Sheldon Whitehouse

Mr. WHITEHOUSE

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 580, submitted earlier today.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I understand that H.R. 5618 has been received from the House and is at the desk.

Mr. WHITEHOUSE. Mr. President, I ask for its second reading and object to my own request.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that when the Senate completes its business today, it adjourn until 10 o'clock a.m. on Wednesday, July 14; that following the prayer and the pledge, the Journal of proceedings be approved to date, the morning hour be deemed to have expired, the time for the two leaders be reserved for their use later in the day; that following any leader remarks, the Senate proceed to a period of morning business until 12 noon, with Senators permitted to speak therein for up to 10 minutes each, with the time equally divided and controlled between the leaders or their designees, with the majority controlling the first 30 minutes and the Republicans controlling the next 30 minutes.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I came to the Senate floor earlier today to speak about the nomination of Don Berwick to run the CMS and talked a little bit this morning about the area in which he specializes, which is how to lower the cost of the American health care system by improving the quality of care; that it is a win-win and to call it rationing is incredibly misleading and raises a legitimate question about whose side somebody is on who wants to attack this kind of reform of the health care system. I went back to my office and found an article in the Washington Post today, which is entitled ``Hospital infection deaths caused by ignorance and neglect, survey finds.'' So if I could just read a few pieces from it, then I will ask unanimous consent to have this article printed in the Record. An estimated 80,000 patients per year develop catheter- related bloodstream infections, or CRBSIs. . . . About 30,000 patients die as a result, according to the Centers for Disease Control and Prevention, accounting for nearly a third of annual deaths from hospital-acquired infections in the United States. So 80,000 people get hospital-acquired infections in their blood from the catheters that go into them when they are in a hospital. Of those 80,000, 30,000 die, and that is about one-third of the annual deaths from all hospital-acquired infections, which means about 90,000 Americans die every year from hospital-acquired infections. This article goes on to say those deaths are preventable. We have known this for a long time. This article is confirming something that has been studied for a long time. . . . evidence suggests hospital workers could all but eliminate [catheter-related bloodstream infections] by following a five-step checklist that is stunningly basic: (1) Wash hands with soap; (2) clean patient's skin with an effective antiseptic; (3) put sterile drapes over the entire patient; (4) wear a sterile mask, hat, gown and gloves; (5) put a sterile dressing over the catheter site. A lot of this came out of original work that was done in Michigan, the so-called Keystone Project. We have taken that in Rhode Island and adapted it to try to reduce these hospital-acquired intensive care unit infections. But this is preventable. The point is, when we prevent it, we save money because those 80,000 patients per year developing catheter-related bloodstream infections--as to the last information I saw, I believe it costs about $60,000 to treat hospital-acquired infections. So I cannot do the math in my head, but multiply $60,000 times 80,000 patients per year getting these catheter-related bloodstream infections and we get into very big money very quickly. Don Berwick is the leader of the health care reform effort that tries to take exactly that kind of problem and solve it so this process, this stunningly basic process that can prevent these infections, actually gets implemented over and over and over, every time, so we can eliminate these infections. When we eliminate them, we eliminate the cost of treating it; we eliminate the excess days that had to be spent in the hospital while the patient was treated for the infection; and, of course, most importantly, we eliminate 30,000 people dying from a hospital-acquired, catheter-related bloodstream infection every year. What is not to like about that? That is the theory of health care reform that Don Berwick is the lead proponent of. So I came back to the floor because this story is so clearly on point as to exactly the kind of reform he has been a proponent of--from his years on the Clinton Consumer Quality and Protection Commission--I do not have its exact name right now, but it was a Clinton-era quality reform initiative-- from his leadership writing ``To Err Is Human,'' the initial report that kicked off the health care quality reform movement, and the follow-on report, ``Crossing the Quality Chasm.'' This is what this guy specializes in and this ability to go into the American health care system and find these ways where, by improving the quality of care, we lower the cost. Again, whatever 80,000 patients is times--I may have the number wrong, but my recollection is about $60,000 per infection--we get into pretty big money in a pretty big hurry. It is preventible, and it is that kind of savings that is going to help turn the corner for American health care. So I ask unanimous consent that this Washington Post article entitled ``Hospital infection deaths caused by ignorance and neglect, survey finds'' by N.C. Aizenman, dated Tuesday, July 13, 2010, be printed in the Record.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I understand that we hope to reach an agreement on the initial amendments in order to the small business jobs bill, H.R. 5297, and that we will be able to resume its consideration tomorrow.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the Senate proceed to a period of morning business, with Senators permitted to speak for up to 10 minutes each.

Mr. WHITEHOUSE

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

Mr. WHITEHOUSE. Mr. President, the majority leader indicated today that he would be preparing legislation on energy to deal with a number of different issues, among them the response we should make to the terrible spill, geyser of oil gushing into the Gulf of Mexico and all the damage that has ensued in the gulf States as a result. I come to the floor this evening to say a few words about a problem I believe we need to address in the context of this catastrophe. That problem is the problem of regulatory capture of the captive regulator. Although it comes up in the context of the failure of the Minerals Management Service to do its job to see that the private sector deepwater drilling in the gulf was done properly, it is a problem that is not limited just to the geyser of oil gushing into the Gulf of Mexico and the failure of MMS to have taken adequate steps to prevent it. It occurs in other areas as well. One that leaps to mind is the Securities and Exchange Commission, the so-called securities watchdog which was sound asleep at the switch as the economy careened towards the huge financial meltdown with repercussions we are still seeing today. The Senator from Michigan, Ms. Stabenow, was just talking about the catastrophes in her State and the pain that the lack of unemployment insurance is creating. That goes back to the original Wall Street meltdown, and that launched a tsunami of misery across the country that we are still dealing with today. So if you take a look at those two catastrophes--the giant financial meltdown catastrophe, the consequences of which we are still living, that families in Rhode Island, families in Illinois, families in Michigan are still dealing with; and the disaster in the gulf that has created a catastrophe throughout Louisiana, Alabama, Florida--they have a common theme. The common theme is this issue of regulatory capture. My hometown paper editorialized pretty trenchantly about the gulf problem. They said: The Deepwater Horizon accident has made it painfully clear that, in its current form, MMS is a pathetic public guardian. Neither it nor BP was prepared for a disaster of this magnitude, and MMS' cozy relationship with industry is a big reason why. The issue of regulatory capture has been written about for a long time. In 1913, Woodrow Wilson wrote: If the government is to tell big business men how to run their business, then don't you see that big business men have to get closer to the government even than they are now? Don't you see that they must capture the government, in order not to be restrained too much by it? `` . . . they must capture the government, in order not to be restrained too much by it.'' The first dean of the Woodrow Wilson School, Marver Bernstein, wrote, 55 years ago, that regulators tend over time to ``become more concerned with the general health of the industry'' and that they try ``to prevent changes which will adversely affect'' the industry. He said, it ``is a problem of ethics and morality as well as administrative method.'' He called it ``a blow to democratic government and responsible political institutions.'' And ultimately he said it leads to what he called ``surrender.'' He said, ``The commission finally becomes a captive of the regulated groups.'' Even recently, the Wall Street Journal editorial page contained an article by a senior fellow at the Cato Institute, saying: By all accounts, MMS operated as a rubber stamp for BP. It is a striking example of regulatory capture: Agencies tasked with protecting the public interest come to identify with the regulated industry and protect its interests against that of the public. The result: Government fails to protect the public. So from Woodrow Wilson, in 1913, through Marver Bernstein, 55 years ago, to the Wall Street Journal editorial page just this month, the identification of the problem at MMS with the doctrine of regulatory capture I think is clear. So the question is, What are we going to do about that? It has been a recurring problem, and the difficulty is that for the regulatory agency, they are constantly engaged with the regulated industry. The industry is there all the time. The industry is pushing on them all the time. The industry is on the other side of the revolving door of jobs, often. The industry has lawyers and lobbyists working the agency. The industry threatens lawsuits if it gets regulations it does not like, and is accommodating and friendly when it gets regulations it does like. In some cases, such as MMS, the relationship gets completely toxic and you get social events with industry representatives, including