Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, it would be my hope that we could act on it this session. I say that, subject to review by the Senator from California and by other Members and by the House of Representatives. The Senator from California and I and others have thought about this issue long and hard. This bill is a real effort to try to accommodate all of the concerns the Senator from California has raised. That is to maintain the status of the Foreign Intelligence Surveillance Act as the exclusive way to wiretap. That stands. There is no statement about the authority of the President under article II, which had been objected to before. As I say, whatever the constitutional authority is, it is, regardless of what the bill says, but this bill says nothing about that. It says nothing. The Senator from California and I have wanted to have individualized warrants wherever we could get them, and now the Senator from California took the lead on this. She has had access to this program, where I have not, because she is on the Intelligence Committee. It is anomalous that the chairman of the Judiciary Committee would not know the program, but I respect the division which gives that intelligence to the oversight committee. But she and I both wanted to have individualized warrants everywhere if we could get them. And, now we know we can get them on calls originating in the United States if we add the resources that were in the legislation crafted initially by the Senator from California, which I joined, which passed out of committee and onto the floor. And it does not deal with the ones overseas into the United States. Whatever authority the President has on that, he is going to have to assert in Federal court and satisfy ultimately the Supreme Court that he has that article II power. My view is the sooner we have this determination, the better off we are.

Mr. SPECTER. Mr. President, I am glad to respond, and I thank the Senator from California for the question. It would achieve individualized review of warrants on calls originating in the United States, and there are a lot of them. How many there are, I don't know, but the NSA officials have told us that if we give them the additional resources, which was suggested originally by the Senator from California and which I concur in on the Feinstein-Specter bill, that they could have individualized warrants. And, I think that would be a big step forward on civil rights.

Mr. SPECTER. Mr. President, my bill does not exempt them. My bill just doesn't deal with them. Some say that FISA controls them and, therefore, they are illegal. The President says: No, he has article II power. And the only way that controversy can be resolved is in a Federal court, which will weigh them. And the Federal court in Detroit weighed them and said it was unconstitutional. And the Sixth Circuit has said they will review it. In the meantime, the program stands. But as the program stands, all of these warrantless wiretaps are going on and on and on. And we go one step further. We make sure the Supreme Court will take the case. We also have power in the Congress to expedite the review, set a timetable to get it done faster.

Mr. SPECTER. I thank the Senator from California for the colloquy which has further explained the bill.

Mr. SPECTER

Mr. SPECTER. Mr. President, since all of our efforts to go to conference with the House and to secure comprehensive immigration reform were unsuccessful, I am reluctantly voting in favor of the H.R. 6061, the Secure Fence Act of 2006. After many hearings and a laborious markup, the Judiciary Committee produced a comprehensive bill providing for border security, employee verification, guest workers and a sensible plan to handle the 11 million undocumented immigrants. Despite repeated efforts, we were unable to secure a conference with the House to reconcile differences between the bills the House passed and the Senate legislation. There was successful opposition to piecemeal legislation by the House that would have, for example, enabled state and local police to enforce immigration laws. During a field hearing I held at the Philadelphia Constitution Center on July 5, 2006, Philadelphia Police Commissioner Sylvester Johnson testified that making local enforcement of immigration law would undermine the basic function of local police. He further testified that ``once we start enforcing immigration law, then we are going to lose . . . that response from the immigrant community because they are not going to contact us. Nor will they contact us if they have information about other people, about other violence-type things.'' The one major issue which has reached the Senate for a vote despite our efforts to avoid piecemeal legislation is the fence issue. As to the substance of the construction of the fence, I have long supported this facet of border security--in fact, our bill produces 370 miles of fencing through major urban areas and adds 500 miles of vehicle barriers along the U.S./Mexico border. On this state of the record, since I do support the construction of the fence and since we have succeeded in avoiding any substantial piecemeal legislation, I am casting my vote in favor of H.R. 6061.

