Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President. I am introducing the Free Speech Protection Act of 2009 to address a serious challenge to one of the most basic protections in our Constitution. American journalists and academics must have the freedom to investigate, write, speak, and publish about matters of public importance, limited only by the legal standards laid out in our First Amendment jurisprudence, including precedents such as New York Times v. Sullivan. Despite the protection for free speech under our own law, the rights of the American public, and of American journalists who share information with the public, are being threatened by the forum shopping of libel suits to foreign courts with less robust protections for free speech. These suits are filed in, and entertained by, foreign courts, despite the fact that the challenged speech or writing is written in the United States by U.S. journalists, and is published or disseminated primarily in the United States. The plaintiff in these cases may have no particular connection to the country in which the suit is filed. Nevertheless, the U.S. journalists or publications who are named as defendants in these suits must deal with the expense, inconvenience and distress of being sued in foreign courts, even though their conduct is protected by the First Amendment. An example of why the legislation is necessary is found in litigation involving Dr. Rachel Ehrenfeld, a U.S. citizen and Director of the American Center for Democracy, whose articles have appeared in the Wall Street Journal, the National Review, and the Los Angeles Times. She has been a scholar with Columbia University, the University of New York School of Law, and Johns Hopkins, and has testified before Congress. Dr. Ehrenfeld's 2003 book, ``Funding Evil: How Terrorism is Financed and How to Stop It'', which was published solely in the United States by a U.S. publisher, alleged that a Saudi Arabian subject and his family financially supported Al Qaeda in the years preceding the attacks of September 11. He sued Ehrenfeld for libel in England, although only 23 books were sold there. Why? Because under English law, it is not necessary for a libel plaintiff to prove falsity or actual malice as is required in the United States. Dr. Ehrenfeld did not appear, and the English court entered a default judgment for damages, an injunction against publication in the United Kingdom, a ``declaration of falsity'', and an order that she and her publisher print a correction and an apology. Dr. Ehrenfeld sought to shield herself with a declaration from both federal and state courts that her book did not create liability under American law, but jurisdictional barriers prevented both the Federal and New York State courts from acting. Reacting to this problem, the Governor of New York, on May 1, 2008, signed into law the ``Libel Terrorism Protection Act.'' Congress must now take similar action. I note that the person who sued Dr. Ehrenfeld has filed dozens of lawsuits in England, and there is a real danger that other American writers and researchers will be afraid to address this crucial subject of terror funding and other important matters. Other countries should be free to have their own libel law, but so too should the United States. Venues that have become magnets for defamation plaintiffs from around the world permit those who want to intimidate our journalists to succeed in doing so. The stakes are high. The United Nations in 2008 noted the importance of free speech and a free press, and the threat that libel tourism poses to the world. Following the New York example, the legislation my co-sponsors and I introduce today confers jurisdiction on federal courts to bar enforcement of foreign libel judgments if the material at issue would not constitute libel under U.S. law. Significantly, it also deters foreign suits in the first place by permitting American defendants to countersue from the moment papers are served on them. Damages available in the countersuit include the amount at issue in the foreign libel suit as well as treble damages if the foreign suit is part of a scheme to suppress a U.S. person's first amendment rights. This deterrent mechanism is critical because those who bring these foreign libel suits are more interested in intimidating the authors than in actually collecting damages. They know that even if a foreign judgment cannot be enforced in the United States, the cost of defending the suit and the penalty for taking a default judgment can have a chilling effect on American writers and publishers. In particular, under English law a contempt citation may issue against authors or publishers who fail to satisfy default judgments, pursuant to which their property may be seized and they may be imprisoned. What is worse, defendants can no longer skirt the consequences merely by avoiding contact with England. Under recent European Commission regulations, default judgments for monetary claims are enforceable in all EU countries except Denmark. The potentially severe ramifications of a default judgment make clear that merely barring enforcement of a foreign libel judgment in U.S. courts is entirely insufficient particularly for publishers with European offices. While it is important to bar enforcement, in the words of a New York Times editorial, that does ``not go as far as it could.'' I often remark that the Senate is the world's greatest deliberative body and all the facts and arguments ought to be examined before it acts. Accordingly, I must address a letter in opposition to this bill from a prominent British libel lawyer and explain why his arguments are unpersuasive. He notes that a ``U.S. citizen . . . knocked down by the negligent driving'' of a London taxi driver is ``just as entitled as any British citizen'' to sue in England for damages. Why should a U.S. citizen ``not be entitled on the same basis, like any other UK citizen, to sue for damages to his reputation?'' The answer, of course, is that the analogy is inapt. In that hypothetical, the plaintiff sues the defendant in the defendant's jurisdiction for a harm committed and suffered there, an injury that is universally recognized as a tort. By contrast, the plaintiff in a foreign libel action purposely avoids suing in the jurisdiction where the defendant journalist writes and publishes, a jurisdiction where the material is not libelous. The proper analogy would be if the injured American had sued the taxi driver in the United States instead of England because the driver's conduct would not constitute negligence under English law. That hardly seems fair play. Our bill is designed specifically to prevent such forum shopping. That essay also asks whether ``legislators will extend their intervention'' to commercial matters such as contracts and debts and warns that such extension could trigger ``retaliatory action on the part of UK legislators.'' Actually, such extension has already happened, but at the hands of British legislators not American ones. In the antitrust context, British law bars enforcement of foreign judgments for treble damages such as those awarded by U.S. courts. In addition, it allows a British corporation, against whom a judgment for treble damages was entered in a foreign court, to recover from the plaintiff any excess over actual damages. In any event, this bill is confined to the narrow area of core First Amendment rights. ``Perhaps of most significance'' he continues in his letter, is that to his knowledge ``very few of these claims have actually come before UK courts.'' But it is the chilling effect and the mere threat of litigation that suffices to silence authors; there is no need to try the cases. In 2004, fear of a lawsuit forced Random House UK to cancel publication of ``House of Bush, House of Saud,'' a best seller in the U.S. that was written by an American author. Similarly, in 2007, the threat of a lawsuit compelled Cambridge University Press to apologize and destroy all available copies of ``Alms for Jihad,'' a book on terrorism funding by American authors. Indeed, an October 2008 study reported in The Guardian found that ``[m]edia companies are becoming less willing to fight defamation court cases all the way to a verdict. . . . With the burden of proof effectively resting on the defendant'' and attorneys' fees paid by the loser, defendants ``are forced to enter into settlement negotiations.'' Numerous organizations have endorsed the bill we offer today, including the ACLU and the Anti-Defamation League, as well as numerous journalists and publishers groups. Op-eds and editorials supporting our efforts have run in national papers, including the New York Times on September 15, 2008 and the New York Sun on July 28, 2008. Also drawing attention to the issue was an op-ed Senator Lieberman and I penned that ran in the Wall Street Journal on July 14, 2008. Freedom of speech, freedom of the press, freedom of expression of ideas, opinions, and research, and freedom of exchange of information are all essential to the functioning of a democracy. They are also essential in the fight against terrorism. I thank Senators Lieberman and Schumer, as well as Congressman Pete King and his cosponsors for working with me on this important bill.