in 1990. The following year, according to the June 26, 1991, edition of USA Today, two other residency programs at Meharry also lost accredition--pediatrics and surgery. So while he was dean of the medical school, they lost pediatrics and surgery accreditation. I ask unanimous consent to print the USA Today article in the Record.

Mr. NICKLES. Mr. President, in my opinion, this raises further questions concerning Dr. Foster's credibility. On ``Nightline,'' he presented himself as someone who had maintained accreditation at Meharry obstetrics residency program. He neglected to mention that he was department chairman when that accreditation was lost. In my opinion, this nomination should not go forward. Some people say, ``Let's wait until we have a hearing and get all the facts out.'' But these are statements that came from Dr. Foster himself. This statement came from Dr. Foster himself before a committee. It directly contradicts the statement he made on ''Nightline.'' The ``Nightline'' statement directly contradicts a statement that he made and gave to the press, which I inserted in the Record, that he gave a week ago. Dr. Foster's statements are totally inconsistent. They have been misleading. His statement about the accreditation of Meharry was misleading. So, Mr. President, I do reluctantly--I do not do this often--but reluctantly, I urge Dr. Foster to withdraw his name from consideration or urge the President to withdraw his name from consideration to be the next U.S. Surgeon General. Mr. President, I suggest the absence of a quorum.

Mr. NICKLES. These statements by Dr. Foster's former colleague and Dr. Foster's uncle indicate he has done more than 39 abortions in his 38-year career. Again, we are talking about credibility. They indicate that Dr. Foster misrepresented his abortion record three times in the last week, and we still do not know, despite three different estimates supplied by the nominee, how many abortions Dr. Foster has performed. Friday, November 10, 1978, at the Federal Building in Seattle, WA, before the Department of Health, Education, and Welfare, Office of the Secretary, an ethics advisory board. A list of participants included: Henry W. Foster, M.D., professor and chairman, department of obstetrics and gynecology, Meharry Medical College, Nashville, TN. Mr. President, on page 180 of this record, under Dr. Foster's name, it says: I have done a lot of amniocentesis and therapeutic abortions, probably near 700. There is a lot in this transcript, Mr. President. There is a lot in this transcript, but this one line, Dr. Foster's words, ``probably near 700.'' Initially from the White House we heard maybe the transcript was a forgery. Then we heard it probably was not this Dr. Foster, maybe it was a different Dr. Foster; maybe he was not there. I think they have recanted those statements and they said this probably is a legitimate transcript and it probably is the same person they nominated to be Surgeon General, but he did not say what the official transcript of the meeting says he said. Again, credibility. Was it 1 or was it 12 or was it 39 or was it a lot more before 1973? So we do not know how many. And, oh, yes, in his original comments he forgot that he was chief investigator of a drug, a suppository that would induce abortion that they gave to 60 people that he has written a report on, and I will include that for the Record as well. Out of the 60 pregnant women who participated in the study, 55 had their pregnancies aborted by the drug, and those abortions were not medically necessary. I think 58 of those who participated in the study were black women, ages 15 to 32; in 55 of the 60 cases, the drug successfully induced abortion; in 4 other cases, they had to go ahead and complete a surgical abortion procedure; and in one case, the mother changed her mind and carried the baby to term. There are other things in this report. I am going to include this for the Record, not the entire report but I will include about 40 pages. This transcript includes a discussion about research, trying to do research to determine whether the fetus has a disease called sickle cell anemia and whether or not they can detect that disease prenatally or find out whether the fetus is affected in time so there could be a therapeutic abortion; in other words, abort a fetus because it happens to have sickle cell anemia. Mr. President, there are millions of Americans, I think it is estimated 2 or 3 million Americans who today have sickle cell anemia, and yet in this research proposal that they are talking to HEW about, they want to determine whether the fetus has sickle cell anemia so it would be in time to find out if the mother, I guess, would like to have an abortion, a therapeutic abortion. Not very therapeutic for the fetus, I might mention. It even goes on further, and I do not even like talking about this. It talks about research on human ova fertilized in a laboratory setting. Dr. Foster is saying, ``Well, if we have spares that are not used for insemination, they could be used for research.'' It happens to be against the law right now, but he was advocating they would use fertilized ovum for research. That bothers me. This is a report, this is a transcript of a hearing. Maybe a lot of us speak at hearings and we forget we are recorded. I do not know. But these are statements. Mr. President, I would like to keep the Congressional Record very short, but this is a very controversial nominee and I think people are entitled to find out what the facts are. So I ask unanimous consent this portion of a copy of the ethics advisory board meeting dated November 10, 1978, be printed in the Record.

