Jack Reed

Mr. REED

Mr. REED. That is an accurate description of the situation but, again, the imprecision was whether the store is operating, not who is operating it. The individual is not able to operate because he lost his license.

Mr. REED. Mr. President, I recognize there are different legal interpretations. I recognize also the Senator from Idaho has introduced an interpretation of the Congressional Research Service. I have one, too. Theirs is dated November 3, 2003. Mine is dated October 20, 2003. We made a request. They looked at the amendment, the perfecting amendment offered by Senators Craig, Daschle, and Baucus. In the context of that correcting amendment, they opined in October: Again, you have specifically inquired as to whether the Amendment would alter the bill to such a degree as to allow the pursuit of a civil action against the gun dealer from whom the weapon used in the D.C.-area sniper shootings was stolen. A review of federal and Washington State law indicates that there are no statutory requirements regarding the storage and security of firearms by licensed firearm dealers. Accordingly, it seems evident that there would be no basis for the application for this exception in the case at hand, irrespective of the presence of the ``knowing and willfully'' requirement, given that there appears to be no violation of a relevant underlying federal or state statute. That is an October CRS. Obviously a second opinion was sought. That is the nature of legal opinions many times. This opinion was premised on certain facts that are not yet obvious and perhaps never to be obvious. In fact, in reference in the report Senator Craig referred to: Thus, in the event that it is established that Bull's Eye was aware that the firearm was missing from its inventory more than 48 hours prior to November 5, 2002, the Amendment would appear to lend further support to the application of the exception to immunity . . . of the bill. Essentially what was done in this latest CRS was to say: We will assume hypothetically that in fact they violated the Federal statute, i.e., the requirement to report a weapon within 48 hours of its disappearance. Well, if you assume a violation of the statute, you have gotten way over the curve, because once again, Federal statute or State statute has to be violated, proximate cause. The problem is this assumption does not have much of an evidentiary base. The footnote to the report Senator Craig referred to suggests: These examples are pertinent to the extent-- examples of potential violations-- they could be implicated in any hypothetical sale or transfer to the D.C.-area sniper suspects. It should be noted, however, that it does not appear that any evidence has been produced of actual violations of these provisions by Bull's Eye in the case at hand. The answer to qualifying this exemption is not to assume a violation of Federal law. There has to be some evidence. But there does not appear to be any evidence of violations of Federal statutes. There are no Federal/State statutes with respect to security of firearms, the physical security. The slender reed--no pun intended--they might hang it upon is they somehow knew the weapon was missing a long time before November 5, 2002, and they failed to report it. No evidence from Malvo suggests that. I don't know if there is, frankly. The stories we have all heard from the operator were he didn't know the weapons were missing until the day they showed up, the ATF showed up and said the weapons were missing. The practical effect of this is a judge might have the opportunity for a few minutes to look at this record, but where is the evidence? The practical effect of this legislation is these claims will be barred. That would be a great misfortune, not only for the families involved but a misfortune in terms of setting up a very bad precedent in terms of undermining the common law sense of responsibility for your actions. Senator Craig is a very articulate advocate for his position and has referred to that several times; this is just about maintaining centuries of legal precedent about individual responsibility. I disagree. I think it is about overturning centuries of legal precedent, the precedent that an individual is responsible for their actions, that an individual, such as the licensee at Bull's Eye, is responsible for not securing the weapons, is responsible for not knowing he has lost weapons--according to his view at this point-- for days and weeks and weeks. If we immunize the individual, we will undercut that basic principle of individual responsibility. One of the things I find amazing in this whole discussion of the security of weapons is, I commanded a paratrooper company at Fort Bragg. I worried every day about the weapons in my outfit. We had double locks on the doors, locks on the racks, individual accounting every day of weapons. One of the things that as a young airborne captain you are worried about was showing up one day and discovering a weapon or part of a weapon or even equipment associated with a weapon was missing. That was a big deal. That is a standard of the United States Army. We are telling people who maintain large arsenals in commercial venues that the standard for them is nothing. Miss a few weapons, don't even pay attention because, frankly, knowledge will hurt you. This goes also to the principle of why we have laws of negligence, tort laws. It is not just for individual compensation. That is an important part of giving an individual the right to make themselves whole after they have been harmed. It is something else. It is about having a system of standards that are self-enforcing, not because there are ATF agents walking around, but because in addition to that, an owner of one of these stores will simply say: You know, I better make sure all these weapons are accounted for at least every week. I better make sure they are secure. I better make sure if people walk in who might not be eligible to purchase a weapon I at least ask them what they are doing. None of that appears to be done. In response to the specific question of the application of the exemption, I think the proponents have tried all they can to dress it up. It just doesn't work. There is a huge trapdoor when you put together violation of State or Federal statute and that violation causes proximate cause. Someone could go in and show they didn't file the records properly. That is a violation of Federal and State regulation. They could show perhaps they were lax in some other capacity. Then you have to make the further showing that violation was directly connected. So literally in this case you are going to have to show that particular weapon that found its way into Malvo's hands was the subject or involved with a specific violation of Federal/State law. That is why this CRS report has to assume that particular weapon, of all the 248, was noted as missing more than 48 hours before November 5, 2002. That is an extra burden of proof. That is, again, why I don't think this will work for the victims of these crimes. I yield the floor.

Mr. REED. Mr. President, my colleague from Idaho has invited me to look at the theory of negligent entrustment and negligence per se. I will try to do that. Again, this is not an attempt to dispose of a case before a court. But we all have an obligation to understand what we are voting on, what these provisions will do based on the plain language of the provisions and based upon the facts as we know them in certain cases. That is why I think this is a positive exercise. It is insufficient to say that we pass laws, but we do not have to know what they mean because some judge will figure out what they mean. No, no, I think we have to know what they mean because that should drive our decision about whether this legislation will pass or fail. Let me turn for a moment to these two theories of negligent entrustment/negligence per se. Negligent entrustment is generally understood as ``the supplying of a qualified product by a seller for use by another person when the seller knows, or should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.'' Again, the seller has to know, or is likely to know, that the person they transfer the weapon to or supplied it to is likely to harm himself or harm someone else. The problem we have with respect to the sniper case is that the evidence the snipers' weapon was shoplifted from Bull's Eye would appear to preclude the plaintiffs from making the requisite showing under the statute that the gunshop knew or should have known that the recipient of the gun, Malvo, was likely to use the product in a criminal or otherwise unreasonably dangerous manner. Malvo indicated he shoplifted the weapon. The owner said he must have taken it. He didn't know it was missing until ATF showed up. The theory of negligent entrustment is fancy-sounding terminology, but it is another trapdoor from which the exception falls out. Negligence per se, under most--I am a lawyer, but I am hesitant to say I am a lawyer who is familiar in every detail with Federal practice, but my assumption is since we are talking about Federal and State laws, this negligence per se is a State common law concept that would apply to the laws of Washington State because that is where the Bull's Eye shooting gallery is located. In any event, with respect to negligence per se, it would not preserve the sniper case because even where that doctrine is recognized, it requires a violation of statute that is a proximate cause of the plaintiff's injury. Once again, you have to show not only the violation but that violation of that particular law was a proximate cause of injury. As discussed above--again I am borrowing from one of these legal analyses--that would be very difficult to show. In fact, also I think there is another problem in Washington State about the doctrine of negligence per se. The negligence per se doctrine has been abrogated by statute in Washington State. It doesn't apply. Once again, I think we have an exception that does not provide relief for these individuals. I conclude by joining my colleague in hoping we have some resolution soon on the procedural process for this evening and tomorrow. I yield the floor.

Mr. REED

Mr. REED. Mr. President, I rise to respond to a scurrilous attack against the patriotism of a friend and former colleague, Max Cleland. In a townhall.com column by Ann Coulter, which is described as a conservative news and information Web site, scurrilous, unprincipled attacks have been leveled against a patriot, a warrior, and a friend. I want to put my response in context. I had the privilege of serving in the U.S. Army for 12 years on active duty. I did some challenging things there: qualified as an Army Ranger, paratrooper, commanded a company in the 82nd Airborne Division of paratroopers. But I am not a combat veteran. I did not serve in a combat zone. Max Cleland, and many, many others, did. There is a difference between those who wear the uniform of the United States and those who served in a combat situation, particularly a situation such as Vietnam. The difference is that in that situation, more than any others, you live constantly with a sense of your own mortality. At any moment, through any fire or mishap, you could die or be seriously injured. At any moment, you could see people, your fellow soldiers, die from injuries. And for officers such as Max Cleland there is a special burden that goes along with leadership--not just officers but also noncommissioned officers. You have to make tough decisions that some day could result in the death or injury of another. That is a very special type of service that is inherent in being in a combat zone. Max Cleland served with distinction. The article that Miss Coulter wrote mocks his service, mocks his sacrifice, and, in doing so, mocks the service and sacrifice of thousands and thousands of Americans in the past and today across the globe. For example, this is how she describes Max in some respects. In her words: Moreover, if we're going to start delving into exactly who did what back then, maybe Max Cleland should stop allowing Democrats to portray him as a war hero who lost his limbs taking enemy fire on the battlefields of Vietnam. Let's get one thing straight right now: Max Cleland is an American hero. Let me read from the citation he received for the Silver Star, obtained from Senator Miller's Web site. Captain Cleland distinguished himself by exceptionally valorous action on 4 April, 1968 . . . during enemy attack near Khe Sanh. When the battalion command post came under a heavy enemy rocket and mortar attack, Captain Cleland, disregarding his own safety, exposed himself to the rocket barrage as he left his covered position to administer first aid to his wounded comrades. He then assisted in moving the injured personnel to covered positions. Continuing to expose himself, Captain Cleland organized his men into a work party to repair the battalion communications equipment, which had been damaged by enemy fire. His gallant action is in keeping with the highest traditions of the military service, and reflects great credit upon himself, his unit, and the United States Army. Max Cleland is a hero. No one has to portray him as one; he is one. With respect to how he lost his limbs, this goes on to say: Cleland lost three limbs in an accident during a routine noncombat mission where he was about to drink beer with friends. He saw a grenade on the ground and picked it up. He could have done that at Fort Dix. In fact, Cleland could have dropped a grenade on his foot as a National Guardsman--or what Cleland sneeringly calls ``weekend warriors.'' Luckily for Cleland's political career and current pomposity about Bush, he happened to do it while in Vietnam. Yeah, Max was really lucky to be in Vietnam--really lucky. This is what happened. In Max's book: My tour of duty in Vietnam was now almost over. In another month I'd be going home. I smiled, thinking of the good times waiting stateside. ``Oh, Captain Cleland.'' I looked around. It was Major Cralle who had come up to our position. ``The battalion needs a better radio hookup with the vision supply area,'' he said. ``I'd like you to send a radio relay team back there to improve communications.'' That meant setting up a radio relay station on a hill back at the division forward assembly area 15 miles to the east. Instead of sending a team alone, I decided to go with them to ensure they got set up properly. It is what is called leadership, sacrifice, being willing to do yourself what you ask subordinates to do. That is not routine anytime. This was a combat mission in a combat area. With two men, I pulled together some antennas and a generator and some radios and loaded them on a chopper. The three of us climbed in and the helicopter lifted off. Within minutes, we had settled down by the radio relay station. The men and equipment were unloaded, and I climbed back into the chopper intending to go down to battalion rear headquarters. Then two ideas crossed my mind. First, it would be better to work personally with my team in setting up the radio relay. Second, I had a lot of friends at this relay station and now was a good time to have a cold beer with them. First: I want my men to do the job. I am going to be there with them. By the way, I have comrades that I have served with and, you know, if I have a chance to be with them, and, oh, by the way--in his characteristic honesty--have a beer with them, I was going to do that. I called to the pilot that I was getting out. He nodded and held the ship steady. I jumped to the ground, ran in a crouch until I got clear of the spinning helicopter blades, turned around and watched the chopper lift. Then I saw the grenade. It was where the chopper had lifted off. It must be mine, I thought. Grenades had fallen off my web gear before. Shifting the M-16---- Let me stop. I assume if he is carrying grenades and an M-16 this was not a recreational activity. Shifting the M-16 to my left hand and holding it behind me, I bent down to pick up the grenade. A blinding explosion threw me backwards. The blast jammed my eyeballs back into my skull, temporarily blinding me, pinning my cheeks and jaw muscles to the bones of my face. My ears rang with a deafening reverberation as if I were standing in an echo chamber. Memory of the firecracker exploding in my hand as a child flashed before me. When my eyes cleared I looked at my right hand. It was gone. I could go on, but I think that speaks volumes. Max thought, frankly, that it was his grenade. But regardless of whose grenade it was, I was always taught, as a leader, that if there was a grenade, a live grenade, somebody has to take care of it. Now, maybe Miss Coulter would have simply said: Sergeant, go get that grenade--or maybe just turned around and run further away, leaving a live grenade, with a pin or without a pin, in the middle of a landing zone. Max did what a good soldier does. We used to say at West Point: A good soldier marches to the sound of guns. And that is what he did when he picked up the grenade. He was horribly wounded. Everything was broken except his spirit. But the fear that it was his grenade, that it was a dumb accident, was allayed years later. This is an article in Esquire magazine: He lives with the fact that he asked for it. He was in college during Vietnam and left to join the Army because he'd always gone toward the action. ``March to the sound of the guns.'' He became the aide to a general stateside and fought to get shipped to 'Nam. He fought to go to Vietnam. Once in country, he was an army captain and saw little combat and fought to be sent into Khe Sanh. Closer to the action-- And when Khe Sanh was over and they were mopping up, he almost bought the farm. For thirty-one years, he figured it was his fault. Before he jumped out of the chopper, he'd checked his grenades to make sure the pins that activated them were bent and could not accidently fall out. Straight pins can get you killed. The next thing he knew, he was on the ground and saw a grenade beneath him. And then for thirty-one years he heard that explosion and thought, ``I've blown myself up with my own grenade.'' He got decorations but would have none of them, because to Max Cleland they sure . . . didn't cover a man who blows himself up. Then, this spring-- This was August 1999-- He was on a television show and told his story about that day at Khe Sanh, and later a guy called up and said, Hey, I was there, it wasn't your grenade, I saw it. And Cleland checked the caller out, and it seems the guy really was there. And this year-- In 1999-- Max celebrated Being Alive Day with him down in Georgia. This is not an accurate portrayal of the service and sacrifice of Max Cleland. It is unprincipled and scurrilous. It defames him, and it defames people who wear the uniform of the United States. She is not through yet: Cleland wore the uniform, he was in Vietnam, and he has shown courage by going on to lead a productive life. But he didn't ``give his limbs for his country,'' or leave them ``on the battlefield.'' There was no bravery involved in dropping a grenade on himself with no enemy troops in sight. That could have happened in the Texas National Guard---- There is plenty of bravery there, the bravery of leading men in difficult circumstances, in the sight of the enemy or out of the sight of the enemy. It was the bravery of understanding instinctively that you could not leave a live grenade rolling around in a landing zone. It was the bravery of being willing to be with his men even though he could have easily dropped them off, waved from the helicopter, and flown off to a happy life, 1 month before his return to the United States. It disturbs me about Max, but Max is quite a man. But this also disturbs me about--what does it say about our soldiers today in Iraq, about the soldiers I visited, National Guardsmen and regular soldiers, at Walter Reed, who were injured, critically injured, in vehicle accidents and other mishaps that are part of a combat operation? They did not sacrifice their limbs and their spines for our country? Is that what she is saying? Is that what we are going to say when we pat them on the back and say thanks for your service? There are no excuses for this kind of unprincipled attack on an individual, unsubstantiated by the record, an attack, as I say again and again, not only denigrates Max Cleland, it denigrates everyone who wore the uniform of the United States and wears it today. It denigrates particularly those individuals--and I must again emphatically say, I did not serve in combat--but those individuals who today serve in a combat area, who wake up every morning thinking it may be their last moment, who wake up every morning thinking that they may have to order people to do things that will cost them their lives. It is an experience that I have not known, very few people in this Chamber have known. It is the mark of true heroism and courage, and day in and day out men like Max Cleland do it. And to suggest that he is not a hero, to suggest that his sacrifice was some type of stunt gone bad, some type of foolishness is beneath contempt. I yield the floor.