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to introduce the Medicare Hospice Protection Act, which will place a one- year moratorium on a final rule issued by the Centers for Medicare and Medicaid Services, CMS, reducing payments to hospice providers and ensure Medicare beneficiaries' access to hospice care. More than 1.3 million Americans depend on hospice for high quality and compassionate end-of-life care each year. Unfortunately, on October 1, 2008, CMS issued a final rule to reduce hospice reimbursement rates in Medicare. This reduction of the hospice wage index will take $2.1 billion out of hospice care for Medicare beneficiaries over the next 5 years. The Medicare Payment Advisory Commission, MedPAC, is currently examining the payment system for hospice care. We must allow MedPAC to complete this important review of the hospice Medicare benefit and make payment recommendations, which is expected in 2009. The Hospice Protection Act, introduced by myself and Senators Harkin, Wyden, Roberts, and Rockefeller, will maintain access to hospice care for seniors. Hospice is an efficient and cost-effective health care model. Hospice provides individuals at the end of their lives, as well as their families, with comfort and compassion when they are needed most. Hospice care enables a person to retain his or her dignity and maintain quality of life during the end of life. An independent Duke University study in 2007 showed that patients receiving hospice care cost the Medicare program about $2,300 less than those who did not, resulting in an annual savings of more than $2 billion. In April 28, 2008, just before the Notice of Proposed Rule Making was released, a bipartisan group of more than 40 Senators wrote to Secretary Leavitt and asked him to stop further action and wait for MedPAC recommendations on hospice payment issues. On July 28, 2008, before the final rule was released, Senators Harkin, Wyden, Roberts and I wrote to White House Chief of Staff Joshua Bolton, to urge him to stop the regulation from being finalized and to consider the burden that this regulation will put on the hospice community. Access to quality compassionate hospice care is critical for Medicare beneficiaries. I ask my fellow Senators to join me in support of the Hospice Protection Act and to work toward its swift passage.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to introduce the Medicare Hospice Protection Act, which will place a one- year moratorium on a final rule issued by the Centers for Medicare and Medicaid Services, CMS, reducing payments to hospice providers and ensure Medicare beneficiaries' access to hospice care. More than 1.3 million Americans depend on hospice for high quality and compassionate end-of-life care each year. Unfortunately, on October 1, 2008, CMS issued a final rule to reduce hospice reimbursement rates in Medicare. This reduction of the hospice wage index will take $2.1 billion out of hospice care for Medicare beneficiaries over the next 5 years. The Medicare Payment Advisory Commission, MedPAC, is currently examining the payment system for hospice care. We must allow MedPAC to complete this important review of the hospice Medicare benefit and make payment recommendations, which is expected in 2009. The Hospice Protection Act, introduced by myself and Senators Harkin, Wyden, Roberts, and Rockefeller, will maintain access to hospice care for seniors. Hospice is an efficient and cost-effective health care model. Hospice provides individuals at the end of their lives, as well as their families, with comfort and compassion when they are needed most. Hospice care enables a person to retain his or her dignity and maintain quality of life during the end of life. An independent Duke University study in 2007 showed that patients receiving hospice care cost the Medicare program about $2,300 less than those who did not, resulting in an annual savings of more than $2 billion. In April 28, 2008, just before the Notice of Proposed Rule Making was released, a bipartisan group of more than 40 Senators wrote to Secretary Leavitt and asked him to stop further action and wait for MedPAC recommendations on hospice payment issues. On July 28, 2008, before the final rule was released, Senators Harkin, Wyden, Roberts and I wrote to White House Chief of Staff Joshua Bolton, to urge him to stop the regulation from being finalized and to consider the burden that this regulation will put on the hospice community. Access to quality compassionate hospice care is critical for Medicare beneficiaries. I ask my fellow Senators to join me in support of the Hospice Protection Act and to work toward its swift passage.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to introduce Nino's Act, to provide for the continuance of successful treatment for children who are required to leave National Institutes of Health, NIH, research studies. The NIH provides the greatest medical research in the world on innumerable diseases, including cancer, Alzheimer's, Parkinson's. The NIH also conducts excellent research on diseases that affect children. To conduct that research many brave children must partake in research studies including observational, or natural history, studies and clinical trials to test experimental therapies. This participation is critical to understanding diseases and ultimately finding cures at the NIH. To participate in the trials and studies, children and their families often make considerable sacrifices. Families will travel great distances to receive treatment that may provide relief from the child's illness. In many cases, parents and doctors will have tried many treatments for the child's disease about which little may be known or understood. The NIH studies represent an opportunity for both the medical community to learn more about the disease and the child to be studied and potentially treated by the best researchers in the world. When the experimental treatments are successful, it is cause for great celebration for the child. The joy, however, can end quickly as the studies come to end but the children who have been part of them continue to be stricken by these terrible illnesses. Nino's Act seeks to transition children out of the NIH studies as they end so they don't experience a gap in their important treatment. This legislation continues the successful treatment initiated in NIH studies by providing access to the same prescription drugs for children who are required to leave NIH clinical studies due to the studies ending, researcher leaving, or other reason. Often drugs that are used successfully in these studies have not yet been approved by the Food and Drug Administration or have not been approved for treatment of the child's specific disease. As such, it is nearly impossible for children to get access or insurance coverage for these drugs. This bill makes that access possible by requiring Medicaid to cover the cost of treatment in the event that the children's health insurance does not. On occasion, insurers will cover the cost of the treatment for these children if they have adequate