Mr. NICKLES. Mr. President, we have the nominee saying a week ago Friday he performed less than 12 abortions. On the ``Nightline'' show, Dr. Foster said he did 39. Now we have the AP report saying that other physicians said he did many more than that in the years prior. We have a transcript of a meeting where he said he did about 700 amniocentesis and therapeutic abortions. There are a lot of inconsistencies. Again, I say, this nominee should be withdrawn or he should withdraw himself because of these inconsistencies, because I think there has been a deliberate attempt to mislead Congress. Finally, I will say a couple of other things. Dr. Foster's credibility has been called into question, not only because of his inconsistent statements about abortion, but also because of other public statements. For example, during the same ``Nightline'' appearance, Dr. Foster said, We have a responsibility in training residents to maintain our accreditation, a very residence program for 17 years. But as today's Washington Times reports, the obstetrics residency program at Meharry Medical College lost accreditation in May 1990 when Dr. Foster was department chairman. I watched a tape of that program, and I heard him say he maintained accreditation for 17 years. He kind of forgot to say that it lost accreditation when he was department chairman. Maybe he just forgot to say that. I do not know why it lost accreditation. I have heard, but I am not even going to mention that. I am not even faulting him for that. I am just saying his record before the public is misleading because he lost accreditation in that program. As a matter of fact, that accreditation, according to this article, has not been recovered, meaning Meharry Medical College cannot place students in hospital residency programs in obstetrics. I ask unanimous consent to print the Washington Times article in the Record.

Mr. NICKLES

Mr. NICKLES. Will the Senator yield?

