Summary:

All articles in Senate section

MAKING FURTHER CONTINUING APPROPRIATIONS FOR FISCAL YEAR 2001
(Senate - October 27, 2000)

Text of this article available as: TXT PDF [Pages S11206-S11230] MAKING FURTHER CONTINUING APPROPRIATIONS FOR FISCAL YEAR 2001 Mr. LOTT. Mr. President, I ask unanimous consent that the Senate now turn to the continuing resolution, H. J. Res. 117, that no motions or amendments be in order, and the time between now and 3:15 p.m. be equally divided between the two leaders. I also ask unanimous consent that the vote occur on adoption of H.J. Res. 117 at 3:15 p.m. and paragraph 4 of rule XII be waived. The PRESIDING OFFICER. Is there objection? Mr. KERRY. Mr. President, no objection. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. LOTT. Therefore, the next vote will occur at 3:15 this afternoon. Mr. President, for the information of Senators who are interested in the schedule, it is expected that the vote at 3:15 p.m. will be the last vote of the day. However, at this time, in view of the need for continuing resolutions, unless some different agreement can be worked out, we will be expected to have votes on Saturday and on Sunday with continuing resolutions. Of course, there is serious work underway right now on the matters of disagreement. I note Saturday is the sabbath for a number of our colleagues and for observant Jews, and Sunday is my sabbath. I prefer we get a CR that will take us to Monday while we continue to work, but we have not been able to enter into that agreement yet. If necessary, we will be here and voting on CRs on Saturday and on Sunday. It is my expectation that vote will come late in the afternoon or early evening on Saturday. Also, again, Senator Stevens from the Appropriations Committee and the appropriators are meeting right now on the final details of the Labor-HHS bill. There is also some discussion about how we can move some of the problem issues out of the CSJ bill that has been reported out of conference and passed by the House. Corrections or changes, if agreed to, could be entered into the Labor-HHS bill. I do want you to know the appropriators are busily working in their magical way, and I am sure at sometime a cone of honey will be produced, or maybe that is the wrong terminology to use, but they are getting closer to agreements. I hope it is something that can be signed, or I hope it is something I can vote for, too. Both of those are undetermined at this point. I know Senator Kerry wants to make further comments about an earlier issue. We now have 3 hours and 15 minutes to talk about the CR or other issues Senators wish. Mr. STEVENS. Will the Senator yield for a moment? Mr. LOTT. I will yield since I invoked the name of the distinguished chairman of the Appropriations Committee. Mr. STEVENS. My name came up as a magician. I am Aladdin. I rub the lamp. Mr. LOTT. Very good. That is right, and I hope you will start rubbing it very fast. Mr. STEVENS. I am supposed to bring you out of the lamp. Mr. LOTT. All right. Mr. STEVENS. Mr. President, I have to inform the Senate that if we finish the Health and Human Services bill today--we are in good-faith negotiations, and we expect to be quite late today--that bill could not be finished in terms of its reading out and printing and being available to both sides until Monday afternoon at the earliest. I hope we can get some consideration from the administration and from everyone to understand that. We would have two sessions--one on Saturday and one on Sunday. Some people work on their sabbath and some people do not. We have a staff who will be working, in spite of that, around the clock to read the legislation. There are some 40 pieces of legislation, in addition to the bill itself, that will be in the Health and Human Services bill; at least that will be our recommendation. I urge that somehow or another I be allowed to offer an amendment to this continuing resolution and make it Tuesday night. I have told the White House and OMB that there is no way, even if we finish tonight, that we can take it up tomorrow or take it up Sunday. We will not be able to take it up until Monday night. The White House should know that, OMB should know that, and I hope the minority agrees with us. We cannot vote on this bill, the major wrapup piece of legislation, until, at the earliest in the Senate, Tuesday. The House may be able to vote on it Monday night. To argue over a CR that takes us to tomorrow and to argue over one that takes us to Sunday and one that takes us to Monday, when there is nothing we can do about finishing up this Congress, is just demonstrating our inability to deal with reality. I hope the leader will allow me some time today to offer a motion to amend that CR and make it Tuesday. I have discussed it with the House, and they are in session. They can adopt it and send it to the President. Somehow or another, this idea we can only go day to day and we can produce something tomorrow that we have not finished today, when we have just one bill left which itself cannot be finished until Monday night, I think is foolhardy. I am prepared to challenge the President and all of his people to come to reality. The discussions are being held with his people. If we do not finish them tonight, we will finish them tomorrow. If we do not finish them until tomorrow, it will be Tuesday morning before it is read out. Maybe people do not understand what we do. Each side has a copy of the final provisions. Each reads it through, and we call in the people from the committees involved to be sure the provisions are correct. Then we get together and our staffs read it together, and each makes certain the other has not made any changes in it. And that will not be finished. It will take at least 20 hours of reading to do that. It will not be finished until Monday night. Mr. LOTT. Mr. President, I say to the Senator from Alaska, we do not quite know what the appropriators do. I am not sure we really want to. We wish you the best because at least all of our schedules are in your hands, if not our lives. But I think what the Senator is saying is eminently reasonable. I urge you to get Senator Byrd to discuss that with the leadership on the other side, and if you talk with Senator Reid, we will communicate with the administration and hopefully maybe by 3:15 p.m. we can take that reasonable action. I certainly would support it. But we have to get an agreement. I yield the floor. Mr. KERRY. Mr. President, if I may respond, I am confident the leader on our side wants to be as reasonable as possible. The issue on our side has been, as we said earlier, the level of progress, No. 1, and No. 2, the question of inclusivity. What the chairman just said suggests there is a lot more inclusivity, and I presume reasonable minds will prevail at an appropriate time. A judgment has to be made by the administration and the minority leader with the level of progress. I am confident that will happen. If I may continue, Mr. President, for a moment. Would it be appropriate at this point in time--Senator Wyden has been waiting for a long time; I know the Senator from Texas has been waiting. I want to make a few comments yielding myself time off our time for a brief moment--I will be brief--at which point, may we have a unanimous consent agreement? [[Page S11207]] Mr. WYDEN addressed the Chair. The PRESIDING OFFICER (Mr. Allard). The Senator from Oregon. Mr. WYDEN. I would ask---- Mr. KERRY. I will yield only for the purpose of asking a question. Mr. WYDEN. I thank the Senator. I ask unanimous consent that I be recognized, Mr. President, to speak for up to 30 minutes on the continuing resolution when Senator Kerry has completed his comments. Mr. KERRY. Mr. President, would the Senator agree that the Senator from Texas was, in fact, going to precede him? Mr. DOMENICI. Reserving the right to object, might I ask a question? Mr. WYDEN addressed the Chair. The PRESIDING OFFICER. The Senator from Massachusetts has the floor. Mr. KERRY. I am willing to yield for a question, but I am trying to proceed here, if we can. Mr. WYDEN. Would the Senator from Massachusetts yield for me to clarify this? Mr. KERRY. I yield for the purpose of clarification only. Mr. WYDEN. I appreciate the Senator yielding. I was prepared to allow Senator Gramm to speak because the two of us were on the floor at the same time, to speak for 15 minutes, on the proviso that I could go next. I would then talk for up to 30 minutes. Mr. KERRY. I would modify the unanimous consent request. Mr. NICKLES. Reserving the right to object. The PRESIDING OFFICER. The Senator from Oklahoma. Mr. NICKLES. Knowing the subject matter that my colleague from Oregon wishes to speak to, I would like to be recognized for 15 minutes, following the Senator from Oregon, to respond. Mr. DOMENICI. Reserving the right to object. The PRESIDING OFFICER. The Senator from New Mexico. Mr. DOMENICI. I have the right to object. There is a unanimous consent request pending. Mr. KERRY. Absolutely. Mr. DOMENICI. I would like to have 20 minutes reserved for me when you are finished--whoever is in the chain, whatever that is. Mr. REID. Reserving the right to object, Mr. President. The PRESIDING OFFICER. The Senator from Nevada. Mr. REID. I am happy, until 3:15, to work out time agreements so people are not standing around. But the way it now appears, it is going to be a little unbalanced. We should rotate time wise, not necessarily who is speaking but how much time. We want to work Senator Conrad into this mix. Mr. KERRY. Mr. President, could I suggest the following? And I think it will meet everybody's needs. At the conclusion of my brief remarks, the Senator from Oregon be recognized, following him, Senator Nickles to be recognized, with the time to be selected by the managers for how much time they allocate, and subsequent to that, someone on our side, to be named, to be recognized, and then the Senator from Texas. Mr. DOMENICI. What about the Senator---- Mr. KERRY. Afterwards it would come back to this side, and then the Senator from New Mexico. Mr. BOND. Reserving the right to object, apparently there is a lot of discussion that needs to go on. We need to work out the time. Could we ask-- Mr. KERRY. You control it. Mr. BOND. I know, but could we ask the initial remarks of the Senator from Oregon and the Senator from Texas to be 15 minutes each, so then we can work out a schedule? We know that we will then be able to develop the schedule so that all of the important things that people on both sides of the aisle need to say before 3:15 can be said. Mr. KERRY. Mr. President, the Senator from Oregon has requested 30 minutes. I am prepared to yield him 30 minutes from our time. I think we should each control our time. The PRESIDING OFFICER. The Senator has that right. Mr. NICKLES addressed the Chair. The PRESIDING OFFICER. The Senator from Oklahoma. Mr. NICKLES. OK, if our understanding is that the Senator from Oregon receives up to 30 minutes, if you would allocate me up to 30 minutes in response, and hopefully neither one of us will take that much time, and then you can continue the division of time. Certainly it would be appropriate. Mr. KERRY. Mr. President, I ask unanimous consent for that request. The PRESIDING OFFICER. Without---- Mr. DOMENICI. No. Mr. President, I reserve the right to object. Where are we now with reference to whether the Senator from New Mexico gets to speak? Mr. KERRY. Mr. President, the Senator from New Mexico follows on the Republican side after the Senator from Texas. Mr. REID. However, I say to Senator Domenici, it would be the Democratic side's turn prior to you. Mr. DOMENICI. I understand. The only thing I am concerned about, if you are going an hour equally divided--3:15 is the vote; isn't it? Mr. KERRY. Mr. President. I think this is not as complicated as we are making it. If I could try to simplify it, the unanimous consent request requires us to alternate to each side. We will go, immediately following my comments, to the Senator from Oregon, and then back to the majority side, Senator Nickles, and then back to our side to a person to be yet named, and then back to the Republican side to the Senator from New Mexico, and then back to our side, which follows Senator Gramm. And that is the order with the time to be determined by the managers on each side. The PRESIDING OFFICER. Is there objection? Mr. DOMENICI. Mr. President, reserving the right to object, I wonder if the manager of the bill, as part of this, would use his efforts with reference to how much time each one gets so that at least those we have agreed to would be able to speak before 3:15. You can do that, I believe. Mr. BOND. Mr. President, reserving the right to object, I believe the agreement is that between now and 3:15 the time is equally divided. So that would roughly be 3 hours and 10 minutes. So that is an hour and 45 minutes for each side. With that understanding, each side has 1 hour 45 minutes. Mr. KERRY. Mr. President, I ask unanimous consent that the time consumed to this point not count as equally divided. The PRESIDING OFFICER. Is the Senator putting off the 3:15 vote? Mr. KERRY. No. But I was recognized and therefore I do not want this entire colloquy to come from my time. I am asking that the time commence for division. The PRESIDING OFFICER. It has to come from somebody's time. Mr. KERRY. It comes equally divided from both sides. The PRESIDING OFFICER. Is there objection? The Chair hears none, and it is so ordered. Mr. KERRY. I thank the Chair. Mr. President, I will be very brief. I simply want to respond very quickly to the comments made by the distinguished majority leader who appropriately cited many items within the legislation that we all ought to support. Indeed, that is precisely what I said in the course of my comments. We do support a great deal of what is in the legislation. But what the majority leader never did, in the course of his comments, was address any of the issues we raised with respect to the health care system, the fundamental fairness, and the issues of contention raised by the President of the United States. He dismissed that rather quickly and cavalierly, suggesting that the President got a lot of what he wanted. Let me be very precise. Of 119 individual tax provisions in this bill, 35 of them are from the President's budget; that is 30 percent of the provisions, not the 80 percent that the majority leader talked about. Mr. President, and of the $240+ billion in tax cuts in this package, only $48 billion, or 20 percent of the total, is from the President's proposals. No one should be misled by the comments of the majority leader to believe that this is somehow a fair division, and that the President, in offering to veto, is not vetoing it on substantive, clear, and distinct differences of policy. Secondly, the majority leader suggested that much was included in this, and this is sort of mostly a bill that is somehow beneficial. What he neglected to address was the issue that we raised [[Page S11208]] about how this bill came together and what is in it as a total. As a total, it represents, in a sense, a consensus of what the majority wanted to put in. But it was arrived at without discussion with the minority, and so there are whole bills in here that raise very significant issues. One of them is the issue to which the Senator from Oregon is going to talk. I just want to take about 2 minutes to say something about it. There is, in this tax bill, a whole piece of legislation called the Pain Relief Promotion Act. My colleagues ought to listen to that title very carefully: Pain Relief Promotion Act. That title is an extraordinary, almost cynical, play on words. It completely distorts the notion of what happens in this legislation. First of all, this Pain Relief Promotion Act completely preempts State law with respect to the definition of a legitimate medical purpose with respect to State medical regulations. The implications of that with respect to this are to require the Drug Enforcement Agency's agents to determine whether a physician's prescription of a controlled substance for pain relief medication was intended to relieve pain or to assist in suicide. I hope my colleagues focus on that. The Pain Relief Promotion Act is asking DEA agents to make a judgment of intent about what a doctor intended to do in prescribing a prescription drug to a patient who is terminally ill in a hospital. Are we seriously going to go down that road and DEA agents to have the potential to provide a 20-year prison sentence for a doctor for making a judgment about pain medication to an ill patient in a hospital? I find that extraordinary. Yet the majority leader tried to suggest on the floor that this is just some innocuous conglomeration of legislation that has no major impact on the lives of Americans, except 80 percent of it is good and what the President wanted. That is a fight worth fighting on the floor of the Senate today. I am not going to go into all the details. I just went through a long hospitalization issue with a parent. I know what that pain medication meant for cancer. I know how difficult it was in the hospital to get the proper pain medication, to have people comfortable with what was being dealt. If we suddenly layer that kind of legal structure over the delivery of medical care in America, we are taking an extraordinary step that at least ought to be properly debated on the floor of the Senate in the context of hearings, the process, and so forth. A recent New England Journal of Medicine article said the following: If the Pain Relief Promotion Act becomes law, it will almost certainly discourage doctors from providing adequate doses of medicine to relieve the symptoms of dying patients. That does not belong in a tax bill, conglomerated in a room without the consent of Democrats. That is why we are here. That is why we are fighting about this legislation. My final comment is, with respect to the tax components of this, major components of fairness were stripped out of this bill. The majority leader talked about how important it is to provide savings for Americans. Yes, it is important. There is not one of us on this side of the aisle who won't vote to encourage Americans to save money. There is not one of us who does not support a 401(k) program. But when we are making a choice about how much money we can allocate to people based on the overall amounts of money available and that choice was made by the Republicans alone to encourage 401(k)s to the exclusion of middle- and low-income Americans to be able to save, that is a fight worth fighting. That is a question of fundamental fairness. The 401(k)s are terrific for lawyers and doctors and high-income people, but the kind of Americans we were trying to reach--at the $30,000, $25,000, $20,000 income level--have a lot harder time gaining benefit from a 401(k). What the President had in his proposals was a credit that would have gone directly to those hard-working Americans. That was stripped out. That is why we are here now raising these issues regarding this legislation. It is a question of fundamental fairness. I regret that in all of his comments this morning, the majority leader did not address the fundamental issue of fairness that we are raising and over which the President has threatened a veto. My absolute last comment: The President made clear that he would veto this. So the majority leader comes to the floor and says, well, we will come back, and we will work this out down the road. Why? Why work it out down the road? Why not work it out now? Why not work it out in the last month before we came to the floor knowing it would be vetoed? If we can work out these other issues, if we weren't seeking a political advantage, we could certainly work that out. People may not like the fact that the President of the United States is who he is and is of the party that he is, but he has the veto. We have been through this since 1995, when the Government of the United States was shut down for the first time in American history over this very same challenge. And here we are again, in the year 2000, with the same sort of sense of frustration over the fact that he has the veto pen that brings us to this point of confrontation. The fact is, he does have that pen. He has the constitutional right. He made it clear he would do it. And the reasons he has chosen to do it are substantive and important to the American people. That is what this debate is about. I thank my colleague for his courtesy. I yield such time, up to the 30 minutes, as he might consume to the Senator from Oregon. The PRESIDING OFFICER. The Senator from Oregon. Mr. WYDEN. Mr. President, before he leaves the floor, I thank the Senator from Massachusetts, both for his focus on bipartisanship with respect to the overall package and for his very thoughtful comments about the assisted suicide issue. I think he has summed it up very well. I feel bad that I had to object to consideration of the tax legislation this morning. I will take just a minute or two to describe why and then go on to talk about the overall issue as it relates to pain relief and what is in the tax bill. I know it is an inconvenience to a number of Senators to have me talk about this subject at length. This is an important time in the year for colleagues. I regret the inconvenience. But I believe what is in the tax bill is going to cause so much pain and suffering to families all across the country, that the interests of those families who are going to suffer if this tax bill as written becomes law have to come first. First and foremost, I want the Senate to understand that before we are done, I am going to speak at length about exactly what the consequences will be for families all across this country, who needlessly are going to suffer great pain that could be averted, if the bill becomes law as written. In addition, while the majority leadership in the Congress is attempting to throw Oregon's vote on assisted suicide into the trash can, Oregonians are holding on to ballots such as this one. They are wondering if this ballot, this sacred vote, really counts. Mr. REID. Will the Senator from Oregon yield for a question? Mr. WYDEN. In one moment. I am obligated to speak for those Oregonians, each and every one of them, over a million Oregon voters, because I want them to understand that I am going to do everything in my power to make sure the ballot I have in my hand and the ballots they are holding right now actually count. The fact is, the senior Senator from Oklahoma has put into the tax bill legislation that would silence over a million Oregon voices. I am going to be here to make sure those voices are heard. I yield to the Senator from Nevada. I thank him for his thoughtful comments last night on this issue. Mr. REID. Mr. President, I have a question. This question comes from the people of the State of Nevada. It is my understanding that if this provision of this tax bill passes, a vote that was taken in the State of Oregon, open to everyone in the State of Oregon, would be basically repealed by the Congress of the United States; is that true? Mr. WYDEN. The Senator is correct. In effect, it would be impossible to carry out the will of Oregon voters on a matter that has historically been left to the States. [[Page S11209]] What is so striking--and I appreciate the Senator's question--is that we constantly have colleagues come to the floor and talk about the importance of States rights and the beauty of the 10th amendment. Then when they don't happen to agree with what a State is doing, I guess the 10th amendment isn't so important anymore. I appreciate the Senator's question. Mr. REID. One more question I will ask the Senator from Oregon: Then the people of Nevada, no matter how they feel about the substance of the legislation that passed in the State of Oregon, should be warned by me and others that if this piece of legislation passes, if we pass a ballot proposition or a law in the State of Nevada, it would be subject to repeal by the Congress. We in Nevada believe in States rights. We are part of the great western heritage. Is it true that if this particular legislation passes, the people of the State of Nevada should be aware of the fact that we could repeal something that they pass in the legislature or by ballot proposition? Mr. WYDEN. The Senator is absolutely right. People in Nevada should understand that what this legislation does is take away from all States what has historically been their prerogative, which is to determine appropriate medical practice. There is a great body of case law and a variety of legal precedents that establish that right, and folks in Nevada should understand that. I think it is also on point to note that people in Maine are voting right now on this issue. I think it is open to some question as to what will be the effect of that Maine ballot measure right now if the tax legislation were to pass as written and, in effect, throw Oregon folk to the trash can, and it might do the same thing for people in Maine. I thank my colleague for his questions. Mr. President, if the Senate was here today to vote on a stand-alone bill which would lead to unspeakable, avoidable suffering for hundreds of thousands of terminally ill citizens, there is no question in my mind that the Senate would not pass it. So what we have to ask is why has the Senate leadership stuck into this tax bill, legislation that the American Cancer Society and over 50 nationally recognized health organizations believe will cause unnecessary suffering for thousands of terminally ill citizens in each State in our country. What is particularly ironic is that this legislation has not moved forward with any of the traditional procedures of the Senate. It has never been reported out by a committee of jurisdiction. It has never been subject to amendment by the full Senate. There has never been a chance to debate it on the floor of the Senate. The fact is that this legislation, which is one of the central bioethical questions in our society, was stuffed into the tax bill close to midnight the other night, without overcoming even one of the traditional procedures the Senate follows. Now, Senator Kerry noted the name of this bill. It is the so-called ``Pain Relief Promotion Act.'' The fact of the matter is, this legislation is really the ``Pain Promotion Act'' because it is going to have a chilling effect on health care providers all across this country who simply want to practice good pain management. I know my friend from Colorado, who is in the Chair today, also represents a rural State. Let me tell you about the kind of concern I have if the Nickles bill, as written, becomes law. Let us say you have a physician in Colorado or in Iowa or another rural State who is opposed to assisted suicide--and I am opposed to assisted suicide; I have joined colleagues here in voting to ban Federal funding of assisted suicide. But let's say a physician in Colorado, who is opposed to assisted suicide, wants to treat pain aggressively with a suffering patient. If they do, their intent, their mental calculus can later be dissected by law enforcement officials who, if they believe that anti- assisted suicide physician really had a different intent, can prosecute that physician. And the medical providers involved would be subject to a mandatory minimum sentence of 20 years, a fine that is upwards of a million dollars and they would lose their DEA registration. The fact is that the undertreatment of pain today is a documented public health crisis. There was just another survey published very recently demonstrating that physicians and health care providers are reluctant to treat pain aggressively because they are very fearful of having their decisions second-guessed by law enforcement. There are a number of us--the American Cancer Society is one--who are opposed to assisted suicide. Yet the American Cancer Society has said that because of the chilling ramifications of pain management, it believes the Nickles legislation included in the tax bill is going to hurt cancer patients nationwide. The American Academy of Family Physicians is another major medical group opposed to assisted suicide and they oppose the Nickles legislation; so is the American Nurses Association, the Oncology Nursing Society, the Indiana State Hospice and Palliative Care Association, and the Texas Medical Association. In sum, there are more than 50 respected health organizations that are opposed to physician- assisted suicide and also oppose the Nickles legislation included in this tax bill. If we do care about humane medical treatment--and I know that every Senator cares about the suffering of those who are vulnerable--I believe when you actually read what is in this tax bill and what Senator Nickles has been able to include, if you wish to join us in alleviating suffering and protecting the poor, elderly, and vulnerable, you have to oppose the Nickles legislation because it hurts the very people that our colleagues care about. I want to raise a troublesome flag now with respect to this bill. To my knowledge, not a single nursing organization in America supports the bill purporting to relieve pain for the dying--not one. But seven nursing organizations, including the American Nurses Association, National Association of Hospice and Palliative Nurses, Pediatric Oncology Nurses, and the American Society of Pain Management Nurses, oppose the alleged pain relief bill included in this tax legislation. Now, you know when a loved one is in a hospital, the physician may have ultimate responsibility for the care, but the nurses are the ones on the front lines coping with pain. Seven major nursing organizations, representing those on the front lines, have come out against the Nickles bill. So the question is, how could all of this happen? I think the Senate may want to reflect on the procedures involved because I think other Senators may find the same sort of absurd process applied in matters that are important to their States. When Senator Nickles introduced the Pain Relief Promotion Act last year, the bill was referred to the Committee on Health, Education, Labor, and Pensions. That is because, for obvious reasons, the bill has enormous ramifications for pain and health care. The bill received a hearing in 1999. It wasn't acted on by the committee. Members on both sides of the aisle expressed concerns about the legislation's impact on end-of-life and pain care. Unfortunately, a House bill identical to that legislation was passed by the House and was suddenly referred to the Senate Judiciary Committee, which didn't have jurisdiction on this critical health issue. The Parliamentarian