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                           EXECUTIVE SESSION


                           EXECUTIVE CALENDAR

The PRESIDING OFFICER. Under the previous order, the Senate will proceed to executive session to resume consideration of the Rao nomination, which the clerk will report.

The bill clerk read the nomination of Neomi Rao, of the District of Columbia, to be Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget.

The PRESIDING OFFICER. The Senator from Florida. (The remarks of Mr. NELSON pertaining to the introduction of S. 1521 are printed in today's Record under “Statements on Introduced Bills and Joint Resolutions.”)

Mr. NELSON. I yield the floor.

I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The bill clerk proceeded to call the roll.

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 Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER (Mrs. Ernst). Without objection, it is so ordered. Healthcare Legislation

Mr. CORNYN. Madam President, I know we are all glad to be back in Washington, DC, at work after a few days back home, and I know many of us are eager to continue our work to rescue the American people from the failures of the Affordable Care Act, otherwise known as ObamaCare.

The failures of ObamaCare are well documented, and while they don't necessarily apply to everyone, particular individuals and small businesses in the so-called individual market have seen a meltdown of the insurance exchanges. The Presiding Officer in her home State of Iowa, I know, has had insurance companies pulling out to the point where people can't even find an insurance carrier who will sell a policy that qualifies under the Affordable Care Act. That is because the Affordable Care Act was, unfortunately, a partisan exercise and a Big Government experiment that has failed.

All you have to do is look at the promises that were made at the time that ObamaCare was being sold back in 2009 and 2010. The President himself said that if you like your doctor, you can keep your doctor. Well, that proved to be not true. He said that if you liked your policy, you can keep your policy. Well, that proved not to be true as well because people saw their policies canceled because they couldn't qualify under the new requirements of the Affordable Care Act.

Perhaps the thing that stung the most was the fact that the President said back in 2009 and 2010 that an average family of four would see a reduction in their health insurance premiums by an average of $2,500. Well, what we have seen since 2013 is a 105-percent increase in insurance premiums under the Affordable Care Act, and so instead of seeing a cut in their out-of-pocket costs of $2,500, what people have experienced--families of four--is an insurance premium increase of $3,000. Now, some people may be able to absorb that cost, but most people I know cannot. What it has meant is, they have had to reprioritize their spending so they have less to spend on other things in their life.

We do know, based on the promises made at the time the Affordable Care Act was being sold to the American people, that it has been a failed experiment. So the question is, What are we going to do about it? What are we going to tell the folks in Iowa who can't find an insurance policy or an insurance company who is willing to sell them an insurance policy on the individual market? What are we going to tell people in Texas who have seen their premiums go up by 105 percent since 2013 and have been priced out of the market or who found that the only policy they can afford is one with deductibles that are so high that basically they are denied the benefit of their insurance at all? What are we going to do about it?

A number of my colleagues have noted that even if Hillary Clinton were elected President of the United States, we would still have to be revisiting the failures of the Affordable Care Act because the failures are all too obvious and public and can't be denied, but despite that, and acknowledging many of ObamaCare's failings, many of our friends across the aisle--in fact, all of them so far in the Senate--have made clear they want nothing to do with providing any help or any aid to the people who are being hurt by the failures of ObamaCare. They don't want to lift a finger to help the people who can't find insurance, who can't afford it, and the policies they are forced to buy limit them in a way that they simply have decided to opt out.

So instead of working together with us--you would think they would do [[Page S3877]] that. It would just be a logical thing to do because their constituents are the ones who are being hurt, in many instances. Instead, they have fought us tooth and toenail to preserve the broken status quo in healthcare that has failed so many people across the country, and they have made dubious claims about our efforts to address the problem to the best of our ability.

It reminds me of the old saying: Don't let the facts get in the way of a good story. Our friends across the aisle have simply washed their hands of any responsibility, even though they are the ones who passed the Affordable Care Act and created this failed experiment and put so many people in distress. Now they are in the process of attacking those of us who are trying to help people who are hurting, rather than lending a helping hand and working together with us in a bipartisan way.

Let me talk just a minute about Medicaid because this is one of the big attacks that is being made by our Democratic colleagues on our efforts to try to salvage healthcare for people who are hurt by the failures of the Affordable Care Act. Much of the conversation has revolved around Medicaid and rightly so.

