DPC | June 29, 2007

Senate Oversight Highlights Week of June 18, 2007

“It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents.…” — Woodrow Wilson

Congress has the Constitutional responsibility to perform oversight of the Executive Branch and matters of public interest. This report summarizes highlights from each week’s Senate oversight hearings.

 

Tuesday, June 19, 2007: Senate Armed Services Committee

“Hearing to Consider the Nomination of the Honorable Preston M. Geren to be Secretary of the Army”

• Acting Secretary Geren said it is too early to judge the surge and left open the option of maintaining troop levels into 2008.
   
• Acting Secretary Geren testified that the decision to extend deployments to 15 months was “the best of two very tough choices to make” and that he hopes the Army can work its way back to 12-month deployments.
   
• Acting Secretary Geren acknowledged that the Geneva Convention and our core military values were violated at Abu Ghraib and vowed to uphold a high standard of accountability if confirmed. 

 

Tuesday, June 21, 2007: Senate Committee on the Judiciary

“Civil Rights Division Oversight”

• Even the appearance that the Department of Justice, especially the Civil Rights Division, has become the tool of a political party is a crisis worthy of swift response. That these allegations may be true is no less than a threat to our system of justice and the rule of law. 
   
• The Civil Rights Division’s politicization of the career ranks has resulted in what appears to be a reduced commitment to its core mission – protecting racial minorities from discrimination. 
   
• Concerns have also been raised about the division’s aggressiveness in protecting the right to vote and pursuing employment discrimination cases.

 

Tuesday, June 19, 2007: Senate Select Intelligence Committee

“Hearing to Consider the Nomination of John Rizzo to be CIA General Counsel”

• Senators questioned John Rizzo’s failure to object to the Justice Department’s 2002 Bybee Memo, which defined torture as “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
   
• Mr. Rizzo refused to publicly discuss the CIA’s policy on rendering detainees to countries that allow the use of torture.
   
• If confirmed, Mr. Rizzo pledged to ensure that congressional committees are informed of CIA activities in a timely manner to ensure constructive oversight. 

 

Wednesday, June 20, 2007: Senate Committee on Environment and Public Works, Subcommittee on Superfund and Environmental Health
“EPA’s Response to 9-11 and Lessons Learned for Future Emergency Preparedness”
 

• The Environmental Protection Agency (EPA) knew about hazardous conditions after the collapse of the World TradeCenter towers but failed to warn the public about the danger.
   
• The EPA’s advice to the public after 9/11 was limited, and sometimes incorrect or even hazardous.
   
• CurrentEPA World TradeCenterprograms are flawed and unlikely to provide public health or scientific benefit. 

 

Wednesday, June 20, 2007: Senate Committee on Rules and Administration
“Hearing to Receive Testimony on S. 1285, the Fair Elections Now Act, to Reform the Finance of Senate Elections and on the High Cost of Broadcasting Campaign Advertisements”

 

• The rising costs of campaigning for Congress have driven a wedge between elected officials and the average American. 
   
• Providing public funding for federal elections would not be prohibitively expensive. 
   
• Election finance reforms are complicated by non-campaign expenditures that skirt the law.

 

Wednesday, June 20, 2007: Senate Committee on Banking, Housing, and Urban Affairs, Subcommittee on Housing, Transportation, and Community Development
“Reauthorization of the Hope VI Program”

 

• Communities of distressed public housing have been improved by the HOPE VI program. 
   
• Residents who have participated in the HOPE VI program report significant improvement in living conditions.
   
• Many needy families are being abandoned while their public housing is being rebuilt under the HOPE VI voucher program. 

 

Thursday, June 21, 2007: Senate Foreign Relations Committee
“Strategic Assessment of U.S.-Russian Relations”

• Senators and foreign policy experts urged President Bush to utilize the upcoming Kennebunkport meeting to improve U.S.-Russian relations. 
   
• The Administration has neglected to extend the START I treaty’s verification and transparency elements. 
   
• Cooperation with Russia is needed in order to advance American interests with the global community and to address the threat of Iran. 

 

Thursday, June 21, 2007: Senate Budget Committee

“Health Care and the Budget: The Healthy Americans Act and Other Options for Reform”

·The rising cost of health care may be the biggest budget challenge facing our country. 

·The variation in health care costs and outcomes across the country suggests a significant opportunity to reduce health care costs for the federal government and private sector by replicating best practices throughout the country. 

·The additional cost of the Medicare Advantage program is exacerbating federal health care spending problems and could threaten the future of Medicare.

  

 

Senators asked Acting Secretary Geren tough questions about deployment extensions, the strain on our troops, conditions at Walter Reid, and force modernization.

SEN. LEVIN: …[D]id the Army consider the findings of the mental health advisory team when developing the plan to extend Army tours to 15 months? 

… 

SEN. WARNER: Mr. Secretary, how well you know that the past 18 months, particularly, there have been many opinions rendered about the Army severely over-stressed, over-extended, even the word “broken” has been used.… What series of benchmarks, what series of alarms have you put in place to alert you as the Secretary of the Army, if confirmed, that we’ve got to make some corrective courses and, indeed, might require you to go to the Secretary of Defense and point it out and those deficiencies that you’ve discovered could well impact on our policy, whether it’s how long we stay to whether we can keep our troops there for longer periods, as the chairman said? 

… 

SEN. AKAKA: Yesterday, the Washington Post reported that there continues to be problems at Walter Reed. The main thrust of the article is that at Walter Reed, care for soldiers struggling with war’s mental trauma is undermined by, one, doctor shortages and, two, unfocused treatment methods. Secretary Geren, since you are currently the Acting Secretary, can you tell us if you were already aware of the problems described in the article and, if so, what has been done about that? And if you were not previously aware of the problems, can you tell us why we are finding out about the problems at Walter Reed through the Washington Post? 

… 

SEN. AKAKA: …[O]ne of the parts of yesterday’s Washington Post articles on Walter Reed that alarmed me and I’m sure many others was that the patient, Private First Class Joshua Calloway, was still not tested for traumatic brain injury, TBI, seven months after arriving at Walter Reed, despite showing potential symptoms. In addition, one would have thought that he would have been tested upon arrival or shortly thereafter, since he survived several bomb blasts while deployed in Iraq. According to the article, Secretary, there are 43 times as many troops with psychological injuries from this war is from physical injuries. Why then are we still failing to test soldiers for TBI if you know that answer? 

