H.R. 2491, SEVEN-YEAR BALANCED BUDGET RECONCILIATION ACT OF 1995

TITLE III: MINORITY, ADDITIONAL, AND DISSENTING VIEWS

Spectrum

Waste Isolation Pilot Plant

Naval Petroleum Reserves

Commerce Dept. Elimination

Transmittal Letter: Medicaid

Medicaid: John D. Dingell

We are ambivalent about the telecommunications provisions of the reconciliation legislation. Several provisions, in our view, improve current law, and we commend the majority for making these important changes. In the main, the majority fulfilled its reconciliation instructions while doing minimal damage to sound telecommunications policy and to spectrum users.

However, we object vigorously to the notion that the radio spectrum is a bottomless drawer that can disgorge billions of dollars whenever the House Republican leadership runs short of cash.

Perhaps the time has come for our committee to transfer responsibility for telecommunications policy from the Federal Communications Commission [FCC] to the Bureau of Engraving and Printing. Because in the House Budget Committee's latest search for ways to balance the Federal budget and fund a tax cut, the FCC has been transformed into the Government's very own bank.

The majority should recognize that moving around spectrum users--at enormous expense, and with substantial disruption--is an indirect form of taxation. The revenues generated by instructing the Commission to conduct additional auctions may seem like found money. It is not. It will cause real companies to spend real money. The Republican majority should be aware that they are imposing significant costs on American businesses.

In the Omnibus Budget Reconciliation Act of 1993, we authorized the Commission to use competitive bidding to assign licenses to use the radio spectrum. We believed then, and still believe, that this is a prudent mechanism for differentiating between mutually exclusive applications for the same spectrum license. That policy was intended to end the Commission's failed experience with lotteries, while promoting the efficient use of the radio spectrum and speeding the introduction of innovative new telecommunications services to the market. It has proven to be very successful, as demonstrated by the recent PCS auctions.

In 1993, however, we were careful not to tamper with the Commission's process of allocating spectrum. Competitive bidding was intended to be, and should remain, simply a method of differentiating among competing applicants for the same license. It certainly was not intended to transform the process of assigning all radio spectrum into a commodities market.

Furthermore, we made it clear in 1993 that the Commission should not base an allocation decision on the expectation of deriving more revenue through the competitive bidding process. We said that the Commission should make its decisions based on sound communications policy pursuant to the Communications Act, and not budgetary considerations.

The committee reaffirmed these decisions. It made statutory changes to highlight the Commission's obligations to continue to use engineering solutions, negotiation, threshold qualifications, service regulations, and other means to avoid mutual exclusivity among licenses. In our view, this is a responsible change. Similarly, the committee's decision to extend competitive bidding authority for an additional 4 years was also responsible.

However, it is simply irresponsible to craft telecommunications policy and enact laws based solely on the needs of the Republican leadership to fund a tax cut, or to generate revenues for the U.S. Treasury.

Moreover, making spectrum use decisions based on the willingness of the Congressional Budget Office to score each megahertz with a specific dollar value perverts an already bad process, and results in mediocre--at best--spectrum policies. CBO's scoring has the effect of dictating the amount of spectrum that must be auctioned. Yet the so-called model that CBO utilizes is simplistic and unidimensional. It fails to recognize that spectrum is used by hundreds of thousands of American businesses to achieve otherwise unobtainable efficiencies. The committee's dependence on achieving a satisfactory CBO score--no matter how flawed--imposes an indirect tax on unsuspecting spectrum users. We are confident that they will make their views known to the majority.

Perhaps the most irresponsible aspect of this bill stems from the majority's need to meet a budget reconciliation shortfall in another area. It was not clear what caused the shortfall--we were variously informed that it concerned the naval petroleum reserve or Food and Drug Administration user fees. The majority determined that it would exceed the $14.4 billion that the Budget Committee had assigned to be generated from spectrum auctions by requiring the National Telecommunications and Information Administration [NTIA] to transfer an additional 20 mHz of federally controlled spectrum to the Commission for public auction.

No inquiry or analysis was performed to determine where this spectrum would come from, or what the cost would be to relocate incumbent users.

It is true that in the 1993 budget bill, Congress directed NTIA to transfer at least 200 mHz of Federal Government spectrum to the Commission. That action followed 5 years of hearings in both the House and the Senate, and extensive discussion with spectrum managers at NTIA.

