Rick Santorum

Mr. SANTORUM

Mr. SANTORUM. Obviously, by definition, a Republican who gets 76 percent of the vote in a State such as California cannot be extreme. Certainly, if they are extreme in the State of California, the only chance I would think in my mind that someone could get that high a vote is if they were extremely liberal. California, let's admit, is a fairly liberal State. It is a very heavily Democratic State. So for a Republican ``extremist'' in California to get 76 percent of the vote--I don't think Republican extremists can get 76 percent of the vote in a State such as California. I argue that, by definition, that doesn't wash. The fact is, what the Senator said is true. When you have these organizations who, in these memos that have leaked out, are sort of giving marching orders to Members of the Senate Judiciary Committee on the Democratic side as to what nominees to hold--and some use the term, referring to Miguel Estrada who was nominated for the second highest court in the land--a great rags-to-riches story of a Hispanic immigrant to this country--that he was ``dangerous'' or a ``threat.'' It was one of those terms. He is a real threat. Why? Because he is a superior intellect? Because he has tremendous qualifications? No, because he is Latino and we cannot have that.

Mr. SANTORUM. That is exactly what they said. He is all of the things I talked about--highly qualified, very bright, and a great story of integrity and overcoming obstacles. It is a compelling story. As a result of his ethnicity, he would be a threat because he might be elevated to a higher court someday. This is the kind of activity I think really does debase this institution. We should not be involved in blocking people who, 10 years ago, would have probably not even required a vote on the floor of the Senate to be confirmed. We have gotten to the point where the special interests--you hear so much on the Medicare bill about the special interests that were involved in the Medicare bill. I cannot think of any area where special interests have had more impact that has been contrary to the interests of ordinary citizens in America than what we have seen by the special interests on this judge debate. These organizations support the things the Senator from Alabama just talked about. But they were also the ones supporting the complete removal of God, or any hint of God, in the public square, whether it is in Alabama or in the Pledge of Allegiance out in the Ninth Circuit. The people who made this decision in the Ninth Circuit to strike ``under God'' from the Pledge of Allegiance--do you think they were nominees who would be considered to be out of the mainstream that President Bush supported or nominated? No. They are nominees of, primarily, President Clinton, who views the Constitution as a document to be ignored, a nice little piece of antiquity that they might want to look to see if it suits their purpose. But if it doesn't, we will set it aside and do what we think is right. That is what they do on a regular basis. It is called activist judges who believe we are a government of men, not laws. That is what many on the other side-- particularly members of the Judiciary Committee--would love to see. They don't want judges who take the Constitution and the words in it seriously and feel bound by them. So we had a huge debate. I think it was an important debate for the Senate on that important issue, and a related issue. There are several issues percolating in the Senate to do something about the huge cost of litigation to our economy--whether it is asbestos litigation, on which there have been tens of thousands of cases filed by people who have been ``exposed'' to asbestos. In the vast majority of the cases, the people who have filed the case, the plaintiffs, are not sick and have no indication that they ever will be sick. But they have been ``exposed.'' They are clogging the courts, consuming huge amounts of resources. I hear colleagues on both sides of the aisle complain about manufacturing and the problems with manufacturing. Well, look at the asbestos liability issue, in light of what we are doing to our manufacturers. Manufacturers are going bankrupt--I won't say every day, but every week or two--because of this litigation going on. It is frivolous. The worst part is, I have people in my State who were infected and have asbestosis, mesothelioma. It is a disease that comes with exposure to asbestos, and a respiratory disease. These people are sick and they are dying and they are not able to get a proper jury award. In fact, they have gotten their awards and it is pennies. The money was eaten up by the trial lawyers. It is a horrible situation. We need to get the people who are sick the compensation for their disease and the treatment for their disease, and those who are not sick, they need to be set aside. If they get sick, they will be compensated, but we are all exposed to lots of dangerous things in our lives. That doesn't mean you can sue for them. Only if it causes you harm should you be able to sue. That is another area again being blocked. Class action: I see the Senator from Delaware, Mr. Carper, here, who is one of the leaders in trying to get a bipartisan bill together. I give him a lot of credit. It is another attempt like we did with Medicare, on which he was involved, trying to bring the sides together. So far, we have not been able to get to that 60-vote threshold. We need to get that bill done to try to help our economy move forward. Medical liability, frivolous lawsuits: Again, this is plaguing the system when it comes to health care, driving up our cost of pharmaceuticals and of health care. In Pennsylvania, our doctors are moving to Delaware, moving to other places where the laws are more beneficial, where the legislatures have put caps in place to try to limit the amount of cases where runaway juries end up bankrupting the health care system. That is another area where we have been blocked over and over. Another area we have been blocked, something on which I have been working, is assistance to the poor. We are trying to pass a charitable giving bill, a bill in which I have been involved. We are talking about giving $10 billion over the next 2 years in incentives for people to give more money to charities at a time when we are still not completely out of the recession that hit us in 2001 and 2002. Again, we have not been able to get the cooperation necessary to get a bipartisan bill to help social service providers, to help nonprofit groups meet the humanitarian needs of people. I can go on. The bioshield bill is being blocked. There are a lot of other issues on which we are being obstructed. I wanted to balance the accomplishments we have been able to achieve in the Senate and this Congress, and they have been substantial. We have a lot to go back home and talk about as to what we have been able to work out in a bipartisan way in the Senate, but there is still a lot of work to be done that the House has accomplished and that is sitting in the Senate not being done. It is very important to our economy and very important to the future of our country. One further comment. The Senator from Idaho has been very patient. I don't know if the Senator from Idaho or the leader is going to propound momentarily a unanimous consent request to vote on a resolution. This is a resolution having to do with marriage. As my colleagues know, the Massachusetts Supreme Court handed down a 4-to-3 decision that said there is now a constitutional right in the State of Massachusetts to same-sex marriage, which is a remarkable turn of events, within a few months of a case in the U.S. Supreme Court, the Lawrence v. Texas case, which took an act--which for 214 years in many States has been seen as an illegal act and in the vast majority of the American public's mind certainly not a moral act--an act of sodomy and turned that act into a constitutional right. That is what the Court did. It turned this act that is considered by many to be illegal in States and, by most Americans, immoral with no tradition of acceptance of the history of the United States since our Constitution was written. They have taken that act and turned that into a constitutionally protected act. Many of us said there would be consequences for doing so. When we said that, we thought it would be years down the line. It has not taken years; it has taken a matter of a few months for the Massachusetts Supreme Court to cite Lawrence v. Texas and say now that this is a constitutionally protected right to engage in this behavior, how can we discriminate two people who engage in this behavior under the equal protection clause, to protect everybody equally, how can we discriminate against these people who are practicing a constitutional right under the rights and privileges of marriage? It would be unequal treatment if we didn't treat these constitutionally protected actions the same way as we treat traditional marriage. I suggested before Lawrence v. Texas was decided that if it was decided in the way it was, we would be heading down a slippery slope. I was wrong. We are heading off a cliff. This is not a slippery slope; it is a cliff. If we do not respond to this decision, other States will be forced to accept the dictates of the Massachusetts Supreme Court--the court of appeals in this case. A couple can go to Massachusetts, get married, come back to Pennsylvania, Idaho, Alabama, or Delaware, and say: I demand under the full faith and credit clause of the Constitution that you recognize this marriage. What is the State to do, because the Constitution demands it. So we are in a situation where de facto, we could have that policy of Massachusetts by an unelected group of judges, by a vote of 4 to 3 being forced on the entire country unless we do something in the Senate to act. That is a constitutional amendment which defines marriage and describes it in the Constitution. I happen to think we put a lot in the Constitution that are building blocks of society, certain freedoms, certain truths that we establish in the Constitution. I cannot imagine anything more fundamentally important to the stability of our society than having stable families in which to raise stable children, and anything that undermines that, to me, undermines the core of who we are as Americans. We will ask for a vote on the resolution. I ask unanimous consent to print the resolution in the Record.