Mr. SPECTER

Mr. SPECTER. Mr. President, I oppose cloture on the Child Custody Protection Act, S. 403, because there are not adequate safeguards for young women seeking abortions, particularly in cases of rape, incest, or health of the minor. On September 22, 1998, I voted against cloture on a similar bill. On July 25, 2006, I voted against a similar bill. Those bills, like the one now pending, made it a crime to take a minor across state lines for purposes of obtaining an abortion without parental consent or notification. I opposed that legislation because of my concern for minor girls who have an abusive or bad relationship with their parents, including circumstances of incest. Such a relationship makes it difficult, if not impossible, for the girl to admit to being pregnant or to express her desire to obtain an abortion. Additionally I am concerned with the delay this bill poses on young girls seeking abortions in the case of rape or health risks. Proponents of this legislation have urged me to support it on the ground that the state judicial bypass laws provide a sufficient means for young girls who have such a bad relationship with their parents, to receive judicial authorization to secure an abortion without their parents' knowledge or consent. It has been suggested to me that there may be compelling data that the judicial bypass procedures provide a sufficient means for such girls' interests to be protected. On the current state of the record, however, I believe that the judicial bypass procedures are not adequate, so I do not believe that a Federal crime should be legislated for those who take minor girls across state lines to secure an abortion. To those who have urged me to support the legislation and have asked me to review such data, I have replied that I would be willing to study any such information. As noted, on this date of the record, I could not support legislating a Federal crime on this issue.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to introduce with Senator Santorum the Hospital Payment Improvement and Equity Act, which will provide an increased reimbursement for acute care hospitals and inpatient rehabilitation facilities that are disadvantaged by Medicare payments under the Medicare area wage index reclassification system. For a considerable period of time, there have been a number of counties in Pennsylvania that have been suffering from low Medicare reimbursements, which has caused them great disadvantage because their nurses, and other medical personnel are moving to surrounding areas. I refer specifically to Luzerne County, Lackawanna County, Wyoming County, Lycoming County, and Columbia County in northeastern Pennsylvania. Those counties are surrounded by MSAs, metropolitan statistical areas, in Newport, NY, to the north; in Allentown to the southeast; and the Harrisburg MSA to the southwest. As these counties are surrounded by MSAs with higher Medicare reimbursements, a flight of very necessary medical personnel has occurred. More recently, western Pennsylvania has been faced with Medicare reimbursement that has not kept pace with the rising cost of healthcare placing a tremendous burden on these facilities to provide good jobs at competitive wages. It has also come to my attention that inpatient rehabilitation facilities are not provided an opportunity to obtain equitable Medicare reimbursement. Inpatient rehabilitation facilities receive adjustments in their Medicare reimbursement due to geographic disadvantages within the Medicare inpatient prospective payment system. This is based on information gathered from other acute care facilities in the MSA, not from their own wage information. Inpatient Rehabilitation Facilities, further, cannot apply for reclassification to another MSA that reflects their labor costs. This has prevented those facilities from being eligible for increased funding to assist with wages like acute care facilities, while being forced to compete for employees with those facilities that have had access to increased funding. I have worked to find a solution to this problem for a number of years. During the conference for the fiscal year 2002 Labor, Health and Human Services, and Education Appropriations bill, the conferees agreed that there should be relief for these areas in Pennsylvania that were surrounded by areas that had higher MSA ratings. However, at the last minute, there was an objection to including language in the conference report. To correct this problem I, with Representatives Sherwood and English, brought the matter forward in the Fiscal Year 2002 Supplemental Appropriations bill. They worked to include language in the House version of the bill and I filed an amendment to the Senate bill. During conference negotiations my amendment was defeated and the provisions were not included. As part the Fiscal Year 2004 Labor, Health and Human Services, and Education Appropriations, I provided $7 million for hospitals in Northeast Pennsylvania that continued to be disadvantaged by the Medicare area wage index reclassification. This was provided as temporary assistance for those facilities. During the consideration of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, I met with Finance Chairman Grassley and Ranking Member Baucus about the bill provisions, including the need for a solution to the Medicare area wage index reclassification problem in Pennsylvania. As a result, Section 508 was included in the bill, which provides increased funding for hospitals nationally to be reclassified to locations with higher Medicare reimbursement rates for three years at $300 million per year. The temporary program, which began in April 2004 and will expire April 2007, has and will provide Pennsylvania hospitals $69 million over that time, $23 million per year. Most recently, as part of the Senate Fiscal Year 2007 Labor, Health and Human Services, and Education Appropriations bill, I provided $4.3 million for hospitals in the Scranton/Wilkes-Barre and Williamsport areas that have been harmed by the ongoing wage index problem. Further, on June 14, 2006, 20 other Senators joined me in sending a letter to Finance Chairman Grassley and Ranking Member Baucus in support of Senate action to extend Section 508. As the Section 508 program is scheduled to expire on March 31, 2007, and the low Medicare area wage index reimbursement is still being unfairly placed on many Pennsylvania hospitals, the legislation I am introducing would extend the current Section 508 benefit to those who are currently receiving funding and to those who deserved funds under the previous competition for this funding. The legislation builds on the Section 508 Medicare Prescription Drug, Improvement, and Modernization Act of 2003, by providing hospitals who continue to be disadvantaged by low Medicare reimbursement an increase in funding. The bill would allow both acute care hospitals and not-for- profit inpatient rehabilitation facilities apply for funding in a similar manner as set up under Section 508. Facilities that meet specific wage and geographic criteria will receive a three year reclassification. Under the Section 508, program a number of hospitals meet the necessary criteria to receive reclassification, however, inadequate funding of $300 million per year for the program was provided. As a result, 154 additional hospitals did not receive this vital funding. Under this legislation, sufficient funds would be provided to allow all facilities that meet wage and geographic criteria to receive reclassification funding. To remedy the under-funding of impatient rehabilitation facilities, not for profit facilities will be eligible for funding through this program. If all acute care hospitals in an MSA apply for and receive funding through this program, or have sole community hospital status, or have reclassified to another MSA through another mechanism, then non-profit inpatient rehabilitation facilities in that MSA are eligible. Those rehabilitation facilities will be reclassified to the MSA where a majority of other hospitals from the same MSA have been reclassified. For those hospitals who received funding under the current Section 508; they will have received the benefit of a higher wage index for three years, April 1 , 2004-March 1, 2007. These higher wages will be included in the hospitals' cost reports and be reflected in the data used to calculate a future wage index. It has always been the hope that this increased funding would enable these hospitals to pay higher wages and subsequently see an increase in the area wage index. The problem with the wage index system is the use of three year-old audited cost report data for the calculation of the wage index. Therefore, a full year of Section 508 money from fiscal year 2004 will first be seen in the fiscal year 2008 wage index calculation. For hospitals that end their fiscal year on June 30, that wage data will not be included in their wage index calculation until fiscal year 2009. To reclassify, three years of data is needed to show the proper evidence for eligibility. Thus, the full effect of the Section 508 funding will flow through the wage index system by fiscal year 2011. For this reason, additional funding is needed for the next three years in order for these disadvantaged hospitals to continue paying competitive salaries to their employees. Under Section 508, 121 hospitals have and will receive $900 million in assistance, while this is a significant amount of funding, it did not fix the problem of low Medicare wage reimbursement. A long term solution to this problem is needed, however the current Section 508 funding will expire on March 31, 2007 and additional funding is needed for these facilities while we work to find that solution. The loss of hospitals and jobs due to unfair CMS reimbursement is unacceptable. The hospitals which face this low Medicare reimbursement are in great financial distress. These are hospitals which are serving an aging population in northeastern Pennsylvania and across the nation. This legislation provides Medicare reimbursement assistance for those facilities and ensures Medicare beneficiaries' access to care. I encourage my colleagues to work with Senator Santorum and me to move this legislation forward promptly.