In its report to Congress pursuant to that act, NTIA identified 235 mHz of spectrum for transfer at a cost of $477 to $592 million to relocate existing Federal users to new frequencies. That relocation cost is borne by the Federal agency that must be moved, and ultimately by the taxpayers.

That 235 mHz of spectrum identified by NTIA had the lowest possible relocation cost. The next 20 mHz will necessarily cost more. The largest Government user of spectrum under 3 gHz is the Defense Department, and an estimate of the relocation cost to defense users actually exceeds the value of the spectrum on the open market. The added potential cost to public safety and national security has not even been addressed.

The legislation further requires that if the Commission is unable to identify the entire 100 mHz for auction on its own, the NTIA must kick in the remainder. This mandate will not only be difficult to carry out due to the existing congestion in the radio spectrum below 3 gHz, but also will be devastating to the Government given the tremendous relocation costs that would be incurred. The toll on critical public services, such as national defense, law enforcement, and air traffic control, could pose an even greater threat.

The dangers of budget-driven policymaking are real. Unfortunately, they often go unnoticed until disaster strikes. If the majority persists in treating spectrum licenses like penalty-free certificates of deposit, they run a very real risk of endangering communications that guide jumbo jets and maintain our defense systems.

Radio spectrum is a vital national resource that is critical to protecting the public welfare, providing for public safety needs, and making American business more productive and efficient. Competitive bidding is a useful device to differentiate among competing applicants for the same license. But the bidding process should not be treated like a friendly banker, ever prepared to cough up whatever money is needed in any given year. Given the shortcomings inherent in crafting spectrum policies in the context of the budget process, the committee's majority has in most respects acted responsibly. However, its decision to require the Federal Government to vacate an additional 20 mHz of spectrum to cover a shortfall in another area is patently irresponsible, and will prove to cost far more to implement than projected by CBO's flawed cost estimates.

John D. Dingell.
Henry A. Waxman.
Edward J. Markey.
Ron Wyden.
John Bryant.
Rick Boucher.
Thomas J. Manton.
Gerry E. Studds.
Frank Pallone.
Sherrod Brown.
Blanche L. Lincoln.
Bart Gordon.
Elizabeth Furse.
Peter Deutsch.
Bobby L. Rush.
Anna G. Eshoo.
Ron Klink.
Bart Stupak.

The committee print amending the Waste Isolation Pilot Plant Land Withdrawal Amendment Act of 1992--WIPP Act--is both unnecessary and unwise. It substantially alters a law enacted less than 3 years ago, when changes have not been requested by either of the two Federal agencies responsible for the project or the State of New Mexico, where the facility is located.

The legislation achieves little in terms of accomplishing its stated goal--to speed up the date on which WIPP will begin accepting waste for disposal. Testimony from the Department of Energy [DOE] indicates that enactment of H.R. 1663, the basis of this provision, would advance WIPP's opening--now scheduled for June 1998--by only 9 months.

This paltry benefit comes at the expense of important environmental protections which DOE, the Environmental Protection Agency [EPA], and the General Accounting Office [GAO] all support. The legislation exempts WIPP from the land ban requirements under the Resource Recovery and Conservation Act, as well as from independent oversight by EPA. Both GAO and DOE testified that retaining these protections is critical to building public confidence in the facility--as well as DOE.

It is particularly disappointing that this committee would vote to do away with independent oversight of a DOE nuclear weapons facility. The Commerce Committee has a distinguished record of oversight, done on a bipartisan basis, documenting the problems associated with allowing DOE to escape the sort of routine oversight which applies to private industry. This is particularly true in the area of nuclear safety, as demonstrated by the problems experienced at the DOE weapons plants at Rocky Flats, Savannah River, Hanford, and Fernald. The committee's concern about DOE self-regulation has resulted in enactment of legislation to subject DOE to outside scrutiny and increase its accountability--the Price-Anderson Amendments Act of 1988, the Defense Nuclear Facilities Safety Oversight Board Act of 1989, the 1992 Federal Facility Compliance Act, and of course the 1992 WIPP Act.

The WIPP provisions agreed to in reconciliation run contrary to the reforms in which the Commerce Committee has previously taken the lead. Despite its initial resistance to outside scrutiny, DOE itself now strongly supports the concept of outside oversight. In exempting WIPP from key provisions of current law, the committee now sends a confusing signal to DOE, the State of New Mexico, and the public--not only in New Mexico but also in other States where DOE facilities are located--regarding its intentions. We can only hope that this is an isolated incident and that the committee will resume its prior effort to shake off the final vestiges of the cold war by making DOE fully accountable to the public and to the Congress.

