Pat Roberts

Mr. ROBERTS

Mr. ROBERTS. Mr. President, I rise today to honor the hard work and dedication of our men and women in the U.S. Army and all branches of service. Just a couple of weeks ago, I had the pleasure of attending the uncasing ceremony at Fort Riley, KS. It was an honor. For those who have not attended an uncasing ceremony, it symbolizes a homecoming, and certainly that was the case at Fort Riley. It signifies the presence of the command and resumption of that command's authority. It offers a time to reflect on the heroic efforts and the leadership of the men and women of the Big First. Since returning to Kansas in 2006, the 1st Infantry Division's headquarters deployed to Iraq. But this was not the first time the division has uncased its colors at Fort Riley. In fact, it was the fifth time in 55 years. During their time in Basra, Iraq, the men and women of the Big Red One assisted in completing many vital projects. Approximately 850 soldiers deployed from Fort Riley in February of last year. The division's efforts were supported by other services and also government agencies. The mission was more offensive than defensive--a change for the men and women of the Big Red One. To quote Fort Riley's outstanding commanding general, MG Vincent Brooks: The Big Red One as U.S. Division-South was a trusted partner to the Iraqi Security Forces, to 9 U.S. Provincial reconstruction teams led by the U.S. Department of State, with participants from other agencies of the U.S. Government, and to other U.S. forces in Iraq, the Big Red One ensured that the hard-earned stability emerging in Iraq would never drift away. Their success was our success. The accomplishments of the Big Red One are numerous and merit the attention of my colleagues. The division assisted Iraqis in completing the Basra Children's Hospital, a cancer center noted as one of the most modern facilities in the Middle East. I was fortunate to spend time at the ceremony with about 30 soldiers in the unit. One noncommissioned officer in particular stood out. I asked all of them how many deployments they had made to Iraq or, for that matter, Afghanistan, and the answers were two or three or four. But this one noncommissioned officer had five deployments. I asked him what on Earth was wrong with the deployment situation in his case. He said: Oh, no, I wanted to come back to my unit, to the Big Red One; I wanted to come back to Iraq and continue the work I thought was so important. I asked him what the difference was, and he said: Well, when I was here first in Iraq, we lost nine in our unit; nine paid the ultimate sacrifice. But in this deployment, no shots were fired. If there ever was testimony from somebody on the front line, and obviously the NCOs run the Army, with due respect to the officers, but he summed it up pretty well: first deployment, nine fatalities; last deployment, no shots fired. I am truly grateful that all of the soldiers deployed from the Big Red One's division headquarters returned safe this time around. By the way, General Vincent Brooks, remember that name as I am sure you will hear it again, will soon be receiving his third star and will be reassigned to the Central Command. Anyone who knows General Brooks and his wife, Dr. Carole Brooks, is not surprised. This promotion in the new command comes as no surprise to anyone in the area, especially the people who served under General Brooks and have had the privilege of knowing him. Simply put, he is an inspirational leader with an outstanding record. From the Kansas congressional delegation, General, well done, sir. You will be missed, but our pride in your success, your future success, and the job you have done and the job you will do make us all proud. It is a pride we all share. I ask unanimous consent to have General Brooks's comments printed in the Record.

Mr. ROBERTS. Mr. President, I ask unanimous consent that I may proceed for 10 minutes as in morning business.

Mr. ROBERTS

Mr. ROBERTS. I will answer the question, no. I do not think we are doing the job we could do, and we should do better, and I stand ready to work with all concerned to see if we can do that. But my time is up, and I am going to cease here and allow the Senator from Texas to be recognized.

Mr. ROBERTS. If the Senator will yield, I think the Senator is exactly right. I am on the HELP Committee, as the Senator may recall, and I was trying to get one amendment to say that we would prohibit the use of rationing to achieve cost containment, and it involved several of the commissions that have been in the bill. I regret that bill sort of sat somewhere and collected dust. We never got a score. I thought it was, quite frankly, a better bill than the one in the Finance Committee. I say to the Senator, you recognized me, and I had an opportunity to offer some amendments. At least there was some debate. And I think it was a much more bipartisan effort. So I give the chairman----

Mr. ROBERTS. Senator Cornyn wants to be heard, so I am going to be quiet and listen to you.

Mr. ROBERTS. Mr. President, I thank my colleagues for their pertinent remarks. The Senator from Iowa said in the past he had entered into a colloquy with colleagues on our side of the aisle where they wandered over into each other's pastures. I am going to put down this microphone for a moment and speak from here in a gesture of bipartisanship on how we can improve the Senate. I know we have heard a lot of talk about Robert C. Byrd, a beloved individual. I know the Presiding Officer was very close to the former Senator. The last time Bob Byrd spoke publicly was in the rules committee, when he rose to the occasion in a very passionate way. The chairman, of course, Chuck Schumer, the Senator from New York, with great deference recognized Senator Byrd. We were all on the edge of our chairs. The Senator from Tennessee has already gone over what Senator Byrd said at that time and previously. But I remember when I first came to the Senate, it was required that we go to school, so to speak, and Senator Byrd talked to all of the freshmen at that particular time. The keeper of the institutional flame was the tag I put on Senator Byrd. My wife Franki and I became very close friends of the Senator. At any rate, he recounted the story attributed to Jefferson and Washington, he would tell every incoming class about the role of the people's House and perhaps what happened, when they put the coffee pot on in regards to legislation, that the coffee was so hot it would boil over, and it was the Senate's duty to act as the saucer, as folks did back in West Virginia in the earlier days, or Kansas or Iowa or Tennessee or Texas, that they would pour the coffee out in the saucer and let it cool off a little bit so they could put their biscuit in it and actually eat it, and then the legislation would pass. The problem is, sometimes on our side maybe we want tea, maybe we want to start over. I think the Senator from Tennessee basically hit the nail on the head with the massive three. If we are going to talk about getting things done or not getting things done, there are three massive things that have happened with regard to legislation. I say ``massive'' because they were so overreaching, so overwhelming, we are now just learning what their implications are. The massive three are financial regulatory reform, the health care act, and the stimulus. Now the health care act, I have a personal feeling about that in that I had 11 amendments, all on rationing. By the way, the Senate never confirmed the nomination of Dr. Donald Berwick, the head of CMS, the Center for Medicare and Medicaid Services. We planned to ask a lot of questions to the doctor because of statements he made in the past. Obviously, that confirmation did not happen. He was a recess appointment. That is something I think we ought to deal with as well. Now, the health care act, it was 12:30 in the morning in the Finance Committee. I had several amendments, all on rationing. Finally, we got to the last two. I said: Why don't we consider them en bloc? I had about a minute or two to explain each amendment. They were voted down automatically on a party-line vote. By the time we got to 12:30 or 1 o'clock and my amendments, I noticed Senator Schumer was in the room so I stuck on one of his amendments along with mine. It was defeated on a party-line vote. Then I let Senator Schumer know that we had defeated his amendment as well. He wasn't too happy with that. I just showed that the process has broken down to the point that even in committee, if you had two amendments, if you had five, if you had one, you were simply ignored. Then the health care act came to the floor and worked its way. I think the Senator from Tennessee brought up the ``Grand Ole Opry.'' I saw it as making a bill behind closed doors. That is a famous country western song. We didn't like that process at all. I finally had only one other recourse and that was to go to the reconciliation process, which I knew was not going to be successful, but I had several amendments, all were defeated. My main concerns about the health care bill were not allowed, as far as I was concerned, on the floor of the Senate, and that has happened a lot. Now we are seeing an effort to repeal the health care act and also an effort to try to fix it, if we possibly can. I am not as upset about that as some people are because I think we could get the proper kind of debate, but the debate must proceed in regular order and under the standing rules of the Senate as a continuing body. I am not going to go into the quotes by Senator Byrd. That has already been done by Senator Alexander. But I would like to quote Senator Dodd in his valedictory speech. The history of this young democracy, the Framers decided, should not be written solely in the hand of the majority. This isn't about the filibuster. That is the most important statement he made. What will determine whether this institution works or not is whether each of the 100 Senators can work together. How can we do that? Here is a classic example. Right before Christmas, there were several bills the majority wanted to pass without allowing the minority and the American people the right to debate or amend them. So the tree was filled, and that is the parliamentary language to say: I am sorry, we are going to cut off debate. In the first three years and four months of this majority, the use of filling the tree went up over 300 percent compared to the average for the previous 22 years. Ninety-eight times in the 110th Congress, cloture was filed the moment the question was raised on the floor. A debate was not even allowed to take place. So on one hand you can talk about filibusters; the other hand is filling the tree, or not allowing Members to offer amendments, and same day clotures. The Senator from Tennessee offered the classic example. Let's go back to a few days ago, right before Christmas. The DREAM Act was a House bill. I know the Senate leadership wanted to pass it. It never had a legislative hearing in the House, never had a markup in the House. The Senate version of the DREAM Act had not had a markup since 2003. In sum, the DREAM Act, a controversial measure with very passionate beliefs on both sides of the aisle and within the parties as well had not had an amendment offered to it in either House of Congress either in committees or on the floor. Some may believe the DREAM Act is perfect or certainly is the best bill possible and would not need any amendments to improve it. But, obviously, our constituents don't feel that way. It is a very controversial bill. Instead of addressing their concerns, the majority shut down debate and amendments and in the process shut down the rights of Americans to be heard. As a result, the minority refused to end debate and, obviously, there was a filibuster. It would be interesting to know, of the times that bills have been filibustered, what was being filibustered. Contrast this with the approach taken on the 9/11 bill which the majority sought to pass just a few days later. The goal of providing help to the victims of 9/11 is one Members of both parties share, but Senate Republicans noted that the particular version of the bill Senate Democrats supported was problematic in regards to how much money we were spending and certainly would need improvement. So we insisted on having our concerns addressed. Most of them were addressed with a revised bill on which we did provide input. That bill passed the Senate by unanimous consent, and even the proponents of the original legislation would admit that the final bill is a better one and now enjoys broader support due to the minority's input. What I think the majority needs to do is involve the minority like it did on the 9/11 bill, not shut us out, not shut us down as it did on the DREAM Act and other acts. If that happened, if we did not fill the tree, I think possibly 75 percent, 80 percent of the filibusters would go away. There are some who would like to filibuster anything, I know. But it gets back to what the Senator asked: Why are we here? It is important to pass legislation. But it is equally important to prevent bad legislation from passing or, if you have an alternative you would like to offer, to at least have the ability to do so. In the last 2 years that process has simply broken down. Why can't we work together? That is what Senator Dodd said. He asked whether each of the 100 Senators can work together. That was on the question of filibusters. We can stop this business of secret holds. It seems to me we could have a timely pace on nominations. It seems to me we could certainly end these recess appointments where people who should be confirmed have to go through the confirmation process instead of all of a sudden parachuting somebody in who is controversial and now we have over 100,000 regulations pouring out of the Department of HHS. Health care providers throughout the Nation--in Iowa, Tennessee, Kansas--are wondering what on Earth is happening. When I go home, I don't get the question of why a bill didn't pass. I get the question: What on Earth are you guys doing back there passing all the legislation with all the regulatory stuff that I have to put up with, taxes I have to pay, et cetera, et cetera? As a matter of fact, when they pose that question, I say: I am not a you guy; I am an us guy. Then we have a debate, but it is a debate that should have taken place on the floor of the Senate instead of on the plains of Kansas. Unfortunately, because of the majority, we were not able to have that debate here, on the floor. The question I have for the distinguished Senator from Iowa--and I appreciate his reference to our work in previous farm bills. We were able to work it out. Sometimes it was very contentious, and sometimes the farm bill would come to the floor, and it would take a week and a half. Then we would have an appropriations bill, and then the appropriators would think they could rewrite the farm bill and take another week and a half. But we worked through it. Nobody filled the tree and said: I am sorry, you can't have that amendment. I am making a speech instead of asking the question. I apologize for that. I am in agreement on secret holds. I think there should be timely pace on nominations. I do think we should go through the regular confirmation process. But I do feel exactly as the Senator from Tennessee has put out, that once you get on this business of ending the filibuster or going down on the number of requisite votes, you are on a slippery slope, and then you are into the tyranny of the majority, and that is not what the Senate is all about. I will stop at this point and ask the Senator from Iowa if he has any comments.