Mr. SPECTER. Mr. President, I seek recognition today to introduce the Insurance Industry Antitrust Enforcement Act of 2006. This legislation would subject the insurance industry to the antitrust laws, which apply to almost every other industry in America. Congress enacted the McCarran-Ferguson Act in 1945. It did so in response to a controversial Supreme Court case in which the Court held that the business of insurance constituted interstate commerce. The ruling opened the door to federal regulation of insurance, a business that had historically been regulated by the States. Reacting to concern from the states that they would no longer have authority to collect taxes on insurance premiums, Congress passed McCarran-Ferguson, which reaffirmed the power of the States to regulate insurance and collect taxes. In doing so, Congress exempted insurance industry practices from the antitrust laws to the extent that such practices are ``regulated by state law.'' Since then, the courts have liberally interpreted the phrase ``regulated by state law.'' They have held that insurance industry practices are exempt from the antitrust laws so long as regulators have been given jurisdiction over the challenged practices-- regardless of whether the regulators ever exercise that jurisdiction. Over the years, State regulators have either chosen not to regulate, or failed to regulate, practices that would have violated the antitrust laws absent McCarran-Ferguson. With McCarran-Ferguson, such practices escape both regulatory and federal antitrust oversight. The most notorious practices to come to light involved bid-rigging and customer allocation by insurance broker, Marsh & McClennan, and several of the nation's largest insurers, including AIG and Zurich American Insurance Company. Under the scheme, Marsh steered unsuspecting clients to insurers with which it had lucrative payoff agreements. To make the scheme work, Marsh solicited fictitious bids from other complicit insurers to make the bid submitted by the selected insurer--the one that offered Marsh the highest payoff--seem competitive. Even though the scheme eliminated competition among the insurance companies that were involved, those companies could not be prosecuted under Federal antitrust law. Several States prosecuted the insurance companies under a variety of State laws, including antitrust laws, but federal prosecutors could not bring their significant resources to bear. There simply is no justification for that. Federal law enforcement should have the power to prosecute such blatant violations of the antitrust laws. This is not the first attempt to subject the insurance industry to Federal antitrust law. In the wake of numerous insolvencies, mismanagement and other misconduct by insurers in the late 1980s, legislation was introduced repealing the exemption. That legislation, introduced by Congressman Brooks, faced opposition from insurers who claimed that many industry practices engaged in jointly by insurance companies were pro-competitive and necessary for smaller insurers. The legislation provided a safe harbor, specifically listing the practices of insurance companies that would be exempt from the antitrust laws. However, it proved impossible to craft a list of safe harbors for all the information that competing insurers claimed they needed to share with one another. This bill has avoided that problem. More recently, some have argued that the answer to insurance industry ills is full federal regulation. I do not necessarily believe that stripping the States of their authority to regulate the insurance industry is the answer. This bill does not do that. It allows states to continue to regulate their insurance industries. However, the existence of state regulation is no reason to prevent the Federal Government from prosecuting violators of antitrust laws. And, there is no reason to prevent Federal prosecutors from going after those violators just because they happen to work for insurance companies. As I've said, allowing Federal prosecutors to go after those who violate the antitrust laws will not prevent states from regulating the insurance industry. If a state is actively supervising practices by its insurance industry that might otherwise violate the antitrust laws, this legislation would exempt that practice from the antitrust laws. Antitrust law does not generally apply where a state is actively regulating an industry. This is as it should be and the legislation I introduce today, the Insurance Industry Antitrust Act of 2006, incorporates that standard. The Judiciary Committee held a hearing on this issue in May. During the hearing, Marc Racicot, the President of the American Insurance Association, a trade association composed of the nation's largest insurers, acknowledged that ``every State provides some form of antitrust regulation of insurers.'' In other words, many States already enforce their State antitrust laws with respect to insurers. So, I have to ask, why have we tied the hands of federal antitrust enforcers? The insurers will argue that repealing the antitrust exemption for insurers will create uncertainty by throwing into question the legality of every joint practice engaged in by insurers. They will argue that the legality of each joint practice will have to be litigated in court. However, this bill has been drafted to avoid such litigation. Rather than incorporating a laundry list of safe harbors, an approach that was taken in the past, the bill would allow the Federal Trade Commission to issue guidelines identifying joint practices that do not raise antitrust concerns and would therefore not face scrutiny from antitrust enforcers. This is a job for which the Commission is well equipped. In the past, the Commission along with the Justice Department issued ``Statements of Antitrust Enforcement Policy in Health Care.'' The Health Care Statements identified joint conduct by health care providers that did not raise antitrust concerns and therefore would likely escape scrutiny by antitrust enforcers. The Health Care Statements were designed to give health care providers certainty about the legality of their joint conduct under the antitrust laws. Similar guidelines for the insurance industry would provide insurers with certainty, but at the same time, would ensure that joint practices that are anticompetitive receive scrutiny from the antitrust enforcement agencies. Although insurers oppose repeal of their antitrust exemption, others support a repeal. In particular, the Antitrust Section of the American Bar Association has long supported repeal. During the Judiciary Committee's hearing, the current head of the Antitrust Section, Donald Klawiter noted the Section's nearly 20-year history of supporting repeal. Klawiter testified that ``the benefits of antitrust exemptions almost never outweigh the potential harm imposed on society by the loss of competition.'' At the same hearing, Robert Hunter, testifying on behalf of the Consumer Federation of America, concluded that ``application of the antitrust laws to the insurance industry could result in double-digit savings for America's insurance consumers.'' It is my hope that this legislation will bring the benefits of competition to the insurance industry and to consumers. Too many consumers are paying too much for insurance due to the collusive atmosphere that exists in the insurance industry. This has become a particular problem along the Gulf Coast, where insurers have shared hurricane loss projections, which may result in double-digit premium increases for Gulf Coast homeowners. I strongly urge members who are concerned about industry exemption from the antitrust laws and collusive insurance industry practices to support this important piece of legislation. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to introduce with Senator Santorum the Hospital Payment Improvement and Equity Act, which will provide an increased reimbursement for acute care hospitals and inpatient rehabilitation facilities that are disadvantaged by Medicare payments under the Medicare area wage index reclassification system. For a considerable period of time, there have been a number of counties in Pennsylvania that have been suffering from low Medicare reimbursements, which has caused them great disadvantage because their nurses, and other medical personnel are moving to surrounding areas. I refer specifically to Luzerne County, Lackawanna County, Wyoming County, Lycoming County, and Columbia County in northeastern Pennsylvania. Those counties are surrounded by MSAs, metropolitan statistical areas, in Newport, NY, to the north; in Allentown to the southeast; and the Harrisburg MSA to the southwest. As these counties are surrounded by MSAs with higher Medicare reimbursements, a flight of very necessary medical personnel has occurred. More recently, western Pennsylvania has been faced with Medicare reimbursement that has not kept pace with the rising cost of healthcare placing a tremendous burden on these facilities to provide good jobs at competitive wages. It has also come to my attention that inpatient rehabilitation facilities are not provided an opportunity to obtain equitable Medicare reimbursement. Inpatient rehabilitation facilities receive adjustments in their Medicare reimbursement due to geographic disadvantages within the Medicare inpatient prospective payment system. This is based on information gathered from other acute care facilities in the MSA, not from their own wage information. Inpatient Rehabilitation Facilities, further, cannot apply for reclassification to another MSA that reflects their labor costs. This has prevented those facilities from being eligible for increased funding to assist with wages like acute care facilities, while being forced to compete for employees with those facilities that have had access to increased funding. I have worked to find a solution to this problem for a number of years. During the conference for the fiscal year 2002 Labor, Health and Human Services, and Education Appropriations bill, the conferees agreed that there should be relief for these areas in Pennsylvania that were surrounded by areas that had higher MSA ratings. However, at the last minute, there was an objection to including language in the conference report. To correct this problem I, with Representatives Sherwood and English, brought the matter forward in the Fiscal Year 2002 Supplemental Appropriations bill. They worked to include language in the House version of the bill and I filed an amendment to the Senate bill. During conference negotiations my amendment was defeated and the provisions were not included. As part the Fiscal Year 2004 Labor, Health and Human Services, and Education Appropriations, I provided $7 million for hospitals in Northeast Pennsylvania that continued to be disadvantaged by the Medicare area wage index reclassification. This was provided as temporary assistance for those facilities. During the consideration of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, I met with Finance Chairman Grassley and Ranking Member Baucus about the bill provisions, including the need for a solution to the Medicare area wage index reclassification problem in Pennsylvania. As a result, Section 508 was included in the bill, which provides increased funding for hospitals nationally to be reclassified to locations with higher Medicare reimbursement rates for three years at $300 million per year. The temporary program, which began in April 2004 and will expire April 2007, has and will provide Pennsylvania hospitals $69 million over that time, $23 million per year. Most recently, as part of the Senate Fiscal Year 2007 Labor, Health and Human Services, and Education Appropriations bill, I provided $4.3 million for hospitals in the Scranton/Wilkes-Barre and Williamsport areas that have been harmed by the ongoing wage index problem. Further, on June 14, 2006, 20 other Senators joined me in sending a letter to Finance Chairman Grassley and Ranking Member Baucus in support of Senate action to extend Section 508. As