John D. Dingell.
Henry A. Waxman.
Edward J. Markey.
Ron Wyden.
John Bryant.
Rick Boucher.
Thomas J. Manton.
Gerry E. Studds.
Frank J. Pallone.
Sherrod Brown.
Peter Deutsch.
Anna G. Eshoo.
Ron Klink.
Bart Stupak.

The minority is not opposed philosophically to privatizing Federal assets, so long as public policy concerns, including obtaining fair value for the taxpayer, are fairly addressed. Unfortunately, the committee print directing the Department of Energy [DOE] to sell the naval petroleum reserves does not meet this test. It instead reflects the pressures of the majority's self-imposed budget targets, which have led to a plan that authorizes what could well become a fire sale.

The committee print includes several safeguards the Commerce Committee has adopted in prior legislation selling Federal assets. As in the case of privatizing Conrail, and in legislation to privatize the Government's uranium enrichment plants, the plan directs the responsible official--in this case, the Secretary of Energy--to engage outside financial advisors, to identify the best method of sale, and to establish an appropriate minimum price for the reserves.

However, the effect of these prudent steps is nearly wholly undercut by a fatal flaw in the committee print--the requirement that the reserves be sold by the end of calendar 1996. This deadline runs counter to the advice provided in testimony by both DOE and a private investment adviser. Both indicated that forcing the sale to occur on this timetable, which is driven solely by budget scoring concerns, is foolhardy and could depress the prices ultimately paid for these properties.

Specifically, the Department indicated that the bill's prescriptive provisions would lock it into a schedule that would not permit it the flexibility needed to properly prepare for the sale. It also warned that the 1996 deadline might prevent DOE from properly analyzing the various oil and gas fields, from conforming its accounting methods to commercial standards, and from pursuing an optimal marketing strategy. DOE noted that the administration supports selling the reserves and held out hope that the reserves could be sold in 1996. However, it strongly appealed for an additional year, or some other failsafe mechanism, in order to ensure that a premature sale did not result in depressed bids.

Similarly, the investment advisor--one of the country's foremost oil and gas acquisition specialists, who was invited by the majority--testified that an overly short deadline could reduce the sale price as potential purchasers discounted their bids to reflect uncertainties about the fields. This witness agreed with DOE that providing an additional year would be advisable.

Unfortunately, the majority did not support the amendment offered by Mr. Brown to build flexibility into the Department's timetable in the event the Secretary and Director of the Office of Management and Budget determined that a quick sale would cheat the taxpayer out of the full value of these assets.

Regrettably, the majority chose not to adopt an approach based on the committee's accrued experience in privatizing Federal assets. The elements of a sound and responsible transfer of Federal assets to private hands are not difficult to identify. The majority's rejection of a reasonable timetable, contrary to strong testimony, renders its overriding motives utterly transparent. It is akin to a breach of fiduciary duty by a family trustee who has sold off the family jewels in haste. The committee should not be party to efforts to produce apparent immediate relief for the Republican leadership's self-imposed time constraints at the expense of more responsible long-term stewardship of Federal assets on behalf of the taxpayer.

John D. Dingell.
Henry A. Waxman.
Edward J. Markey.
Ron Wyden.
John Bryant.
Thomas J. Manton.
Edolphus Towns.
Gerry E. Studds.
Frank J. Pallone.
Sherrod Brown.
Blanche L. Lincoln.
Elizabeth Furse.
Peter Deutsch.
Bobby L. Rush.
Anna G. Eshoo.
Ron Klink.
Bart Stupak.

We strongly support streamlining the Government, finding ways to achieve efficiencies, and eliminating wasteful and unnecessary Federal spending.

Unfortunately, the reported bill neither cuts Government spending nor reduces bureaucracy. It shuffles boxes for the sake of a trophy hunt, but to the great detriment of programs and activities that create and preserve American jobs, promote the sale of American products and services around the world, allow for effective representation of U.S. interests in trade negotiations, provide domestic and international telecommunications policy and advocacy functions, stimulate new technologies that produce high-technology, high-wage jobs, and spur investments to benefit communities, the environment, and the economy.

The legislation is called the Department of Commerce Dismantling Act. Many other names could describe this ill-conceived and hastily-drafted legislation.

