Executive Session

Floor Speech

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Mr. DURBIN. Mr. President, I wish to say that the comments made by the Democratic leader, the Senator from New York, really touched me because they go to the heart of this institution.

It was only a few weeks ago, in a dramatic moment, when Senator John McCain returned from Arizona to come to the floor of the Senate and cast a historic vote to move forward on the debate on healthcare. He asked for 15 minutes after that vote to say a few words about his experience as a person and his observations as a Senator, and I stayed in my chair because I wanted to hear him.

John McCain came to the House of Representatives the same year I was elected. Our careers have at least been close or parallel in some respects, though I couldn't hold a candle to him in terms of his personal life experience and his experience in the military, as well as being a candidate for even higher office.

I listened carefully as he reminded us of what it takes for the Senate to work. What it takes, of course, is the determination of both political parties to solve a problem. He reminded us that means sitting down in committee, with experts, working through some of these issues, particularly the more complex issues--the give-and-take of the legislative process.

He pointed specifically to the effort to repeal ObamaCare as a failure by those standards. He used as an example the fact that ObamaCare, during the period of Republicans' efforts to repeal, was actually gaining popularity in this country--exactly the opposite of what the other party might have expected. It was an indication to him that we needed to do things better in Senate. Just a few days later, he cast a critical vote to stop what was a flawed process on the Republican side--to repeal ObamaCare without a good alternative, without a good substitute.

I remember that vote early in the morning, right here in the well of the Chamber, and I remember what followed when I saw Senator Lamar Alexander and Senator Murray behind me in front of the cloakroom in a bit of a huddle after that historic vote. I later learned that they had decided it was their turn to step up on a bipartisan basis and find a way to strengthen our healthcare system, not what we had just seen but a different way--a way that kind of relied on experts at State levels to give us advice and experts in Washington to really cull through the ideas to find the very best. They invited other Members of the Senate to join them, even those of us not on the committee.

Senator Alexander and Senator Murray have had several meetings, which I have attended and which were very productive meetings--bipartisan gatherings over coffee and donuts with insurance commissioners from States all across the Nation, commissioners from both political parties, bipartisan meetings of Governors from States all across the United States. They were basically sitting down and saying: What can we do now? What can we all agree to do, regardless of party, that will reduce the increasing costs of health insurance premiums, provide coverage for more people, and provide better healthcare--quality care? It was a good-faith effort, and it was encouraging, after 7 wasted months of political debate on the floor of the Senate.

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I went to those meetings and came away feeling very positive. It was clear that some very basic ideas were emerging from all over the United States. One of the ideas was cost-sharing reduction so that health insurance companies that took on sicker, older patients and had worse loss experiences would be able to be compensated so they could reduce premium costs, bring the cost of health insurance down, and make sure more people had it available.

Another proposal was reinsurance. That is the same basic idea. Let's find a way to make the increase in health insurance premiums slow down.

I remember the commissioner from the State of South Carolina, a Republican, who said that his experience was that in the next year, health insurance premiums in the individual marketplace were going up 30 percent.
He said that, if you bring in the cost-sharing reductions, which the Federal Government can do, it would only be 10 percent. Ten percent is bad enough. Thirty percent is painful.

Here is something we can do on a bipartisan basis to reduce the cost of health insurance premiums. It struck me as obvious that this is what we should be doing as the Senate.

I applauded Senator Alexander personally and publicly, and Senator Murray, as well, for doing what the Senate was supposed to do. Little did I know that at the same time they were making this bipartisan effort, there was another Republican effort under way to derail them, to stop them, to end the bipartisan conversation that was under way in the HELP Committee.

The Cassidy-Graham proposal, which may come to the floor as early as next week, is an effort to repeal ObamaCare, but it is a flawed effort.

Earlier this morning, the Republican leader came to the floor and spoke of the debate that we have had over and over about what we are going to do in the future, and he talked about the failed ideas of the past. I can tell you that the Cassidy-Graham proposal is a return to failed ideas--ideas rejected once by the Senate but certainly by the American people.

In this morning's Chicago Tribune, one of the business writers, Michael Hiltzik, wrote an article entitled ``The GOP's last-ditch ObamaCare repeal bill may be the worst one yet.''