Mr. SANTORUM

Mr. SANTORUM. Mr. President, I rise in support of this conference report. I congratulate all those who have worked hard on it. It is a bill on which, I have to admit, I have mixed emotions. There are a lot of things in the bill I like and some things that I don't like. One of the criticisms I have heard leveled against this bill is that it does harm to those who are in the Medicaid population, the very low- income, under 100 percent of poverty. The interesting thing is that some suggested it does harm because we have made people eligible for Medicaid now eligible for Medicare. Those are the dual eligibles. One of the reasons we are doing so is because there are many on the other side of the aisle who wanted dual eligibles to be covered under Medicare. The copayment for those dual eligibles is the same as under Medicaid. It is $1 for generics and $3 for name brand drugs. That is hardly a very high cost for prescription drugs. And there are waivers of those copayments for people who are in nursing homes and have other sources of coverage. So what we have done is something that many on the other side wanted us to do, which is take people out of Medicare and put everyone over 65 in one program. That makes some sense, but it is an enormous cost to the Federal Government. We are picking up more of the cost of Medicaid now and that money out of the drug benefit had to come from somewhere. So I argue that to accomplish one policy goal, we had to give up some subsidies to other seniors. But, clearly, it was a win by many of the Democrats who argued--Senator Baucus and others--that they had to have all dual eligibles covered. It is something they wanted. We have done that. I hope we will understand that the reason some of the money has been shifted to lower income was to accomplish what the other side wanted to accomplish. I also say that, yes, I agree the standard benefit is not the most generous benefit out there. But what everybody here agreed to last year was $350 billion. This year it was $400 billion. I think everybody agreed that $100 billion should be targeted at two groups of people-- lower income individuals and high users of drugs. When you do that, and you provide $1 and $3 copays for people over 100 percent of poverty, and up to 150 percent of poverty $3 and $5 copays, what you are talking about is a very expensive program for low-income individuals. Then, at the other end, you have the catastrophic program that picks up 95 percent of the cost of drugs after $3,600 is spent out of pocket--high users, sick people. We should be helping them with drug costs. When you throw those two pots in, there isn't a lot left for the standard benefit. It was the idea, I think, that everybody here agrees that we need to focus the $400 billion on those in most need, whether it is need because of sickness or need because of financial condition. This bill does that. I would argue, sure, I think all of us would like to provide a more generous benefit. You have to remember, the rest of the people we are talking about--about 80 percent of them--have prescription drug coverage already. What we are allowing is for a lot of those people to have the drug coverage they have in addition to this being wrapped together to provide a much healthier benefit than just the basic benefit provided under this bill. Seniors are not going to be just with this plan. In fact, the average senior in this country is going to have a much more enhanced plan available to them than what they have today as a result of this coverage. I say to my conservative friends who are expressing concern about this bill, the most important thing in this bill, from my perspective, for conservatives is this plan allows for health savings accounts. Fundamentally, what health savings accounts will do is eventually change Medicare--not today, not even 5 or 10 years from now, but over the long term, once health savings accounts become what I believe they will become, which is the method of choice that the vast majority of people in this country will do in the private sector. Health savings accounts affect people under 65, the non-Medicare population. This will be a very popular plan in which millions of Americans will participate, and it will fundamentally change the insurance market in this country. One thing we have seen from Medicare reform--if you want to call what we have done over the past 40 years Medicare reform--is it follows the private sector. A 1965 Blue Cross plan was the original Medicare bill because that was the standard state of the art in 1965. In the nineties, we changed Medicare to allow for HMOs. Why? Because the private sector adopted HMOs. Now we are doing PPOs. Why? Because the private sector moved from HMOs to PPOs, and in the future we will move to PPOs and health savings accounts in Medicare, and that, I believe, will be the long-term salvation of that program.