the Section 508 program is scheduled to expire on March 31, 2007, and the low Medicare area wage index reimbursement is still being unfairly placed on many Pennsylvania hospitals, the legislation I am introducing would extend the current Section 508 benefit to those who are currently receiving funding and to those who deserved funds under the previous competition for this funding. The legislation builds on the Section 508 Medicare Prescription Drug, Improvement, and Modernization Act of 2003, by providing hospitals who continue to be disadvantaged by low Medicare reimbursement an increase in funding. The bill would allow both acute care hospitals and not-for- profit inpatient rehabilitation facilities apply for funding in a similar manner as set up under Section 508. Facilities that meet specific wage and geographic criteria will receive a three year reclassification. Under the Section 508, program a number of hospitals meet the necessary criteria to receive reclassification, however, inadequate funding of $300 million per year for the program was provided. As a result, 154 additional hospitals did not receive this vital funding. Under this legislation, sufficient funds would be provided to allow all facilities that meet wage and geographic criteria to receive reclassification funding. To remedy the under-funding of impatient rehabilitation facilities, not for profit facilities will be eligible for funding through this program. If all acute care hospitals in an MSA apply for and receive funding through this program, or have sole community hospital status, or have reclassified to another MSA through another mechanism, then non-profit inpatient rehabilitation facilities in that MSA are eligible. Those rehabilitation facilities will be reclassified to the MSA where a majority of other hospitals from the same MSA have been reclassified. For those hospitals who received funding under the current Section 508; they will have received the benefit of a higher wage index for three years, April 1 , 2004-March 1, 2007. These higher wages will be included in the hospitals' cost reports and be reflected in the data used to calculate a future wage index. It has always been the hope that this increased funding would enable these hospitals to pay higher wages and subsequently see an increase in the area wage index. The problem with the wage index system is the use of three year-old audited cost report data for the calculation of the wage index. Therefore, a full year of Section 508 money from fiscal year 2004 will first be seen in the fiscal year 2008 wage index calculation. For hospitals that end their fiscal year on June 30, that wage data will not be included in their wage index calculation until fiscal year 2009. To reclassify, three years of data is needed to show the proper evidence for eligibility. Thus, the full effect of the Section 508 funding will flow through the wage index system by fiscal year 2011. For this reason, additional funding is needed for the next three years in order for these disadvantaged hospitals to continue paying competitive salaries to their employees. Under Section 508, 121 hospitals have and will receive $900 million in assistance, while this is a significant amount of funding, it did not fix the problem of low Medicare wage reimbursement. A long term solution to this problem is needed, however the current Section 508 funding will expire on March 31, 2007 and additional funding is needed for these facilities while we work to find that solution. The loss of hospitals and jobs due to unfair CMS reimbursement is unacceptable. The hospitals which face this low Medicare reimbursement are in great financial distress. These are hospitals which are serving an aging population in northeastern Pennsylvania and across the nation. This legislation provides Medicare reimbursement assistance for those facilities and ensures Medicare beneficiaries' access to care. I encourage my colleagues to work with Senator Santorum and me to move this legislation forward promptly.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition today to introduce the Insurance Industry Antitrust Enforcement Act of 2006. This legislation would subject the insurance industry to the antitrust laws, which apply to almost every other industry in America. Congress enacted the McCarran-Ferguson Act in 1945. It did so in response to a controversial Supreme Court case in which the Court held that the business of insurance constituted interstate commerce. The ruling opened the door to federal regulation of insurance, a business that had historically been regulated by the States. Reacting to concern from the states that they would no longer have authority to collect taxes on insurance premiums, Congress passed McCarran-Ferguson, which reaffirmed the power of the States to regulate insurance and collect taxes. In doing so, Congress exempted insurance industry practices from the antitrust laws to the extent that such practices are ``regulated by state law.'' Since then, the courts have liberally interpreted the phrase ``regulated by state law.'' They have held that insurance industry practices are exempt from the antitrust laws so long as regulators have been given jurisdiction over the challenged practices-- regardless of whether the regulators ever exercise that jurisdiction. Over the years, State regulators have either chosen not to regulate, or failed to regulate, practices that would have violated the antitrust laws absent McCarran-Ferguson. With McCarran-Ferguson, such practices escape both regulatory and federal antitrust oversight. The most notorious practices to come to light involved bid-rigging and customer allocation by insurance broker, Marsh & McClennan, and several of the nation's largest insurers, including AIG and Zurich American Insurance Company. Under the scheme, Marsh steered unsuspecting clients to insurers with which it had lucrative payoff agreements. To make the scheme work, Marsh solicited fictitious bids from other complicit insurers to make the bid submitted by the selected insurer--the one that offered Marsh the highest payoff--seem competitive. Even though the scheme eliminated competition among the insurance companies that were involved, those companies could not be prosecuted under Federal antitrust law. Several States prosecuted the insurance companies under a variety of State laws, including antitrust laws, but federal prosecutors could not bring their significant resources to bear. There simply is no justification for that. Federal law enforcement should have the power to prosecute such blatant violations of the antitrust laws. This is not the first attempt to subject the insurance industry to Federal antitrust law. In the wake of numerous insolvencies, mismanagement and other misconduct by insurers in the late 1980s, legislation was introduced repealing the exemption. That legislation, introduced by Congressman Brooks, faced opposition from insurers who claimed that many industry practices engaged in jointly by insurance companies were pro-competitive and necessary for smaller insurers. The legislation provided a safe harbor, specifically listing the practices of insurance companies that would be exempt from the antitrust laws. However, it proved impossible to craft a list of safe harbors for all the information that competing insurers claimed they needed to share with one another. This bill has avoided that problem. More recently, some have argued that the answer to insurance industry ills is full federal regulation. I do not necessarily believe that stripping the States of their authority to regulate the insurance industry is the answer. This bill does not do that. It allows states to continue to regulate their insurance industries. However, the existence of state regulation is no reason to prevent the Federal Government from prosecuting violators of antitrust laws. And, there is no reason to prevent Federal prosecutors from going after those violators just because they happen to work for insurance companies. As I've said, allowing Federal prosecutors to go after those who violate the antitrust laws will not prevent states from regulating the insurance industry. If a state is actively supervising practices by its insurance industry that might otherwise violate the antitrust laws, this legislation would exempt that practice from the antitrust laws. Antitrust law does not generally apply where a state is actively regulating an industry. This is as it should be and the legislation I introduce today, the Insurance Industry Antitrust Act of 2006, incorporates that standard. The Judiciary Committee held a hearing on this issue in May. During the hearing, Marc Racicot, the President of the American Insurance Association, a trade association composed of the nation's largest insurers, acknowledged that ``every State provides some form of antitrust regulation of insurers.'' In other words, many States already enforce their State antitrust laws with respect to insurers. So, I have to ask, why have we tied the hands of federal antitrust enforcers? The insurers will argue that repealing the antitrust exemption for insurers will create uncertainty by throwing into question the legality of every joint practice engaged in by insurers. They will argue that the legality of each joint practice will have to be litigated in court. However, this bill has been drafted to avoid such litigation. Rather than incorporating a laundry list of safe harbors, an approach that was taken in the past, the bill would allow the Federal Trade Commission to issue guidelines identifying joint practices that do not raise antitrust concerns and would therefore not face scrutiny from antitrust enforcers. This is a job for which the Commission is well equipped. In the past, the Commission along with the Justice Department issued ``Statements of Antitrust Enforcement Policy in Health Care.'' The Health Care Statements identified joint conduct by health care providers that did not raise antitrust concerns and therefore would likely escape scrutiny by antitrust enforcers. The Health Care Statements were designed to give health care providers certainty about the legality of their joint conduct under the antitrust laws. Similar guidelines for the insurance industry would provide insurers with certainty, but at the same time, would ensure that joint practices that are anticompetitive receive scrutiny from the antitrust enforcement agencies. Although insurers oppose repeal of their antitrust exemption, others support a repeal. In particular, the Antitrust Section of the American Bar Association has long supported repeal. During the Judiciary Committee's hearing, the current head of the Antitrust Section, Donald Klawiter noted the Section's nearly 20-year history of supporting repeal. Klawiter testified that ``the benefits of antitrust exemptions almost never outweigh the potential harm imposed on society by the loss of competition.'' At the same hearing, Robert Hunter, testifying on behalf of the Consumer Federation of America, concluded that ``application of the antitrust laws to the insurance industry could result in double-digit savings for America's insurance consumers.'' It is my hope that this legislation will bring the benefits of competition to the insurance industry and to consumers. Too many consumers are paying too much for insurance due to the collusive atmosphere that exists in the insurance industry. This has become a particular problem along the Gulf Coast, where insurers have shared hurricane loss projections, which may result in double-digit premium increases for Gulf Coast homeowners. I strongly urge members who are concerned about industry exemption from the antitrust laws and collusive insurance industry practices to support this important piece of legislation. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I think it would be appropriate, if I may have Senator Warner's concurrence, to tell our colleagues that this will be the end of the time allocated for this amendment and we could expect to vote at about 11:45 or 11:50?