The bill could be called the Government Agency Creation and Proliferation Act of 1995. At least four new Federal entities are created by the bill:

(1) the Commerce Programs Resolution Agency, vested with broad authority to dispose of Department of Commerce [DOC] programs, obligations, and functions--for which no funding is provided;

(2) the U.S. Trade Administration, which commingles existing functions of the U.S. Trade Representative [USTR], the Bureau of Export Administration, International Trade Administration, and National Institute of Science and Technology;

(3) the Federal Statistics Agency, which combines DOC's Bureaus of the Census and Economic Analysis; and

(4) the Patent and Trademark Office, a new `Government corporation.'

Other committees considering this bill demonstrated the same propensity to create a plethora of new Federal entities. The Ways and Means Committee also created a new U.S. Trade Administration, but retained USTR and as a separate entity. The Science Committee created a new U.S. Science and Technology Administration, which may be the first step to a new Department of Science. The Transportation Committee created a new Office of Economic Development, combining the Appalachian Regional Commission with the Economic Development Administration [EDA]. The Resources Committee created the National Marine Resources Administration, a new independent agency housing most functions of the National Oceanic and Atmospheric Administration [NOAA].

This creation and proliferation of new Federal agencies, each with its own new bureaucracy and new responsibilities, indicates the folly of what is happening here. Publicly, Republicans trumpet the spoils of their trophy hunt--to abolish a Cabinet agency. But anyone who reads the fine print knows the bills reported by the various committees would expand Government, increase the number of separate Federal agencies, and decrease the delivery of services that produce economic returns far in excess of the current Federal investment in the Department.

The bill also could be called the `Let's Make Sure No One Figures Out How Much This Bill Really Costs Act of 1995.' There is no CBO cost estimate of H.R. 1756 (the Chrysler bill), H.R. 2124 (the Mica bill), or the bill reported by the Commerce Committee. Including this massive bill in reconciliation--supposedly because it saves money--may be a good way to hide its real costs, but is no way to process important legislation.

Representative Chrysler claims his bill would save $7.7 billion over 5 years. But information OMB and CBO have provided to the committee indicates the bill will increase the deficit by about $2 billion during the same time. The Chrysler bill fails to provide for $2 billion in costs associated with closing the Department (including running the new Commerce Programs Resolution Agency, reductions in force, and contract terminations); falsely claims credit for cutting 25 percent of overhead charges, where no such charges exist; fails to include mandated costs of performing the 2000 Census and modernizing the National Weather Service; and falsely claims $325 million in savings from making the Patent and Trademark Office [PTO] fee-funded, when it already is 100 percent fee-funded.

The reported bill certainly does nothing to increase any savings of the original Chrysler bill. It exempts the Census Bureau and PTO from huge cuts applicable to all other surviving DOC functions. By creating many new free-standing agencies, it increases costs resulting from box-shuffling and creating new bureaucracies. And, by transferring DOC functions to various new or existing agencies, it reduces effective internal oversight activities of such functions and programs.

Any real savings in the legislation result primarily from provisions that permanently cap expenditures for surviving Department functions at 75 percent of fiscal year 1994 expenditures for each function. This arbitrary, permanent cap translates to far more than 25 percent cuts from current appropriated levels because it is based on fiscal year 1994 expenditures. Savings from the cap come not from dismantling the Department or creating new efficiencies, but instead from deep cuts in personnel and resources needed to carry out important statutory responsibilities. In fact, these cuts will make it impossible to perform the transferred functions effectively. Had our colleagues chosen to eliminate or modify statutory mandates relating to surviving DOC functions, this enormous, permanent reduction in funding might be justified, at least in fiscal terms. But preserving certain functions because they serve critical and necessary goals while precluding the ability to perform such functions appropriately is questionable policymaking at best and sheer intellectual dishonesty at worst.

The legislation might be called the `I Have No Idea What's In The Bill But I'm All For It Anyway Act of 1995.' With just one hearing--no hearings were held on the bill actually considered by the committee--and no effort to construct bipartisan legislation, our colleagues have provided a gross example of how expedient political goals produce very bad legislation.

During markup, neither Members nor staff could explain the meaning, justification, or import of many provisions of the bill. For example, section 3205 repeals 11 explicit statutes relating to NOAA. No one could explain what these laws are or what they do. One Member noted these provisions could not even be explained by the primary committee of jurisdiction. Section 3205 also repeals `All other acts inconsistent with this subsection.' Upon questioning, we were informed that no one could ascertain either the meaning or import of this provision. This is but one blatant example of provisions that will cause great confusion and prompt litigation.