… 

SEN. WARNER: In this, as you say, this conflict to principally Afghanistan and Iraq and, understandably, the principal focus is on the needs for these conflicts. But at the same time, Secretary, you’ve got to project ahead a minimum of a decade and, indeed, beyond to put in place those programs and initiatives which will build America’s future Army. Now, how are you going to do that and, at the same time, meet these extraordinary requirements of the conflicts?

 

Acting Secretary Geren said it is too early to judge the surge and left open the option of maintaining troop levels into 2008.

SEN. LEVIN: Mr. Secretary, in a news interview last weekend, General Petraeus indicated that the surge would not be completed and that its mission would not be completed by September. He said that, historically, counterinsurgencies have gone on for nine or ten years, and the question is this. Should the higher troop level of the surge continue into the spring of 2008? Several Army officials have said privately that units will have to be extended even longer than the current 15-month deployment or the dwell time between rotations would have to be reduced below the 12 months that you just mentioned. What are the implications for Army units if the current troop levels in Iraq and Afghanistan are maintained into the spring of 2008? 

ACTING SECRETARY GEREN: We’re in the process of exploring those options. It’s too early to judge the surge. It’s too early to look into the next year. But for the Army, we have to begin to plan. We have to look at our options and we’re exploring numerous options and have to look at all the components of the Army, the total Army. We have to look at every way that we can support that demand. At this point in time, we’re not in a position to answer that fully. We are looking over the horizon, trying to anticipate what it might be and looking at the options on how we will fill that demand.

 

ActingSecretary Geren testified that the decision to extend deployments to 15 months was “the best of two very tough choices to make” and that he hopes the Army can work its way back to 12-month deployments.

SEN. WEBB: As you may know, I am deeply troubled by the 15-month deployment requirements that have been put on the Army, even separate from the less than 1:1 ratio with the 12-month dwell time back here.… I’m just wondering who was talking for the well-being and the health of the soldiers when this requirement was put down? I personally cannot see any element of a strategy of a commitment that’s been going on for more than four years that can justify doing this to the soldiers in the Army and the families back here. 

ACTING SEC. GEREN: Let me speak to that. Senator, I have to tell you that when we were forced to face the decision of how we were going to meet the demand from the combatant commanders and we considered the two options that were in front of us, one was to continue as we were going and make decisions on extensions on an ad hoc basis. And we found ourselves making them over and over and over on an ad hoc basis. In fact, we had a couple of instances where we had brigades already had some of the folks back home when we decided to extend. 

Considering where we stand right now, in order to meet the demand from the combatant commander, extensions were inevitable. And we had to choose between having these ad hoc extensions and treating every unit differently, with no predictability, no commitment on what the dwell time would be or as the best, in my opinion, of the two bad choices, coming up with a 15-month extension with a commitment on and 12 months out. Now, we hope to work ourselves out of that. But considering where we found ourselves when that decision was made, I felt it was the best of the two very tough choices to make.

 

ActingSecretary Geren called stop loss a “necessary”policy to meet the current pace of deployments, but said that it also is a policy that the Army hopes to end.

 

SEN. REED: Stop loss – did you anticipate that stop loss policy will remain in effect… 

ACTING SEC. GEREN: Yes, sir. 

SEN. REED: …for the foreseeable future? And I understand about 5,500 soldiers were denied their voluntary request to leave the service this year. (inaudible) this year and 5,500 next year, is that about right? 

ACTING SEC. GEREN: Right now we have about 8,000 that are under stop loss. Last year it was about 11,000. We anticipate by the end of the year it will be around 5,500, 6,000. We look at the stop loss as a necessary process right now to meet our deployment schedules. Secretary Gates – and I agree with him, stop loss is something that we need to work our way out of. And I have tasked the Army to come up with a plan to work us out of stop loss, to come with alternatives, come up with incentives. And I have met with Army staff multiple times over the four months that I’ve been in this job as Acting Secretary on that issue and continue to work with them.

 

ActingSecretary Geren acknowledged that the Geneva Convention and our core military values were violated at Abu Ghraib and vowed to uphold a high standard of accountability if confirmed.

 

SEN. LEVIN: They were violated. Put it that way. Do you believe that the laws of land warfare were violated at Abu Ghraib? Do you believe that the tenets of the Geneva Convention were violated? Do you believe our principles were violated, that the core of our military values were violated at Abu Ghraib? That’s my question. 

ACTING SEC. GEREN: Yes, sir, I do. 

SEN. LEVIN: And do you believe that civilian and military leaders who were responsible should be held accountable? Whether that’s happened or not isn’t the question. Should they be held accountable? 

ACTING SEC. GEREN: Should people responsible be held accountable? 

SEN. LEVIN: Yes. 

ACTING SEC. GEREN: Sir, absolutely. And I can assure you, if I am confirmed, I am going to insist on a high standard of accountability. 

 

 

Congress and the American people have been appalled by recent stories alleging that the“people’s law firm,” the Department of Justice (DOJ), has become politicized due to politically biased personnel decisions. In contrast, Bush Administration officials, while they share our “concern,” don’t seem to share our outrage. 

Even the appearance that the DOJ, especially the Civil Rights Division, has become the tool of a political party is a crisis worthy of swift response. That these allegations may be true is no less than a threat to our system of justice and the rule of law. 

WADE HENDERSON, PRESIDENT AND CHIEF EXECUTIVE OFFICER, LEADERSHIP CONFERENCE ON CIVIL RIGHTS: [O]ver the last six years, we have seen career Civil Rights Division employees – section chiefs, deputy chiefs and line lawyers – forced out of their jobs to make room for what one political appointee within the division described as “good Americans.” You heard Senator Kennedy allude to it in his remarks today. 

We have seen retaliation against career civil servants for disagreeing with their political bosses. We have seen whole categories of cases not being brought, and the bar made unreachably high for bringing suits in other cases. 

We have seen some outright overruling of career prosecutors for political reasons, and also, many cases being “slow walked” to death…. 

The blueprint for this attack appeared in an article in “National Review” in 2002. The article entitled – and I quote – “Fort Liberalism: Can Justice’s Civil Rights Division Be Bushified,” argued that previous Republican administrations were not successful in stopping the Civil Rights Division from engaging in aggressive civil rights enforcement, because of the“entrenched” career staff. 

The article proposed – again, and I quote – the Administration should permanently replace those section chiefs it believes it can’t trust. And further, that “Republican political appointees should seize control of the hiring process,” rather than to leave it to career civil servants. This is a radical change in policy. It seems that those running the division got the message. To date, four career section chiefs and two deputy chiefs have been forced out of their jobs.