did something that I believe showed great courage, and I commend him for it. He simply told the news media that a mistake had been made, that the Nickles legislation had been referred to the wrong committee. I thought it was a very courageous, gutsy thing for the Parliamentarian to do. It was the kind of unfortunate accident that can happen. The Judiciary Committee, as one might guess, had a chairman who was sympathetic to the Nickles legislation who pushed and pushed to mark it up before the American Cancer Society made it clear that the Nickles legislation would hurt cancer patients. They got the bill out of the Judiciary Committee on a 10-8 vote. Now you know that the bill is very controversial. That is why it is coming to the floor of the Senate in the form it is. They could not get the Senate to approve this legislation if the traditional procedure of the Senate were followed. In fact, since the Nickles legislation had been introduced with a handful of Democrats who were supportive, several have now indicated their opposition largely for the reasons I have cited--that the Nickles legislation would have a chilling effect on pain management. [[Page S11210]] The reason this bill has been stuffed into the tax legislation is that it cannot go forward on its own. There is too much controversy attached to it, too much uncertainty about its ramifications on pain care for the dying for the leadership to bring it to the floor in the normal way. The fact is that the Senator from Oklahoma doesn't have the votes. At one point, the supporters had 80 votes. It got out of the Judiciary Committee 10-8. I said last summer, let's follow the traditional rules of the Senate. After we had agreed to that, the distinguished Senator from New York, who is very opposed to assisted suicide, saw how much damage this legislation would do for the suffering and said he couldn't support the bill. Senator Nickles saw that support was quickly moving away from him and that he didn't have the votes to pass his legislation following the traditional procedure of the Senate. To compensate for the lack of votes and the inability to follow traditional procedures in the Senate, the senior Senator from Oklahoma has chosen the least democratic method at his disposal to circumvent an honest debate and avoid even a couple of modest amendments. What is striking is the senior Senator from Oklahoma has on various occasions apparently said we shouldn't have extraneous matters brought in that had not been considered separately in a conference report. But he is allowing exactly this to be done with his bill. The senior Senator from Oklahoma is betting that by stuffing his legislation into this conference report, everybody is going to be so resigned to the outcome and so anxious to bring down the gavel and get home that this body is just going to ignore its obligation to the scores and scores of families and suffering patients who are going to be hurt by this legislation. The senior Senator from Oklahoma may be right. I suppose that is the way it often works in the Senate. However, I am going to be asking my colleagues--and will talk more about this subject when we get back on the tax legislation--to step up to the suffering with so much on the line. I want them to know what is at stake. If this legislation is approved, the friends of every Senator, loved ones, and constituents are going to find it impossible to obtain aggressive pain care in their communities. Patients unable to obtain pain care are a fact of life right now, but at least we have some solace in knowing that thousands of brave health professionals are willing to risk their reputations and their careers to prescribe controlled substances to relieve suffering. If the tax legislation goes forward without removing the Nickles bill, the undertreatment of pain, which is already a documented public health crisis, is going to get worse. Our loved ones--yours, mine--and individuals in every community across this country are going to suffer the consequences with this flawed legislation. I hope that before we have a final vote on this issue, each and every one of our colleagues will read the statement of the American Cancer Society on this legislation. They are an organization that opposes assisted suicide, as I do. Yet here is what they say about the Nickles legislation. This is the direct statement of the American Cancer Society about the Nickles legislation. The American Cancer Society states, and I quote: Under the act, all physicians, and particularly physicians who care for those with terminal illnesses, will be made especially vulnerable to having their pain and symptom management treatment decisions questioned by law enforcement officials not qualified to judge medical decision-making. This can result in unnecessary investigation and further disincentive to aggressively treat pain. That is the American Cancer Society describing how the Nickles legislation will have a chilling effect on pain care. I would like to offer a bit of a historical perspective. The nonprescription abuse of opioids and cocaine around the turn of the century and the growing sentiment that doctors at that time were one component of the growing drug problem in America helped contribute to the stigma associated with the use of opioids for pain. According to a seminar on oncology and in an article by Dr. David Wiseman, ``Doctors, Opioids, and the Law: The Effect of Controlled Substances Regulation on Cancer Pain Management,'' when regulations were enacted in 1914 to keep from treating drug addicts with opioids, the stigma attached to those drugs continued to grow, and physicians across the country became more reticent to prescribe those drugs because of their fear of criminal or licensing sanctions against their practice. The undertreatment of pain is due to a variety of complex causes. There certainly are a number of studies that show that the threat of legal sanctions is one of the main roadblocks to humane pain control. And that is before the Nickles legislation in the Senate would direct to Drug Enforcement Administration to have law enforcement agents second-guessing the judgment of doctors. One 1994 California survey showed that 69 percent of physicians cited the potential for disciplinary action as a reason for prescribing opioids conservatively. One-third of the doctors went on to acknowledge that their own patients may be suffering from untreated pain. What we saw last week in Oregon was a brand new study that showed again that physicians are fearful about aggressively treating pain for fear of legal prosecution. It confirmed the 1994 California survey. For that reason, I am happy to yield to my friend and colleague. Mrs. BOXER. Mr. President, I thank my friend for bringing these issues to the floor of the Senate. I think this issue of pain abatement is a key issue. I go even further than that in this debate because the issue of physician-assisted suicide, which I do not support, is really not what I am afraid of in Senator Nickles' approach. But I just want to say to my friend, thank you for bringing this issue forward. I watched a loved one, who was as close to me as anyone could be, cry out in pain hour after hour, saying: I don't want to live. I wanted this person to live more than I can say. But I went to that physician of this loving relative and I said: Please, please, do everything in your power to anesthetize this pain, to sop this pain. This physician looked at me and he said: I will do everything that I can. I am so fearful that someone else, if this bill becomes law, will look at me and say: Barbara, I know how much you love this individual, but I can't do more than I am doing because I'm afraid I'm going to be hauled off to prison. I don't want any family looking in the eyes of a physician, begging to put a loved one out of this type of misery and pain, being told that their hands are tied; they would love to help and they can't. That is why what the Senator from Oregon is doing is so important and why I am so saddened that this bill, in the dead of night, that could lead to people writhing in pain, not being able to get the help they need, was done in such a fashion where we really can't even give it the attention it deserves. As my final point, would my friend tell me again, for the record, so that everyone watching this debate can know, which organizations are opposing this Nickles provision for the reason that the Senator has stated--that it will lead to people suffering needlessly, and doctors being afraid to help them because they will be hauled off to jail. Mr. WYDEN. I appreciate my colleague's questions. There are more than 50 major health organizations. The American Cancer Society has stated why they feel this legislation would have a chilling effect on pain management. I want my colleague to know, because time is short, that Senator Nickles, in offering this bill, says doctors don't have anything to worry about with respect to prosecution under the bill--that his legislation says doctors can prescribe drugs which will hasten death if their intent is to treat the pain. So he is talking about ``intent.'' Our colleagues are right to be so concerned about who is going to determine the intent of the physician, who is just trying to help somebody suffering and gives a suffering person critical relief and dignity as they face difficult hours at the end-of-life. The person who is going to decide ``intent'' is not another doctor, not a nurse, not a health professional, not anybody with medical [[Page S11211]] training, but law enforcement officials. A law enforcement official is going to determine that medical provider's' intent. Somebody with no medical training is going to, in effect, have the authority to put medical providers on trial; a trial that could cause a provider to lose their license, serve 20 years in prison, and face upwards of a $1 million fine. It doesn't have to be this way. There are many who oppose assisted suicide, who want to work in a bipartisan way to promote better pain management and reduce the demand for assisted suicide. Mrs. BOXER. I thank my friend. Mr. WYDEN. The Senator from Oklahoma is not allowing Members to do that. The Senator from California has made the key point. At the end of the day, I want it understood when the people of Oregon cast a ballot like the one I have in my hand on a matter that has historically been left to the people of my State and to every State, I will do everything I can on the floor of the Senate to protect that vote. I yield the floor, and I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Mr. WYDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. WYDEN. Mr. President, I ask unanimous consent that the time be equally divided between both sides. Mr. BOND. I object. The PRESIDING OFFICER. The objection is heard. Mr. WYDEN. Mr. President, I will keep talking if the Senator from Missouri objects. I am sure some of our colleagues have other concerns. I will continue on this question of dissecting medical providers' intent, as the Nickles legislation does, a dissecting exercise that will be done by law enforcement professionals rather than medical providers. Here is what the American Cancer Society had to say about determining ``intent'' under the Nickles legislation. The American Cancer Society says: Unfortunately, intent cannot be easily determined, particularly in the area of medicine, where effective dosage levels for patients may deviate significantly from the norm. The question of deciding intent should remain in the hands of those properly trained to make such decisions--the medical community and State medical boards. What the American Cancer Society is saying, as with these other 50 organizations, they are especially troubled that the Nickles legislation is second-guessing the pain management practices of physicians and providers all across the country. It is especially troublesome because law enforcement officials, rather than health care professionals, are going to be the ones to assess the intent of a medical provider. A medical providers' intentions under any calculus, as the American Cancer Society has noted, cannot be easily determined. To allow law enforcement officials to have this enormous discretion, after the fact, to challenge our medical providers, in my view, is going to significantly compound the undertreatment of pain in America. Mr. NICKLES. Mr. President, I was told that the time of the Senator expired and I was coming to claim my time to respond. The PRESIDING OFFICER. The time of the Senator has expired under the previous order, and the Senator from Oklahoma is to be recognized. Mr. NICKLES. I will be happy to let my colleague conclude his thought. Mr. WYDEN. Mr. President, I hoped we could have worked it out. My time has expired. As the Senator from Oklahoma knows, I have wanted a real debate on this legislation for some time, so I am happy to have the Senator hold forth. The PRESIDING OFFICER. The Senator from Oklahoma. Mr. NICKLES. Mr. President, one, I wish to respond to my colleague and my friend from Oregon. He is my friend. We happen to have a disagreement on this issue. We have a difference of opinion, a rather pronounced difference of opinion. I heard several things in his statement that I want to correct. I almost don't know where to start. First, let me touch on a couple of things on procedure. This is so wrong procedurally and should not be in this bill. Again, he is my good friend, but he has known all along I would try to get this bill on the floor. Yes, it was put in the tax bill. I tried to put it in the appropriations bill. We ended up putting it in a tax bill. Is that the best way to legislate? No. I might tell my colleagues and my friend from Oregon I tried about half a dozen different ways to pull the bill up, to have it be an amendable state, to offer my colleague from Oregon or others a chance to have relevant amendments, and those offers were always rejected. So now we have the bill before the Senate. I might also mention, if one is complaining about this procedure, then we shouldn't have any problem with the Commerce-State-Justice because the administration is trying to put an amnesty provision that doesn't belong on the Commerce-State-Justice bill. It did not pass either the House or the Senate, and is totally extraneous to the conference. Senator Byrd had one dealing with trade that was on an appropriations bill. It should not have been. It was inserted. At least this bill did pass the House by over 100 votes. It did pass the Judiciary Committee. It has had hearings. It has been marked up. It has had 42 cosponsors--maybe my friend and colleague from Oregon has been able to convince one or two to get off. Senator Lieberman is still a principal cosponsor, to my knowledge. He testified in favor of this legislation, as have I. So this legislation is not new. It is not a surprise. My colleague from Oregon has sent several letters to all colleagues saying what is wrong with the legislation. I have sent several letters to all of our colleagues saying he was incorrect. So everyone knows about this bill and everyone knows at some point we are going to have a debate on it. I hope it will be passed. Let me touch on a couple of issues that were brought up. My colleague from Oregon said if this bill is passed it is going to tell a million people in Oregon who voted for this on a ballot initiative, a referendum, that their vote does not mean anything. I disagree with that. This bill does not overturn Oregon's law. I want to be very clear about this. This bill does not say anything about making Oregon's law null and void. What this bill does is it deals with pain and pain management. The bill does say: Oregon, you cannot overturn Federal law. It doesn't say quite that. Federal law, the controlling law, is the Controlled Substances Act. That is a Federal law. It passed in 1970. It controls very strong drugs, I tell my friend from New York. These are deadly drugs. They are strong drugs. They are under Federal control. They are not under State control; they are under Federal control. It is a Federal Controlled Substances Act. The State of Oregon cannot pass a law that changes a Federal statute. I make the analogy, Oklahoma might say let's legalize heroin. Oklahomans might pass that in a referendum, but it doesn't make heroin legal. It is still against the Federal law to use heroin. These are federally controlled drugs. They are deadly if they are used in very large quantities, but they are also very helpful. They can help alleviate pain. Unfortunately, we have a real problem in pain. I heard my colleague from California mention she knew a friend who was in enormous pain. We all have friends or families or have known people who are suffering and suffering greatly. I want to alleviate their pain. That is one reason why this bill was created. There were two reasons. We want to alleviate pain. That is why all the pain management groups endorse this bill. I will go through a list. My colleague from Oregon listed a few groups that endorsed his. We have 10 times as many people, groups, physicians, you name it--hospice care, palliative care, the American Medical Association, that endorse this bill; pain management societies--you name it. I will have all that printed in the Record. These groups, the hospice groups and others, their members worked their entire lives because they want to alleviate pain. This bill will alleviate pain. [[Page S11212]] This bill does two things. It says we can use these drugs. My amending the Controlled Substances Act says we can use these very strong drugs to alleviate pain. We put a safe harbor in to protect physicians, making sure when they use these drugs to alleviate pain, if it causes someone's death there will be no problem. The bill also says these drugs cannot be used for the purpose of assisted suicide. Guess what. That has been the law of the land for 30 years. These drugs were never allowed to be used for assisted suicide. The Drug Enforcement Administration--I will put a letter from Mr. Constantine who says he reviewed it--the Controlled Substances Act says these drugs can be used for legitimate medical purposes. In our bill, we state that includes pain management, the alleviation of pain. We put that in specifically so everyone will know: Use these drugs to alleviate pain. It is now in the law. Mr. Constantine also said it is not construed to be used for assisted suicide. You say: Why do you need this bill? You need this bill for two reason. One, we want to make sure everybody knows these drugs can be used to alleviate pain. What about the Oregon law? My colleague from Oregon said this is going to outlaw the Oregon law and nullify a million voters who voted for it. This is going to gut the bill. Granted, they have had dozens of suicides that have been committed using federally controlled drugs. Guess what. The law was always interpreted before that these drugs cannot be used for assisted suicide. They cannot be used to cause someone's death. They can be used to alleviate someone's pain, and we clarify that in our legislation. We go further. We put in funds to educate people on pain management. My colleague from Oregon and I happen to agree with this. There is a real problem in pain management. There are a lot of people who are not doing enough in pain management, for whatever reason. Maybe they have not been educated. Maybe they are afraid of liability. Maybe they are afraid of doing too much and that might enhance someone's death. We said you can be very aggressive in pain management. What you cannot do is take federally controlled drugs and use them to kill somebody. These drugs are controlled by the Federal Government. They can be used to alleviate pain. They cannot be used to kill somebody. About the Oregon law, Oregon passes a law and says they are going to say one can have assisted suicide. Fine. You cannot use Federal controlled drugs. These are federally controlled drugs. Oregon cannot amend the Controlled Substances Act. They think they can. Now with the Attorney General's letter, maybe they think they can. It is really awkward. In 49 States, you cannot use federally controlled substances for assisted suicide, but in Oregon you can. So how did Oregon amend the Federal law, the Federal statute? Maybe Oklahoma is going to amend the Federal law. They might not like the .08 we just passed. I heard my colleague say: What about States rights? I am a very strong supporter of States rights but States cannot change Federal law. I am all for giving States the right to opt out. If we want to say the Controlled Substances Act applies unless the States want to opt out, let's pass it. We have not done that. If we want to have a different law to allow States to opt out, maybe it should be used against the Federal law against heroin or cocaine, and we want to have the State opt out on that? I don't think so. Oregon is saying let's have the State opt out on the Controlled Substances Act so we can use these substances for assisted suicide. Oregon cannot change the Federal law. So it is not us, it is not the Federal Government now trying to overturn the Oregon law. Oregon, by referendum, thought they could overturn the Federal law. They cannot do it. They cannot do it. Let's do what we can to alleviate pain. Let's take these very strong drugs--morphine and others that if used in excess can be deadly--let's make sure they are used to alleviate pain. Let's do it aggressively and educate people all across the country in pain management. So we do that as well. Let me also knock down a couple of the arguments that my colleagues used. He said if we do this, it is going to have a chilling impact. Far from it. I will tell my colleagues, the AMA and some other groups, the hospice groups, said that a couple of years ago. We stated very clearly in the Controlled Substances Act that these drugs can be used to alleviate pain. They said: We are afraid it will have a chilling impact so we put in language to guarantee, to give physicians safe harbors, to do all kinds of things in the legislation to encourage using the drugs for pain management but not assisted suicide. So the chilling effect argument is not accurate. In fact, if you look at the several States that have passed laws against assisted suicide but for pain management--and there are several, and I have charts of several: Kansas, Rhode Island, several States--in every one of those States, when they passed legislation banning assisted suicide but encouraging pain management, the use of morphine has gone up dramatically. So instead of having a chilling impact on pain management, it encouraged pain management, it encouraged the use of these drugs, these very strong drugs to alleviate pain. That is the history in every single State. It is interesting to note since Oregon passed their law on allowing or legalizing assisted suicide, it is just the opposite. The use of pain management drugs has actually gone down. I look at Indiana, the use of morphine has gone up substantially. They have banned assisted suicide. Iowa, the same thing, a dramatic increase in pain control drugs when they banned assisted suicide. Kansas, again, more than double. Louisiana doubled the use of these very strong drugs to alleviate pain. In Rhode Island, it more than doubled. South Dakota had a big increase. Again, almost all of these have doubled. Tennessee--it has more than tripled the use of pain control drugs. When the States banned the use of assisted suicide, they used the strong drugs to alleviate pain. This is what we want to do. We want to alleviate pain. We want to be effective. We want to get the very strong drugs that a lot of physicians have been reluctant to utilize and we want to get them into physicians' hands. We want to let them know they have the power, the authority, the education to use these drugs to alleviate pain. Even if they increase the use and it causes someone's death, there is no penalty, and I have to touch on the penalty sanctions. My colleague was so wrong. We want them to alleviate pain. My colleague says: If they do not comply, we will have a new group of Federal officers running around, and this is going to have a chilling impact. He is exactly wrong. The Drug Enforcement Administration is in control of these drugs right now. There are 990,000 registrants who use these federally controlled drugs nationwide. My colleague from Oregon implied that if we pass this bill, we are going to have a new set of Federal police; they are going to be arresting people and they will do years in jails and pay thousands of dollars in fines. We have given zero, none, no additional law enforcement authority. Guess how many drug enforcements there were in fiscal year 1999? There are 990,000 registrants, and they investigated 921 cases, almost all of which were referred by the States. They revoked their registration, which is DEA's enforcement. They revoked the registrations of 29. In 1998--again, there are almost 1 million people who are licensed to dispense these federally controlled drugs--they revoked the registrations of 17; in the year 1997, 18. So DEA already has this authority. They have it nationwide. They have always had it. We do not take it away. We do not enhance their authority. This is a bogus red herring. Somebody is trying to scare the people: We are going to increase the Government power. Hogwash, we are increasing the power of the physicians. We are giving them a safe harbor, giving them greater standing. Before somebody can take action, they have to prove intent before there would be any claim against that physician. We give the physicians greater power and greater reliability that they will not be going to court, that they will not be in trouble with law enforcement if they are aggressively using these drugs for pain management. [[Page S11213]] Under this bill, they can use these drugs aggressively in pain management. They just cannot use them for Dr. Kevorkian assisted suicide, plain and simple. In Oregon, in at least 43 cases, they have used federally controlled drugs to kill someone. We are saying these are federally controlled drugs and you can use them to alleviate pain, but you cannot use them to kill someone. I want to touch on a couple of other issues. I mentioned safe harbor. I have a letter from the American Medical Association, which says: This bill would explicitly include this as a safe harbor, creating a legal environment in which physicians may administer appropriate pain care for patients without fear of prosecution. This is the AMA. They continue: The Pain Relief Promotion Act does not create a new Federal authority to regulate physicians. The bill contains specific rules of construction preserving the roles of States and the Federal Government in regulating the practice of medicine. I could go on and on. Mr. President, I ask unanimous consent to print in the Record a volume of information because this is an important issue. I have editorials, a couple of which came from Oregon, one of which is dated July 1, 1999. This is the Oregonian. It says: ``Kill the pain, not the patients.'' That is what we try to do with our bill. We try to kill the pain and not the patients. Also, I have an Oregonian editorial which says: ``A state's rights, a state's wrongs.'' This is dated October 19, 1999. And a more recent editorial from the Oregonian, September 10, 2000, says: Approve pain relief promotion bill. The Senate should put a quick end to Wyden's filibuster and pass a bill that favors pain killing over patient killing. I have a volume of things. I mentioned these three editorials which are very well written, and also I have a legal analysis of the bill; I have a list of organizations supporting the Pain Relief Promotion Act. This list is very long. It starts with Aging With Dignity, the American Academy of Pain Management, the American College of Osteopathic Family Physicians, American Medical Association, American Society of Anesthesiologists, American Society of Interventional Pain Physicians, Americans for Integrity in Palliative Care, Americans United for Life, California Disability Alliance, Catholic Health Association, Catholic Medical Association. I could go on and on. There are medical associations--the Florida Medical Association. There being no objection, the material was ordered to be printed in the Record, as follows: The Pain Relief Promotion Act and the Substitute Amendment--Supporting Organizations Aging With Dignity. American Academy of Pain Management. American College of Osteopathic Family Physicians. American Medical Association. American Society of Anesthesiologists. American Society of Interventional Pain Physicians. Americans for Integrity in Palliative Care. Americans United for Life. California Disability Alliance. Catholic Health Association. Catholic Hospice (Florida). Catholic Medical Association. Christian Legal Society. Christian Medical & Dental Society. Coalition of Concerned Medical Professionals. Carondelet Health System. Eagle Forum. Family Research Council. Florida Hospices and Palliative Care, Inc. Florida Medical Association. Focus on the Family Physicians Resource Council. Friends of Seasonal and Service Workers (Oregon). Hope Service and Palliative Care (Florida). Hospice Association of America. Iowa Medical Society. Louisiana State Medical Society. Lutheran Church--Missouri Synod. Medical Association of the State of Alabama. Medical Society of Delaware. Medical Society of New Jersey. Medical Society of the State of New York. Michigan State Medical Society. National Association of Pro-life Nurses. National Conference of Catholic Bishops. National Hospice Organization. National Legal Center for the Medically Dependent and Disabled. National Right to Life. Nebraska Coalition for Compassionate Care. Nebraska Medical Association. Not Dead Yet. Ohio State Medical Association. Oklahoma State Medical Association. OSF Healthcare System. Pain Care Coalition--American Academy of Pain Medicine, American Headache Society; American Pain Society. Pennsylvania Medical Society. Physicians for Compassionate Care. Puerto Rico, Office of the Governor. Supportive Care of the Dying: A Coalition for Compassionate Care. South Carolina Medical Association. South Dakota Medical Association. Union of Orthodox Jewish Congregations of America. Utah Medical Association. Virginia Association For Hospices. VistaCare Hospice. Vitas Healthcare Corporation (CA, FL, IL, OH, PA, TX, WI). Wisconsin Council on Developmental Disabilities. State Medical Society of Wisconsin. ____ [From the Oregonian, July 1, 1999] Kill the Pain, Not The Patients It's no secret to any reader of this space that we oppose Oregon's