Mr. SANTORUM. Mr. President, that is the policy. What is the history of this provision? It is very interesting. This proposal, which was criticized by Senator Daschle today, was introduced by Senator Daschle. This came from the Democrats' bill in the year 2000. This language, almost verbatim, was introduced by the Democratic leader, and now like lemmings, they are lining up saluting this as the worst thing they have ever seen. Yet it is their proposal, not just Senator Daschle's. It was also in Congressman Stark's bill in 2000, and again, in the Snowe-Wyden proposal, there was the exact language. It was in the tripartisan plan of last year. Actually, a version of this language appeared in the Senate bill that received 76 votes on the floor of the Senate. I just wonder whether the degree of outrage is somehow inversely proportional to the actual complicity of the act. We see this huge amount of outrage, and yet we see complicity. In fact, it is their language that is in this bill. Why did they put it in? They put it in because they did not want to be charged with having Government price fixing. They didn't want to be accused in their proposal that it was going to be a command-and-control Government price fixing of pharmaceutical products. What did they do? They said: We believe in competition. They wanted to be able to say that they have a competitive model, so they put in a competitive model. Let the private sector negotiate their incentives for the insurers to get lower costs out of the pharmaceuticals, and there are incentives on the pharmaceuticals point to give volume discounts. Let that mechanism work. Don't have the head of CMS, the Medicare Director in Washington, DC, dictate prices for everybody. Let us not set those prices in the Senate. Let us let the marketplace work to squeeze cost and get efficiency out of the system. It is their idea. So, again, I suggest on two issues that have gotten a lot of talk, No. 1, the budget point of order, which is made to save money, is actually being used by the other side so they can spend more money. The major provision that has gotten the ire of so many, which is this noninterference with negotiating drug prices, is their proposal. I suggest, as I had a conversation with one of my colleagues on the other side of the aisle a few moments ago, I understand the left hates this bill. As we saw from the House and we saw from some of our colleagues, a lot of the right hates this bill. Usually, things that come straight down the middle are usually where most Americans are and where most Americans would like us to go. That is what this bill does. I hope we have very strong support for it as a result.

Mr. SANTORUM. Mr. President, I yield myself such time as I may consume. Will the Chair please notify me when I have used 10 minutes?