Mr. REED

Mr. REED. Mr. President, I rise today to recall one of the most tragic events in the history of the State of Rhode Island. It was almost 1 year ago, on February 20, 2003, that a devastating fire destroyed the Station nightclub in West Warwick, RI, killing 100 people and injuring nearly 300 more. The impact of this horrific incident on our small State is beyond measure, as most Rhode Islanders either suffered a direct loss, or knew someone who died or was injured in this blaze. The first anniversary of the fire will bring back painful memories for many in our community. I want to express my heartfelt condolences to the families of those who perished and to let them know that our thoughts and prayers remain with them and with the survivors who continue to struggle with the physical and mental toll of this horrible event. Looking back on the West Warwick fire and its aftermath also reminds us that it brought out the best in our people. In the first minutes and hours of this tragedy, our firefighters, police, and emergency medical personnel performed heroically under terrifying circumstances, as did many of the patrons who were at the scene and helped to save others. Nearby small businesses like the Cowesett Inn restaurant were turned into triage centers, and first responders from throughout southern New England descended upon West Warwick to do whatever they could to help. I visited victims at all of our hospitals and in Boston as well. I was inspired by their courage and the extraordinary skill and compassion of countless doctors, nurses and health professionals. As our Nation continues to fight the war on terror, the response to the West Warwick fire provides a good illustration of the progress we have made--and how far we have to go--in improving our emergency management capabilities. As the magnitude of the tragedy became known, the Rhode Island Emergency Management Agency and hospitals throughout southern New England activated emergency incident command systems, many of which were designed after September 11, 2001. The process of rescuing and treating victims, putting out the blaze, identifying bodies, accounting for the missing, providing crisis counseling for survivors put a tremendous strain on State and local agencies. I have no doubt that Rhode Island's post-September 11 emergency management planning efforts, backed by Federal assistance programs through the new Department of Homeland Security, made a difference in responding to the West Warwick fire. In the past year, Rhode Island's ability to respond to mass casualty events has been further improved with the help of Federal programs such as the State Homeland Security Grant Program, the Assistance to Firefighters Grant Program, Interoperable Communications grants, and the Department of Health and Human Services' bioterror response grants to hospitals. All told, Congress has provided more than $75 million to Rhode Island over the past 3 years for emergency management and terrorism prevention and response. Yet we continue to face tremendous challenges, and we need to do more. I want to say a special word of thanks to my colleagues Senator Gregg and Senator Hollings for their strong support in securing funding through the Department of Justice to reimburse State and local law enforcement agencies in Rhode Island for extraordinary expenses related to the fire. The Station nightclub fire was a catastrophe. Fault will be appointed in the days ahead by the civil and criminal courts, but Rhode Island is already taking steps to ensure that a tragedy like this never happens again. The Rhode Island General Assembly passed the Comprehensive Fire Safety Act of 2003 to repeal the ``grandfather'' exemption from modern fire codes and require more sprinklers in places of public assembly, especially nightclubs. The law also bans pyrotechnics in most indoor venues and gives greater power to fire inspectors. The State fire marshal now faces the task of training the State's fire inspectors and meeting with businesses and institutions to explain how the code applied to individual buildings. As State and local officials across the country reexamine their fire and building codes and step up enforcement of safety practices in public buildings. Congress should do everything it can to support this effort and to encourage both State and local governments and Federal agencies to adopt and strictly enforce the most current fire and building consensus codes. I was also proud to join my colleague Senator Hollings in introducing the American Home Fire Safety Act--S. 1798--to require the Consumer Product Safety Commission to implement comprehensive fire safety standards for upholstered furniture, mattresses, bedclothing, and candles. No one in Rhode Island will forget the tragic events of February 20, 2003, and I hope we will never forget the way Rhode Islanders came together in that dark hour to do whatever was needed to save lives and relieve the suffering of the victims. That generous spirit has continued. Over the past year, Rhode Islanders and Americans across the country have donated more than $3 million to the Station Nightclub Fire Relief Fund to help families affected by the tragedy, including children who lost parents in the fire. We often hear that it is in times of crisis that a person's true nature is revealed. That standard applies to communities as well, and as we approach a painful anniversary that will again focus the world's attention on the sorrow and grief felt by so many Rhode Islanders, I believe the people of our State have much to be proud of for the way they responded to this tragedy. It is now our duty to do all that we can to make sure that no community ever again faces a catastrophe like this one. I thank the Chair and I yield the floor. I suggest the absence of a quorum.

Mr. REED

Mr. REED. I ask unanimous consent that the order for the quorum call be rescinded.

Mr. REED

Mr. REED. Mr. President, I commend Chairman Inhofe for his great effort to move the highway provisions forward. I very much would like to speak about the public transit issue. Let me begin by commending Chairman Shelby and Ranking Member Sarbanes for their extraordinary efforts on a bipartisan basis to ensure that we continue the success that we have enjoyed since TEA-21 with our public transit programs throughout the country. I also thank Senators Daschle, Jeffords, Santorum, and Baucus for their efforts to convince the Finance Committee to provide us with the adequate resources that were necessary to bring this transit bill to the floor. The bill before us today is a strong step forward toward meeting our Nation's significant transit needs. Over the course of the last 2 years, I had the opportunity, first, to serve as chairman of the Subcommittee on Housing and Transportation of the Banking Committee, and then as ranking member to my colleague, Senator Wayne Allard of Colorado. Our joint tenure as chair and ranking member, respectively, allowed us to look deeply at the issues confronting transit throughout the United States. We had a number of hearings and we were able to get a broad-based spectrum of witnesses to talk about the successes and the challenges that face transit throughout the United States. We heard from each region of the country--northern and southern, rural and urban. Mass transit is not exclusive to one region. In fact, what we are finding throughout the country, particularly as metropolitan areas grow and transit needs increase and commuting increases, every community is looking for ways to incorporate transit in their overall transportation plan--not simply to move people but also to meet environmental standards, which are increasingly difficult to achieve without some type of transit system. We heard from businesspeople, environmentalists, senior citizens, the disabled, and those making the transition from welfare to work. We heard from the administration and from academics who are experts in the field of transit. Now, while these witnesses did not agree about every detail, they shared one central message: TEA-21 works. The current Federal program for transit support works very well, but preserving that success is jeopardized by one simple thing: resources. We have to reinforce success. If we do not provide the resources and continued commitment, we will lose that success; we will disadvantage communities throughout this country. Mr. President, I am very pleased today that the bill we have before us in the Senate makes some changes to current law, but it takes that central message to heart and provides increased resources to meet the demands of all of our communities for more effective public transportation. When we passed TEA-21 years ago, transit funding doubled and ridership rose by 28 percent--faster than any other mode of transportation. Mass transit is increasing faster in terms of its use by the American public than any other form of transportation. Another example is how this program is being successfully greeted enthusiastically by people throughout this country. It is my hope the bill before us, which would provide $56.5 billion for transit of all types, can help achieve the same levels of return on our investment, and that we see a continued increase in ridership and use. That has a positive effect in terms of moving people throughout metropolitan areas and rural areas to get to their jobs. It has a positive effect in terms of making the cost of transportation lower for most people. Also, as I mentioned, it has beneficial environmental effects. This bill would increase our transit formula programs by 56 percent, on average, and no State sees a rate of increase below 37 percent for its apportionment, and the vast majority of States are at or above the national average. The bill is not just an urban transit bill. Indeed, rural transit programs would grow from $1 billion under TEA-21 to almost $3 billion under this legislation. The committee also responded to the needs of States experiencing the highest rates of population growth and those States with high levels of population density by creating a new program to address the traffic congestion so commonly experienced in these areas. The bill also increases funding for the Elderly and Disabled Transit Program from $90 million in the current fiscal year to $187 million in fiscal year 2005 and would continue to increase this essential program to a total of $248 million in fiscal year 2009. This legislation will also provide significantly greater discretionary funding to improve our Nation's bus fleets and expand or construct new transit projects. One of the areas that was of great concern to Senator Allard and I in our deliberations was the impact of 9/11 on our transit system. This legislation recognizes that after 9/11, we can't assume that transit is just business as usual. We all recognize the vital role that transit played in mitigating the damages, both in New York City and in Washington, DC. The transit system in Washington, DC, was remarkable in terms of moving and evacuating the city. The transit system in New York City was critical in literally saving thousands of lives as alert and experienced transit operators were able to close stations, move people out of stations, reroute trains, and save thousands of lives. We have to learn from that example. We have to incorporate in this legislation--and I am proud to say we do--the responsibility and also the flexibility so that local communities can use transit funds to prepare their workforce for these types of dangers. It is something that is necessary and something, indeed, I am proud to see. We held two hearings in the subcommittee with respect to transit safety issues. In addition to that, Senator Sarbanes and I commissioned a GAO study to look at the security needs for transit systems. Those needs are significant. This bill at least attempts to provide the resources to begin dealing seriously with those transit security needs. Indeed, I am glad recommendations by the GAO have been incorporated in the bill before us. I am particularly pleased that urban grant recipients will be able to use their Federal funds to better train their personnel in security needs, as well as conduct emergency response drills to prepare for a potential terrorist incident. Such training is one of the single most important things that transit agencies can do to improve their passenger security. This is an important step forward toward improved transit security. But there are two other issues that Congress and the administration must address. First, the Department of Homeland Security must formally accept its responsibility for protecting the millions of Americans who ride our bus and rail systems every day. I hope to offer an amendment, when appropriate, to this legislation to ensure the Department of Homeland Security does take these responsibilities seriously. And second, improved transit security will require more resources than we are able to provide within the context of this reauthorization bill. I hope I can count on all of my colleagues to support increased funding for the Department of Homeland Security appropriations so that it can use those funds to enhance the security of transit systems throughout this country. One of the unfortunate aspects of the world in which we live is that our foes seek the weakest links when they choose to attack us. Unfortunately, we have not invested in transit security to the degree we have in aviation and port security. It is, unfortunately, the weakest link, and we have to improve it. Transit is an essential part of our Nation's economy in every region of the country. The investments in this legislation will help to ease congestion on our highways, reduce pollution, and provide for a smoother functioning and more efficient economy. I urge all of my colleagues to support this important measure. Once again, I commend Chairman Shelby and Ranking Member Sarbanes for their great efforts, and also Senator Inhofe and Senator Jeffords for their leadership on the highway bill. I yield the floor.