Mr. ROBERTS

Mr. ROBERTS. Mr. President, I rise today to honor the service of my friend and colleague Sam Brownback. Sam was elected to the House of Representatives in 1994 during the Republican Revolution and was subsequently elected to the Senate 2 years later when former majority leader Bob Dole made his bid for the White House. It has been both a privilege and a pleasure serving alongside Sam during these past 16 years. All of us who seek public service want to make a difference, and most certainly, Sam Brownback has done that. In these endeavors I have enjoyed working with Sam in achieving some note worthy accomplishments for our State of Kansas. As I reflect upon our mutual efforts, it is hard to figure out who was driving the stage and who was riding shotgun. Simply put, it has been a team effort, and I have been both humbled and proud to work with my colleague who has provided unique and respected leadership. Sam's record speaks for itself: bringing the Big Red One back home to Fort Riley, KS, where it started and now belongs; bringing the National Bio- and Agro-Defense Facility, NBAF, to Manhattan, KS; ensuring fair treatment of the general aviation industry in FAA bills; and working together to rebuild Greensburg, KS, after 95 percent of the community was literally blown away by an EF5 tornado. But beyond our work together on State specific issues, it is Sam's Federal legislative initiatives that I think will have the longest impact on the Senate and the lives of so many people, pot only within Kansas and our Nation but, indeed, around the world. Since the late 1970s, the term ``compassionate conservative'' has been tossed around quite a bit to describe a philosophy--a philosophy that states by applying conservative ideals, our government can best improve the welfare of our society. I think many of my colleagues would agree that if anyone in public service over the past 30 years embodies this philosophy, it would be Sam Brownback. What is unique about Sam and his approach to politics these past 16 years is that his ideas went beyond words and rhetoric. The Sam Brownback approach was simple but effective. He applied his beliefs to action, reflected by the many legislative accomplishments he championed during his tenure in the Senate. Sam is a big believer in forgiveness and second chances. How to put that belief into action? Sam introduced a bill that really shows his heart for those in society who many times are not given an opportunity to make amends: the Second Chance Act. Signed into law during the Bush administration, this act created a grant program for State and local governments to fund job training and family mentoring programs to help reintegrate past offenders as they are granted release back into society. But Sam's legislative victories did not focus solely on domestic issues. Sam has a great love for the continent of Africa. Serving on the Senate Foreign Relations Committee, he traveled to Africa on multiple occasions to gain a better understanding of how he could help provide relief to those most vulnerable. His experiences led him to champion the Darfur Peace and Accountability Act of 2006. Enacted that same year, this law created sanctions against individuals and groups responsible for the terrible crime of genocide in Darfur, while establishing measures to protect civilians and humanitarian efforts within the borders of Sudan. The more Sam did, the more he felt called to do, and no one did more for the protection of victims of human trafficking than Sam. In 2000, he helped enact the Trafficking Victims Protection Act. This law created criminal punishments for individuals caught in the United States operating as traffickers. It established an annual reporting mechanism to help track individuals engaged in sex trafficking and created a new immigration status for victims of sex trafficking. Lastly, I believe Sam's prominence during his time in the Senate had a great deal to do with his willingness to work across party lines on issues where he could seek and find common passion and ground. The legislative item I think will leave the largest impact on many of us in the Senate is the bill upon which he worked tirelessly with the late Senator Ted Kennedy. Signed into law by President Bush, the Prenatally and Postnatally Diagnosed Conditions Act provides those families with children diagnosed with Down Syndrome the support services and networks they need to help them deal with the unique challenges they face. Put another way, what better legislation to help protect the lives of those in our Nation uniquely challenged but who deserve every right to the same opportunities we all enjoy everyday. I could easily and proudly recount many more of Sam's achievements during his time in the Senate, but I would do so in danger of Sam saying ``enough'' and giving me ``the hook.'' I have often said that the high road of humility is not often bothered by heavy traffic in Washington, but in Sam Brownback, we have indeed enjoyed the friendship of a humble man. In closing, I leave my colleagues with one of Senator Brownback's favorite quotes that I think sums up the man that Sam is and the love he has for all people, regardless of their nationality or place in society. Sam likes to say: `` I am pro-life and whole-life. Applying this belief to the child in the womb and to the child in Darfur. It includes the man in prison and the woman in poverty. It does not fail to cherish the child with Down syndrome or stand for the inherent dignity of the immigrant.'' Sam, I remember the first campaign rally we attended together. The featured guest speaker, Senator Phil Gramm of Texas, introduced me as one who made significant changes in the House of Representatives and then introduced Sam as: ``One who not only wants to change things, but to make the right changes.'' Sam, you have done just that and it has been an honor to serve with you over these past 16 years. I thank you for your courtesy, cooperation, leadership, example and your friendship and support. As you head west, my friend, to lead our beloved State of Kansas, I look forward to continued cooperation and success. The people of Kansas are in good hands. God bless. arlen specter

Mr. ROBERTS

Mr. ROBERTS. Madam President, I ask unanimous consent that I may proceed for 15 minutes.