insurance and the FDA has approved the drug for off-label uses. More often than not, however, children do not have health insurance, or have insufficient insurance to obtain these drugs. As a result, children suffer their diseases without relief from the treatment as established in the clinical NIH studies. To ensure that these children have access to successful care post-study, Nino's Act requires Medicaid to cover the cost of treatment for these children. While Medicaid access is traditionally based on income, due to the importance of these drugs to the child's well-being the income component will be waived. To ensure Medicaid is not unnecessarily covering medication, Nino's Act requires the physicians participating in the research to certify the treatment as successful and essential. This important issue was introduced to me by Lori Todaro of Newville, PA. Lori's son Nino suffers from Undifferentiated Auto-Inflammatory Periodic Fever Syndrome. This disease takes a devastating toll on those who suffer from it. The auto-inflammatory disease can cause joint inflammation arthritis, Crohns, colitis, irritable bowel syndrome, and cyclical high fevers. Treatment for Periodic Fever Syndrome is experimental at best; Lori and Nino have visited a number of doctors and tried many medications in an effort to control the disease. In 2003, Nino was fortunate to be selected to take part in an observational study at NIH in Bethesda, Maryland for Undifferentiated Auto-Inflammatory Periodic Fever Syndrome. During the course of the study, Nino was given a new medication and his condition greatly improved. Before he participated in the study he was being fitted for wheelchairs and was home schooled because his symptoms were so disruptive and unpredictable. The NIH treatment allowed him to resume a normal life and enabled him to attend school and play soccer. While Nino's treatment was successful he could not remain part of the study indefinitely and was encouraged to seek coverage for his treatments through his private insurer. Initially, the Todaro's insurer would not agree to cover the cost of the experimental drug and only after an intense lobbying effort by Lori, did the insurer agree to cover Nino's prescriptions. Nino's story is a successful one, but also serves to highlight the issue that children and their families are facing as they transition out of NIH studies. For many, NIH trials are a source of hope for relief from the worst diseases known to man. The excellent doctors and research teams at NIH make invaluable contributions to our understanding of complex and debilitating diseases. This legislation seeks to amplify the NIH's contributions by allowing America's sickest children to continue their successful treatment under Medicaid coverage. I encourage my colleagues to work with Senator Casey and me to move this legislation forward promptly.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to introduce Nino's Act, to provide for the continuance of successful treatment for children who are required to leave National Institutes of Health, NIH, research studies. The NIH provides the greatest medical research in the world on innumerable diseases, including cancer, Alzheimer's, Parkinson's. The NIH also conducts excellent research on diseases that affect children. To conduct that research many brave children must partake in research studies including observational, or natural history, studies and clinical trials to test experimental therapies. This participation is critical to understanding diseases and ultimately finding cures at the NIH. To participate in the trials and studies, children and their families often make considerable sacrifices. Families will travel great distances to receive treatment that may provide relief from the child's illness. In many cases, parents and doctors will have tried many treatments for the child's disease about which little may be known or understood. The NIH studies represent an opportunity for both the medical community to learn more about the disease and the child to be studied and potentially treated by the best researchers in the world. When the experimental treatments are successful, it is cause for great celebration for the child. The joy, however, can end quickly as the studies come to end but the children who have been part of them continue to be stricken by these terrible illnesses. Nino's Act seeks to transition children out of the NIH studies as they end so they don't experience a gap in their important treatment. This legislation continues the successful treatment initiated in NIH studies by providing access to the same prescription drugs for children who are required to leave NIH clinical studies due to the studies ending, researcher leaving, or other reason. Often drugs that are used successfully in these studies have not yet been approved by the Food and Drug Administration or have not been approved for treatment of the child's specific disease. As such, it is nearly impossible for children to get access or insurance coverage for these drugs. This bill makes that access possible by requiring Medicaid to cover the cost of treatment in the event that the children's health insurance does not. On occasion, insurers will cover the cost of the treatment for these children if they have adequate insurance and the FDA has approved the drug for off-label uses. More often than not, however, children do not have health insurance, or have insufficient insurance to obtain these drugs. As a result, children suffer their diseases without relief from the treatment as established in the clinical NIH studies. To ensure that these children have access to successful care post-study, Nino's Act requires Medicaid to cover the cost of treatment for these children. While Medicaid access is traditionally based on income, due to the importance of these drugs to the child's well-being the income component will be waived. To ensure Medicaid is not unnecessarily covering medication, Nino's Act requires the physicians participating in the research to certify the treatment as successful and essential. This important issue was introduced to me by Lori Todaro of Newville, PA. Lori's son Nino suffers from Undifferentiated Auto-Inflammatory Periodic Fever Syndrome. This disease takes a devastating toll on those who suffer from it. The auto-inflammatory disease can cause joint inflammation arthritis, Crohns, colitis, irritable bowel syndrome, and cyclical high fevers. Treatment for Periodic Fever Syndrome is experimental at best; Lori and Nino have visited a number of doctors and tried many medications in an effort to control the disease. In 2003, Nino was fortunate to be selected to take part in an observational study at NIH in Bethesda, Maryland for Undifferentiated Auto-Inflammatory Periodic Fever Syndrome. During the course of the study, Nino was given a new medication and his condition greatly improved. Before he participated in the study he was being fitted for wheelchairs and was home schooled because his symptoms were so disruptive and unpredictable. The NIH treatment allowed him to resume a normal life and enabled him to attend school and play soccer. While Nino's treatment was successful he could not remain part of the study indefinitely and was encouraged to seek coverage for his treatments through his private insurer. Initially, the Todaro's insurer would not agree to cover the cost of the experimental drug and only after an intense lobbying effort by Lori, did the insurer agree to cover Nino's prescriptions. Nino's story is a successful one, but also serves to highlight the issue that children and their families are facing as they transition out of NIH studies. For many, NIH trials are a source of hope for relief from the worst diseases known to man. The excellent doctors and research teams at NIH make invaluable contributions to our understanding of complex and debilitating diseases. This legislation seeks to amplify the NIH's contributions by allowing America's sickest children to continue their successful treatment under Medicaid coverage. I encourage my colleagues to work with Senator Casey and me to move this legislation forward promptly.