 

…

 

SEN. CARDIN: [L]et me start off by stating the obvious. And that is, our civil service rules prohibit – that no person employed in the executive branch of the federal government who has authority to take or recommend any personnel action with respect to any person who is employed in the competitive service shall make any inquiry concerning the race, political affiliation or religious belief, et cetera, et cetera – and then the Department of Justice’s own regulation that prohibit discrimination based upon political affiliation. 

I say that, because the article that appeared today in The Washington Post… makes very serious statements about political considerations being used in appointments within the Department of Justice’s Civil Rights Division. 

There’s also been testimony before our committee. Bradley Schlozman, who appeared before our committee, admitted under oath that he had bragged about hiring Republicans. And Monica Goodling, who is not in that division, but within the Attorney General’s Office, testified under oath in the House committee that she “crossed the line” in inquiring into political considerations for career selections for people who are not political appointments. 

So, let me start off by just getting your reaction to the testimonies before our committee and these other witnesses, the article that appeared in the paper. And I must tell you, there’s been other accounts from former attorneys about the political influence trying to be exercised on appointments….

 

WAN KIM, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE: …[Y]ou asked many very good questions about what my views are of career prosecutors and career attorneys in the Department of Justice. And I will tell you that my answer starts from my experience as a career prosecutor at the Department of Justice…. It is very important to me, that when we make personnel decisions, we do so for the right reasons in accordance with all the rules of the road. And I can tell you, Senator Cardin, that I have done that and endeavored to do that every day that I’ve worked in the Department of Justice. 

SEN. CARDIN: You must be concerned about the testimony before this committee by Mr. Schlozman as to political considerations that were used – at least he implied they were used. 

MR. KIM: Well, Senator, I reviewed his transcript. I did not see his testimony. And I understand that he denied using – violating the law that prohibited making personnel decisions based upon political affiliation. That being said, I will answer your question by saying I am concerned about some of the allegations that have come to light in the media. They are concerning. 

But I would also note that there is an ongoing and active investigation by both the Office of Professional Responsibility [OPR] and the Office of the Inspector General [OIG]. And that investigation, I trust, will get to the bottom of the matter. 

… 

SEN. KENNEDY: But I think all Americans had to be appalled, to read the article about this Civil Rights Division – the most, I think, important division in the Justice Department. And it paints a picture of a division run amok, because of partisan politics. And according to the article, Bradley Schlozman, former high-ranking official, imposed a partisan litmus test on the career division attorneys, transferring the three female attorneys. Their names are listed in the first column here. 

Transferring the three female attorneys with stellar records, apparently because they were perceived as Democrats, and Mr. Schlozman reportedly said he was transferring them to “make room for some good Americans.” Good Americans. 

In the appellate division, one of the division’s most high profile litigating sections, he also went after Republicans who thought they were not “loyal Bushies,” questioned whether he could trust one career lawyer who voted for Senator McCain in a Republican primary. 

I’ve asked you many times about your own involuntary transfer of Robert Berman, the deputy chief who advised against the approving of the discriminatory Georgiaphoto ID law. But your explanations have come back. I don’t find them very satisfactory, and I’ll ask that they be made a part of the record, Mr. Chairman. 

The issues we’ve been discussing today are the equivalent of a five-alarm fire. And I want to know… I want to hear it, about what you’re going to do to stop it. It’s not acceptable to deny the obvious problem. It’s not acceptable to say the problem began on someone else’s watch. You head the division. You show the American people that you’ll be part of the solution and not the problem. The confidence in the division will require that you are going to do things differently. Now, what are you going to do? 

MR. KIM: Senator, I do hope I’ve done things differently. And I hope I’ve done things the way I think they should be done –which, in my view, is the right way – from day one, after this committee confirmed me and after I was sworn in to take office in November 2005. I have always valued the input of career section management in the personnel decisions that I’ve made. And I will say that, as a career attorney for many years before I became a political appointee, I try hard to respect them, to make sure that the personnel practices that I employed were consistent with the ones that I wish were employed when I was a career attorney and… 
 

SEN. KENNEDY: But is this going on? What…

MR. KIM: Senator…

SEN. KENNEDY: I mean, when you read the paper today, did you say, it’s all news to me?

MR. KIM: Senator, I was shocked by some of the allegations in the paper. And…

SEN. KENNEDY: What’s the first thing you did? This is your – this is on your watch. What’s the first thing? You read that, it’s your watch, your division. You’re coming up here this afternoon. What’s the first thing you do?

MR. KIM: Senator, to be fair, I learned about the allegations, or some of the allegations, last night, when it was communicated by the Office of Public Affairs. So, it wasn’t the first time…

SEN. KENNEDY: Right. OK.

MR. KIM: …it was in the paper this morning.

SEN. KENNEDY: So, then what do you do?

MR. KIM: What I did was prepare to come to the hearing today.

SEN. KENNEDY: Well, how do you deal – I mean, who did you talk to over there? How did you find out whether these things are true or were true? I mean…

MR. KIM: Well, Senator…

SEN. KENNEDY: What did you – what was your own sense of outrage about this? This is the Department to preserve and protect the civil rights of American citizens. What’s your reaction? You saw this, or heard about it last night. Tell me, what are the things, rather than just prepare for the hearing, what did you do?

MR. KIM: Senator, some of the things have been done already, to be fair. With respect – not referring to individual people in a public forum. Some of the management decisions of a personnel matter that Mr. Schlozman is alleged to have made, I have made differently. Some people who were removed from the section are back in the section, based upon decisions that I’ve made starting more than a year ago.

SEN. KENNEDY: Well, when you read that Mr. Schlozman – and I know that the time is moving on, Mr. Chairman – Schlozman reportedly said he was transferring them to “make room for some good Americans.” What does that say to you?

MR. KIM: Senator, at a very minimum, those were intemperate and inopportune remarks. I think it’s fair to say that they caused me some concern. And I think it’s also fair to say that there is an OIG and OPR investigation into that hiring practice and those hiring practices.

 

The Civil Rights Division’s politicization of the career ranks has resulted in what appears to be a reduced commitment to its core mission – protecting racial minorities from discrimination. 

MR. HENDERSON: In the housing section alone, the total number of cases filed has fallen 42 percent since 2001, while the number of cases involving allegations of race discrimination has gone down by 60 percent. 

The voting section did not file any cases on behalf of African-American voters during a five-year period between 2001 and 2006. And no cases have been brought on behalf of Native American voters for the entire Administration. 