Questions regarding the newly-created Patent and Trademark Corporation, including those relating to the constitutionality of transferring broad judicial and regulatory responsibilities to a Government corporation that is basically unaccountable to any Federal authority, were similarly unanswered, or perhaps unanswerable. Questions on the effect of exempting PTO employees from `provisions of title 5 relating to Federal employees' and the reason for not applying the Federal Advisory Committee Act (the so-called Sunshine Act) or the Freedom of Information Act to the Board of the PTO corporation were not adequately explained.

Even more basic questions were not answered. For example, no one could really say why it makes any sense to transfer NOAA to the Department of Agriculture--an approach Republicans on the Resources Committee explicitly rejected. The first Republican amendment offered to the substitute--to ensure that the Department of Agriculture would track hurricanes--underscores the absurdity of the approach taken in the bill.

Nor could anyone describe what an `independent establishment within the executive branch of Government' is, how it differs--if at all--from independent agencies like the Securities and Exchange Commission, or its relationship to other Executive branch departments and agencies. In fact, another Republican amendment was adopted to make the new entities created in the bill `free-standing'--a term that, so far as we can determine, may not appear anywhere in the United States Code to describe an agency of the Federal Government.

No one can explain why the bill abolishes domestic offices of the Commercial Service, which provide `how to' export assistance to smaller businesses, when estimates indicate these offices return $10.40 in increases sales, profits, jobs, and income for every dollar invested. No one can explain why Members who helped defeat a floor amendment to abolish EDA on July 26 voted in committee against an amendment reflecting the bipartisan EDA legislation reported by the Transportation Committee last week.

No one can explain why the reported bill commingles USTR and other trade/export functions performed by DOC in a new sub-Cabinet agency, makes huge funding cuts in surviving DOC functions--thus causing great disruption to employees, our foreign and national security interests, and to trade negotiations--and then requires USTR to submit a `comprehensive plan to consolidate Federal trade programs and activities.' No one can explain how much leakage of critical technologies to countries like Iran, Iraq, North Korea, and Libya will occur when the permanent funding cap is immediately applied to functions previously performed by the Bureau of Export Administration--or how the funding cap will affect all other surviving DOC functions.

We do note the Republican substitute corrected one of the more glaring defects of the Chrysler bill. Under the Chrysler bill's permanent spending cap, annual expenditures of the Census Bureau would be forever limited to less than $14 million, thus ensuring that neither the year 1997 5-year snapshot or the year 2000 census could be taken.

We note the cost of just mailing out postcards to the estimated 117 million households in 2000, at the current rate, would amount to more than $23 million. By exempting the Census Bureau from the permanent funding cap, the substitute amendment evidently envisions allowing the Bureau to perform its constitutional duties.

But this one correction does not conceal the fact that no one really knows what is in this bill, how it will work, or how much money it will cost. This is what happens when one is more interested in scoring political points than in legislating responsibly and sensibly.

We stand ready to work with our colleagues to craft responsible and sensible legislation that really will streamline Government programs and eliminate wasteful and unnecessary Federal spending.

This, however, is not such a proposal.

John D. Dingell.
Henry A. Waxman.
Edward J. Markey.
Ron Wyden.
John Bryant.
Rick Boucher.
Thomas J. Manton.
Edolphus Towns.
Gerry E. Studds.
Frank Pallone, Jr.
Sherrod Brown.
Blanche Lambert Lincoln.
Bart Gordon.
Elizabeth Furse.
Peter Deutsch.
Bobby L. Rush.
Anna G. Eshoo.
Ron Klink.
Bart Stupak.

House of Representatives,
Committee on Commerce,
Washington, DC, October 10, 1995.

Hon. JOHN R. KASICH,
Chairman, Committee on the Budget,
Washington, DC.

DEAR MR. CHAIRMAN: On Monday, October 9, 1995, I transmitted to you the recommendations of the Committee on Commerce for changes in laws within its jurisdiction with respect to the Medicaid program, pursuant to the provisions of section 310 of the Congressional Budget Act of 1974 and section 105(a)(2)(B)(iii) of House Concurrent Resolution 67, the Concurrent Resolution on the Budget--fiscal years 1996-2002.

Regrettably, because of the Columbus Day holiday, when the committee transmitted its recommendations, the committee had not received the minority's dissenting views. The minority delivered their views to us this afternoon, and pursuant to our prior understanding, I am transmitting those views to you herewith for inclusion in the Commerce Committee's report language for title XVI of the Fiscal Year 1996 Omnibus Budget Reconciliation Act.