In my home State, 4.7 million folks currently rely on Medicaid. It is an important safety net program for people who are in low-income status--so for poorer folks. For those Americans, I want to make sure they understand, notwithstanding all the scare tactics, Medicaid is not going away.

Now, one of the common refrains is that Medicaid spending is slashed in the Better Care Act, but the nonpartisan Congressional Budget Office estimates that Medicaid spending will grow by $74 billion over 10 years. So when they have talked about it being cut, it actually grows by $71 billion over 4 years.

I would also point out there are some who think the current rate of spending on Medicaid can go forward unabated without any changes, and that is simply not true. We know that according to the Congressional Research Service, Medicaid spending across the country totaled $494 billion in 2014. I guess that was the last year for which full statistics were available--$494 billion. If we do nothing to check the rate of growth of Medicaid spending, in 2023, it will be $835 billion. So you go from $494 billion to $835 billion. We simply cannot keep up with that pace of spending.

Many of us--the Presiding Officer being one of them--are concerned about cuts in our military, which is the one thing the Federal Government has to do because nobody else can do it. Right now, we have seen, during the last administration, cuts of about 20 percent in our defense spending.

Well, when you have runaway spending in entitlement programs like Medicaid, where nobody is placed on a budget and forced to spend wisely and efficiently, essentially by forcing the Federal Government to spend $835 billion for Medicaid spending alone, that is going to crowd out a lot of other meritorious and important spending, including for defense spending as well.

So we need to make sure Medicaid is there but that Medicaid is put on a responsible budget that grows year after year. In fact, during the life of this particular bill, over the next 10 years, it will go up $71 billion.

Here is another thing. Our friends across the aisle act like Medicaid is the very best program to come down the pike. Well, it is not, and there are a number of reasons for that. One is that Medicaid recipients don't always get the quality of care or the access to care we would hope for. That is because the States, which set the rate of reimbursement of doctors for Medicare beneficiaries, set it so low that it is roughly half the amount that is reimbursed based on private insurance. That is the reason why, in 2000, 67 percent of Texas physicians accepted new Medicaid patients. Today, it is 31 percent. So if you are on Medicaid, there is a two-thirds chance you will not be able to find a doctor to see you as a Medicaid beneficiary.

What we have done, instead, in the Better Care Act--particularly for the single adult population between 100 percent and 135 percent of the Federal poverty level--is, we said we will give you a refundable tax credit you can use to buy private insurance. Private insurance is highly preferable to Medicaid because, for one thing, it reimburses physicians at a higher rate and gives people greater access to physicians, hospitals, and greater quality of care. In my State alone, in the State of Texas, according to the Kaiser Family Foundation, as many as 600,000 new low-income Texans will benefit from the provisions of the Better Care Act. It will help qualify them for a tax credit not available to them under ObamaCare.

Simply throwing money at Medicaid will not help people at all. We need to reform Medicaid and make it more efficient. Frankly, one of the things I did back when we were debating the Affordable Care Act in the Senate Finance Committee, I actually filed an amendment that said Members of Congress would go on Medicaid. Well, it failed, but the point I was trying to make is that if Members of Congress were on Medicaid, we would fix Medicaid. Right now, it is substandard healthcare for the reasons I mentioned. Two-thirds of the doctors in my State alone refuse to see a new Medicaid patient because it pays them so far under the standard of private insurance or even Medicare.

By providing low-income Americans access to private insurance instead of Medicaid, we can assist those who were previously left out of the healthcare market and will now be able to purchase a plan of their choice perhaps for the first time. Unless we act, we are going to continue to see skyrocketing premiums and deductibles and lost coverage.

The American people were told time and time again that under ObamaCare costs would go down and they would be able to keep their doctor, which has proven not to be the case.

I mentioned before on the floor of the Senate that in my previous life as attorney general of Texas, we had something called the Consumer Protection Division, and if some business made false claims about a service or product to the American people when it came to their healthcare, the U.S. Government would take them to court and we would win because it is simply a deceptive trade practice in that context. It is deception. It is deceit. Unfortunately, the American people were bamboozled by promises that were not kept.