Mr. REED

Mr. REED. Mr. President, on February 1, 2004, the New England Patriots defeated the Carolina Panthers, 32-29 in what has been already called one of the most exciting Super Bowls of all time. I commend the Patriots players, coaches and management for a thrilling victory. These Patriots have been a testament to successful teamwork, setting a wonderful example of self-sacrifice and unity, and showing us all what is possible when we work together, believe in each other, and collaborate for the greater good. The Patriots' embodiment of the team concept was needed to overcome the tenacious Carolina Panthers, who came back again and again in a spectacular effort. The hard-earned victory in Super Bowl XXXVIII, the second in 3 years for the Patriots, was also their 15th consecutive win, putting the team in elite company as one of the greatest teams in NFL history. Amazingly, once again the New England region, and indeed, the entire country, were held on the edge of their seats as the Patriots kicker, Adam Vinatieri, won the game on a last second field goal. Indeed, Vinatieri has been a friend to my home State of Rhode Island, active in the Rhode Island Coalition Against Domestic Violence, D.A.R.E., and as a spokesperson for the Blue Cross & Blue Shield of Rhode Island's Teen Anti-Smoking Contest. This Patriots team was led all season by their coach, Bill Belichick, who has masterminded victory after victory by stressing preparation, team work and adaptation. In the championship game the Patriots defense, arguably the team's best asset, was led by Ty Law, Mike Vrabel, Tedy Bruschi and the veteran Willie McGinest. Vrabel was particularly impressive as an ``Ironman'' playing on the offense and scoring a touchdown. The Patriots offense was led by the Super Bowl MVP Tom Brady who time after time led his team back until finally placing them in position to win. Brady was helped on offense by clutch performances from Troy Brown, Deion Branch, Kevin Faulk and Antowain Smith. Ultimately it was the Patriots offense, cool under the pressure, that brought them a hard earned victory. Let me also acknowledge a Rhode Island native on the New England team. A former Boston College standout, running back Mike Cloud, was an important part of the Patriots' winning season, scoring five touchdown and making critical plays. Cloud is a former Rhode Island Player of the Year and long before he helped the Patriots win their second Super Bowl, he helped lead Portsmouth High School to three consecutive Rhode Island Class A Championships. I am proud that he has had the opportunity to represent our State and play an important role in this victory. Once again, my congratulations to the New England Patriots and their fans on their Super Bowl victory.

Mr. REED

Mr. REED. Mr. President, I yield the floor.

Mr. REED. Mr. President, I express my deep concern about several provisions contained in this omnibus legislation. Many of these provisions were in direct contradiction to the bipartisan actions of this Senate and the House of Representatives. It is alarming to me that in an Omnibus appropriations bill that the will previously expressed by both the House and the Senate would be contravened so arbitrarily and so dramatically. I am concerned about the process, as well as the specific issue that I come to speak about today. First, tucked into this massive spending bill are several out and out gifts to the gun lobby. Some were included in a controversial House amendment and another was slipped into the bill later by the Republican leadership without a vote by the House and Senate conferees. That is highly unusual and, in terms of procedure, very dangerous to the functioning of this body and, indeed, to the constitutional obligations we must perform. These provisions, with respect to guns, reduce law enforcement's abilities to carry out their responsibility to enforce our Nation's gun laws, and they do not provide any benefit to law-abiding gun owners. The other people who benefit from these provisions are criminals and prohibited purchasers, those who should not have firearms, according to the laws of this country. Again, I hear time after time that all we should do with respect to gun safety in this country is just enforce the laws. This is the mantra of the NRA and of the gun advocates. But how can you enforce the laws if law enforcement authorities are required to destroy information they obtain through the gun sales procedures under the Brady Act? From the beginning, this attack on law enforcement's authority has been highly suspicious. According to a report in the Washington Post on July 21, 2003, Representative Todd Tiahrt, in the words of the Washington Post ``surprised many of his fellow Republicans'' when he offered an amendment in the House Appropriations Committee. In fact, Representative Frank Wolf, who chairs the Commerce, Justice, State Subcommittee on Appropriations, objected to the amendment, saying he had not had time to review it prior to its presentation. But Representative Tiahrt refused to withdraw the amendment and he won passage on a 31-to-30 vote, over the opposition of Chairman Wolf and Appropriations Committee Chairman Bill Young. Meanwhile, Mr. Tiahrt assured his colleagues that the NRA had reviewed the language. He said, ``I wanted to make sure I was fulfilling the needs of my friends who are firearms dealers'' and that the NRA officials ``were helpful in making sure I had my bases covered.'' This insertion of language over the objections of the subcommittee chairman and the full Appropriations Committee chairman, at the behest of the NRA, to take care of your friends who are firearms dealers is not what we should embrace in this Omnibus appropriations bill. In the conference between the House and the Senate, appropriators modified several of the provisions on a bipartisan basis of the original amendment offered by Representative Tiahrt. But the Republican leadership later inserted a most objectionable item over, presumptively, the objections of the committee chairman and the subcommittee chairman. The provision would require the FBI to destroy approved gun sale records within 24 hours. The 24-hours-records-destruction provision would put more guns in the hands of criminals by preventing the FBI from discovering and correcting erroneous gun sales under the National Instant Criminal Background Check System. Currently, approved gun sale records are retained for 90 days to allow the FBI to perform audits of the National Instant Criminal Background Check System, to ensure that if criminals or terrorists or other prohibited purchasers have acquired such a weapon incorrectly, and contrary to law, that these mistakes can be corrected, that the guns can be retrieved. This is not an imaginary problem. The General Accounting Office found that the during the first 6 months of the 90- day retention policy, the FBI used retained records to initiate 235 firearm retrieval actions, of which 228, or 97 percent, could not have been initiated under the next-day destruction policy required by this Omnibus appropriations bill. Let me repeat that. In a 6-month period, the auditing of these records enabled retrieval of 235 firearms that were in the hands of prohibited persons--criminals, people who were spouse abusers, the whole category of perpetrators who are prohibited from having firearms because of their records--235. If this rule were in effect then, they would have recovered 7, leaving 228 with dangerous individuals whose conduct has already underscored their unworthiness to carry a firearm. They would have had these weapons. I can't see any other result of this policy than to put more weapons in the hands of identified criminals or identified violent individuals. No one in this country is walking around saying let's give violent criminals more guns. Again, the mantra is: Just enforce the laws. Make sure those criminals don't have access to weapons. This provision cuts at the heart of all the rhetoric and all the hyperbole about ``just enforce the laws'' and ``guns don't kill, criminals kill,'' and exposes a grotesque miscarriage of justice. That is why organizations such as the International Association of Chiefs of Police and the FBI Agents Association oppose this provision. But that is not all that is included in this Omnibus appropriations bill. The bill would also prohibit the ATF, the Alcohol, Tobacco and Firearms Bureau, from finalizing a proposed August 2000 rule that would require gun dealers to conduct an annual physical inventory of the weapons in their possession. The purpose of the proposed rule is to allow dealers to go ahead and identify missing and stolen firearms and report them to the ATF in a timely fashion. You would think every responsible dealer in this country would conduct periodic inventories and, as soon as a weapon was discovered missing or stolen, their first instincts would be to contact authorities. But we know that is not the case because this community of Washington, DC suffered through a string of sniper killings months ago that traumatized not only Washington but the entire Nation, and this string of sniper killings can be traced back to a weapon at Bulls Eye Shooter Supply, the gun seller where John Allen Muhammad and Lee Boyd Malvo obtained the assault rifle used in these attacks. After the snipers were apprehended, the gun was recovered and was traced back to Bulls Eye. What did they say? They had no record of selling the gun. They didn't even know the gun was missing until the shooting spree was over. The snipers' gun was just one of more than 238 firearms missing from Bulls Eye's inventory during the previous 3 years--a dealer who is missing 238 weapons in a 3-year period, one of which turns out to be the murder weapon in one of the most heinous assaults in the United States in many years. The ATF proposal requiring dealers such as Bulls Eye to conduct annual physical inventories is still pending. We should be urging them not to suspend this rule but to enact this rule. What could be more commonsensical, more obvious, after the sniper killings in Washington, than allowing the ATF to promulgate a rule so there is at least a physical inventory and requirement to report missing weapons? We have learned nothing from the deaths of these people. We have learned nothing from the death of Conrad Johnson, a bus driver sitting in his bus reading his paper at 6:30 in the morning, supporting his family--his wife and his children--who was killed by these snipers. This, to me, is preposterous. Yet here we are, trying to take an omnibus bill, holding billions of dollars in appropriations for all the programs my colleague from Missouri talked about that we all support-- holding them hostage to provisions like this, to provisions that fly in the face of our experience and that undercut all the rhetoric when we talked about learning from the mistakes of the past, from ensuring that criminals don't have weapons, from enforcing the laws. We are undercutting the ability of law enforcement to do their job. Finally, this bill prohibits release of any information regarding firearms production or sale that is required to be kept by gun dealers or manufacturers. In addition, no information or records regarding multiple handgun sales--where two or more handguns are sold to the same buyer within 5 days--or crime-gun-tracing information that is reported to the ATF could be reported to the public. No, let's throw a cloak of silence over all of these laws, eviscerate the regulation, and prevent any disclosure of information that should be public. ATF has in the past made this information available under the Freedom of Information Act, but this information has been used to highlight some of the discrepancies and difficulties and deficiencies in our gun laws. As a result, the gun lobby doesn't want it out: No information, no knowledge, no problem. That is not right. There are problems here, problems we should address responsibly, and we are undercutting a responsible approach to ensuring that the present laws on the books are enforced. So the next time someone stands up and says just enforce the laws, remember you can't enforce the laws if you don't know how they are being enforced--and that is the purpose of this provision--and you certainly can't require law enforcement authorities to enforce laws when they are prohibited from having the information to do that. This is an important right for the public to know, particularly with respect to firearms tracing from crime scenes. As a result of publicly available information, there have been identified several firearms dealers who were the source of a preponderance of weapons at crime scenes. That is valuable information, not only to law enforcement authorities but to the general public, and that information should be public. We are facing numerous problems about gun violence. We have the threat of terrorism. Last night the President spoke repeatedly about terrorists. This is a situation made to be manipulated by terrorists who want firearms. If the record of their purchases is destroyed in 24 hours, if there is no requirement for an inventory of weapons, think of how we are setting out a situation that can be exploited, not just by criminals but by people with even more malign designs on this country. We are doing it and we are doing it in the middle of the night, figuratively speaking. None of these issues was fully debated, particularly the destruction of records within 24 hours. Procedurally we should reject it. Substantively we should reject it. There is another issue we should be concerned about that many of my colleagues mentioned, and that is the overtime rule for American workers. Last year, the administration announced its proposal to significantly weaken overtime protection. The proposal would take away from many hard-working Americans their ability to earn enough to support their families. The timing of this proposal is even more egregious. It comes during a period when more and more Americans are struggling to make ends meet and while the country is bleeding jobs overseas. It was announced this week that IBM was going to hire 15,000 people this year. The only problem is that they are only going to hire about 1,500 in the United States. Yet for those people who are struggling to find jobs, to keep jobs, and to better their lives, we are telling the employers they do not have to pay overtime. It doesn't make sense to me. It doesn't make sense to this Senate because on September 10, the Senate passed a measure to prevent millions of American workers from being stripped of their overtime. We acted in a bipartisan fashion. In doing so, we reaffirmed our support for protecting these hard-working Americans. Unfortunately, safeguards to overtime pay were stripped out at the President's request, again leaving Americans vulnerable. At a time when the President is talking about job growth and providing additional benefits to families, why does he want to weaken the laws designed to create jobs and to protect hard-working Americans? We know what is happening today. Employers are not hiring full-time workers. They are extending the hours of their existing workforce because of the pressures they face. When you lower the number of people who qualify for overtime pay, that is an incentive to continue that practice of simply extending the hours of current workers and not hiring new workers. This will go against our hopes by all, I believe, that this year our economy can start hiring people again--not simply adding a few hours to the workday of existing workers. But certainly those few hours of additional work deserve to be compensated by overtime. This law cuts it. About 11 million workers receive overtime pay. Many understaffed fields such as nursing are required by law in many communities to pay mandatory overtime. Yet under this rule, that mandatory overtime would not in all cases be compensated. Other workers rely on this extra income simply to make ends meet. The people who are in danger of losing their benefits are health care workers and technicians, paralegals, restaurant workers, draftsmen, therapists, retail managers, news reporters, police officers, firefighters, and even military reservists. What I find most objectionable is that this proposal basically says that reservists who are coming back who have had certain kinds of training in the Armed Forces are no longer considered eligible for overtime pay. This is preposterous. These individuals could literally have left their employment a few months ago to respond to the call of the Nation in a time of danger and receive some training while they are in the military, or have that training before on the weekends as a reservist, and now find themselves penalized for the training they received in the military in terms of getting overtime pay. That is preposterous. That is what this rule would do. It could affect thousands of military reservists. That is not only unfortunate in individual cases, but that is a stunning snub to Americans who are risking their lives in serving their country collectively. I again am amazed that such a proposal would even be submitted, and I am more amazed that we would, today, be prepared to vote on it in this Omnibus appropriations bill. American workers work more hours than any others in the world--1,900 hours per year. Yet, still, they need more to get by and to make ends meet. I am amazed that the administration would continue on this track of undercutting overtime in the United States, and I am extremely disappointed. Rather than trying to undercut the wages of Americans, we should be looking for ways to increase the wages of Americans. I think these two provisions are problematic. Many more of my colleagues have spoken about that and have called into serious question both the procedures that brought us here and certainly the substance of these proposals. At this time, in conclusion, I would like to propound a unanimous consent request. I ask unanimous consent that the Senate proceed to the immediate consideration of a concurrent resolution which I shall send to the desk correcting the enrollment of the omnibus conference report; the resolution strikes the language which requires the FBI to destroy gun purchase background check information after 24 hours; that the current resolution be agreed to, and the motion to reconsider be laid upon the table.