Furthermore, the Department has gone out of its way to take legal positions to roll back civil rights. For example, last year the Department filed amicus curiae briefs in support of the dismantling of voluntary school integration programs in Seattle,Washington, and Louisville, Kentucky. These cases – which challenge one of the few ways left for local school districts to battle de facto segregation in public schools – are currently pending before the U.S. Supreme Court. 

The division’s record on every score has undermined effective enforcement of our nation’s civil rights laws. But it is the personnel changes to career staff that are in many ways most disturbing, for it is the staff that builds trust with communities, develops the cases and negotiates effective remedies. Career staff has always been the soul of the division, and it is now under attack. 

… 

SEN. CARDIN: The record shows the division has followed almost as many cases alleging discrimination against whites than they have against African-Americans or Latinos. Now, discrimination in any form is wrong, and we want the Department of Justice to speak out on behalf of every American in the form of discrimination. However, I think it is apparent that efforts to help racial minorities is where the Department of Justice must place its priorities. That concerns me. It appears – I mean, you’re giving the impression. First of all, do you dispute those numbers? 

MR. KIM: Senator, I don’t know exactly where those numbers come from. I think that they may be a compilation of statistics over some period of time. I can tell you, I can rattle down the cases that I’ve authorized. And they are three on behalf of African-Americans and Hispanic Americans, one on behalf of women, one on behalf of whites and one on behalf of– with the discrimination against Sikhs and Jewish Americans. That is not one that places special importance on the role of discrimination against whites. I mean, I think discrimination – as you do, Senator – against any group, based upon their race, is offensive and a violation of Title VII. And it’s my duty to enforce those cases. But I don’t think that I have placed disparate attention on cases involving any one racial minority. I don’t think that’s my job.

SEN. CARDIN: I appreciate that. I’ve been told by staff that those numbers came from your Web site. So, that’s where our source is. I’m sure it’s a good source.

MR. KIM: Senator, I think that is a good source. I’ll have to go back and check them all again. 

… 

SEN. KENNEDY: Let me move on to another area. I am on the record of the division with regard to voting rights. There’s been only one case alleging racial discrimination in voting on behalf of African-Americans in this Administration – one case. One case. One case. You filed the same number of cases alleging discriminations against whites. Why is it? What can you tell us, this committee.

…

MR. KIM: Senator, I don’t believe that’s an accurate, factual statement.

SEN. KENNEDY: Well, what is the number then?

MR. KIM: I have approved one case involving vote dilution on behalf of African-Americans.

SEN. KENNEDY: What do you think? Do you think it’s more than 15, or less than five?

MR. KIM: With respect to race…

SEN. KENNEDY: The number of cases, voting rights cases.

MR. KIM: Race cases in general?

SEN. KENNEDY: On voting rights cases with regards to African-Americans.

MR. KIM: Under the Voting Rights Act?

SEN. KENNEDY: Yes.

MR. KIM: I believe it is between five and 15.

SEN. KENNEDY: You believe it’s between five and 15. So, if it is between five and 15, that’s what your testimony is.

MR. KIM: That’s what I believe, Senator. I mean, I could provide an accurate…

SEN. KENNEDY: Yes, would you? Would you try?

MR. KIM: Of course.

SEN. KENNEDY: Because I think you’ll find out that it is considerably less. I think you’ll find out that with regards to the record of the Civil Rights Division on these kinds of cases, there’s been a dramatic fall-off in the very recent times on this kind of thing. And we want to – I’d like to know why. And if you can be able to help us understand that there has been that drop-off, what the reasons are for it, whether it’s because we’ve been making progress, or because of the fact that the Department hasn’t chosen to go ahead. I’d appreciate it.

 

Concerns have also been raised about the division’s aggressiveness in protecting the right to vote.

SEN. CARDIN: You know my concern about what happened in Maryland. You and I had a conversation about it, as to, in my view, deliberate actions taken to try to marginalize minority voters. It wasn’t isolated. 

There also were cases in Virginia where callers tried to intimidate or confuse Democratic voters in a pretty contested Senate race. And in Arizona, the Republic reported that in Tucson, three vigilantes – one carrying a camcorder, one holding a clipboard and one holstered gun – stopped Hispanic voters and questioned them outside a Tucson polling place. And I could go on and give you more and more examples. 

And I know you and I have talked about whether the federal laws are strong enough or not, and we have a bill pending that I hope will be passed that will clarify this. But voting representation, being able to vote is such a fundamental issue with the 50th anniversary of the creation of your Department and the passage of the Voting Rights Act. And still today, there are candidates and parties that think it’s fair game to try to marginalize minority voters. 

If you think it’s not a problem, say it’s not a problem. If you think it is a problem, then do something about it. If you think it is a problem and you don’t have the tools to deal with it, tell us what tools you need. But I think just to sit back and be a passive observer is not an option that the Civil Rights Division should be taking. 

And we’ve had a hearing here, and I haven’t seen the Administration come in with a statement in support of our legislation. I haven’t seen any position on this. And I just think this is a pretty fundamental issue. And we’ve had conversations about it, and I guess I expected to hear something about whether you believe the circumstances are just fine, whether you had the tools to do something about it, or whether you think you need additional tools from Congress in order to pursue these issues. 

MR. KIM: …All I can tell you at this point, Senator, because I am a voice of the Administration, is that I am aware that views are being put together. I am not in a position to articulate those views. They have not been cleared. But I do believe the Administration is prepared to make a statement with respect to the legislation that you have supported and that is pending within this body.

SEN. CARDIN: Well, I appreciate that it has to be cleared before you can tell us specifically. But can you at least share with us whether you believe that there are concerns out there about what’s happening with voters?

MR. KIM: Senator, I, as a personal matter, don’t like dirty tricks. I think that everyone who is registered to vote and qualified to vote should vote on election day. And I think that we should make that process as painless as possible. And so, in general, my predilection – and I think the Department’s predilection – is to try to make it easier for people to vote and to vote their mind, and to vote exactly the way they intend the election to be voted. That is my general statement, and I hope that satisfies you, because the more specific views letter I hope will be forthcoming.

SEN. CARDIN: Let me try one more question. When can we expect the Administration’s view on this?

MR. KIM: Senator, I’m looking behind me to people who are actually more knowledgeable. I know…

SEN. CARDIN: They’re not saying anything. They left you on your own.