Mr. President, I ask unanimous consent to have printed in the Record this article in its entirety.
There being no objection, the material was ordered to be printed in the Record, as follows:

[From the Chicago Tribune, Sept. 16, 2017]

The GOP's Last-Ditch Obamacare Repeal Bill May Be the Worst One Yet

(By Michael Hiltzik)

The Republican effort to repeal the Affordable Care Act is back, a zombie again on the march weeks after it was declared dead. The newest incarnation is Cassidy-Graham, named after chief sponsors Bill Cassidy of Louisiana and Lindsey Graham of South Carolina.

Compared with its predecessors, the bill would increase the ranks of America's medically uninsured more--by millions of people--cost state governments billions more and pave the way for the elimination of all protection for those with preexisting medical conditions.

Among the biggest losers of federal funding would be the states that had the foresight to expand Medicaid under the Affordable Care Act and the resolve to reach out to lower- income residents to get them coverage; they'd be punished with draconian cuts in healthcare funding. Among the big winners would be states that have done nothing of the kind for their residents--refusing the Medicaid expansion and interfering with outreach efforts. They'd be rewarded for their stupidity and inhumanity with an increase in federal funds.
Over the last week or so, reviews of the measure have been pouring in from healthcare experts, and they're almost unanimously negative. Major health provider and consumer organizations have turned thumbs down, as have analysts looking at its economic effects.

Fitch Ratings, which keeps an eagle eye on the fiscal condition of states issuing bonds, judges Cassidy-Graham ``more disruptive for most states than prior Republican efforts.'' Fitch finds that ``states that expanded Medicaid access to the newly eligible population under the Affordable Care Act (ACA) are particularly at risk under this latest bill.''

The bill surfaced just as the political tide seemed to be shifting away from the GOP campaign to roll back the gains in health coverage experienced by Americans over the last seven years under the Affordable Care Act. Democrats are coalescing around universal health coverage--``single-payer,'' as it's typically termed--teeing up the issue for the 2018 election.

It's notable that the rise in public support for this approach, at least in the abstract, has coincided with the GOP's so-far unsuccessful repeal effort. The emergence of the new bill also comes as other Republicans are scheduling hearings and reaching across the partisan aisle to craft a sensible plan to shore up the Affordable Care Act marketplace.

Despite those drawbacks, Cassidy, Graham and their co- sponsors are trying to push the measure through by Sept 30, the last day it could be passed with only 50 votes (plus a tie-breaker cast by Vice President Mike Pence) under Senate reconciliation rules. After that, it would need a filibuster- proof count of 60 votes, meaning it could--and presumably would--be blocked by Democrats. The deadline places more pressure on the Congressional Budget Office, which must analyze the bill before it can come to a vote, to move fast.

In recent days, the sponsors have claimed that their vote count is edging toward 50. But Sen. Rand Paul (R-Ky.) has stated that he's a ``no,'' since the bill isn't conservative enough for his taste. Sen. Susan Collins (R-Maine), whose ``no'' vote helped to scuttle the last repeal effort in July, isn't expected to change her mind on this one. Sen. Lisa Murkowski (R-Alaska), who also voted it down, hasn't been quoted on her position, but there don't seem to be compelling reasons for her to shift to the ``yes'' column now. The position of Sen. John McCain (R-Ariz.), who also voted against the last bill, isn't clear, but he's a close friend and frequent ally of Graham's. In any event, the backers still seem to be a vote or two short.

Those are the procedural issues. Now let's turn to the text, and the issue of why anyone would think Cassidy-Graham would improve America's healthcare system.

In broad terms, the measure would terminate the Affordable Care Act's Medicaid expansion, premium and cost-sharing reduction subsidies, tax credits for small businesses, and a host of other pro-consumer provisions by 2020. It would eliminate the act's individual and employer mandates retroactive to Dec. 31, 2015.

The bill provides for no replacement of these provisions, beyond a capped block grant to states. In effect, it's a repeal-and-no-replace bill. The Congressional Budget Office, as it happens, analyzed that approach in July in connection with a different bill. It found that by 2026 the number of uninsured Americans would increase by 32 million, compared with under current law. That's about 50% more people uninsured than it estimated for other Republican repeal-and- replace measures, which the budget office said would cut enrollments by 20 million to 22 million.