Mr. ROBERTS

Mr. ROBERTS. Madam President, health care--big issue. The health care reform bill that is current law--big issue. A lot of talk about repeal, fix what is wrong in the bill, what is right in the bill, depending upon your personal opinion. I think that the Senate--more especially the committees of jurisdiction, and I am talking about the Senate Finance Committee--has a unique obligation, especially at this time, to conduct its oversight responsibility. Unfortunately, that was not the case as of yesterday. One of the major problems with the new health care law is the huge amount of power and authority it grants to one man, the Administrator, perhaps we should call him the czar, of the Centers for Medicare and Medicaid Services, CMS. Rest assured, every health care provider in the country knows what and who CMS is. The Administrator is Dr. Donald Berwick. One of the major problems with Dr. Berwick is his longstanding, well-documented support for government rationing as a means of controlling health care costs--not my words, his. Yesterday, the Senate Finance Committee finally had our very first chance to question Dr. Berwick. I say finally, because for months my colleagues and I have requested this opportunity, a request which was denied when President Obama provided a recess appointment for Dr. Berwick. So yesterday's hearing was a hollow one of sorts, since Dr. Berwick had already been installed at CMS, or maybe parachuted in would be the right way to describe it, in that he has made many controversial comments about his love for the British health care system and for rationing and other comments that certainly deserve a hearing in regards to a confirmation process. That did not happen. He was also installed pretty much after the debate that we had on health care. Now, unfortunately, we were only given 5 minutes each yesterday to question the most important man in American health care as of today. This was 5 minutes, sandwiched in between lengthy remarks by the chairman, the witness, and the floor votes we had yesterday. I was not able to question Dr. Berwick on many things. I asked unanimous consent of the chairman if I could submit questions for the Record. Obviously he agreed and that was it. But when Ranking Member Grassley asked Dr. Berwick if he would commit to appearing before the committee again--which I think the doctor would; he is a very affable and personal man. I do not agree with him, but he is affable and personable--so we could continue our oversight, Chairman Baucus interrupted his response and refused to make any further commitments. How is that for transparency? How is that for finally getting to a hearing about the man who is the most important man today in regards to the new health care law and implementing it? Because I was not able to ask Dr. Berwick my questions yesterday, I am forced and am asking them here on the Senate floor. Dr. Berwick knows my No. 1 concern with President Obama's health care law is the enormous potential for the government to interfere in the treatment decisions of the doctor and the patient. Dr. Berwick has a long history of statements supporting government control of treatment decisions, or what I would call ``rationing.'' I know some would say that is not the case. But Dr. Berwick has said that: Most people who have severe pain do not need advanced methods; they just need the morphine and counseling that have been around for centuries. A most unique statement, to say the least. He has publicly stated an aversion to new medical technology and health care advances, saying: One of the drivers of low value in health care today is the continuous entrance of new technologies, devices, and drugs that add no value to care. That is in his eyes. He refers to this as an ``excess supply'' of health care. And, of course, we have his infamous quote that ``the decision is not whether or not we will ration health care. The decision is whether we will ration care with our eyes open.'' It should then come as no surprise that CMS under Dr. Berwick's leadership has embarked upon a path of increasing government control, centralized decisionmaking, and top-down mandates that treat doctors as nothing more than cooks practicing ``cookbook medicine'' and patients as nothing more than numbers, despite their individual needs and desires. One example: attempts by CMS to restrict the number of times seniors with diabetes can test their blood sugar by limiting them to one test strip per day, regardless of what the doctor recommends. Doctors understand that diabetes care is an exceedingly complex and personalized enterprise. My question that I could not ask yesterday: Why is CMS replacing the judgment of a doctor on how many times their patient should test their blood sugar with a CMS-knows-best approach? An even more egregious example of the government getting in between patients and doctors is Dr. Berwick's recent investigation into Medicare coverage of the life-extending prostate cancer therapy Provenge. Provenge is a therapeutic vaccine approved by the Food and Drug Administration to treat late-stage prostate cancer through an innovative process that removes immune system cells from patients and exposes them to cancer cells and an immune system stimulator and then injects them back into the patient. Provenge has been shown to increase life expectancy by an average of 4 months but sometimes longer, with one patient living an additional 7 years. In addition, Provenge is special because of its lack of side effects as compared to the traditional chemotherapy methods. So not only can patients live longer, but their quality of life will be better. Medicare coverage for FDA-approved drugs is usually automatic. My next question to Dr. Berwick would have been, had I had the opportunity in the committee yesterday but was denied because of scheduling: Why did you initiate a coverage investigation so soon after Provenge was approved? Why is CMS seeking to substitute its judgment for not only patients and doctors but for the FDA, the gold standard for drug approval worldwide? Are you questioning the FDA's decision? When drug companies and research folks produce after many years of research and effort and cost, are they going to have to go through two hurdles-- first, the FDA, which can take years, and then CMS--as to whether Medicare will approve it? It seems that is where we are headed. I know or I think I know the answer as to why Dr. Berwick decided to conduct this investigation. It is cost--$93,000 for a complete cycle of Provenge was the driving factor behind this investigation. The good news is that yesterday an advisory committee recommended that CMS cover Provenge. But I am very concerned about the precedent this sets not only for other cancer regimens such as the promising breast cancer drug Avastin but for all new medical innovations. Some may say that an extra 4 months of life is not enough to justify this high price tag. It is a high price tag. First, the government should not be in the business of placing dollar values on life, period. That is what Great Britain is trying to move away from. That is why David Cameron made the unique statement that maybe we ought to have a system that puts the choice between doctors and patients. What a novel idea. Secondly, the traditional chemo and all of its associated side effects costs Medicare upwards of $110,000 per patient per year. So Provenge is actually a cost saver when viewed in that context. Third, this is exactly the type of innovative approach we need to win the fight against cancer. Medical advances don't come in giant leaps; they more often occur at the margins. We should not deny patients and doctors treatment options simply because they don't offer a complete cure. That is shortsighted, not to mention cruel. Finally, if we want companies and investors to continue to pour their dollars and efforts into developing a cure for cancer, this is the wrong approach. The investment into researching and developing Provenge approached $1 billion over 15 years, 15 clinical trials. Refusing to allow a return on this huge investment will send a chilling effect across the health research industry, resulting in less investment, less innovation, and worse care for patients. Maybe less innovation is actually the goal of this administration and of Dr. Berwick, who has targeted the ``entrance of new technologies, drugs, and devices'' as ``one of the drivers of low value in health care today.'' Value is a subjective concept. Another question I have for Dr. Berwick: I prefer that the value of health care be determined by the patient and doctor, not the government. Would you agree? Finally, from yesterday's news, I have been shocked by the number of ObamaCare waivers coming out of the Department of Health and Human Services. According to the New York Times today, 111 waivers have been granted to employers to allow them to avoid the new health care mandates. The only thing more shocking than the number of waivers is who is getting them. Would you believe that they are some of the most ardent supporters of health care reform? Unions such as the Service Employees International Union, the United Federation of Teachers, and the Transport Workers Union have all applied for and been granted waivers from the rules. They don't have to follow the rules. They don't have to follow the mandates. Guess who are the strongest supporters of health care. The fact is, ObamaCare is bad for business, bad for workers, bad for seniors, bad for taxpayers. My question to Dr. Berwick: When will the American people get a waiver from ObamaCare? Of course, that decision would be under the purview of the Secretary of the Department of Health and Human Services, Kathleen Sebelius, whom I know as a personal friend. Kathleen, Kathleen, Kathleen, you are granting all these waivers to people in regard to the mandate on health care. When will the American people get a waiver from some of the things they choose not to take part in? This is, indeed, shocking news. I yield the floor.

Mr. ROBERTS

Mr. ROBERTS. Mr. President, I rise in support of Senator Enzi's resolution of disapproval and thank him for that. It seems every day a new story comes out about the negative consequences of the health care reform law, and I cannot keep up with them. I know people involved in the health care industry are having a very difficult time also. Do you remember the campaign pledge that health care reform would immediately reduce family's premiums by $2,500? Well, last week a slew, a slew of new mandates on health insurers, including coverage of preventative services without any cost sharing, restrictions on annual limits on coverage, and coverage of children up to age 26--I guess a child 25 is a child--took effect. Many of them, in fact, may be beneficial to some Americans, but they will not come free. Health insurers have begun alerting their customers to the fact that these new mandates cost money, money that has to be charged in additional premiums. I think most Americans understand you cannot get something for nothing. But instead of admitting that their policies are causing health insurers to raise their rates, the Obama administration has unleashed Health and Human Services Secretary Kathleen Sebelius to silence its critics by intimidation. In a letter to America's health insurance plans, the Secretary explicitly threatens health insurers that do not toe the line on ObamaCare with exclusion from the State health insurance exchanges, which start in 2014. ``There will be zero tolerance for this type of misinformation and unjustified rate increases,'' she has warned. ``We will also keep track of insurers with a record of unjustified rate increases: those plans may be excluded from health care exchanges in 2014.'' Well, let's be clear about what the Secretary, on behalf of the President, is saying. She is threatening to shut down private companies for exercising their first amendment right to free speech, and she is keeping a list. Some have called this gangster government in the press. As a former newspaper man, I am shocked. I am stunned by my former Governor's actions. First, it was the gag order on Humana Insurance for daring to describe the consequences of slashing more than $100 billion from Medicare Advantage to the customers, now this. This administration says it wants transparency. Well, transparency is a two-way street. It does not mean muzzling dissenting opinions or inconvenient facts because they are not advantageous to the administration. As the Wall Street Journal opinioned: ``They're more subtle than this in Caracas, Venezuela.'' Not only are the actions of the Obama administration unconstitutional, they are also extremely hypocritical in light of their own highly misleading rhetoric. For example, the President and Secretary Sebelius have been touting the recent decision of health insurer Blue Cross Blue Shield in North Carolina to issue rebates to its customers in the individual market as a supposed ObamaCare victory. President Obama claimed this victory at a recent campaign stop in Virginia, saying that the insurance commissioners are newly empowered to look after consumers, that we are already seeing ObamaCare's new levels of accountability pay off. Well, aside from the fact that most State insurance commissioners have had the ability to review rate increases for years, a fact that Secretary Sebelius, as a former Kansas insurance commissioner, knows all too well, they are leaving out another very important fact, the rest of the story. What they are not telling you is, the reason why the insurer is paying out rebates is, because of ObamaCare, their plans in the individual insurance market will cease to exist in 2014. This means the reserves they have stored to protect their solvency are no longer necessary. That is where the rebates are coming from, not some well of hidden profits. The insurer is paying the rebates out of their reserves because the plans will no longer exist. This is hardly a victory for the thousands of people enrolled in those plans. If that is not misleading, I do not know what is. What about the Secretary's taxpayer-financed mailer regarding Medicare Advantage that was recently sent to seniors all across the country? This mailer misleadingly claims that Medicare Advantage enrollees will not see any changes to their benefits under ObamaCare. That is a claim that is demonstrably false. Already we are seeing insurers such as Harvard Pilgrim drop their Medicare Advantage plans altogether as a result of these huge cuts. So actually thousands of seniors will see changes in their benefits. They will not have any. I urge the President and the Secretary to reconsider their use of these tactics which only serve to further erode the government's credibility with the American people and to insult their elected representatives. In the United States of America, private citizens are not only allowed to disagree with the government, it is a cornerstone of our democracy. So I say to the Department of Health and Human Services and the administration, stop the gag orders and the intimidation. To HHS, do not tread on the first amendment. I yield the floor.