Major Actions:

All articles in Senate section

MAKING FURTHER CONTINUING APPROPRIATIONS FOR FISCAL YEAR 2001
(Senate - October 27, 2000)

Text of this article available as: TXT PDF [Pages S11206-S11230] MAKING FURTHER CONTINUING APPROPRIATIONS FOR FISCAL YEAR 2001 Mr. LOTT. Mr. President, I ask unanimous consent that the Senate now turn to the continuing resolution, H. J. Res. 117, that no motions or amendments be in order, and the time between now and 3:15 p.m. be equally divided between the two leaders. I also ask unanimous consent that the vote occur on adoption of H.J. Res. 117 at 3:15 p.m. and paragraph 4 of rule XII be waived. The PRESIDING OFFICER. Is there objection? Mr. KERRY. Mr. President, no objection. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. LOTT. Therefore, the next vote will occur at 3:15 this afternoon. Mr. President, for the information of Senators who are interested in the schedule, it is expected that the vote at 3:15 p.m. will be the last vote of the day. However, at this time, in view of the need for continuing resolutions, unless some different agreement can be worked out, we will be expected to have votes on Saturday and on Sunday with continuing resolutions. Of course, there is serious work underway right now on the matters of disagreement. I note Saturday is the sabbath for a number of our colleagues and for observant Jews, and Sunday is my sabbath. I prefer we get a CR that will take us to Monday while we continue to work, but we have not been able to enter into that agreement yet. If necessary, we will be here and voting on CRs on Saturday and on Sunday. It is my expectation that vote will come late in the afternoon or early evening on Saturday. Also, again, Senator Stevens from the Appropriations Committee and the appropriators are meeting right now on the final details of the Labor-HHS bill. There is also some discussion about how we can move some of the problem issues out of the CSJ bill that has been reported out of conference and passed by the House. Corrections or changes, if agreed to, could be entered into the Labor-HHS bill. I do want you to know the appropriators are busily working in their magical way, and I am sure at sometime a cone of honey will be produced, or maybe that is the wrong terminology to use, but they are getting closer to agreements. I hope it is something that can be signed, or I hope it is something I can vote for, too. Both of those are undetermined at this point. I know Senator Kerry wants to make further comments about an earlier issue. We now have 3 hours and 15 minutes to talk about the CR or other issues Senators wish. Mr. STEVENS. Will the Senator yield for a moment? Mr. LOTT. I will yield since I invoked the name of the distinguished chairman of the Appropriations Committee. Mr. STEVENS. My name came up as a magician. I am Aladdin. I rub the lamp. Mr. LOTT. Very good. That is right, and I hope you will start rubbing it very fast. Mr. STEVENS. I am supposed to bring you out of the lamp. Mr. LOTT. All right. Mr. STEVENS. Mr. President, I have to inform the Senate that if we finish the Health and Human Services bill today--we are in good-faith negotiations, and we expect to be quite late today--that bill could not be finished in terms of its reading out and printing and being available to both sides until Monday afternoon at the earliest. I hope we can get some consideration from the administration and from everyone to understand that. We would have two sessions--one on Saturday and one on Sunday. Some people work on their sabbath and some people do not. We have a staff who will be working, in spite of that, around the clock to read the legislation. There are some 40 pieces of legislation, in addition to the bill itself, that will be in the Health and Human Services bill; at least that will be our recommendation. I urge that somehow or another I be allowed to offer an amendment to this continuing resolution and make it Tuesday night. I have told the White House and OMB that there is no way, even if we finish tonight, that we can take it up tomorrow or take it up Sunday. We will not be able to take it up until Monday night. The White House should know that, OMB should know that, and I hope the minority agrees with us. We cannot vote on this bill, the major wrapup piece of legislation, until, at the earliest in the Senate, Tuesday. The House may be able to vote on it Monday night. To argue over a CR that takes us to tomorrow and to argue over one that takes us to Sunday and one that takes us to Monday, when there is nothing we can do about finishing up this Congress, is just demonstrating our inability to deal with reality. I hope the leader will allow me some time today to offer a motion to amend that CR and make it Tuesday. I have discussed it with the House, and they are in session. They can adopt it and send it to the President. Somehow or another, this idea we can only go day to day and we can produce something tomorrow that we have not finished today, when we have just one bill left which itself cannot be finished until Monday night, I think is foolhardy. I am prepared to challenge the President and all of his people to come to reality. The discussions are being held with his people. If we do not finish them tonight, we will finish them tomorrow. If we do not finish them until tomorrow, it will be Tuesday morning before it is read out. Maybe people do not understand what we do. Each side has a copy of the final provisions. Each reads it through, and we call in the people from the committees involved to be sure the provisions are correct. Then we get together and our staffs read it together, and each makes certain the other has not made any changes in it. And that will not be finished. It will take at least 20 hours of reading to do that. It will not be finished until Monday night. Mr. LOTT. Mr. President, I say to the Senator from Alaska, we do not quite know what the appropriators do. I am not sure we really want to. We wish you the best because at least all of our schedules are in your hands, if not our lives. But I think what the Senator is saying is eminently reasonable. I urge you to get Senator Byrd to discuss that with the leadership on the other side, and if you talk with Senator Reid, we will communicate with the administration and hopefully maybe by 3:15 p.m. we can take that reasonable action. I certainly would support it. But we have to get an agreement. I yield the floor. Mr. KERRY. Mr. President, if I may respond, I am confident the leader on our side wants to be as reasonable as possible. The issue on our side has been, as we said earlier, the level of progress, No. 1, and No. 2, the question of inclusivity. What the chairman just said suggests there is a lot more inclusivity, and I presume reasonable minds will prevail at an appropriate time. A judgment has to be made by the administration and the minority leader with the level of progress. I am confident that will happen. If I may continue, Mr. President, for a moment. Would it be appropriate at this point in time--Senator Wyden has been waiting for a long time; I know the Senator from Texas has been waiting. I want to make a few comments yielding myself time off our time for a brief moment--I will be brief--at which point, may we have a unanimous consent agreement? [[Page S11207]] Mr. WYDEN addressed the Chair. The PRESIDING OFFICER (Mr. Allard). The Senator from Oregon. Mr. WYDEN. I would ask---- Mr. KERRY. I will yield only for the purpose of asking a question. Mr. WYDEN. I thank the Senator. I ask unanimous consent that I be recognized, Mr. President, to speak for up to 30 minutes on the continuing resolution when Senator Kerry has completed his comments. Mr. KERRY. Mr. President, would the Senator agree that the Senator from Texas was, in fact, going to precede him? Mr. DOMENICI. Reserving the right to object, might I ask a question? Mr. WYDEN addressed the Chair. The PRESIDING OFFICER. The Senator from Massachusetts has the floor. Mr. KERRY. I am willing to yield for a question, but I am trying to proceed here, if we can. Mr. WYDEN. Would the Senator from Massachusetts yield for me to clarify this? Mr. KERRY. I yield for the purpose of clarification only. Mr. WYDEN. I appreciate the Senator yielding. I was prepared to allow Senator Gramm to speak because the two of us were on the floor at the same time, to speak for 15 minutes, on the proviso that I could go next. I would then talk for up to 30 minutes. Mr. KERRY. I would modify the unanimous consent request. Mr. NICKLES. Reserving the right to object. The PRESIDING OFFICER. The Senator from Oklahoma. Mr. NICKLES. Knowing the subject matter that my colleague from Oregon wishes to speak to, I would like to be recognized for 15 minutes, following the Senator from Oregon, to respond. Mr. DOMENICI. Reserving the right to object. The PRESIDING OFFICER. The Senator from New Mexico. Mr. DOMENICI. I have the right to object. There is a unanimous consent request pending. Mr. KERRY. Absolutely. Mr. DOMENICI. I would like to have 20 minutes reserved for me when you are finished--whoever is in the chain, whatever that is. Mr. REID. Reserving the right to object, Mr. President. The PRESIDING OFFICER. The Senator from Nevada. Mr. REID. I am happy, until 3:15, to work out time agreements so people are not standing around. But the way it now appears, it is going to be a little unbalanced. We should rotate time wise, not necessarily who is speaking but how much time. We want to work Senator Conrad into this mix. Mr. KERRY. Mr. President, could I suggest the following? And I think it will meet everybody's needs. At the conclusion of my brief remarks, the Senator from Oregon be recognized, following him, Senator Nickles to be recognized, with the time to be selected by the managers for how much time they allocate, and subsequent to that, someone on our side, to be named, to be recognized, and then the Senator from Texas. Mr. DOMENICI. What about the Senator---- Mr. KERRY. Afterwards it would come back to this side, and then the Senator from New Mexico. Mr. BOND. Reserving the right to object, apparently there is a lot of discussion that needs to go on. We need to work out the time. Could we ask-- Mr. KERRY. You control it. Mr. BOND. I know, but could we ask the initial remarks of the Senator from Oregon and the Senator from Texas to be 15 minutes each, so then we can work out a schedule? We know that we will then be able to develop the schedule so that all of the important things that people on both sides of the aisle need to say before 3:15 can be said. Mr. KERRY. Mr. President, the Senator from Oregon has requested 30 minutes. I am prepared to yield him 30 minutes from our time. I think we should each control our time. The PRESIDING OFFICER. The Senator has that right. Mr. NICKLES addressed the Chair. The PRESIDING OFFICER. The Senator from Oklahoma. Mr. NICKLES. OK, if our understanding is that the Senator from Oregon receives up to 30 minutes, if you would allocate me up to 30 minutes in response, and hopefully neither one of us will take that much time, and then you can continue the division of time. Certainly it would be appropriate. Mr. KERRY. Mr. President, I ask unanimous consent for that request. The PRESIDING OFFICER. Without---- Mr. DOMENICI. No. Mr. President, I reserve the right to object. Where are we now with reference to whether the Senator from New Mexico gets to speak? Mr. KERRY. Mr. President, the Senator from New Mexico follows on the Republican side after the Senator from Texas. Mr. REID. However, I say to Senator Domenici, it would be the Democratic side's turn prior to you. Mr. DOMENICI. I understand. The only thing I am concerned about, if you are going an hour equally divided--3:15 is the vote; isn't it? Mr. KERRY. Mr. President. I think this is not as complicated as we are making it. If I could try to simplify it, the unanimous consent request requires us to alternate to each side. We will go, immediately following my comments, to the Senator from Oregon, and then back to the majority side, Senator Nickles, and then back to our side to a person to be yet named, and then back to the Republican side to the Senator from New Mexico, and then back to our side, which follows Senator Gramm. And that is the order with the time to be determined by the managers on each side. The PRESIDING OFFICER. Is there objection? Mr. DOMENICI. Mr. President, reserving the right to object, I wonder if the manager of the bill, as part of this, would use his efforts with reference to how much time each one gets so that at least those we have agreed to would be able to speak before 3:15. You can do that, I believe. Mr. BOND. Mr. President, reserving the right to object, I believe the agreement is that between now and 3:15 the time is equally divided. So that would roughly be 3 hours and 10 minutes. So that is an hour and 45 minutes for each side. With that understanding, each side has 1 hour 45 minutes. Mr. KERRY. Mr. President, I ask unanimous consent that the time consumed to this point not count as equally divided. The PRESIDING OFFICER. Is the Senator putting off the 3:15 vote? Mr. KERRY. No. But I was recognized and therefore I do not want this entire colloquy to come from my time. I am asking that the time commence for division. The PRESIDING OFFICER. It has to come from somebody's time. Mr. KERRY. It comes equally divided from both sides. The PRESIDING OFFICER. Is there objection? The Chair hears none, and it is so ordered. Mr. KERRY. I thank the Chair. Mr. President, I will be very brief. I simply want to respond very quickly to the comments made by the distinguished majority leader who appropriately cited many items within the legislation that we all ought to support. Indeed, that is precisely what I said in the course of my comments. We do support a great deal of what is in the legislation. But what the majority leader never did, in the course of his comments, was address any of the issues we raised with respect to the health care system, the fundamental fairness, and the issues of contention raised by the President of the United States. He dismissed that rather quickly and cavalierly, suggesting that the President got a lot of what he wanted. Let me be very precise. Of 119 individual tax provisions in this bill, 35 of them are from the President's budget; that is 30 percent of the provisions, not the 80 percent that the majority leader talked about. Mr. President, and of the $240+ billion in tax cuts in this package, only $48 billion, or 20 percent of the total, is from the President's proposals. No one should be misled by the comments of the majority leader to believe that this is somehow a fair division, and that the President, in offering to veto, is not vetoing it on substantive, clear, and distinct differences of policy. Secondly, the majority leader suggested that much was included in this, and this is sort of mostly a bill that is somehow beneficial. What he neglected to address was the issue that we raised [[Page S11208]] about how this bill came together and what is in it as a total. As a total, it represents, in a sense, a consensus of what the majority wanted to put in. But it was arrived at without discussion with the minority, and so there are whole bills in here that raise very significant issues. One of them is the issue to which the Senator from Oregon is going to talk. I just want to take about 2 minutes to say something about it. There is, in this tax bill, a whole piece of legislation called the Pain Relief Promotion Act. My colleagues ought to listen to that title very carefully: Pain Relief Promotion Act. That title is an extraordinary, almost cynical, play on words. It completely distorts the notion of what happens in this legislation. First of all, this Pain Relief Promotion Act completely preempts State law with respect to the definition of a legitimate medical purpose with respect to State medical regulations. The implications of that with respect to this are to require the Drug Enforcement Agency's agents to determine whether a physician's prescription of a controlled substance for pain relief medication was intended to relieve pain or to assist in suicide. I hope my colleagues focus on that. The Pain Relief Promotion Act is asking DEA agents to make a judgment of intent about what a doctor intended to do in prescribing a prescription drug to a patient who is terminally ill in a hospital. Are we seriously going to go down that road and DEA agents to have the potential to provide a 20-year prison sentence for a doctor for making a judgment about pain medication to an ill patient in a hospital? I find that extraordinary. Yet the majority leader tried to suggest on the floor that this is just some innocuous conglomeration of legislation that has no major impact on the lives of Americans, except 80 percent of it is good and what the President wanted. That is a fight worth fighting on the floor of the Senate today. I am not going to go into all the details. I just went through a long hospitalization issue with a parent. I know what that pain medication meant for cancer. I know how difficult it was in the hospital to get the proper pain medication, to have people comfortable with what was being dealt. If we suddenly layer that kind of legal structure over the delivery of medical care in America, we are taking an extraordinary step that at least ought to be properly debated on the floor of the Senate in the context of hearings, the process, and so forth. A recent New England Journal of Medicine article said the following: If the Pain Relief Promotion Act becomes law, it will almost certainly discourage doctors from providing adequate doses of medicine to relieve the symptoms of dying patients. That does not belong in a tax bill, conglomerated in a room without the consent of Democrats. That is why we are here. That is why we are fighting about this legislation. My final comment is, with respect to the tax components of this, major components of fairness were stripped out of this bill. The majority leader talked about how important it is to provide savings for Americans. Yes, it is important. There is not one of us on this side of the aisle who won't vote to encourage Americans to save money. There is not one of us who does not support a 401(k) program. But when we are making a choice about how much money we can allocate to people based on the overall amounts of money available and that choice was made by the Republicans alone to encourage 401(k)s to the exclusion of middle- and low-income Americans to be able to save, that is a fight worth fighting. That is a question of fundamental fairness. The 401(k)s are terrific for lawyers and doctors and high-income people, but the kind of Americans we were trying to reach--at the $30,000, $25,000, $20,000 income level--have a lot harder time gaining benefit from a 401(k). What the President had in his proposals was a credit that would have gone directly to those hard-working Americans. That was stripped out. That is why we are here now raising these issues regarding this legislation. It is a question of fundamental fairness. I regret that in all of his comments this morning, the majority leader did not address the fundamental issue of fairness that we are raising and over which the President has threatened a veto. My absolute last comment: The President made clear that he would veto this. So the majority leader comes to the floor and says, well, we will come back, and we will work this out down the road. Why? Why work it out down the road? Why not work it out now? Why not work it out in the last month before we came to the floor knowing it would be vetoed? If we can work out these other issues, if we weren't seeking a political advantage, we could certainly work that out. People may not like the fact that the President of the United States is who he is and is of the party that he is, but he has the veto. We have been through this since 1995, when the Government of the United States was shut down for the first time in American history over this very same challenge. And here we are again, in the year 2000, with the same sort of sense of frustration over the fact that he has the veto pen that brings us to this point of confrontation. The fact is, he does have that pen. He has the constitutional right. He made it clear he would do it. And the reasons he has chosen to do it are substantive and important to the American people. That is what this debate is about. I thank my colleague for his courtesy. I yield such time, up to the 30 minutes, as he might consume to the Senator from Oregon. The PRESIDING OFFICER. The Senator from Oregon. Mr. WYDEN. Mr. President, before he leaves the floor, I thank the Senator from Massachusetts, both for his focus on bipartisanship with respect to the overall package and for his very thoughtful comments about the assisted suicide issue. I think he has summed it up very well. I feel bad that I had to object to consideration of the tax legislation this morning. I will take just a minute or two to describe why and then go on to talk about the overall issue as it relates to pain relief and what is in the tax bill. I know it is an inconvenience to a number of Senators to have me talk about this subject at length. This is an important time in the year for colleagues. I regret the inconvenience. But I believe what is in the tax bill is going to cause so much pain and suffering to families all across the country, that the interests of those families who are going to suffer if this tax bill as written becomes law have to come first. First and foremost, I want the Senate to understand that before we are done, I am going to speak at length about exactly what the consequences will be for families all across this country, who needlessly are going to suffer great pain that could be averted, if the bill becomes law as written. In addition, while the majority leadership in the Congress is attempting to throw Oregon's vote on assisted suicide into the trash can, Oregonians are holding on to ballots such as this one. They are wondering if this ballot, this sacred vote, really counts. Mr. REID. Will the Senator from Oregon yield for a question? Mr. WYDEN. In one moment. I am obligated to speak for those Oregonians, each and every one of them, over a million Oregon voters, because I want them to understand that I am going to do everything in my power to make sure the ballot I have in my hand and the ballots they are holding right now actually count. The fact is, the senior Senator from Oklahoma has put into the tax bill legislation that would silence over a million Oregon voices. I am going to be here to make sure those voices are heard. I yield to the Senator from Nevada. I thank him for his thoughtful comments last night on this issue. Mr. REID. Mr. President, I have a question. This question comes from the people of the State of Nevada. It is my understanding that if this provision of this tax bill passes, a vote that was taken in the State of Oregon, open to everyone in the State of Oregon, would be basically repealed by the Congress of the United States; is that true? Mr. WYDEN. The Senator is correct. In effect, it would be impossible to carry out the will of Oregon voters on a matter that has historically been left to the States. [[Page S11209]] What is so striking--and I appreciate the Senator's question--is that we constantly have colleagues come to the floor and talk about the importance of States rights and the beauty of the 10th amendment. Then when they don't happen to agree with what a State is doing, I guess the 10th amendment isn't so important anymore. I appreciate the Senator's question. Mr. REID. One more question I will ask the Senator from Oregon: Then the people of Nevada, no matter how they feel about the substance of the legislation that passed in the State of Oregon, should be warned by me and others that if this piece of legislation passes, if we pass a ballot proposition or a law in the State of Nevada, it would be subject to repeal by the Congress. We in Nevada believe in States rights. We are part of the great western heritage. Is it true that if this particular legislation passes, the people of the State of Nevada should be aware of the fact that we could repeal something that they pass in the legislature or by ballot proposition? Mr. WYDEN. The Senator is absolutely right. People in Nevada should understand that what this legislation does is take away from all States what has historically been their prerogative, which is to determine appropriate medical practice. There is a great body of case law and a variety of legal precedents that establish that right, and folks in Nevada should understand that. I think it is also on point to note that people in Maine are voting right now on this issue. I think it is open to some question as to what will be the effect of that Maine ballot measure right now if the tax legislation were to pass as written and, in effect, throw Oregon folk to the trash can, and it might do the same thing for people in Maine. I thank my colleague for his questions. Mr. President, if the Senate was here today to vote on a stand-alone bill which would lead to unspeakable, avoidable suffering for hundreds of thousands of terminally ill citizens, there is no question in my mind that the Senate would not pass it. So what we have to ask is why has the Senate leadership stuck into this tax bill, legislation that the American Cancer Society and over 50 nationally recognized health organizations believe will cause unnecessary suffering for thousands of terminally ill citizens in each State in our country. What is particularly ironic is that this legislation has not moved forward with any of the traditional procedures of the Senate. It has never been reported out by a committee of jurisdiction. It has never been subject to amendment by the full Senate. There has never been a chance to debate it on the floor of the Senate. The fact is that this legislation, which is one of the central bioethical questions in our society, was stuffed into the tax bill close to midnight the other night, without overcoming even one of the traditional procedures the Senate follows. Now, Senator Kerry noted the name of this bill. It is the so-called ``Pain Relief Promotion Act.'' The fact of the matter is, this legislation is really the ``Pain Promotion Act'' because it is going to have a chilling effect on health care providers all across this country who simply want to practice good pain management. I know my friend from Colorado, who is in the Chair today, also represents a rural State. Let me tell you about the kind of concern I have if the Nickles bill, as written, becomes law. Let us say you have a physician in Colorado or in Iowa or another rural State who is opposed to assisted suicide--and I am opposed to assisted suicide; I have joined colleagues here in voting to ban Federal funding of assisted suicide. But let's say a physician in Colorado, who is opposed to assisted suicide, wants to treat pain aggressively with a suffering patient. If they do, their intent, their mental calculus can later be dissected by law enforcement officials who, if they believe that anti- assisted suicide physician really had a different intent, can prosecute that physician. And the medical providers involved would be subject to a mandatory minimum sentence of 20 years, a fine that is upwards of a million dollars and they would lose their DEA registration. The fact is that the undertreatment of pain today is a documented public health crisis. There was just another survey published very recently demonstrating that physicians and health care providers are reluctant to treat pain aggressively because they are very fearful of having their decisions second-guessed by law enforcement. There are a number of us--the American Cancer Society is one--who are opposed to assisted suicide. Yet the American Cancer Society has said that because of the chilling ramifications of pain management, it believes the Nickles legislation included in the tax bill is going to hurt cancer patients nationwide. The American Academy of Family Physicians is another major medical group opposed to assisted suicide and they oppose the Nickles legislation; so is the American Nurses Association, the Oncology Nursing Society, the Indiana State Hospice and Palliative Care Association, and the Texas Medical Association. In sum, there are more than 50 respected health organizations that are opposed to physician- assisted suicide and also oppose the Nickles legislation included in this tax bill. If we do care about humane medical treatment--and I know that every Senator cares about the suffering of those who are vulnerable--I believe when you actually read what is in this tax bill and what Senator Nickles has been able to include, if you wish to join us in alleviating suffering and protecting the poor, elderly, and vulnerable, you have to oppose the Nickles legislation because it hurts the very people that our colleagues care about. I want to raise a troublesome flag now with respect to this bill. To my knowledge, not a single nursing organization in America supports the bill purporting to relieve pain for the dying--not one. But seven nursing organizations, including the American Nurses Association, National Association of Hospice and Palliative Nurses, Pediatric Oncology Nurses, and the American Society of Pain Management Nurses, oppose the alleged pain relief bill included in this tax legislation. Now, you know when a loved one is in a hospital, the physician may have ultimate responsibility for the care, but the nurses are the ones on the front lines coping with pain. Seven major nursing organizations, representing those on the front lines, have come out against the Nickles bill. So the question is, how could all of this happen? I think the Senate may want to reflect on the procedures involved because I think other Senators may find the same sort of absurd process applied in matters that are important to their States. When Senator Nickles introduced the Pain Relief Promotion Act last year, the bill was referred to the Committee on Health, Education, Labor, and Pensions. That is because, for obvious reasons, the bill has enormous ramifications for pain and health care. The bill received a hearing in 1999. It wasn't acted on by the committee. Members on both sides of the aisle expressed concerns about the legislation's impact on end-of-life and pain care. Unfortunately, a House bill identical to that legislation was passed by the House and was suddenly referred to the Senate Judiciary Committee, which didn't have jurisdiction on this critical health issue. The Parliamentarian