Mr. SPECTER. I thank my distinguished colleague. Mr. President, I fully realize it is unpopular to speak for aliens, unpopular to speak on what might be interpreted to be in favor of enemy combatants, but that is not what this Senator is doing. What I am trying to establish is a course of judicial procedure to determine whether they are enemy combatants. I submit that the materials produced on this floor and in the hearings of the Judiciary Committee show conclusively that the Combatant Status Review Tribunals do not have an adequate way of determining whether these individuals are enemy combatants. What we are doing is defending the jurisdiction of the Federal courts to maintain the rule of law. If the Federal courts are not open, if the Federal courts do not have jurisdiction to determine constitutionality, then how are we to determine what is constitutional? My own background is one of a reverence for the law, a reverence for the independence of the judiciary, and a reverence for the rule of law as interpreted by our Constitution. If it hadn't been for the Federal courts, the Supreme Court of the United States, we would not have seen the decision in Brown v. Board of Education in 1954. The legislative branches were too mired in politics, the executive was too mired in politics, and it was only the Supreme Court which could recognize the injustice of segregation and it led to that decision. Similarly, it was the Federal courts which changed the criminal procedure in this country as a matter of basic fairness. Prior to the decision of the case of Brown v. Mississippi in 1936, the Federal courts did not establish standards for State criminal courts. It was determined as a matter of States rights that States could establish their own determinations. But in that case, the evidence was overwhelming about a brutal, coerced confession and, for the first time, the Supreme Court of the United States stepped in and said: States may not take an individual, take him across State lines, have a feigned hanging, extract a confession, and use that to convict him. That was done by the Federal courts. I had the occasion when I was in the Philadelphia district attorney's office to witness firsthand on a daily basis a revolution in constitutional criminal procedure. I was litigating the issues in the criminal courts when Mapp v. Ohio came down, imposing the rule of exclusion of evidence in State courts if obtained in violation of the fourth amendment and, when Escobedo came down, limiting admissions and confessions if not in conformity with rules. Then Miranda v. Ohio came down. I found those decisions as a prosecutor very limiting and impeding. But the course of time has demonstrated that those decisions have improved the quality of justice in America. Chief Justice Rehnquist, a recognized conservative, sought to eliminate or limit Miranda when he came to the Supreme Court of the United States. Later in his career, he said in Miranda that the protections of those warnings were appropriate and were helpful in our society. There are four fundamental, undeniable principles and facts involved in the issue we are debating today. The first undeniable principle is that a statute cannot overrule a Supreme Court decision on constitutional grounds, and a statute cannot contradict an explicit constitutional provision. That is point No. 1. Point No. 2, the Constitution is explicit in the statement that habeas corpus may be suspended only with rebellion or invasion. Fact No. 3, uncontested. We do not have a rebellion or an invasion. Fact and principle No. 4, the Supreme Court says that aliens are covered by habeas corpus. We have already had considerable exposition of the opinion by Justice O'Connor that the constitutional right of habeas corpus applies to individuals, which means citizens and aliens. The case of Rasul v. Bush, which explicitly involved an alien, says this in the opinion of Justice Stevens speaking for the Court: Habeas corpus received explicit recognition in the Constitution, which forbids the suspension of-- Then Justice Stevens cites the constitutional provision. The privilege of the writ of habeas corpus cannot be suspended unless in the cases of rebellion or invasion, and neither is present here. So you have the express holding of the Supreme Court in Rasul v. Bush that habeas corpus applies to aliens. Justice Stevens went on to say that: Executive imprisonment has been considered oppressive and lawless since John, at Runnymede. What this bill would do in striking habeas corpus would take our civilized society back some 900 years to King John at Runnymede which led to the adoption of the Magna Charta in 1215, which is the antecedent for habeas corpus and was the basis for including in the Constitution of the United States the principle that habeas corpus may not be suspended. I believe it is unthinkable, out of the question, to enact Federal legislation today which denies the habeas corpus right which would take us back some 900 years and deny the fundamental principle of the Magna Charta imposed on King John at Runnymede. Mr. President, how much time do I have?