We also know that about $1 trillion in ObamaCare taxes--new taxes that were imposed to pay for ObamaCare--have ultimately been saddled on American families with higher costs for healthcare. When ObamaCare was passed and all these new taxes were passed, my friends across the aisle acted as though they would simply be absorbed by somebody, but we all know that simple economics means that ultimately the consumers are the people who actually pay the tab. They are the ones who end up paying the taxes.

Some of our colleagues on the other side recognized the destructive nature of the Affordable Care Act tax scheme. For example, five Democratic Senators, including my colleagues from Minnesota, voted to repeal the medical device tax just 2 years ago. The medical device tax was a draconian form of taxation. It wasn't based on income--in other words, where you could deduct your expenses and just pay taxes on your net income--it was a gross receipts tax. In other words, it said in effect that everything you have earned before you deduct your costs of doing business is going to be taxed at a given rate, and that was true of the medical device tax.

Perversely, a tax on medical devices meant not only did the jobs to produce those medical devices move offshore, in the case of one Texas- based company, they moved their business essentially to Costa Rica in order to avoid the taxes because they simply couldn't afford to pay them and stay in business and keep the jobs they had.

It was also a tax on innovation, and that is the reason we saw a bipartisan response to repeal the medical device tax just 2 years ago, because this tax has chased away jobs and innovation in the medical sector and saddled consumers with higher costs.

By repealing those taxes in the Better Care Act, we not only will lower the bill at the pharmacy or the doctor's office, but we encourage competition, and that is common sense and ultimately benefits consumers.

Our plan also protects consumers from government mandates requiring [[Page S3878]] them to buy insurance that they don't want and can't afford. This way, families can choose what works best for them, free from the penalties by the government. Some individuals may choose to go with no plan at all.

The dirty little secret about the Affordable Care Act is that it can't work without a government mandate that you buy government- approved health insurance or else you pay a penalty. I can't think of any other instance where the government says “You do what we say, or we are going to punish you and penalize you,” as the Affordable Care Act does.

Even with the individual mandate and this threat of a penalty, we know that about 28 million Americans are currently not covered by insurance. Many of them are covered by so-called hardship exceptions. About 6.5 million of them just pay the penalty because it is cheaper to pay the penalty than it is to buy the insurance because the prices are so high.

When some of the critics say that without this economic gun to the head of a penalty, people will choose not to buy insurance for themselves, that is a choice they will make as Americans. We believe in freedom of choice, and when the marketplace provides a product that they believe adds value at a price they can afford, that is when consumers buy a product or a service. But they shouldn't have to do it because the government forces them to do so and penalizes them if they don't. The Better Care Act gives people the ability, free from a government mandate, to choose not to buy something they don't want. The Washington-forced mandates are gone.

The nonpartisan budget office has estimated that under our plan, average premiums will decrease by nearly one-third in 3 years.

These are some of the important facts we need to be debating, not the misrepresentations that unfortunately seem to fill the void.

I have shared multiple stories from my constituents back home in the last few weeks on the floor, and I plan to keep doing that as we continue our work on this legislation. The stories that I and my colleagues have heard are what have inspired me and motivated me from the beginning of this entire process. In fact, it is our job to represent our constituents. I would encourage all of our colleagues to listen to their own States and to share the trials of their constituents as well because the status quo is simply unacceptable. The Democratic leader has said as much. He said that if we set aside the Better Care Act and are actually interested in helping “fix” ObamaCare, they are willing to do that. But do you know what that is? Basically, what that represents is a huge, multimillion-dollar bailout of insurance companies without any other reform. That is what our Democratic colleagues are supporting by their failure to engage with us in making sure there are reforms in addition to the other things that we do.

The other alternative plan--you might ask: Well, if Obamacare didn't work as was advertised--which it clearly hasn't--and something needs to be done, what does that something look like?

In the case of our friend the Senator from Vermont, Mr. Bernie Sanders, he said: I have an idea. Let's just make the Federal Government provide insurance coverage for everybody, single-payer.