did something that I believe showed great courage, and I commend him for it. He simply told the news media that a mistake had been made, that the Nickles legislation had been referred to the wrong committee. I thought it was a very courageous, gutsy thing for the Parliamentarian to do. It was the kind of unfortunate accident that can happen. The Judiciary Committee, as one might guess, had a chairman who was sympathetic to the Nickles legislation who pushed and pushed to mark it up before the American Cancer Society made it clear that the Nickles legislation would hurt cancer patients. They got the bill out of the Judiciary Committee on a 10-8 vote. Now you know that the bill is very controversial. That is why it is coming to the floor of the Senate in the form it is. They could not get the Senate to approve this legislation if the traditional procedure of the Senate were followed. In fact, since the Nickles legislation had been introduced with a handful of Democrats who were supportive, several have now indicated their opposition largely for the reasons I have cited--that the Nickles legislation would have a chilling effect on pain management. [[Page S11210]] The reason this bill has been stuffed into the tax legislation is that it cannot go forward on its own. There is too much controversy attached to it, too much uncertainty about its ramifications on pain care for the dying for the leadership to bring it to the floor in the normal way. The fact is that the Senator from Oklahoma doesn't have the votes. At one point, the supporters had 80 votes. It got out of the Judiciary Committee 10-8. I said last summer, let's follow the traditional rules of the Senate. After we had agreed to that, the distinguished Senator from New York, who is very opposed to assisted suicide, saw how much damage this legislation would do for the suffering and said he couldn't support the bill. Senator Nickles saw that support was quickly moving away from him and that he didn't have the votes to pass his legislation following the traditional procedure of the Senate. To compensate for the lack of votes and the inability to follow traditional procedures in the Senate, the senior Senator from Oklahoma has chosen the least democratic method at his disposal to circumvent an honest debate and avoid even a couple of modest amendments. What is striking is the senior Senator from Oklahoma has on various occasions apparently said we shouldn't have extraneous matters brought in that had not been considered separately in a conference report. But he is allowing exactly this to be done with his bill. The senior Senator from Oklahoma is betting that by stuffing his legislation into this conference report, everybody is going to be so resigned to the outcome and so anxious to bring down the gavel and get home that this body is just going to ignore its obligation to the scores and scores of families and suffering patients who are going to be hurt by this legislation. The senior Senator from Oklahoma may be right. I suppose that is the way it often works in the Senate. However, I am going to be asking my colleagues--and will talk more about this subject when we get back on the tax legislation--to step up to the suffering with so much on the line. I want them to know what is at stake. If this legislation is approved, the friends of every Senator, loved ones, and constituents are going to find it impossible to obtain aggressive pain care in their communities. Patients unable to obtain pain care are a fact of life right now, but at least we have some solace in knowing that thousands of brave health professionals are willing to risk their reputations and their careers to prescribe controlled substances to relieve suffering. If the tax legislation goes forward without removing the Nickles bill, the undertreatment of pain, which is already a documented public health crisis, is going to get worse. Our loved ones--yours, mine--and individuals in every community across this country are going to suffer the consequences with this flawed legislation. I hope that before we have a final vote on this issue, each and every one of our colleagues will read the statement of the American Cancer Society on this legislation. They are an organization that opposes assisted suicide, as I do. Yet here is what they say about the Nickles legislation. This is the direct statement of the American Cancer Society about the Nickles legislation. The American Cancer Society states, and I quote: Under the act, all physicians, and particularly physicians who care for those with terminal illnesses, will be made especially vulnerable to having their pain and symptom management treatment decisions questioned by law enforcement officials not qualified to judge medical decision-making. This can result in unnecessary investigation and further disincentive to aggressively treat pain. That is the American Cancer Society describing how the Nickles legislation will have a chilling effect on pain care. I would like to offer a bit of a historical perspective. The nonprescription abuse of opioids and cocaine around the turn of the century and the growing sentiment that doctors at that time were one component of the growing drug problem in America helped contribute to the stigma associated with the use of opioids for pain. According to a seminar on oncology and in an article by Dr. David Wiseman, ``Doctors, Opioids, and the Law: The Effect of Controlled Substances Regulation on Cancer Pain Management,'' when regulations were enacted in 1914 to keep from treating drug addicts with opioids, the stigma attached to those drugs continued to grow, and physicians across the country became more reticent to prescribe those drugs because of their fear of criminal or licensing sanctions against their practice. The undertreatment of pain is due to a variety of complex causes. There certainly are a number of studies that show that the threat of legal sanctions is one of the main roadblocks to humane pain control. And that is before the Nickles legislation in the Senate would direct to Drug Enforcement Administration to have law enforcement agents second-guessing the judgment of doctors. One 1994 California survey showed that 69 percent of physicians cited the potential for disciplinary action as a reason for prescribing opioids conservatively. One-third of the doctors went on to acknowledge that their own patients may be suffering from untreated pain. What we saw last week in Oregon was a brand new study that showed again that physicians are fearful about aggressively treating pain for fear of legal prosecution. It confirmed the 1994 California survey. For that reason, I am happy to yield to my friend and colleague. Mrs. BOXER. Mr. President, I thank my friend for bringing these issues to the floor of the Senate. I think this issue of pain abatement is a key issue. I go even further than that in this debate because the issue of physician-assisted suicide, which I do not support, is really not what I am afraid of in Senator Nickles' approach. But I just want to say to my friend, thank you for bringing this issue forward. I watched a loved one, who was as close to me as anyone could be, cry out in pain hour after hour, saying: I don't want to live. I wanted this person to live more than I can say. But I went to that physician of this loving relative and I said: Please, please, do everything in your power to anesthetize this pain, to sop this pain. This physician looked at me and he said: I will do everything that I can. I am so fearful that someone else, if this bill becomes law, will look at me and say: Barbara, I know how much you love this individual, but I can't do more than I am doing because I'm afraid I'm going to be hauled off to prison. I don't want any family looking in the eyes of a physician, begging to put a loved one out of this type of misery and pain, being told that their hands are tied; they would love to help and they can't. That is why what the Senator from Oregon is doing is so important and why I am so saddened that this bill, in the dead of night, that could lead to people writhing in pain, not being able to get the help they need, was done in such a fashion where we really can't even give it the attention it deserves. As my final point, would my friend tell me again, for the record, so that everyone watching this debate can know, which organizations are opposing this Nickles provision for the reason that the Senator has stated--that it will lead to people suffering needlessly, and doctors being afraid to help them because they will be hauled off to jail. Mr. WYDEN. I appreciate my colleague's questions. There are more than 50 major health organizations. The American Cancer Society has stated why they feel this legislation would have a chilling effect on pain management. I want my colleague to know, because time is short, that Senator Nickles, in offering this bill, says doctors don't have anything to worry about with respect to prosecution under the bill--that his legislation says doctors can prescribe drugs which will hasten death if their intent is to treat the pain. So he is talking about ``intent.'' Our colleagues are right to be so concerned about who is going to determine the intent of the physician, who is just trying to help somebody suffering and gives a suffering person critical relief and dignity as they face difficult hours at the end-of-life. The person who is going to decide ``intent'' is not another doctor, not a nurse, not a health professional, not anybody with medical [[Page S11211]] training, but law enforcement officials. A law enforcement official is going to determine that medical provider's' intent. Somebody with no medical training is going to, in effect, have the authority to put medical providers on trial; a trial that could cause a provider to lose their license, serve 20 years in prison, and face upwards of a $1 million fine. It doesn't have to be this way. There are many who oppose assisted suicide, who want to work in a bipartisan way to promote better pain management and reduce the demand for assisted suicide. Mrs. BOXER. I thank my friend. Mr. WYDEN. The Senator from Oklahoma is not allowing Members to do that. The Senator from California has made the key point. At the end of the day, I want it understood when the people of Oregon cast a ballot like the one I have in my hand on a matter that has historically been left to the people of my State and to every State, I will do everything I can on the floor of the Senate to protect that vote. I yield the floor, and I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Mr. WYDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. WYDEN. Mr. President, I ask unanimous consent that the time be equally divided between both sides. Mr. BOND. I object. The PRESIDING OFFICER. The objection is heard. Mr. WYDEN. Mr. President, I will keep talking if the Senator from Missouri objects. I am sure some of our colleagues have other concerns. I will continue on this question of dissecting medical providers' intent, as the Nickles legislation does, a dissecting exercise that will be done by law enforcement professionals rather than medical providers. Here is what the American Cancer Society had to say about determining ``intent'' under the Nickles legislation. The American Cancer Society says: Unfortunately, intent cannot be easily determined, particularly in the area of medicine, where effective dosage levels for patients may deviate significantly from the norm. The question of deciding intent should remain in the hands of those properly trained to make such decisions--the medical community and State medical boards. What the American Cancer Society is saying, as with these other 50 organizations, they are especially troubled that the Nickles legislation is second-guessing the pain management practices of physicians and providers all across the country. It is especially troublesome because law enforcement officials, rather than health care professionals, are going to be the ones to assess the intent of a medical provider. A medical providers' intentions under any calculus, as the American Cancer Society has noted, cannot be easily determined. To allow law enforcement officials to have this enormous discretion, after the fact, to challenge our medical providers, in my view, is going to significantly compound the undertreatment of pain in America. Mr. NICKLES. Mr. President, I was told that the time of the Senator expired and I was coming to claim my time to respond. The PRESIDING OFFICER. The time of the Senator has expired under the previous order, and the Senator from Oklahoma is to be recognized. Mr. NICKLES. I will be happy to let my colleague conclude his thought. Mr. WYDEN. Mr. President, I hoped we could have worked it out. My time has expired. As the Senator from Oklahoma knows, I have wanted a real debate on this legislation for some time, so I am happy to have the Senator hold forth. The PRESIDING OFFICER. The Senator from Oklahoma. Mr. NICKLES. Mr. President, one, I wish to respond to my colleague and my friend from Oregon. He is my friend. We happen to have a disagreement on this issue. We have a difference of opinion, a rather pronounced difference of opinion. I heard several things in his statement that I want to correct. I almost don't know where to start. First, let me touch on a couple of things on procedure. This is so wrong procedurally and should not be in this bill. Again, he is my good friend, but he has known all along I would try to get this bill on the floor. Yes, it was put in the tax bill. I tried to put it in the appropriations bill. We ended up putting it in a tax bill. Is that the best way to legislate? No. I might tell my colleagues and my friend from Oregon I tried about half a dozen different ways to pull the bill up, to have it be an amendable state, to offer my colleague from Oregon or others a chance to have relevant amendments, and those offers were always rejected. So now we have the bill before the Senate. I might also mention, if one is complaining about this procedure, then we shouldn't have any problem with the Commerce-State-Justice because the administration is trying to put an amnesty provision that doesn't belong on the Commerce-State-Justice bill. It did not pass either the House or the Senate, and is totally extraneous to the conference. Senator Byrd had one dealing with trade that was on an appropriations bill. It should not have been. It was inserted. At least this bill did pass the House by over 100 votes. It did pass the Judiciary Committee. It has had hearings. It has been marked up. It has had 42 cosponsors--maybe my friend and colleague from Oregon has been able to convince one or two to get off. Senator Lieberman is still a principal cosponsor, to my knowledge. He testified in favor of this legislation, as have I. So this legislation is not new. It is not a surprise. My colleague from Oregon has sent several letters to all colleagues saying what is wrong with the legislation. I have sent several letters to all of our colleagues saying he was incorrect. So everyone knows about this bill and everyone knows at some point we are going to have a debate on it. I hope it will be passed. Let me touch on a couple of issues that were brought up. My colleague from Oregon said if this bill is passed it is going to tell a million people in Oregon who voted for this on a ballot initiative, a referendum, that their vote does not mean anything. I disagree with that. This bill does not overturn Oregon's law. I want to be very clear about this. This bill does not say anything about making Oregon's law null and void. What this bill does is it deals with pain and pain management. The bill does say: Oregon, you cannot overturn Federal law. It doesn't say quite that. Federal law, the controlling law, is the Controlled Substances Act. That is a Federal law. It passed in 1970. It controls very strong drugs, I tell my friend from New York. These are deadly drugs. They are strong drugs. They are under Federal control. They are not under State control; they are under Federal control. It is a Federal Controlled Substances Act. The State of Oregon cannot pass a law that changes a Federal statute. I make the analogy, Oklahoma might say let's legalize heroin. Oklahomans might pass that in a referendum, but it doesn't make heroin legal. It is still against the Federal law to use heroin. These are federally controlled drugs. They are deadly if they are used in very large quantities, but they are also very helpful. They can help alleviate pain. Unfortunately, we have a real problem in pain. I heard my colleague from California mention she knew a friend who was in enormous pain. We all have friends or families or have known people who are suffering and suffering greatly. I want to alleviate their pain. That is one reason why this bill was created. There were two reasons. We want to alleviate pain. That is why all the pain management groups endorse this bill. I will go through a list. My colleague from Oregon listed a few groups that endorsed his. We have 10 times as many people, groups, physicians, you name it--hospice care, palliative care, the American Medical Association, that endorse this bill; pain management societies--you name it. I will have all that printed in the Record. These groups, the hospice groups and others, their members worked their entire lives because they want to alleviate pain. This bill will alleviate pain. [[Page S11212]] This bill does two things. It says we can use these drugs. My amending the Controlled Substances Act says we can use these very strong drugs to alleviate pain. We put a safe harbor in to protect physicians, making sure when they use these drugs to alleviate pain, if it causes someone's death there will be no problem. The bill also says these drugs cannot be used for the purpose of assisted suicide. Guess what. That has been the law of the land for 30 years. These drugs were never allowed to be used for assisted suicide. The Drug Enforcement Administration--I will put a letter from Mr. Constantine who says he reviewed it--the Controlled Substances Act says these drugs can be used for legitimate medical purposes. In our bill, we state that includes pain management, the alleviation of pain. We put that in specifically so everyone will know: Use these drugs to alleviate pain. It is now in the law. Mr. Constantine also said it is not construed to be used for assisted suicide. You say: Why do you need this bill? You need this bill for two reason. One, we want to make sure everybody knows these drugs can be used to alleviate pain. What about the Oregon law? My colleague from Oregon said this is going to outlaw the Oregon law and nullify a million voters who voted for it. This is going to gut the bill. Granted, they have had dozens of suicides that have been committed using federally controlled drugs. Guess what. The law was always interpreted before that these drugs cannot be used for assisted suicide. They cannot be used to cause someone's death. They can be used to alleviate someone's pain, and we clarify that in our legislation. We go further. We put in funds to educate people on pain management. My colleague from Oregon and I happen to agree with this. There is a real problem in pain management. There are a lot of people who are not doing enough in pain management, for whatever reason. Maybe they have not been educated. Maybe they are afraid of liability. Maybe they are afraid of doing too much and that might enhance someone's death. We said you can be very aggressive in pain management. What you cannot do is take federally controlled drugs and use them to kill somebody. These drugs are controlled by the Federal Government. They can be used to alleviate pain. They cannot be used to kill somebody. About the Oregon law, Oregon passes a law and says they are going to say one can have assisted suicide. Fine. You cannot use Federal controlled drugs. These are federally controlled drugs. Oregon cannot amend the Controlled Substances Act. They think they can. Now with the Attorney General's letter, maybe they think they can. It is really awkward. In 49 States, you cannot use federally controlled substances for assisted suicide, but in Oregon you can. So how did Oregon amend the Federal law, the Federal statute? Maybe Oklahoma is going to amend the Federal law. They might not like the .08 we just passed. I heard my colleague say: What about States rights? I am a very strong supporter of States rights but States cannot change Federal law. I am all for giving States the right to opt out. If we want to say the Controlled Substances Act applies unless the States want to opt out, let's pass it. We have not done that. If we want to have a different law to allow States to opt out, maybe it should be used against the Federal law against heroin or cocaine, and we want to have the State opt out on that? I don't think so. Oregon is saying let's have the State opt out on the Controlled Substances Act so we can use these substances for assisted suicide. Oregon cannot change the Federal law. So it is not us, it is not the Federal Government now trying to overturn the Oregon law. Oregon, by referendum, thought they could overturn the Federal law. They cannot do it. They cannot do it. Let's do what we can to alleviate pain. Let's take these very strong drugs--morphine and others that if used in excess can be deadly--let's make sure they are used to alleviate pain. Let's do it aggressively and educate people all across the country in pain management. So we do that as well. Let me also knock down a couple of the arguments that my colleagues used. He said if we do this, it is going to have a chilling impact. Far from it. I will tell my colleagues, the AMA and some other groups, the hospice groups, said that a couple of years ago. We stated very clearly in the Controlled Substances Act that these drugs can be used to alleviate pain. They said: We are afraid it will have a chilling impact so we put in language to guarantee, to give physicians safe harbors, to do all kinds of things in the legislation to encourage using the drugs for pain management but not assisted suicide. So the chilling effect argument is not accurate. In fact, if you look at the several States that have passed laws against assisted suicide but for pain management--and there are several, and I have charts of several: Kansas, Rhode Island, several States--in every one of those States, when they passed legislation banning assisted suicide but encouraging pain management, the use of morphine has gone up dramatically. So instead of having a chilling impact on pain management, it encouraged pain management, it encouraged the use of these drugs, these very strong drugs to alleviate pain. That is the history in every single State. It is interesting to note since Oregon passed their law on allowing or legalizing assisted suicide, it is just the opposite. The use of pain management drugs has actually gone down. I look at Indiana, the use of morphine has gone up substantially. They have banned assisted suicide. Iowa, the same thing, a dramatic increase in pain control drugs when they banned assisted suicide. Kansas, again, more than double. Louisiana doubled the use of these very strong drugs to alleviate pain. In Rhode Island, it more than doubled. South Dakota had a big increase. Again, almost all of these have doubled. Tennessee--it has more than tripled the use of pain control drugs. When the States banned the use of assisted suicide, they used the strong drugs to alleviate pain. This is what we want to do. We want to alleviate pain. We want to be effective. We want to get the very strong drugs that a lot of physicians have been reluctant to utilize and we want to get them into physicians' hands. We want to let them know they have the power, the authority, the education to use these drugs to alleviate pain. Even if they increase the use and it causes someone's death, there is no penalty, and I have to touch on the penalty sanctions. My colleague was so wrong. We want them to alleviate pain. My colleague says: If they do not comply, we will have a new group of Federal officers running around, and this is going to have a chilling impact. He is exactly wrong. The Drug Enforcement Administration is in control of these drugs right now. There are 990,000 registrants who use these federally controlled drugs nationwide. My colleague from Oregon implied that if we pass this bill, we are going to have a new set of Federal police; they are going to be arresting people and they will do years in jails and pay thousands of dollars in fines. We have given zero, none, no additional law enforcement authority. Guess how many drug enforcements there were in fiscal year 1999? There are 990,000 registrants, and they investigated 921 cases, almost all of which were referred by the States. They revoked their registration, which is DEA's enforcement. They revoked the registrations of 29. In 1998--again, there are almost 1 million people who are licensed to dispense these federally controlled drugs--they revoked the registrations of 17; in the year 1997, 18. So DEA already has this authority. They have it nationwide. They have always had it. We do not take it away. We do not enhance their authority. This is a bogus red herring. Somebody is trying to scare the people: We are going to increase the Government power. Hogwash, we are increasing the power of the physicians. We are giving them a safe harbor, giving them greater standing. Before somebody can take action, they have to prove intent before there would be any claim against that physician. We give the physicians greater power and greater reliability that they will not be going to court, that they will not be in trouble with law enforcement if they are aggressively using these drugs for pain management. [[Page S11213]] Under this bill, they can use these drugs aggressively in pain management. They just cannot use them for Dr. Kevorkian assisted suicide, plain and simple. In Oregon, in at least 43 cases, they have used federally controlled drugs to kill someone. We are saying these are federally controlled drugs and you can use them to alleviate pain, but you cannot use them to kill someone. I want to touch on a couple of other issues. I mentioned safe harbor. I have a letter from the American Medical Association, which says: This bill would explicitly include this as a safe harbor, creating a legal environment in which physicians may administer appropriate pain care for patients without fear of prosecution. This is the AMA. They continue: The Pain Relief Promotion Act does not create a new Federal authority to regulate physicians. The bill contains specific rules of construction preserving the roles of States and the Federal Government in regulating the practice of medicine. I could go on and on. Mr. President, I ask unanimous consent to print in the Record a volume of information because this is an important issue. I have editorials, a couple of which came from Oregon, one of which is dated July 1, 1999. This is the Oregonian. It says: ``Kill the pain, not the patients.'' That is what we try to do with our bill. We try to kill the pain and not the patients. Also, I have an Oregonian editorial which says: ``A state's rights, a state's wrongs.'' This is dated October 19, 1999. And a more recent editorial from the Oregonian, September 10, 2000, says: Approve pain relief promotion bill. The Senate should put a quick end to Wyden's filibuster and pass a bill that favors pain killing over patient killing. I have a volume of things. I mentioned these three editorials which are very well written, and also I have a legal analysis of the bill; I have a list of organizations supporting the Pain Relief Promotion Act. This list is very long. It starts with Aging With Dignity, the American Academy of Pain Management, the American College of Osteopathic Family Physicians, American Medical Association, American Society of Anesthesiologists, American Society of Interventional Pain Physicians, Americans for Integrity in Palliative Care, Americans United for Life, California Disability Alliance, Catholic Health Association, Catholic Medical Association. I could go on and on. There are medical associations--the Florida Medical Association. There being no objection, the material was ordered to be printed in the Record, as follows: The Pain Relief Promotion Act and the Substitute Amendment--Supporting Organizations Aging With Dignity. American Academy of Pain Management. American College of Osteopathic Family Physicians. American Medical Association. American Society of Anesthesiologists. American Society of Interventional Pain Physicians. Americans for Integrity in Palliative Care. Americans United for Life. California Disability Alliance. Catholic Health Association. Catholic Hospice (Florida). Catholic Medical Association. Christian Legal Society. Christian Medical & Dental Society. Coalition of Concerned Medical Professionals. Carondelet Health System. Eagle Forum. Family Research Council. Florida Hospices and Palliative Care, Inc. Florida Medical Association. Focus on the Family Physicians Resource Council. Friends of Seasonal and Service Workers (Oregon). Hope Service and Palliative Care (Florida). Hospice Association of America. Iowa Medical Society. Louisiana State Medical Society. Lutheran Church--Missouri Synod. Medical Association of the State of Alabama. Medical Society of Delaware. Medical Society of New Jersey. Medical Society of the State of New York. Michigan State Medical Society. National Association of Pro-life Nurses. National Conference of Catholic Bishops. National Hospice Organization. National Legal Center for the Medically Dependent and Disabled. National Right to Life. Nebraska Coalition for Compassionate Care. Nebraska Medical Association. Not Dead Yet. Ohio State Medical Association. Oklahoma State Medical Association. OSF Healthcare System. Pain Care Coalition--American Academy of Pain Medicine, American Headache Society; American Pain Society. Pennsylvania Medical Society. Physicians for Compassionate Care. Puerto Rico, Office of the Governor. Supportive Care of the Dying: A Coalition for Compassionate Care. South Carolina Medical Association. South Dakota Medical Association. Union of Orthodox Jewish Congregations of America. Utah Medical Association. Virginia Association For Hospices. VistaCare Hospice. Vitas Healthcare Corporation (CA, FL, IL, OH, PA, TX, WI). Wisconsin Council on Developmental Disabilities. State Medical Society of Wisconsin. ____ [From the Oregonian, July 1, 1999] Kill the Pain, Not The Patients It's no secret to any reader of this space that we oppose