The block grant to states, which Cassidy and Graham portray as one of their bill's chief virtues, is in fact a poisoned chalice any governor would be a fool to accept. The proposal, Cassidy said in unveiling the bill, ``gives states significant latitude over how the dollars are used to best take care of the unique healthcare needs of the patients in each state.'' That papers over its significant drawbacks.

By their nature, when block grants are proposed to replace existing programs, they're almost always back-door mechanisms to reduce federal spending. That's the case here. The Cassidy-Graham block grants would replace the money now being spent on Medicaid expansion and the premium and cost-sharing subsidies, and a couple of other spending provisions. But the existing spending is pegged to demand--Medicaid funding adjusts automatically to enrollment and the medical needs of the enrollees, and the subsidies are pegged to enrollee incomes and the premiums charged by insurers for benchmark Obamacare plans.

Block grants would be fixed, changing only according to a complex formula. And that formula would be ``insufficient to maintain coverage levels equivalent to the ACA,'' the Center on Budget and Policy Priorities calculated last week. Between 2020 and 2026, the center reckoned, the grant would provide $239 billion less than projected federal spending for the existing Medicaid expansion and subsidies. In 2026 alone, the shortfall in Medicaid and subsidy funds together would total $80 billion.

What's worse is that the grant would be unable to respond to real-world conditions. Consider how healthcare costs are likely to rise in Texas and Florida in response to this summer's floods, which drove thousands of residents out of their homes and increased the threat of water-borne disease.

They'd get no help from the block-grant formula. To provide needed care to their residents under Medicaid or any other state programs, they'd have no choice other than to limit enrollments, cut benefits, charge higher premiums or co-pays, or drain funds from other federally funded programs.

As set forth in the bill, the formula would ``over time move money away from states, predominantly Democratic, that have expanded Medicaid and aggressively pursued enrolling their lower income populations in Medicaid and exchange coverage,'' observes healthcare expert Timothy S. Jost.

``Money would move toward states, predominantly Republican, that have not expanded Medicaid.'' Some Medicaid expansion states would lose as much as 60% of what they would be due under current law. According to the numbers crunched by the Center on Budget and Policy Priorities, among the states that went all-in on Obamacare, including expanding Medicaid and mounting aggressive enrollment support

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for the marketplaces, California would get $27.8 billion less in federal funding in 2026, New York $18.9 billion less, and Massachusetts $5.1 billion less.

States that shunned the Affordable Care Act would make out like bandits: Texas, which showed absolutely no regard for its ACA-eligible population, would get $8.2 billion more in 2026, and Mississippi, another black hole for healthcare reform, would get $1.4 billion more. This is how carrot-and- stick approaches to healthcare reform work--in the Bizarro world. (Apologies to Jerry Seinfeld.) In any case, all the federal funding would disappear after 2026, According to Fitch, ``over time even non-expansion states will face budgetary challenges given the proposed changes to Medicaid, which will likely accelerate for all states over time.'' Another provision of Cassidy-Graham that is significantly worse than its predecessors is the latitude it gives states to eviscerate consumer-protection rules in the Affordable Care Act. The bill would allow states to request waivers from the federal government allowing them to nullify the act's requirement that all policies include 10 essential health benefits, including maternity care, hospitalization, mental health and substance abuse treatment, and prescription coverage. This is an invitation to states to allow insurers to market junk insurance to their residents.

The states could also request waivers of the act's all- important protections for people with preexisting medical conditions. The law forbids insurers to charge anyone more based on their medical condition or history, except for a modest increase in premiums based on age and a surcharge for smokers. Previous GOP repeal bills have substituted a ``continuous coverage'' provision, which protects applicants who haven't let their coverage lapse for a month or two from being surcharged when they renew.

Cassidy-Graham throws out that protection. It would allow states to request a waiver allowing insurers to charge more ``as a condition of enrollment or continued enrollment . . .
on the basis of any health status-related factor.'' Translation: Under such a waiver, insurers could check applicants' health or medical histories before setting premiums--even for renewals.