illegal drug use and sex. You get staff failing to collect millions of dollars in royalties owed to the American people. You get senior executives steering contracts to an outside company created by those executives. You get district managers telling investigators: Hey, obviously we are all oil industry. You get employees accepting gifts from the companies regulated by MMS, trips to the Peach Bowl on a private airplane, skeet shooting contests, hunting and fishing trips, golf tournaments. You get an MMS inspector inspecting the oil drilling platforms of a company that he has a job application in with. While they are considering whether to hire him, he is inspecting their oil drilling rigs. I guess it comes as no surprise that in those oil rig inspections he found no violations. But that is an environment in which the regulatory agency has yielded to this long recognized problem of regulatory capture. So I think it is time we did something about it. It is a doctrine that has been known for many years, and clearly both at the Securities and Exchange Commission and at MMS it has been realized, and it has been realized in ways that are extraordinarily painful and damaging for America. It has been realized in ways that are truly catastrophic--in one case, for our economy, in another case, for the environment of the gulf area. What I have proposed is that we authorize the Attorney General of the United States, at the direction of the President or upon the invitation of a Cabinet official who senses a concern about that agency, to make a determination whether that agency is still truly independent of the industry it is supposed to regulate. If the President or the Cabinet official deemed that component no longer credibly independent of the corporation or the industry it is supposed to regulate, then the Attorney General is allowed to step in and clean up. It is as simple as that. They would be charged to hire and fire and take personnel actions; to ensure the integrity of the personnel within the component; to establish interim regulations and procedures; to ensure the integrity of a process in the component of government. They would be charged to audit the permits and the contracts and ensure that the component of government has signed off on them legitimately, and if it appears that the permits or contracts have been affected by improper corporate influence, to recall them and renegotiate them so that they are done fairly and squarely and not a friendly negotiation in which both sides of the negotiation are, in effect, working for the industry and no one is representing the public interest. They would be charged to establish an integrity plan for that component and then to clear out once his or her job is done. We have known about regulatory capture now for a century. We have seen it in action throughout that period. We have had two of the most catastrophic examples of regulatory capture happen just now on our watch, and in all this time we have never really come up with a mechanism for addressing it, because the pressure on these regulatory agencies is systemic, because it is constant and persistent, because it is done quietly. The industry doesn't come in and say: We are taking over. News flash to the world: This isn't going to be an independent agency any longer. No. Quietly, as quietly as they can, they slip their tentacles deeper and deeper and deeper into the agency until they quietly control it-- surreptitiously, stealthily, but they own it--and the interest that agency wants to serve is now the corporate interest and not the public interest. So if we are going to face up to a problem that is that persistent, that constant, which has been recognized for a century and has recently yielded the two biggest disasters, economic and environmental, this country has recently seen, we have to create a persistent counterpressure. I think the threat of the Attorney General of the United States, our top law enforcement officer, coming in and cleaning house is that kind of persistent counterpressure we need. So I urge my colleagues, as we discuss the different provisions we are going to bring to bear that are going to be our lessons learned from the gulf catastrophe, that we not overlook what is probably the biggest lesson of all: the lesson we have known for a long time about the problem of regulatory capture and the incidence of regulatory capture in these particular cases bearing such painful, damaging fruit, such bitter harvest for the American people. I will continue to push. If colleagues have ideas they think would improve it, I would be delighted to discuss those ideas. I think we will have failed in our duty to the public if we do not take away from the financial disaster caused by the deliberately blind eye of the Securities and Exchange Commission and the catastrophe caused by the complete co-opt of MMS--if we don't take away from those the lesson that this can't be tolerated anymore. Regulatory capture is no longer a theory; it has been proven to be a disastrous practice in at least those two agencies, and we don't know how many more agencies are in a similar position. The disaster may not yet have happened, but they may be just as captive. When you think of the billions and billions of dollars of taxpayer value in Federal land, in timber leases, in mining leases within the continental United States, in contrast with giant corporations; when you think of that huge pile of public wealth from which the giant corporations feed, it is hard to imagine they are not working just as hard to co-opt the regulators who protect that wealth as they work to successfully co-opt the regulators who are supposed to be watching the Wall Street financiers and who are supposed to be watching big oil as it drilled in the gulf. So let's not overlook this lesson. I am willing to consider a lot of ideas that will help get us there. I put this out because it is the best one I have come up with yet, and I look forward to working with folks. It is too important that we don't go away from this having failed in our duty to protect the American public from the next disaster. I thank the Presiding Officer. I yield the floor, and I note the absence of a quorum.

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

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I heard that some of my colleagues on the other side were here earlier engaged in a colloquy of condemnation of the appointment of Dr. Berwick to run CMS. I wanted to come back and respond because I think this body is making a mistake and is taking a very wrong path by attacking and criticizing this particular nominee. To provide just a moment of context to his appointment, when I was here yesterday I had a graph that showed that in 1955, the year that I was born, we spent about $12 billion on health care as a nation. Last year we spent $2.5 trillion, 200 times as much. The graph showed not only the steep curve that took us from $12 billion to $2.5 trillion a year, but also the fact that curve was accelerating. It was getting steeper. In the last year the year-to-year increase was $134 billion in health care expenditures. That is the biggest year-to-year increase in the history of the Republic. If we kept at it, by 2016 a family of four in Rhode Island would be paying $26,000 in premiums for a basic health care policy. Medicare Advantage plans jumped 14 percent last year nationally, on average. We are in both an unsustainable and an accelerating health care cost increase environment. Something absolutely has to be done about it. I suspect almost everybody in this Chamber would agree with that. That is the backdrop--unsustainable, accelerating health care costs that now gobble up more than 17 percent of our gross domestic product. There is a huge discrepancy between us and every other nation in terms of the amount of our economy that we burn on health care. I believe the closest to us is now at 12 percent of GDP, and we are at 17 percent, and it climbs every year along with that accelerated, unsustainable rate of health care cost increase. The question is, What are we going to do about it? This is a terrific burden on our economy. It is uncompetitive against other nations, it hugely depresses our manufacturing sector, and it clobbers families who have to pay for health care that is so expensive. It simply has to be addressed. There are two ways we can do it. We could preserve the status quo and simply cut benefits that people receive. We could make Social Security health care benefits knocked down. We could make Medicare benefits knocked down--disability health care benefits for Social Security. We could make Medicaid benefits knocked down. We could spend less, I suppose, on TRICARE in the Veterans' Administration and provide fewer services, pay for less, or require more copays. That is one way to go about doing it, but it is not a very smart way and it is not a very humane way. A lot of the costs in our health care system is waste; it is waste and inefficiency. If we look at the report of the President's Council of Economic Advisers, they come at it in two ways, and both ways come to the same number, about $700 billion a year--a year--in waste and excess costs. The New England Healthcare Institute did a study--$850 billion a year in waste and excess cost. The Lewin Group and former Bush Treasury Secretary O'Neill have both arrived at a different number, but they agree the number is $1 trillion a year in waste and excess cost. So if we have a huge cost problem, and if we have waste and excess costs as high as $1 trillion a year--to give us an idea of the scale, remember it was about $2.5 trillion last year. It is supposed to be $2.7 trillion this year. If the Lewin Group and Secretary O'Neill's number is right, that means one-third of the cost, more than one-third of the cost is waste in excess care, unnecessary cost. So going after that waste and excess cost should be a priority to deal with the cost burden that our health care system puts on the country. How would we go about doing that? Well, we are actually fortunate in one respect. In all of the mess of our health care system we are fortunate in one respect; that is, there is a proven correlation in many areas between improving the quality of care and lowering the cost of care. Probably the most famous example is dealing with hospital-acquired infections. A hospital-acquired infection costs maybe $60,000 on average to treat, and it is avoidable. It is completely preventable. So if we crack down on hospital-acquired infections, if we fix the process failures that permit hospital-acquired infections to occur, we improve the quality of care, we save people's lives, we get them out of the hospital