Mr. SPECTER

Mr. SPECTER. Mr. President, the bill the chairman has brought before the Senate includes funding to respond to many economic and security issues facing our country today, and I congratulate him on his tremendous effort. In particular, the bill includes funding for the Health and Human Services Department pandemic flu program, which falls under the subcommittee on which I have dedicated much of my service to the country. Unfortunately, the Senate bill does not identify specific funding for HHS to address bioterrorism and the development and production of biodefense medical countermeasures.

Mr. SPECTER. A key component of preparedness is the availability of effective preventive and therapeutic drugs and vaccines to counter diseases caused by man-made attacks and public health threats. Identifying and funding the means to acquire these drugs and vaccines is an issue that I believe the Appropriations Committee and the Labor- HHS Subcommittee should urgently address.

Mr. SPECTER

Mr. SPECTER. Madam President, I begin with the enormously serious economic problems facing the United States: an unemployment rate which is rising, 4,100,000 jobs lost last year, thousands of people losing their jobs every day; recognizing the very heavy psychological factor which is at work, cited for the destruction of consumer confidence; and the eyes and the ears of the world are on the United States, on the U.S. Government, and on the Senate tonight to see whether we will be able to respond to the magnitude of the problem. The psychological impact, if we were to reject some activist approach, I think would be devastating, not only on Wall Street and on Main Street but all across the face of the globe. Based on the telephone calls which I have gotten in my office, this is a very unpopular vote. Perhaps the tide will turn. But the calls are mounting from one end of the political spectrum saying there are too many expenditures, and the calls are mounting on the other end of the political spectrum saying there is not enough money being spent on the proposal which we are advancing tonight. Perhaps the tide will turn on reflection and an analysis of the program which we are setting forth. Perhaps the tide will turn as exemplified by the letter issued today from the U.S. Chamber of Commerce, principal spokesman for corporate America and principal spokesman for conservative America. The Chamber says this: Therefore, this legislation, because the economy continues to deteriorate, the Chamber is for the bill because it supports pro-growth tax initiatives. The Chamber is for the bill because it applauds the inclusion of tax relief. The Chamber is for the bill because many of the spending-side provisions of the legislation will also provide stimulus to get Americans back to work focusing on infrastructure spending for roads, rails, public transportation, aviation, inland waterways and ports. I have already noted certain grave concerns which I have and one is the rush to judgment, which we are a part, and perhaps a necessary part. When President Obama came to speak to the Republican Caucus recently, when my turn came to ask a question, I said: Why are you wedded to February 13? That is too fast to digest a bill of this magnitude. I said we had passed a $700 billion bailout bill, TARP, where we did not know what was in the bill. We did not have the regular order of hearings, questions, and cross-examination or committee work on the markup line by line with the committee report. We did not even have floor debate. We made a lot of mistakes. They were compounded by the administration carrying it out. I voted against the release of the second $350 billion. I said: Mr. President, let's not do it again. There is nothing magical about February 13 before we start the week of recess for Presidents Day. The President responded, emphasizing the severe nature of the problem, and not telling us all, which he has told us privately, about the serious problems which he sees or his advisers see for any delay at all. So we are responding to his timetable. I do not like it, but I am responding to it. There are other aspects of this bill which give me heartburn. There is a lot in this bill which ought to be part of the regular appropriations process. I served for 10 years as chairman of the subcommittee funding the Departments of Health and Human Services and Education. I have fought hard for many of the items that are in this bill but ought not to be in this bill. They ought to be part of the regular appropriations process where we set an overall budget and we fight them out on priorities. But they are here because the administration and the bill proposed by the committee has seen fit to include them. There are many who are criticizing the amendment which we are offering here this evening. They say there are cuts in important programs. Well, that is wrong. There are not cuts in important programs. If this bill is not passed, there will not be any appropriations. So you start from zero on Head Start, and you start from zero on child development. It is true we have made some reductions in the size of the appropriations, but that is not a cut. For example, on childcare, the committee bill has $2 billion, and we have seen fit to put $2 billion in. Well, if we do not have 60 votes, childcare does not get any additional sum. My preference would be to handle it in regular order. Head Start is in the committee bill for $2.1 billion. It is going to have $1.05 billion. Title I in the committee report has $13 billion and will retain $12.4 billion. Special education has $13.5 billion, and we left it all in because that is a Federal mandate. It is different. The National Institutes of Health has $10 billion, including the Senate amendment. This is an item that has special significance to Senator Harkin and myself as our lead in raising NIH funding since 1994 from $10 billion to the present number of approximately $30 billion. NIH will produce 70,000 jobs, according to the head of the National Institutes of Health. Now, what have we accomplished in the amendment which is being offered now? This bill, in coming to the floor, and these figures are pretty close. They are hard to be exact. The bill starts with $885 billion. There were add-ons on the floor of $53 billion. The bill, as it is being reported is $780 billion. So we have reduced the expenditures by $105 billion. That is a lot of money. That is something which makes everybody angry. But that is a position you are in if you are a Senator. People are unhappy because they did not get the full amount for the committee report, although absent this bill they would get zero additional. People are unhappy on spending too much money, but it is imperative, as I see it, that we do something very substantial. There are reasons to argue that this is a bad bill. I am not saying it is a bad bill, I am saying there are reasons to argue it is a bad bill. But I do not believe there is any doubt the economy would be enormously worse off without it. That is the kind of a choice we have to make. Personally, I would prefer not to be on the edge of the pin, as so frequently is the case in this body. But I do believe we have to act, and I believe that under all the circumstances, this is the best we can do and we ought to do it. I reserve the remainder of my time.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition to comment on my cosponsorship of an amendment to H.R. 1, the Economic Recovery Act, which would increase funding in the bill for mass transit by $6.5 billion. I am cosponsoring this amendment, offered by Senator Schumer, because it will increase funding for ready-to-go public transit projects that will create both jobs and transportation options. While the underlying bill contains $8.4 billion for transit, public transit agencies across the Nation identified over $50 billion worth of projects that could be put under contract within a 2-year economic recovery bill, and $12.2 billion which could be implemented within 90 days of Federal funding being allocated. I have heard from transit agencies across Pennsylvania that are ready to put people to work and improve transportation options in their communities if Federal stimulus funding is provided. An investment in public transit would also have the benefit of reducing oil consumption and vehicle emissions in instances where increased public transit capacity encourages a shift from automobiles. However, despite my cosponsorship of this amendment due to its potential for stimulus and for improving transportation systems across Pennsylvania and the Nation, I am not committed to voting for it without an offset. Since adopting this amendment would add $6.5 billion to the size of the bill and to the national deficit, an offset to reduce spending elsewhere in the bill by an equal amount would be preferable. We should make every effort to identify offset to reduce the total size of the economic recovery bill. Amendment No. 390