Finally, there's that crucial Republican litmus test-- abortion. The bill bars any insurance policy receiving federal funds--that is, a policy whose enrollees get subsidies or that is subject to payments under the Affordable Care Act's reinsurance rule--from offering coverage for abortions except when the mother's life is in jeopardy or in cases of rape or incest.

Remarkably, this bill's sponsors are pitching it as a moderate, common-sense alternative to its predecessors. They may also be hoping that opposition fatigue has set in, and that they'll be able to steamroll the measure through while the public is distracted by other issues. As with other repeal efforts, this one is being brought out without a minute of hearings.

Cassidy asserts that this measure is a blow for equality.

The measure ``treats all Americans the same no matter where they live.'' He's right, in a way: It treats all Americans as potential victims of insurance company profiteering.

Mr. DURBIN. Let me quote a few sentences from this article because I think they make the case dramatically about how bad the Cassidy-Graham substitute would be. Here is what he said:

Compared with its predecessors, the bill would increase the ranks of America's medically uninsured more--by millions of people--cost state governments billions more and pave the way for the elimination of all protection for those with preexisting medical conditions.

He goes on to say:

Among the biggest losers of federal funding would be the states that had the foresight to expand Medicaid under the Affordable Care Act and the resolve to reach out to lower- income residents [and provide health insurance] coverage.

He goes on to say that, under this Cassidy-Graham bill, ``they'd be punished with draconian cuts in healthcare funding.'' He goes on to write:

Among the big winners would be the states that have done nothing of the kind for their residents--refusing the Medicaid expansion and interfering with outreach efforts [to bring more people into health insurance coverage].

They would be rewarded, perversely, for doing the wrong thing.
He writes:

Over the last week or so, reviews of the measure have been pouring in from healthcare experts, and they're almost unanimously negative. Major health provider and consumer organizations have turned thumbs down, as have analysts looking at its economic effects.

He talks about the impact of this bill beyond increasing Federal funding for States that did not help their residents and cutting Federal funding for States that did. The bill provides no replacements for the tax credits available for small businesses and the subsidies for health insurance premiums currently in the law beyond a capped block grant to States.
He writes:

In effect, it's a repeal-and-no-replace bill. The Congressional Budget Office, as it happens, analyzed that approach in July in connection with a different bill. It found that by 2026 the number of uninsured Americans would increase by 32 million, compared with under current law.

That's about 50% more people uninsured than it estimated for other Republican repeal-and-replace measures, which the budget office said could cut enrollments by 20 million to 22 million.

Honestly, can my colleagues on the other side of the aisle in good conscience go home to their States and say: I voted to repeal ObamaCare and you are going to lose your health insurance as a result of it.
I can tell you what it means in my State. A million people would lose their health insurance because of this Republican repeal effort. I don't know how Members of Congress--House or Senate--from Illinois could in good conscience vote to take health insurance away from massive numbers of Americans.

We are blessed here. Those of us who serve in Congress have access to good health insurance. It is not cheap. It shouldn't be. But it is there. It is always there, and we don't have to worry about it. Some Members are wealthy enough that they take care of it in other ways. For most Members of Congress, we use the insurance marketplace and pay our share of the premiums. The government pays a share of it, just as it does for Federal employees.

We have access to health insurance. How then could we turn and say to the people we represent: I just voted for a bill to take away your access to health insurance.

That is what this Cassidy-Graham bill does. That to me is hard to imagine--that a Member can believe they were elected to the Senate for that purpose.

What does it do to the States with this capped block grant in terms of their loss of Federal funds? It is amazing. Some States would lose as much as 60 percent of what they currently receive under the current law.

According to the numbers crunched by the Center on Budget Policy Priorities, among the states that went all-in on Obamacare, including expanding Medicaid and mounting aggressive enrollment support for the marketplaces, California would get $27.8 billion less in federal funding in 2026, New York $18.9 billion less, and Massachusetts $5.1 billion less.

I looked at the list for my State of Illinois. It would lose $1.4 billion in Federal funding by 2026. Just to show the contrast, as for the State of Texas, which did not expand Medicaid and which did not cover low-income individuals with health insurance, what would the Cassidy-Graham bill do for the State of Texas? They wouldn't lose a penny. They would add in Federal funding $8,234 million.