Mr. SANTORUM. Mr. President, I find this to be a little bit of a surreal experience, being here on the Senate floor and listening to all of the problems in this legislation, all about how it doesn't provide enough benefits and how we need to spend more money, and what is being offered is the budget point of order by the very people who want to spend more than what this bill does. Someone is saying we are spending too much money--I think $4 billion or $5 billion--in 2004. We are not even spending the $400 billion allotted. It is a $395 billion bill. We are within the budget window over 10 years and also over 5 years. But in the first year we are not in the budget window. Why? Let's figure it out. If you are in for 5 and 10, what is the problem for the first year? The problem the first year is that the budget sets up a category for mandatory spending, and included in that was the money for Medicare. Now, is the money that we have in this bill exceeding the money that we anticipated in the budget for Medicare? No. Well, wait a minute. If the money that we have in this bill doesn't exceed what we had budgeted for Medicare, then why is it subject to a budget point of order? Well, because the money that we had budgeted for Medicare was eaten up by two Democrat initiatives that have swallowed up that money--unemployment extension, and FMAP, money to the States for their medical program. Because of those two expenditures--which I agree was done in a bipartisan way, and I tip my hat to the other side; it was clearly motivated by the other side of the aisle to spend this additional money--we have now blown through what we were going to spend on Medicare. Guess what. There is no money left in fiscal year 2004 for Medicare--any kind of spending in this bill. So if we would have done anything in this year to spend money on Medicare, we would have exceeded the budget caps. So we have this thing tantamount to a gimmick, if you will, where we have exceeded the budget because of other spending having nothing to do with Medicare, and that leaves us liable to a budget point of order. Now, I understand if you want to kill the bill--and I understand you do want to kill the bill--we had a vote on cloture. We had 70 votes, and it would have been 71 had Senator Shelby been here and his plane was able to get off the ground. But we had 70 votes not to block it on a procedural vote, to give the people of this country, through the Senate, an opportunity for an up-or-down vote as to whether this proposal is worthy. Seventy Members voted today that we were not going to use a procedural filibuster. What is the next step? The next step is to use another procedural gimmick. In this case, as the Senator from New Mexico has pointed out, it truly is a gimmick because we are within what was contemplated when we passed the budget earlier this year for Medicare next year, but we have a technical problem because of other spending that has nothing to do with Medicare. I say to my colleagues who are going to be casting their votes momentarily on this issue: If you want to block this vote procedurally, you had your chance. It was a vote on cloture. We are now postcloture. To put up another procedural gimmick--and this is truly a gimmick-- being offered by someone who for 57 out of the last 60 waivers of the Budget Act voted to waive the Budget Act and the 3 times they did not, they were not here to vote as a way to obstruct the Medicare bill at the 11th hour and the 59th minute, when they had voted for every single waiver that was available to be voted on, to use this to try to block this bill I think does not comport with the original vote which was not to filibuster this bill. This is tantamount to another filibuster only it doesn't have the word attached to it. Maybe you can go back home and say: We didn't filibuster this bill; I voted to allow this bill to be considered. But, you know, there was this budget problem. Now by the way, I have never seen a budget problem that I didn't have a problem with waiving. I have waived it 57 times or 60 times this year on things a heck of a lot less important than prescription drugs for Medicare, and we routinely did it, but when it comes to Medicare, when it comes to $3 billion or $4 billion or $5 billion out of a $400 billion bill in the first year, because of a problem having nothing to do with Medicare, then I am going to find a problem, then I am going to be concerned about the budget when I voted to waive the Budget Act 60 times prior to that. That dog doesn't hunt. That is just a procedural obstruction. I hope my colleagues who voted for the cloture motion will vote consistently. This is another vote on cloture. That is what this is. This is a procedural hurdle that has no substance or basis to it. When the people who offer this procedural motion, concerned about the impact on the budget, and in all of their speeches talk about how much more money we should be spending, one wonders how sincere the budget concerns really are. Every person who has gotten up to support this budget point of order has said this bill falls short because it doesn't spend enough. Yet they are making a point of order on the budget which says we are spending too much. This is the kind of shenanigans that goes on in the Senate, that goes on in Washington, DC, that the public, frankly, just doesn't understand. You are either for this bill or against this bill. If you want to block this bill, vote against cloture, but don't put up these gimmicks, rules that are in place to stop something from happening because you want to accomplish the opposite effect of the rule. The rule was put in place to save money. They are using the rule so they can spend money. It shouldn't be any surprise that on another issue relating to this, we have a situation where many on the other side of the aisle have been critical of this noninterference issue. That is the provision that says the Federal Government is not going to negotiate a price for prescription drugs for everybody on Medicare. Why do we have this in place? Let me give you the policy. We have this in place from a policy point of view because roughly 50 percent of all prescriptions in this country are going to be bought through Medicare--to have that kind of ``market power'' where the Federal Government will basically go in and dictate a price fix, price set to every pharmaceutical--most pharmaceutical, not every--most pharmaceutical products in this country. Most Members of Congress are not for a command-and-control, one-size- fits-all drug price in America. Some are. Some would like to adopt the Canadian-style system, and some would like to adopt the German-style system, but we have made a decision that we believe it is better for the private sector insurance company, with big market share because there will not be very many of these plans--there will be big market share--to negotiate with the private sector drug companies for the best price they can get. And the better negotiators they are, the better premiums they can offer to their beneficiaries which means more enrollees. It is certainly their incentive to negotiate tough bargains with the pharmaceutical companies. They have the market power and the ability to negotiate. It is different than giving the Government the ability to negotiate-- I shouldn't say negotiate, I should say dictate--the price they will pay for pharmaceuticals. We think the private sector should work, not the Government dictating prices. They compare it to the Veterans Administration. Yes, the Veterans Administration has such a proposal-- not a proposal; it is the law. It mandates a 24-percent reduction. Does that have any rhyme or reason to what the drug costs should be? No, it is just a flat 24 percent across the board. If you don't take that reimbursement, then you can't participate in Medicaid or any other Federal program. It is a heavy hammer. It is a very small part of the pharmaceutical industry. I yield myself 3 additional minutes.