Mr. REED

Mr. REED. Mr. President, the Omnibus appropriations bill contains elements that contradict the express votes of this body and the other body, bipartisan votes that in fact protected workers against losing their overtime, that insisted upon country-of-origin labeling, that dealt with media ownership. And at the last moment, at the direction of the administration, these provisions were overridden and contradicted. There are other provisions that have been included in this measure that should not stand a fair vote on the Senate floor. There is a provision, inserted in this bill by the House Republican leadership over the objection of the Republican subcommittee chairman of the Commerce-State-Justice and Judiciary Committee, that would require the FBI to destroy records of gun sales within 24 hours. They have now, under the law, the Brady bill, the authority to keep these records for 90 days to conduct audits of the system of instant checks. A study analyzing just 6 months' activity conducted by the General Accounting Office showed that the FBI was able to retrieve 235 firearms that had been sold to illegal purchasers, prohibited purchasers, wife beaters, murderers, the whole parade of perpetrators. If this legislation passes and the 24-hour rule stands, then instead of recovering 235 of these weapons, 7,228 firearms will be in the hands of murderers, wife beaters, robbers, those people who endanger the American public. This provision should not be allowed, without a vote, to become the law of the land. In the words of Los Angeles Police Chief William J. Bratton: I'm very opposed to this effort to make the Brady law toothless, and I just don't understand how Members of Congress can even consider it. Obviously, they haven't shown up at the scene of enough officer shootings. What we hear from the NRA and their allies is ``just enforce the laws.'' How can you enforce the law if you don't have the information on the sale? This provision should be stricken. In addition to that, there are provisions about vouchers for public schools in the District of Columbia. We don't have enough resources to fix the public schools of this country, and diverting them to private schools is a mistake. It is passing out parachutes; it is not fixing the airplane. We can do better. Indeed, these vouchers go to schools that don't have to stand up to the rigors of the No Child Left Behind Act. Those people who go about this country saying that critics of the No Child Left Behind Act--those people who will not embrace these provisions--are somehow undermining education reform but they say, let's give money to schools that don't even have to follow the No Child Left Behind Act. That is also wrong. As my colleague Senator Kennedy pointed out, this bill strips away overtime protections for Americans who work very hard. These workers depend on overtime to support their families. Costs go up, hours of work are going up, and still families find themselves stretched terribly thin. We are in a position now not only to override both the sense of the House and Senate but the common sense of the American people. They understand that without adequate overtime people cannot support their families. In addition to this provision that would strip away overtime pay for firefighters, nurses, and police officers, the Department of Labor had the audacity to suggest ways in which overtime can be prevented from applying to everyone. That is not a Department of Labor that is working in the best interest of the American workers. We understand something else, too, which is that the great economic crisis of this country at this moment is the fact that we cannot produce jobs. Employers are not willing to hire, so they require more overtime. Well, if they have less incentives, less requirements to pay overtime pay, they will make the current workers work even harder, and there will not be the opportunity to hire more Americans for these jobs. This provision goes right to the heart of what we all should be about: getting more work for Americans, not penalizing workers by taking away their overtime pay. These are just a handful of provisions that are not only contradictory to what we did on a bipartisan basis--Republicans and Democrats in both the House and Senate--but they are fundamentally against the interests of safe streets, opportunities to work, and opportunities to educate the children of this country. I yield the floor.

Mr. REED

Mr. REED. Mr. President, on Monday, November 17, 2003, Rhode Island, the judicial community and the entire Nation lost a great jurist, a great scholar and a great man. United States District Court Judge Raymond J. Pettine passed away leaving behind a legacy of protecting individual liberties and constitutional rights. Judge Pettine was born July 6, 1912 on America Street in Federal Hill, one of the original Italian neighborhoods in Providence; a fitting place to be born for someone who would champion the Constitution that distinguishes this country, America, from so many others. His father was a wigmaker in Italy who immigrated to these shores to find a better life for his family and to make a better America through his labors and his sacrifice. Judge Pettine was sustained and inspired by the example of these good people, his mother and father. The hard work, the great patriotism, the unwavering decency and integrity, the deep respect for both family and faith, the gracious manners of a true gentleman were learned in that home on America Street. Early in his life, Judge Pettine became fascinated with the law. As a child of eight, he scrawled a note to the Dean of Harvard Law School and asked him, ``What do you have to do to become a lawyer?'' The Dean wrote in reply ``study hard, be a good boy, always have a dream.'' His dream led him to Providence College and Boston University Law school. Soon after graduation, he enlisted in the United States Army and served on active duty from 1941 until 1946 rising to the rank of major. He later would be promoted to colonel in the Judge Advocate General Corps as a reservist. After his discharge from active duty and a brief stint in private practice, Judge Pettine began a thirteen year career as a prosecutor in Rhode Island Attorney General's office. Like every task he undertook, he brought great passion and determination to his endeavor. He understood that our adversarial system of justice requires that both the prosecution and the defense must bring the full weight of the facts and the law before the jury so that they may have the benefit of principled and forceful advocacy to make their decision. He was a tough and uncompromising prosecutor determined to enforce the law. His repututation and his record as a prosecutor earned him appointment as the Federal Attorney for the District of Rhode Island in 1961. His service as Federal Attorney won him the praise of U.S. Attorney General Robert F. Kennedy as one of the nation's top three federal prosecutors. And, this prosecutorial experience would help make him a superb judge upon his appointment to the bench in 1966 by President Johnson. Judge Pettine recognized that the role of a judge was different than that of a prosecutor or defense counsel. He was charged with something greater than simply enforcing the law or arguing for a client. He was charged with seeking justice, that delicate balance that rests on fairness and a keen understanding of the nature of people as well as the tenets of the law. He was also charged in a special way with defending the Constitution and the Bill of Rights. He recognized that our democracy, in his words, ``prizes itself in having a Bill of Rights designed to protect us against despotic abuse of authority by the government.'' There was no more courageous, forceful or principled defender of the Constitution than Raymond Petinne. In 30 years on the federal bench, and as chief judge from 1971 to 1982, Judge Pettine staunchly guarded the individual rights enshrined in the Constitution. He said the Constitution should be interpreted in ways that ``give meaning to the heart and soul of what it's all about: a kinder, more understanding Constitution that recognizes the disenfranchised, the poor and underprivileged.'' In his rulings, he repeatedly upheld the Bill of Rights' freedom of speech, of religion and of privacy. Judge Pettine stood by the Constitution and showed courage in the face of controversy when he, a practicing Catholic, ruled that municipalities could not erect Christmas nativity scenes on public land. As he said, ``I firmly believe this with great conviction: that there has to be a separation between church and state--that one of the saving graces of this country is the fact that we are tolerant of all religions, and even of those who have no religion. And, if we start breaking that down, we are going to be in an awful lot of trouble.'' His wise defense of the Constitution and its protections for individual conscience brought him vicious criticism and personal scorn. But, no amount of criticism or scorn could deter him from his obligation to extend the protections of the Constitution to the poor as well as the powerful, to the maligned as well as the popular. Judge Pettine embraced his judicial duties with remarkable dedication. He became a scholar of the law and, in order to insulate himself from even the appearance of partiality, he led a life focused on his family and the lonely rigors of his judicial responsibilities. Nevertheless, he was a dashing figure in Rhode Island. He was a man of great culture and erudition who exuded style and panache. Judge Raymond J. Pettine has left a remarkable legacy. His wisdom, his integrity and his selfless devotion to the Constitution made him a judge of extraordinary achievement. His love of family and his compassionate regard for all he met made him a man of singular worth. I admire him greatly. He has given us the example and the confidence to carry on. And, his presence will continue to be felt whenever we stand up in defense of the Constitution and in defense of those who are ``disenfranchised, the poor and underprivileged.'' My deepest condolences go out to his family and friends, especially his daughter, Lee Gillespie, his granddaughter, Lauren Gillespie and his son-in-law, Thomas Gillespie. I yield the floor.

Mr. REED

Mr. REED. Absolutely. The original order was that Senator Stabenow speak as the next Democratic speaker.