Mr. SPECTER. Mr. President, I yield 10 minutes to the distinguished Senator from Oregon.

Mr. SPECTER. Mr. President, I thank the distinguished Senator from Oregon for those very cogent remarks, especially in the context of additional Republican support, stated bluntly, and in light of more moderate Republican support. I yield the floor.

Mr. SPECTER. Madam President, how much time remains under my control?

Mr. SPECTER. Madam President, I yield 10 minutes to the distinguished Senator from Vermont.

Mr. SPECTER. Madam President, by way of brief reply to the comments of the Senator from Arizona, he argues that the Hamdi decision does not apply to aliens but only to citizens, trying to draw some inferences. But that does not stand up in the face of explicit language by Justice O'Connor to this effect: All agree that absent suspension the writ of habeas corpus remains available to every individual detained in the United States. The Senator from Arizona can argue all he wants about inferences, but that hardly stands up to an explicit statement on individuals. And Justice O'Connor knows the difference between referring to an individual or referring to a citizen or referring to an alien. And ``individuals'' covers both citizens and aliens. Following the reference to individuals is the citation of the constitutional provision that you can't suspend habeas corpus except in time of rebellion or invasion. Buttressing my argument is the Rasul v. Bush case where it applied specifically to aliens; and it is true that the consideration was under the statute section 2241. There the Court says that section 2241 ``draws no distinction between Americans and aliens held in Federal custody.'' That again buttresses the argument I have made in two respects. First, Rasul specifically grants habeas corpus, albeit statutory, to aliens and says there is no distinction. So on the face of the explicit language of the Supreme Court of the United States there is a constitutional requirement, and it is fundamental that Congress cannot legislate in contradiction to a constitutional interpretation of the Supreme Court. That requires a constitutional amendment--not legislation. I yield the floor.