Mr. SANTORUM

Mr. SANTORUM. Mr. President, I am please to introduce today, along with my colleague from California, Senator Feinstein, legislation that will further one of the most important public policy goals we have as a Nation--the goal of homeownership. Homeownership is a significant part of the American dream. It has been called the backbone of our economy. It is widely considered the primary means by which American families create middle-class wealth and build financial security. Homeownership is all those things and more. It is the cornerstone of healthy communities across our Nation. It is good for families, good for our schools, good for our neighborhoods. Equity in homes is the leading source for collateral for small business start-up borrowing, and home equity loans are the leading provider of funds for a college education. Some experts even say home owners are more likely to vote. Despite the many benefits, there are still too many Americans for whom the American dream of homeownership is unreachable. There are too many American families who pay rent month after month, never accumulating equity, never experiencing the joy of raising their children in a home they own, and look forward to passing along to future generations. That is especially true among Americans from minority populations. Though nationwide nearly 70 percent of Americans own their own home, homeownership rates among African-Americans and Hispanics is less than 50 percent. There are any number of obstacles to homeownership, but there is one problem that is widely considered the single biggest obstacle: the lack of funds for a down payment. Again, this is disproportionately true among minority families, which frequently have less accumulated wealth that can be used for a down payment. President Bush has proposed creating the American Dream Down Payment Fund, which would provide down payment assistance to 40,000 families every year. I support that effort, and I applaud President Bush for proposing this bold new initiative. The President has set a goal of increasing the number of minority homeowners by at least 5.5 million by the end of this decade, which the Department of Housing and Urban Development estimates would create $256 billion in economic activity. I believe that is an important goal for us as a Nation. I also believe that as we work to find ways for the Federal Government to increase homeownership, we need to encourage the private sector to do the same. There are a number of non-profit organizations in our country doing just that by providing a gift of down payment assistance to potential homeowners. These gifts of down payment assistance go to families and individuals who have the income to afford a mortgage, but who would otherwise be prevented from buying a home because they lack funds for a down payment. Last year non-profit organizations provided gifts of down payment assistance to over 85,000 home buyers--and the number will likely be much higher this year. One organization alone has helped over 160,000 individuals and families become homeowners, by providing a gift of funds for a down payment. And all without collecting a single dime of government funding. That is why I am so pleased to be introducing this legislation today. I want to be sure the private sector can continue playing such a vital role in increasing homeownership by providing down payment assistance. Although many charities holding tax exemptions under section 501(c)(3) of the Internal Revenue Code provide down payment assistance, IRS regulations do not clearly address down payment assistance programs. Our legislation will clarify that, under certain circumstances, the provision of down payment assistance to American families for use in purchasing low or moderate price homes constitutes charitable activity. Rather than developing our own standard for eligible home purchases, we have relied on the National Housing Act rule for FHA-insured loans. Our provision applies to purchases of a principal residence if the amount of the mortgage is less than the maximum mortgage amount eligible for FHA insurance in the geographic area in which the home is located. That will ensure that a charitable down payment assistance program is not used to support the purchase of rental properties or expensive homes. Our legislation also includes one other provision designed to protect the Treasury. Home sellers often contribute to charitable down payment assistance providers in connection with the sale of a home. Those contributions are used to replenish the pool to make available gift assistance for other home buyers. Although the contributions are being made to a charity, they are not charitable in nature; they are expenses of selling a home. The legislation clarifies that a party to a home sale transaction may not claim a charitable contribution deduction for a contribution to a down payment assistance provider made in connection with the sale. Although IRS regulations do not clearly address down payment assistance programs, our legislation merely codifies current practice. As a result, I do not anticipate that the legislation will result in a significant change in tax revenues. Non-profit providers of down payment assistance help tens of thousands of Americans every year become homeowners. These organizations are changing lives, changing families, changing our communities--and they are doing it all without a single dime of taxpayer funds. I am pleased my colleague from California, Senator Feinstein, has joined me in introducing this legislation. I ask all of my colleagues to join us in this important effort.

Mr. SANTORUM

Mr. SANTORUM. Mr. President, I am please to introduce today, along with my colleague from California, Senator Feinstein, legislation that will further one of the most important public policy goals we have as a Nation--the goal of homeownership. Homeownership is a significant part of the American dream. It has been called the backbone of our economy. It is widely considered the primary means by which American families create middle-class wealth and build financial security. Homeownership is all those things and more. It is the cornerstone of healthy communities across our Nation. It is good for families, good for our schools, good for our neighborhoods. Equity in homes is the leading source for collateral for small business start-up borrowing, and home equity loans are the leading provider of funds for a college education. Some experts even say home owners are more likely to vote. Despite the many benefits, there are still too many Americans for whom the American dream of homeownership is unreachable. There are too many American families who pay rent month after month, never accumulating equity, never experiencing the joy of raising their children in a home they own, and look forward to passing along to future generations. That is especially true among Americans from minority populations. Though nationwide nearly 70 percent of Americans own their own home, homeownership rates among African-Americans and Hispanics is less than 50 percent. There are any number of obstacles to homeownership, but there is one problem that is widely considered the single biggest obstacle: the lack of funds for a down payment. Again, this is disproportionately true among minority families, which frequently have less accumulated wealth that can be used for a down payment. President Bush has proposed creating the American Dream Down Payment Fund, which would provide down payment assistance to 40,000 families every year. I support that effort, and I applaud President Bush for proposing this bold new initiative. The President has set a goal of increasing the number of minority homeowners by at least 5.5 million by the end of this decade, which the Department of Housing and Urban Development estimates would create $256 billion in economic activity. I believe that is an important goal for us as a Nation. I also believe that as we work to find ways for the Federal Government to increase homeownership, we need to encourage the private sector to do the same. There are a number of non-profit organizations in our country doing just that by providing a gift of down payment assistance to potential homeowners. These gifts of down payment assistance go to families and individuals who have the income to afford a mortgage, but who would otherwise be prevented from buying a home because they lack funds for a down payment. Last year non-profit organizations provided gifts of down payment assistance to over 85,000 home buyers--and the number will likely be much higher this year. One organization alone has helped over 160,000 individuals and families become homeowners, by providing a gift of funds for a down payment. And all without collecting a single dime of government funding. That is why I am so pleased to be introducing this legislation today. I want to be sure the private sector can continue playing such a vital role in increasing homeownership by providing down payment assistance. Although many charities holding tax exemptions under section 501(c)(3) of the Internal Revenue Code provide down payment assistance, IRS regulations do not clearly address down payment assistance programs. Our legislation will clarify that, under certain circumstances, the provision of down payment assistance to American families for use in purchasing low or moderate price homes constitutes charitable activity. Rather than developing our own standard for eligible home purchases, we have relied on the National Housing Act rule for FHA-insured loans. Our provision applies to purchases of a principal residence if the amount of the mortgage is less than the maximum mortgage amount eligible for FHA insurance in the geographic area in which the home is located. That will ensure that a charitable down payment assistance program is not used to support the purchase of rental properties or expensive homes. Our legislation also includes one other provision designed to protect the Treasury. Home sellers often contribute to charitable down payment assistance providers in connection with the sale of a home. Those contributions are used to replenish the pool to make available gift assistance for other home buyers. Although the contributions are being made to a charity, they are not charitable in nature; they are expenses of selling a home. The legislation clarifies that a party to a home sale transaction may not claim a charitable contribution deduction for a contribution to a down payment assistance provider made in connection with the sale. Although IRS regulations do not clearly address down payment assistance programs, our legislation merely codifies current practice. As a result, I do not anticipate that the legislation will result in a significant change in tax revenues. Non-profit providers of down payment assistance help tens of thousands of Americans every year become homeowners. These organizations are changing lives, changing families, changing our communities--and they are doing it all without a single dime of taxpayer funds. I am pleased my colleague from California, Senator Feinstein, has joined me in introducing this legislation. I ask all of my colleagues to join us in this important effort.