Well, that is simply a solution we can't afford when we look at the tradeoffs. It would essentially supplant all the private insurance that people get from their employers and require incredible increases in taxes in order to do that across the board. So I don't think that is an alternative our friends across the aisle want to support. They love the mandate, they love penalizing free American citizens when they don't purchase a product the government mandates, but they are not going to defend that. They are not going to defend that. They certainly won't advocate, at least openly here on the floor, for a single-payer system.

We saw one committee of the legislature in California recently vote out a single-payer system. This was just one committee, I think, in one house. The estimated cost of a single-payer system in California alone was double the annual budget of the entire State. You can imagine what the numbers would be here at the national level.

Like any piece of legislation, our draft bill can be strengthened, and we would invite anyone in good faith who is interested in strengthening the bill to work with us to do so. We are going to continue to talk and listen and exchange ideas on how we can continue to make improvements, but in the end, the choice is clear: You either ultimately support ObamaCare and the status quo, or you are willing to try to work with us to produce something better that provides more affordable healthcare from the doctor and healthcare provider of your choice. That is simply the choice people are going to have. A “no” vote against the alternative is simply a vote for the status quo for ObamaCare, and we know where that is going to lead--it is going to lead with a big, multibillion-dollar bailout of insurance companies without any reform. That is what our Democratic colleagues are hoping for if we are unsuccessful. But we think there is a better way to approach this, one that brings down cost and maintains choices and the freedom of choice for the individual consumer.

We will continue to plow ahead with or without their help because we think it is our duty to do so, and we have confidence that, working together, we can come up with a better care plan that suits the needs of Americans when it comes to their healthcare.

I yield the floor.

I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The bill clerk proceeded to call the roll.

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

The PRESIDING OFFICER. Without objection, it is so ordered.

Ms. WARREN. Madam President, from day one, this administration, President Trump, and congressional Republicans have attacked rules that protect working families.

Just 1 hour after taking the oath of office, President Trump indefinitely suspended a plan that made it easier for working families to be able to afford a mortgage. Ten days later, he issued an Executive order that requires agencies to identify and eliminate two rules for every one new rule they issue, and that was just the beginning. Congressional Republicans spent the first few months of the year eliminating rules that protected workers, students, and families. They killed a rule that required companies in dangerous industries to track when their employees were injured. They even killed a rule that helped keep guns out of the hands of the mentally ill.

These rules all had one thing in common--they all made sure the public health, safety, and security of Americans came ahead of industry's bottom line.

Oh, and there was a second thing in common for these rules: Industry hated them. With President Trump in office and Republicans in the majority in Congress, those industries were ready to cash in, and they had their wish list ready.

Although the attack on public-centered rules has increased in intensity during this administration, I just want to say it is not new. Powerful companies have long understood that the fight in Congress is just the first of many battles. If Big Business can't weaken or kill bills they don't like in Congress, they turn their attention to the agencies tasked with implementing those laws, working to tilt the rulemaking process in their favor, and they don't waste any time getting started.

Long before rules are even announced, giant corporations intensely lobby agencies--setting up meeting after meeting--to make sure the agencies will prioritize corporate interests. As rules wind their way through the rulemaking process, the lobbying intensifies. Companies bury agencies in mountains of expensive, industry-funded comments. They cite sham research and bought-and-paid-for experts. If, at the end of that long, arduous process, a strong, public-centered rule is published anyway, those companies sue, looking to busy judges who are unfamiliar with the issues to overturn the decision of expert agencies.

There are no two ways about it. The rulemaking process is broken. There are far too many opportunities for giant corporations to influence the [[Page S3879]] rulemaking process, and there are far too few opportunities for meaningful public participation, but Republicans don't want to fix this problem--no way. They want to make the rulemaking process work even better for their corporate buddies and work even harder against American families.

And, boy, did they pick the right person to lead the charge. President Trump nominated Neomi Rao--a law school professor who advocates for weakening and handcuffing agencies--to run the Office of Information and Regulatory Affairs known as OIRA.

OIRA is a small, little-known but intensely powerful office that renews economically significant Federal rules. Before the Department of Labor can issue a rule on workplace safety, for example, or the Environmental Protection Agency can issue a rule restricting water pollution or the Department of Education can issue a rule protecting students from shady, for-profit colleges, that rule must be submitted to OIRA to sign off. If OIRA doesn't like the rule, it can change the rule or hold it up for months at a time. When a rule finally makes it out of the OIRA ringer, chances are that any changes will be slanted in favor of corporate interests.