Summary:

All articles in Senate section

MAKING FURTHER CONTINUING APPROPRIATIONS FOR FISCAL YEAR 2001
(Senate - October 27, 2000)

Text of this article available as: TXT PDF [Pages S11206-S11230] MAKING FURTHER CONTINUING APPROPRIATIONS FOR FISCAL YEAR 2001 Mr. LOTT. Mr. President, I ask unanimous consent that the Senate now turn to the continuing resolution, H. J. Res. 117, that no motions or amendments be in order, and the time between now and 3:15 p.m. be equally divided between the two leaders. I also ask unanimous consent that the vote occur on adoption of H.J. Res. 117 at 3:15 p.m. and paragraph 4 of rule XII be waived. The PRESIDING OFFICER. Is there objection? Mr. KERRY. Mr. President, no objection. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. LOTT. Therefore, the next vote will occur at 3:15 this afternoon. Mr. President, for the information of Senators who are interested in the schedule, it is expected that the vote at 3:15 p.m. will be the last vote of the day. However, at this time, in view of the need for continuing resolutions, unless some different agreement can be worked out, we will be expected to have votes on Saturday and on Sunday with continuing resolutions. Of course, there is serious work underway right now on the matters of disagreement. I note Saturday is the sabbath for a number of our colleagues and for observant Jews, and Sunday is my sabbath. I prefer we get a CR that will take us to Monday while we continue to work, but we have not been able to enter into that agreement yet. If necessary, we will be here and voting on CRs on Saturday and on Sunday. It is my expectation that vote will come late in the afternoon or early evening on Saturday. Also, again, Senator Stevens from the Appropriations Committee and the appropriators are meeting right now on the final details of the Labor-HHS bill. There is also some discussion about how we can move some of the problem issues out of the CSJ bill that has been reported out of conference and passed by the House. Corrections or changes, if agreed to, could be entered into the Labor-HHS bill. I do want you to know the appropriators are busily working in their magical way, and I am sure at sometime a cone of honey will be produced, or maybe that is the wrong terminology to use, but they are getting closer to agreements. I hope it is something that can be signed, or I hope it is something I can vote for, too. Both of those are undetermined at this point. I know Senator Kerry wants to make further comments about an earlier issue. We now have 3 hours and 15 minutes to talk about the CR or other issues Senators wish. Mr. STEVENS. Will the Senator yield for a moment? Mr. LOTT. I will yield since I invoked the name of the distinguished chairman of the Appropriations Committee. Mr. STEVENS. My name came up as a magician. I am Aladdin. I rub the lamp. Mr. LOTT. Very good. That is right, and I hope you will start rubbing it very fast. Mr. STEVENS. I am supposed to bring you out of the lamp. Mr. LOTT. All right. Mr. STEVENS. Mr. President, I have to inform the Senate that if we finish the Health and Human Services bill today--we are in good-faith negotiations, and we expect to be quite late today--that bill could not be finished in terms of its reading out and printing and being available to both sides until Monday afternoon at the earliest. I hope we can get some consideration from the administration and from everyone to understand that. We would have two sessions--one on Saturday and one on Sunday. Some people work on their sabbath and some people do not. We have a staff who will be working, in spite of that, around the clock to read the legislation. There are some 40 pieces of legislation, in addition to the bill itself, that will be in the Health and Human Services bill; at least that will be our recommendation. I urge that somehow or another I be allowed to offer an amendment to this continuing resolution and make it Tuesday night. I have told the White House and OMB that there is no way, even if we finish tonight, that we can take it up tomorrow or take it up Sunday. We will not be able to take it up until Monday night. The White House should know that, OMB should know that, and I hope the minority agrees with us. We cannot vote on this bill, the major wrapup piece of legislation, until, at the earliest in the Senate, Tuesday. The House may be able to vote on it Monday night. To argue over a CR that takes us to tomorrow and to argue over one that takes us to Sunday and one that takes us to Monday, when there is nothing we can do about finishing up this Congress, is just demonstrating our inability to deal with reality. I hope the leader will allow me some time today to offer a motion to amend that CR and make it Tuesday. I have discussed it with the House, and they are in session. They can adopt it and send it to the President. Somehow or another, this idea we can only go day to day and we can produce something tomorrow that we have not finished today, when we have just one bill left which itself cannot be finished until Monday night, I think is foolhardy. I am prepared to challenge the President and all of his people to come to reality. The discussions are being held with his people. If we do not finish them tonight, we will finish them tomorrow. If we do not finish them until tomorrow, it will be Tuesday morning before it is read out. Maybe people do not understand what we do. Each side has a copy of the final provisions. Each reads it through, and we call in the people from the committees involved to be sure the provisions are correct. Then we get together and our staffs read it together, and each makes certain the other has not made any changes in it. And that will not be finished. It will take at least 20 hours of reading to do that. It will not be finished until Monday night. Mr. LOTT. Mr. President, I say to the Senator from Alaska, we do not quite know what the appropriators do. I am not sure we really want to. We wish you the best because at least all of our schedules are in your hands, if not our lives. But I think what the Senator is saying is eminently reasonable. I urge you to get Senator Byrd to discuss that with the leadership on the other side, and if you talk with Senator Reid, we will communicate with the administration and hopefully maybe by 3:15 p.m. we can take that reasonable action. I certainly would support it. But we have to get an agreement. I yield the floor. Mr. KERRY. Mr. President, if I may respond, I am confident the leader on our side wants to be as reasonable as possible. The issue on our side has been, as we said earlier, the level of progress, No. 1, and No. 2, the question of inclusivity. What the chairman just said suggests there is a lot more inclusivity, and I presume reasonable minds will prevail at an appropriate time. A judgment has to be made by the administration and the minority leader with the level of progress. I am confident that will happen. If I may continue, Mr. President, for a moment. Would it be appropriate at this point in time--Senator Wyden has been waiting for a long time; I know the Senator from Texas has been waiting. I want to make a few comments yielding myself time off our time for a brief moment--I will be brief--at which point, may we have a unanimous consent agreement? [[Page S11207]] Mr. WYDEN addressed the Chair. The PRESIDING OFFICER (Mr. Allard). The Senator from Oregon. Mr. WYDEN. I would ask---- Mr. KERRY. I will yield only for the purpose of asking a question. Mr. WYDEN. I thank the Senator. I ask unanimous consent that I be recognized, Mr. President, to speak for up to 30 minutes on the continuing resolution when Senator Kerry has completed his comments. Mr. KERRY. Mr. President, would the Senator agree that the Senator from Texas was, in fact, going to precede him? Mr. DOMENICI. Reserving the right to object, might I ask a question? Mr. WYDEN addressed the Chair. The PRESIDING OFFICER. The Senator from Massachusetts has the floor. Mr. KERRY. I am willing to yield for a question, but I am trying to proceed here, if we can. Mr. WYDEN. Would the Senator from Massachusetts yield for me to clarify this? Mr. KERRY. I yield for the purpose of clarification only. Mr. WYDEN. I appreciate the Senator yielding. I was prepared to allow Senator Gramm to speak because the two of us were on the floor at the same time, to speak for 15 minutes, on the proviso that I could go next. I would then talk for up to 30 minutes. Mr. KERRY. I would modify the unanimous consent request. Mr. NICKLES. Reserving the right to object. The PRESIDING OFFICER. The Senator from Oklahoma. Mr. NICKLES. Knowing the subject matter that my colleague from Oregon wishes to speak to, I would like to be recognized for 15 minutes, following the Senator from Oregon, to respond. Mr. DOMENICI. Reserving the right to object. The PRESIDING OFFICER. The Senator from New Mexico. Mr. DOMENICI. I have the right to object. There is a unanimous consent request pending. Mr. KERRY. Absolutely. Mr. DOMENICI. I would like to have 20 minutes reserved for me when you are finished--whoever is in the chain, whatever that is. Mr. REID. Reserving the right to object, Mr. President. The PRESIDING OFFICER. The Senator from Nevada. Mr. REID. I am happy, until 3:15, to work out time agreements so people are not standing around. But the way it now appears, it is going to be a little unbalanced. We should rotate time wise, not necessarily who is speaking but how much time. We want to work Senator Conrad into this mix. Mr. KERRY. Mr. President, could I suggest the following? And I think it will meet everybody's needs. At the conclusion of my brief remarks, the Senator from Oregon be recognized, following him, Senator Nickles to be recognized, with the time to be selected by the managers for how much time they allocate, and subsequent to that, someone on our side, to be named, to be recognized, and then the Senator from Texas. Mr. DOMENICI. What about the Senator---- Mr. KERRY. Afterwards it would come back to this side, and then the Senator from New Mexico. Mr. BOND. Reserving the right to object, apparently there is a lot of discussion that needs to go on. We need to work out the time. Could we ask-- Mr. KERRY. You control it. Mr. BOND. I know, but could we ask the initial remarks of the Senator from Oregon and the Senator from Texas to be 15 minutes each, so then we can work out a schedule? We know that we will then be able to develop the schedule so that all of the important things that people on both sides of the aisle need to say before 3:15 can be said. Mr. KERRY. Mr. President, the Senator from Oregon has requested 30 minutes. I am prepared to yield him 30 minutes from our time. I think we should each control our time. The PRESIDING OFFICER. The Senator has that right. Mr. NICKLES addressed the Chair. The PRESIDING OFFICER. The Senator from Oklahoma. Mr. NICKLES. OK, if our understanding is that the Senator from Oregon receives up to 30 minutes, if you would allocate me up to 30 minutes in response, and hopefully neither one of us will take that much time, and then you can continue the division of time. Certainly it would be appropriate. Mr. KERRY. Mr. President, I ask unanimous consent for that request. The PRESIDING OFFICER. Without---- Mr. DOMENICI. No. Mr. President, I reserve the right to object. Where are we now with reference to whether the Senator from New Mexico gets to speak? Mr. KERRY. Mr. President, the Senator from New Mexico follows on the Republican side after the Senator from Texas. Mr. REID. However, I say to Senator Domenici, it would be the Democratic side's turn prior to you. Mr. DOMENICI. I understand. The only thing I am concerned about, if you are going an hour equally divided--3:15 is the vote; isn't it? Mr. KERRY. Mr. President. I think this is not as complicated as we are making it. If I could try to simplify it, the unanimous consent request requires us to alternate to each side. We will go, immediately following my comments, to the Senator from Oregon, and then back to the majority side, Senator Nickles, and then back to our side to a person to be yet named, and then back to the Republican side to the Senator from New Mexico, and then back to our side, which follows Senator Gramm. And that is the order with the time to be determined by the managers on each side. The PRESIDING OFFICER. Is there objection? Mr. DOMENICI. Mr. President, reserving the right to object, I wonder if the manager of the bill, as part of this, would use his efforts with reference to how much time each one gets so that at least those we have agreed to would be able to speak before 3:15. You can do that, I believe. Mr. BOND. Mr. President, reserving the right to object, I believe the agreement is that between now and 3:15 the time is equally divided. So that would roughly be 3 hours and 10 minutes. So that is an hour and 45 minutes for each side. With that understanding, each side has 1 hour 45 minutes. Mr. KERRY. Mr. President, I ask unanimous consent that the time consumed to this point not count as equally divided. The PRESIDING OFFICER. Is the Senator putting off the 3:15 vote? Mr. KERRY. No. But I was recognized and therefore I do not want this entire colloquy to come from my time. I am asking that the time commence for division. The PRESIDING OFFICER. It has to come from somebody's time. Mr. KERRY. It comes equally divided from both sides. The PRESIDING OFFICER. Is there objection? The Chair hears none, and it is so ordered. Mr. KERRY. I thank the Chair. Mr. President, I will be very brief. I simply want to respond very quickly to the comments made by the distinguished majority leader who appropriately cited many items within the legislation that we all ought to support. Indeed, that is precisely what I said in the course of my comments. We do support a great deal of what is in the legislation. But what the majority leader never did, in the course of his comments, was address any of the issues we raised with respect to the health care system, the fundamental fairness, and the issues of contention raised by the President of the United States. He dismissed that rather quickly and cavalierly, suggesting that the President got a lot of what he wanted. Let me be very precise. Of 119 individual tax provisions in this bill, 35 of them are from the President's budget; that is 30 percent of the provisions, not the 80 percent that the majority leader talked about. Mr. President, and of the $240+ billion in tax cuts in this package, only $48 billion, or 20 percent of the total, is from the President's proposals. No one should be misled by the comments of the majority leader to believe that this is somehow a fair division, and that the President, in offering to veto, is not vetoing it on substantive, clear, and distinct differences of policy. Secondly, the majority leader suggested that much was included in this, and this is sort of mostly a bill that is somehow beneficial. What he neglected to address was the issue that we raised [[Page S11208]] about how this bill came together and what is in it as a total. As a total, it represents, in a sense, a consensus of what the majority wanted to put in. But it was arrived at without discussion with the minority, and so there are whole bills in here that raise very significant issues. One of them is the issue to which the Senator from Oregon is going to talk. I just want to take about 2 minutes to say something about it. There is, in this tax bill, a whole piece of legislation called the Pain Relief Promotion Act. My colleagues ought to listen to that title very carefully: Pain Relief Promotion Act. That title is an extraordinary, almost cynical, play on words. It completely distorts the notion of what happens in this legislation. First of all, this Pain Relief Promotion Act completely preempts State law with respect to the definition of a legitimate medical purpose with respect to State medical regulations. The implications of that with respect to this are to require the Drug Enforcement Agency's agents to determine whether a physician's prescription of a controlled substance for pain relief medication was intended to relieve pain or to assist in suicide. I hope my colleagues focus on that. The Pain Relief Promotion Act is asking DEA agents to make a judgment of intent about what a doctor intended to do in prescribing a prescription drug to a patient who is terminally ill in a hospital. Are we seriously going to go down that road and DEA agents to have the potential to provide a 20-year prison sentence for a doctor for making a judgment about pain medication to an ill patient in a hospital? I find that extraordinary. Yet the majority leader tried to suggest on the floor that this is just some innocuous conglomeration of legislation that has no major impact on the lives of Americans, except 80 percent of it is good and what the President wanted. That is a fight worth fighting on the floor of the Senate today. I am not going to go into all the details. I just went through a long hospitalization issue with a parent. I know what that pain medication meant for cancer. I know how difficult it was in the hospital to get the proper pain medication, to have people comfortable with what was being dealt. If we suddenly layer that kind of legal structure over the delivery of medical care in America, we are taking an extraordinary step that at least ought to be properly debated on the floor of the Senate in the context of hearings, the process, and so forth. A recent New England Journal of Medicine article said the following: If the Pain Relief Promotion Act becomes law, it will almost certainly discourage doctors from providing adequate doses of medicine to relieve the symptoms of dying patients. That does not belong in a tax bill, conglomerated in a room without the consent of Democrats. That is why we are here. That is why we are fighting about this legislation. My final comment is, with respect to the tax components of this, major components of fairness were stripped out of this bill. The majority leader talked about how important it is to provide savings for Americans. Yes, it is important. There is not one of us on this side of the aisle who won't vote to encourage Americans to save money. There is not one of us who does not support a 401(k) program. But when we are making a choice about how much money we can allocate to people based on the overall amounts of money available and that choice was made by the Republicans alone to encourage 401(k)s to the exclusion of middle- and low-income Americans to be able to save, that is a fight worth fighting. That is a question of fundamental fairness. The 401(k)s are terrific for lawyers and doctors and high-income people, but the kind of Americans we were trying to reach--at the $30,000, $25,000, $20,000 income level--have a lot harder time gaining benefit from a 401(k). What the President had in his proposals was a credit that would have gone directly to those hard-working Americans. That was stripped out. That is why we are here now raising these issues regarding this legislation. It is a question of fundamental fairness. I regret that in all of his comments this morning, the majority leader did not address the fundamental issue of fairness that we are raising and over which the President has threatened a veto. My absolute last comment: The President made clear that he would veto this. So the majority leader comes to the floor and says, well, we will come back, and we will work this out down the road. Why? Why work it out down the road? Why not work it out now? Why not work it out in the last month before we came to the floor knowing it would be vetoed? If we can work out these other issues, if we weren't seeking a political advantage, we could certainly work that out. People may not like the fact that the President of the United States is who he is and is of the party that he is, but he has the veto. We have been through this since 1995, when the Government of the United States was shut down for the first time in American history over this very same challenge. And here we are again, in the year 2000, with the same sort of sense of frustration over the fact that he has the veto pen that brings us to this point of confrontation. The fact is, he does have that pen. He has the constitutional right. He made it clear he would do it. And the reasons he has chosen to do it are substantive and important to the American people. That is what this debate is about. I thank my colleague for his courtesy. I yield such time, up to the 30 minutes, as he might consume to the Senator from Oregon. The PRESIDING OFFICER. The Senator from Oregon. Mr. WYDEN. Mr. President, before he leaves the floor, I thank the Senator from Massachusetts, both for his focus on bipartisanship with respect to the overall package and for his very thoughtful comments about the assisted suicide issue. I think he has summed it up very well. I feel bad that I had to object to consideration of the tax legislation this morning. I will take just a minute or two to describe why and then go on to talk about the overall issue as it relates to pain relief and what is in the tax bill. I know it is an inconvenience to a number of Senators to have me talk about this subject at length. This is an important time in the year for colleagues. I regret the inconvenience. But I believe what is in the tax bill is going to cause so much pain and suffering to families all across the country, that the interests of those families who are going to suffer if this tax bill as written becomes law have to come first. First and foremost, I want the Senate to understand that before we are done, I am going to speak at length about exactly what the consequences will be for families all across this country, who needlessly are going to suffer great pain that could be averted, if the bill becomes law as written. In addition, while the majority leadership in the Congress is attempting to throw Oregon's vote on assisted suicide into the trash can, Oregonians are holding on to ballots such as this one. They are wondering if this ballot, this sacred vote, really counts. Mr. REID. Will the Senator from Oregon yield for a question? Mr. WYDEN. In one moment. I am obligated to speak for those Oregonians, each and every one of them, over a million Oregon voters, because I want them to understand that I am going to do everything in my power to make sure the ballot I have in my hand and the ballots they are holding right now actually count. The fact is, the senior Senator from Oklahoma has put into the tax bill legislation that would silence over a million Oregon voices. I am going to be here to make sure those voices are heard. I yield to the Senator from Nevada. I thank him for his thoughtful comments last night on this issue. Mr. REID. Mr. President, I have a question. This question comes from the people of the State of Nevada. It is my understanding that if this provision of this tax bill passes, a vote that was taken in the State of Oregon, open to everyone in the State of Oregon, would be basically repealed by the Congress of the United States; is that true? Mr. WYDEN. The Senator is correct. In effect, it would be impossible to carry out the will of Oregon voters on a matter that has historically been left to the States. [[Page S11209]] What is so striking--and I appreciate the Senator's question--is that we constantly have colleagues come to the floor and talk about the importance of States rights and the beauty of the 10th amendment. Then when they don't happen to agree with what a State is doing, I guess the 10th amendment isn't so important anymore. I appreciate the Senator's question. Mr. REID. One more question I will ask the Senator from Oregon: Then the people of Nevada, no matter how they feel about the substance of the legislation that passed in the State of Oregon, should be warned by me and others that if this piece of legislation passes, if we pass a ballot proposition or a law in the State of Nevada, it would be subject to repeal by the Congress. We in Nevada believe in States rights. We are part of the great western heritage. Is it true that if this particular legislation passes, the people of the State of Nevada should be aware of the fact that we could repeal something that they pass in the legislature or by ballot proposition? Mr. WYDEN. The Senator is absolutely right. People in Nevada should understand that what this legislation does is take away from all States what has historically been their prerogative, which is to determine appropriate medical practice. There is a great body of case law and a variety of legal precedents that establish that right, and folks in Nevada should understand that. I think it is also on point to note that people in Maine are voting right now on this issue. I think it is open to some question as to what will be the effect of that Maine ballot measure right now if the tax legislation were to pass as written and, in effect, throw Oregon folk to the trash can, and it might do the same thing for people in Maine. I thank my colleague for his questions. Mr. President, if the Senate was here today to vote on a stand-alone bill which would lead to unspeakable, avoidable suffering for hundreds of thousands of terminally ill citizens, there is no question in my mind that the Senate would not pass it. So what we have to ask is why has the Senate leadership stuck into this tax bill, legislation that the American Cancer Society and over 50 nationally recognized health organizations believe will cause unnecessary suffering for thousands of terminally ill citizens in each State in our country. What is particularly ironic is that this legislation has not moved forward with any of the traditional procedures of the Senate. It has never been reported out by a committee of jurisdiction. It has never been subject to amendment by the full Senate. There has never been a chance to debate it on the floor of the Senate. The fact is that this legislation, which is one of the central bioethical questions in our society, was stuffed into the tax bill close to midnight the other night, without overcoming even one of the traditional procedures the Senate follows. Now, Senator Kerry noted the name of this bill. It is the so-called ``Pain Relief Promotion Act.'' The fact of the matter is, this legislation is really the ``Pain Promotion Act'' because it is going to have a chilling effect on health care providers all across this country who simply want to practice good pain management. I know my friend from Colorado, who is in the Chair today, also represents a rural State. Let me tell you about the kind of concern I have if the Nickles bill, as written, becomes law. Let us say you have a physician in Colorado or in Iowa or another rural State who is opposed to assisted suicide--and I am opposed to assisted suicide; I have joined colleagues here in voting to ban Federal funding of assisted suicide. But let's say a physician in Colorado, who is opposed to assisted suicide, wants to treat pain aggressively with a suffering patient. If they do, their intent, their mental calculus can later be dissected by law enforcement officials who, if they believe that anti- assisted suicide physician really had a different intent, can prosecute that physician. And the medical providers involved would be subject to a mandatory minimum sentence of 20 years, a fine that is upwards of a million dollars and they would lose their DEA registration. The fact is that the undertreatment of pain today is a documented public health crisis. There was just another survey published very recently demonstrating that physicians and health care providers are reluctant to treat pain aggressively because they are very fearful of having their decisions second-guessed by law enforcement. There are a number of us--the American Cancer Society is one--who are opposed to assisted suicide. Yet the American Cancer Society has said that because of the chilling ramifications of pain management, it believes the Nickles legislation included in the tax bill is going to hurt cancer patients nationwide. The American Academy of Family Physicians is another major medical group opposed to assisted suicide and they oppose the Nickles legislation; so is the American Nurses Association, the Oncology Nursing Society, the Indiana State Hospice and Palliative Care Association, and the Texas Medical Association. In sum, there are more than 50 respected health organizations that are opposed to physician- assisted suicide and also oppose the Nickles legislation included in this tax bill. If we do care about humane medical treatment--and I know that every Senator cares about the suffering of those who are vulnerable--I believe when you actually read what is in this tax bill and what Senator Nickles has been able to include, if you wish to join us in alleviating suffering and protecting the poor, elderly, and vulnerable, you have to oppose the Nickles legislation because it hurts the very people that our colleagues care about. I want to raise a troublesome flag now with respect to this bill. To my knowledge, not a single nursing organization in America supports the bill purporting to relieve pain for the dying--not one. But seven nursing organizations, including the American Nurses Association, National Association of Hospice and Palliative Nurses, Pediatric Oncology Nurses, and the American Society of Pain Management Nurses, oppose the alleged pain relief bill included in this tax legislation. Now, you know when a loved one is in a hospital, the physician may have ultimate responsibility for the care, but the nurses are the ones on the front lines coping with pain. Seven major nursing organizations, representing those on the front lines, have come out against the Nickles bill. So the question is, how could all of this happen? I think the Senate may want to reflect on the procedures involved because I think other Senators may find the same sort of absurd process applied in matters that are important to their States. When Senator Nickles introduced the Pain Relief Promotion Act last year, the bill was referred to the Committee on Health, Education, Labor, and Pensions. That is because, for obvious reasons, the bill has enormous ramifications for pain and health care. The bill received a hearing in 1999. It wasn't acted on by the committee. Members on both sides of the aisle expressed concerns about the legislation's impact on end-of-life and pain care. Unfortunately, a House bill identical to that legislation was passed by the House and was suddenly referred to the Senate Judiciary Committee, which didn't have jurisdiction on this critical health issue. The Parliamentarian