sooner and healthier, and we save money, all together. But because of the bizarre economics of our health care system, it is not in anybody's financial interest to do that who is also in a position to do that. So over and over, we have these failures where we could have huge win-win situations in which we improve the quality of care for the American people while reducing the cost of the health care system. It happens with hospital-acquired infections. It happens with administrative overhead. Medicare runs about 3 to 5 percent of overhead. The private insurance market runs at about 20 to 27 percent overhead. It has more than doubled in the last 6 years, from 2000 to 2006. In 6 years it has more than doubled, just the administrative overhead, not health care itself, the administrative overhead of the private insurance industry. That is part of the waste and excess costs. We can tackle those things. We can drive them down. We can improve, for instance, maternal mortality rates in this country. Believe it or not, America is 39th in maternal mortality. Maternal mortality is a cold, statistical way of describing a mother dying in childbirth, giving birth to her baby, and we are 39th in the world; 38 countries do better at protecting moms while they are giving birth to their children than we do. If we can improve that rate, we can save money because the same process failures that lead to those deaths lead to expensive complications, additional days in the hospital, sometimes lead to lifelong injuries to the baby as it is being delivered, which create huge cost. So, again, it is a win-win when we improve the quality of care to lower the cost of medicine. Now, why do I say all of that? Why do I talk about the importance-- first of all, the urgency of the cost problem and the importance of pursuing this win-win strategy to reduce the cost of care by improving the quality of care for Americans? I mention that because Don Berwick is probably the leading pioneer in this area. The bible of the quality of improvement movement was a book called ``To Err is Human,'' written, I believe, by the National Institutes of Health. Dr. Berwick was one of the lead authors of that report. It was followed by another report called ``Crossing the Quality Chasm.'' Those two reports have been the foundation for the quality reform movement. I am very familiar with the quality reform movement because I founded something in Rhode Island called the Rhode Island Quality Institute which has led in this area. The legislation we passed, the health care legislation, contains an immense number of reforms of the delivery system that are designed to capture this win-win, that are designed to improve the quality of care in ways that lower the cost of care. One economist has called it the most significant action on medical spending ever proposed in the United States. A Noble Prize-winning economist has noted that official estimates don't give the plan much credit for the cost-saving efforts in the proposed reform, but realistically the reform is likely to do much better at controlling costs than any of the official projections suggest. An MIT professor, who is a leading health economist, said: I cannot think of a thing to try that they did not try. They make the best effort anyone has ever made. Everything is in here. You could not have done better than they are doing. So the bill created an array, a portfolio of tools for beginning to change our broken, dysfunctional health care delivery system and move it more in the direction of better patient care that costs less money. The lead practitioner of that, the lead advocate of that, the person who has thought about this the most and done the most work on it is Dr. Don Berwick. So it makes perfect sense he would be the person brought over by President Obama to lead CMS and to apply these principles of improving the quality of care, to reduce the cost for America. He is an expert at it. I think we wrote good legislation on the delivery system reform. I think it was actually very good legislation. But it does not matter how good the legislation is that we write if the executive branch does not get out there and implement it in a dynamic, thoughtful, iterative way. We learn something, we move on. We have to be creative and continue the pressure on this. We have to take what we learn in different projects and bring them together and try something now and constantly be in a process of innovation and improvement in order to be effective. Nobody will do that better than Professor Berwick. That is why both President Bush, H.W. Bush, and President Bush, W. Bush, their CMS directors have applauded this nomination. Gail Wilensky, the Administrator of CMS under President George H.W. Bush, said: Berwick has longstanding recognition for expertise and for not being a partisan individual. George W. Bush's CMS director, Tom Scully, said: You are not going to do any better than Don Berwick. So from the other side of the aisle, from the partisan side of executive management of this, the previous CMS directors know how qualified this man is. I know my Republican colleagues want to talk about rationing. They would love to paint rationing and socialized medicine and death panels all over the health care bill. Obviously they cannot resist the opportunity to do that using Dr. Berwick. But, frankly, it is not fair, and I think it puts them on the wrong side of history. It puts them on the wrong side of reform. It raises the question, Whose side are they on? When we have somewhere between $700 billion and $1 trillion of waste every year and the person who George Bush's CMS director says we are not going to find any better to come in and fix that program than the nominee, and they are against the solution to that, whose side are they on? Well, it is pretty clear they are on the side of the $700 billion to $1 trillion a year in waste. That is a choice they can make. But I do not think it is a wise choice. When we are dealing with doing things such as eliminating hospital-acquired infections in order to save money, and they are against the person who is the leading proponent of this and who is going to lead us in that direction, who are they for? Are they for the families who lose a loved one to a hospital-acquired infection? It does not seem that way. It seems like a vote in favor of the status quo. It seems like a vote in favor of the status quo and the continuing unbelievable number of deaths and casualties from hospital- acquired infections. One of the findings of the ``To Err is Human'' report is that 100,000 Americans die every year, 100,000 Americans die every year because of avoidable medical errors. When we clean up the medical errors, when we clean up the process failures that lead to those medical errors, we save money. That is Don Berwick's expertise. When they oppose him, whose side are they on? Are they on the side of 100,000 Americans who lose their lives every year because of avoidable medical errors? I do not think so. It sounds as if they are on the side of the 100,000 medical errors. Let this guy have a chance. He has bipartisan support. He is an expert in this area. The area he is expert in is the best path to lead us to cost savings in health care because it is a win-win path. We do not have to take something away from somebody to create the savings; we can earn the savings by reforming the delivery system so it provides better health care. He has founded the Institute for Healthcare Improvement. He has worked as a board member on the American Hospital Association on Quality Initiatives. He chaired the Advisory Council for the Agency for Health Research and Quality. He goes back to the Clinton era, where he was on President Clinton's Advisory Commission on Consumer Protection and Quality. He is the real deal. So I urge my colleagues, as I did yesterday, to step back from the partisanship, to step back from the posturing. We have heard enough about rationing. There is not rationing in this; this is quality reform. We have heard enough about death panels and socialized medicine and all of that nonsense. We have a serious problem in our health care system. We need to address it seriously. There is a path to address it that is a win-win for our country, for our people, for our society that reduces costs and provides Americans better care. To me, it is embarrassing that we should be 39th in maternal mortality. There are 38 countries that keep mothers alive through childbirth better than we do. That is the kind of thing we should be fixing. That is the kind of quality reform we need. That is the kind of quality reform Don Berwick gets behind. This should be an area where we can all get behind this. Some of the work he has done has been in Republican States, in States with Republican Senators. I just know, off the top of my head, that Utah is a leading State in the quality reform area. The North Carolina Medicaid effort on Medical Home is one of the leading early studies on this issue. These people have Republican Senators who can report on how successful those have been. Yet they have made the choice not to look at Berwick for the person he is, for the expert he is, for the purpose he brings to this job, but just as an excuse to try to go back to the slogans and try to sloganeer their way through what is a real and significant problem for our country. So unless you want to wish failure on America in this task, unless you want to wish failure on America in reducing the 100,000 deaths every year from avoidable medical errors, unless you want to wish failure on America in improving our status so we are the best in the world on maternal mortality rather than 39th, unless you want to wish failure on America in the only win-win path to reducing the terrible burden of health care costs, the accelerating burden, unsustainable burden of health care costs on our country, unless you want to wish America failure in that, you ought to support Don Berwick because he knows how to follow this path, this win-win path, toward health care savings that come from improving quality. That is a path we should be on. There is no one better suited to lead CMS down that path than Dr. Berwick. So I hope we can find a way in this body to be better than that. I think Dr. Berwick gives us the occasion to be better than that. At long last, I hope that soon we become better than that. I yield the floor, and I suggest the absence of a quorum.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, if there is no further business to come before the Senate, I ask unanimous consent that it adjourn under the previous order.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, may I speak for up to 15 minutes as in morning business?