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition to support an amendment being offered by Senator Schumer to reverse a recent Centers for Medicare and Medicaid Services, CMS, regulation reducing payments to hospice service providers. This amendment is also cosponsored by Senators Rockefeller, Stabenow, Wyden and Roberts. In October 2008, CMS finalized a rule that cut hospice reimbursement under Medicare. This reduction limits the ability of hospice providers to provide comprehensive, high quality end-of-life care to Medicare beneficiaries and their families. In 2008, an independent study from Duke University, clearly demonstrating the cost savings associated with hospice care, noted, ``Given that hospice has been widely demonstrated to improve quality of life of patients and family members . . . the Medicare program appears to have a rare situation whereby something that improves quality of life also appears to reduce costs.'' During the 110th Congress, in response this regulation, I introduced S.3484, the Hospice Protection Act, to reverse the CMS regulation. The bill received bipartisan support and garnered thirty five cosponsors however we were not able to move the legislation forward. The economic stimulus legislation offers an opportunity to correct a misguided regulation that has put an estimate 3,000 individuals out of work. During these economic times the Federal Government should not be putting forth regulations that not only hurt beneficiaries but harm the workforce. While this amendment provides a number of jobs, I am concerned that the amendment is not offset and the cost of the bill may increase the cost of the overall bill. As a cosponsor of this legislation, I will work to ensure that the cost of this amendment is paid for without increasing the cost of the bill. I encourage my colleagues to support this amendment and to work with the sponsor and cosponsors of this amendment to ensure its inclusion in the economic stimulus package. Army Corps of Engineers Mr. President, I seek recognition to comment on my cosponsorship of an amendment to H.R. 1, the Economic Recovery Act, which would increase funding in the bill for the U.S. Army Corps of Engineers by $4.6 billion. I am cosponsoring this amendment, offered by Senator Landrieu, because the funding will support construction of critical infrastructure projects across the Nation. At the Port of Pittsburgh alone, there is over $580 million worth of shovel-ready lock and dam work that could be started in 6 months. These structures support the transportation of bulk commodities to industries that depend on them. Failure at any of these locks and dams would have dramatic economic consequences, as the Port of Pittsburgh generates over $13 billion in economic activity and supports over 200,000 jobs. Not only does the long-term modernization of these structures increase the economic competitiveness of domestic manufacturing industries, but they create immediate jobs in the construction industry. This is just one example of the type of economic stimulus that funding for the U.S. Army Corps of Engineers can provide. There are more examples across Pennsylvania and the Nation. However, despite my cosponsorship of this amendment due to its potential for stimulus, I am not committed to voting for it without an offset. Since adopting this amendment would add $4.6 billion to the size of the bill and increase the national deficit, an offset to reduce spending elsewhere in the bill by an equal amount would be preferable. We should make every effort to identify offsets to reduce the total size of the economic recovery bill. Rescission of Highway Funds Mr. President, I seek recognition to comment on my cosponsorship of an amendment to prevent Federal highway funds from being rescinded. SAFETEA-LU requires that $8.7 billion in unobligated contract authority balances held by States be rescinded on September 30, 2009. This rescission will cut Pennsylvania's road and bridge program by $380 million in fiscal year 2010. That is why I am cosponsoring an amendment offered by Senators Baucus and Bond to prevent this rescission from happening. However, I am not committed to voting for this amendment if it does not contain an offset. Since preventing this rescission will add $8.7 billion in new budget authority, an offset is needed to make its budgetary impact neutral. We should make every effort to identify offsets to reduce the total size of the economic recovery bill. Brownfields Mr. President, I seek recognition to speak on an amendment I am offering to the American Recovery and Reinvestment Act of 2009. This amendment would provide $3 billion for the purpose of redeveloping Brownfields and neglected urban properties. The $3 billion would be equally divided between the EPA Brownfields Program, the Brownfields Economic Development Initiative at the Department of Housing and Urban Development and the Urban Development Action Grant Program, also at HUD. In 2001, I cosponsored the Brownfield's Revitalization and Environmental Restoration Act. This legislation led to the creation of the EPA Brownfields Program, and a similar program at the Department of Housing and Urban Development. Abandoned industrial sites are common blight on the landscape in many towns and cities across Pennsylvania and the nation. Turning these industrial sites into developments, either for residential or commercial use, provides an obvious benefit: an eyesore is replaced by a new community, and economic growth is generated. Traditional lenders are reluctant to lend initial money to brownfield development projects for a number of reasons. Liability concerns, and the fact that the cleanup costs may exceed the property's actual value, are among them. By providing seed money that redevelopers are often unable to obtain from traditional sources, the Brownfield Program spurs development and economic growth in struggling regions throughout the country. It is estimated that every $1 invested in brownfield redevelopment leads to $15 to $20 in economic activity. I am told an investment in traditional infrastructure yields about $1.56 for every $1 invested. The proposed economic stimulus legislation provides $100 million for Brownfield redevelopment. Of that amount, the Congressional Budget Office projects that 85% could be spent within the two year time frame. This number is insufficient. I recently met with a Pennsylvania company specializing in brownfields redevelopment. This company alone has fifteen projects that could break ground within 120 days if granted approximately $280 million in support. These projects alone could create tens of thousands of jobs and billions of dollars in economic activity. The Congressional Budget Office has estimated that 85 percent of the funding provided by the stimulus could be spent within the 2-year window. They base their figure off the historic spending patterns at the program. In light of the economic benefit of these projects, I recommend that we provide $3 billion to these programs. Prompt Pay Mr. President, I seek recognition on my amendment to remove the prompt pay provision from the calculation of Medicare Part B drug pricing. The prompt pay discount is a discount from the pharmaceutical manufacturer to the wholesaler for prompt payment on prescription drugs. The current Medicare payment calculation requires that this prompt pay discount be included in the calculation of average sales price, which forms the basis for the Medicare drug reimbursement provided by the manufacturer. This effectively lowers the average sales price thus artificially lowering drug reimbursement to physicians. This amendment would remove the prompt pay discount from ASP, requiring CMS to reimburse physicians based on the price they actually pay for drugs without the inclusion of discounts. The reduced payment for Medicare Part B drugs has adversely affected physicians since its implementation. This compounded with the current economic downturn. is resulting in cancer clinic closings and staff layoffs. It is estimated that in medical specialties that have the highest usage of Medicare Part B drugs, over 12,000 individuals are at risk of losing their jobs. This not only harms the economy, it hurts cancer care. I am very concerned that the cost of the economic stimulus bill is growing too large. To ensure that this does not contribute to that growth I am offsetting the cost of this bill by reducing funds to the Office of the Secretary of Health and Human Services. After the estimated cost of this bill of $400 million, the Office of the Secretary will still receive $700 million to examine comparative clinical effectiveness. I encourage my colleagues to support this amendment.