MR. KIM: That happens sometimes. I don’t know exactly why. The short answer, Senator, is I believe it is in the process. It’s hard for me to predict these things, because sometimes I think it’s going to happen in a couple of days and it doesn’t, and then people get mad at me. The truth of the matter is, I know that it is past the point of discussion and actually to the point of writing and to the point of circulation.

 

Despite increased authority and resources, the DOJ has also slowed its pursuit of employment discrimination. 
 

HELEN NORTON, VISITING ASSISTANT PROFESSOR, UNIVERSITY OF MARYLAND SCHOOL OF LAW: As you know, Congress empowered the Department of Justice with the power to enforce Title VII with respect to state and local government employers. And this authority is critically important, as state and local governments employ more than 18 million workers in a wide variety of jobs, from police officers to teachers, firefighters, health care providers, and more. Some of these jobs offer entry-level gateways to employment and economic security, while others stand at the top levels of state and local leadership.

But despite the importance of this mission, the division’s Title VII enforcement efforts have plunged since January 20, 2001. We’ve seen a significant drop in activity of all types, fewer successful resolutions, fewer cases filed alleging systemic discrimination, fewer cases filed alleging individual discrimination. But since January 20, 2001, the division has resolved only 46 Title VII cases, including only eight pattern and practice cases. In contrast, the division during the Clinton Administration resolved approximately 85 Title VII complaints, including more than 20 pattern and practice cases. 

Another helpful enforcement measure tracks the number of complaints filed under Title VII. So long as illegal job discrimination remains a problem, we should expect to see continued case filings. Here, too, the division’s efforts fall short. The division has filed a total of only 39 Title VII complaints since January 20, 2001. At this pace, the division can be expected to file approximately 49 cases over two full terms. And this is just over half of the nearly 90 Title VII complaints filed during the Clinton years. 

Second, the division’s record reveals a retreat from its historic leadership in the fight against race and national origin discrimination, as its Title VII docket, which is now significantly reduced, devotes an even smaller proportion of its resources to job discrimination experienced by African Americans and Latinos. 

For example, the division under this Administration has brought significantly fewer pattern and practice cases challenging systemic discrimination that has the capacity to affect large numbers of workers. But of this already shrinking docket, the number of cases challenging the systemic discrimination experienced by African Americans, Latinos and women has plummeted to less than a third of what it was previously. 

Turning to its Title VII docket on behalf of individual victims, the division has filed only 28 individual complaints of discrimination since January 20, 2001. At this pace, the division will file approximately 35 such cases over two full terms. And again, this is just half of the nearly 70 individual claims filed during the previous Administration. 

And while the current Administration has brought significantly fewer individual claims of all types, this is especially true of claims on behalf of African Americans, religious minorities and Latinos. In fact, during this Administration, the division has yet to file an individual Title VII claim on behalf of a Latino. 

This downturn in Title VII enforcement activity is all the more troubling, given the greater resources now available to the employment litigation section. On average, 35 to 36 attorneys have been assigned to that section during the Bush Administration, compared to only 30 to 31 during the previous Administration. 

 

Senators questioned John Rizzo’s failure to object to the Justice Department’s 2002 Bybee Memo, which defined torture as “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

SEN. WYDEN: Do you think you should have objected at the time? 

JOHN RIZZO, ATTORNEY, CENTRAL INTELLIGENCE AGENCY (CIA): I, I can’t honestly sit here today and say I should have objected…. 

As with most legal memos, my reaction was that it was an aggressive, expansive reading. But I can’t say that I had any specific objections to any specific parts of it. 

… 

SEN. FEINSTEIN: If you were part of that legal foundation, it’s very difficult for me to vote for you because I believe that one of the reasons we are so hated abroad is because we appear to be hypocrites. 

Mr. Rizzo refused to publicly discuss the CIA’s policy on rendering detainees to countries that allow the use of torture. 

SEN. LEVIN: Have detainees been rendered by us, including the CIA, to countries that use torture? 

… 

SEN. LEVIN: I’m not asking you which countries. 

MR. RIZZO: Well, again, if you don’t mind, Senator… it’s difficult to give a yes or no answer to that in an open session. 

SEN. LEVIN: …[A] statement of the President in December 2005 [said] that we do not render to countries that torture, a statement made in public… in contrast to Mr. Rizzo’s statement that he could not answer that question in public.

 

If confirmed, Mr. Rizzo pledged to ensure that congressional committees are informed of CIA activities in a timely manner to ensure constructive oversight. 

MR. RIZZO: The lesson I learned from seeing up close all the damage from Iran/Contra has been lasting and indelible to me. It is this: that CIA courts disaster whenever it loses sight of the absolute necessity to inform the intelligence committees on a timely basis what they need to know in order to perform effective, constructive oversight…. There is yet another compelling, if coldly pragmatic reason that Iran/Contra brought that lesson home to me. The more the committees know what CIA is doing, the more you are invested in the process, and the more, frankly, the committees will be willing and able to protect and defend CIA from the uninformed and often false charges of wrongdoing that seem to inevitably come our way from those on the outside. It is in that spirit of openness and candor that I will endeavor to address the committee’s questions – not just today, but down the road as well, if the Senate ultimately sees fit to confirm me as CIA General Counsel. 

 

The Environmental Protection Agency (EPA) knew about hazardous conditions after the collapse of theWorld Trade Centertowers but failed to warn the public about the danger. 

David M. Newman, New York Committee for Occupational Safety and Health: Credible, substantive data that indicated the presence of toxic substances in significant quantities at the WTC site were readily available to EPA prior to and on September 11, 2001…. The purpose of the hazardous raw materials databases is precisely to facilitate safe emergency response and effective containment and cleanup in the event of an unanticipated chemical release…. 

Environmental sampling results obtained by or available to EPA subsequent to September 11 indicated the presence of toxic substances at levels of concern at Ground Zero as well as at other locations in Lower Manhattan, both outdoors and indoors…. 

According to an EPA senior policy analyst, this was the first major chemical or hazardous waste release in 20 years for which EPA did not conduct a site characterization for environmental hazards and risks…. 

For eight months after 9/11, EPA contended that it had no legal responsibility for assessing or addressing indoor environmental contamination.

 

The EPA’s advice to the public after 9/11 was limited, and sometimes incorrect or even hazardous. 