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

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I rise to discuss the appointment by President Obama of Dr. Donald Berwick as Administrator of the Center for Medicare and Medicaid Services. I disagree, respectfully, with my distinguished colleague from Arizona. I guess I agree that it is regrettable that this was a recess appointment, but I believe that on the part of the President it was both prudent and necessary to make this a recess appointment, given, A, the urgency of moving forward with health care reform and, B, the relentless blockade the Republicans have maintained. Dr. Berwick is perhaps the most qualified person in the country to wield the vast apparatus of the Federal health care bureaucracy toward the comprehensive change we need, to lower the cost of health care, while improving the quality of health care. In evaluating this urgency, I ask my colleague to consider the situation we are in right now. We are in the midst of an accelerating and unsustainable rise in health care expenditures in America. In 1955--the year I was born--we spent a little bit over $12 billion a year on health care. That was the annual health care expenditure in the United States in 1955--$12 billion. Last year, we spent more than $2.5 trillion. The increase over the previous year was $134 billion--from 2008 to 2009, an increase of $134 billion, which is the largest year- to-year increase in history, by the way, and 200 times what we spent in 1955--200 times. Anybody who is looking at this can see both the trend and the increasing acceleration of this curve. It is accelerating, it is unsustainable, and it adds up to, at this point, a stunning 17.3 percent of our national domestic product, our GDP, spent on health care every year. No other nation even comes close to spending that much of its annual domestic product on health care. In my home State of Rhode Island, had we done nothing on health care, by 2016 a family of four would have faced more than $26,000 in premiums for family health insurance--$26,000 per year in 2016 average costs. Last year, premiums for Medicare Advantage plans jumped an average of 14.2 percent nationally--just in 1 year. So there is a clearly unmistakable case that our health care costs are out of control and we have to do something about it. The escalation, as I pointed out, is unsustainable and accelerating, but it is not inevitable. Indeed, experts from across the ideological spectrum agree that a great deal of health care cost is simply waste-- waste resulting from an irrational, disorganized status quo that too often encourages the wrong choices by patients, payers, and by providers of health care services. That status quo has to change. As you consider our health care system, set aside for a moment the problem of duplicative tests, the problem of lost medical records, the problem of unnecessary treatments, and the problem of uncoordinated care for patients working between multiple doctors. Set aside all those problems and look just at the administrative overhead of our private insurance market. By way of reference, administrative costs for Medicare run about 3 to 5 percent. Overhead for private insurers is an astounding 20 to 27 percent. A Commonwealth Fund report indicates that the private insurer administrative costs more than doubled from just 2000 to 2006. In those 6 years, the overhead, the administrative costs of the private insurance industry, more than doubled, up 109 percent. The McKinsey Global Institute estimates that Americans spend roughly $128 billion annually just on what the report called ``excess administrative overhead.'' There is $128 billion that we pay for every year in excess administrative overhead--not health care but administrative overhead-- in our health care system in the private health insurance market. On top of that, you have the duplicative tests, lost medical records, unnecessary treatment, and the uncoordinated care for patients with multiple and chronic conditions. I won't dwell on those particular topics because I have spoken about them so often on the Senate floor in the past. My point is that because of all this waste in the system, the President's Council of Economic Advisers concludes that it should be possible to cut total health expenditures about 30 percent. Let me repeat that quote. It should be possible to cut total health expenditures about 30 percent without worsening outcomes . . . which would suggest that savings on the order of 5 percent of GDP could be feasible. Five percent of GDP is over $700 billion a year, and other experts agree. The New England Healthcare Institute reports as much as $850 billion a year in excess cost ``can be eliminated without reducing the quality of care.'' Former Bush administration Treasury Secretary O'Neill has written that the excess cost is $1 trillion a year in our health care system. The Lewin Group, which is often cited in this Chamber on both sides of the aisle as a respectable organization that does authoritative work in this area, finds that we burn over $1 trillion a year through excess cost and waste. So is it $700 billion a year in excess cost and waste, is it $850 billion a year, is it $1 trillion or over a year in excess cost and waste? Whatever it is, it is a big number, and we needed to do something about it. This Congress rose to the challenge in the health care reform bill and passed what health economist David Cutler has called ``the most significant action on medical spending ever proposed in the United States.'' This isn't just a partisan view. Analysts of all stripes agree the reform law does more than any previous measure to begin to lift the dead weight of all this wasteful health care cost off our economy. The Commonwealth Fund has projected that the law will reduce the annual growth of national health expenditures--that is the amount that private and public sectors would otherwise spend on health care every year--by 0.6 percentage points annually and nearly $600 billion over the next 10 years. The Council of Economic Advisers writes that ``total slowing of private-sector cost growth'' will be approximately 1 percentage point per year--more than $1 trillion over the next 10 years. That is just what they can prognosticate, what they can anticipate, what they can project. Here is something that is interesting. Nobel laureate Paul Krugman writes: There are many cost-saving efforts in the proposed reform, but nobody knows how well any one of these efforts will work. And as a result, official estimates don't give the plan much credit for any of them. Realistically, health reform is likely to do much better at controlling costs than any of the official projections suggest. Health reform is likely to do much better at controlling costs than any of the official projections suggest. He is not alone. Other respected health economists--Len Nichols of George Mason, Ken Thorpe of Emory, and Alan Garber of Stanford, described the bill's cost controls as vital, a significant improvement on the status quo. And MIT Professor Jonathan Gruber, one of our leading health economists, said of the bill's cost control measures: I can't think of a thing to try that they didn't try. They really make the best effort anyone has ever made. Everything is in here. You couldn't have done better than they are doing. So that frames the picture for the appointment of Dr. Berwick because the President's signature of our health care law was just the beginning of the reform project that lies ahead. This law gives those unprecedented tools to fight health care waste and inefficiency, but those tools are meaningless, they are useless unless they are applied both vigorously and wisely. Don Berwick is simply, hands down, the best person to do that. He has vast experience, proven expertise, and he has earned the respect of colleagues in the public and private sectors and on all sides of the ideological spectrum. For instance, Dr. Nancy Nielsen, immediate past president of the American Medical Association, said Dr. Berwick is ``widely known and well-respected for his visionary leadership efforts that focus on optimizing the quality and safety of patient care in hospitals and across health care settings.'' Gail Wilensky, the Administrator of CMS under President George H.W. Bush, said Dr. Berwick ``has long-standing recognition for expertise and for not being a partisan individual, so I think that will assist him in his dealings with Congress, both with the majority and hopefully the minority, as well.'' Tom Scully, George W. Bush's CMS chief said: You're not going to do any better than Don Berwick. And Steven D. Findlay, health policy analyst at Consumers Union, has applauded what he calls ``a spectacular appointment.'' Don has been an intellectual force in health care for decades. He helped forge many ideas incorporated in the new health care law. So given this chorus of praise from across the ideological spectrum and the urgency of the task at hand to control those costs, one might think that bipartisan support for Dr. Berwick's nomination would be strong and swift. Well, you heard the Senator from Arizona. Unfortunately, my Republican colleagues, regrettably, threaten the familiar old Washington playbook of delay and obstruction. I have spoken many times about how the Republican minority has delayed without substantive justification far too many of the President's executive branch nominees, jamming up the administration's ability to administer the government; usually not because they have any objection to the nominee but just to jam up the administration's ability to administer the government. On our Executive Calendar right here we have the names of everybody who is waiting on the Senate floor languishing, waiting for a vote. That doesn't even count all the names that are stuck in committees. These are the people on the Senate floor waiting for a vote. Some have been on for months. Some of them have cleared committee unanimously with full Republican support in the committee. Yet they are jammed up here. That is the quagmire into which they were going to stick Dr. Berwick, notwithstanding the urgency of the need. Since his nomination was first announced, the Republicans made clear they would subject Dr. Berwick to this treatment. There is no doubt about that. It was confirmed just now by the Senator from Arizona. A recess appointment was the only way for the President to ensure that CMS is fully equipped to handle the vital and voluminous and immediate tasks that we have asked CMS to perform. So why do my colleagues on the other side of the aisle clamor in opposition to Dr. Berwick, the foremost expert in the field of reducing cost by improving quality of care? There are innumerable ways to reduce health care costs by improving quality. Reducing and eliminating hospital-acquired infections is a perfect example. The North Carolina Medicaid effort to provide coordinated care of a medical home for people who are high users of the health care system is another example. My Republican colleagues, who so loudly championed cost control, now claim this reducing cost by improving quality is rationing--rationing. Well, here is my question: Whose side are they on? One trillion dollars a year in waste, and they are lining up to defend the waste and call efforts to restrain it rationing? Protecting you and your family from expensive and dangerous hospital-acquired infections, that is rationing? Organizing complex care of people who have multiple diagnoses and chronic conditions into coordinated medical homes, rationing? Whose side are they on when they attack the reforms, the quality improvement, cost-reducing reforms that are Dr. Berwick's signature expertise? One Senator even stood in this Chamber and said Dr. Berwick endorsed an end-of-life pathway to death. Oh boy, looks like the death panels are back. Dr. Berwick is not just a pioneer in health care quality improvement, he is the pioneer. He was a lead author of the Institute of Medicine's watershed report, ``To Err Is Human,'' and the follow-on report, ``Crossing the Quality Chasm.'' ``To Err Is Human'' launched the quality movement in this country. That report exposed the breathtaking fact that 100,000 