Mr. SANTORUM

Mr. SANTORUM. Mr. President, I thank the Senator from Texas and thank colleagues for their remarks this morning. I rise to talk about the Medicare prescription drug bill that is still being worked out. I think it needs to be stated that this is still a process. We have an agreement in principle, but there are still issues having to do with how much the bill will cost and whether it is going to be within the $400 billion framework that has been laid out by both Houses of Congress and by the President. They are still working through that. As a result, there will be some changes, probably, over the next 24 to 48 hours as to what this bill is going to look like in particular. But we do have a sense of what the broad outlines are. I have to tell you in all honesty, it is like any piece of legislation. There are some things that I really like, and there are some things that are good and I am in favor of. There are some things I don't like, and there are some things that I just darn well wish were not in the bill. The question is, How do you come out? That is a decision that every one of us is going to have to make on both sides of the aisle, because there are things I am sure every Member in this Chamber can look at and say: This is a good thing. The problem is, for about half of us who say it is a good thing, the other half will say it is a bad thing. But that is the nature of compromise. You try to come together to work out an overall package that is going to be beneficial to seniors, beneficial to taxpayers, and beneficial to the Medicare system over the long haul. That is what I want to talk about today. I think on balance this is a bill that achieves that. Let me lay out sort of my thoughts. No. 1, I am concerned with the overall Medicare system, the long-term health of that system. I think in part that is dependent upon the private sector system of this country upon which Medicare was built. You have to remember, Medicare was built on a 1965 Blue Cross plan. That was a private sector plan. The reason we are doing Medicare prescription drugs is because the private sector has been offering that for some time. So Medicare tends to follow what the private sector does. The question is, What is the private sector doing now? They are doing a lot of managed care, HMOs, PPOs, and other things insurance companies are trying to do to try to get costs under control, to increase quality and efficiency. Well, what are we trying to do with reforming the Medicare system? We are trying to put PPOs into Medicare. We already have some HMOs there. We are trying to expand that. What we are trying to do here is to conform Medicare to sort of a current state of play, as it was in 1965, and we are trying to conform it to what is working best in the private sector today. So that is one of the objectives we are trying to accomplish. This is my problem. I don't think, necessarily, that the current private sector--just as in 1965--is necessarily the most efficient way to run a health care system. I think there are fundamental underlying problems in the health care system that we are paying the costs for today. That is why our health care costs continue to go up. I think the fundamental problem is that people are not paying for their health care. When I say that, it is not that people are not paying for it through insurance. They are, and their premiums and copayments are going up to some degree. The overall cost for employers is going up, no question. One of the reasons the cost is going up is that utilization is going up, is that people's out-of-pocket expenditures don't conform to the benefit they are getting. In other words, they are paying $2 for $10 worth of service. As long as you are paying $2 out of pocket for a $10 benefit, you are probably going to continue to consume that benefit, disproportionate to other activities where you put $2 out of pocket and get $2 of benefit. We have to change that dynamic in health care, while maintaining insurance for people who need that coverage. The way this bill does that is just crucial. One of the reasons I am very excited about the bill is it puts in a provision called health savings accounts, which sets up a system in the private sector--it is not a Medicare provision but it is in the Medicare bill--it sets up a private sector reform to allow people to set up accounts so they can take more responsibility and more control over their health care expenditures. In a sense, by living healthier lives, by doing preventive care, doing all the things to maintain good health, they can actually save money and--this is the kicker--keep it. The insurance company doesn't benefit if you stay well and do the good things and you don't end up in hospitals or having surgeries. You benefit. So we are fundamentally changing the dynamic at the private sector, pre-Medicare level. Why is that important? If this is successful--and I believe it will be--it becomes a building block for future reform of Medicare, because once the employee population with private sector insurance, pre-Medicare, becomes used to and comfortable with this kind of program, they will be demanding it when we get to Medicare. It will infuse in Medicare what I believe is ultimately necessary, which is more individual control and responsibility for their health expenditures. So I argue that of all the things done, interestingly enough, in this Medicare bill, the most important thing I think we do, as a conservative, as somebody who believes in giving people more power and giving individuals more control, more choices, the most important thing we do in the Medicare bill isn't in Medicare but it is going to be a dramatic impact on it when the baby boomers retire and the costs go out of control. I make the argument--and we can get into the details of the Medicare bill--from the standpoint of a Republican conservative and to conservatives across this country, what we are doing with the reform in health savings accounts--they used to be referred to as medical savings accounts--is probably the most important, I argue, for the long-term future of Medicare because, as I said before, Medicare reform follows private sector reform. When the private sector changes, eventually Medicare will change to reflect that because that is what the public will want and demand. Within the Medicare system, we do put some reforms into place that are important. We have the reforms to Medicare Part B. We do put a Medicare drug bill in. Some people are saying: Well, as a conservative Republican, why do you want to put in a $400 billion new entitlement? The fact is, we have a health care system that doesn't cover health care expenses. If we have a health insurance system that doesn't cover 50 percent or, in some cases, more than 50 percent of the actual costs most people consume in health care expenditures, what kind of health care system is it, as far as insurance is concerned? It is not a very good one. Again, some Republicans are saying, well, we should be doing what the market is doing. Well, what the market did was cover drug costs. For us not to do that--I think it is a little disingenuous to make the argument that we should not take on this liability. I agree we need to have reforms and control costs, but we need to take on this responsibility because it is part and parcel of good quality health care in America today.