Mr. NICKLES. I thank the Chair. Mr. President, I wish to compliment my colleague from Montana for his remarks. They were brief, but they were right on target. I also wish to compliment Senator Hatch, Senator Craig, and Senator Simon. I very much appreciate the bipartisanship which we have exhibited in trying to pass this constitutional amendment. We have all been working for a long, long time to pass a constitutional amendment saying, ``Congress, you cannot spend any more than you take in.'' It is long overdue. Consider the remarks Thomas Jefferson made in 1798. He said, ``I wish it were possible to obtain a single amendment to our Constitution.'' He further says, ``I mean an additional article, taking from the Federal Government the power of borrowing.'' These are Thomas Jefferson's words and he was correct. Mr. President, we have a heck of a problem. We are spending a lot more money than we take in and we have been doing it for a long time. We did it for many years under Republican administrations, under Democratic administrations, and under primarily Democrat Congresses. We had a Republican Senate in the interlude. But we have seen Federal spending escalate year after year. Mr. President, I am going to put a lot of tables into the Record which represent the facts, the fact that Federal spending has been exploding. In 1960, Mr. President, the Federal Government spent less than $100 billion. In 1970, we spent less than $200 billion. In 1980, we spent $591 billion. So, we went from less than $100 billion in 1960, less than $200 billion in 1970, and less than $600 billion in 1980. By 1990, Mr. President, we spent $1.25 trillion. I am bothered, Mr. President, when the President of the United States claims in his State of the Union Message that he cut spending by $250 billion. The fact is that Federal spending has not been reduced; it has climbed every year. The only way that the President can say we have cut spending is by using the inflated baselines that only the Federal Government would every single year. In 1992, Federal spending was $1.382 trillion; in 1994 it was $1.461 trillion; in 1995 it will be $1.531 trillion. The President's budget for next year is over $1.6 trillion--And the spending continues to escalate. By the year 2000, spending exceeds $1.9 trillion. Federal spending continues to climb every year, and it has under every President and every administration. Revenues have been climbing as well, but not quite as fast. I really think we need some kind of restraint. I happen to think a constitutional amendment is the restraint we need. I wish we did not. Some of my constituents asked me recently, was it really necessary? I said it would not be necessary if we had a strong majority in both the House and the Senate that was willing to make the tough fiscal decisions that would have to be made to balance the budget. We have not seen that kind of majority. Maybe with the new Congress we will have that kind of opportunity, but history has shown that we have not had it in decades. Most States have a balanced budget requirement. Some may allow exceptions, but most States have something in their constitution that limits the amounts of money that they can spend and/or the amount of money they can borrow. So, Mr. President, I think it is vitally important we pass a balanced budget amendment. It has to be a bipartisan effort, and I hope we will have bipartisan support to make it happen. Mr. President, some people have said, ``How do you do it?'' This is the intent of Senator Daschle's amendment on the right to know. Unfortunately, Senator Daschle's amendment amends the Constitution. This is not the proper way to do what he wants to do. I happen to agree that we should put out as much information on how we will get there as possible. I would also say that 7 year estimates are just guessing. No one knows what will happen in the economy between now and then, and certainly the economy makes a lot of difference on what the outlays will be and what the revenues will be. But to put something like his amendment in the Constitution is wrong. I just hope my colleagues before they vote on this amendment will read the amendment that is pending and read section 9. It includes about 11 or 12 paragraphs. The rest of the balanced budget amendment is quite simple. The rest of the amendment, which is similar to an amendment we passed in the Senate in 1982, one which Senator Daschle himself has supported in the past, makes sense. It is logical. It would fit in the Constitution. Section 9 does not belong in the Constitution. I hope that my colleagues will not support the right to know amendment. Does that mean that Congress should abdicate its responsibility and wait until the seventh year to do anything to balance the budget? No, we should take concrete steps each year to reduce our deficit down to zero. I regret to say that President Clinton, in his latest budget submission, has not done that. I think he has raised the white flag on deficit reduction. His deficit stays at about $200 billion in the foreseeable future, and beyond the year 2000 increases rather dramatically. The President's budget touches a little bit on discretionary spending, it increases it dramatically in some areas, cuts it in defense and some other areas, and does not touch entitlements. Entitlements have been exploding. I think that is irresponsible. I think, basically, the President punted and said, ``Congress, you take over. We will wait and see how you do and we will throw rocks at it.'' I think that is irresponsible. Regardless of what the President does, we need to move toward a balanced budget. Regardless of whether or not we pass this amendment, we need to move to balance the budget. I hope we will. I hope we take concrete steps this year and each and every year to reduce the deficit, reduce the enormous debt load we have on the American people. Mr. President, we do have enormous debt load. Federal debt in 1994 is $4.6 trillion. Mr. President, per capita that is $17,848 for every man, woman, and child in the United States. That is the amount of public debt we have today. Next year, 1995, that figure is $18,800. So that figure has risen by over $1,700 for every man, woman, and child in the United States, the amount of debt load increase they have all inherited. I do not think that is acceptable. I think we have to manage something. Maybe this is not the perfect solution, but it happens to be one of the few that I think will work. We are sworn to uphold the Constitution, and we all take an oath that we will uphold the Constitution, I think we will show the courage to do so. Unless and until we have that constraint, I am afraid we will fall back to business as usual, and business as usual is passing the Daschle amendment or passing another amendment that says we will exclude Social Security or gut this amendment some way or another and not pass it, and we will continue spending more money than we take in. Why do we do that? Senators are a lot more popular if we spend money than if we take it. People do not like taxes. They like spending. Therefore, we spend more, tax less, and have big deficits. I do not think that is responsible, Mr. President. I do not think we can continue doing that. How can we balance the budget? Can we do it? CBO says we will have to cut spending by $1.2 trillion. The President's budget would cut spending by $144 billion in the next 5 years. Mr. President, we will spend over $10 trillion in the next 6 years. The President is talking about a marginal reduction of about 1 percent. Again, Federal spending under the President's program goes from $1.5 to $1.9 trillion. That is not a spending reduction. If spending goes up by a dollar, we should say spending went up, not that we reduced the rate of both and therefore it is a spending cut. Mr. President, we can balance the budget if we allow spending to increase, but spending cannot increase as fast. According to the baseline that CBO uses, spending is increasing right now about 5.26 percent. We can balance the budget keeping spending growth to 3.21 percent for the next 7 years. Then we can balance the budget. Let me repeat that: Spending can increase each and every year, by 3.26 percent.