Mr. ROBERTS

Mr. ROBERTS. Madam President, I ask unanimous consent to speak for 15 minutes to eulogize our former colleague and friend, the President pro tempore of the Senate, the distinguished Senator from Alaska, Ted Stevens.

Mr. ROBERTS. I yield the floor.

Mr. ROBERTS

Mr. ROBERTS. Mr. President, I have just returned from the interment services for our colleague and our friend, the Senator from Alaska, Ted Stevens. I must say it should be pointed out that our Chaplain, Chaplain Black, gave a marvelous eulogy during the graveside services that was poignant, elegant, and I know in regard to helping the family with solace and poignancy, he had no equal. He simply was absolutely marvelous. He described Ted Stevens as a ``force of nature''--which I think was a rather appropriate description, depending on your description of a force of nature--and as a person who always made him laugh. Well, it is difficult to try to figure out how to eulogize a person of Ted's stature, someone who has done so many different things. So you have to sort of segment, it seems to me, your own personal relationship with Ted and do the best you can to grasp this unusual man and describe him. I was a Member of the House when I first met Ted Stevens. It was at a Republican retreat years ago. In expressing his opinion, he was obstreperous, if not outrageous, regardless of any other person's point of view. To say he was both unique and memorable is an understatement-- a force of nature, indeed, perhaps a wandering tornado, if you will, with a poststorm rainbow of ideas. I came to the Senate back in 1996. It didn't take long for Ted Stevens to burst into my--up to that point--relatively routine senatorial life. He jabbed his finger on my chest and said, ``I know who you are.'' I responded, ``Well, I sure as hell know who you are.'' He said, ``You allegedly know something about agriculture.'' I said, ``Well, thank you,'' and he interrupted and said, ``You serve on Armed Services and Intelligence?'' I said, ``That's right.'' He said, ``How would you like to go to the Russian Far East with me and Danny and some others?'' I thought to myself, Why on Earth would I want to go to the Russian Far East? He said, ``We are going to Khabarovsk, and then we are going to Vladivostok.'' But that's out there where the Cossacks went over the steppes of Russia. ``Then we are going to meet with the admiral of the Russian navy, and Vladivostok is closer to Alaska than to Moscow. I know him,'' said Ted. ``Then we are going to go to South Korea to indicate our strong support. But then we are going to be the first delegation allowed into North Korea, Pyongyang.'' Well, that got my attention. He said, ``That is why I need to have you come along, because if we can arrange a third-party grain sale, there are things that we can do in North Korea to at least establish a relationship.'' I thought, what a unique idea, using agriculture as a tool for peace, if you will--or at least a fulcrum to change the relationship with North Korea. I said, ``Well, sure, I will sign up.'' That began a personal and meaningful relationship with Ted and Catherine and their family with Franki and our family that lasted during the duration of my career in the Senate until his untimely death weeks ago. He said, ``I understand that you are a newspaper guy.'' I said, ``Yes, and?'' He said, ``You could be the scribe in regard to our CODEL.'' I might add that any CODEL you went on with Ted Stevens, you always had a T-shirt afterward saying: ``I survived CODEL Stevens.'' You could--and I did--end up at the South Pole. So I was known as the Stevens CODEL scribe. In any case, we went to Khabarovsk and Vladivostok. We talked to that admiral, who felt closer to Ted Stevens than he did his own Russian Government, and we went to Sakhalin Island. Ted was trying to work out some kind of arrangement where American oil companies could explore and develop the tremendous oil reserves there and have a contract that meant something with Russia. It was there that Flying Tiger Ted learned about saber-toothed tigers that were allegedly actually still alive in that part of the world. It is a wonder he didn't schedule a hunting trip. Then we went to South Korea and eventually into North Korea, and it was the first delegation allowed into that theocratic time warp. We left everything on the plane. We stayed at an alleged VIP headquarters--no heat, very cold, just North Korean TV with 24/7 military parades and martial music. That night the discussion had gone on and on and on. We had hoped to meet with Kim Jong Il. That was not possible, so he sent two of his propaganda puppets to meet with us. We had permission from the Treasury to waive certain requirements so that we could arrange for a third- party grain sale to assist North Korea, which goes through a famine every harvesting year. It would have been at least a start. So you had Ted and Danny Inouye, two World War II veterans, who told the North Korean delegation it was time to make Panmunjon a tourist attraction. Ted finally had it and said, ``Knock off the BS. I know you understand English. Let's get to the bottom line.'' The bottom line was that they could not do anything in terms of policy. They were there to make an intelligence estimate, and it was a lost opportunity at that particular time. The leadership effort by Ted Stevens didn't pan out, but not for the lack of trying. On another CODEL we landed at 11 and got to the hotel at about midnight. Ted was a great connoisseur of military history and movies. He was a great devotee of the series ``Band of Brothers.'' So we were playing Band of Brothers to staff and to all present. This is at 12:30 at night, going on to 1, 1:30. We had fought and died with episode five; we were going to episode six. I looked around, and all the loyal staff were asleep; all Members were still there and were asleep. I was having a hard time keeping my eyes open. I looked over at the great man, and his eyes were closed. I thought he was asleep, so I got up and started to turn off the television. As I reached for the power button, he said, ``This next part is the best part.'' He was not watching it; he was listening to it because he had seen it at least three times. Well, needless to say, we saw episode six in its entirety. Thank the Lord, we didn't go to episode seven. We would have been there all night. Some years ago, I was present for the ceremonies in Alaska when Ted was named the ``Alaskan of the Century.'' How on Earth could a sitting Senator, or anybody, get overwhelming citizen support and approval and accolades from his State and be named ``Alaskan of the Century''? Ted did. I was there to allegedly roast him. There was a great crowd. Facts and records are stubborn things. He was and is still today the ``Alaskan of the Century.'' What he did and what he accomplished in the making of our 49th State was simply remarkable. By the way, the Federal Government still has not made good on many promises they made to Ted when he worked so hard and diligently to make Alaska a State. At any rate, he flew in, during that ceremony, on a World War II plane. He had his combat jacket. He came in with Catherine and they took their places on very posh chairs. I will quote what he said time and time again to the people of Alaska: ``The hell with politics; let's do what's good for Alaska.'' I will add this: The country and our national defense and every man and woman in uniform owe this man a great debt. When you come to this body and you come to public service, you know you risk your ideas, your thoughts, your hopes, and your dreams before the crowd. Sometimes the crowd says yes, and you have friends who will stand behind you when you are taking the bows. Then perhaps something happens in your life and you suddenly become a lightning rod for accusations; you wonder where your friends are, who will stand beside you when you are taking the boos, not the bows. The lightning rod was fast, furious, and egregious, especially considering the man, his accomplishments, and integrity. In Washington, when there is crisis and chaos and big-time problems, many are called but few are chosen. When the chips were on the table, we chose Ted. As chairman of the Senate Appropriations Committee, he headed up the posse that decided the Nation's spending priorities. What a tough job. It was a tough job then, and it is even tougher today. But he did a heck of a job. For, you see, Members of Congress are a lot like someone suffering from the flu, an insatiable appetite on one end and no sense of responsibility on the other. They said: Ted, Ted, I know we have to meet our budget caps, but this program is really important to me. My program is an investment, not a cost. Somehow, someway, the chairman has to wade through all of the demands of his colleagues, try to meet the ever changing and growing needs of our Nation at an unprecedented time of economic challenge, and through all of it, then he must fulfill our obligations to guarantee our national security and to the many entitlement programs we are very reluctant to reform in this body and the other body and to which we Americans seem to think we are entitled. It is like herding cats, big cats with saber teeth, just like those up on Sakhalin Island. In the doing of this, Ted Stevens was surrounded by many colleagues good at proposing more spending on existing programs and new programs to boot and those who look at any spending increase with a gleam in their eye and the tools of a stonecutter. There are few, however, who can measure value, and that is what Ted did. Just at the time he thought he could make both ends meet in behalf of Alaska and our Nation, someone moved the chains. To his critics--and there were many--the old saying ``a penny for your thoughts'' may be a fair evaluation of their contribution. The wheels of progress are seldom turned by cranks, critics, or, in Ted's case, a howling pack of wolves. Today, both political parties are having trouble looking beyond their ideological fences. Ted Stevens was a bipartisan fence-mender while riding herd on all of the strays. How on Earth did he do this? How did he persevere throughout an ordeal that would have best the best of men? Abraham Lincoln defined duty in this way: I do the very best I know how, the very best I can, and I mean to keep doing so until the end. If the end brings me out all right, what is said against me will not amount to anything. If the end brings me out wrong, ten angels swearing I was right would make no difference. During Ted's memorial service in his beloved Alaska, Vice President Biden's tribute was truly eloquent, personal, and pertinent. Others spoke with equal meaning. But it was Senator Danny Inouye, his best friend, who brought thousands to their feet at this service, clapping for minutes when he said: ``We all knew he was innocent.'' So did 10 angels and those who knew him best, and I think Ted heard them both. Thank you, Catherine and Ted's family, for sharing him with us, and, as Vice President Biden said so well, we will not see the likes of him again.