did something that I believe showed great courage, and I commend him for it. He simply told the news media that a mistake had been made, that the Nickles legislation had been referred to the wrong committee. I thought it was a very courageous, gutsy thing for the Parliamentarian to do. It was the kind of unfortunate accident that can happen. The Judiciary Committee, as one might guess, had a chairman who was sympathetic to the Nickles legislation who pushed and pushed to mark it up before the American Cancer Society made it clear that the Nickles legislation would hurt cancer patients. They got the bill out of the Judiciary Committee on a 10-8 vote. Now you know that the bill is very controversial. That is why it is coming to the floor of the Senate in the form it is. They could not get the Senate to approve this legislation if the traditional procedure of the Senate were followed. In fact, since the Nickles legislation had been introduced with a handful of Democrats who were supportive, several have now indicated their opposition largely for the reasons I have cited--that the Nickles legislation would have a chilling effect on pain management. [[Page S11210]] The reason this bill has been stuffed into the tax legislation is that it cannot go forward on its own. There is too much controversy attached to it, too much uncertainty about its ramifications on pain care for the dying for the leadership to bring it to the floor in the normal way. The fact is that the Senator from Oklahoma doesn't have the votes. At one point, the supporters had 80 votes. It got out of the Judiciary Committee 10-8. I said last summer, let's follow the traditional rules of the Senate. After we had agreed to that, the distinguished Senator from New York, who is very opposed to assisted suicide, saw how much damage this legislation would do for the suffering and said he couldn't support the bill. Senator Nickles saw that support was quickly moving away from him and that he didn't have the votes to pass his legislation following the traditional procedure of the Senate. To compensate for the lack of votes and the inability to follow traditional procedures in the Senate, the senior Senator from Oklahoma has chosen the least democratic method at his disposal to circumvent an honest debate and avoid even a couple of modest amendments. What is striking is the senior Senator from Oklahoma has on various occasions apparently said we shouldn't have extraneous matters brought in that had not been considered separately in a conference report. But he is allowing exactly this to be done with his bill. The senior Senator from Oklahoma is betting that by stuffing his legislation into this conference report, everybody is going to be so resigned to the outcome and so anxious to bring down the gavel and get home that this body is just going to ignore its obligation to the scores and scores of families and suffering patients who are going to be hurt by this legislation. The senior Senator from Oklahoma may be right. I suppose that is the way it often works in the Senate. However, I am going to be asking my colleagues--and will talk more about this subject when we get back on the tax legislation--to step up to the suffering with so much on the line. I want them to know what is at stake. If this legislation is approved, the friends of every Senator, loved ones, and constituents are going to find it impossible to obtain aggressive pain care in their communities. Patients unable to obtain pain care are a fact of life right now, but at least we have some solace in knowing that thousands of brave health professionals are willing to risk their reputations and their careers to prescribe controlled substances to relieve suffering. If the tax legislation goes forward without removing the Nickles bill, the undertreatment of pain, which is already a documented public health crisis, is going to get worse. Our loved ones--yours, mine--and individuals in every community across this country are going to suffer the consequences with this flawed legislation. I hope that before we have a final vote on this issue, each and every one of our colleagues will read the statement of the American Cancer Society on this legislation. They are an organization that opposes assisted suicide, as I do. Yet here is what they say about the Nickles legislation. This is the direct statement of the American Cancer Society about the Nickles legislation. The American Cancer Society states, and I quote: Under the act, all physicians, and particularly physicians who care for those with terminal illnesses, will be made especially vulnerable to having their pain and symptom management treatment decisions questioned by law enforcement officials not qualified to judge medical decision-making. This can result in unnecessary investigation and further disincentive to aggressively treat pain. That is the American Cancer Society describing how the Nickles legislation will have a chilling effect on pain care. I would like to offer a bit of a historical perspective. The nonprescription abuse of opioids and cocaine around the turn of the century and the growing sentiment that doctors at that time were one component of the growing drug problem in America helped contribute to the stigma associated with the use of opioids for pain. According to a seminar on oncology and in an article by Dr. David Wiseman, ``Doctors, Opioids, and the Law: The Effect of Controlled Substances Regulation on Cancer Pain Management,'' when regulations were enacted in 1914 to keep from treating drug addicts with opioids, the stigma attached to those drugs continued to grow, and physicians across the country became more reticent to prescribe those drugs because of their fear of criminal or licensing sanctions against their practice. The undertreatment of pain is due to a variety of complex causes. There certainly are a number of studies that show that the threat of legal sanctions is one of the main roadblocks to humane pain control. And that is before the Nickles legislation in the Senate would direct to Drug Enforcement Administration to have law enforcement agents second-guessing the judgment of doctors. One 1994 California survey showed that 69 percent of physicians cited the potential for disciplinary action as a reason for prescribing opioids conservatively. One-third of the doctors went on to acknowledge that their own patients may be suffering from untreated pain. What we saw last week in Oregon was a brand new study that showed again that physicians are fearful about aggressively treating pain for fear of legal prosecution. It confirmed the 1994 California survey. For that reason, I am happy to yield to my friend and colleague. Mrs. BOXER. Mr. President, I thank my friend for bringing these issues to the floor of the Senate. I think this issue of pain abatement is a key issue. I go even further than that in this debate because the issue of physician-assisted suicide, which I do not support, is really not what I am afraid of in Senator Nickles' approach. But I just want to say to my friend, thank you for bringing this issue forward. I watched a loved one, who was as close to me as anyone could be, cry out in pain hour after hour, saying: I don't want to live. I wanted this person to live more than I can say. But I went to that physician of this loving relative and I said: Please, please, do everything in your power to anesthetize this pain, to sop this pain. This physician looked at me and he said: I will do everything that I can. I am so fearful that someone else, if this bill becomes law, will look at me and say: Barbara, I know how much you love this individual, but I can't do more than I am doing because I'm afraid I'm going to be hauled off to prison. I don't want any family looking in the eyes of a physician, begging to put a loved one out of this type of misery and pain, being told that their hands are tied; they would love to help and they can't. That is why what the Senator from Oregon is doing is so important and why I am so saddened that this bill, in the dead of night, that could lead to people writhing in pain, not being able to get the help they need, was done in such a fashion where we really can't even give it the attention it deserves. As my final point, would my friend tell me again, for the record, so that everyone watching this debate can know, which organizations are opposing this Nickles provision for the reason that the Senator has stated--that it will lead to people suffering needlessly, and doctors being afraid to help them because they will be hauled off to jail. Mr. WYDEN. I appreciate my colleague's questions. There are more than 50 major health organizations. The American Cancer Society has stated why they feel this legislation would have a chilling effect on pain management. I want my colleague to know, because time is short, that Senator Nickles, in offering this bill, says doctors don't have anything to worry about with respect to prosecution under the bill--that his legislation says doctors can prescribe drugs which will hasten death if their intent is to treat the pain. So he is talking about ``intent.'' Our colleagues are right to be so concerned about who is going to determine the intent of the physician, who is just trying to help somebody suffering and gives a suffering person critical relief and dignity as they face difficult hours at the end-of-life. The person who is going to decide ``intent'' is not another doctor, not a nurse, not a health professional, not anybody with medical [[Page S11211]] training, but law enforcement officials. A law enforcement official is going to determine that medical provider's' intent. Somebody with no medical training is going to, in effect, have the authority to put medical providers on trial; a trial that could cause a provider to lose their license, serve 20 years in prison, and face upwards of a $1 million fine. It doesn't have to be this way. There are many who oppose assisted suicide, who want to work in a bipartisan way to promote better pain management and reduce the demand for assisted suicide. Mrs. BOXER. I thank my friend. Mr. WYDEN. The Senator from Oklahoma is not allowing Members to do that. The Senator from California has made the key point. At the end of the day, I want it understood when the people of Oregon cast a ballot like the one I have in my hand on a matter that has historically been left to the people of my State and to every State, I will do everything I can on the floor of the Senate to protect that vote. I yield the floor, and I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Mr. WYDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. WYDEN. Mr. President, I ask unanimous consent that the time be equally divided between both sides. Mr. BOND. I object. The PRESIDING OFFICER. The objection is heard. Mr. WYDEN. Mr. President, I will keep talking if the Senator from Missouri objects. I am sure some of our colleagues have other concerns. I will continue on this question of dissecting medical providers' intent, as the Nickles legislation does, a dissecting exercise that will be done by law enforcement professionals rather than medical providers. Here is what the American Cancer Society had to say about determining ``intent'' under the Nickles legislation. The American Cancer Society says: Unfortunately, intent cannot be easily determined, particularly in the area of medicine, where effective dosage levels for patients may deviate significantly from the norm. The question of deciding intent should remain in the hands of those properly trained to make such decisions--the medical community and State medical boards. What the American Cancer Society is saying, as with these other 50 organizations, they are especially troubled that the Nickles legislation is second-guessing the pain management practices of physicians and providers all across the country. It is especially troublesome because law enforcement officials, rather than health care professionals, are going to be the ones to assess the intent of a medical provider. A medical providers' intentions under any calculus, as the American Cancer Society has noted, cannot be easily determined. To allow law enforcement officials to have this enormous discretion, after the fact, to challenge our medical providers, in my view, is going to significantly compound the undertreatment of pain in America. Mr. NICKLES. Mr. President, I was told that the time of the Senator expired and I was coming to claim my time to respond. The PRESIDING OFFICER. The time of the Senator has expired under the previous order, and the Senator from Oklahoma is to be recognized. Mr. NICKLES. I will be happy to let my colleague conclude his thought. Mr. WYDEN. Mr. President, I hoped we could have worked it out. My time has expired. As the Senator from Oklahoma knows, I have wanted a real debate on this legislation for some time, so I am happy to have the Senator hold forth. The PRESIDING OFFICER. The Senator from Oklahoma. Mr. NICKLES. Mr. President, one, I wish to respond to my colleague and my friend from Oregon. He is my friend. We happen to have a disagreement on this issue. We have a difference of opinion, a rather pronounced difference of opinion. I heard several things in his statement that I want to correct. I almost don't know where to start. First, let me touch on a couple of things on procedure. This is so wrong procedurally and should not be in this bill. Again, he is my good friend, but he has known all along I would try to get this bill on the floor. Yes, it was put in the tax bill. I tried to put it in the appropriations bill. We ended up putting it in a tax bill. Is that the best way to legislate? No. I might tell my colleagues and my friend from Oregon I tried about half a dozen different ways to pull the bill up, to have it be an amendable state, to offer my colleague from Oregon or others a chance to have relevant amendments, and those offers were always rejected. So now we have the bill before the Senate. I might also mention, if one is complaining about this procedure, then we shouldn't have any problem with the Commerce-State-Justice because the administration is trying to put an amnesty provision that doesn't belong on the Commerce-State-Justice bill. It did not pass either the House or the Senate, and is totally extraneous to the conference. Senator Byrd had one dealing with trade that was on an appropriations bill. It should not have been. It was inserted. At least this bill did pass the House by over 100 votes. It did pass the Judiciary Committee. It has had hearings. It has been marked up. It has had 42 cosponsors--maybe my friend and colleague from Oregon has been able to convince one or two to get off. Senator Lieberman is still a principal cosponsor, to my knowledge. He testified in favor of this legislation, as have I. So this legislation is not new. It is not a surprise. My colleague from Oregon has sent several letters to all colleagues saying what is wrong with the legislation. I have sent several letters to all of our colleagues saying he was incorrect. So everyone knows about this bill and everyone knows at some point we are going to have a debate on it. I hope it will be passed. Let me touch on a couple of issues that were brought up. My colleague from Oregon said if this bill is passed it is going to tell a million people in Oregon who voted for this on a ballot initiative, a referendum, that their vote does not mean anything. I disagree with that. This bill does not overturn Oregon's law. I want to be very clear about this. This bill does not say anything about making Oregon's law null and void. What this bill does is it deals with pain and pain management. The bill does say: Oregon, you cannot overturn Federal law. It doesn't say quite that. Federal law, the controlling law, is the Controlled Substances Act. That is a Federal law. It passed in 1970. It controls very strong drugs, I tell my friend from New York. These are deadly drugs. They are strong drugs. They are under Federal control. They are not under State control; they are under Federal control. It is a Federal Controlled Substances Act. The State of Oregon cannot pass a law that changes a Federal statute. I make the analogy, Oklahoma might say let's legalize heroin. Oklahomans might pass that in a referendum, but it doesn't make heroin legal. It is still against the Federal law to use heroin. These are federally controlled drugs. They are deadly if they are used in very large quantities, but they are also very helpful. They can help alleviate pain. Unfortunately, we have a real problem in pain. I heard my colleague from California mention she knew a friend who was in enormous pain. We all have friends or families or have known people who are suffering and suffering greatly. I want to alleviate their pain. That is one reason why this bill was created. There were two reasons. We want to alleviate pain. That is why all the pain management groups endorse this bill. I will go through a list. My colleague from Oregon listed a few groups that endorsed his. We have 10 times as many people, groups, physicians, you name it--hospice care, palliative care, the American Medical Association, that endorse this bill; pain management societies--you name it. I will have all that printed in the Record. These groups, the hospice groups and others, their members worked their entire lives because they want to alleviate pain. This bill will alleviate pain. [[Page S11212]] This bill does two things. It says we can use these drugs. My amending the Controlled Substances Act says we can use these very strong drugs to alleviate pain. We put a safe harbor in to protect physicians, making sure when they use these drugs to alleviate pain, if it causes someone's death there will be no problem. The bill also says these drugs cannot be used for the purpose of assisted suicide. Guess what. That has been the law of the land for 30 years. These drugs were never allowed to be used for assisted suicide. The Drug Enforcement Administration--I will put a letter from Mr. Constantine who says he reviewed it--the Controlled Substances Act says these drugs can be used for legitimate medical purposes. In our bill, we state that includes pain management, the alleviation of pain. We put that in specifically so everyone will know: Use these drugs to alleviate pain. It is now in the law. Mr. Constantine also said it is not construed to be used for assisted suicide. You say: Why do you need this bill? You need this bill for two reason. One, we want to make sure everybody knows these drugs can be used to alleviate pain. What about the Oregon law? My colleague from Oregon said this is going to outlaw the Oregon law and nullify a million voters who voted for it. This is going to gut the bill. Granted, they have had dozens of suicides that have been committed using federally controlled drugs. Guess what. The law was always interpreted before that these drugs cannot be used for assisted suicide. They cannot be used to cause someone's death. They can be used to alleviate someone's pain, and we clarify that in our legislation. We go further. We put in funds to educate people on pain management. My colleague from Oregon and I happen to agree with this. There is a real problem in pain management. There are a lot of people who are not doing enough in pain management, for whatever reason. Maybe they have not been educated. Maybe they are afraid of liability. Maybe they are afraid of doing too much and that might enhance someone's death. We said you can be very aggressive in pain management. What you cannot do is take federally controlled drugs and use them to kill somebody. These drugs are controlled by the Federal Government. They can be used to alleviate pain. They cannot be used to kill somebody. About the Oregon law, Oregon passes a law and says they are going to say one can have assisted suicide. Fine. You cannot use Federal controlled drugs. These are federally controlled drugs. Oregon cannot amend the Controlled Substances Act. They think they can. Now with the Attorney General's letter, maybe they think they can. It is really awkward. In 49 States, you cannot use federally controlled substances for assisted suicide, but in Oregon you can. So how did Oregon amend the Federal law, the Federal statute? Maybe Oklahoma is going to amend the Federal law. They might not like the .08 we just passed. I heard my colleague say: What about States rights? I am a very strong supporter of States rights but States cannot change Federal law. I am all for giving States the right to opt out. If we want to say the Controlled Substances Act applies unless the States want to opt out, let's pass it. We have not done that. If we want to have a different law to allow States to opt out, maybe it should be used against the Federal law against heroin or cocaine, and we want to have the State opt out on that? I don't think so. Oregon is saying let's have the State opt out on the Controlled Substances Act so we can use these substances for assisted suicide. Oregon cannot change the Federal law. So it is not us, it is not the Federal Government now trying to overturn the Oregon law. Oregon, by referendum, thought they could overturn the Federal law. They cannot do it. They cannot do it. Let's do what we can to alleviate pain. Let's take these very strong drugs--morphine and others that if used in excess can be deadly--let's make sure they are used to alleviate pain. Let's do it aggressively and educate people all across the country in pain management. So we do that as well. Let me also knock down a couple of the arguments that my colleagues used. He said if we do this, it is going to have a chilling impact. Far from it. I will tell my colleagues, the AMA and some other groups, the hospice groups, said that a couple of years ago. We stated very clearly in the Controlled Substances Act that these drugs can be used to alleviate pain. They said: We are afraid it will have a chilling impact so we put in language to guarantee, to give physicians safe harbors, to do all kinds of things in the legislation to encourage using the drugs for pain management but not assisted suicide. So the chilling effect argument is not accurate. In fact, if you look at the several States that have passed laws against assisted suicide but for pain management--and there are several, and I have charts of several: Kansas, Rhode Island, several States--in every one of those States, when they passed legislation banning assisted suicide but encouraging pain management, the use of morphine has gone up dramatically. So instead of having a chilling impact on pain management, it encouraged pain management, it encouraged the use of these drugs, these very strong drugs to alleviate pain. That is the history in every single State. It is interesting to note since Oregon passed their law on allowing or legalizing assisted suicide, it is just the opposite. The use of pain management drugs has actually gone down. I look at Indiana, the use of morphine has gone up substantially. They have banned assisted suicide. Iowa, the same thing, a dramatic increase in pain control drugs when they banned assisted suicide. Kansas, again, more than double. Louisiana doubled the use of these very strong drugs to alleviate pain. In Rhode Island, it more than doubled. South Dakota had a big increase. Again, almost all of these have doubled. Tennessee--it has more than tripled the use of pain control drugs. When the States banned the use of assisted suicide, they used the strong drugs to alleviate pain. This is what we want to do. We want to alleviate pain. We want to be effective. We want to get the very strong drugs that a lot of physicians have been reluctant to utilize and we want to get them into physicians' hands. We want to let them know they have the power, the authority, the education to use these drugs to alleviate pain. Even if they increase the use and it causes someone's death, there is no penalty, and I have to touch on the penalty sanctions. My colleague was so wrong. We want them to alleviate pain. My colleague says: If they do not comply, we will have a new group of Federal officers running around, and this is going to have a chilling impact. He is exactly wrong. The Drug Enforcement Administration is in control of these drugs right now. There are 990,000 registrants who use these federally controlled drugs nationwide. My colleague from Oregon implied that if we pass this bill, we are going to have a new set of Federal police; they are going to be arresting people and they will do years in jails and pay thousands of dollars in fines. We have given zero, none, no additional law enforcement authority. Guess how many drug enforcements there were in fiscal year 1999? There are 990,000 registrants, and they investigated 921 cases, almost all of which were referred by the States. They revoked their registration, which is DEA's enforcement. They revoked the registrations of 29. In 1998--again, there are almost 1 million people who are licensed to dispense these federally controlled drugs--they revoked the registrations of 17; in the year 1997, 18. So DEA already has this authority. They have it nationwide. They have always had it. We do not take it away. We do not enhance their authority. This is a bogus red herring. Somebody is trying to scare the people: We are going to increase the Government power. Hogwash, we are increasing the power of the physicians. We are giving them a safe harbor, giving them greater standing. Before somebody can take action, they have to prove intent before there would be any claim against that physician. We give the physicians greater power and greater reliability that they will not be going to court, that they will not be in trouble with law enforcement if they are aggressively using these drugs for pain management. [[Page S11213]] Under this bill, they can use these drugs aggressively in pain management. They just cannot use them for Dr. Kevorkian assisted suicide, plain and simple. In Oregon, in at least 43 cases, they have used federally controlled drugs to kill someone. We are saying these are federally controlled drugs and you can use them to alleviate pain, but you cannot use them to kill someone. I want to touch on a couple of other issues. I mentioned safe harbor. I have a letter from the American Medical Association, which says: This bill would explicitly include this as a safe harbor, creating a legal environment in which physicians may administer appropriate pain care for patients without fear of prosecution. This is the AMA. They continue: The Pain Relief Promotion Act does not create a new Federal authority to regulate physicians. The bill contains specific rules of construction preserving the roles of States and the Federal Government in regulating the practice of medicine. I could go on and on. Mr. President, I ask unanimous consent to print in the Record a volume of information because this is an important issue. I have editorials, a couple of which came from Oregon, one of which is dated July 1, 1999. This is the Oregonian. It says: ``Kill the pain, not the patients.'' That is what we try to do with our bill. We try to kill the pain and not the patients. Also, I have an Oregonian editorial which says: ``A state's rights, a state's wrongs.'' This is dated October 19, 1999. And a more recent editorial from the Oregonian, September 10, 2000, says: Approve pain relief promotion bill. The Senate should put a quick end to Wyden's filibuster and pass a bill that favors pain killing over patient killing. I have a volume of things. I mentioned these three editorials which are very well written, and also I have a legal analysis of the bill; I have a list of organizations supporting the Pain Relief Promotion Act. This list is very long. It starts with Aging With Dignity, the American Academy of Pain Management, the American College of Osteopathic Family Physicians, American Medical Association, American Society of Anesthesiologists, American Society of Interventional Pain Physicians, Americans for Integrity in Palliative Care, Americans United for Life, California Disability Alliance, Catholic Health Association, Catholic Medical Association. I could go on and on. There are medical associations--the Florida Medical Association. There being no objection, the material was ordered to be printed in the Record, as follows: The Pain Relief Promotion Act and the Substitute Amendment--Supporting Organizations Aging With Dignity. American Academy of Pain Management. American College of Osteopathic Family Physicians. American Medical Association. American Society of Anesthesiologists. American Society of Interventional Pain Physicians. Americans for Integrity in Palliative Care. Americans United for Life. California Disability Alliance. Catholic Health Association. Catholic Hospice (Florida). Catholic Medical Association. Christian Legal Society. Christian Medical & Dental Society. Coalition of Concerned Medical Professionals. Carondelet Health System. Eagle Forum. Family Research Council. Florida Hospices and Palliative Care, Inc. Florida Medical Association. Focus on the Family Physicians Resource Council. Friends of Seasonal and Service Workers (Oregon). Hope Service and Palliative Care (Florida). Hospice Association of America. Iowa Medical Society. Louisiana State Medical Society. Lutheran Church--Missouri Synod. Medical Association of the State of Alabama. Medical Society of Delaware. Medical Society of New Jersey. Medical Society of the State of New York. Michigan State Medical Society. National Association of Pro-life Nurses. National Conference of Catholic Bishops. National Hospice Organization. National Legal Center for the Medically Dependent and Disabled. National Right to Life. Nebraska Coalition for Compassionate Care. Nebraska Medical Association. Not Dead Yet. Ohio State Medical Association. Oklahoma State Medical Association. OSF Healthcare System. Pain Care Coalition--American Academy of Pain Medicine, American Headache Society; American Pain Society. Pennsylvania Medical Society. Physicians for Compassionate Care. Puerto Rico, Office of the Governor. Supportive Care of the Dying: A Coalition for Compassionate Care. South Carolina Medical Association. South Dakota Medical Association. Union of Orthodox Jewish Congregations of America. Utah Medical Association. Virginia Association For Hospices. VistaCare Hospice. Vitas Healthcare Corporation (CA, FL, IL, OH, PA, TX, WI). Wisconsin Council on Developmental Disabilities. State Medical Society of Wisconsin. ____ [From the Oregonian, July 1, 1999] Kill the Pain, Not The Patients It's no secret to any reader of this space that we oppose Oregon's