Americans die needlessly in this country every year from medical errors--100,000 Americans dead every year in this country because of needless medical errors. Is getting rid of the errors that killed those 100,000 Americans rationing? Don Berwick has devoted his life to saving those lives. Whose side are my colleagues on when they oppose Dr. Berwick? The connection between quality improvement and cost savings which Don Berwick has spent his career exploring is demonstrated by global maternal mortality figures. Maternal mortality is a cold and statistical way of saying moms who die in childbirth. We in the United States are 39th in the world. Thirty-eight countries, including most of Europe, do a better job of keeping moms alive through childbirth. We would be willing to spend money to get better at that, I would bet. But the strange thing is the many medical errors and the process failures that cause those deaths--and that cause us to be 39th in the world at maternal mortality--also cause a lot of other complications which cost lots of money to treat and recover from. So if you make those quality improvements, you save money. That is the win-win connection between cost saving and quality reform. That is the area where Don Berwick specializes and has specialized for years--improving care, eliminating process failures, and saving cost. But my Republican colleagues are standing against him and want to talk about rationing. When it improves care, when it lowers maternal mortality, that is the kind of reform I think we could use. If you are against that, and if you are against Dr. Berwick, whose side are you on? Dr. Berwick founded the Institute for Healthcare Improvement, one of the first organizations to promote systematic and sustainable health care quality improvement. He has worked on quality initiatives as a board member of the American Hospital Association, as chair of the Advisory Council for the Agency for Healthcare Research and Quality, and as a member of President Clinton's Advisory Commission on Consumer Protection and Quality. That is his work. That is probably why Tom Scully, CMS Administrator under President George W. Bush, said: You are not going to do any better than Don Berwick. So I ask my colleagues: Do we really need to raise the phony scarecrows of rationing, of death panels, of socialized medicine? Do we really need to go there against $1 trillion in waste and inefficiency every year? Do you really want reform efforts to fail against 100,000 American lives lost every year due to avoidable medical errors? Do you really want reform efforts to fail against eliminating hospital-acquired infections and providing better coordinated care for patients who have multiple doctors and multiple conditions? Do you really want the reform effort to fail? Is this how far we have fallen? There is a huge window where we could work together on a win-win path, where we could improve the quality of health care for Americans while reducing its cost by coordinating the care better, by coordinating electronic health records better, by avoiding hospital- acquired infections, by avoiding unnecessary care, by making sure doctors know what the best evidence is for treatment as they have to take on patients with multiple difficulties and symptoms. We could do this together. This is a win-win, and Dr. Berwick is an expert with bipartisan public/private--or Republican and Democratic support and recognition of his particular expertise in this area. I urge my colleagues to treat Dr. Berwick as the highly qualified individual he is, not as an opportunity for political grandstanding--we do enough of that around here--not as a way to wish failure on America in this vital task that lies before us. At long last, my friends and colleagues, are we not better than that? Mr. President, I yield the floor.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I rise today to pay tribute to our departed Senate Dean, Robert C. Byrd of West Virginia. Senator Byrd served in this Chamber longer than any Senator in history, 50\1/2\ years. Combined with 6 prior years in the House of Representatives, Senator Byrd's service spanned nearly a quarter of the history of the Republic, from the Truman administration to the Obama one, longer than the span of my life. To serve with Senator Byrd, as was my privilege for too short a time, was to serve with a giant of the Senate, an apotheosis of a long-ago age when oratory was an art. How fortunate I was to sit on the Budget Committee several chairs away from the man who wrote the Budget Act. I will never forget a Budget Committee hearing last year at which, with 35 years of hindsight, Senator Byrd reviewed the very budget process that he had designed. On that February morning, Senator Byrd delighted in describing his crafting of the budget process and its implementation and evolution over three and a half decades. Tomorrow, for the first time since 1959 when Robert C. Byrd was a 40- year-old first-year Senator, a departed Member of this body will lie in repose in its Chamber. The tribute will surely be fitting, as the Senate's most senior Member occupies the floor one final time. The man will be missed, but his legacy will continue to guide this institution for generations to come, and the institution to whose principles and welfare he dedicated his life, the U.S. Senate, will endure with his lasting imprint upon it.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, we lost this important vote today 57 to 41. For people who are watching who may not be familiar with the peculiarities of the Senate, you might think to yourself: How on Earth did you lose 57 to 41? It sounds to the ordinary person like you won by 16. What do you mean you lost 57 to 41? How could that have happened? That happened because the other party, as it has done throughout the Obama administration, has used an arcane Senate procedure called the filibuster more times than ever in the history of this country to block progress for this administration. The rule requires that the majority get to 60 when the minority so demands, and they have been demanding that 60 on everything over and over. There have been years when it was almost never used. There have been years when it was used two or three times. In really bad years, it might have been used 14, 15 times. This group of Republican colleagues has set the record. They use it on everything. I think we are over 100 acts of obstruction and delay around this filibuster rule as a result. If one is wondering why we lost 57 to 41-- if that sounds strange--we got the 57 votes, they got the 41, and we lost--it is because they are pulling out of the rule book this procedural trick so that the majority does not rule, so they can block progress. They are doing it for what they claim is concern about deficits. I have to say, being lectured by our Republican colleagues about deficits and debt is like being lectured by Evel Knievel about safe driving. They should have a little sense of, at minimum, irony about that. They say the past is prologue. Let me review a little bit of the past. When George Bush took office, President Clinton, a Democrat, and the Democratic Congress at the time had left an annual budget that was in surplus. It was returning more money to the Federal Government than we were spending. It was an annual budget in surplus. We had a national debt at the time, but with the annual budget in surplus, our Congressional Budget Office--the nonpartisan, not Republican, not Democratic, professional Congressional Budget Office--had estimated that, when George Bush took office, we would be a debt-free nation by 2009. We would be a debt-free nation by 2009. That was the trajectory that Democratic President Bill Clinton and the Democratic Congress left, along with those annual budget surpluses, when George Bush and the Republicans took office. So 2009 came and went. How did we do? Did we get to a debt-free nation? Are we at zero debt? No. Something changed when the Republicans took power, and when the Bush administration left, it left $9 trillion in debt--not a debt-free nation but $9 trillion in debt and an economy in which Americans were losing 700,000 jobs a month. They left $9 trillion in debt and families losing 700,000 jobs a month. That is the situation President Obama inherited--a little different from what President Bush inherited. So have we spent since then? Yes, because every economist worth their salt knows that when family spending is contracting, when business spending is contracting, when municipal and State spending is contracting, the entire economy can contract to the point that it seizes up unless the Federal Government does what an economist would call countercyclical spending. If the economy is dying for lack of spending, if it is seizing up, the Federal Government can put money back into it to try to bring it back to life. As Senator Stabenow's graph has shown, it has brought it back to life. We have gone from losing 700,000-plus jobs a month to losing no jobs a month--actually gaining a few. So it worked. In that context, to say to the people who are still out of work--the ones who lost their jobs back when 700,000 jobs a month were out the window and going overseas; the Bush legacy--to say that we can't help those people any longer, to say that we are cutting off their unemployment insurance, their lifeline, because we are concerned about the debt, I have to ask: Where was the concern about the debt when they were taking a trajectory toward a debt-free America and turning it into a $9 trillion debt? Where was the concern then? Where was the concern when it was tax breaks for billionaires? We just had our first billion-plus-dollar estate pass under the Bush tax cuts, where the estate tax was eliminated. As a result, a $9 billion estate of a Texas tycoon went to his heirs tax free. How much tax? Zero dollars. Zero dollars. At the prevailing tax rate that has stood for most of this time, you would have paid $4 billion in estate taxes and your heirs would have had to suffer through with only $5 billion to divide amongst themselves. That $4 billion in lost revenue added to our debt and deficit doesn't bother our friends on the other side at all. They couldn't be happier. That is their plan. Those are the Bush tax cuts. America loses $4 billion, and they smile. It is their plan. But when we are talking about people who lost their jobs because of those very policies, because of letting Wall Street run unregulated and having that financial meltdown, and now regular families across this country who got hit by that tsunami of misery are out of work, now they are concerned about the debt. Now they are concerned about the deficit. They were OK with the billion-dollar family passing its estate tax free, but they can't have ordinary working Americans keep that unemployment insurance lifeline. I think those are backward policies. I think those are upside-down policies, and they hit very hard in my home State. My home is Rhode Island. For over a year, we have had double-digit unemployment. We have been in the top three or four States every month for unemployment. I know Michigan has suffered immensely, and that is why Senator Stabenow and Senator Levin were here. But I have to say that my small State of Rhode Island, with only 1 million people, is not far behind. We have 70,000 families out of work, and because it has been a long recession in Rhode Island, those families--all their assets, everything they had salted away, they have gone through that. What is left is the unemployment insurance lifeline. It is the basic lifeline. To cut that off, frankly, I think it is disgraceful. This is a low moment in this body--70,000 families missing a paycheck, 70,000 families with a provider who is out of work, 70,000 families with kids wondering where the income for mom and dad is coming from. This money would go right into the economy. It would be spent instantly. It would be spent on shoes. It would be spent on food. It would be spent on paying the electric bill. It would be spent on putting some gas in the car to get out to the job interviews. It would have been spent immediately on the necessities of life. But that is not good enough. That is not good enough. Those