MR. NEWMAN: EPA press releases counseled residential and business tenants to clean their indoor spaces using “appropriate” equipment, following “recommended” and“proper” procedures, without defining these terms. EPA’s technical advice sometimes contradicted regulatory requirements and even common sense. In one instance EPA advised that “if dust or debris from the World TradeCenter [WTC] site has entered homes or offices, people should be sure to clean thoroughly and avoid inhaling dust while doing so.” The same press release referred readers to the website of the New York City Department of Health for further technical guidance. That website advised “residents and workers returning to homes and offices in Lower Manhattan” to clean up WTC dust (i.e., asbestos and other toxic substances, in many cases) with wet rags and HEPA vacuum cleaners, in violation of federal and city regulations. It further advised that respiratory protection was not necessary so long as these “guidelines” were followed.

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Its September 18 announcement that the “air is safe to breathe” was not supported by the available data. EPA risk communication statements were altered to conform to political directives from the White House. “Guidance for cleaning indoor spaces and information about the potential health effects from WTC debris were not included in EPA’s issued press releases…. Reassuring information was added… and cautionary information was deleted” after intervention by the White House Council on Environmental Quality.

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The failure of EPA to provide, require, or even encourage indoor environmental assessments, and cleanup where warranted, in commercial and government buildings, coupled with the agency’s limited and inadequate sampling and cleanup in residential spaces, is likely to have subjected area workers and residents to additional unnecessary and avoidable exposures. 

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Nina Lavin, RESIDENT, NEW YORK CITY: Christie Todd Whitman’s words on September 18, 2001, assuring New Yorkand the nation that “the good news is the air is safe to breathe,” was reckless and false and set dangerous chaos in motion for all of us living downtown. Her statement is directly at odds with what she, her agency, and the administration already knew: that out of 143 bulk samples collected out of doors in the days immediately following 9/11, 76 percent of the tests contained asbestos and 34 percent of those tests met the regulatory definition of asbestos containing materials, or ACMs as they are known. 

And EPA would also have understood that while outdoor toxins may dissipate over time with wind, rain and sunlight, those that make their way indoors can build up and remain in high concentrations, settling on surfaces only to be stirred up over and over, often invisibly, as people go about their daily lives. 

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John B. Stephenson, Director, Natural Resources and Environment, Government Accountability Office: [The] EPA did not provide sufficient information in its second plan to allow the public to make informed choices about their participation. Specifically, EPA did not fully disclose the limitations in the testing results from its first program. EPA concluded that a “very small” number of samples from its first program exceeded risk levels for airborne asbestos. However, EPA did not explain that this conclusion was to be expected because it took over 80 percent of the samples after residences were professionally cleaned. In addition, EPA did not fully explain that its conclusion was based on participation from only 20 percent of the eligible residences.
 

CurrentEPA World TradeCenterprograms are flawed and unlikely to provide public health or scientific benefit. 

MR. NEWMAN: The current EPA test and clean program disregards virtually all of the recommendations and concerns expressed by members of the EPA WTC Expert Technical Review Panel in its 21 months of deliberations.

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[T]he current program is funded at a level approximately 28 percent of the prior program, yet is charged with providing sampling and cleanup in 100 percent of the geographic area served by the prior program.

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EPA has cited images and mapping results from aerial photographs taken on September 13, 2001 as the basis for the geographic boundaries of the current program….These data themselves are of limited scientific utility as they rely entirely on detection of visible dust.

... 

Because the EPA program leaves employers to bear the financial and technical burden of testing and cleanup, it is likely that workplaces which have not yet been privately tested or cleaned will never be tested or cleaned.

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Because it de-emphasizes testing in indoor areas that are most likely to harbor residual contaminants and emphasizes testing in areas that are most likely to have been routinely and repeatedly cleaned, the EPA program has a built-in selection bias toward sampling cleaner areas. It is designed to avoid finding residual contaminants.

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[The EPA] permits higher levels of asbestos contamination to remain in “infrequently accessed areas” such as “out of reach shelving” or “on top, beneath, or behind large objects of furniture such as bookcases.” By contrast, city and state asbestos regulations explicitly and appropriately require that all areas of a contaminated space be cleaned to a single protective standard. 

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MR. Stephenson: [The] EPA reported that it was unable to develop a method for distinguishing between normal urban dust and WTC dust; therefore, the agency reported that it cannot assess the extent of WTC contamination, and has no basis for expanding the cleanup effort. EPA did not begin examining methods for differentiating between normal urban dust and WTC dust until May 2004 – nearly three years after the disaster – and therefore the process for differentiating was more difficult.

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Instead of assessing the costs of carrying out its program and providing resources accordingly, EPA has simply identified how much money was left over from the first program. Further, the amount of funding provided for the second program seems inconsistent with the scale of second program activities. Specifically, the $7 million EPA plans to spend for the second program’s testing and cleaning is less than 20 percent of the first program’s funding, despite an increase in the number and type of contaminants being sampled. EPA indicated that if demand had exceeded available resources, EPA would have simply limited participation in the program. 

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MS. LAVIN: To quote the written report on the finding of heavy metals, “The heavy metal sampling revealed the presence of various heavy metals found in the apartment. Published standards for acceptable levels of heavy metals on surfaces within the space do not exist. Standards have not been developed because the presence of most of these contaminants is neither a normal nor an acceptable condition in commercial or residential space.” 

 

The rising costs of campaigning for Congress have driven a wedge between elected officials and the average American. 

FORMER SENATOR WARREN B. RUDMAN: In 2004, nearly four billion dollars was spent on congressional and presidential campaigns, up from 2.2 billion dollars in 1996. The average cost to win a Senate seat in 2004 was well over seven million dollars. That means that [Senators] had to raise an average of four thousand six hundred dollars a piece every weekday for the six years [they] were in office.

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When the cost of financing a campaign is not an intimidating obstacle, more of our most able leaders will likely consider public service. Once elected, they will be free to spend more of their time and energy attending to the nation’s business instead of wasting time on nonstop and demeaning fundraising.…Financing federal elections with private money has led to apathy and alienation, if not corruption and fraud. 

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NICK NYHART, PRESIDENT AND CHIEF EXECUTIVE OFFICER, PUBLIC CAMPAIGN: Approximately $1.6 billion was spent in 2004 on political ads on local television by candidates, parties, and outside groups. Taken on the whole, this massive expenditure amounted to roughly 80 percent of the television stations’ revenue increase from 2003 to 2004…. In the 2006 midterm elections, a non-presidential year, an estimated $2 billion was spent on political advertising.

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[L]ess than two tenths of 1 percent of the U.S. population gave 86 percent of all itemized campaign contributions for the 2004 elections. 