Major Actions:

All articles in Senate section

MAKING FURTHER CONTINUING APPROPRIATIONS FOR FISCAL YEAR 2001
(Senate - October 27, 2000)

Text of this article available as: TXT PDF [Pages S11206-S11230] MAKING FURTHER CONTINUING APPROPRIATIONS FOR FISCAL YEAR 2001 Mr. LOTT. Mr. President, I ask unanimous consent that the Senate now turn to the continuing resolution, H. J. Res. 117, that no motions or amendments be in order, and the time between now and 3:15 p.m. be equally divided between the two leaders. I also ask unanimous consent that the vote occur on adoption of H.J. Res. 117 at 3:15 p.m. and paragraph 4 of rule XII be waived. The PRESIDING OFFICER. Is there objection? Mr. KERRY. Mr. President, no objection. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. LOTT. Therefore, the next vote will occur at 3:15 this afternoon. Mr. President, for the information of Senators who are interested in the schedule, it is expected that the vote at 3:15 p.m. will be the last vote of the day. However, at this time, in view of the need for continuing resolutions, unless some different agreement can be worked out, we will be expected to have votes on Saturday and on Sunday with continuing resolutions. Of course, there is serious work underway right now on the matters of disagreement. I note Saturday is the sabbath for a number of our colleagues and for observant Jews, and Sunday is my sabbath. I prefer we get a CR that will take us to Monday while we continue to work, but we have not been able to enter into that agreement yet. If necessary, we will be here and voting on CRs on Saturday and on Sunday. It is my expectation that vote will come late in the afternoon or early evening on Saturday. Also, again, Senator Stevens from the Appropriations Committee and the appropriators are meeting right now on the final details of the Labor-HHS bill. There is also some discussion about how we can move some of the problem issues out of the CSJ bill that has been reported out of conference and passed by the House. Corrections or changes, if agreed to, could be entered into the Labor-HHS bill. I do want you to know the appropriators are busily working in their magical way, and I am sure at sometime a cone of honey will be produced, or maybe that is the wrong terminology to use, but they are getting closer to agreements. I hope it is something that can be signed, or I hope it is something I can vote for, too. Both of those are undetermined at this point. I know Senator Kerry wants to make further comments about an earlier issue. We now have 3 hours and 15 minutes to talk about the CR or other issues Senators wish. Mr. STEVENS. Will the Senator yield for a moment? Mr. LOTT. I will yield since I invoked the name of the distinguished chairman of the Appropriations Committee. Mr. STEVENS. My name came up as a magician. I am Aladdin. I rub the lamp. Mr. LOTT. Very good. That is right, and I hope you will start rubbing it very fast. Mr. STEVENS. I am supposed to bring you out of the lamp. Mr. LOTT. All right. Mr. STEVENS. Mr. President, I have to inform the Senate that if we finish the Health and Human Services bill today--we are in good-faith negotiations, and we expect to be quite late today--that bill could not be finished in terms of its reading out and printing and being available to both sides until Monday afternoon at the earliest. I hope we can get some consideration from the administration and from everyone to understand that. We would have two sessions--one on Saturday and one on Sunday. Some people work on their sabbath and some people do not. We have a staff who will be working, in spite of that, around the clock to read the legislation. There are some 40 pieces of legislation, in addition to the bill itself, that will be in the Health and Human Services bill; at least that will be our recommendation. I urge that somehow or another I be allowed to offer an amendment to this continuing resolution and make it Tuesday night. I have told the White House and OMB that there is no way, even if we finish tonight, that we can take it up tomorrow or take it up Sunday. We will not be able to take it up until Monday night. The White House should know that, OMB should know that, and I hope the minority agrees with us. We cannot vote on this bill, the major wrapup piece of legislation, until, at the earliest in the Senate, Tuesday. The House may be able to vote on it Monday night. To argue over a CR that takes us to tomorrow and to argue over one that takes us to Sunday and one that takes us to Monday, when there is nothing we can do about finishing up this Congress, is just demonstrating our inability to deal with reality. I hope the leader will allow me some time today to offer a motion to amend that CR and make it Tuesday. I have discussed it with the House, and they are in session. They can adopt it and send it to the President. Somehow or another, this idea we can only go day to day and we can produce something tomorrow that we have not finished today, when we have just one bill left which itself cannot be finished until Monday night, I think is foolhardy. I am prepared to challenge the President and all of his people to come to reality. The discussions are being held with his people. If we do not finish them tonight, we will finish them tomorrow. If we do not finish them until tomorrow, it will be Tuesday morning before it is read out. Maybe people do not understand what we do. Each side has a copy of the final provisions. Each reads it through, and we call in the people from the committees involved to be sure the provisions are correct. Then we get together and our staffs read it together, and each makes certain the other has not made any changes in it. And that will not be finished. It will take at least 20 hours of reading to do that. It will not be finished until Monday night. Mr. LOTT. Mr. President, I say to the Senator from Alaska, we do not quite know what the appropriators do. I am not sure we really want to. We wish you the best because at least all of our schedules are in your hands, if not our lives. But I think what the Senator is saying is eminently reasonable. I urge you to get Senator Byrd to discuss that with the leadership on the other side, and if you talk with Senator Reid, we will communicate with the administration and hopefully maybe by 3:15 p.m. we can take that reasonable action. I certainly would support it. But we have to get an agreement. I yield the floor. Mr. KERRY. Mr. President, if I may respond, I am confident the leader on our side wants to be as reasonable as possible. The issue on our side has been, as we said earlier, the level of progress, No. 1, and No. 2, the question of inclusivity. What the chairman just said suggests there is a lot more inclusivity, and I presume reasonable minds will prevail at an appropriate time. A judgment has to be made by the administration and the minority leader with the level of progress. I am confident that will happen. If I may continue, Mr. President, for a moment. Would it be appropriate at this point in time--Senator Wyden has been waiting for a long time; I know the Senator from Texas has been waiting. I want to make a few comments yielding myself time off our time for a brief moment--I will be brief--at which point, may we have a unanimous consent agreement? [[Page S11207]] Mr. WYDEN addressed the Chair. The PRESIDING OFFICER (Mr. Allard). The Senator from Oregon. Mr. WYDEN. I would ask---- Mr. KERRY. I will yield only for the purpose of asking a question. Mr. WYDEN. I thank the Senator. I ask unanimous consent that I be recognized, Mr. President, to speak for up to 30 minutes on the continuing resolution when Senator Kerry has completed his comments. Mr. KERRY. Mr. President, would the Senator agree that the Senator from Texas was, in fact, going to precede him? Mr. DOMENICI. Reserving the right to object, might I ask a question? Mr. WYDEN addressed the Chair. The PRESIDING OFFICER. The Senator from Massachusetts has the floor. Mr. KERRY. I am willing to yield for a question, but I am trying to proceed here, if we can. Mr. WYDEN. Would the Senator from Massachusetts yield for me to clarify this? Mr. KERRY. I yield for the purpose of clarification only. Mr. WYDEN. I appreciate the Senator yielding. I was prepared to allow Senator Gramm to speak because the two of us were on the floor at the same time, to speak for 15 minutes, on the proviso that I could go next. I would then talk for up to 30 minutes. Mr. KERRY. I would modify the unanimous consent request. Mr. NICKLES. Reserving the right to object. The PRESIDING OFFICER. The Senator from Oklahoma. Mr. NICKLES. Knowing the subject matter that my colleague from Oregon wishes to speak to, I would like to be recognized for 15 minutes, following the Senator from Oregon, to respond. Mr. DOMENICI. Reserving the right to object. The PRESIDING OFFICER. The Senator from New Mexico. Mr. DOMENICI. I have the right to object. There is a unanimous consent request pending. Mr. KERRY. Absolutely. Mr. DOMENICI. I would like to have 20 minutes reserved for me when you are finished--whoever is in the chain, whatever that is. Mr. REID. Reserving the right to object, Mr. President. The PRESIDING OFFICER. The Senator from Nevada. Mr. REID. I am happy, until 3:15, to work out time agreements so people are not standing around. But the way it now appears, it is going to be a little unbalanced. We should rotate time wise, not necessarily who is speaking but how much time. We want to work Senator Conrad into this mix. Mr. KERRY. Mr. President, could I suggest the following? And I think it will meet everybody's needs. At the conclusion of my brief remarks, the Senator from Oregon be recognized, following him, Senator Nickles to be recognized, with the time to be selected by the managers for how much time they allocate, and subsequent to that, someone on our side, to be named, to be recognized, and then the Senator from Texas. Mr. DOMENICI. What about the Senator---- Mr. KERRY. Afterwards it would come back to this side, and then the Senator from New Mexico. Mr. BOND. Reserving the right to object, apparently there is a lot of discussion that needs to go on. We need to work out the time. Could we ask-- Mr. KERRY. You control it. Mr. BOND. I know, but could we ask the initial remarks of the Senator from Oregon and the Senator from Texas to be 15 minutes each, so then we can work out a schedule? We know that we will then be able to develop the schedule so that all of the important things that people on both sides of the aisle need to say before 3:15 can be said. Mr. KERRY. Mr. President, the Senator from Oregon has requested 30 minutes. I am prepared to yield him 30 minutes from our time. I think we should each control our time. The PRESIDING OFFICER. The Senator has that right. Mr. NICKLES addressed the Chair. The PRESIDING OFFICER. The Senator from Oklahoma. Mr. NICKLES. OK, if our understanding is that the Senator from Oregon receives up to 30 minutes, if you would allocate me up to 30 minutes in response, and hopefully neither one of us will take that much time, and then you can continue the division of time. Certainly it would be appropriate. Mr. KERRY. Mr. President, I ask unanimous consent for that request. The PRESIDING OFFICER. Without---- Mr. DOMENICI. No. Mr. President, I reserve the right to object. Where are we now with reference to whether the Senator from New Mexico gets to speak? Mr. KERRY. Mr. President, the Senator from New Mexico follows on the Republican side after the Senator from Texas. Mr. REID. However, I say to Senator Domenici, it would be the Democratic side's turn prior to you. Mr. DOMENICI. I understand. The only thing I am concerned about, if you are going an hour equally divided--3:15 is the vote; isn't it? Mr. KERRY. Mr. President. I think this is not as complicated as we are making it. If I could try to simplify it, the unanimous consent request requires us to alternate to each side. We will go, immediately following my comments, to the Senator from Oregon, and then back to the majority side, Senator Nickles, and then back to our side to a person to be yet named, and then back to the Republican side to the Senator from New Mexico, and then back to our side, which follows Senator Gramm. And that is the order with the time to be determined by the managers on each side. The PRESIDING OFFICER. Is there objection? Mr. DOMENICI. Mr. President, reserving the right to object, I wonder if the manager of the bill, as part of this, would use his efforts with reference to how much time each one gets so that at least those we have agreed to would be able to speak before 3:15. You can do that, I believe. Mr. BOND. Mr. President, reserving the right to object, I believe the agreement is that between now and 3:15 the time is equally divided. So that would roughly be 3 hours and 10 minutes. So that is an hour and 45 minutes for each side. With that understanding, each side has 1 hour 45 minutes. Mr. KERRY. Mr. President, I ask unanimous consent that the time consumed to this point not count as equally divided. The PRESIDING OFFICER. Is the Senator putting off the 3:15 vote? Mr. KERRY. No. But I was recognized and therefore I do not want this entire colloquy to come from my time. I am asking that the time commence for division. The PRESIDING OFFICER. It has to come from somebody's time. Mr. KERRY. It comes equally divided from both sides. The PRESIDING OFFICER. Is there objection? The Chair hears none, and it is so ordered. Mr. KERRY. I thank the Chair. Mr. President, I will be very brief. I simply want to respond very quickly to the comments made by the distinguished majority leader who appropriately cited many items within the legislation that we all ought to support. Indeed, that is precisely what I said in the course of my comments. We do support a great deal of what is in the legislation. But what the majority leader never did, in the course of his comments, was address any of the issues we raised with respect to the health care system, the fundamental fairness, and the issues of contention raised by the President of the United States. He dismissed that rather quickly and cavalierly, suggesting that the President got a lot of what he wanted. Let me be very precise. Of 119 individual tax provisions in this bill, 35 of them are from the President's budget; that is 30 percent of the provisions, not the 80 percent that the majority leader talked about. Mr. President, and of the $240+ billion in tax cuts in this package, only $48 billion, or 20 percent of the total, is from the President's proposals. No one should be misled by the comments of the majority leader to believe that this is somehow a fair division, and that the President, in offering to veto, is not vetoing it on substantive, clear, and distinct differences of policy. Secondly, the majority leader suggested that much was included in this, and this is sort of mostly a bill that is somehow beneficial. What he neglected to address was the issue that we raised [[Page S11208]] about how this bill came together and what is in it as a total. As a total, it represents, in a sense, a consensus of what the majority wanted to put in. But it was arrived at without discussion with the minority, and so there are whole bills in here that raise very significant issues. One of them is the issue to which the Senator from Oregon is going to talk. I just want to take about 2 minutes to say something about it. There is, in this tax bill, a whole piece of legislation called the Pain Relief Promotion Act. My colleagues ought to listen to that title very carefully: Pain Relief Promotion Act. That title is an extraordinary, almost cynical, play on words. It completely distorts the notion of what happens in this legislation. First of all, this Pain Relief Promotion Act completely preempts State law with respect to the definition of a legitimate medical purpose with respect to State medical regulations. The implications of that with respect to this are to require the Drug Enforcement Agency's agents to determine whether a physician's prescription of a controlled substance for pain relief medication was intended to relieve pain or to assist in suicide. I hope my colleagues focus on that. The Pain Relief Promotion Act is asking DEA agents to make a judgment of intent about what a doctor intended to do in prescribing a prescription drug to a patient who is terminally ill in a hospital. Are we seriously going to go down that road and DEA agents to have the potential to provide a 20-year prison sentence for a doctor for making a judgment about pain medication to an ill patient in a hospital? I find that extraordinary. Yet the majority leader tried to suggest on the floor that this is just some innocuous conglomeration of legislation that has no major impact on the lives of Americans, except 80 percent of it is good and what the President wanted. That is a fight worth fighting on the floor of the Senate today. I am not going to go into all the details. I just went through a long hospitalization issue with a parent. I know what that pain medication meant for cancer. I know how difficult it was in the hospital to get the proper pain medication, to have people comfortable with what was being dealt. If we suddenly layer that kind of legal structure over the delivery of medical care in America, we are taking an extraordinary step that at least ought to be properly debated on the floor of the Senate in the context of hearings, the process, and so forth. A recent New England Journal of Medicine article said the following: If the Pain Relief Promotion Act becomes law, it will almost certainly discourage doctors from providing adequate doses of medicine to relieve the symptoms of dying patients. That does not belong in a tax bill, conglomerated in a room without the consent of Democrats. That is why we are here. That is why we are fighting about this legislation. My final comment is, with respect to the tax components of this, major components of fairness were stripped out of this bill. The majority leader talked about how important it is to provide savings for Americans. Yes, it is important. There is not one of us on this side of the aisle who won't vote to encourage Americans to save money. There is not one of us who does not support a 401(k) program. But when we are making a choice about how much money we can allocate to people based on the overall amounts of money available and that choice was made by the Republicans alone to encourage 401(k)s to the exclusion of middle- and low-income Americans to be able to save, that is a fight worth fighting. That is a question of fundamental fairness. The 401(k)s are terrific for lawyers and doctors and high-income people, but the kind of Americans we were trying to reach--at the $30,000, $25,000, $20,000 income level--have a lot harder time gaining benefit from a 401(k). What the President had in his proposals was a credit that would have gone directly to those hard-working Americans. That was stripped out. That is why we are here now raising these issues regarding this legislation. It is a question of fundamental fairness. I regret that in all of his comments this morning, the majority leader did not address the fundamental issue of fairness that we are raising and over which the President has threatened a veto. My absolute last comment: The President made clear that he would veto this. So the majority leader comes to the floor and says, well, we will come back, and we will work this out down the road. Why? Why work it out down the road? Why not work it out now? Why not work it out in the last month before we came to the floor knowing it would be vetoed? If we can work out these other issues, if we weren't seeking a political advantage, we could certainly work that out. People may not like the fact that the President of the United States is who he is and is of the party that he is, but he has the veto. We have been through this since 1995, when the Government of the United States was shut down for the first time in American history over this very same challenge. And here we are again, in the year 2000, with the same sort of sense of frustration over the fact that he has the veto pen that brings us to this point of confrontation. The fact is, he does have that pen. He has the constitutional right. He made it clear he would do it. And the reasons he has chosen to do it are substantive and important to the American people. That is what this debate is about. I thank my colleague for his courtesy. I yield such time, up to the 30 minutes, as he might consume to the Senator from Oregon. The PRESIDING OFFICER. The Senator from Oregon. Mr. WYDEN. Mr. President, before he leaves the floor, I thank the Senator from Massachusetts, both for his focus on bipartisanship with respect to the overall package and for his very thoughtful comments about the assisted suicide issue. I think he has summed it up very well. I feel bad that I had to object to consideration of the tax legislation this morning. I will take just a minute or two to describe why and then go on to talk about the overall issue as it relates to pain relief and what is in the tax bill. I know it is an inconvenience to a number of Senators to have me talk about this subject at length. This is an important time in the year for colleagues. I regret the inconvenience. But I believe what is in the tax bill is going to cause so much pain and suffering to families all across the country, that the interests of those families who are going to suffer if this tax bill as written becomes law have to come first. First and foremost, I want the Senate to understand that before we are done, I am going to speak at length about exactly what the consequences will be for families all across this country, who needlessly are going to suffer great pain that could be averted, if the bill becomes law as written. In addition, while the majority leadership in the Congress is attempting to throw Oregon's vote on assisted suicide into the trash can, Oregonians are holding on to ballots such as this one. They are wondering if this ballot, this sacred vote, really counts. Mr. REID. Will the Senator from Oregon yield for a question? Mr. WYDEN. In one moment. I am obligated to speak for those Oregonians, each and every one of them, over a million Oregon voters, because I want them to understand that I am going to do everything in my power to make sure the ballot I have in my hand and the ballots they are holding right now actually count. The fact is, the senior Senator from Oklahoma has put into the tax bill legislation that would silence over a million Oregon voices. I am going to be here to make sure those voices are heard. I yield to the Senator from Nevada. I thank him for his thoughtful comments last night on this issue. Mr. REID. Mr. President, I have a question. This question comes from the people of the State of Nevada. It is my understanding that if this provision of this tax bill passes, a vote that was taken in the State of Oregon, open to everyone in the State of Oregon, would be basically repealed by the Congress of the United States; is that true? Mr. WYDEN. The Senator is correct. In effect, it would be impossible to carry out the will of Oregon voters on a matter that has historically been left to the States. [[Page S11209]] What is so striking--and I appreciate the Senator's question--is that we constantly have colleagues come to the floor and talk about the importance of States rights and the beauty of the 10th amendment. Then when they don't happen to agree with what a State is doing, I guess the 10th amendment isn't so important anymore. I appreciate the Senator's question. Mr. REID. One more question I will ask the Senator from Oregon: Then the people of Nevada, no matter how they feel about the substance of the legislation that passed in the State of Oregon, should be warned by me and others that if this piece of legislation passes, if we pass a ballot proposition or a law in the State of Nevada, it would be subject to repeal by the Congress. We in Nevada believe in States rights. We are part of the great western heritage. Is it true that if this particular legislation passes, the people of the State of Nevada should be aware of the fact that we could repeal something that they pass in the legislature or by ballot proposition? Mr. WYDEN. The Senator is absolutely right. People in Nevada should understand that what this legislation does is take away from all States what has historically been their prerogative, which is to determine appropriate medical practice. There is a great body of case law and a variety of legal precedents that establish that right, and folks in Nevada should understand that. I think it is also on point to note that people in Maine are voting right now on this issue. I think it is open to some question as to what will be the effect of that Maine ballot measure right now if the tax legislation were to pass as written and, in effect, throw Oregon folk to the trash can, and it might do the same thing for people in Maine. I thank my colleague for his questions. Mr. President, if the Senate was here today to vote on a stand-alone bill which would lead to unspeakable, avoidable suffering for hundreds of thousands of terminally ill citizens, there is no question in my mind that the Senate would not pass it. So what we have to ask is why has the Senate leadership stuck into this tax bill, legislation that the American Cancer Society and over 50 nationally recognized health organizations believe will cause unnecessary suffering for thousands of terminally ill citizens in each State in our country. What is particularly ironic is that this legislation has not moved forward with any of the traditional procedures of the Senate. It has never been reported out by a committee of jurisdiction. It has never been subject to amendment by the full Senate. There has never been a chance to debate it on the floor of the Senate. The fact is that this legislation, which is one of the central bioethical questions in our society, was stuffed into the tax bill close to midnight the other night, without overcoming even one of the traditional procedures the Senate follows. Now, Senator Kerry noted the name of this bill. It is the so-called ``Pain Relief Promotion Act.'' The fact of the matter is, this legislation is really the ``Pain Promotion Act'' because it is going to have a chilling effect on health care providers all across this country who simply want to practice good pain management. I know my friend from Colorado, who is in the Chair today, also represents a rural State. Let me tell you about the kind of concern I have if the Nickles bill, as written, becomes law. Let us say you have a physician in Colorado or in Iowa or another rural State who is opposed to assisted suicide--and I am opposed to assisted suicide; I have joined colleagues here in voting to ban Federal funding of assisted suicide. But let's say a physician in Colorado, who is opposed to assisted suicide, wants to treat pain aggressively with a suffering patient. If they do, their intent, their mental calculus can later be dissected by law enforcement officials who, if they believe that anti- assisted suicide physician really had a different intent, can prosecute that physician. And the medical providers involved would be subject to a mandatory minimum sentence of 20 years, a fine that is upwards of a million dollars and they would lose their DEA registration. The fact is that the undertreatment of pain today is a documented public health crisis. There was just another survey published very recently demonstrating that physicians and health care providers are reluctant to treat pain aggressively because they are very fearful of having their decisions second-guessed by law enforcement. There are a number of us--the American Cancer Society is one--who are opposed to assisted suicide. Yet the American Cancer Society has said that because of the chilling ramifications of pain management, it believes the Nickles legislation included in the tax bill is going to hurt cancer patients nationwide. The American Academy of Family Physicians is another major medical group opposed to assisted suicide and they oppose the Nickles legislation; so is the American Nurses Association, the Oncology Nursing Society, the Indiana State Hospice and Palliative Care Association, and the Texas Medical Association. In sum, there are more than 50 respected health organizations that are opposed to physician- assisted suicide and also oppose the Nickles legislation included in this tax bill. If we do care about humane medical treatment--and I know that every Senator cares about the suffering of those who are vulnerable--I believe when you actually read what is in this tax bill and what Senator Nickles has been able to include, if you wish to join us in alleviating suffering and protecting the poor, elderly, and vulnerable, you have to oppose the Nickles legislation because it hurts the very people that our colleagues care about. I want to raise a troublesome flag now with respect to this bill. To my knowledge, not a single nursing organization in America supports the bill purporting to relieve pain for the dying--not one. But seven nursing organizations, including the American Nurses Association, National Association of Hospice and Palliative Nurses, Pediatric Oncology Nurses, and the American Society of Pain Management Nurses, oppose the alleged pain relief bill included in this tax legislation. Now, you know when a loved one is in a hospital, the physician may have ultimate responsibility for the care, but the nurses are the ones on the front lines coping with pain. Seven major nursing organizations, representing those on the front lines, have come out against the Nickles bill. So the question is, how could all of this happen? I think the Senate may want to reflect on the procedures involved because I think other Senators may find the same sort of absurd process applied in matters that are important to their States. When Senator Nickles introduced the Pain Relief Promotion Act last year, the bill was referred to the Committee on Health, Education, Labor, and Pensions. That is because, for obvious reasons, the bill has enormous ramifications for pain and health care. The bill received a hearing in 1999. It wasn't acted on by the committee. Members on both sides of the aisle expressed concerns about the legislation's impact on end-of-life and pain care. Unfortunately, a House bill identical to that legislation was passed by the House and was suddenly referred to the Senate Judiciary Committee, which didn't have jurisdiction on this critical health issue. The