Mr. ROBERTS

Mr. ROBERTS. Thank you. We can and should provide tax relief to all taxpayers--tax relief that helps families keep more of their hard- earned dollars and tax relief that provides certainty to small businesses so they can make investments and create jobs without the fear that their taxes will go up. We need to extend this tax relief that keeps money in the hands of families and small businesses rather than putting it in the pocket of Uncle Sam. I yield back the remainder of the time that the distinguished Presiding Officer granted me.

Mr. ROBERTS. I ask unanimous consent for 30 seconds.

Mr. ROBERTS. It says, for those who take the time to be familiar with proceedings of this distinguished body, that: Whenever upon such roll call it shall be ascertained that a quorum is not present, the majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn or to recess pursuant to a previous order entered by unanimous consent, shall be in order. So I thank the President for making that very clear. Hopefully, that sheds some light on what we are doing on a Monday evening, which some Senators would simply call a bed check. We are scheduled to vote at 11:30 tomorrow on whether to proceed with a debate that has been taking place here on the Senate floor. I think that obviously would be the time for the debate. But I think I have about 20, 25 minutes here to make my comments. I shall proceed. We are really talking about a tax bill. I know the authors of the bill, the people who have spoken before, obviously think it is a major issue. It is a very important issue, but what we are really talking about is bringing to the floor a debate that raises taxes on U.S. companies and makes them less competitive globally. I don't think that is a very good idea, a tax increase on these companies, given the difficult times we have and given the difficult times we have in our export markets, to make our U.S. companies that deal overseas less competitive. But I don't think we should be surprised, given that the majority has not yet acted to keep taxes from increasing for families and small businesses--everybody--come next January. That is the real bill we should be considering. That is the bill we certainly should be considering before we adjourn until the lameduck session of Congress which I assume is still being planned. It is most unfortunate that we are going to a lameduck session of Congress. I had a constituent say: Lameduck; that is going to be a Daffy Duck. I think that is a little harsh given the intent of both Houses of Congress, but what we really ought to be talking about is the tax increase that is going to take place in less than 90 days unless Congress acts. I know there was a great discussion within the majority caucus as to whether we should move on that, whether we should take a vote on that, both in the House and the Senate. That is really why I come to the floor. This is a looming tax increase that will take effect next year. It is going to hit every American who pays income taxes. There has already been a great deal of debate about who will pay these higher taxes. The President and many of his supporters in Congress say they will not raise taxes on those families earning under $250,000 or individuals earning under $200,000. That was a campaign pledge of the President. The American dream--or at least it was when I was growing up, and I had hoped it would be for my kids and grandkids meant one could climb the ladder of success, the ladder of economic success as high and far as they wanted, and nothing government-made or manmade would stand in their way, except they had to do the climbing. Now we find that when you hit $250,000, if you are filing a joint tax return or if you are earning $200,000 individually--you are rich. They describe people who earn over $200,000, $250,000, and regardless of their obligations, regardless of whether it is a small business, and regardless of what those circumstances may be, bingo, they are going to have to pay that higher tax rate. So we have somebody in Washington describing in manifest detail who is rich and who is not in the United States. I find that to be the antithesis of the American dream, at least as I understood it. I think now there is a hue and cry of, let's level everybody with everybody else. I do not think that is where we want to be in terms of our national intent. The health care reform law has already broken the pledge in regard to that of the President, the $250,000 and the $200,000, because that imposes a slew of new taxes on small businesses and health care consumers, including those earning well under these income levels. So we should be weary of any pledge by the President or the majority to protect taxpayers from the harmful tax increases that are set to take effect in January. With less than 90 days--about 3 months--left in the year, this administration and the majority in Congress have done nothing except talk about it in their caucuses and to find out where the votes were and to find out how it was playing before the election. That is the truth. Nothing to prevent this massive tax hike on American families and small businesses. Now it is September. I don't think most families are really thinking about their income taxes right now. They should, but they are not. They put the frustration of April 15 behind them. Tax freedom day is somewhere down the road in April or May. That is when you are paying all the taxes, and that is where all of your income goes to government and you finally have tax freedom day. That becomes something that comes to their mind right off the bat in the spring. But some families were fortunate enough to able to take a vacation as of this summer or late summer. However, many were working instead and very happy to do so, given the situation in regard to jobs. They are just happy to have a job to provide for their families. But none of them are probably thinking about what is going to happen on January 1. They will be handing more of their paycheck over to Uncle Sam. That is exactly what is going to happen if the administration and the majority in Congress do not act and do not act soon. We should act before a lameduck Congress. Some have dubbed this tax relief package the ``Bush tax cuts,'' saying they only benefit the wealthy. Let me point out, that is simply not correct. I don't see how continuing existing tax policy that has been in effect for 10 years constitutes a tax cut. It is preventing a tax increase. If we want to get partisan about it, it is not about a Bush tax cut, it is about a President Obama tax increase that we are trying to prevent. Let's take a minute and look at how this tax relief passed on a bipartisan basis and supported by several Senators in the majority who are still serving in this body let's take a look at it and how it has benefited families and small businesses across all income levels. The bipartisan tax relief doubled the child tax credit from $500 to $1,000. This credit amount will be cut in half next year. The bill lowered capital gains and dividend tax rates to benefit families who invest long term and save for their future. These taxes will go up dramatically next year. If you read any financial publication, are aware of any think tank that deals with taxes and finances and the economic outlook for this country, you find out that is going to have a dramatic effect--a very unfortunate law of unintended effects. Those taxes will go up, as I said, very dramatically next year by as much as 33 percent for capital gains and 164 percent for dividends. This bill lowered income tax rates for every taxpayer who pays taxes--I am talking about the 10-year existing tax relief--whether you are a lower income taxpayer, a middle-income taxpayer or an upper income taxpayer. So unless we act soon--and that is in the hands of the majority--taxes will go up for every taxpayer as of next year, and that is the bill we should be considering now, not a bill that is going to cause quite a bit of harm to every company that does business overseas. Here are just a few examples of what this will mean to working families if the majority allows these provisions to expire: A single parent with two children who earns $30,000 will see a tax increase of $1,100 a year. A family of four who earns $50,000 will see a tax increase, on an average, of $2,100 per year. Clearly, these families are earning well below the $250,000 threshold the President promised not to raise taxes on, these folks. Yet in just 3 months, that is exactly what is going to happen. So you might want to think about it, America, as well as what is going to happen down the road a little bit. You have Halloween. That is about when the lameduck Congress comes back. You have Halloween and then you have Thanksgiving, Christmas--not the time you are thinking about a big tax increase that is going to whack you right in the forehead, but that is exactly what is going to happen. The President's supporters in the Congress have yet to introduce a bill to prevent this tax hike. It is that simple. We certainly do not see any language on a bill to prevent these massive tax hikes that go into effect on January 1. However, the President and his supporters in the Congress say they want to extend tax relief for everyone but those taxpayers they say are wealthy. Who are these folks? Who are these wealthy taxpayers? Well, under the President's proposal, and presumably the proposal supported by most in the majority, it is any individual who earns more than $200,000 in income per year or any family who earns more than $250,000. I know there are some who earn much less than these amounts who think that sounds fine. Well, maybe to some it does. It is always: Don't tax me. I won't tax thee. Tax the guy behind the tree. There is a little bit of envy here that goes on among all of us, I think, in our hearts when we look at people who earn huge salaries. Somehow, some way that we have now defined those people at $250,000 and $200,000. I think that is unfortunate because we all benefit--we all benefit-- when incomes increase and people become successful. That is how the economy gets turned around. That is how we have people who are entrepreneurs and they invest and they provide more jobs. When incomes go up and people have more of their own money to spend and invest as they see fit, more businesses are started, expanded, more jobs are created and--guess what--more income comes into the government. There is a lot of money sitting on the sidelines waiting. If you do not take more money out of people's pockets, you will see, I think, a burst of economic activity that results directly or indirectly to the Federal Government. I was just reading in the Wall Street Journal an article about that. I intended to bring it over, but I failed to do so. You can just take it from me. When incomes go up and people have more of their own money to spend and invest as they see fit, more businesses are started and expanded and more jobs are created. To see the harm in raising the top two tax rates, to target those earning over the $200,000/$250,000 threshold, we only have to look at what allowing this tax relief to expire means for small businesses to see the danger in allowing this tax increase to take place. Because many small business owners pay their taxes on their individual income taxes, if the top two income tax rates are increased as the President proposes, small business owners in these tax brackets