Mr. REED. Mr. President, opinion has already been registered with respect to this Medicare proposal before us today. I think one of the more interesting comments was from the Des Moines Register editorial board, describing this legislation as ``a big, sloppy kiss to the pharmaceutical and insurance industries.'' That is essentially what this bill is. It is a huge payoff to pharmaceutical companies and to the insurance industry. It is not really about giving seniors what they deserve and what we have all labored for many years to provide them with; and that is, comprehensive drug coverage. There is another fallacy that is operating, too, in our debate today. That fallacy is that this bill is the best we can do, so let's just move on. I think it is a fallacy because I checked this morning the discussion of the vote early, early this morning in the House of Representatives. Apparently, the last few votes that were arm-twisted into supporting this bill from conservatives in the House was based upon the logic that if this bill failed, the next bill, which would come promptly after this bill, would be, from their perspective, worse; but from the perspective of seniors, much better because it would not represent ``a big, sloppy kiss to the pharmaceutical and insurance industries.'' It would represent a commitment to provide prescription drugs--real prescription drugs--and maintaining the Medicare system. And that is what seniors want. So I believe we can make this bill better simply by holding our ground, by debating it extensively, by not rushing to judgment, by not surrendering to artificial deadlines of the Thanksgiving holiday or even the Christmas holiday. This is the largest proposed change in the Medicare Program since its inception in 1965, and to rush through this in a few hours, not because of the substance of the bill, but because of the timetable for airplanes and trains to get home for the holidays, is wrong. We should stay here and do our job, just as thousands and thousands of young Americans are staying across the globe and doing their job to protect us. I think there is another issue here, too; and that is the notion that this is the end of the privatization argument. On the contrary, this is the beginning of privatization. That is the quid pro quo for the support, particularly support of conservatives, of this bill in the House and here in the Senate. I can envision and anticipate that with each new reconciliation bill that is forced upon us, with a procedure that does not allow unlimited debate in the Senate, we will see again and again the slow erosion of the traditional Medicare Program, under the guise of cost savings, under the guise of competition, under the guise of so many other claims and so many other excuses. So we are at a position where we are looking at legislation that represents, again, a massive giveaway to pharmaceutical and insurance companies, that does not provide an adequate benefit for seniors, and that really does begin the privatization of the Medicare Program. Since 1965, Medicare has provided dependable health care for our seniors. But we have all recognized in the last decade or more the rise of pharmaceuticals as a principal, and expensive, way to treat diseases. We have all recognized that Medicare must adjust to this change. We have urged and fought to get an adequate benefit for our seniors for drug coverage. Now, in Rhode Island, with 14.5 percent of the population over 65, this is of central concern to me. And I have worked very hard, as so many others have, to try to get a good drug benefit program, but not at the expense--not at the expense--of Medicare. Now what has happened is that the administration, their allies in Congress, the pharmaceutical industry, and the insurance industry have all gotten together and have attempted not just to provide a drug benefit that is adequate for seniors, but to provide a drug profit bonanza for the pharmaceutical companies and the insurance companies and to alter fundamentally the shape of traditional Medicare. Now, in the wake of the Gingrich revolution in 1995, Newt Gingrich declared his intention of letting Medicare wither on the vine. His undisguised hostility to Medicare met a swift rebuff from Democrats but, more importantly, from the American people because they understand the critical need and the value of Medicare. Today, this hostility to Medicare persists, but it has been camouflaged under the cloak of a prescription drug benefit. As a result, we are on the verge of a historic bait and switch. Under the guise of providing drug coverage, the Bush administration is beginning the unraveling of the Medicare Program. The bait is drugs; the effect is the slow unraveling of the Medicare Program. This bill was cobbled together by the administration, by their allies in Congress, and by lobbyists for the drug and insurance industries to entice support based upon the notion of a drug benefit. But the goal, ultimately, and the plan, in effect, is to privatize Medicare. There is a memorable scene in America cinema in the movie ``Patton,'' of George C. Scott, who plays the illustrious general, watching the retreat of the German forces from the Battle of El Guettar. He bellows at the top of his voice: Rommel, I read your book. Of course, the obvious inference is people will declare their intentions years before and then carry them out. And that is exactly what is happening here. If you read the Gingrich book, if you read the conservative ``book'', this is about the privatization of Medicare. Now it might take a few years because tactically the lessons have been learned since 1995. You can't get up on the rooftops and announce: We are ending traditional Medicare. This is a program that allows, in my view, more choice than an HMO because traditional Medicare allows seniors to choose their doctor, to change their doctor. In fact, if you ask most seniors if they could, they would have that choice without any type of condition whatsoever. That is what is happening here. The intention is clear. But the tactics have been adjusted since 1995, since they ran into popular opposition. Now it is a subtle change, a series of changes over time, reconciliation bill after reconciliation bill. That would be incredibly disastrous to the system and a disservice to our seniors. The drug benefit is scheduled to begin in roughly 2006. Conveniently, it is after the 2004 election, and it also allows additional time to fiddle with the benefits before any of this becomes real in the lives of our seniors. One can anticipate that these benefits will be adjusted as our fiscal crisis becomes deeper and as we try desperately to constrain costs within not just this program but every other program. The benefits, as they exist today, are a monthly premium averaging about $35, a deductible of $250 or so before Medicare covers 75 percent of an individual's drug costs. But because of inadequate funding in this bill--the $400 billion was never enough--and because of the lavish contribution to HMOs in a $12 billion slush fund, the lavish contribution to health savings accounts of $6 billion, we already have defects within the drug protection for our seniors because if a senior's drug costs reach $2,200, Medicare will pay nothing until that senior has already paid out of pocket $3,600. There is a gap, the proverbial donut hole. Must this donut hole exist? One could argue it has to. But certainly, if we had extra resources, if we had the $18 billion that this bill lavishes upon HMOs and insurance companies, why don't we simply close the gap? Because we are not interested in providing the best benefit under available resources to seniors. There is another priority: Let's go ahead and begin the slow privatization of Medicare. There are those who say: Well, something is better than nothing; we will take anything now. Again, we can do better. We could do better in this Congress because the fear last night that motivated those last few holdout votes was that the Senate would do better, that we would bring another bill to the Senate and to the House, and that bill would not have such a big gap; that bill would not be such a big sloppy kiss to the pharmaceutical and insurance industries; it would be something seniors could use, something seniors could use much more effectively than what we are presenting them today. They should recognize, too, that ``something is better than nothing'' doesn't apply because the price of that something is the withering away of Medicare. We know what this is about. We know that if unchecked, that is what you will insist upon and demand over each coming year. Medicare works because it covers every senior. It spreads the risk. An essential, fundamental point of any insurance plan is spreading the risk. It works also because Medicare is willing to subsidize the cost of providing health care to seniors. The reason the private insurance industry did not cover seniors before 1965 is simple: It was too expensive. They couldn't make any money on it. It took the Government to say: We will use public resources to subsidize the health care costs of these seniors, and we will try to do it in an efficient way by first cutting out the overhead of a private health insurer, cutting out the profits of a private health insurer, making this a nationally based program having the broadest possible coverage for all seniors. That is the essence of Medicare. This bill is turning that on its head. This bill is fragmenting the pool of seniors who will be covered. It is tilting the playing field against traditional Medicare by providing incentives for insurance companies. It is giving money not directly to subsidize the health care of seniors but to subsidize the bottom line of insurance companies. That is the only reason they will play in the senior market, because they are being paid to do so, paid in the form of their profits, not essentially in the form of services to seniors. I suggest that if the market for senior health care was there to be exploited by private companies, it would have been exploited in 1965, in 1955, in 1945, but it wasn't. And we all know because this body contains people who at least have reached middle age. We all can remember in every home there was an elderly relative--a grandmother, a grandfather, an aunt or uncle--who had to live with you because they could not afford the price of health care; they could not afford the price of a nursing home. That all changed, not because private health insurance companies stepped up to the plate. It is because Medicare and Medicaid stepped up to the plate. And we are about to change that fundamentally. There are those who will say this is just a modest demonstration program. No, this is the first step. The path has been charted. The direction was declared years before. You just have to read the book. This bill fragments senior health care coverage. It does so along the lines of age and health. By giving incentives to HMOs, it will encourage them to enroll the youngest and healthiest seniors. Here is how you make money as a health insurance company. First you get a large subsidy from the Federal Government. Then you carefully select your risks so that they don't incur costs. That increases your profits. That is what any of my colleagues would do if they were directing an HMO, that is what I would do, because their business is to provide profits to their shareholders. That is what is going to happen. It is not because suddenly they have thought of a much more efficient way to deliver services to seniors. Frankly, the way they derive efficiencies is to ration health care. We all know it because we have all heard the complaints from seniors and from doctors: They won't pay me for what I am doing. It takes me 6 or 7 months to get a bill through, and they give me 10 percent of what I claim as my true cost. That is what the doctors tell me. They don't want to work with private insurers. They like Medicare. They like the fact that it is predictable. It pays them on time or certainly in a predictable range of time. That is not what HMOs do. They are in it for the money. That is the essence of what they do. We think we can change the morbidity and the mortality rates of seniors and the costs associated with senior health care? We can't. So what do we do? We give the HMO's subsidies, and then they will use the subsidies and the leverage of this new law to seek out the healthiest risk, and they will maximize their profits. That is clear because Wall Street certainly has already voted on this bill. Pharmaceutical stocks are soaring; health insurance HMOs are doing very well. That is what is happening. What happens also is that we take these healthy seniors out of the pool of traditional Medicare. Then what happens to the cost of traditional Medicare? It goes up. We no longer have the 65-year-old or 68-year-old marathon runners and triathletes. We have 85- and 90-year-old frail elderly who need increased care. No insurance company is going to underwrite those people if they can avoid it, and they can avoid it very easily. So the cost of traditional Medicare will go up. Then, of course, a year or two from now the people who say this is not about privatization, this is about choice, will come in and say: Look how expensive Medicare is. The private sector is doing so much better. And we will see, I think, the inevitable erosion of traditional Medicare. The irony is that we already know traditional Medicare delivers high quality at essentially a lower cost than an HMO. A report by the trustees of Medicare this year estimated that reimbursements for HMO enrollees would exceed the average cost of traditional Medicare. That makes sense. Medicare is not advertising on every billboard in Rhode Island like the Plan 65 is. Medicare is not putting out glossy 25-page brochures describing its great programs, or advertising on the radio for profit. Medicare doesn't have to run a multimillion-dollar profit. Medicare is not paying a CEO of an HMO $26 million, or $9 million a year. It is obvious why they are running more costs. So, again, we know this already. We have Medicare+Choice. Every year, they say ``we need greater reimbursement.'' Why are we then trying to tilt resources to induce private companies to come and do something that seniors will say general traditional Medicare does just as well? It is not about efficiency or a new innovative way of paying for health care, it is about ideology and catering to special interests--that big sloppy kiss again to the pharmaceutical industry and the insurance industry. The Bush administration proposal, this proposal, divides seniors along the lines of income. For the first time, we are using means testing to determine how much someone must pay to participate in Medicare. Now, one could argue that if this was a last-ditch effort to save traditional Medicare and you had to make sufficient financial calls, you could consider means testing. But this is not about saving Medicare, this is about privatizing Medicare. This is about not saving the system but essentially destroying the system. It creates this fragmentation along the lines of income. When you start seeing the costs accumulate--when seniors start seeing those costs accumulate, a very wealthy senior might say, I don't want to participate anymore, and they will begin walking away from the system. That is not a lot of people, but once you have a public program, and people say, I don't want to participate any longer, and you see the income lines start dividing people it will undercut the support and the strength of the system. I listened intently to my colleague from Texas say it is so unfair to have the minimum wage workers pay as much as the very wealthy who pay in. I am someone who is pretty sympathetic to minimum-wage workers. Unlike many of my colleagues on the other side, I think we can increase the minimum wage, and I think we can do that right now. They have avoided a vote on that for months and months. Let me tell you, you have to recognize that, through our tax system, those upper income Americans are paying much more into the Medicare system during the course of their lifetime. But that is beside the point. I think that is a footnote. The fundamental point is that this program has worked so well because it is a social insurance program, not a welfare program. It is a program which every senior comes to, regardless of their health, age--other than meeting the 65-year-old threshold--or their income. It is really a common ground. That has a value above and beyond simple accounting, or who is paying what and who is doing what. So this is another way the program is divided. Again, I believe this is the wrong approach. Now, this whole proposal eliminates the stability, dependability, and reliability of the Medicare Program. It is unfortunate that this process was essentially hijacked behind closed doors. All of the conferees didn't even meet. Two of our colleagues on the Democratic side, Senators Baucus and Breaux, were admitted to the conference, but there were others who were deliberately excluded, which is against, if not the rules, the spirit of the Senate. I think that is wrong. This is not a product of the free interchange between all interested parties, this is simply a backroom deal. If they weren't willing to deal, they could not get in the back room. This legislation will affect all seniors. That is another reason we need more time on this floor to debate this bill, explain the bill, to have the opinions registered by seniors who are not dazzled at first by an attempt or a first glimpse of a drug benefit but by the underlying reality of the bill. There is much to be criticized in the bill, but I believe there are three general areas. First, when I was considering a drug benefit for seniors being attached to Medicare, I believed it had to meet three tests: affordability, accessibility to all beneficiaries, and uniform coverage. This bill fails those tests miserably. In terms of affordability, seniors will pay, over the next 10 years, $1.8 trillion for drugs--a staggering total. We began this debate with $400 billion over 10 years for Federal support--much too inadequate, I believe. We were stuck with that. But as I pointed out in previous remarks, we didn't use all the money in this bill to creatively and innovatively help seniors buy drugs. It went to help the insurance companies and pharmaceutical companies. We are beginning with a benefit scheme where a senior will have, first, a $250 deductible, roughly $35 a month premium; and if they do that, and they pay the deductible and the premiums, 75 percent of their cost of drugs up to $2,250 will be absorbed by the Federal Government. But these deductibles and premiums will increase each year. Our seniors should know that. In fact, by 2013, CBO estimates that beneficiaries will be paying a $445 deductible and almost $60 a month premium, and a quarter of their drug costs will be deferred up to $4,000. So we are looking not at a fixed benefit for seniors over the next 10 years, we are looking at increased premiums and deductibles. I mentioned the donut hole before. Even paying these fees, this doesn't provide for continuous coverage for our seniors for the drugs. They will spend up to $2,250, and then they will get nothing. I would like to be around in at least--perhaps if this bill passes--I hope it doesn't--a few months or years because it doesn't really begin until 2006--when our offices get flooded with calls saying: I just got a bill for my premium this month, but I was informed that I will get no help with drug costs, and I have to choose--not between eating or buying drugs, but I have to choose between paying my premium or buying my drugs. That will happen to seniors when they get in this donut hole, this gap. That will be their choice. I hope we are preparing good answers by saying: Oh, that is just the way it works. Keep paying your premium because if you don't, you will never be able to qualify for help $2,000 or $3,000 down the road--after you have spent that much more on drugs. It is a baffling system of insurance. It is interesting because I have heard so many people on the floor talk about and say: We are just going to give the seniors what we have in the Federal Employees Health Benefits Plan. I can tell you, we don't have a donut hole in the Federal Employees Health Benefits Plan. We don't reach a point at which our drug coverage stops, while we spend some more money. No, we have what most insurance plans have; we have continuous coverage. Our deductibles and premiums might be different, but we have continuous coverage. So this is nothing close to the Federal Employees Health Benefits Plan. It might be an interesting experiment--maybe our plan should be changed. Maybe we should have this gap. Maybe we should experience the fact of paying premiums and not getting anything for them. Again, this is one of the problems we have with the bill. When this bill passed the Senate, there was some good work--some. One of the areas where we had good work was in trying to cushion the blow for poor people who could benefit from this drug bill. Specifically, the Senate bill had a section also for people at 160 percent of poverty. That has been pulled back to 150 percent of poverty--the threshold for low- income assistance. It is estimated that because of that change, over a million beneficiaries with annual incomes between $13,000 and $14,000, approximately, will lose out on their income assistance. Now, an annual income of $14,000 might be a lot of money in some States, but in the Northeast it is very difficult to get by on that. When you are paying $800 a month for an apartment--and, indeed, we are doing so poorly at providing affordable housing for our seniors that more and more seniors are on the private market--if you are paying $800 to $1,000 a month for an apartment, that is about $10,000, $12,000 a year. And you don't qualify for this benefit? This is protection for low income seniors? Millions more will be further disqualified by the imposition of an asset test. I must say, I voted against the Senate version of this bill for many other reasons. But, there were some commendable elements in that proposal. One was the elimination of the asset test. The asset test is back. That means if your income is below 135 percent of poverty and you have assets over $6,000, you will be disqualified for low- income assistance. Let me put it in the vernacular. Assets over $6,000: If you have a Ford Escort, it is probably worth maybe $6,000. Certainly, if you own a Crown Victoria, it is $6,000. So let's tell the seniors right now, if they can afford to have a car or a little bit of savings, they are disqualified from the income protections for low-income seniors because of this asset test. That I think is wrong. There is another aspect to this bill that has been much discussed and debated, and that is what are we going to do with dual eligibles, those individuals who qualify for Medicaid but also, because of age or disability, are in the Medicare system. There is a lot of discussion about the success of this bill dealing with dual eligibles, making sure they are protected. Frankly, I think the protections are ephemeral. First, the States are not actually relieved of their fiduciary responsibility for these dual eligibles. The Governors all want the Medicare system to go in and say: You are going to take care of these people; they are Medicare individuals now with a drug benefit. Effectively what we have done is something called a clawback, I believe, which requires the States to keep paying forever. More than that, I am told, is that before, the Medicaid systems in the State could negotiate better drug prices, and now I believe they are subject to whatever the traffic will bear in terms of prices established by this bill. And there is no cost containment on the drug companies. There are cost containments on what we can spend for seniors, but not on what the drug companies can charge. That is another real major problem with this bill. When I go up to Rhode Island and talk about cost containment, what seniors say to me is: Hallelujah, you are finally going to be able to constrain these accelerating prices from drug companies. You are finally going to be able to do what we all want you to do--use the market creatively, not price controls but market force to get these prices down. No, because this bill essentially prevents Medicare from negotiating for drug prices effectively against the drug industry. That is why, again, it is a ``big sloppy kiss'' to the insurance industry and to the drug industry because they have their way. There will be no market power. There will be no Medicare with approximately 41 million beneficiaries saying: Give us your best price, drug companies. It is fragmented by region, by private entities. It is fragmented deliberately so there is no market power. For those people who preach on and on about the power of the market, that we have to get away from all this command-and-control economic policy, they walked away from using the market creatively to deal with the No. 1 issue that has driven this whole debate: the ever-increasing cost of prescription drugs. It is not an accident because the people who wrote this plan and the biggest beneficiaries of this plan are those in the drug industry. There is another aspect of this whole issue of the States and Medicaid. We have prohibited the States from using Medicaid money to help address these increased drug costs. We have essentially said: You can't use Medicaid money for that. Again, this is not only something that is unfortunate, but it puts tremendous strain on the States. It has been estimated that my State, over the next 10 years or so, could be paying up to $500 million to the Federal Government in this clawback. I hope my Governor is aware of that. I am going to make him aware of that because the states had always expected that the federal government would pay these costs if a Medicare drug benefit was created. There is another issue. Because of the ambiguity of some of the language, it is unclear what happens to individuals in the TriCare Program and individuals who are in the Veterans Administration program. What happens to their drug coverage? Are they displaced? That remains to be seen. Also, in terms of the approach to Medicare, as I said several times over, it is just not adding a pharmaceutical benefit. That is what seniors want many of us to do; create a Part D in Medicare, a pharmaceutical benefits with rules, with fair costs, and with protections. The overall effect to the Medicare Program is we are raising Part B from $100 to $110 in 2005, and then indexing it to expenditures in future years. We know that is going to keep going up, and some of the fastest growing costs in the country are health care expenditures. By contrast, the Social Security benefits are tied to increase in the Consumer Price Index. Here is what is going to happen to seniors: The Social Security check goes up, a very modest figure because of the CPI indexing, and the part B goes up like a rocket because it is tied exclusively to the health care expenditures. In a way, it could lead to the point where Part B is more and more expensive and less and less attractive to seniors. Again, with the means test, with deductibles, all those things, we could find initially wealthy seniors leaving the system, and that erosion could spread. There is another aspect to this, too, and that is access to home health services. Again, there was a proposal initially to put on a copay, a co-fee, for home health care. That was defeated. I see my colleague from Maine, Senator Collins, in the Chamber. She led the fight to see that was protected and did it admirably and graciously, as always. What I am reading in this bill is that we are reducing reimbursement rates for home health care providers by an estimated $6.5 billion over the next 10 years. We already know the home health care industry took a significant cut in the Balanced Budget Act. In fact, many were pushed to the brink of bankruptcy, some beyond and failed and closed their doors. Now they have to adjust to a $6.5 billion reimbursement reduction over the next 10 years. Once again, why didn't we take some of this money going to the pharmaceutical industry and the insurance industry and keep the home health care industry strong and vibrant? We all know it is a much more efficient way to treat seniors, more so than having them traipse to the emergency room, then having them go home without home health care, and then come back a week later. Frankly, in my view, that is what made traditional Medicare a very attractive program. We have ransacked many of the aspects of traditional Medicare to fund this experiment, this demonstration in privatization. Another general topic of concern is the accessibility issues. There is a complicated scheme now that says we are not going to let Medicare run a drug program unless, of course, there are no private vendors. When it left the Senate, the fallback would begin to operate--i.e., a Federal program--a Medicare Program for drug provisions would operate when two drug-only plans were not available in the market. That has been changed. Now, it is a drug-only or another private plan. So essentially we are doing all we can to keep Medicare from running this drug plan, not because of efficiency, not because of anything except special interest politics and an erroneous ideological commitment to use the private market anytime, even when the market and the market for senior health care is not, without major subsidies, conducive to private plans. If it was, why did we have to create Medicare in 1965? Because no insurance company will voluntarily enroll sick, elderly people unless they are highly subsidized. We did it not because we had a profit motive but because the American people decided in 1965 that this society would be more decent, stronger, and the fabric of this country would be better if we devoted public resources to help seniors with their health care needs. The other aspect of this, which time and again is repeated, is why do we need a $12 billion slush fund to do what we think private health insurance companies will do anyway? Because we do not believe they will do it anyway. We know they will not. We have to give them lots of money to participate. Why can we not use that money to strengthen traditional Medicare? Why can we not use that money to decrease the gap in coverage? Why can we not use that money to provide further reimbursement to home health care, which we know is an efficient, valuable program? This does not make sense to me on simple grounds of economic efficiency, but it does have a certain logic if one is rewarding their friends and appealing to ideological concerns. There is another important aspect, too, and that is the fact that we have seniors, retirees, already with health care and drug benefits through their employers. Two point seven million of these retirees are in danger of losing those benefits. There have been attempts in this legislation that comes before us to bring that gap down. In fact, it was estimated that there were about 4 million retirees who would lose their benefits under previous versions of this legislation. That has been reduced, but 2.7 million Americans-- at least 9,000 Rhode Islanders--are likely to lose better private drug benefits that they have today because of this proposal. I can guarantee my colleagues, we will hear from every one of those 2.7 million retirees--the at least 9,000 in Rhode Island--because that is not what they thought Congress was doing when it was debating a drug benefit. As I mentioned before, not only does this approach fragment the healthy and young seniors from the older and sicker seniors based upon the cherry-picking of the insurance industry--which they will do--it also fragments them in terms of income because of the nature of this means testing. It might not happen right away, but anyone who is under any illusion that we are setting in concrete this proposal right now has not been here long enough. I can imagine, my colleagues can imagine, with every reconciliation bill--and for those who are not devotees of the parliamentary musings every year when we come and have a special procedure where there is no filibuster, it is just 50 or 51 votes--we find all sorts of interesting provisions in that bill. We all stand up and say, oh, that is terrible, but I have to vote for it because it is the budget. What we will find is this means testing will become broader because the principle has been established. What we will find is these demonstration programs for privatization will become larger. Let me talk about this demonstration program. It allows for demonstration projects to be established in six metropolitan statistical areas where there is a 25-percent private plan participation. Presently, there are 41 MSAs around the country that meet this test, including most of my State of Rhode Island, as well as border communities in Massachusetts. It is estimated that almost 7 million seniors and disabled beneficiaries, one in six Medicare beneficiaries, could find themselves subject to this privatization experiment. That is a heck of a demonstration project, 7 million people. As I mentioned before, what are we demonstrating? We have had Medicare+Choice for a while. We know the problems. We know that seniors will go into it. In fact, in my home State of Rhode Island we have about 30 percent who have gone into these managed care plans. They went in originally because of the offer of pharmaceuticals and drugs. Every year we get complaints when they change the plan, when they raise the copays, when they do all of these things. We know how it is going to work and we also know that we have to pay more and more each year to subsidize these private plans to participate. As a result, we are going to see tremendous erosion. Seven million seniors could be affected. What does this mean in terms of their coverage as they look at the competing plans? According to the office of the actuaries at CMS, beneficiaries could pay up to 5 and 25 percent more to remain in traditional Medicare in areas where these demonstration projects are going on. However, the proposal at least caps that increase at 5 percent. Why would premiums go up? Let me go back to two basic points. We are subsidizing the private plan and then they are out carefully selecting to minimize their risks. They do not have to do it by offering inducements. They can put signs up at the health club, go to these 5K races and hand out brochures. They will not go into neighborhoods with high rates of disease. They will not go into senior centers in low-income areas where people have the kind of health issues associated with having earned a low income all of their lives. They will not do that. They will go to the country clubs, to the affluent suburbs, and sign everybody up. Then we will subsidize it. So when one is a senior trying to make a choice between traditional Medicare and this new plan, well, if they have to pay even 5 percent more, that might make them choose the new plan--not because they have better quality, not because they maintain their doctor, not because of any substantive reason, but simply because it is a little cheaper, in the beginning. Then a year later, when they discover it is a little more expensive, and 2 years later as Medicare continues to decline, the options start evaporating. So, again, this proposal is not only dangerous but unnecessary. We could have simply done what many Americans think we are doing, create a Medicare drug benefit. So I believe we can do much better. We should do much better. We have the time to do much better. Anyone who is saying that we cannot spend 2 weeks or 2 months continuing to discuss this bill, I think is putting an undue premium on enjoying the holiday over the health care of seniors and the structure of our health care for seniors that has been in place for more than 35 years. I hope that rather than beginning the path of privatization of Medicare, providing an inadequate benefit not only because we started out with insufficient funds, but then diverting those funds to take care of the insurance industry and the pharmaceutical industry, that we would go back to principles and try to create, under the $400 billion cap, a program that would work for seniors. I hope we can do that, and I hope we can continue this debate. I yield the floor.