Mr. SANTORUM. I thank the Chair.

Mr. SANTORUM

Mr. SANTORUM. At the District of Columbia level are trial court judges who basically preside over trials and the circuit court or appeals courts decide matters of law that apply across the circuit, and it can have an influence in other circuits. Is that correct?

Mr. SANTORUM. Most decisions that are appealed from the trial court go to the appellate court, or the circuit court, but very few go up to the Supreme Court. Is it not true the appellate court makes the final decision in a lot of these cases?

Mr. SANTORUM. They have blocked every form of reasonable and balanced litigation reform that balances the interests of those who rightfully have a plea before a court for compensation and the right of society not to have outrageous awards, which make us unproductive, which raises the cost of health care, and which limits the availability of health care to millions of Americans.

Mr. SANTORUM. They want to roll back the reductions that the President put in place. They do not like the dividend proposal. The stock market has added $2 trillion in value. What does that mean to the millions of Americans who now participate in the market? You are talking about real wealth. You are talking about retirement security for millions of Americans because of the economic plan of this administration passed by the Senate. And they would like to roll that back. I guess they do not like markets going up. I guess they do not like employment going up. I guess they do not like economic activity and job creation.

Mr. SANTORUM. Explain the difference between a district court judge and a circuit court judge when it comes to matters of law and the impact of those decisions.

Mr. SANTORUM. Will the Senator yield?

Mr. SANTORUM. Will the Senator yield for a question?

Mr. SANTORUM

Mr. SANTORUM. Mr. President, I have the floor. Now that chart the Senator from Illinois is going to show is 168 to 6. And I would project that 168 to 6 will soon be 168 to 7 and then 8 and then 9 and then 10; and that this number is going to actually, looking forward into the future of the Senate, be a good percentage. I might agree with him looking forward because we will have set a precedent tonight. We will have set a precedent in this session of Congress that will go to haunt both sides forever. If we maintain it, it will. I guarantee it. What we are doing here is playing with real bullets. I tell you there are folks on our side of the aisle who are loving what you are doing. They are loving what you are doing, man. They just think, go, baby, go. Do this because we can't wait to get our arms around the next Democratic President who wants to stack the court with a bunch of people who believe God does not belong in the Pledge of Allegiance. We can't wait--who, by the way, got confirmed by the Clinton administration and by this Senate. We can't wait to get our arms around people who find in this Constitution things that are not in it, who believe it is their job to be the super Senator, the super legislator, the super President. We can't wait to block those nominees because, do you know what. You did it first. You did it first. You can say, oh, no, we didn't do it first. You did it first. You crossed the line. Oh, it has been threatened. It has been talked about around here. I will not deny that. I talked about it. Richard Paez, by the way, who tried to stop the California election a few days before the election, found somehow or other that ``you can't hold this election,'' that, to the people wanting to recall the Governor, ``you can't do that because, of course, I know more than the people.'' Richard Paez, Ninth Circuit, overturned more than any other circuit in the history of the United States. Clinton nominees, liberal, activist judges, out of step with the mainstream, the Senator from New York and maybe other Senators call mainstream, who says ``under God'' does not belong in the Pledge of Allegiance, who said ``three strikes and you're out,'' that the people of California voted for, is unconstitutional. The Supreme Court overturned that. That is the mainstream. Can't wait to get at the next Richard Paez. Can't wait to get at the next Marsha Berzon. Go on down the list of folks. Did I want to filibuster them? Did I want to filibuster Richard Paez because he was a district court judge? And he was awful. He expressed values and views that were so out of step with America and with my constituents in Pennsylvania, I just could not stand it. I said, come on. How can we continue to let these judges, who think they are God, who think they are Senators, who write laws that do not exist, who take the laws we do write and turn them into what they think, not what the Senate believed and what the President believed--how do we let these people keep coming at us and not do anything? My leader, Trent Lott, and my chairman of the Judiciary Committee, Orrin Hatch, said that is not the way we do things in the Senate. This is the passion of the day. But in the Senate, one of the great things-- and you hear it on both sides all the time--one of the great things about the Senate is we do not get caught up in the passion of the day. We understand the long term. We understand the greatness of America. We hear we are the cooling off. We do not get caught up with the passion of the day. We are the deliberative body. Therefore--and therefore--we have a higher calling than to respond to the NARAL ads or the People for the American Way ads. We have a higher calling. We are Senators. We look out for the long-term interests. How do you preserve the long-term interests? You do it by following the laws and the precedent. You do it by using what has been established over 214 years to protect rights, and we are throwing it away. We are throwing it away, and understand the stakes of what we are doing here. Understand the precedent we are turning over and what we are going to unleash on the floor of this Senate. Do you know what. Maybe it is a good thing. I have sat here now--I will not argue against my colleagues, but I have sat here now, and I listened to the Senator from Kansas. I would ask the Senator from South Carolina: Do you believe there are some on our side who, after listening to the Senator from Kansas and listening to the judges who have been put through--because we have been good stewards. We have allowed the Richard Paezs of this world to come and undermine our Constitution. We have allowed the left to seed into the court system those who would destroy this Constitution. Are there not Members of our side, I ask the Senator from South Carolina, who would say, thank you, we never had the courage--we never had the courage--to change the way the rules are here in the Senate to make sure that we could protect--as I think the Senator from New Jersey said--``protect our courts?'' We did not have the courage--as the Senator from New Jersey said--``to stop judicial extremists.'' So maybe what we should be doing, I ask the Senator, is thanking the Senator from Illinois--and the Senator from North Dakota is here--and the Senator from South Dakota, Senator Daschle. Maybe what we should do is instead of protesting this is to thank them for giving us a tool, for giving us a tool to protect this document. I assure them--maybe I should not assure them--maybe I will ask the Senator from South Carolina, what do you think will happen now?