Parliamentarian did something that I believe showed great courage, and I commend him for it. He simply told the news media that a mistake had been made, that the Nickles legislation had been referred to the wrong committee. I thought it was a very courageous, gutsy thing for the Parliamentarian to do. It was the kind of unfortunate accident that can happen. The Judiciary Committee, as one might guess, had a chairman who was sympathetic to the Nickles legislation who pushed and pushed to mark it up before the American Cancer Society made it clear that the Nickles legislation would hurt cancer patients. They got the bill out of the Judiciary Committee on a 10-8 vote. Now you know that the bill is very controversial. That is why it is coming to the floor of the Senate in the form it is. They could not get the Senate to approve this legislation if the traditional procedure of the Senate were followed. In fact, since the Nickles legislation had been introduced with a handful of Democrats who were supportive, several have now indicated their opposition largely for the reasons I have cited--that the Nickles legislation would have a chilling effect on pain management. [[Page S11210]] The reason this bill has been stuffed into the tax legislation is that it cannot go forward on its own. There is too much controversy attached to it, too much uncertainty about its ramifications on pain care for the dying for the leadership to bring it to the floor in the normal way. The fact is that the Senator from Oklahoma doesn't have the votes. At one point, the supporters had 80 votes. It got out of the Judiciary Committee 10-8. I said last summer, let's follow the traditional rules of the Senate. After we had agreed to that, the distinguished Senator from New York, who is very opposed to assisted suicide, saw how much damage this legislation would do for the suffering and said he couldn't support the bill. Senator Nickles saw that support was quickly moving away from him and that he didn't have the votes to pass his legislation following the traditional procedure of the Senate. To compensate for the lack of votes and the inability to follow traditional procedures in the Senate, the senior Senator from Oklahoma has chosen the least democratic method at his disposal to circumvent an honest debate and avoid even a couple of modest amendments. What is striking is the senior Senator from Oklahoma has on various occasions apparently said we shouldn't have extraneous matters brought in that had not been considered separately in a conference report. But he is allowing exactly this to be done with his bill. The senior Senator from Oklahoma is betting that by stuffing his legislation into this conference report, everybody is going to be so resigned to the outcome and so anxious to bring down the gavel and get home that this body is just going to ignore its obligation to the scores and scores of families and suffering patients who are going to be hurt by this legislation. The senior Senator from Oklahoma may be right. I suppose that is the way it often works in the Senate. However, I am going to be asking my colleagues--and will talk more about this subject when we get back on the tax legislation--to step up to the suffering with so much on the line. I want them to know what is at stake. If this legislation is approved, the friends of every Senator, loved ones, and constituents are going to find it impossible to obtain aggressive pain care in their communities. Patients unable to obtain pain care are a fact of life right now, but at least we have some solace in knowing that thousands of brave health professionals are willing to risk their reputations and their careers to prescribe controlled substances to relieve suffering. If the tax legislation goes forward without removing the Nickles bill, the undertreatment of pain, which is already a documented public health crisis, is going to get worse. Our loved ones--yours, mine--and individuals in every community across this country are going to suffer the consequences with this flawed legislation. I hope that before we have a final vote on this issue, each and every one of our colleagues will read the statement of the American Cancer Society on this legislation. They are an organization that opposes assisted suicide, as I do. Yet here is what they say about the Nickles legislation. This is the direct statement of the American Cancer Society about the Nickles legislation. The American Cancer Society states, and I quote: Under the act, all physicians, and particularly physicians who care for those with terminal illnesses, will be made especially vulnerable to having their pain and symptom management treatment decisions questioned by law enforcement officials not qualified to judge medical decision-making. This can result in unnecessary investigation and further disincentive to aggressively treat pain. That is the American Cancer Society describing how the Nickles legislation will have a chilling effect on pain care. I would like to offer a bit of a historical perspective. The nonprescription abuse of opioids and cocaine around the turn of the century and the growing sentiment that doctors at that time were one component of the growing drug problem in America helped contribute to the stigma associated with the use of opioids for pain. According to a seminar on oncology and in an article by Dr. David Wiseman, ``Doctors, Opioids, and the Law: The Effect of Controlled Substances Regulation on Cancer Pain Management,'' when regulations were enacted in 1914 to keep from treating drug addicts with opioids, the stigma attached to those drugs continued to grow, and physicians across the country became more reticent to prescribe those drugs because of their fear of criminal or licensing sanctions against their practice. The undertreatment of pain is due to a variety of complex causes. There certainly are a number of studies that show that the threat of legal sanctions is one of the main roadblocks to humane pain control. And that is before the Nickles legislation in the Senate would direct to Drug Enforcement Administration to have law enforcement agents second-guessing the judgment of doctors. One 1994 California survey showed that 69 percent of physicians cited the potential for disciplinary action as a reason for prescribing opioids conservatively. One-third of the doctors went on to acknowledge that their own patients may be suffering from untreated pain. What we saw last week in Oregon was a brand new study that showed again that physicians are fearful about aggressively treating pain for fear of legal prosecution. It confirmed the 1994 California survey. For that reason, I am happy to yield to my friend and colleague. Mrs. BOXER. Mr. President, I thank my friend for bringing these issues to the floor of the Senate. I think this issue of pain abatement is a key issue. I go even further than that in this debate because the issue of physician-assisted suicide, which I do not support, is really not what I am afraid of in Senator Nickles' approach. But I just want to say to my friend, thank you for bringing this issue forward. I watched a loved one, who was as close to me as anyone could be, cry out in pain hour after hour, saying: I don't want to live. I wanted this person to live more than I can say. But I went to that physician of this loving relative and I said: Please, please, do everything in your power to anesthetize this pain, to sop this pain. This physician looked at me and he said: I will do everything that I can. I am so fearful that someone else, if this bill becomes law, will look at me and say: Barbara, I know how much you love this individual, but I can't do more than I am doing because I'm afraid I'm going to be hauled off to prison. I don't want any family looking in the eyes of a physician, begging to put a loved one out of this type of misery and pain, being told that their hands are tied; they would love to help and they can't. That is why what the Senator from Oregon is doing is so important and why I am so saddened that this bill, in the dead of night, that could lead to people writhing in pain, not being able to get the help they need, was done in such a fashion where we really can't even give it the attention it deserves. As my final point, would my friend tell me again, for the record, so that everyone watching this debate can know, which organizations are opposing this Nickles provision for the reason that the Senator has stated--that it will lead to people suffering needlessly, and doctors being afraid to help them because they will be hauled off to jail. Mr. WYDEN. I appreciate my colleague's questions. There are more than 50 major health organizations. The American Cancer Society has stated why they feel this legislation would have a chilling effect on pain management. I want my colleague to know, because time is short, that Senator Nickles, in offering this bill, says doctors don't have anything to worry about with respect to prosecution under the bill--that his legislation says doctors can prescribe drugs which will hasten death if their intent is to treat the pain. So he is talking about ``intent.'' Our colleagues are right to be so concerned about who is going to determine the intent of the physician, who is just trying to help somebody suffering and gives a suffering person critical relief and dignity as they face difficult hours at the end-of-life. The person who is going to decide ``intent'' is not another doctor, not a nurse, not a health professional, not anybody with medical [[Page S11211]] training, but law enforcement officials. A law enforcement official is going to determine that medical provider's' intent. Somebody with no medical training is going to, in effect, have the authority to put medical providers on trial; a trial that could cause a provider to lose their license, serve 20 years in prison, and face upwards of a $1 million fine. It doesn't have to be this way. There are many who oppose assisted suicide, who want to work in a bipartisan way to promote better pain management and reduce the demand for assisted suicide. Mrs. BOXER. I thank my friend. Mr. WYDEN. The Senator from Oklahoma is not allowing Members to do that. The Senator from California has made the key point. At the end of the day, I want it understood when the people of Oregon cast a ballot like the one I have in my hand on a matter that has historically been left to the people of my State and to every State, I will do everything I can on the floor of the Senate to protect that vote. I yield the floor, and I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Mr. WYDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. WYDEN. Mr. President, I ask unanimous consent that the time be equally divided between both sides. Mr. BOND. I object. The PRESIDING OFFICER. The objection is heard. Mr. WYDEN. Mr. President, I will keep talking if the Senator from Missouri objects. I am sure some of our colleagues have other concerns. I will continue on this question of dissecting medical providers' intent, as the Nickles legislation does, a dissecting exercise that will be done by law enforcement professionals rather than medical providers. Here is what the American Cancer Society had to say about determining ``intent'' under the Nickles legislation. The American Cancer Society says: Unfortunately, intent cannot be easily determined, particularly in the area of medicine, where effective dosage levels for patients may deviate significantly from the norm. The question of deciding intent should remain in the hands of those properly trained to make such decisions--the medical community and State medical boards. What the American Cancer Society is saying, as with these other 50 organizations, they are especially troubled that the Nickles legislation is second-guessing the pain management practices of physicians and providers all across the country. It is especially troublesome because law enforcement officials, rather than health care professionals, are going to be the ones to assess the intent of a medical provider. A medical providers' intentions under any calculus, as the American Cancer Society has noted, cannot be easily determined. To allow law enforcement officials to have this enormous discretion, after the fact, to challenge our medical providers, in my view, is going to significantly compound the undertreatment of pain in America. Mr. NICKLES. Mr. President, I was told that the time of the Senator expired and I was coming to claim my time to respond. The PRESIDING OFFICER. The time of the Senator has expired under the previous order, and the Senator from Oklahoma is to be recognized. Mr. NICKLES. I will be happy to let my colleague conclude his thought. Mr. WYDEN. Mr. President, I hoped we could have worked it out. My time has expired. As the Senator from Oklahoma knows, I have wanted a real debate on this legislation for some time, so I am happy to have the Senator hold forth. The PRESIDING OFFICER. The Senator from Oklahoma. Mr. NICKLES. Mr. President, one, I wish to respond to my colleague and my friend from Oregon. He is my friend. We happen to have a disagreement on this issue. We have a difference of opinion, a rather pronounced difference of opinion. I heard several things in his statement that I want to correct. I almost don't know where to start. First, let me touch on a couple of things on procedure. This is so wrong procedurally and should not be in this bill. Again, he is my good friend, but he has known all along I would try to get this bill on the floor. Yes, it was put in the tax bill. I tried to put it in the appropriations bill. We ended up putting it in a tax bill. Is that the best way to legislate? No. I might tell my colleagues and my friend from Oregon I tried about half a dozen different ways to pull the bill up, to have it be an amendable state, to offer my colleague from Oregon or others a chance to have relevant amendments, and those offers were always rejected. So now we have the bill before the Senate. I might also mention, if one is complaining about this procedure, then we shouldn't have any problem with the Commerce-State-Justice because the administration is trying to put an amnesty provision that doesn't belong on the Commerce-State-Justice bill. It did not pass either the House or the Senate, and is totally extraneous to the conference. Senator Byrd had one dealing with trade that was on an appropriations bill. It should not have been. It was inserted. At least this bill did pass the House by over 100 votes. It did pass the Judiciary Committee. It has had hearings. It has been marked up. It has had 42 cosponsors--maybe my friend and colleague from Oregon has been able to convince one or two to get off. Senator Lieberman is still a principal cosponsor, to my knowledge. He testified in favor of this legislation, as have I. So this legislation is not new. It is not a surprise. My colleague from Oregon has sent several letters to all colleagues saying what is wrong with the legislation. I have sent several letters to all of our colleagues saying he was incorrect. So everyone knows about this bill and everyone knows at some point we are going to have a debate on it. I hope it will be passed. Let me touch on a couple of issues that were brought up. My colleague from Oregon said if this bill is passed it is going to tell a million people in Oregon who voted for this on a ballot initiative, a referendum, that their vote does not mean anything. I disagree with that. This bill does not overturn Oregon's law. I want to be very clear about this. This bill does not say anything about making Oregon's law null and void. What this bill does is it deals with pain and pain management. The bill does say: Oregon, you cannot overturn Federal law. It doesn't say quite that. Federal law, the controlling law, is the Controlled Substances Act. That is a Federal law. It passed in 1970. It controls very strong drugs, I tell my friend from New York. These are deadly drugs. They are strong drugs. They are under Federal control. They are not under State control; they are under Federal control. It is a Federal Controlled Substances Act. The State of Oregon cannot pass a law that changes a Federal statute. I make the analogy, Oklahoma might say let's legalize heroin. Oklahomans might pass that in a referendum, but it doesn't make heroin legal. It is still against the Federal law to use heroin. These are federally controlled drugs. They are deadly if they are used in very large quantities, but they are also very helpful. They can help alleviate pain. Unfortunately, we have a real problem in pain. I heard my colleague from California mention she knew a friend who was in enormous pain. We all have friends or families or have known people who are suffering and suffering greatly. I want to alleviate their pain. That is one reason why this bill was created. There were two reasons. We want to alleviate pain. That is why all the pain management groups endorse this bill. I will go through a list. My colleague from Oregon listed a few groups that endorsed his. We have 10 times as many people, groups, physicians, you name it--hospice care, palliative care, the American Medical Association, that endorse this bill; pain management societies--you name it. I will have all that printed in the Record. These groups, the hospice groups and others, their members worked their entire lives because they want to alleviate pain. This bill will alleviate pain. [[Page S11212]] This bill does two things. It says we can use these drugs. My amending the Controlled Substances Act says we can use these very strong drugs to alleviate pain. We put a safe harbor in to protect physicians, making sure when they use these drugs to alleviate pain, if it causes someone's death there will be no problem. The bill also says these drugs cannot be used for the purpose of assisted suicide. Guess what. That has been the law of the land for 30 years. These drugs were never allowed to be used for assisted suicide. The Drug Enforcement Administration--I will put a letter from Mr. Constantine who says he reviewed it--the Controlled Substances Act says these drugs can be used for legitimate medical purposes. In our bill, we state that includes pain management, the alleviation of pain. We put that in specifically so everyone will know: Use these drugs to alleviate pain. It is now in the law. Mr. Constantine also said it is not construed to be used for assisted suicide. You say: Why do you need this bill? You need this bill for two reason. One, we want to make sure everybody knows these drugs can be used to alleviate pain. What about the Oregon law? My colleague from Oregon said this is going to outlaw the Oregon law and nullify a million voters who voted for it. This is going to gut the bill. Granted, they have had dozens of suicides that have been committed using federally controlled drugs. Guess what. The law was always interpreted before that these drugs cannot be used for assisted suicide. They cannot be used to cause someone's death. They can be used to alleviate someone's pain, and we clarify that in our legislation. We go further. We put in funds to educate people on pain management. My colleague from Oregon and I happen to agree with this. There is a real problem in pain management. There are a lot of people who are not doing enough in pain management, for whatever reason. Maybe they have not been educated. Maybe they are afraid of liability. Maybe they are afraid of doing too much and that might enhance someone's death. We said you can be very aggressive in pain management. What you cannot do is take federally controlled drugs and use them to kill somebody. These drugs are controlled by the Federal Government. They can be used to alleviate pain. They cannot be used to kill somebody. About the Oregon law, Oregon passes a law and says they are going to say one can have assisted suicide. Fine. You cannot use Federal controlled drugs. These are federally controlled drugs. Oregon cannot amend the Controlled Substances Act. They think they can. Now with the Attorney General's letter, maybe they think they can. It is really awkward. In 49 States, you cannot use federally controlled substances for assisted suicide, but in Oregon you can. So how did Oregon amend the Federal law, the Federal statute? Maybe Oklahoma is going to amend the Federal law. They might not like the .08 we just passed. I heard my colleague say: What about States rights? I am a very strong supporter of States rights but States cannot change Federal law. I am all for giving States the right to opt out. If we want to say the Controlled Substances Act applies unless the States want to opt out, let's pass it. We have not done that. If we want to have a different law to allow States to opt out, maybe it should be used against the Federal law against heroin or cocaine, and we want to have the State opt out on that? I don't think so. Oregon is saying let's have the State opt out on the Controlled Substances Act so we can use these substances for assisted suicide. Oregon cannot change the Federal law. So it is not us, it is not the Federal Government now trying to overturn the Oregon law. Oregon, by referendum, thought they could overturn the Federal law. They cannot do it. They cannot do it. Let's do what we can to alleviate pain. Let's take these very strong drugs--morphine and others that if used in excess can be deadly--let's make sure they are used to alleviate pain. Let's do it aggressively and educate people all across the country in pain management. So we do that as well. Let me also knock down a couple of the arguments that my colleagues used. He said if we do this, it is going to have a chilling impact. Far from it. I will tell my colleagues, the AMA and some other groups, the hospice groups, said that a couple of years ago. We stated very clearly in the Controlled Substances Act that these drugs can be used to alleviate pain. They said: We are afraid it will have a chilling impact so we put in language to guarantee, to give physicians safe harbors, to do all kinds of things in the legislation to encourage using the drugs for pain management but not assisted suicide. So the chilling effect argument is not accurate. In fact, if you look at the several States that have passed laws against assisted suicide but for pain management--and there are several, and I have charts of several: Kansas, Rhode Island, several States--in every one of those States, when they passed legislation banning assisted suicide but encouraging pain management, the use of morphine has gone up dramatically. So instead of having a chilling impact on pain management, it encouraged pain management, it encouraged the use of these drugs, these very strong drugs to alleviate pain. That is the history in every single State. It is interesting to note since Oregon passed their law on allowing or legalizing assisted suicide, it is just the opposite. The use of pain management drugs has actually gone down. I look at Indiana, the use of morphine has gone up substantially. They have banned assisted suicide. Iowa, the same thing, a dramatic increase in pain control drugs when they banned assisted suicide. Kansas, again, more than double. Louisiana doubled the use of these very strong drugs to alleviate pain. In Rhode Island, it more than doubled. South Dakota had a big increase. Again, almost all of these have doubled. Tennessee--it has more than tripled the use of pain control drugs. When the States banned the use of assisted suicide, they used the strong drugs to alleviate pain. This is what we want to do. We want to alleviate pain. We want to be effective. We want to get the very strong drugs that a lot of physicians have been reluctant to utilize and we want to get them into physicians' hands. We want to let them know they have the power, the authority, the education to use these drugs to alleviate pain. Even if they increase the use and it causes someone's death, there is no penalty, and I have to touch on the penalty sanctions. My colleague was so wrong. We want them to alleviate pain. My colleague says: If they do not comply, we will have a new group of Federal officers running around, and this is going to have a chilling impact. He is exactly wrong. The Drug Enforcement Administration is in control of these drugs right now. There are 990,000 registrants who use these federally controlled drugs nationwide. My colleague from Oregon implied that if we pass this bill, we are going to have a new set of Federal police; they are going to be arresting people and they will do years in jails and pay thousands of dollars in fines. We have given zero, none, no additional law enforcement authority. Guess how many drug enforcements there were in fiscal year 1999? There are 990,000 registrants, and they investigated 921 cases, almost all of which were referred by the States. They revoked their registration, which is DEA's enforcement. They revoked the registrations of 29. In 1998--again, there are almost 1 million people who are licensed to dispense these federally controlled drugs--they revoked the registrations of 17; in the year 1997, 18. So DEA already has this authority. They have it nationwide. They have always had it. We do not take it away. We do not enhance their authority. This is a bogus red herring. Somebody is trying to scare the people: We are going to increase the Government power. Hogwash, we are increasing the power of the physicians. We are giving them a safe harbor, giving them greater standing. Before somebody can take action, they have to prove intent before there would be any claim against that physician. We give the physicians greater power and greater reliability that they will not be going to court, that they will not be in trouble with law enforcement if they are aggressively using these drugs for pain management. [[Page S11213]] Under this bill, they can use these drugs aggressively in pain management. They just cannot use them for Dr. Kevorkian assisted suicide, plain and simple. In Oregon, in at least 43 cases, they have used federally controlled drugs to kill someone. We are saying these are federally controlled drugs and you can use them to alleviate pain, but you cannot use them to kill someone. I want to touch on a couple of other issues. I mentioned safe harbor. I have a letter from the American Medical Association, which says: This bill would explicitly include this as a safe harbor, creating a legal environment in which physicians may administer appropriate pain care for patients without fear of prosecution. This is the AMA. They continue: The Pain Relief Promotion Act does not create a new Federal authority to regulate physicians. The bill contains specific rules of construction preserving the roles of States and the Federal Government in regulating the practice of medicine. I could go on and on. Mr. President, I ask unanimous consent to print in the Record a volume of information because this is an important issue. I have editorials, a couple of which came from Oregon, one of which is dated July 1, 1999. This is the Oregonian. It says: ``Kill the pain, not the patients.'' That is what we try to do with our bill. We try to kill the pain and not the patients. Also, I have an Oregonian editorial which says: ``A state's rights, a state's wrongs.'' This is dated October 19, 1999. And a more recent editorial from the Oregonian, September 10, 2000, says: Approve pain relief promotion bill. The Senate should put a quick end to Wyden's filibuster and pass a bill that favors pain killing over patient killing. I have a volume of things. I mentioned these three editorials which are very well written, and also I have a legal analysis of the bill; I have a list of organizations supporting the Pain Relief Promotion Act. This list is very long. It starts with Aging With Dignity, the American Academy of Pain Management, the American College of Osteopathic Family Physicians, American Medical Association, American Society of Anesthesiologists, American Society of Interventional Pain Physicians, Americans for Integrity in Palliative Care, Americans United for Life, California Disability Alliance, Catholic Health Association, Catholic Medical Association. I could go on and on. There are medical associations--the Florida Medical Association. There being no objection, the material was ordered to be printed in the Record, as follows: The Pain Relief Promotion Act and the Substitute Amendment--Supporting Organizations Aging With Dignity. American Academy of Pain Management. American College of Osteopathic Family Physicians. American Medical Association. American Society of Anesthesiologists. American Society of Interventional Pain Physicians. Americans for Integrity in Palliative Care. Americans United for Life. California Disability Alliance. Catholic Health Association. Catholic Hospice (Florida). Catholic Medical Association. Christian Legal Society. Christian Medical & Dental Society. Coalition of Concerned Medical Professionals. Carondelet Health System. Eagle Forum. Family Research Council. Florida Hospices and Palliative Care, Inc. Florida Medical Association. Focus on the Family Physicians Resource Council. Friends of Seasonal and Service Workers (Oregon). Hope Service and Palliative Care (Florida). Hospice Association of America. Iowa Medical Society. Louisiana State Medical Society. Lutheran Church--Missouri Synod. Medical Association of the State of Alabama. Medical Society of Delaware. Medical Society of New Jersey. Medical Society of the State of New York. Michigan State Medical Society. National Association of Pro-life Nurses. National Conference of Catholic Bishops. National Hospice Organization. National Legal Center for the Medically Dependent and Disabled. National Right to Life. Nebraska Coalition for Compassionate Care. Nebraska Medical Association. Not Dead Yet. Ohio State Medical Association. Oklahoma State Medical Association. OSF Healthcare System. Pain Care Coalition--American Academy of Pain Medicine, American Headache Society; American Pain Society. Pennsylvania Medical Society. Physicians for Compassionate Care. Puerto Rico, Office of the Governor. Supportive Care of the Dying: A Coalition for Compassionate Care. South Carolina Medical Association. South Dakota Medical Association. Union of Orthodox Jewish Congregations of America. Utah Medical Association. Virginia Association For Hospices. VistaCare Hospice. Vitas Healthcare Corporation (CA, FL, IL, OH, PA, TX, WI). Wisconsin Council on Developmental Disabilities. State Medical Society of Wisconsin. ____ [From the Oregonian, July 1, 1999] Kill the Pain, Not The Patients It's no secret to any reader of this space that we oppose