Mr. REED. Mr. President, I ask unanimous consent, with the concurrence of Senator Stabenow, that I be allowed to go in her place and she go in my place in the order of speaking.

Mr. REED

Mr. REED. Mr. President, on Monday, November 17, 2003, Rhode Island, the judicial community and the entire Nation lost a great jurist, a great scholar and a great man. U.S. District Court Judge Raymond J. Pettine passed away leaving a legacy of protecting individual liberties and constitutional rights. Judge Pettine was born July 6, 1912 on America Street in Federal Hill, one of the original Italian neighborhoods in Providence; a fitting place to be born for someone who would champion the Constitution that distinguishes this country, America, from so many others. His father was a wigmaker in Italy who immigrated to these shores to find a better life for his family and to make a better America through his labors and his sacrifice. Judge Pettine was sustained and inspired by the example of these good people, his mother and father. The hard work, the great patriotism, the unwavering decency and integrity, the deep respect for both family and faith, the gracious manners of a true gentleman were learned in that home on America Street. Early in his life, Judge Pettine became fascinated with the law. As a child of eight, he scrawled a note to the Dean of Harvard Law School and asked him, ``What do you have to do to become a lawyer?'' The Dean wrote in reply ``study hard, be a good boy, always have a dream.'' His dream led him to Providence College and Boston University Law School. Soon after graduation, he enlisted in the U.S. Army and served on active duty from 1941 until 1946 rising to the rank of major. He later would be promoted to colonel in the Judge Advocate General Corps as a reservist. After his discharge from active duty and a brief stint in private practice, Judge Pettine began a 13-year career as a prosecutor in the Rhode Island Attorney General's office. Like every task he undertook, he brought great passion and determination to this endeavor. He understood that our adversarial system of justice requires that both the prosecution and the defense must bring the full weight of the facts and the law before the jury so that they may have the benefit of principled and forceful advocacy to make their decision. He was a tough and uncompromising prosecutor determined to enforce the law. His reputation and his record as a prosecutor earned him appointment as the Federal Attorney for the District of Rhode Island is 1961. His service as Federal Attorney won him the praise of Attorney General Robert F. Kennedy as one of the nation's top three federal prosecutors. And, this prosecutorial experience would help make him a superb judge upon his appointment to the bench in 1966 by President Johnson. Judge Pettine recognized that the role of a judge was different than that of a prosecutor or defense counsel. He was charged with something greater than simply enforcing the law or arguing for a client. He was charged with seeking justice, that delicate balance that rests on fairness and a keen understanding of the nature of people as well as the tenets of the law. He was also charged in a special way with defending the Constitution and the Bill of Rights. He recognized that our democracy, in his words, ``prizes itself in having a Bill of Rights designed to protect us against despotic abuse of authority by the government.'' There was no more courageous, forceful or principled defender of the Constitution than Raymond Pettine. In 30 years on the Federal bench, and as chief judge from 1971 to 1982, Judge Pettine staunchly guarded the individual rights enshrined in the Constitution. He said the Constitution should be interpreted in ways that ``give meaning to the heart and soul of what it's all about: a kinder, more understanding Constitution that recognizes the disenfranchised, the poor and underprivileged.'' In his rulings, he repeatedly upheld the Bill of Rights' freedom of speech, of religion and of privacy. Pettine stood by the Constitution and showed courage in the face of controversy when he, a practicing Catholic, ruled that municipalities could not erect Christmas Nativity scenes on public land. As he said, ``I firmly believe this with great conviction: that there has to be a separation between church and State--that one of the saving graces of this country is the fact that we are tolerant of all religions, and even of those who have no religion. And, if we start breaking that down, we are going to be in an awful lot of trouble.'' His wise defense of the Constitution and its protections for individual conscience brought him vicious criticism and personal scorn. But, no amount of criticism or scorn could deter him from his obligation to extend the protections of the Constitution to the poor as well as the powerful, to the maligned as well as the popular. Judge Pettine embraced his judicial duties with remarkable dedication. He became a scholar of the law and, in order to insulate himself from even the appearance of partiality, he led a life focused on his family and the lonely rigors of his judicial responsibilities. Nevertheless, he cut a dashing figure in Rhode Island. He was a man of great culture and erudition who exuded style and panache. Judge Raymond J. Pettine has left a remarkable legacy. His wisdom, his integrity and his selfless devotion to the Constitution made him a judge of extraordinary achievement. His love of family and his compassionate regard for all he met made him a man of singular worth. I admire him greatly. He has given us the example and the confidence to carry on. And, his presence will continue to be felt whenever we stand up in defense of the Constitution and in defense of those who are ``disenfranchised, the poor and underprivileged.'' My deepest condolences go out to his family and friends, especially his daughter, Lee Gillespie, his granddaughter, Lauren Gillespie and his son-in-law, Thomas Gillespie.

Mr. REED

Mr. REED. I ask unanimous consent that the order for the quorum call be rescinded.