They would be big winners because they turned their back on low- income individuals and didn't expand Medicaid or increase the number of enrollees. What a perverse incentive for Governors and governments on a State basis to turn down coverage knowing that at some point they will be rewarded for that approach.

Another provision of Cassidy-Graham that is significantly worse than its predecessors is the latitude it gives states to eviscerate consumer-protection rules in the Affordable Care Act.

One of the most important parts of the Affordable Care Act was a reform that said: If you are going to buy health insurance, it is going to be there when you need it. First, you will be able to buy it, even if you have someone in your family with a preexisting condition. That is one of the first casualties of Cassidy-Graham--going back to a failed idea in the past, which said if you have a sick baby or if you have a spouse who survived cancer, you either can't buy health insurance or you can't afford it. We got rid of that once and for all.
At least we thought we did. Cassidy-Graham brings it back to life. It says: Let the insurers decide if they want to cover you or not.

Another thing we said is that the disparity in premium costs between the most expensive policy and the least will be 3 to 1. Cassidy-Graham tosses it out and says it is 5 to 1. What it means--and AARP knows this better than any other organization--is that senior citizens are going to end up paying more for their health insurance under Cassidy-Graham than they currently do under the Affordable Care Act.

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When you look at the other protections that we built in to provide that your policy, when you bought it, would cover mental illness and substance abuse treatment, that is considered revolutionary but important. Finally, after all of these years in America, we are looking at mental illness as an illness rather than a curse. We are looking at it as something that can be successfully treated. Yet here comes Cassidy-Graham tossing out that requirement as well.

Let the insurers decide what they want to offer. I was talking to one of the Republican Senators the other day, and he said: Well, you know, some people just may not want to buy certain coverage.

I can understand that, but I can also understand the reality of life.

Who can predict that next year or next month you would learn that perhaps your high school daughter has been taking opioids and now is addicted to heroin? You didn't know it before, not when you bought your health insurance policy. Now that you know it, who is going to cover the substance abuse treatment?
Under the Affordable Care Act, it is built into your health insurance

policy. Under the Cassidy-Graham approach, it is an option. Try it if you like it. It doesn't work in a lot of circumstances. We buy insurance for things we pray will never happen, but we want to be covered in case they do. Cassidy-Graham walks away from that. They are for what they call ``flexibility.'' It is flexibility to buy insurance that isn't there when you really need it.

When you look at the litany of all of the States that are winners and losers under Cassidy-Graham, you have to shake your head. Why would we be richly rewarding States that have not done their part to expand Medicaid coverage? Why would we devastate the Medicaid Program, which is so important for so many people?

Medicaid is a program that many people didn't understand until we got into this debate, but it is a program that is essential if you have a disabled child.

A woman in Champaign, IL, with a young son in his twenties suffering from autism told me that without Medicaid coverage he would have to be institutionalized, and there is no way her family could afford it.
We know that Medicaid is there for that family and for many low- income families when it comes to pregnancies, to make sure that mom has a successful pregnancy and that the baby is born healthy and ready to thrive.

Is that an important asset? Of course it is, and it is an important element of Medicaid. The one thing that costs the most in Medicaid is something the Republicans don't want to acknowledge, and that is the fact that two out of three people in nursing homes--seniors who are under medical care--rely on Medicaid. Without that Medicaid assistance, who is going to pay that bill? The family reaching into their savings? Some can, but most will not be able to afford it.

How will the Republicans explain that away as just one of the benefits of flexibility--that Medicaid is not there when your parent or grandparent desperately needs it?

So now we have this debate before us, which will come up by the end of next week, and it is one that really will affect a lot of people across America. I, for one, will do everything I can to stop this. Any program that is going to take health insurance away from a million people in Illinois and up to 30 million nationwide is a bad start, a bad idea, a failed idea.

I yield the floor.

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Mr. DURBIN. Mr. President, I rise in opposition to the nomination of Noel Francisco to be the Solicitor General of the United States.