Mr. NICKLES. Will the Senator from Illinois yield for 30 seconds?

Mr. NICKLES. Mr. President, I will not yield. I have a few more points to make, and I will be happy to yield in a moment. So, Mr. President, how do we do that? We have some programs growing astronomically. I will mention a few: Defense has actually gone down, but there are a lot of other programs that are growing very dramatically. Medicaid, for example, in the last 4 years has grown at 28, 29, 12, and 8 percent. We cannot continue that rate of growth. Earned income tax credit, a program that this President is very proud of, the last 4 years has grown at 11, 55, 18 percent, 1994 at 22 percent, 1995 at 55 percent. That is an exploding entitlement program that this President expanded. I could go on. Food stamps in the last 4 years has grown 17, 25, 21, and 11 percent. Last year, zero percent. We can see it has exploded in growth. In 1990 we spent $15 billion in food stamps; in 1994, $25 billion in food stamps. Mr. President, I ask unanimous consent that these tables be printed in the Record.

Mr. NICKLES

Mr. NICKLES. Mr. President, I am introducing legislation to provide for a 45-day layover of Federal regulations to permit Congress to review and, potentially, reject regulations before they become final. The Regulatory Oversight Act will improve the opportunity for Congress to ensure Federal agencies are properly carrying out congressional intent. All too often agencies issue regulations which go beyond the sense of reason. This act provides a 45-day period following publication of a final rule before that rule may become effective. This 45-day period will provide Congress with an opportunity to review the rule and enact, if it so chooses, a joint resolution of disapproval on a fast-track basis. Significant final rules, which the act defines as final rules that increase compliance costs on State, local, and tribal governments and the private sector of at least $100 million in any year may not take effect until at least 45 days after the rule is published. This is the same threshold in the unfunded mandates bill. Under current law, most rules already are delayed by 30 days pending the filing of an appeal. The delay of 45 days is provided in this act to avoid economic uncertainties and harm from these very large and burdensome rules during the congressional review period. health or safety, or other emergencies, criminal law enforcement, or matters of national security, could be exempted by Executive order from the postponement of the effective date provided in the bill. However, a joint resolution of disapproval would still be eligible for fast-track consideration. Although a joint resolution may be introduced by any Member of Congress, the fast-track process for floor consideration of the joint resolution of disapproval is only available under two conditions: First, if the authorizing committee reports out the resolution; or second, if the majority leader of either House of Congress discharges the committee. The joint resolution, if passed by both Houses, would be subject to a Presidential veto and, in turn, a possible veto override. In reality, perhaps only a few regulations will be rejected by this process. But by providing a mechanism to hold Federal agencies accountable before it is too late, the Regulatory Oversight Act makes an important contribution to the critical regulatory reform effort. At this time I would like to ask unanimous consent that a detailed summary and the text of the Regulatory Oversight Act to be printed in the Record.

Mr. NICKLES

Mr. NICKLES. The Senator is correct again.