Mr. SPECTER. Mr. President, how much time do I have remaining?

Mr. SPECTER. Mr. President, the argument has been made that there is an alternative procedure which passes constitutional muster. But the provisions of the statute which set up the Combatant Status Review Tribunal are conclusively insufficient on their face. The statute provides that the Combatant Status Review Tribunal may be reviewed by the Court of Appeals for the District of Columbia only to the extent that the ruling was consistent with the standards and procedures specified by the Secretary of Defense. Now, to comply with the standards of procedures determined by the Secretary of Defense does not mean exclude on its face a factual determination as to what happens to the detainees. When the Senator from South Carolina argues that judges should not make military decisions, I agree with him totally. But the converse of that is that judges should make judicial decisions, to decide whether due process is decided. The converse, that judges should not make military decisions, is the principle that the Secretary of Defense ought not to decide what the constitutional standards are. The Secretary of Defense should not decide what the constitutional standards are. That is up to the Supreme Court of the United States, and the Supreme Court of the United States has decided that aliens are entitled to the explicit constitutional protection of habeas corpus. The argument is made that the Swain case allows for alternative procedures. The Swain case involved a District of Columbia habeas corpus proceeding which was virtually identical with habeas corpus provided under Federal statute 2241, so of course it was satisfactory. A number of straw men have been set up: One, that we could not apply these principles to the 18,000 detainees in Iraq--nobody seeks to do that; the straw man that we should not give search and seizure protections of the fourth amendment--no one seeks to do that; or the fifth amendment protection against the privilege of self-incrimination. In essence and in conclusion, what this entire controversy boils down to is whether Congress is going to legislate to deny a constitutional right which is explicit in the document of the Constitution itself and which has been applied to aliens by the Supreme Court of the United States. The distinguished chairman of the Armed Services Committee has said that he does not want to have this matter come back to Congress. But surely as we are standing here, if this bill is passed and habeas corpus is stricken, we will be on this floor again rewriting the law.

Mr. SPECTER

Mr. SPECTER. I do yield.

Mr. SPECTER. I do.

Mr. SPECTER. I will consider that, depending on how the argument goes. I appreciate very much the contribution of the distinguished ranking member. I do not know how many people on this side are going to seek time, but I do believe we can accommodate the request of Senator Leahy. But I want to see how the argument goes before making a commitment.