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ARNOLD HIATT, CHARIMAN, STRIDE RITE FOUNDATION: I want elected officials to be focused on the entirety of society’s needs, not talking to the small segment of the electorate – less than one quarter of one percent at the last estimate – who make donations of $200 or more.

 

Providing public funding for federal elections would not be prohibitively expensive. 

SEN. RUDMAN: For just six dollars a citizen per year, we can publicly fund all elections for Congress and the White House. That’s a real bargain when you consider that pork barrel projects alone cost each and every American well more than one hundred dollars in a typical year. 

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MR. NYHART: [The] Fair Elections [Now Act] would cost us less than one billion dollars [a year]. 

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SCOTT E. THOMAS, ATTORNEY, DICKSTEIN SHAPIRO LLP: [M]y rough calculation is that the voucher [portion of the Fair Elections Now Act] will drain only about $13 million per year from the $1.3 billion in projected annual proceeds generated by the spectrum use fee…. When costs for all… Senate races in a given cycle are added in, the numbers start inching towards payouts in the $1 billion range every two years. If the revenues from the spectrum sales and spectrum use fees truly can sustain a $2 billion per year pattern, there should be no funding problem.

 

Election finance reforms are complicated by non-campaign expenditures that skirt the law. 

MR. THOMAS: Because the definition of “independent expenditure” under existing law requires the presence of content “expressly advocating” the election or defeat of a clearly identified candidate, and because “electioneering communications”require reference to a clearly identified candidate, it is likely that opposing groups wanting to avoid triggering “fair fight” funds will move toward more ambiguous advertising that would qualify as neither “independent expenditure”nor “electioneering communication” messaging. 

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STEPHEN HOERSTING, VICE PRESIDENT, CENTER FOR COMPETITIVE POLITICS: [Quoting the Government Accountability Office] both states, Maineand Arizona[upon whose election laws the new measure is based], experienced increases in independent expenditures. Because it is constitutionally protected and unregulated, the extent of spending for issue advocacy-public policy messages that do not refer to a particular candidate-is not known. 

Communities of distressed public housing have been improved by the HOPE VI program. 

Dave Wood, Director, Financial Markets and Community Investment, Government Accountability Office: According to our analysis of census and other data, the neighborhoods in which 1996 HOPE VI sites are located generally have experienced improvements in a number of indicators used to measure neighborhood change, such as educational attainment levels, average housing values, and percentage of people in poverty. For example, our analysis showed that in 18 of 20 HOPE VI neighborhoods, the percentage of the population with a high school diploma increased, in 13 neighborhoods average housing values increased, and in 14 neighborhoods the poverty rate decreased between 1990 and 2000….[S]everal studies conducted by universities and private institutions also showed that the neighborhoods in which HOPE VI sites are located had experienced positive changes in income, employment, community investment, and crime indicators. For example, one study found that per capita income in eight selected HOPE VI neighborhoods increased an average of 71 percent, compared with 14.5 percent for the cities in which these sites are located, between 1989 and 1999. 

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Richard Baron, Chairman and Chief Executive Officer, McCormack, Baron and Salazar:HOPE VI has forced HUD [Department of Housing and Urban Development] and PHAs [Public Housing Authorities] to view “public housing” as part of a much larger, local market, and its success now provides a new approach for creating housing for low-income families. The other important element of the HOPE VI program involved funds for Community and Supportive Services (“CSS”). These resources have made it possible to support the families and children of the new communities by connecting and focusing local service providers and schools in more productive ways as partners in the redevelopment. Our HOPE VI communities have dramatically improved neighborhoods, overcome decades of deterioration and blight, stabilized local schools, reduced crime, created jobs, and re-claimed areas of cities for new investment. It represents one of the most significant domestic programs of the past thirty years – given the partnerships that have been created between federal, state, and local government, and the added resources of local philanthropies. 

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Sandra B. Henriquez, Administrator and Chief Executive Officer, Boston Housing Authority:HOPE VI grants serve as the critical seed capital to leverage additional public and private sector investment in distressed neighborhoods. This innovative “first money in” approach, combined with unprecedented regulatory flexibility, has allowed public housing authorities (PHAs) to build first-time partnerships with private developers, state governments and other partners. As a result, a new market has been created of private investors and lenders who now view mixed-income, mixed-finance public housing as a good investment. The city of Boston has been awarded three HOPE VI Grants – Mission Main and OrchardGardens in Roxbury, and Maverick Landing in East Boston – totaling $115 million. Using these HOPE VI funds as a starting point for the redevelopment of these very distressed public housing sites, we were able to raise an additional $293 million of non-HOPE VI funds to complete the redevelopment of these sites. For every $1 of HOPE VI funds, BHA leveraged $2.55 of non-HOPE VI funds (low income housing tax credit equity, city funds, state funds, other public housing funds, other private funds).

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Prior to the completion of the Mission Main HOPE VI program, people were afraid to walk in or around the neighborhood. Now, the Mission Main neighborhood is one of the most vibrant and active neighborhoods in the City. Artists, doctors, students and other professionals are all eager to work and live here. Occupancy of the market-rate units at Mission Main has always been strong, with a waiting list for these units.

 

Residents who have participated in the HOPE VI program report significant improvement in living conditions. 

Dr. Sue Popkin, Principle Research Associate, Metropolitan Housing and Communities Policy Center, Urban Institute: Residents who have moved to the private market or mixed-income developments reported substantial improvements in the quality of their housing. We asked families to rate their current housing as “excellent, good, fair, or poor.” In 2005, 68 percent of voucher holders and homeowners rated their housing as excellent or good, as did 64 percent of unassisted renters. More than three-fourths (85 percent) of families living in the new HOPE VI units gave their units high ratings. In contrast, a much smaller share of households in public housing rated their housing as excellent or good. Only 39 percent of those in the original public housing (those that had not yet been relocated) gave their units high ratings in 2005. And only about half of those relocated into other public housing (49 percent) rated their housing as excellent or good.

... 

[M]overs and those living in mixed-income developments reported conditions far safer than in their original developments. For example, the proportion of respondents reporting “big problems” with drug sales dropped from 78 percent at baseline to 47 percent in 2003, and declined even further to 33 percent in 2005 – a drop of 45 percentage points. The trends for virtually every measure of neighborhood safety showed the same dramatic decline. 

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MS.Henriquez: In Boston, we have linked the HOPE VI program with educational opportunities in a variety of forms including: computer training classes; providing low-income middle school youth access to college-based education and training in video production, fashion design, civil engineering and social activism; providing education and training for hundreds of front line workers in the health care and research sector; and linking high school students with college opportunities.