will pay those higher income tax rates. The administration says these higher taxes will affect only 3 percent of small businesses, so we should not be concerned about raising these taxes. If we have heard 3 percent, we have heard that enough over and over and over again: only 3 percent. But those numbers downplay the impact of raising taxes on small businesses. Let's look at what such a tax hike would mean for America's small businesses. Keep in mind, these are the same businesses that, by the President's own admission, are the Nation's job creators. They create 70 percent of the jobs in this country--70 percent. Yet under the President's proposal, tax rates would increase by at least 17 percent on small businesses. According to the nonpartisan Joint Committee on Taxation, that means three-quarters of a million businesses--750,000 small businesses--will pay higher taxes. Allowing the top rates to expire subjects nearly $500 billion-- another $\1/2\ trillion--in small business income to higher taxes. This is a very conservative number. Further, small businesses with between 20 and 299 workers employ about 25 percent of the U.S. workforce. So we are taking action to raise taxes on 25 percent of the U.S. workforce. These small businesses will have to recover the cost of higher taxes somewhere. It may come from lower wages. Will they lay off workers? Will they reduce benefits or raise the cost of their products? That is dicey, given this kind of environment in regard to consumers and what they are able to do. None are good options. With unemployment holding steady at over 9 percent, common sense would indicate, that raising taxes on those businesses that are creating jobs is a very bad idea. As small businesses face a significant tax hike come January, workers will inevitably pay the price. By one estimate, an increase in the top tax rate would cost jobs by reducing small business hiring by as much as 18 percent. That is 18 percent we do not need. Raising taxes on small businesses will also likely slow the already weak economic recovery. We see a lot of headlines saying: The recession is over. But let's talk about the economic recovery we all wish--both Democrats and Republicans, all of us wish--would take place. The National Federation of Independent Businesses, the NFIB, has said the second most cited concern of small businesses is taxes. As a result, small businesses are sitting on the sidelines until they know whether they are going to be facing higher taxes come January 1. That ought to be obvious. Small businesses need certainty about how much they are going to owe in Federal taxes. Yet, once again, this administration's rhetoric on small business does not match the reality of its proposals. The administration says it wants to help small businesses, and it has touted the recently passed small business bill as proof of that. Yet this same administration pushes through a health care bill that Americans do not want that imposes higher taxes on small businesses. Now it wants to raise taxes even further on these same small businesses by increasing their Federal income taxes. It seems a bit ironic to watch the majority touting the small business bill that the President is, in fact, signing into law today. They said small businesses needed this tax relief so they could grow, expand, and create jobs. During debate on this bill, they criticized Republicans for holding up important tax relief for these businesses. So it is curious now, that many in the majority who supported this relatively modest tax relief and who repeatedly stressed the importance of tax relief to small businesses are the same ones who oppose extending income tax relief that benefits small businesses. Let me make it as clear as I can. The same members of the majority who supported the small business bill and who insisted we must provide them tax relief are the very ones who oppose extending income tax relief that will benefit small businesses. That is a contradiction. That is tough to explain, it seems to me. I am pretty sure a lot of people are simply not going to understand that, especially in the next month or in November. If it is so important to provide tax relief to small businesses in this bill, why isn't it equally important to extend other small business tax relief? We will not get our economy back on track until small business begins hiring, period, and they are not going to hire if they have to pay more taxes in January on top of what they have already been burdened with in the health care bill. Yet that is precisely what the administration's proposal will do. Why would our colleagues on the other side of the aisle want to allow income taxes to go up at the end of this year for hundreds of thousands of small businesses? Why are we having a vote tomorrow on proceeding to another bill that could be very hurtful in regard to our competitors overseas. How does that aid the economy? How do higher taxes help put unemployed Americans back to work? How does a higher tax burden allow a small business to grow and expand? How do higher taxes on small businesses aid the economy? The answer is pretty straightforward. Small businesses are hurt by higher taxes. They cannot hire new workers and they cannot buy equipment or a new building or make other investments that can help their business grow. This approach by President Obama and the majority is absolutely the wrong approach to take if we want to ensure job creation and grow our economy. We need to continue the tax relief passed in 2001, by a big bipartisan majority, that has lowered income tax rates for all taxpayers and encouraged families to save and businesses to invest. Continuing this tax relief, rather than more spending, will help get our economy back on track. What I usually hear from my friends--and I want to comment on it--on the other side of the aisle, especially when you talk about tax cuts-- you say: tax cuts, and then, bingo, for the rich, for the wealthy. We are beating a dead ``class warfare'' horse, it seems to me. But that simply is not an accurate picture of the massive tax increases that are facing American families next year. The majority has been in power for nearly 4 years. They have had plenty of time to address this issue, plus estate tax reform, plus the AMT, plus all the other things we say we are going to do as members of the Finance Committee. I am privileged to serve on that committee. Yet, similar to a child who has not done his homework, they have put this off until the last minute, creating enormous uncertainty for families and small businesses. They try to justify these massive tax hikes by saying this bipartisan tax relief contributed to the Nation's current fiscal problems. The popular refrain Americans have heard from the President and his supporters in the Congress is that they inherited the current deficit, and that it is a result of the tax relief we passed, again, on a bipartisan vote, in 2001. But the numbers do not add up. Did you know the Federal deficit decreased as the 2001-2003 tax relief took effect? The deficit stood at $412 billion in 2004 but dropped to $161 billion in 2007. That is the year the majority took control of the Congress. I was here. I know. I could list Senators on both sides of the aisle who made tremendous progress in regard to reducing that deficit from $412 billion in 2004 down to $161 billion in 2007--tough to do. We had Katrina, had all sorts of problems, Iraq, two major wars, but we did that. Three short years later, the deficit has more than quadrupled and this year is estimated to come in at approximately $1.3 trillion--not billion, trillion. ``Trillion'' has become the watch word of the day; not billion, trillion. That is a direct result of the massive spending agenda the President and his supporters in Congress have undertaken, including a failed stimulus bill, bailouts of failed companies, and a health care bill that a majority of Americans do not want--growing by the day when they find out the details of the bill. What is particularly ironic about all of this is that the President has seen no reason to offset the billions in Federal Government spending that he and his supporters have put in place--billions in new Federal spending on a failed economic stimulus program and billions to failed companies, billions that have contributed to the largest deficit in this country's history. Further, the President has already said he doesn't plan to pay for the cost of extending about 74 percent of the expiring tax relief--that is about $2 trillion--that benefits lower and middle-income taxpayers. I am for that. Everybody here is for that. And that number is actually expected to go higher. Yet the remaining 26 percent of the tax relief-- that tax relief that in part benefits small businesses--the President doesn't want to extend. Why not? Here is the kicker. He says we can't afford it. We can't afford it? This, from the same President whose spending spree has driven up the deficit to unprecedented levels? The same President who spent well over $700 billion on last year's failed stimulus program? The same President who handed out billions in Federal tax dollars to failed businesses? That is right. The President says we can't afford to extend income tax relief for small businesses to help them create jobs, grow, and continue to employ more than 20 million Americans who work for small businesses. Well, we have a saying for this in Dodge City. It sort of resembles a lot of what we have in our Dodge City feedlots, but I am not going to go into that. A recent observation by Kevin Hassett and Alan Viard with the American Enterprise Institute writing in the Wall Street Journal sums this up very nicely: The administration is right to view the deficit as a serious issue, but this sudden commitment to fiscal responsibility is bizarrely inconsistent. The administration professes deep concern about the $700 billion revenue loss from extending the tax cuts at the top, but apparently views the revenue loss of nearly $2 trillion from extending the tax cuts for the middle class as too inconsequential to mention. I repeat, again, we are all for that. They continue: Nor has the administration's concern about the deficit driven it to reduce federal spending. That is the key. It seems to me it is disingenuous for this administration to say we cannot afford to provide tax relief that helps small business and gets our economy moving in the right direction when the same administration has pursued failed policies of unrestrained spending that do little but grow the deficit. We can and should provide tax relief to all taxpayers, and that should be the business of the day, not a live quorum call or a bed check and then go out this week and then come back in a lameduck Congress to debate that. Then it would be, what, 40 days before the ax would fall in regard to every American paying more taxes.

Mr. ROBERTS. The distinguished Senator from California said that if we choose to proceed, we will have a vote tomorrow at 11:30 on this bill. I think her actions are premature, so I do object.

Mr. ROBERTS. Mr. President, reserving the right to object.

Mr. ROBERTS. Mr. President, it is my understanding--and I am asking the Presiding Officer--that under rule VI, No. 4, at 7 we are going to be presented with a live quorum call. Is that not correct? Is that the schedule for the Senate? I am asking to determine how much time I have between now and 7 o'clock.