Mr. SANTORUM. Will the Senator from Alabama say that is following the law?

Mr. SANTORUM. I renew my unanimous consent request.

Mr. SANTORUM. Mr. President, I plead with the Members on the other side of the aisle to stop this. I have folks on our side of the aisle saying: Don't plead with them. Don't plead with them. Let them do it. Because we will have our opportunity someday, and we will make sure there is not another liberal judge ever, ever, to get on that--no more Richard Paezes, no more Ruth Bader Ginsburgs--never, because what is good for the goose is good for the gander. Let them up the ante. We will take all those activist judges they send up and we will shoot them down. Is that what they want? Anybody who gives a political opinion in America no longer will be eligible for the judiciary. We are going to sanitize the judiciary? We are going to send it to ``Mediocrityville''? Is that what we really want here? Because let me assure you, as I live and breathe, that is what will happen. If we keep this up--it is 4 today; it will be 6--in 2 hours it will be 6. The Senator from Utah said pretty soon it will be 12. Why it is only 4? Because you just started. You always start with 1.

Mr. SANTORUM. Stop now. You have a chance to save this country and this judiciary. Stop now.

Mr. SANTORUM. I will be happy to yield to the Senator from Kansas.

Mr. SANTORUM. I take a step back here and go through what we are doing. What is going on? What is going on in the Senate that has brought about this debate which has been so important? Can we agree on what is going on? I think we can. Let me use the words, and I would agree with these words written by Jon Corzine, the Senator from New Jersey, who happens to be the chairman of the Democratic Senatorial Committee. The Senator from South Carolina was here and the Senator from Minnesota was here talking about this throughout the night. We can agree on what is going on. Senate Democrats have launched an unprecedented effort. By mounting filibusters against the Bush Administration's most radical nominees. . . . Unprecedented. And what does ``unprecedented'' mean, according to the dictionary? Having no precedent. What is precedent? An earlier occurrence. So, having no earlier occurrence. What does that mean? It has never happened before. That is not me. It is not Republicans saying this. You have protestations on the other side. This happens all the time. Come on, no big deal. The Senator from Illinois will show a chart, look at all these filibusters. Come on, no big deal. We do this all the time. Unprecedented. Their words, not mine. To whom? To their people? Guys, this is what we are really doing. We are not going to say this on the floor of the Senate, but this is what we are really doing. It is unprecedented. So what is going on? An unprecedented filibuster to raise the bar for certain nominees. That is what is going on. Not my words, the words of the Senator from New Jersey to the people he relies upon to support their party. Let's look at the facts. Is it unprecedented? Since the filibuster rule was put in place, 2,372 nominees came to the floor of the Senate. Has anyone been blocked by filibuster? No. So you see, 168 to 4--stack that percentage against 2,372 to zero. Four? Let me ask if it is four. Unanimous Consent Request I ask unanimous consent that the Senate now proceed to the consideration of Calendar No. 169, the nomination of Carolyn Kuhl to be a United States Circuit Judge for the Ninth Circuit; and further provided there be 100 hours of debate equally divided for the consideration of the nomination; and provided further the Senate proceed to a vote on the confirmation of the nominee, with no intervening action or debate.

Mr. SANTORUM. Now it is 168 to 5. So that chart is now outdated that the Senator from Illinois will show. Unanimous Consent Request