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to introduce legislation to provide greater efficiencies to what I believe is a broken process for consideration of the budget resolution. The need for reform is based on the most recent consideration of the budget resolution on March 13, 2008, when the Senate conducted 44 stacked roll call votes in one day--the so-called ``vote-a-rama.'' With the 44 stacked votes, the frequent unavailability of amendment text in advance so there could be no analysis and preparation, the chamber full of Senators, the unusual noise level, the constant banging of the gavel by the Presiding Officer, the near impossibility of hearing even just the 2 minutes allotted for discussion, and consideration of matters entirely unrelated to the budget, I believe the process needs reform. The resolution I am introducing today is based on a proposal previously submitted by Senator Robert Byrd, whom most would agree is our most- knowledgeable Senator on parliamentary procedure. The Byrd proposal seeks to correct these problems I have cited by imposing several new rules designed to foster greater transparency and efficiency on a budget resolution. Under the budget rules, once all debate time has been used or yielded back, the Senate must take action to agree to or to dispose of pending amendments before considering final passage. This scenario creates a dizzying process of voting on numerous amendments in a stacked sequence, often referred to as a ``vote-a-rama.'' During the course of the ``vote-a-rama'', dozens of votes may occur with little or no explanation, often leaving Senators with insufficient information or time to deliberate and evaluate the merits of an issue prior to casting a vote. By consent, the Senate has typically allowed 2 minutes of debate, equally divided, prior to votes. However, the budget process does not require Senators to file their amendments prior to their consideration. In many instances, members are voting on amendments on which the text has never been made available. This difficult working environment is further compounded by a chamber full of Senators and the constant banging of the gavel by the presiding officer to maintain order. This unusual noise level makes it nearly impossible to hear the one minute of debate per side. The Budget Act of 1974 outlines the many clearly defined rules for consideration of a budget resolution, including debate time and germaneness. Despite these rules, the Senate has often set aside these rules and found clever ways to circumvent the rules. To restore some order to the process, the resolution I am offering today would require first-degree amendments to be filed at the desk with the Journal Clerk prior to the 10th hour of debate. Accordingly, second-degree amendments must be filed prior to the 20th hour of debate. This legislation would require a budget resolution to be set aside for one calendar day prior to the 40th hour of debate. Doing so would allow all filed amendments to be printed in the Record allowing Senators, and their staff, an opportunity for review before debate on the resolution continues. To preserve the integrity of these new rules, debate time may only be yielded back by consent, instead of the current procedure whereby time may be yielded at the discretion of either side. Another problem has been the subversion with the budget's germaneness rules by offering amendments to deal with authorization and substantive policy changes. It is important to remember that the Federal budget has two distinct but equally important purposes: the first is to provide a financial measure of Federal expenditures, receipts, deficits, and debt levels; and the second is to provide the means for the Federal Government to efficiently collect and allocate resources. To keep the debate focused, amendments to the budget resolution must be germane, meaning those which strike, increase or decrease numbers, or add language that restricts some power in the resolution. Otherwise, a point of order lies against the amendment, and 60 votes are required to waive the point of order. Yet, to circumvent this germaneness requirement and inject debate on substantive policy changes, Senators have offered Sense of the Senate amendments and deficit-neutral reserve fund amendments that include exorbitant programmatic detail. A sense of the Senate amendment allows a Senator to force members to either support or oppose any policy position they seek to propose. An excerpt of an amendment to the FY09 budget resolution follows: Vitter Amendment #4299: (b) Sense of the Senate.--It is the sense of the Senate that-- (1) the leadership of the Senate should bring to the floor for full debate in 2008 comprehensive legislation that legalizes the importation of prescription drugs from highly industrialized countries with safe pharmaceutical infrastructures and creates a regulatory pathway to ensure that such drugs are safe; (2) such legislation should be given an up or down vote on the floor of the Senate; and (3) previous Senate approval of 3 amendments in support of prescription drug importation shows the Senate's strong support for passage of comprehensive importation legislation. The use of sense of the Senate amendments on the budget resolution has been discouraged in recent years because they have little relevance to the intended purpose of the budget resolution. As a result, it has become increasingly popular to offer deficit-neutral reserve fund amendments. Prior to the fiscal year 06 budget resolution, reserve funds were used sparingly. In fiscal year 07, 22 were included in the Senate resolution and 8 in the House resolution; in fiscal year 08, 38 were included in the Senate resolution and 23 in the conference report; and in fiscal year 09, 31 were included in the Senate resolution. Deficit-neutral reserve funds--which are specifically permitted by section 301(b)(7) of the Budget Act of 1974--have an important functional use in the budget process, but do not require extensive programmatic detail to be useful. On the speculation that Congress may enact legislation on a particular issue--perhaps ``immigration,'' ``energy,'' or ``health care''--a reserve fund acts as a ``placeholder'' to allow the Chairman of the Budget Committee to later revise the spending and revenue levels in the budget so that the future deficit-neutral legislation would not be vulnerable to budgetary points of order. Absent a reserve fund, legislation which increases revenues to offset increases in direct spending would be subject to a Budget Act point of order because certain overall budget levels, total revenues, total new budget authority, total outlays, or total revenues and outlays of Social Security, or budgetary levels specific to authorizing committees and the appropriations committee, committee allocations, would be breached. However, it is unnecessary to include extensive programmatic detail into the language of a deficit-neutral reserve fund for it to be useful at a later date. An excerpt of an amendment to the fiscal year 09 budget resolution demonstrates the unnecessary level of programmatic detail that I refer to: Sessions Amendment #4231:

Mr. SPECTER

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

Mr. SPECTER. Madam President, I suggest the absence of a quorum.

Mr. SPECTER. Madam President, I call up amendment No. 101 and send a modification to the desk.

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

Mr. SPECTER. The basic amendment calls for the addition of $6.5 billion to the National Institutes of Health, and the modification provides for an offset from the State Fiscal Stabilization Fund. Before proceeding directly to the discussion on the amendment, a few observations about the bill generally: I believe an economic stimulus is necessary. We have seen the unemployment rate rise to 7.2 percent last month. Some 2.8 million people lost their jobs last year. Each day brings new reports of additional people losing their jobs. We know the safety net is failing. We know there is a need to liberalize bank credit, the foreclosure rate is very high, and there is a need to provide Government intervention to stop the foreclosures. In the midst of all of these issues, there is, admittedly, the need for a stimulus package. I am concerned about the House bill in a number of respects. I believe, for example, there is insufficient money in infrastructure. Pennsylvania Governor Rendell has assured me that the spending on highways, bridges, and roads could begin within a period of some 6 months. There needs to be more on the tax cut side, in my opinion. There are many programs in the stimulus package which are very good programs-- programs which I have fought for during my tenure as chairman or ranking member of the Labor, Health and Human Services, and Education Subcommittee--but many of these belong, really, in the appropriations process as opposed to a stimulus. It is my hope, as we work our way through the bill, that the bill will be improved. I would like to see a bill emerge from the Senate that would be really directed toward stimulus, a bill which I could enthusiastically support. The amendment which is offered here today is for the National Institutes of Health, which has been starved recently. During the decade when I chaired the Subcommittee on Labor, Health and Human Services, and Education, with the support of the ranking member, Senator Harkin--who is now chairman, and I am ranking member; and when Senator Harkin and I shift chairmanship, it is a seamless transfer; we work together on a partnership, bipartisan basis--together we took the lead in increasing NIH funding from $12 billion to $30 billion. Some years, the increases were as high as $3 billion, $3.5 billion. Lately, with the budget crunch, that has been impossible to maintain. The cost-of-living adjustments have not been made, and there have been across-the-board cuts, so there has been an actual decline of some $5.2 billion of NIH funding in the last 7 years. This $10 billion allocation, if enacted, would correct that. It would give a boost and would provide jobs, high-paying jobs, at a time when the passage of the amendment would kill two birds with one stone. It would stimulate the economy by producing good, high-paying jobs, and by reducing major illnesses, which I will specify in a few moments, it would cut the cost of health care. What better way to reduce health care costs than to prevent illness, prevent heart disease, reduce the time of Alzheimer's, and cut back on the incidence of cancer? The statistics show there would be good-paying jobs created by this $10 billion. According to NIH Acting Director Dr. Raynard Kington, the $10 billion would result in the creation of some 70,000 jobs over the next 2 years. These funds could go out in a range of 6 to 9 months, and certainly in less than a year, so it has the impact of being very promptly disseminated. The benefits are statistically demonstrable by the high costs associated with diseases which these funds are designed to cure or to ameliorate. For example, the annual cost associated with cardiovascular disease amounts to $448.5 billion a year; cancer, $219 billion a year; Alzheimer's, $148 billion; and so it goes on down the line. The recent statistics show significant improvements on these maladies, I think attributable, fairly, to the advances by NIH research. For example, between 1994 and the year 2004, the number of deaths from coronary heart disease declined by 18 percent and the stroke death rate fell by 24 percent. Were it not for groundbreaking research on the causes and treatment of heart disease, supported in large part by NIH, heart attacks would most probably account for an estimated 1.6 million deaths per year instead of the approximately 440,000 deaths experienced last year in 2008. The absolute number of cancer deaths in the United States has declined 3 years in a row despite the growth and aging of our population, which is a truly unprecedented event in medical history. The 5-year survival rate for localized breast cancer has increased from 80 percent in the 1950s to 98 percent today. That is a pretty encouraging figure for people who have breast cancer or are fearful of getting breast cancer. For childhood cancers, the 5-year survival rate has improved from less than 50 percent in 1970 to 80 percent today. The 5-year survival rate for Hodgkin's lymphoma has increased from 40 percent in 1963 to more than 86 percent in the year 2003. For non- Hodgkin's lymphoma, the survival rate has increased from 31 percent in 1963 to 63.8 percent in 2003. Over the past 25 years, the 5-year survival rate for prostate cancer has increased from 69 percent to almost 99 percent. Now, if you take anybody who is in the category of breast cancer or prostate cancer or Hodgkins or non-Hodgkins, those survival figures are very encouraging. I didn't know--when I joined the Appropriations Committee and selected the Subcommittee on Labor, Health, Human Services and Education and led the fight with Senator Harkin to increase NIH funding from $12 billion to $30 billion and to have the National Cancer Institute funded by $5 billion--I didn't know I would one day be standing on the floor of the Senate citing statistics which include me. When we talk about non-Hodgkins, that is Arlen Specter. I was shocked in February of 2005 to find that I had non-Hodgkins; tough chemotherapy, recovery, lost all my hair, got it all back, and fine. Then, last year, I had a recurrence; more chemotherapy, more rehabilitation, maintained my Senate duties, was on the floor, presided over the confirmation hearings of two Supreme Court Justices in 2005, worked with Senator Harkin, right down the line. So those are pretty important statistics if you are one of them--if you are one of them. It is my opinion that it is scandalous in this country that we haven't done more by way of combating these illnesses. I requested an estimate from the cancer community of what it would take to make a major attack to virtually cure cancer. We can't talk about curing cancer, but the kind of a major attack which would reduce cancer very materially. We got back a figure of $335 billion over 15 years. Well, those are big numbers, but they would pay off in very substantial rewards when you consider the cost of cancer is over $200 billion a year. The cost of heart disease is almost $450 billion a year. There are ways and economies within the Federal budget to deal with those issues. Today we are talking about a much lesser figure. We are talking about $10 billion. That would be a downpayment and a sign of a serious effort to go after these maladies. When you have a stimulus package of $819 billion in the House bill--it may go up higher than that--this is a relatively small sum. When we structured the original bill at $3.5 billion, we talked about what would be doable. We came up with $6.5 billion. I am not sure that we didn't make a mistake, that we ought to be looking for more of the $800 billion plus to deal with these maladies, but at any rate, that is where we are. Senator Harkin and I have a little difference of opinion on the funding as to whether there ought to be an offset. My view is it is a minor difference of opinion, but one which we are going to present to the body for a vote. In looking over the allocation of the entire budget, I found there is $79 billion in what is called a State fiscal stabilization fund. Well, I think there are limits as to how we ought to go on stabilizing the States' fiscal policy, but at any rate, included in that amount is $24.7 billion to be used for a wide range of public safety and other governmental services which may include education or may not include education. All of these funds are proposed to go out under a population-based formula, but are in no way targeted to States with the biggest economic problems or greatest budget shortfalls. It is unclear what stimulating effect this funding would have, and the purposes of the funding are undefined. So when you have almost $25 billion with the purposes of the funding undefined, it seems to me it is a much better use of that money, about a quarter of it, to fund the $6.5 billion which is the subject of the amendment which I have just described. Senator Harkin and I have discussed this in an amiable way, as we always do. He is going to speak next and is going to propose a second- degree amendment so that there not be the offset. I have already stated my preference to have an offset because we are dealing with very serious deficit problems, and I thought that if it were possible to do this funding with an offset which was reasonable, it would be preferable than adding to the deficit. But if Senator Harkin prevails on his second-degree amendment and there is no offset, so be it, and we will have reached the core principle of trying to get these funds into the National Institutes of Health. I yield the floor.