Mr. SPECTER. Mr. President, substantively, my amendment would retain the constitutional right of habeas corpus for people detained at Guantanamo. The bill before the Senate strips the Federal district court of jurisdiction to hear these cases. The right of habeas corpus was established in the Magna Carta in 1215 when, in England, there was action taken against King John to establish a procedure to prevent illegal detention. What the bill seeks to do is to set back basic rights by some 900 years. This amendment would strike that provision and make certain that the constitutional right and the statutory right--but fundamentally the constitutional right of habeas corpus--is maintained. The core provision is contained in article I, section 9, clause 2 of the U.S. Constitution, which states: The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. We do not have either rebellion or invasion, so it is a little hard for me to see, as a basic principle of constitutional law, how the Congress can suspend the writ of habeas corpus in the face of that flat language. When you have an issue of constitutionality, how can constitutionality be determined and interpreted except in the Court? We had a very extended discussion of this in the confirmation of Chief Justice Rehnquist, and the Chief Justice said that the Congress of the United States lacked the authority to remove the jurisdiction of the Federal courts on issues involving the first amendment. The same thing would apply generally. It is a constitutional question. But here you have it buttressed in addition by an express provision by the Framers, focusing on the writ of habeas corpus in and of itself, and saying you can't suspend it, so that anyone who can make an argument about stripping jurisdiction--I don't think it lies on a constitutional issue generally because if it does, who is going to interpret the Constitution if the Court does not have jurisdiction? But the writ of habeas corpus is so important and so fundamental and so deeply ingrained in our tradition, going back to 1215 against King John, that the Framers made it expressed and explicit. It appears to me that this is really dispositive and you don't really need several hours to develop it. But I shall proceed on the matter as to how we got where we are and what the Supreme Court has had to say in four major cases in the course of the last 18 months. The Congress of the United States has the express responsibility under article I, section 8 of the U.S. Constitution to establish rules governing people captured on land and sea. But the Congress of the United States did not act after 9/11, and we had people detained at Guantanamo. Legislation was introduced by many Senators. Senator Durbin and I introduced a bill. Senator Leahy introduced a bill. Many Senators introduced legislation, but the Congress did not act on it. Congress did not act on it because it was too hot to handle. What resulted is what results many times--Congress punted. It didn't act, left it to the Supreme Court of the United States. That took a long time, to have these cases come through the judicial process. Finally, in June of 2005 the Supreme Court ruled in three major cases: Hamdi v. Rumsfeld, Rasul v. Bush, and Rumsfeld v. Padilla. The Supreme Court of the United States rejected the argument of the Government that the President had inherent power under article 2 and could act on that constitutional authority, and the Supreme Court said that habeas corpus was effective. In Rasul v. Bush, the Supreme Court said that it applied even to aliens. It didn't have to be a citizen; that the Constitution draws no distinction between Americans and aliens held in custody and said the writ of habeas corpus applied. In the case of Hamdi v. Rumsfeld, Justice O'Connor had this to say: All agree that absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. That was held to apply to Guantanamo, since the United States controlled Guantanamo. Justice O'Connor went on to say that under the U.S. Constitution, article I, section 9, clause 2: The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. Justice O'Connor then goes on to delineate statute 2241, which sets the outline of the procedures, and then says habeas petitioners would have the same opportunity to present and rebut facts that court cases like this retain some ability to vary the ways in which they do so as mandated by due process. What has happened in Guantanamo with respect to the proceedings under the Combat Status Review Tribunal, referred to as CSRT, demonstrates the importance of having some impartial judicial review to find what, in fact, has happened. These tribunals operate with very little information. Somebody is picked up on the battlefield. There is no record preserved as to what that individual did. If there was a weapon involved, it has been placed with many other weapons, and it can't be identified. The proceedings simply do not comport with basic fairness because the individuals do not have the right to know what evidence there is against them. Repeatedly, the Combat Status Review Tribunal said the information is classified and the individual can't have it. There was specific reference to the proceedings in the CSRT in the case action en re: Guantanamo Detainee Cases, 355 Fed. Sup. Section 443, 2005. The U.S. District Court for the District of Columbia criticized the way CSRTs required detainees to answer allegations based on information that cannot be disclosed to the detainees. The Court described what might be referred to as a comical scene, where the detainee said he couldn't answer the allegations whether the detainee associated with a known al-Qaida operative because the tribunal could not provide the alleged operative's name. The detainee said: Give me his name. The tribunal said: I do not know. The detainee said: How can I answer this? The detainee's frustration reportedly led to laughter among all of the tribunal's participants. And the District Court then said: The laughter reflected in the transcript is understandable, and this exchange might have been humorous had the consequences of the detainee's enemy combatant status not been so terribly serious and had the detainee's criticism of the process not been so piercingly accurate. How can you sanction that kind of a proceeding? If it is not a sham, it certainly is insufficient. As I reflect on it, it is more than insufficient. It is, in fact, a sham. When it was apparent that both the committee bill and the administration's position was going to strike habeas corpus, the Judiciary Committee held on short notice a hearing on Monday. We had a distinguished array of witnesses appear. LCDR Charles Swift was present. The attorney who represented Hamdan before the Supreme Court gave very compelling evidence as to why habeas corpus was indispensable in order to have basic justice. Bruce Fein, ranking member of the Reagan administration in the Justice Department, was emphatic on his conclusion about the need to retain habeas corpus. The very distinguished retired U.S. Navy rear admiral, John Hutson, who is now the dean of the Franklin Pierce Law Center, testified about his experience and the importance of retaining habeas corpus. We called, as a matter of balance, other witnesses: David Rivkin and Bradford A. Berenson. I commend to my colleagues the testimony of Thomas B. Sullivan, LCDR Charles D. Swift, Bruce Fein, David B. Rivkin, Jr., Bradford A. Berenson, and John D. Hutson. Mr. President, the testimony that was given by Thomas B. Sullivan was especially poignant. Mr. Sullivan is a man in his late seventies. He was U.S. Attorney for 4 years in the late 1970s. He has a distinguished law practice with Jenner & Block. He has been to Guantanamo on many occasions and has represented many people who are detained in Guantanamo. His testimony was, as I say, especially poignant when he said that long after all of those in the hearing room are dead, there would be an apology made if habeas corpus is denied, just as the apology was made after the detention of the Japanese in World War II being a denial of basic and fundamental fairness, where we in the United States pride ourselves on the rule of law. He made reference to a number of individual cases where the proceedings before the Combat Status Review Tribunal were just totally insufficient, reflecting hearings where individuals were called in, they did not speak the language, they did not have an attorney, they did not have access to the information which was presented against them, and they were detained. Mr. President, documentation presented to the committee speaks eloquently and emphatically about the procedures which lack the most fundamental of due process. These individuals did not know what their charges were; they were so vague and illusory, just like the detainee who was alleged to have an al-Qaida associate. They wouldn't even produce the man's name. How do you know what the charge is? Then they don't have attorneys. Then they don't know what the evidence is. It is classified, and they are not told what the evidence is. This goes back, again, to Justice O'Connor's opinion where she says: Habeas petitioners would have some opportunity to present and rebut facts. Well, how can you rebut facts when you do not know what the facts are? How can you rebut facts when the material is classified and you are not told what the alleged facts are? That is why it is so important that the courts be open. I have had considerable experience with habeas corpus when I was a prosecuting attorney. When a habeas corpus petition is presented, it requires the government--the Commonwealth of Pennsylvania when I was DA--to take a close look at the case and to focus on it. One of the matters that was inserted into the Record from Mr. Sullivan, after he filed the petition for a writ of habeas corpus and was proceeding to gather evidence to present it, he says: Several months ago without notice to me and without explanation, compensation, or apology, the United States Government returned Mr. Abdul-Hadi al Siba to Saudi Arabia. So when the Government had to defend, apparently they found out what the case was about. When they had to find out what the case was about, they sent the detainee back to Saudi Arabia. But here we have a very explicit statement by Justice O'Connor about the right to rebut the facts. It simply is not present in the proceedings which happened before the Combat Status Review Tribunal. Kenneth Starr, formerly Solicitor General, formerly judge on the Court of Appeals for the District of Columbia, could not be present at our hearing on Monday but submitted this letter dated September 24. I will not read it in its entirety but only the first sentence where he says: I write to express my concerns about the limitation on writ of habeas corpus contained in the comprehensive military commissions bill. Then, in the third paragraph, he cites article I, section 9, clause 2, which I have referred to, about the privilege being suspended only in the case of invasion or rebellion, and again notes the obvious--that we do not face either an invasion or rebellion. Mr. President, how much time of my hour remains?

Mr. SPECTER. Mr. President, that states the essence of the proposition. I reserve the remainder of my time and yield the floor.

Mr. SPECTER. Will the Senator from South Carolina respond to a question?