are the families in the toughest circumstances whom our friends want to cut off because of the debt, because of the deficit. The billionaires can go untaxed, but the working families who have lost jobs through no fault of their own are the ones who have to bear the brunt of this. And it hits home to real people, real families, with real fears, who, late at night, sitting at the kitchen table, with the bills laid out in front of them and the kids asleep upstairs, are adding them up--adding up what they have and what is coming in--and realizing they are not going to make it that month, that something is going to have to go. That is a cold and lonely moment for a family. When families are having that cold and lonely moment, that late night at the kitchen table with the bills they can't pay, that is the time when we are supposed to provide the insurance to protect them against unemployment. That is the policy of this Nation. It is discouraging. It is discouraging to Dan, a Rhode Islander, in East Greenwich. He has worked in sales. He has been unemployed since April of 2009. His wife is disabled. He is looking for work, but in Rhode Island, as in Michigan, people can look as hard as they like and they are lucky to find a job because there are more people looking than there are jobs. The jobs just aren't there, and Dan has not been able to find one. Without unemployment insurance, he has let my office know that he and his wife are likely to be evicted from their apartment. That is the human consequence of today's decision for one person in Rhode Island--Dan. Bill, from North Kingstown, contacted us. He is 56 years old. He has been unemployed for a while now--since January of 2009. This has been a persistent recession in Rhode Island. He used to work in the engineering field. He is a talented man, but he has been twice faced with eviction as his unemployment insurance has been put at risk. He received only $200 over the last 3-week period, as his benefits have expired. He is in that first leading group for whom the benefits have expired. He has lost his COBRA benefits. He needs heart medication. Without COBRA benefits, how can he pay for his health insurance that will provide the heart medication? The real cost of today's shameful decision comes home hard to somebody like Bill. Nancy, in Portsmouth, RI, is 59 years old. She has been unemployed for a while, too--21 months. She has been looking for work for 21 months, looking through the classifieds, going online, reaching out to all her friends and contacts to try to find somebody who has a job for her. She has a bachelor's degree, she has several different industry certifications, and she has an extensive background in sales and marketing. She is somebody who, in an ordinary economy, would have no trouble finding a job. But after the Wall Street meltdown sent that tsunami of misery across our country, she got caught in it. For 15 years, she worked in the insurance industry, and now she can't find a job. She will soon lose her unemployment benefits if we don't continue to fight for it. So behind all the big brave talk about how we have to fight the deficits--ironic talk coming from the people who were responsible for virtually all of these debts and deficits--are the human stories that are just being ignored here, and it is wrong. We have to change our direction and start putting people first instead of the big corporations. Let me mention one other topic. There were winners today and there were losers today. The people who lost today were Dan and Bill and Nancy and many, many others like them in Rhode Island and across the country. The people who won today--among them--were the big Wall Street financiers, the hedge fund hotshots, the ones who have been earning millions of dollars every year and through clever legal tricks have got their million-plus-dollar salaries treated as if they were capital gains. So the hedge fund superstar out there in his private jet, getting ready to fly down for a weekend in the Caribbean in the private jet, looking out the window at the fellow stuffing his luggage into the hold of the private jet, the guy in the jet is paying a lower tax rate than the guy outside with the earmuffs on and the jumpsuit stuffing the luggage in the hold. The guy in the private jet is paying a lower tax rate than the guy outside working day-to-day and putting his luggage in the hold. The guy being driven around in his car is paying a lower tax rate than the man behind the wheel who is driving him around. Who is the biggest, best, most prominent capitalist in America? I would submit that it is Warren Buffett. Warren Buffett is a legendary investor, a spectacular investor. He is one of the great success stories of American capitalism. He has come to lobby us about this issue. He has come to lobby us about the fact that he pays a lower tax rate than his secretary. He has come to lobby us about it because it is wrong, because he finds it embarrassing that, in a country like ours, somebody who has been as successful as he has, who has received such remarkable benefit from his talent and his energy, ends up paying a lower tax rate than the secretary who does his mail and takes his phone calls. He knows that is wrong and we should know that is wrong. We could have corrected that. That was one of the ways that the benefits for regular working folks in this bill could have been paid for. That is who won and that is who lost: Dan and Bill and Nancy lost. Tonight when they get word about this they are going to sit in their homes and they are going to worry. They are going to be anxious. They are going to be heartsick. They are going to be looking at a future that is filled with uncertainty. Our friends on the other side will say no, once they get off unemployment insurance that is just a spur, that is an incentive to get out and find a job; get off the dole and get back out in the workforce. Not in Rhode Island, not with a 12.3-percent unemployment rate. At a rate like that Dan, Bill, Nancy--the three of them might go out looking for a job, but there will only be one for the three. These are people who have been looking for work for over a year. These are people who have had a lifetime of work experience. These are people who want to be back to work. Their character, their sense of self is that they are people who work and support themselves. They want to be back to work. The argument that they are going to fritter away their time on unemployment insurance until it ends and then they will get serious and get back to work is nonsense. It is nonsense. The suffering they are going to face as a result of this is real. Those are the people in the column who lost today. In the column of the people who won is Warren Buffett. Based on what he said when he has come here to lobby us, I will bet you dollars against Dunkin' Donuts that he is embarrassed to be in the winners column. But he knows that it is not right, in this great country of ours, for the people who have been most successful, who have earned financial rewards beyond what ordinary people can dream of, to be able to pay a lower tax rate than the regular working people who come to their offices everyday and serve in their businesses. It is wrong. It is topsy-turvy. I cannot tell you how discouraging a day it is. First in the real regular world you would have thought we had won today, 57 votes to 41. But, no, there is this procedural trick. So because we did not get to 60, we lost. Because we lost, Dan and Bill and Nancy lost. And the wealthiest people in our country won in a way that embarrasses probably America's greatest capitalist, Warren Buffett. I see the majority leader is on the floor. I will inquire to see if the majority leader desires the floor? If so, I will gladly yield. I yield the floor.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I wish to say a few words about an amendment I had offered to the original tax extenders bill as No. 4324, which has also been offered as an amendment to the current package. It very much appears that in the crucible of the pressures the bill has had to go through in order to get to its present status, this amendment will not succeed. The chairman of the Finance Committee is on the Senate floor. I thank him for his persistent efforts to try to get it into the agreed package and for his patience with my even more persistent efforts to try to get it into the agreed package. It is a bipartisan amendment. I thank the five Republican colleagues who cosponsored it. I particularly thank Senator Sessions, who is the ranking member on the Judiciary Committee. He was an early, initial cosponsor. We introduced it together in the Judiciary Committee. It passed out of the committee uneventfully. It was a pleasure to work with Senator Sessions. I was delighted he was willing to not only support it as a bill on the Senate floor but also to cosponsor it as an amendment to this tax extenders package. I extend a particular appreciation to him and to his staff for working with us on this legislation. Let me say briefly what it is about. If you are an American business and you are doing business in a different State, in a State in which you are incorporated and domiciled, you would ordinarily have to file an agent for service of process in that State so that if your conduct or product injures somebody in that State, service can be achieved in the place of the injury. We have a world economy, and we are undoubtedly the world's greatest importer of goods. Some of these goods are harmful. Most of them are good for Americans, good for the economy, good for our consumers, but some are not. The wallboard that came from China filled with sulfur so that when it was installed in houses, the sulfur leached, corroded piping, made the occupants unhealthy, required a complete stripout and rebuild not only of the walls but also of plumbing and other fixtures and air-conditioning--that was a disastrous imported product. Toys with lead that children could absorb: We all know what damage lead will do to developing brains of young children, particularly Chinese toys with lead in them. Pharmaceutical products with unacceptable chemicals added to them: There have been a lot of products that have come in from overseas and have harmed Americans. If you are a big, legitimate foreign manufacturer, you probably have an office here. If somebody is hurt, it is not too hard for the person representing you to find the office and file suit and seek recovery for whatever injury was sustained. Many foreign manufacturers even have manufacturing facilities in this country. That makes it very easy to locate them. But some do not. Some live in a shadowy world where they send their products into the United States, get the money out, but when their defective product injures an American, trying to find them is like trying to grasp a handful of fog. They have disappeared, and they hide behind complicated international treaties and foreign laws in their home countries, making both service of process, getting the papers on the lawsuit to them, and actually getting your hands on them legally under our due process--long-arm statutes--is very challenging and difficult. We heard from people who spent literally tens of thousands of dollars trying to have their pleadings translated into a foreign language, work their way through all the complex ministries in the foreign country, all trying to find a company that, in many cases, simply reforms itself in a new corporate form and leaves them with nothing at the end of the chase. When that happens, it is a very unfortunate result for American people, and it is a very unfortunate result for American businesses. The unfortunate result for American people is that somebody who was injured, whose child was lead-poisoned, for instance, has no one from which to seek recovery, and they lose the opportunity we ordinarily enjoy as Americans when we are injured by a product to get compensation for the injury. It is the family who gets hurt in that circumstance. That is one way it is bad. The other way it is bad is because commerce is often a chain. When the wrongdoing foreign manufacturer disappears, the other folks who are still in the chain are still around to be sued. Under