Mr. REED

Mr. REED. Mr. President, we have just concluded a cloture vote which will give us the opportunity to look more carefully at the Energy bill that is before the Senate. I believe such a careful and thorough review of the bill is entirely warranted. Indeed, it is not just my opinion but the opinion of countless numbers of Americans and also countless numbers of opinion leaders throughout the country. These are a sample of some of the editorials that have appeared with respect to the Energy bill. The Washington Post calls the bill ``depleted energy.'' The New York Times says ``a shortage of energy''. The Atlanta Journal-Constitution directs: ``Put backroom energy bill out of the country's misery.'' The Houston Chronicle: ``Fix the flaws-- this proposed energy bill is half a loaf, half baked.'' The American people deserve good national energy policy, created through an open and democratic process. Sadly, the legislation before the Senate is not such a policy nor has it been achieved through an open and transparent and collaborative process. The Energy bill was crafted behind closed doors by members of one political party who chose to involve industry but not elected Senators and Congress men and women. It looks as if the industry got the bill they wanted. We have been told ``take it or leave it.'' I hope we can leave this bill behind. I hope this cloture vote signifies such a development. If we leave it behind, one of the salient aspects of the Energy bill presented to Members is that it does not leave any lobbyist behind. In fact, to borrow a statement from my colleague from Arizona, this bill, indeed, leaves no lobbyist behind. There is an Archer Daniels Midland ethanol provision adding $8.5 billion to gas prices over each of the next 5 years while cutting $2 billion a year from the highway trust fund. It seems to me to be implausible, indeed irrational, that we would enhance an industry while at the same time depriving our local cities and towns and States of the money they need to maintain the roads and bridges of America. According to the Denver Post, there is $180 million to pay for development projects in Shreveport, LA, including the city's first ever Hooters restaurant. I am not sure how that will help our energy policy. Let's not forget the $2 billion that taxpayers bear to clean up the mess left by MTBE producers. As the Wall Street Journal wrote: We'll say this for the energy bill that is about to come to a final vote in Congress: It's certainly comprehensive. It may not have all that much to do with energy anymore, but it does give something to every last elected Representative. This bill utterly fails to establish an energy policy for the 21st century. It does nothing to address our country's dependence on foreign oil, an issue I will discuss at length in a few minutes. In addition, it contains so many provisions that will hurt consumers and damage the environment that it is impossible to list them all. Here are just a few: The bill doubles the use of ethanol in gasoline, which will drive up gasoline prices and deny valuable revenue to fix our roads. The bill fails to make the reforms necessary to modernize our electricity grid and enhance reliability by providing a standard set of rules for our electricity markets. These rules would have provided greater efficiencies, greater reliability, and reasonably priced electricity that our homes and businesses need. The bill increases air pollution by delaying rules to control mercury and ozone pollution, putting millions of Americans at risk for health problems. The bill increases water pollution by exempting oil and gas exploration and production activities from the Clean Water Act storm water program. The bill allows drilling on our coastlines by diminishing States' rights to review offshore oil development projects and other proposed Federal activities to determine if the projects are consistent with the State coastal management plans. The bill threatens our national security by failing to reduce the Nation's dependence on foreign oil and providing billions of dollars in subsidies to build new nuclear powerplants. And the list goes on and on and on. The American public deserves an economically sound Energy bill that will strengthen our economy and create good-paying jobs for Americans. But that is not this Energy bill before us. This Energy bill is business as usual. It is a special interest grab bag cloaked in the rhetoric that it would create jobs and spur the economy. The cost of the entire bill is estimated to exceed $100 billion, more than $120,000 for each job that the authors claim the bill will create. With the tax breaks alone costing American taxpayers over $25 billion, this bill adds to the deficit and further reduces spending for vital programs, such as education, health care, and water infrastructure. The American public also deserve an environmentally friendly Energy bill that will protect our air and water and reduce greenhouse gases. But that is not this Energy bill. This Energy bill will endanger the public's health by allowing the energy industry to increase the pollution it emits into the air and water and limiting environmental review of energy projects. One of the most egregious giveaways to corporations, at the expense of the environment and public health, is the product liability protection for MTBE. MTBE is known to cause serious damage to water quality nationwide. This immunity provision--which is retroactive to September 5, 2003, before virtually all the recent lawsuits involving MTBE--would shift $29 billion in cleanup costs from polluting corporations to taxpayers and water customers. My State of Rhode Island and our residents are all too familiar with the dangers of MTBE. After MTBE leaked from an underground storage tank at a gas station and found its way into the water system of the Pascoag Utility District in Burrillville, RI, in the summer of 2001, more than 1,200 families were forced to use bottled water for drinking, cooking, and food preparation for several months. Subsequent tests showed MTBE at such high levels that the State department of health recommended residents reduce shower and bath times and ventilate bathrooms with exhaust or window fans. Fortunately, Pascoag's lawsuit against ExxonMobil to pay for the cleanup was filed before the September 5, 2003, cutoff date, but many similar suits filed on behalf of residents in New Hampshire and other States will be thrown out by this bill. That, to me, is a tragedy. The American people deserve a meaningful Energy bill that will ensure our national security by ending our dependence on foreign oil, diversifying our energy resources, and increasing our Nation's energy efficiency. But that is not this Energy bill. This Energy bill perpetuates the failed policies of the past 30 years, focusing almost exclusively on squeezing what little domestic energy production is available and offering generous incentives to the oil and gas industry while giving little attention to developing alternative sources of energy and reducing consumption. We have to face the facts: We cannot drill our way to energy independence. Furthermore, the bill creates new security threats by reversing a longstanding ban on the reprocessing of spent fuel from commercial nuclear reactors. It promotes, through the Department of Energy's advanced fuel cycle initiative, joint nuclear research efforts with nonweapon states, undermining efforts to curtail new weapons systems. The proliferation of nuclear weapons is one of the most challenging and difficult and serious problems we face, and we are now involving ourselves with states that do not have nuclear weapons, but we are doing so in a way that we could inadvertently and unintentionally give them insights that are advantages. This is poor proliferation policy as well as, I believe, poor energy policy. Our Nation needs a comprehensive Energy bill, but we must reorder our priorities if we want to achieve greater energy independence. Yesterday's solutions will not meet today's urgent need for energy security. Increased efficiency in our homes, our cars, and our industries, renewable energy resources, and new technologies will secure our energy independence. We are on a collision course that threatens our economic and national security. Worldwide oil consumption is projected to grow by 60 percent over the next two decades. For developing countries, the growth is expected to be much higher, possibly as much as 115 percent. China and India will be major contributors to these increases in demand and will require imports to meet their needs. Chinese economic expansion is rapidly changing the oil demand map throughout the world. The International Energy Agency estimates that Chinese demand for oil next year will rise to 5.7 million barrels per day. This would account for about a third of global demand growth. Growing global demand will raise prices for U.S. consumers as countries race for the world's remaining oil supply. Two-thirds of the world's proven crude oil reserves are in the Middle East. While experts disagree about when global oil production is likely to peak, they agree that when it does, the vast majority of remaining untapped reserves will be left in the Middle East and imports to feed our growing global demand for oil will come from the Persian Gulf. What is the result of this increasing global demand? Many countries, including our allies and trading partners, will compete with us for finite oil supplies as their and our economies rely more heavily on imports. This will inevitably stress the delicate balance that exists among national interests in the world and give the Middle East a disproportionate leverage in the international arena. America's dependence on imported oil is a major constraint on our foreign policy. A substantial portion of our Nation's military budget is spent in the Middle East for the defense of oil. Our policy toward the Middle East will not change as long as our economy remains dependent on oil from the region. The United States has less than 5 percent of the world's population but consumes 26 percent of the world's oil. Oil imports contribute to our trade deficit and heighten our economy's vulnerability to oil price spikes. According to the Rocky Mountain Institute, 53 percent of the U.S. oil supply is imported and one-fourth is from the 11 countries of the OPEC cartel. Net oil imports cost the United States $109 billion in the year 2000--29 percent of the then-record trade deficit. Retail oil products cost Americans more than one-quarter trillion dollars per year. As long as the U.S. economy is dependent on oil, we remain vulnerable to major oil disruptions anywhere in the world and to domestic price spikes. According to the Department of Energy, every million barrels of oil per day taken out of production increases world oil prices by $3 to $5 per barrel. The Organization of Economic Cooperation and Development estimates that an increase of $10 per barrel would cut U.S. economic growth by .2 percent and boost consumer prices by .4 percent. A .2 percent drop in growth would cost the economy $22 billion. Our economy is extremely vulnerable to variability in oil prices, and we are doing nothing in this legislation to give ourselves a hedge against those variable oil prices. To achieve energy security, we must wean our economy off its heavy reliance on oil. The immediate priority must be to head off growth in demand. Efficiency is the cheapest energy source. Let me say that again. Efficiency is the cheapest energy source--not drilling in Alaska or the gulf or any place else. In 2000, America used 40 percent less energy and 49 percent less oil to produce each dollar of GDP than in 1975. Why? Because after the 1973 oil embargo, we were shocked into taking steps to improve our efficiency. We raised gas mileage standards. We provided support incentives for energy improvements and efficiencies throughout our society. This savings we have been able to develop since 1975 has been five times our domestic output of oil in that period. So we essentially saved five times more oil than we produced in the period. We need to use energy in a way that saves money. It is much cheaper to conserve energy and increase efficiency than build a nuclear powerplant. It is much cheaper and much less deadly to conserve energy and increase efficiency than to send troops to protect oil interests in the Middle East, as we have done since the first Persian Gulf war. While our soldiers in Iraq are fighting for many reasons, we cannot divorce what is happening in the Middle East from our dependence on oil. This bill may create a few jobs, but will it save lives? Will it prevent future military conflicts undertaken to feed America's addiction to oil? I don't think so. I think a bill like this should do precisely that. The Energy conference report that we are considering is too heavily weighted towards production with minimal emphasis on increasing energy efficiency. According to the American Council for an Energy-Efficient Economy, the conservation savings in the bill will amount to only about 3 months of U.S. energy consumption between now and the year 2020. That fact bears repeating. Over the next 17 years, this bill conserves only 3 months worth of energy or 1.5 percent of energy use. The bill could have and should have saved at least four times as much energy through conservation. This bill could have taken meaningful steps to secure our energy future, but the drafters of the bill chose not to. The energy conference could have reduced our dependence on foreign oil by increasing CAFE standards, but they did not. In model year 2002, the average fuel economy for cars and light trucks was 20.4 miles per gallon, a 22-year low. Yet if performance and weight had stayed constant since 1981, the average fuel economy would have improved 33 percent, enough to displace the amount of oil we import from the Persian Gulf 2.5 times over. To displace Persian Gulf imports would only take a 3.35 mile-per-gallon increase in the 2000 light vehicle fleet. We are risking our soldiers in the Persian Gulf, but we are unwilling to raise mileage standards in the United States. If we don't do that, I fear we will be at risk again and again and again--our troops, our economy, and our society. According to the Rocky Mountain Institute, since 1975, the U.S. has doubled the economic activity wrung from each barrel of oil. Overall energy savings, worth about $365 billion in 2000 alone, are effectively the Nation's biggest and fastest growing major energy source, equivalent to three times our total oil imports or 12 times our Persian Gulf imports. Let me say that again. We have the greatest resource available to us. It is not oil under the ground or under the sea. It is energy efficiency. Yet this bill refuses to tap that great resource. During 1977 to 1985, gross domestic product rose 27 percent. Oil use fell 17 percent. Net oil imports fell 42 percent, and imports from the Persian Gulf fell 87 percent. When we were forced by the embargo in 1973 to take steps to improve efficiency, the results were palpable, dramatic, and beneficial. The key to the huge 1977-85 oil savings was better mileage for our automobiles. Unfortunately, light vehicle efficiency stagnated through the 1990s. And we refused to do the obvious and increase those standards. Taking steps to reinvigorate the CAFE program is the best way to produce dramatic savings in oil consumption, those savings that we witnessed in the 1970s and 1980s. That is why I am an original cosponsor of S. 794, which would increase fuel economy standards for passenger vehicles to 40 miles per gallon by 2015 and for pickup trucks by 27.4 miles per gallon. This would save 1.8 million barrels of oil a day by 2015, and 3.1 million barrels a day by 2020. This is the Energy bill we need, not the one we are considering. Indeed, this approach, a technological approach, is most suited to our greatest advantages. We are the Nation of technological innovation. We are the Nation that first ventured into space dramatically and went to the moon. I cannot believe that if we give them the simple mission of raising gas mileage standards, that our automobile industry cannot do so and do so promptly without losing jobs, without losing market share. While we fail to take action to increase fuel economy standards and provide $100,000 tax loopholes for SUVs, China, already a growing economic power, recognizes the need to reduce its oil demands from the Middle East. In contrast to this bill, China is preparing fuel efficiency rules that will be significantly more stringent than those in the United States. The Chinese standards call for new cars, vans, and sport utility vehicles to get as much as 2 miles a gallon of fuel more in 2005 than the average required in the United States and about 5 miles more in 2008. Let me guarantee you, our automobile manufacturers will be trying desperately to sell in that market, and we will be producing cars that go into that market. Yet they will turn to us and say: It is impossible to do that here in the United States. The Chinese are more sensitive to the global imbalance in supply and demand for petroleum products than we are. They are taking action--and we can't--because they recognize the economic implications and the national security implications. The Energy bill before us could have reduced our dependence on foreign oil and strengthened national security by including a renewable portfolio standard for America's electricity industry. A strong renewable portfolio standard would diversify our fuel supply, clean our air, and better protect our consumers from electricity price shocks. According to the Energy Information Agency, gradually requiring utilities to produce 20 percent of electricity from renewable resources such as solar and wind is both affordable and feasible. In addition, it would create jobs by spurring $80 billion in new capital investment. Again, this is the Energy bill we need, not the one we are considering. For over 30 years, through four different Presidencies, Americans have been promised that our Government would end the national security threat caused by our dependence on foreign oil. But energy security means more than drilling in new places for oil and natural gas. It starts with using less energy far more efficiently. It means obtaining energy from sources that are less vulnerable to terrorism or world politics. Unfortunately, it appears that the American people will continue to wait for a meaningful energy policy that promotes national security and reduces our dependency on foreign oil. We faced an important vote today. I believe we made the right vote. We have given ourselves more time to improve this bill, to develop legislation that will meet our economic, our environmental, and our national security needs, to serve the American people in a way which will make them more secure and more prosperous. I hope we use this intervening time not simply to return to this legislation but to vigorously reform legislation so that we can present the American people a bill that will serve their needs and not the needs of special interests. I yield the floor and suggest the absence of a quorum.

Mr. REED

Mr. REED. Mr. President, I rise today, along with my colleague, Senator Specter of Pennsylvania, to introduce the National Commission on Digestive Diseases Act. It is estimated that over 62 million Americans presently suffer from a range of painful, debilitating and in some cases, fatal digestive diseases. Conditions such as inflammatory bowel disease (IBD), irritable bowel syndrome (IBS), colorectal cancer, gastroesophageal reflux disease impact the lives of our friends, loved ones and neighbors. These diseases produce total estimated direct and indirect costs in excess of $40 billion annually. Of course, these figures do not take into account the serious physical and emotional toll digestive diseases have on those afflicted. Thanks to significant advances in medical science, we are now on the brink of some major scientific breakthroughs in the area of digestive disease research. However, in other areas of this diverse field, we still lack even a basic understanding of the condition itself, let alone effective methods of treatment and prevention. The bill I am proposing today would call upon the Secretary of the Department of Health and Human Services (HHS) to establish a Commission of scientific and health care providers with expertise in the field, as well as persons suffering from digestive ailments, to assess the state of digestive disease research and develop a long range plan to direct our scientific research agenda with regard to digestive disease. The Commission would submit their report to Congress in 18 months. This legislation would build upon the successes of a digestive disease commission that was assembled roughly 25 years ago with a similar goal. The 1976 Commission's findings directed significant progress in the area of digestive disease research. While the plan set forth by the first Commission has certainly accomplished a great deal, the burden of digestive diseases in this country remains substantial and advancements in genetics and medical technology compel the assembly of a new commission to guide our research efforts well into the 21st century. I look forward to working with my colleagues towards expeditious passage of this important, bipartisan legislation.