If I can be of any further assistance to you as you proceed with your committee's deliberations, please do not hesitate to contact me.

Sincerely,

Thomas J. Bliley, Jr.,

Chairman.

Enclosure.

Future generations might very well label the `Medicaid Transformation Act' as the `Medicaid Decimation Act.' This Act essentially abrogates the Federal Government's responsibility to protect and improve the health care of millions of Americans. Instead, it provides States with a virtually no-strings-attached check in the form of a block grant. Under the guise of `flexibility,' the act fails to include even the most rudimentary enforceable requirements that the States use taxpayer funds to provide essential health care services to especially vulnerable and needy Americans.

It allows the States--with only minor Federal involvement--to determine who will receive services and what, if any, benefits they will receive. Further, it allows the States to determine how--if at all--they will regulate, oversee, and control participating providers. In short, the Medicaid Transformation Act slices the cord on a three-decade old safety net that has helped millions. Presently, the program serves about 18 million children, 4 million aged; 6 million disabled, and 8 million nondisabled adults.

The process by which this legislation evolved was particularly troubling. Aside from being veiled in secrecy with almost no opportunity for public input or congressional debate on the particulars of the proposal, the process culminated with committee members receiving legislative language only 36 hours before markup began: 36 hours to assess the impact of this 160-page health care bill for 36 million Americans; 36 hours to understand how 50 States could absorb a staggering $182 billion in cuts without depriving poor women, children, and elderly people of essential health care services; 36 hours to calculate how each State could effectively run a Medicaid program with growth caps as low as 2 percent of current spending; 36 hours to evaluate the potential impact of a State refusing to cover people whose only current access to care is through Medicaid; 36 hours to determine what happens if a State is unable to pay for health care when there is a recession, and thus a sudden increase in the number of people who need care; and finally, 36 hours to examine the effect on senior citizens of a State's failure to provide effective oversight over nursing homes.

Over the course of 2 1/2 days, Democratic members endeavored to correct some of the many flaws of the Republican plan. But, hiding behind a red herring dubbed `State flexibility,' Republicans in lockstep opposed virtually every amendment offered. Most of these amendments were designed simply to maintain existing protections critical to any viable health care program.

For example, one amendment would have ensured that States maintain basic nursing home standards enacted in the Omnibus Budget Reconciliation Act of 1987. These requirements were put in law after it became evident--through a succession of nursing home horror stories--that States either couldn't or wouldn't regulate the nursing home industry. They include prohibitions on the use of physical restraints or mind-altering drugs and other similar protections against poor and abusive care. Despite widespread belief that Federal regulation of nursing homes is working, the amendment was defeated. Republicans argued--not surprisingly--that States needed flexibility. But flexibility to do what? Leave the elderly vulnerable to such atrocities? Let the States pick and choose what protections the nursing home lobby of their State would allow them to implement? Or, at best, simply reinvent the wheel and repeat what already has been achieved and implemented efficiently by the Federal Government?

Over the next several days, dozens of amendments designed to protect the working middle class and the poor, and moderate the dismantling of Medicaid, were presented but quickly shot down.

Amendments were offered to maintain current provisions of law to protect against impoverishing spouses and adult children or imposing liens on family homes and farms to pay nursing home care for Medicaid-eligible individuals. They were defeated. Amendments to guarantee continued health care coverage for poor children, pregnant women, and infants and children with special needs were defeated. An amendment to provide coverage for mothers attempting to leave welfare and move to the work force was defeated. Even an amendment to ensure coverage for screening and treating of women with breast and cervical cancer was defeated.

The attack on health care for the most vulnerable in America did not end there. An amendment to reward States that had made progress in reducing health care costs through creative Medicaid demonstration programs was killed; an amendment to establish a public process for determining appropriate provider payment rates was killed; an amendment to guarantee access to good-quality care for rural residents through adequate payments to rural clinics was killed; an amendment to modify the formula was killed.

The form in which this act finally prevailed is startling. Now, regardless of decades of painful lessons demonstrating that laissez faire with the taxpayers' money doesn't work, States will determine--with no guidance or requirements--what, if any, money they will spend to provide health care to the needy. If a State suddenly finds itself faced with a dramatic increase in eligible individuals--such as during a recession, for example--it will be forced to cut services, expel beneficiaries, or both. And there is no contingency plan to deal with what happens if a State runs out of money--the revolution apparently moves too fast to worry about small details such as this. States, local governments, and--more importantly--helpless beneficiaries must now assume all the risks.