The Solicitor General--often called the ``tenth Justice''--argues on behalf of the United States in the Supreme Court. It is a critical position in our government, and it is critical that we have a Solicitor General with the independence to tell the President when the position he wants the United States to take before the Court is indefensible.

Mr. Francisco already had a troubling tenure as Acting Solicitor General earlier this year. He led the effort to defend the original version of the President's controversial travel ban. That Executive order was blocked repeatedly in Federal courts and was then withdrawn.

In defending this unconscionable order, Mr. Francisco argued that there should be no judicial review when a President makes decisions on immigration policy on the basis of his national security assessment.
The Ninth Circuit stated that ``there is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.'' If he is confirmed, Mr.
Francisco would likely be called upon again to defend President Trump's latest iteration of the travel ban when it is considered by the Supreme Court in October.

When he was under consideration by the Judiciary Committee, I asked Mr. Francisco many questions to give him the opportunity to show his independence from President Trump. For example, I asked him if he agreed with President Trump's absurd claim that 3 to 5 million people voted illegally in the 2016 election. He refused to answer the question.

I asked him if he believed it was appropriate for a President to ask an FBI Director to pledge loyalty to him. He declined to comment.

I also asked him about the Constitution's Emoluments Clause, which prohibits government officials from accepting gifts or benefits from foreign states without Congress's consent and which many legal scholars believe President Trump has violated. Mr. Francisco actually had written an opinion on the Emoluments Clause when he was in the Justice Department's Office of Legal Counsel. I asked him what he believed the Founding Fathers intended this clause to mean. His response? ``I do not have any well-formed views on the scope of the Emoluments Clause.'' It is puzzling that an originalist like Mr. Francisco would not comment on the original meaning of a constitutional provision, but he clammed up when it came to this particular clause which is directly relevant to President Trump's behavior.

While Mr. Francisco has been reluctant to demonstrate independence from President Trump, he has been willing at many points in his career to demonstrate loyalty to special interests. For example, Mr. Francisco gave a speech at the 2015 annual conference of the Community Financial Services Association, better known as the trade association for the payday lending industry. Here is what he said: ``The payday lending industry is facing the challenge of a lifetime. It is essential that, as an industry, you be prepared to respond on all fronts, and it has been my privilege to assist you in doing this over the last few years.

This includes the legislative front, the regulatory front, and--my favorite--the legal front.''
Let's be clear. We don't need a Solicitor General who thinks it is a privilege to assist payday lenders.
Mr. Francisco also was a prominent lawyer for the tobacco industry.

His advocacy on their behalf prompted a number of national antismoking and health organizations to call for Mr. Francisco to recuse himself from tobacco-related litigation matters if he were confirmed. I asked Mr. Francisco if he would commit to recuse himself from tobacco litigation, but he would not make that commitment.

Mr. Francisco has been eager to position himself alongside rightwing groups like the Federalist Society and the Heritage Foundation. He made this particularly clear at a speech he gave to the Heritage Foundation on May 19, 2016, when he said: ``We live in an era where our views, traditional views, are under constant attack. Our adversaries have not even really tried to beat us through the democratic processes, but instead go straight to the courts, where they often win not by asserting that our views are legally wrong, but that they are so fundamentally illegitimate that the Constitution prohibits them. And they now have an increasingly compliant Judiciary that agrees with their policy views and that is unconstrained by legal principle.'' This is a troubling characterization, to claim that people who do not share the views of the Heritage Foundation are ``our adversaries.'' It is just as troubling to claim that the Judiciary is acting ``unconstrained by legal principle'' whenever it disagrees with the views of the Heritage Foundation. Comments like this raise serious questions about the ideology Mr. Francisco would bring to the Solicitor General's office.
Make no mistake--President Trump is likely to keep the Supreme Court

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busy. It has never been more important to choose a Solicitor General who displays independent judgment and who is willing to say no if the views the President wants to execute are improper or unlawful. In my questions to him, I repeatedly gave Mr. Francisco the opportunity to display that independent judgment, but he did not do so, and what I have seen in his speeches and his advocacy concerns me.

In short, I do not believe Mr. Francisco has demonstrated that he can be the Solicitor General that our Nation needs. I will oppose his nomination.

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