Mr. NICKLES. Mr. President, just looking at the language on page 35 of the bill, that is really where we are amending the section, that section 202, that is the one which defines the call for reports. Basically it says the report shall be issued if you have regulatory impact of in excess of $100 million or the public sector in any one year. I would think that would be any one calendar year. Regulatory agencies would be analyzing the cost of their changes, and they would have an annual cost. They may do an annual cost over several years. My guess would be that would be in any one particular calendar year. That is just my reading. We did not amend that language. We just included private sector in our amendment.

Mr. NICKLES. If the Senator will let me respond, again, I think you are right. The reference is to the legislation. My guess is that the regulatory agencies would determine the fiscal impact. I would think they would do it not on fiscal year but on calendar year--I may be incorrect--and that if the regulatory impact exceeded $100 million, as adjusted for inflation in subsequent years, then they would have to identify the costs. Again, I do not see that as a big burden. If you are going to have a regulatory impact on the public sector in excess of $100 million, they should know it and identify it. If they are going to have a regulatory impact on the private sector in excess of $100 million, for subsequent years--my colleague mentioned 5 years, and I do not know what regulatory agencies--we do 5-year budgeting, although not very well. But I do not know that when they issue those regulatory statements, they automatically cover 5 years. I am not sure.

Mr. NICKLES. The Senator is correct.

Mr. NICKLES. Mr. President, I thank my friends from Idaho and Ohio, as well as Senators Domenici and Shelby. I appreciate their cooperation.

Mr. NICKLES. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

Mr. NICKLES. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. NICKLES. Mr. President, first, I wish to compliment the leaders of this legislation, Senator Kempthorne and Senator Glenn, for their patience and for their diligence in pursuing a piece of legislation which I think is very much needed and is a very good piece of legislation. They have taken giant steps toward eliminating unfunded mandates on public entities. This legislation says if we pass legislation, we should know how much it costs on public entities, and if we are going to mandate something on a public entity that if we do not provide the funding that a point of order can be raised to stop that mandate. I think that is a good step. We should know what it costs and, frankly, if we are not going to provide the funding, we should have some capability to stop it, and this legislation has done that and I compliment the authors. The legislation also says that if we have legislation pending that has a [[Page S1182]] negative or has an impact on the economy of over $200 million on the private sector, that CBO should score it; CBO should tell us what that impact is before it becomes final. I think that is good. If we are going to pass legislation, if we are going to make laws, we should know what its impact is on the economy before it is too late. Maybe the impact is positive, maybe it is negative, but we should know what it is. I think that makes us a lot more accountable. Hopefully, it will make us better legislators. So I think that is a very good provision. The legislation also says that regulatory agencies, if they are going to implement regulations that would have an impact on the public sector of over $100 million, they should at least identify what that cost is. So if you have the EPA or OSHA or if you have any other regulatory agency make a regulation that has a negative impact or a positive impact on the public sector--State, city governments--we should know what that cost is if it exceeds $100 million. The amendment that Senator Domenici and myself and Senator Shelby offered, and in which others have an interest, would go a step further and says if the regulatory agencies make a regulation that has a negative impact on the private sector of over $100 million, we should know what that cost is, too. In other words, the legislation does a great job in identifying costs and unfunded mandates from the legislators, from Congress, and it does a good job from the regulatory side in at least identifying the costs-- not prohibiting it but at least identifying the costs from the regulatory side--as it impacts the public sector, but it is silent right now as far as the regulatory impact on the private sector. That is what our amendment would do. It would say--and it does not prohibit the regulatory agency from implementing it, it says they would have to identify the cost. I think it is a good amendment. It is one with which I hope my colleagues can concur. I thank my friend and colleague, Senator Domenici, for his leadership because actually we have been working on this now for a couple of years. This is supported very, very strongly by all the business sector, all the private sector. I think it is an amendment that should receive unanimous support. Mr. KEMPTHORNE addressed the Chair.

Mr. NICKLES

Mr. NICKLES. Mr. President, I move to lay that motion on the table. The motion to lay on the table was agreed to. committee amendment on page 33

Mr. NICKLES

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