our theory of joint and several liability, the American company has to pick up the liability for the foreign company that absconded after it created the injury. We had a very good example in our committee of an Alabama contractor who had a very good reputation, who built developments and homes. He got caught with this Chinese drywall. There was no Chinese drywall manufacturer to sue, but both for purposes of protecting his own reputation with the people for whom he had built these houses and because the liability now fell on him as the joint and several liability party, he had to go in and clean it all up. He had to put up the people who were living in these houses. He had to rebuild their air-conditioning systems and their plumbing systems. He had to strip out all the drywall and rebuild it all back. It was an immense expense, and it fell on the American company because the Chinese company had absconded and was not amenable to service and, consequently, to our laws. The very simple premise of this bill is, if you are a foreign manufacturer that exports goods into the United States of America, with your export has to come an agent for service of process. You have to file agent of service for process. When that Chinese drywall, when that defective pharmaceutical, when that lead-poisoned toy hits an American consumer, hits an American home, hits an American family, they can go to that agent for service of process and find the wrongdoer, and they are amenable to justice in our courts. It is from a competitiveness point of view wrong that foreign manufacturers should be able to underprice American companies because they know they can dodge liability, dodge the consequences for their actions, and have an American company have to charge more, knowing they have to bear that liability. Setting aside the whole public safety and consumer protection piece, it is a systemic disadvantage to American industry to not fill this loophole and make our workers' international competitors hit the same bar that American companies have to hit in terms of being available for suit when their products create an injury. Obviously, the tax extenders legislation has not proven to be the vehicle for this legislation. My contention for my colleagues is that because this is a bipartisan bill, because Senator Sessions and I worked so hard on it, because all of the initial concerns that were raised by the U.S. Chamber of Commerce have been cleared and it is now good to go with the Chamber of Commerce--which I know has a significant voice in the views of my colleagues on the other side of the aisle--and because this is a simple mechanism that will treat foreign companies no differently than American companies are treated and put them on a level playing field and protect American jobs, as well as consumers, I look forward to continuing to pursue this legislation and look for further opportunities and further vehicles to find a way to remedy what is now an unjust situation for American consumers, an anticompetitive and unfair situation for American businesses, and a tilted situation against America's interests for the American economy. I thank again the distinguished chairman of the Finance Committee who I know is supportive of our efforts. As I said at the outset, the intensity of the crucible of the negotiations that finally appears to be moving this tax extenders bill forward in an unfortunately diminished way, but in the best way we have been able to do it, did not permit this particular amendment to proceed. But it was not for his lack of effort. I appreciate his courtesy with my persistent lobbying and his support. I yield the floor.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that we continue in morning business and that Senator Brown of Ohio and myself be allowed to engage in a colloquy for the next 15 minutes.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, let me thank the Senator from Maryland for his comments about the Ledbetter decision. What we are gathering on the floor today to discuss is whether American corporations are getting something more than a fair shake from Republican appointees on the Supreme Court, whether there is a bit of a systemic lean in favor of corporate interests on the part of those judges to the point where we really now need to call that out because it is beyond what statistics could possibly justify. Certainly, the Ledbetter decision helps prove that point. We have at a company a woman who does not know she is being discriminated against; that for the same work as her male colleagues, she is being paid less. She has no way to know that. She does not know that. The fact that she does not know that is held against her rather than against the company which discriminated against her. The company was able to get off scot- free for all those months and years of discrimination before she found out what they were doing to her. The law did not require that particular answer. As the dissenting Justices pointed out, it was, in fact, the wrong answer. But it certainly served the interests of corporations across America to limit their liability when they discriminate against their employees. The case I wish to talk about is the Exxon decision where the Supreme Court threw out a jury verdict after the Exxon Valdez oilspill, a jury verdict for punitive damages in the amount of $5 billion. Sounds like a lot of money. It is a lot of money, but at the time, it was just 1 year of profits for Exxon. Remember what they did in this case. They took this gigantic tanker, the Exxon Valdez, and they allowed the captain, a known alcoholic, to get on board drunk, to continue drinking heavily while on board, and to steer the Valdez aground in Prince William Sound, creating what was then, in 1989, the biggest oilspill in American history. Prince William Sound is still recovering from that. Our colleagues from Alaska will tell us that one can still pick up rocks on the seashore and see the oil on the underside of the rocks. We all remember the images we first saw there--and are now seeing tragically echoed in the gulf--of birds, marine mammals covered in oil, poisoned by oil, dying on the shores and beaches or, if they can be found, being recovered by human volunteers who try to clean them up and save their lives. It was a very significant error by Exxon. Everybody knows corporations are all about their bottom line. That is not me saying that; that is the law of corporations. They actually have a duty, a legal duty to their shareholders to maximize their economic self-interest. It is what they do. It is why they were set up. It makes them a very important economic engine for society. But it does mean we have to control that motivation through the law. One of the ways we control that motivation through the law is with punitive damages-- punitive damages assessed through the jury. Let me say a quick word about the jury. The jury is an American institution of government. It is mentioned three times in the Constitution and Bill of Rights. It is there for a reason. It is there for a very important reason. When de Tocqueville wrote ``Democracy in America,'' he wrote about the jury that it is ``an institution of the sovereignty of the people.'' He wrote that in a chapter whose heading was about protecting against the tyranny of the majority. The Founding Fathers saw it that way because they saw corrupt colonial Governors. They saw legislatures that had panicked in that period between independence and the Constitution. Remember Thomas Jefferson talking about the Virginia Legislature, saying: We have turned out 1 tyrant, and now we have 270 tyrants--or whatever the number was--of the Virginia Assembly. They had to go back, and Madison had to rethink the balance of powers. They adopted what is now the American system of government. They had an experience that there needed to be a place where one could go to get a clean decision from a jury of one's peers. And it didn't matter who the Governor was, who the general assembly was, what the power structure was; there was some place in American Government where power did not count, where the powerful and the powerless had the same shot. That is why it is in the Constitution. That is why it is described as a mode of the sovereignty of the people. When the Supreme Court takes away from the jury what seems to me to be a reasonable punitive damage assessment--if they had really been whacked for $5 billion, who knows what message that might have sent through the oil industry. Conceivably, it might have prevented the oilspill in the gulf if it really rattled their cages enough. But, no, it interfered with the predictability corporations want. So the Supreme Court threw out the $5 billion punitive damage assessment--just 1 year's profit for that company--and knocked it down 90 percent. They adopted a rule that it couldn't be more than one-to-one with damages. It is not in the Constitution. It is not statutory. They just decided that the interests of corporations in predictability were so important that paying back Alaskans for the damage done and putting a punitive assessment on top of it that would prevent this from happening again was less important. Predictability was more important; deterring misconduct was less important. That is a value judgment. It is a value judgment these Justices bring to this Court. Jeffrey Toobin is an authoritative writer about the Supreme Court. He studies it carefully. He tracks it carefully. Here is what he wrote last year about our Chief Justice: In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests and reflected the values of the contemporary Republican Party. Remember, this is the one who, when being confirmed, said he was only going to call balls and strikes, as if that was even an apt metaphor. Well, it seems that the strike zone for individual plaintiffs is a lot smaller in this Court than the strike zone for the big corporations. I will pick out a part of the sentence: In every major case since he became the Nation's seventeenth Chief Justice, Roberts has sided with the corporate defendant over the individual plaintiff. That is as of May 25, 2009. If you take a look at the decision that came down today in Rent-A- Center v. Jackson, an employee challenges a contract saying, Wait a minute. I should not have to be a party to that contract because the circumstances that caused me to enter into that contract were unconscionable. I should be protected from that contract because it was unconscionable to force me to sign it. The contract requires that you go and arbitrate instead of having access to--guess what--the jury. The Supreme Court said the decision over whether it is unconscionable should go to the arbitrator. You wouldn't even be at the arbitrator if the contract weren't valid. It is topsy-turvy logic. But, once again, it reflects the fact that the strike zone for corporations is a lot bigger with the Republican appointees of this Court than the strike zone for regular people. I see Senator Franken from Minnesota here waiting to speak, and I will yield the floor so he may do so. As we face this question of Elena Kagan's nomination to the Supreme Court, we need to be clear that when the opponents talk about rule of law, when they talk about not having activist judges, when they talk about making sure corporations get a fair shake, there is actually a little bit more going on here. There is a little bit more going on here, and what is going on here is that over and over and over again the Republican appointees to the U.S. Supreme Court, when they have the chance, will rule in favor of the corporation and against the individual defendant. It is not surprising, since the Republicans are the party of the corporations, that the judges they appoint want to help the corporations. We should not forget that fact as we look at a nominee who will hold the strike zone the same; who won't give that benefit any longer to the corporations that now, apparently, are beginning to feel they are entitled to at the U.S. Supreme Court. I yield the floor.