Mr. ROBERTS

Mr. ROBERTS. I appreciate the Senator bringing up the statements by our revered Senator Byrd. I remember when I first came to the Senate, he had, for lack of a better word, a lecture or maybe a sermon to us all about the comity of the Senate and why the Senate is different from the House. The standard example is that the House is where we pour a hot cup of coffee, and then it cools off in the Senate when we put the coffee in the saucer. And that is what we are supposed to do to protect the minority. Here is what Senator Byrd said in one of his last speeches before the Rules Committee before we lost Bob. His knowledge and love for this body were unmatched. He actually wrote the history of the Senate. He said he opposed cloture by a simple majority because ``it would immediately destroy the uniqueness of this institution. The Senate is the only place in government where the rights of a numerical minority are so protected. A minority can be right and minority views can certainly improve legislation.'' Obviously, if we go down another road--and we have--I just heard the majority leader indicate this side of the aisle is guilty of obstructionism. I guess it is in the eye of the beholder. I might remind my friend from Arizona that the bumper sticker for the distinguished State of New Hampshire is ``Live Free or Die.'' I hope we live free, and I would hope that the distinguished Senator from New Hampshire would not take that literally, given the comments by the Senator from Arizona. I came into public service in 1980, with my dear friend from New Hampshire. Other than some rather obstreperous incidents in regard to basketball, we have enjoyed a very good relationship. But there isn't anybody here who understands the budget process and how minority rights should be protected and how we should proceed other than Judd Gregg. He has done an outstanding job. I know that once he leaves the Senate, he will be called upon to help us get out of this tremendous debt problem and to face the entitlements square-on. Facts are stubborn things. I am not trying to put these facts on any individual. As the distinguished Senator from Tennessee has pointed out, what this really is about is the consent of the governed. That is what Madison was really interested in when he wrote about the Constitution. We want a strong Executive and certainly a House and a Senate to be responsive, but it is to protect the consent of the governed. The governed, as everybody knows, is extremely upset. It is because their voice is not heard. Why is their voice not heard? In the 110th Congress in the House of Representatives, only 1 percent of the bills were brought to the floor with open amendment rules--1 percent. Ninety-nine percent of the bills reached the Senate from the House with little or no input from the minority. As of March of 2010, the House was on track to shatter its record for closed amendment rules in the 111th Congress. That is the House. I spent 16 years in the House. I can remember very well one particular incident where there was a real controversy over a seat in Indiana. The secretary of state of Indiana declared the winner. It came back to the House Administration Committee, went back out to Indiana, recounted. When the Democrat went ahead, they called it closed, and that was it. We walked out. We said the comity of the House had been destroyed. We are close here in the Senate. In the 110th Congress, cloture was filed 133 times, 98 of which were filed the moment the question was raised on the floor. If that isn't obstructionism, I don't know what is. Over the last 22 years, the majority leader has filled the tree roughly three times per Congress on average. However, from January 2007 to April of 2010, the majority leader filled the tree 26 times. That is a 300-percent increase in filling the tree for the 110th and 111th Congress. These numbers do not reflect the additional times this has taken place in the 5 months since the numbers were submitted to the Rules Committee, including today, with DOD authorization. From the 103rd to the 109th Congress, rule XIV to bypass the committee was used on average 24 times per Congress. This was shattered in the 110th Congress when it was used 57 times. I go over these facts to show that in regard to the definition of obstructionism, it goes both ways. That is the rest of the story. A little bit later, if the distinguished Senator from Tennessee has time, I would like to go over this sense-of-the-Senate resolution or legislation to be introduced by the junior Senator from New Mexico declaring the rules of the Senate unconstitutional in order to rewrite the rules to favor a simple majority to pass legislation. I would like to have a discussion with him at a future time. I know the distinguished Senator from Utah has something to say as well.

Mr. ROBERTS. I say to my friend from Tennessee, I want to ask him a question. Is it fair to characterize these attempts by the majority to change the rules--and that is what they want to do; I think it is a sense-of-the-Senate resolution in the Rules Committee--to continue favoring them, even if their majority narrows after November, in the lameduck or what I call the Daffy Duck, the lameduck now, you could characterize that as an ``arrogance of power.'' Those are pretty tough words, but that is the exact term used by then-Senator Biden in 2005 to describe a similar attempt to rewrite the rules to favor the majority at that time. So what goes around comes around. Does the Senator from Tennessee find it as disconcerting as I do that the junior Senator from New Mexico has introduced a resolution declaring the rules of the Senate ``unconstitutional'' in order to rewrite the rules to favor a slimmer majority, i.e., one, one free throw. That is it. Does any majority last forever? The answer to that is no. What goes around comes around. If the interpretation of the Constitution and the Senate rules of the junior Senator from New Mexico is accepted, I say to my friend from Tennessee, what is to prevent any majority of either party from rewriting the rules of the Senate whenever it suits them? Would such a practice not negate the whole point of having rules in the continuing body that is the Senate? Would this practice not make the Senate nearly identical to the House, where majority takes everything? Would this not neutralize the express purpose of the Senate to act as a check on the House and be directly 180 degrees opposed to what Senator Byrd was warning us about in regard to his last testimony before the Rules Committee in this distinguished body? Again, my friend from Tennessee has hit the nail right on the head. We have a lot of challenges around here. People say ``problems'' or ``crises.'' We have a lot of challenges. The only way you meet a challenge is to work together and to represent the consent of the governed. What we have here now is we do not have the consent of the governed. We do not have the opportunity. I remember in the health care debate staying up until the wee hours of the morning in the HELP Committee, the Finance Committee. I did not get behind closed doors to write the bill that was actually written, but I had 11 amendments on rationing. All of them were defeated on a party-line vote. Trying to be a little clever by half, I introduced a Democratic amendment, one of Senator Schumer's amendments. It was defeated on a party-line vote. They did not even recognize it was Senator Schumer's--all on rationing. One of the biggest controversial items you hear about throughout the country in regard to the health care debate is the rationing of health care, which is going on right now. There was no consent of the governed. It was ``our way or no way.'' It did not have a chance. That is the biggest issue we face, and it seems to me it really reflects on this body and how we treat each other and, more importantly, how we treat the American people and why we have such a fuss out there in the hinterlands. I thank the distinguished Senator for taking this time. I think it is very valuable time. I hope we can lower the debate a little bit--a whole lot--and work together, as he has indicated, to meet the challenges we have before the country.

Mr. ROBERTS

Mr. ROBERTS. I ask unanimous consent to speak up to 15 minutes.