Republicans have proclaimed their plan an `improvement' that `saves' Medicaid. In reality, the Medicaid Transformation Act transforms this health care program into a shapeless, faceless shadow. The act provides that States will receive an annual check with which they can play Russian roulette with who gets health care and who doesn't. This is literally passing the buck. The Republican blueprint merely transforms a program--with some flaws--about which we know a great deal, into 50 programs about which we know nothing. As the Republicans have provided no details on how the States intend to do any of this, Medicaid is now flying blind without a compass in sight.

Of course, there is the shop-worn view that managed care will somehow be a magic bullet for each State. But managed care can offset only a fraction of the $182 billion in cuts over 7 years, and will barely dent the sparse 2 percent growth caps imposed on many States. Further, the act provides for distribution of Federal funds to States based on a formula that is almost certain to fail, and that reduces some States' spending to levels that cannot possibly provide sufficient funds or flexibility to serve their citizens. And even if States could implement managed care systems perfectly, it is foolish to assume that health care for millions isn't still in jeopardy. As a prominent leader in one of the Nation's most successful State managed care programs reminds us, `you can't do it on the cheap, and you can't do it on the quick.' The Republican plan rejects that wisdom and depends on both.

September 22, 1995--the day this act passed--will not be remembered as a day when legislative compromise triumphed or sound public policy prevailed. Instead, it will be remembered as a day when a huge social experiment was unleashed by Congress with almost no details or public discussion. And because this plan essentially risks the health care of millions, this date might also be remembered as a day in which some of the most socially irresponsible legislation ever was passed by the Committee on Commerce.

John D. Dingell.
Henry A. Waxman.
Edward J. Markey.
Ron Wyden.
John Bryant.
Rick Boucher.
Thomas J. Manton.
Edolphus Towns.
Gerry E. Studds.
Frank Pallone, Jr.
Sherrod Brown.
Blanche L. Lincoln.
Bart Gordon.
Elizabeth Furse.
Peter Deutsch.
Bobby L. Rush.
Anna G. Eshoo.
Ron Klink.
Bart Stupak.

The Commerce Committee majority transmitted its report on the Medicaid title of the reconciliation bill to the Budget Committee at about 6 p.m. on Monday, October 9--a national holiday--apparently at the insistence of the Budget Committee's staff. Until that moment, the majority and minority on the Commerce Committee had operated under a longstanding, well-established, and mutually beneficial process for the filing of committee reports and any accompanying minority, dissenting, separate, and other views.

Under that process, followed prior to January 1995 when the Democrats were in the majority and since January 1995 when the Republicans have controlled the House, near-final drafts of committee reports would be shared with the minority, who would be given a reasonable--and sometimes more than reasonable--period of time to review their contents and suggest changes, edits, or other modifications. Of course, the minority does not have a veto over the contents of the report, and the majority is certainly entitled to include in a report both its policy judgments and whatever conclusions it may draw from the facts in the record. But the minority has always been permitted to question the accuracy of factual assertions in the report or to ask that potential misimpressions of fact be clarified. On more than a few occasions, conclusory statements based on such factual errors or misimpressions have had to be adjusted accordingly. And of course, suggestions as to grammar and syntax have generally been welcomed.

This process resulted in a better, more professional committee product.

Although it took some modest additional time and occasionally provoked some professional disagreements, the process produced documents that could be relied upon confidently in future years by both sides and by any outside party as reliable sources of legislative history and especially the committee's intentions. It also saved the majority from potential embarrassment on the House floor, where the manager of the bill can be called upon by opponents to explain errors and omissions in the report.

The majority and minority on this committee generally worked well with one another during this process, probably because it was based on mutual courtesy and respect rather than on any written rule or right. In return for the courtesy of being given a reasonable time to review and comment upon the draft report prior to its filing, the minority committed to not using its views to criticize or even comment directly upon the contents of the report.

Until now, I am not aware of a single instance in which that process produced an unsatisfactory result or in which either side breached its understandings with the other. Regrettably, although hopefully not irreparably, that unblemished record has been stained by the filing of this Medicaid report.