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, Senator Brown and I have come to the floor today to talk about the estate tax. Today's discussion was prompted by a recent New York Times report that an estate of a Texas natural gas tycoon--Mr. Duncan of Houston--is worth $9 billion. That is a nine with nine zeros after it. It is a big number, and it is going to go without tax to his heirs. Without any tax at all. It is hard to know what his tax planning is, but if the ordinary rates applied, the tax that would be paid by this estate might be as much as $4 billion. I think it is important to put that in counterpoint with the discussion we have been having on the floor today, where our friends on the other side of the aisle are blocking unemployment insurance for Americans who, through no fault of their own, lost their jobs. Because of what Wall Street did to wipe out the economy, they are out there on their own. They can't find work. In Rhode Island, we have 70,000 people unemployed in our small State. Our unemployment rate is 12.3 percent. And if you don't have unemployment insurance to protect you at a time such as that, you are stuck. Unemployment insurance goes to pay for food. It goes to pay for gas in the tank, to look for the next job. It goes to pay for shoes for your children. It goes to pay for clothing and rent and heat or electricity--all the basics. They are blocking it. They are blocking it because it is not paid for, as if this were not an emergency. But they are perfectly happy--in fact, we haven't heard a peep out of them--with the Duncan estate going tax free to his heirs. I don't know how many of them there are, but if there are any less than nine, they all just became billionaires, tax free. That is the kind of contrast that is so remarkable about this building. We have an entire party that is dedicated to preventing working people, who have lost their jobs through no fault of their own as a result of this economic meltdown, from getting unemployment insurance, and that has actually already expired and we are trying to backfill it for that period, but they are completely satisfied with an oil tycoon worth $9 billion having his estate go completely tax free to his heirs. That situation is happening because of a glitch in the Tax Code that we could not fix. It is part of the Bush tax cuts having run to their conclusion. The estate tax goes back to 1789 in its first incarnation. It has been permanent since 1916. John D. Rockefeller paid estate taxes in 1937 when he died. He was taxed at a 70-percent rate. Today, we are having a debate about whether we should continue at a rate of only 45 percent. The Duncan estate went through at zero percent. This cut, which took $4 billion out of the economy to pay this one family with a tax-free estate, was pushed through by the Republicans using reconciliation. If you have been listening on the floor, you have heard a lot of critique about what a terrible procedure reconciliation is when it is used to do anything to help regular Americans. But when it comes to cutting the estate tax so that the Duncan family can have a $9 billion estate pass tax free, well, that is a perfectly fine use of reconciliation, according to our Republican friends. At this point, at exemption levels of $3.5 million per individual, $7 million per couple, only a few thousand estates each year pay any estate tax at all. It is a tax that only hits not the rich but the superrich--the billionaires, such as the Duncan family. And while we are in this period of economic turmoil, while we are in this period where one party is trying to keep regular workers from getting access to unemployment insurance in the middle of this economic disaster, they are all for an unpaid-for zeroing out of the estate tax so that a $9 billion estate passes completely tax free. I think that is wrong. I think it shows priorities that are completely topsy-turvy--completely upside-down. I know that Senator Brown wanted to join me, and I have gone on for a bit, so I will quiet down for a second so he can be heard. But it is immensely frustrating that that is the priority around here--let the working family lose the basic paycheck that holds the family together but have the billionaires get $9 billion tax free.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I am delighted to be here with Senator Stabenow. I know from the experience of Rhode Island how difficult things are in Michigan. I have seen over and over the passion and energy with which she comes to the floor to argue on behalf of the people of Michigan. I join her this evening on behalf of the people of Rhode Island. The unemployment insurance obstruction we are getting is simply cruel under the circumstances in Rhode Island. I know my friends on the Republican side like to argue that if we cut off people's unemployment insurance, that will motivate them to get back out there in the workforce where they should be, as if they were just idling around, as if they were not out looking for work. In Rhode Island, we are at 12.3 percent unemployment. We have been the third or fourth highest unemployment State in the country for months and months now. This is not some sudden glitch in the accounting. This is a persistent economic nightmare in Rhode Island. We have been 15 straight months--more than a year--with double-digit unemployment. If we go back to 8 percent unemployment, we go back 22 months, nearly 2 years. This is a persistent problem. The notion that we will cut off somebody's unemployment insurance and have them go out and find a job is plain nuts in a State such as Rhode Island or a State such as Michigan, because the job just isn't there to be found. As Senator Stabenow said about Michigan, her folks are hard workers. Rhode Islanders are hard workers. We have a tradition of working hard in a whole variety of industries. There aren't a lot of people lying around enjoying the luxury of unemployment insurance payments. They want to be out getting work. Unemployment insurance payments let them search for work and feed their family, pay the rent, put gas in the car, buy shoes for the kids, put food on the table, all in the meantime. Our colleagues want to take that away. Let's scroll back for a minute to why we are here in the first place. We are here in the first place because the people who were supposed to be regulating Wall Street were asleep at the switch. The people who were supposed to be regulating Wall Street were asleep at the switch because they were told to be asleep at the switch. It is the Republican theory of governance that regulation should have a light hand and that corporations know better and should really run the show. So the folks who were supposed to be regulating Wall Street were the captives of the big Wall Street financiers. They took all the breaks off. They let them run with crazy leverage ratios, new instruments such as derivatives and collateralized debt obligations, and they went right to sleep, the way they were supposed to. The result was a catastrophic Wall Street meltdown that could have been prevented if there had been a different theory of governance and not the theory of governance that we let the corporations run the show and that is the best thing for Americans. But that is what happened. They let the corporations run the show. That theory of governance prevailed. There was a massive meltdown. That massive meltdown sent a tsunami of misery across this country into places miles from Wall Street, completely different from Wall Street, including States such as Rhode Island and Michigan. We have 71,000 people unemployed in my little State of Rhode Island. Those people need to get unemployment insurance while the economy recovers. We are not a 4-percent unemployment State or a 6-percent unemployment State. We are not even an 8-percent unemployment State. We are over 12 percent unemployment. There is not a job for these people. To take away the bread and butter, to take basic sustenance off the table is, frankly, unfair. We have even tried to get an extra 25 bucks added to the benefit. Republicans have objected to that. Mr. President, 25 bucks does not seem like much, and indeed it is not much, but if you are just getting by with unemployment insurance because your State has been in recession for so long, as ours has, that extra 25 bucks is a meal the family does not have to skip; that is a trip to the doctor they do not have to duck because they cannot afford the copay; it is an important little thing; and it is just symbolic of the attitude on the other side of the aisle that: Sorry, not interested. Tough bounce. We don't care. We were on the floor earlier talking about how when it is a $9 billion family and there is no estate tax on that because of the way the Republicans have driven this and $4 billion in revenue is lost to the government as a result of this colossal estate being exempted from the estate tax, that is OK. But when it is 25 bucks for a working family to buy a pair of shoes for their daughter, no, that is too much. Now we have to get serious about the recession. Now we have to get serious about the debt. But when it is a $9 billion family with a huge estate, no, different rules apply when it is very rich people. Well, I am here for people like Dan of East Greenwich. He worked in sales. He has been unemployed since April 2009. His wife is disabled. He is out looking for work, but the jobs are not there, and he has not been able to find one. If he loses his unemployment insurance, Dan has let us know he will be evicted from their apartment. He and his disabled wife will be evicted from their apartment. That should not be happening. That is just bluntly wrong. Bill of North Kingstown contacted me. He is 56 years old. He has been unemployed since January of 2009. He used to work in engineering. He has now been faced twice with eviction when the unemployment insurance has lapsed, and he is looking at eviction again. It is staring him in the face if we do not act. He has received only $200 over the last 3- week period as his benefits have expired, and he has lost his COBRA benefits, but he needs medication. So he is stuck because we have not acted. Nancy, from Portsmouth, is 59 years old. She has been unemployed for 21 months. She has a bachelor's degree. She has a whole variety of industry certifications. She has a background in sales and marketing. She is a talented woman who has worked all her life. Until she got swamped by the tsunami of misery that originated on Wall Street and has washed through all of our States, she was fine. But now, after 15 years of working in insurance, she cannot find a job, and she will soon lose her unemployment insurance benefits as the Republicans continue to block the extension. So I would urge them to reconsider. I understand the point about the debt and the deficit and the spending. But, to me, that does not have an enormous amount of credibility because when President Clinton left office, he left an annual surplus and he left a budget trajectory that the nonpartisan Congressional Budget Office said was going to have us be a debt-free nation by 2008, I believe it was--a debt-free nation. On the day George Bush was sworn into office, we were on a trajectory to be a debt-free nation during his term. There was even discussion in economic texts about whether that was really a good idea. He solved that; at the end of his term, we were $9 trillion in debt. We were not debt free. He were $9 trillion in debt, and we had this economic meltdown that required government intervention to protect people, and that made it even bigger. But we would have none of this if it had not been for the Republican debt orgy they went through--fair-weather debt, I would add, an orgy of fair-weather debt--and then a huge hole because of their theory of governance and their theory of economics that has had to be filled in because of that tsunami of misery. That is why we are here. So it is a little late in the game and a little disingenuous to hear lectures from that side of the aisle about economic sobriety after that wild spending through those Bush years and the cleanup we have had to do since then. And these guys who are out of work and who need the help--folks such as Ron, Bill, Dan, and Nancy--should not be paying the price. We should take care of the people who are out of work through no fault of their own. I thank Senator Stabenow. I yield the floor.