Mr. REED

Mr. REED. Mr. President, I rise today, along with my colleague, Senator Specter of Pennsylvania, to introduce the National Commission on Digestive Diseases Act. It is estimated that over 62 million Americans presently suffer from a range of painful, debilitating and in some cases, fatal digestive diseases. Conditions such as inflammatory bowel disease (IBD), irritable bowel syndrome (IBS), colorectal cancer, gastroesophageal reflux disease impact the lives of our friends, loved ones and neighbors. These diseases produce total estimated direct and indirect costs in excess of $40 billion annually. Of course, these figures do not take into account the serious physical and emotional toll digestive diseases have on those afflicted. Thanks to significant advances in medical science, we are now on the brink of some major scientific breakthroughs in the area of digestive disease research. However, in other areas of this diverse field, we still lack even a basic understanding of the condition itself, let alone effective methods of treatment and prevention. The bill I am proposing today would call upon the Secretary of the Department of Health and Human Services (HHS) to establish a Commission of scientific and health care providers with expertise in the field, as well as persons suffering from digestive ailments, to assess the state of digestive disease research and develop a long range plan to direct our scientific research agenda with regard to digestive disease. The Commission would submit their report to Congress in 18 months. This legislation would build upon the successes of a digestive disease commission that was assembled roughly 25 years ago with a similar goal. The 1976 Commission's findings directed significant progress in the area of digestive disease research. While the plan set forth by the first Commission has certainly accomplished a great deal, the burden of digestive diseases in this country remains substantial and advancements in genetics and medical technology compel the assembly of a new commission to guide our research efforts well into the 21st century. I look forward to working with my colleagues towards expeditious passage of this important, bipartisan legislation.

Mr. REED

Mr. REED. I concur with my colleague from Michigan. Our first goal should have been to do what we told seniors for years we were going to do: help them buy pharmaceuticals, not change, undermine Medicare but to help them buy pharmaceuticals. We could have applied all that $400 billion to do that. We didn't. We have stabilization funds to encourage private health concerns to compete with the traditional Medicare Program; we have health savings accounts, with billions of dollars there to encourage the insurance industry to sell health care plans to individuals. All of that very scarce money could have been used simply to say how much can we help the seniors to buy drugs and maintain our program. I agree with the Senator.

Mr. REED. The Senator from Michigan is absolutely right. I said this before. This represents, in some respects, the greatest bait and switch in the history of the Republic. Seniors think they are getting pharmaceutical protections, and they will wake up and discover the Medicare Program they thought was there forever has been changed irrevocably. Indeed, even the pharmaceutical protection is not that extensive, comprehensive, or effective. The Senator's point about the cost of traditional Medicare is well taken. We already have experience with this. We have had the Medicare+Choice plans. These are private plans that are not able to provide a benefit as cheaply as traditional Medicare. The 2003 Medicare trustees report estimated that reimbursement from managed care enrollees would exceed traditional Medicare costs. We are reimbursing HMOs more to care for their Medicare beneficiaries than we are through the traditional Medicare Program. We know that. That is 2003. That is the report of the trustees of the Medicare system. Yet we are still under this illusion that if we pour more money into the private HMOs through slush funds, through premium support--through all sorts of mechanisms--somehow we will change the reality. We are not going to change the reality. The reality is that this general Medicare Program is efficient, is effective, it has stood the test of almost 40 years, and it is a system that I think every American sees as being effective, efficient, and, indeed, an important part of their family's well-being in the future as it has been in the past.

Mr. REED. The Senator from Michigan is right again. Not only do you not have the ability to choose your own doctor, but sometimes it is the HMO that chooses you. We had the experience in Rhode Island of seniors signed up for HMO programs and the HMO said: We are not making enough money; we are leaving. They left the seniors high and dry. They found care by going back to the general Medicare system or another HMO. They found coverage, of course. This is a one-way street. It is not a two-way street. You get to do what they tell you you can do. That is the way they make money. It is a profit-making enterprise. Frankly, there is nothing wrong with that, and if we were the managers of these companies, we might be pursuing the same techniques of carefully selecting our beneficiaries and questioning the doctors in every instance about whether this procedure is right or wrong. In fact, the greatest criticism of HMOs comes not from seniors but doctors. They can't abide working with them. It is accountants, not health care people, who are making the decisions. We are setting this system up again. It is unbelievable, in some respects, that having had the experience of Medicare+Choice, having had the experience of a private insurance system that wouldn't touch a senior in 1965, and having the success of Medicare, we are entertaining these notions as if this is a good change, this is a good thing. We haven't learned. This represents a triumph of aspirations or hope over the facts and reality of 30-plus years of experience and of the dynamics of the marketplace. I thank the Senator from Michigan for her intervention because it has been useful in clarifying the discussion. There is one other area that concerns me, and that is the notion of means testing. In the doublespeak of this bill, it is not means testing, it is income relating. It is like cost containment and premium support. It is income relating. It is really means testing. What it does is it begins to lower the effective subsidy that the Federal Government provides the seniors based on their income. Frankly, starting off at a level of $80,000--you may say, well, maybe it is not too bad; maybe people that comfortable should be able to pay. The point is, it begins to add another way in which we will segregate participants in the Medicare system because if your subsidy falls from 75 percent, which is what it is roughly today, down to 20 percent, that will be wealthy Americans, if this plan goes through, what it does is start raising questions: Why should I be in Medicare? If I have to pay copays and I have to do this and I only get small support, why should I be in Medicare? A multiple class of health care is being created in this country. For all these reasons, I hope we have time to debate. I hope we have time to look at the legislation very carefully and not in the last few moments vote because time ran out. I yield the floor.

Mr. REED. Madam President, we are debating at the moment the Energy bill, but there is another major initiative that we are all considering. That is the Medicare bill. I would like for a moment to speak about the Medicare bill. We have a history. For 38 years, Medicare has been a central part of the life of America, not just seniors in America but every American family. Now we are being asked to consider, in the waning days of this session, fundamental changes not just to the addition of a pharmacy benefit for seniors but fundamental changes to the structure of the Medicare Program. We are being asked to do so in the waning hours of this session of Congress. What we have seen from the situation in the committee is that it was a period of negotiation between very few people, producing fundamental changes for our Medicare system. It is important, I believe, to look at some of the changes today. Much of the discussion that has taken place in the conference with respect to this proposal has not really been how best to use the $400 billion for pharmacy benefits for seniors but, rather, to make profound changes in Medicare, which I believe undermine, in the long run, the Medicare Program. One could suggest that the original $400 billion budget allocation for pharmaceutical benefits for seniors was too meager. But we could have addressed at least how to make that money go as far as we could rather than simply using it as, I believe, a subterfuge in some respects to make changes to Medicare that have been promoted by many-- particularly conservatives--for years previously. The purpose of S. 1 and H.R. 1 was supposedly to craft a pharmaceutical benefit. Indeed, what happened is much more profound and more pervasive and indeed will go to undermine our Medicare Program, not strengthen it. I have serious reservations. We all recognize that seniors need relief. Again, the $400 billion was a small part of the relief they need. It has been estimated by CBO that seniors will spend a total of $1.8 trillion on pharmaceuticals from 2003 to 2012, the 10-year period this bill will likely cover. The $400 billion, in context, is just a fraction of what seniors will pay. Nevertheless, we could have provided, I believe, much more focused, targeted, and beneficial relief to seniors than has been accomplished by this bill. More than that, we could have avoided these very serious and deleterious changes being proposed for Medicare. Let me address a few issues. There is an issue in the bill that has been discussed, which is cost containment. It represents sort of a doublespeak, if you will. I believe if you asked most of my seniors about cost containment, they would say, hallelujah, finally, you are going to bring down the cost of the pharmaceutical drugs. Wrong. In the language of this bill, cost containment is limiting the amount of money the Federal Government will contribute to the Medicare Program--not just pharmaceuticals but to the Medicare Program. In fact, if you look at what they have done with respect to the cost of pharmaceuticals they have made it very difficult for the Federal Government, through the Medicare Program, to negotiate lower prices. Once again, if you asked any senior in this country, or any American, about cost containment, in the context of pharmaceutical drugs, they would say it has to be the reduction in the costs charged to seniors, not a reduction of the contribution this Government will make for seniors. It has turned the whole notion of containment upside down, topsy-turvy. Again, it will go a long way not to help seniors but to continue the unchecked increases in pharmaceutical costs we have seen. There are reasons for this. Frankly, everyone has to recognize that revolutions in pharmaceuticals have provided a higher quality of health care in the United States. But my expectation, and my hope, was that if we were talking seriously about a Medicare benefit for seniors with respect to pharmaceuticals, we would have been able to use the market power of a nationwide Medicare Program to control prices--not set them but control them through the marketplace. A large number of beneficiaries, purchasers, could go to pharmaceutical companies, through the Medicare system, and negotiate prices, which represents the buying power of millions of seniors. That is not going to happen because, quite deliberately and consciously, this program fragments seniors; it creates regions where certain programs will vie for the business of seniors through the Medicare system. That is not going to control costs. Yet we are talking about cost containment, not in that context at all but in the notion of just limiting the contribution we will make. Again, I think what we have to recognize is that this is not going to be the way to deal with the crisis we face today and the crisis of the years ahead. There is a provision in the legislation which essentially says that as the Medicaid Program exceeds 45 percent of the general fund contribution--our contribution to Medicare exceeds 45 percent of total program expenditures, and then the President must submit a plan to Congress, and there is pressure for Congress to move. But that is a rather arbitrary and artificial way to approach the cost of Medicare. First of all, it doesn't consider the number of beneficiaries. It doesn't consider other factors, such as quality issues. It is an arbitrary device which I think will not control the real costs, which is the cost of drugs, but it will really inhibit and hamper our ability to serve our seniors. Again, this is one aspect of the legislation that I find particularly troublesome. There is another doublespeak, and that doublespeak is premium support. Again, if you asked any senior in Rhode Island, Michigan, or Maine about premium support, they would say: Hallelujah, you are going to help me pay my premium; I have been waiting for that. That is not the case. It is helping the private insurance companies by assisting them not only in their operating expenses but with their bottom line in the process. That is not what most people thought about when we talked about premium support. It will provide wide variations of premiums throughout the country, State by State, and even within States, region by region. Essentially, it will also encourage cherry-picking, a term we are all familiar with, in which these private companies that are being encouraged to now go after the seniors' business will be able to structure their marketing and their appeals to take the healthiest, younger seniors, leaving the older seniors--the most vulnerable and most expensive--to be covered in the Federal program. This will be great for their bottom line, but it will drive the cost of traditional Medicare up and up, and it will run right back into the cost containment trap we set up. Medicare will be less ``efficient'' than private plans. Therefore, it will be subject to increased Federal pressure to lower the cost. All of this violates a fundamental principle of insurance, which is that you pool risk by aggregating a range of risk. You don't segregate the healthiest people and say we will ensure just those--well, if you are a profitable private insurance company, you do. But if you are trying to plan for a national program to assist seniors, you certainly don't do that. It also defies the fundamental facts of history. In 1965, when the Medicare Program was created, seniors could not get health insurance because they were expensive to insure. They were a bad risk. No private insurance company would step up in any systematic way to insure them-- unless you were phenomenally wealthy and you could probably pay for all of your medical care out of your wealth. For the average senior, in 1961, 1962 and 1963, you were not getting private insurance. That is why we stepped in. That hasn't changed. Seniors today are still, on average, much more expensive to insure than younger people because of the nature of life and nature of disease and morbidity--all of this. This legislative proposal totally ignores that 35 years of history and the experience we all have. Again, going back to our experience, it was not uncommon when I was a youngster, teenager or younger, to visit homes of my friends and there was at least one grandparent there--a grandmother or grandfather. Why? Because their health needs required somebody to care for them. It was the families, the 40-year-olds, 35-year-olds. Much of that changed in 1965 because now seniors had the ability to obtain health care coverage. This whole system is being threatened by premium support, which will incentivize private insurers to come in and attract and subscribe the youngest healthiest seniors, leaving the traditional Medicare Program with the older, most expensive population to cover; and, again, all of this is leading into that trap in which cost containment will tell the Federal Government, oh, stop, we are paying too much money for seniors. I believe this is, again, a profoundly poor concept, and it is further complicated and exacerbated by another aspect. We are creating a $12 billion stabilization fund, again, for private insurers. We are taking Medicare money, the money which our seniors--in fact, all Americans believe we are earmarking for senior health care and setting up a fund--a slush fund--that will provide further incentives to private health care purveyors and further unbalance the playing field between traditional Medicare and these new private plans. We could have done much with this stabilization fund. We could have lowered the so-called donut hole when benefits expire for some seniors and then renew themselves after several thousand dollars of additional expenses. We could have closed that gap. We could have done a lot of creative, innovative things that not only would have assisted seniors but would also make a real concerted effort to control the cost of the program in a principled way. Yet we didn't do that. We have created a situation in which, again, the deck has been stacked against traditional Medicare and against, I believe, the logic of insurance of aggregating as many risks as possible across regions, across the country, across ages from the youngest seniors to the oldest seniors, the healthiest seniors to the ones who are sick and frail. We are also going to hit and create a situation where we will give incentives to these companies to fragment the Medicare system. Frankly, if insuring seniors was a profitable area of endeavor, 35 years ago we wouldn't have had to step in and create Medicare. If it was a profitable endeavor today, we wouldn't have to have a $12 billion stabilization fund, and we wouldn't have to have premium support. We will spend more money than we have to and we will get less for our money and seniors will get less in terms of the benefits, not just pharmaceutical benefits but the overall Medicare Program. I emphasize again, this is not just trying to tailor and contain the cost of pharmaceuticals. This applies across the board.

Mr. REED. Yes.