This half-inch thick, single-spaced document was shared with the minority for the first time at 11 a.m. on Monday morning, October 9--2 hours after the Republican majority delivered to us for the first time its 400-plus page amendment in the nature of a substitute for the Medicare bill that was to be marked up the following day. Although that day was a national holiday, the minority staff was working to prepare for the Medicare markup. At around 4 p.m., we were informed for the first time that the majority planned to file the Medicaid report that afternoon. The only reason given was that the staff of the Budget Committee was demanding it. It obviously would have been impossible for the staff to review and offer intelligent comments on a document of that size and scope in just a few hours even if there were no other business pending that day or the next. Being placed in that position with a Medicare markup looming the next day went well beyond the point of reasonableness.

I am deeply perturbed that neither the chairman of the committee nor the committee staff had sufficient respect for their professional relationship with the minority or for the traditions of the committee to tell Mr. Kasich that he would simply have to wait, even if only overnight. But apparently such respect is lacking, for the report was indeed transmitted at around 6 p.m. that evening, with no minority review, input, or views--although we were told that the Budget Committee staff promised to include our views later in the printed report on the reconciliation bill. In light of this unprecedented breach of comity, I take this opportunity to do precisely what the minority, both Republican and Democratic, have always refrained from doing in minority, dissenting, or separate views--that is, commenting directly upon the contents of the report. There is indeed much to comment upon, because the extreme ideological agenda underlying the bill has resulted in the inclusion of a number of questionable factual assertions and the omission of a number of inconvenient facts to convey false impressions in the report. The speed with which it was obviously prepared to meet an artificial deadline has also resulted in a certain sloppiness in the use of language which does the committee little credit. I will highlight just a few examples:

South Carolina's Neonatal Cocaine Treatment and Prevention Program. The report contains a discussion of a program at the Medical University of South Carolina [MUSC] designed to reduce the number of crack babies. The report describes the program as an `unprecedented success' and decries the Federal Department of Health and Human Services' threats to terminate Federal funding as an example of unwarranted Federal interference with State innovation.

The report fails entirely to note that HHS became involved only because serious concerns were raised about the inadequacy of MUSC's institutional systems for protecting human research subjects; the program was found to be violating the Civil Rights Act; and research experts declared the project to be `the worst kind of research, conducted by individuals who are not * * * qualified or competent.' Incidentally, the attorney general of South Carolina, who testified at the subcommittee about the State's experience with HHS, was at the time of the hearing a named defendant in a lawsuit aimed at ending these abuses.

The Governors' Testimony. In discussing the Health Subcommittee's June 8, 1995, hearing on Medicaid, the report dutifully notes the appearance of several Governors, including Florida's Governor Chiles, and discusses some--but only some--of the testimony presented. To read the report, one would think that only Governors Edgar of Illinois and Engler of Michigan had anything useful to say. The report totally ignores Governor Chiles' testimony, which emphasized the great danger to senior citizens, poor people, and the States of limiting the growth of Federal spending on Medicaid, especially for growth States like Florida which are experiencing tremendous increases in their elderly populations.

Statements of Committee Intent. The report generously expresses `the committee's intention'--an intention not reflected anywhere, to my knowledge, in the record of the markup--`that states protect against the impoverishment of the community spouses and adult children of institutionalized family members' and that `the policy under current law * * * shall apply to children of institutionalized parents.' Of course, there is absolutely no provision in the bill itself that ensures this result. In fact, the actual legislative record of the committee would convey to the objective observer precisely the opposite impression. The Republican members of the committee voted unanimously against Democratic amendments to preserve in statutory language precisely the protections now in current law. Thus, the intention expressed in the report is not only worthless as legislative history, it is contradicted directly by the plain record of the markup. Other expressions of the committee's intention sprinkled throughout the report should similarly be viewed with some skepticism.

There are many more examples of incorrect, misleading, or simply sloppy draftsmanship in the report in question. I have resisted the temptation to deal with the multitude of grammatical, syntax, and proofreading errors we might have been able to point out to the majority if given the chance--some of which, incidentally, dramatically alter the meaning of the sentences in which they appear.

For the moment, at least, it should suffice to observe that for no particularly good reason, the minority has been denied an important and traditional courtesy always accorded to the Republican members on this committee when they were in the minority. Regrettably, one of the few areas in the 104th Congress in which a modicum of decency and comity still prevailed has gone the way of so many other traditions of decency and comity in the House--swallowed up in the Republicans' urgent zeal to remake America because, like democracy itself, it is occasionally inconvenient. It is not too late to retrieve this mistake; for now, however, the question of whether it is worth retrieving--and worth preserving for the future--lies in the hands of the chairman and his Republican colleagues.

John D. Dingell.

104th Congress: Democratic Perspectives
103rd-107th Congress Committee Activity