Mr. ROBERTS. Madam President, after careful consideration and assessment of the nominee's record and expressed views, I rise today to express my opposition to Solicitor General Elena Kagan's nomination to the U.S. Supreme Court. In the nomination process, a telling and inciteful statement by another Senator is most applicable and pertinent. During the Senate's debate on the nomination of Chief Justice John Roberts, then Senator Barack Obama stated: . . . that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before the court, so that both a Scalia or Ginsburg will arrive at the same place most of the time on those 95 percent of the cases--what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of 1) one's deepest values, 2) one's core concerns, 3) one's broader perspectives on how the world works, and 4) the depth and breadth of one's empathy. I respectfully disagree with this rationale and find it troubling. Our judges must decide all cases in adherence to legal precedent and rules of statutory or constitutional construction. The role of a judge is not to rule based on his or her own personal judgments or comply with one's empathy, how they think the world really works, concerns and values--deep or shallow--all subject to personal views, ideology and the winds of time and political change. No, the role of a judge should adhere to the laws as they are written. An appointment to serve on the Supreme Court of the United States is a lifetime term. It was crafted by our Founders to protect and insulate the highest Court of our land from personal concern, empathy, individual values or how one thinks the world really works at some point of time, not to mention the threat of any influence of politics. Nominations to the highest bench should therefore not be considered lightly. It is one of the most important votes a Senator has the privilege to cast. And I would submit compared to the standard of legal precedent, statutory rules, constitutional construction, again personal values, concerns, how the world allegedly works and one's personal criteria of empathy represents a lesser standard--sort of a standard lite. The qualifications of the nominee must be carefully considered. As U.S. Senators, we have an obligation to ensure that our courts are filled with qualified, impartial judges. In light of that I must ask--who is Elena Kagan? In reviewing Ms. Kagan's qualifications, I find her lack of judicial experience striking. While others note that serving as a judge is not a requirement for a Supreme Court nomination, it has also been noted that every nominee in nearly 40 years to the Supreme Court has had extensive judicial experience, whether from the bench or as a litigator in the courtroom. Ms. Kagan's litigation experience is limited, with the majority of her arguments being made during her brief tenure as the U.S. Solicitor General. Given her obvious lack of experience in the court room, one must ask if this is the best position to receive on-the-job-training? Will the ``craft'' of judging come innately to Ms. Kagan or is it a skill honed by years of practice and judicial experience? Some have argued in defense of such a thin judicial resume that nominees can bring a ``real world''--- whatever that is--- perspective to the bench. Nonetheless, much of the nominee's experience lies in the hallowed, Ivy League, halls of academia, indeed a world of its own. While I do not question the merits of a strong university background, I question how that makes one more in tune with the ``real world.'' Additionally, the nominee's resume includes her positions as special counsel and policy advisor in the Clinton administration--a role in which she truly relished her job. During her tenure she advocated for policies involving the second amendment. In response to a Supreme Court decision which struck down the Brady Act's requirement of background checks before gun sales, documents from the nominee's tenure suggested that the administration explore how to maneuver around the Court's decision by executive action. The advice here goes beyond legal counsel and indicates a clear interest in achieving a policy goal by going around the Supreme Court's decision, while forgoing the jurisdiction of Congress. When determining how Ms. Kagan may approach a seat on the Court, her position as a policy adviser is one of the few records available to review. Does this type of maneuvering indicate how Ms. Kagan would use her position as a Supreme Court Justice to justify an agenda where a policy goal is the intended outcome? I must also say that as dean of Harvard Law School, Ms. Kagan's effort to ban military recruiters from the main placement office on campus is deeply troubling. The justification for violating the Solomon Amendment--named after Congressman Gerald Solomon--was to protest the military's don't ask, don't tell policy. This action was also consistent with her own expressed views. It must be noted, blocking access to military recruiters is counter to Federal law. Only when threatened with the loss of Federal funding, did Harvard comply. Ms. Kagan then used a stayed decision by an appellate court, which determined the Solomon Amendment was unconstitutional, to reinstitute the ban. Shortly thereafter, the Supreme Court overturned the appellate court's decision by an 8-0 ruling. According to Chief Justice John Roberts, ``A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message.'' I must say, I don't know of any recruiter who would stand up and debate students in the circumstance of a policy judgment--more to the point, in regard to a policy that is as controversial as don't ask, don't tell. They are there to recruit individual students or to answer questions they may have. U.S. servicemembers deserve our unfettered support, as they face unimaginable danger on the front line in defense of our Nation. Their willingness to sacrifice their time away from home and loved ones while serving in harsh and dangerous places under difficult circumstances should be honored. It seems to me we dishonor their sacrifices and service by hollow justifications of policy agendas. These efforts are a clear indication to me, as well as my fellow Kansans, that Ms. Kagan's agenda is at odds with her role as a dean and a future Supreme Court Justice, and is clearly out of step with the average American no matter how deep her concern, empathy, values or the real world she believed she could change. It is clear from her time as a policy adviser during the Clinton administration--a job she truly relished--that she supports methods of enacting policy changes through administrative means and around the jurisdiction of the legislative branch. This type of disregard for the jurisdiction of the elected branch of government is concerning. Ms. Kagan's zeal and enthusiasm as a political advisor and an academic does not qualify her for a lifetime appointment to our Nation's highest Court. Not only does she lack experience on the bench, but her record clearly demonstrates a propensity towards pursuing an activist agenda. In her own words, Ms. Kagan confessed difficulty in ``taking off the advocate's hat [to] put on the judge's hat.'' This admission is at best worrisome; at worst, a clear indication of her intent to legislate from the bench. We have a constitutional obligation to ensure that our judges are impartial and faithful to the law. During Chief Justice John Roberts' confirmation hearing, he noted that ``Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.'' They may go to criticize the umpire, but they do not go to see him. I am not convinced that Ms. Kagan will limit herself to merely applying the rules. Given the limited judicial background and a lack of forthrightness in queries as to her judicial philosophy during the nomination hearings, I am fearful that this nomination will serve as another tool in what we have witnessed in further encroachment of government into the everyday lives of the American people. Kansans have made clear to me that they do not want activist judges on the Court and they do not want additional government intrusion into their daily lives and pocketbooks, especially coming from the bench. Unfortunately, I think appointing Ms. Kagan to the Court will result in more of both. Therefore, I must oppose her nomination. I yield the floor.

Mr. ROBERTS. I ask unanimous consent that the quorum call be dispensed with.

Mr. ROBERTS

Mr. ROBERTS. Mr. President, I come to the floor to speak with regard to election reform, democracy, and unfortunately partisanship, and most importantly, the first amendment. There is a threat to the Constitution on the floor of the Senate today. It is called the DISCLOSE Act. I urge my colleagues to oppose this bill. The DISCLOSE Act, an Orwellian oxymoron if there ever was one, contradicts the Supreme Court's January decision in Citizens United. It is essential to put the decision in context and shed sunlight on this dangerous bill. First, I applaud the Court's ruling. It reaffirms the right to freedom of speech. This is precisely the Court's role in our government system of checks and balances: to rein in Congress when legislation does not square with our founding principles. Let us remember the 10 words in the first amendment that are most relevant for this debate: Congress shall make no law . . . abridging the freedom of speech. However, some of my colleagues across the aisle have mischaracterized the Citizens United decision as undoing 100 years of law and precedent. This is a reference to the Tillman Act of 1907 that prohibits corporations from directly financing political campaigns. This was not affected by the Court's ruling. The Supreme Court did rule, however, against provisions of the so-called Bipartisan Campaign Reform Act of 2002 that barred corporations and unions from running political ads 30 days before a primary and 60 days before a general election. Corporations and unions cannot donate directly to a Federal candidate and, contrary to the claim of DISCLOSE Act supporters, it is already illegal for foreign entities to participate in American elections. Unfortunately, the sponsors of the DISCLOSE Act have chosen partisan fiction over fact in their effort to override the Court. The DISCLOSE Act is anything but full and fair campaign disclosure. It is politically skewed, motivated by a majority desperate to continue to be a majority. The DISCLOSE Act is loaded with handouts to the most monied of Washington special interests, including the National Rifle Association and the Sierra Club. They didn't want tape put on their mouths. Others doubtlessly were standing in line saying: Don't muzzle me, you can simply muzzle the other guy behind the tree. I challenge anyone who comes to the floor to preach the virtues of this bill to explain, with a straight face, the carefully tailored exemptions from disclosure included in title III. Moreover, despite a clever rewording of the House-passed version, the Senate bill retains carve-outs for labor unions by exempting donations under $600 under title II, section 211. This figure is conveniently below the average union dues. So for 600 bucks you have free speech. If it is over $600, you don't. Supporters of the DISCLOSE Act claim it is necessary to keep a flood of money out of politics, but carve-outs for special interests say otherwise. On June 24, the National Journal's Congress Daily reported that environmental, labor, and other groups--many of which specifically benefit from title II and title III exemptions--announced they would spend $11 million to either reward or admonish Senators in both parties for their positions in regard to climate change legislation. Another example is the American Federation of State, County, and Municipal Employees. The Hill newspaper reported on June 21 that this union, exempt under the bill, had ponied up $75,000 for ads in Maine to pressure Senators Olympia Snowe and Susan Collins to support a taxpayer-funded bailout for unions. These facts present an inconvenient truth for the sponsors of the DISCLOSE Act. It flies in the face of our democracy for the majority to ration the right of free speech to one set of Americans at the expense of others. In May, it was reported in the press that sponsors of this bill boasted that its deterrent effect should not be underestimated. Americans do not, and never have found it appropriate for government to shut down any political dissent. The DISCLOSE Act abandons the longstanding practice of treating corporations and unions equally. But even if title II and title III exemptions were removed, the bill is still unworkable. On May 19, writing in the Wall Street Journal, over half a dozen former FEC Commissioners noted that the FEC has regulations for 33 types of contributions and speech and 71 different types of speakers. The DISCLOSE Act adds to this complexity with another layer of Byzantine requirements that raise serious concerns about whether the law can be enforced consistent with the first amendment. We do not need any more regulations to the first amendment. If anyone doubts this bill is motivated by politics, they need to look no further than a June 22 letter sent by the bill's Senate sponsor and the Senate majority leader to Members of the House in which they pledge to bring the measure to the floor in advance of the fall elections. Why the rush? In so doing, the majority has again used rule XIV to bypass the Senate Rules Committee--a committee upon which I serve--in order to expedite the DISCLOSE Act's passage. Unfortunately, it is becoming all too common for the majority to circumvent regular order, stifle the minority, and force unwanted legislation on the people by filling the amendment tree, misusing rule XIV, and ping-ponging legislation between the Houses. I am tired of Ping-Pong. Give me table tennis. Give me a paddle. Give me five serves, and then I will let Senator Schumer have five serves, and we can go back and forth as we should in regard to amendments in the Rules Committee, where this debate ought to be held. Senator Cardin said: Let us have a debate. I am for that. And let's put it in the Rules Committee, where it should be debated first. To review, the Citizens United decision does not upend a hundred years of law and precedent. The DISCLOSE Act has intentional loopholes in title II and title III to keep special interest dollars on behalf of the majority flowing, and the rest of the bill is a confusing set of redundant regulations. The bill's sponsors are rushing this legislation to the floor without consideration by the Rules Committee--again, here we go; that is what happened with health care; that is what happened with the Dodd-Frank bill--in order to protect the incumbent majority before the fall elections. Under the first amendment, the American people have a right to speak out against policies and legislators who kill jobs, curb growth, and expand the government at the expense of the private sector--and now a proposed tax increase. These policies hurt millions and millions of Americans employed in the private sector and millions more looking for work during a recession. They must be protected under the first amendment. The people have a right to be heard. Mr. President, I yield back.