Professor Rao's view of agencies makes her the wrong person to lead this powerful agency. She believes judges should pay less attention to the conclusions of experts at Federal agencies, and Professor Rao is especially critical of the Consumer Financial Protection Bureau--the CFPB. This is the agency that has forced the biggest corporations and banks in this country to return more than $12 billion directly to Americans they have cheated and held big banks like Wells Fargo accountable when they have ripped off customers.

Professor Rao says the CFPB's problem is its independence--seriously. Maybe Professor Rao thinks that little agency just doesn't kowtow enough to the big banks. If Professor Rao had her way, independent agencies like the CFPB would be handcuffed by OIRA, the agency she wants to run. It is no surprise that the Wall Street giants that have been trying to take down the CFPB for years love Professor Rao's views.

If confirmed, Professor Rao will be perfectly positioned to put her theories into practice. She will head the Trump administration's efforts to toss out the rules big businesses don't like. She will determine whether rules go through the slanted OIRA process. She will have a chance to gut strong rules that help working families.

The rulemaking process is broken, and there is a lot Congress should be doing to fix it, to try to make it work better for people all across this country--for workers and for families and for people who get cheated, but the Trump administration wants to go in the opposite direction.

Any Senator who believes corporations need more say in the rulemaking process should vote for Neomi Rao, but anyone who thinks we are supposed to be here to work for the American people will vote to reject her nomination.

I yield the floor.

I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The senior assistant legislative clerk proceeded to call the roll.

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

The PRESIDING OFFICER (Mr. Moran). Without objection, it is so ordered.

Under the previous order, all postcloture time is expired.

The question is, Will the Senate advise and consent to the Rao nomination?

Mr. STRANGE. Mr. President, I ask for the yeas and nays.

The PRESIDING OFFICER. Is there a sufficient second?

There appears to be a sufficient second.

The clerk will call the roll.

The senior assistant legislative clerk called the roll.

Mr. CORNYN. The following Senators are necessarily absent: the Senator from Alaska (Ms. Murkowski), the Senator from Ohio (Mr. Portman), the Senator from Alaska (Mr. Sullivan), and the Senator from North Carolina (Mr. Tillis).

Further, if present and voting, the Senator from North Carolina (Mr. Tillis) would have voted “yea” and the Senator from Alaska (Ms. Murkowski) would have voted “yea.”

Mr. DURBIN. I announce that the Senator from New Mexico (Mr. Udall) is necessarily absent.

The PRESIDING OFFICER. Are there any other Senators in the Chamber desiring to vote?

The result was announced--yeas 54, nays 41, as follows: [Rollcall Vote No. 156 Ex.] YEAS--54 Alexander Barrasso Blunt Boozman Burr Capito Carper Cassidy Cochran Collins Corker Cornyn Cotton Crapo Cruz Daines Donnelly Enzi Ernst Fischer Flake Gardner Graham Grassley Hatch Heitkamp Heller Hoeven Inhofe Isakson Johnson Kennedy King Lankford Lee Manchin McCain McCaskill McConnell Moran Paul Perdue Risch Roberts Rounds Rubio Sasse Scott Shelby Strange Thune Toomey Wicker Young NAYS--41 Baldwin Bennet Blumenthal Booker Brown Cantwell Cardin Casey Coons Cortez Masto Duckworth Durbin Feinstein Franken Gillibrand Harris Hassan Heinrich Hirono Kaine Klobuchar Leahy Markey Menendez Merkley Murphy Murray Nelson Peters Reed Sanders Schatz Schumer Shaheen Stabenow Tester Van Hollen Warner Warren Whitehouse Wyden NOT VOTING--5 Murkowski Portman Sullivan Tillis Udall

The nomination was confirmed.

The PRESIDING OFFICER. The Senator from Wyoming.

Mr. BARRASSO. Mr. President, I ask unanimous consent that with respect to the Rao nomination, the motion to reconsider be considered made and laid upon the table and the President be immediately notified of the Senate's action.

The PRESIDING OFFICER. Without objection, it is so ordered. ____________________

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