Mr. SPECTER. Madam President, I thank my distinguished colleague for his kind remarks and comments and a reaffirmation of what I said about the working relationship we had, the partnership, and the seamless transfer of the gavel. Amendment No. 178 to Amendment No. 101

Mr. SPECTER. Madam President, to continue with the two amendments, perhaps we can have side-by-side votes. Is that satisfactory to the Senator?

Mr. SPECTER. Madam President, just a very brief comment about the offset. The State fiscal stabilization fund does have substantial funding for education, as represented by the Senator from Iowa. But there is a portion of it--$24.7 billion--which is to be used for a wide range of governmental services, which may include education, or may not. In that $24.7 billion, there is wide discretion given to the States as to how they are going to handle it. Those funds go out under a population-based formula, in no way targeted to States with the biggest economic problems or the greatest budget shortfalls. The purposes of the funding are undefined, so there is a substantial amount of money which may not be used for what the Senator from Iowa has described, or education. As I see it, it is a question of whether we are going to add to the deficit of $6.5 billion or whether we are going to establish a priority where the State has the discretion to use it with undefined purposes or use it for the three alternatives you have, which are to use the $6.5 billion for NIH, which we have described, or undefined purposes in the State fiscal stabilization fund, or add to the deficit. I think we ought not to add to the deficit. I think it is preferable to use them for NIH and not for the undefined purposes. I thank the Chair and yield the floor. Amendment No. 178, as Modified

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

Mr. SPECTER. Mr. President, the status of the pending amendments offered by the Senator from Iowa and myself is a procedural snarl. I want to get the $6.5 billion appropriated for NIH. I am going to withdraw my amendment and join with Senator Harkin on the amendment for $6.5 billion for NIH without an offset. Amendment No. 101 Withdrawn

Mr. SPECTER. I am.

Mr. SPECTER

Mr. SPECTER. Mr. President, I believe we do need a stimulus package. I have not had an opportunity to speak on the bill generally but will do so later today to express concerns I have about not following regular order in having hearings. But I understand the President is concerned about very prompt action. I support this amendment for $25 billion in infrastructure. I believe the bill is too heavily weighted on items which ought to be in the budget process, very important items, but not in the stimulus package, and more heavily directed to infrastructure on projects which are shovel ready. This amendment is directed to that objective. Governor Rendell has assured me and the public that he can have highway jobs ready in 6 months, shovel ready to proceed. So I believe this is what the stimulus ought to be doing. I would have preferred to have seen an offset for this $25 billion. There are funds where it could have been offset; for example, in the State Stabilization Program, $79 billion, which is broad, wide-ranging discretion to the Governors, which ought not to be a part of the stimulus package. We will have an opportunity in the balance of this bill to find the savings of this $25 billion. The overall bill ought to be less than the $819 billion passed by the House. But for the present time, I will vote to waive the budget, looking for an opportunity to find the $25 billion offset later and looking for other opportunities to have an effective stimulus which is not quite so expensive. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Yes, I am prepared to yield time. Senator Cornyn is next on the list. How much time would the Senator from Oklahoma like?

Mr. SPECTER. I yield that time to Senator Coburn.