 

Many needy families are being abandoned while their public housing is being rebuilt under the HOPE VI voucher program. 

Charles Elsesser, Jr., Member of the Board of Directors, National Low Income Housing Coalition:The largest single reason for the loss of their voucher was their inability to find a second suitable, affordable rental after their lease at their initial relocation residence expired. While the housing agency provided a security deposit and search assistance to find the first dwelling, no assistance was provided for the second. And their initial landlords often refused to return the initial security deposit to the tenants or delayed that return for months. Thus, relocated families with incomes ranging around $9,000- $10,000 a year were forced to find a security deposit of often two to three thousand dollars in order to rent a second dwelling. Tenants who were unable to lease up a new dwelling within the Section 8 voucher time limits lost their voucher. In addition, in Miamias elsewhere, the Section 8 voucher program imposed a plethora of new rules and regulations on families who were already traumatized by the relocation. No longer were they dealing with a locally situated public housing “rent office.”Instead, they were required to negotiate a totally new, centralized Section 8 bureaucracy, to comply with rigorously enforced time limits for finding a new rental, to cope with the delays involved in HQS [Housing Quality Standards] inspections, to comply with private landlord demands, etc. Failure to negotiate any of these demands often led to the loss of the voucher. 

 

Senators and foreign policy experts urged President Bush to utilize the upcoming Kennebunkport meeting to improve U.S.-Russian relations.

SEN. LUGAR: The Kennebunkport meeting will not resolve all disputes, but establishing a commitment to diplomacy is important. The U.S.-Russia relationship is critical to the security and prosperity of the international community. Kennebunkportprovides an opportunity for the two Presidents to give direction to their bureaucracies and to lead our countries toward a stronger partnership. 

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DANIEL FRIED, ASSISTANT SECRETARY OF STATE FOR EUROPEAN AND EURASIAN AFFAIRS: Kennebunkport can be the setting for informal discussions and I think we’re looking at this in that context…. It’s an opportunity to get out of Washingtonand out of Moscowand to have in-depth conversations about the relationship and the direction it’s going. 

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LIEUTENANT GENERAL BRENT SCOWCROFT, U.S. AIR FORCE (RET.): Kennebunkport is quintessentially atmospheric. And if we can change the atmosphere, it might affect the policies…. Preaching to them how they ought to be like us will not succeed and can be counter-productive…. We ought to focus on things we can do together. 

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SEN. BIDEN: For years, the Bush Administration tried to paper over problems with Russia…. The West needs to offer a clear vision of the positive role Russia could and should play as a leader in the international community. We need to devise incentives that will recognize and reward Moscow’s efforts to deal responsibly with the many common challenges we face.

 

Senators highlighted the importance of ensuring greater accountability in our nuclear relationship with Russia.

SEN. LUGAR: …[T]he United Statesand Russiamust extend the START I treaty’s verification and transparency elements, which will expire in 2009; and they should work to add verification measures to the Moscow Treaty. Unfortunately, some bureaucrats on both sides are balking at such efforts in favor of less formal language that is not legally binding. I am concerned that transparency and verification will suffer if legally-binding regimes are permitted to dissolve. The predictability and confidence provided by treaty verification reduces the chances of misinterpretation, miscalculation, and error. The current U.S. policy is at odds with the Bush Administration’s assurances to Congress during consideration of the Moscow Treaty. Secretary Rumsfeld and others testified that the START regime would be utilized to bolster the Moscow Treaty, which did not include verification measures. The current Russian-American relationship is complicated enough without introducing more elements of uncertainty into the nuclear relationship. 

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SEN. BIDEN: …[W]e have an interest in the country’s domestic situation, including the security of its nuclear stockpiles. Contrary to what the Russia media might say, the United States needs a Russia that is strong and stable. Russia is the only state in the world with enough nuclear weapons and delivery capability to wipe us out and any other nation. We can’t afford to see its government crippled by corruption and lack of accountability.
 

Experts see opportunity for advancing a strategic partnership with Russia. 

DR. ZBIGNIEW BRZEZINSKI, FORMER NATIONAL SECURITY ADVISOR: In my view, we are not facing a renewal of the Cold War. That is an over-dramatization of the present state of America-Russia relationships. But we are in a phase of a cold peace, and that cold peace is related to Russia’s internal and rather difficult historical transition…. In my view, personal theatrics should follow progress in strategic relationships, but should not create deceptive illusions. 

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ASST. SEC. FRIED: Our strategic approach to Russiameans that we defend and advance our interests while building on areas of common concern. It means we must find the right balance between realism about Russia and the higher realism of commitment to defend and advance our values. 

 

The rising cost of health care may be the biggest budget challenge facing our country.

 

SEN. CONRAD: We face a demographic tidal wave. We are going to have 80 million retirees by 2050, more than a doubling of the number of people eligible for Social Security and Medicare, and we need to focus on this fact like a laser. We need to remember that Social Security is not the biggest budget challenge confronting us. Because of rising health care costs and this demographic tidal wave, over the next 75 years, the shortfall in Medicare will be seven times the shortfall in Social Security. 

The growing cost of Medicare and Medicaid is simply staggering. By 2050, if nothing changes, more than 20 percent of our gross domestic product will be spent on just these two programs. That’s more than we now spend on the entire federal government. So if this doesn’t get people’s attention, I don’t know what will…. [R]ising health care costs are by far the biggest factor driving Medicare cost growth. Demographic changes, which I have referenced, from the retiring baby-boom generation are significant, but they are secondary to the rising costs. 

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DR. Peter Orszag, Director, Congressional Budget Office: [M]y testimony this morning focuses on several points, the most important of which is that when it comes to the nation’s long-term fiscal health, we have been misdiagnosing the problem. 

The central long-term fiscal challenge facing the United States is the rate at which health care costs grow relative to the economy…. That chart shows the path of Medicare and Medicaid expenditures as a share of GDP [Gross Domestic Product]. If, over the next four decades, health care costs grow as rapidly compared to income per capita as they did over the past four decades, those two programs would rise from 4.5 percent of the economy today to more than 20 percent by 2050, which is the entire size of the federal government today. 

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SEN. STABENOW: Just to stress the point in terms of why this is so critical, I believe that fundamentally it’s the most important thing we can do to help our businesses be competitive in a global economy, to focus on our quality of life, on the federal budget. 

It is singly the most important thing that we could do with the broadest impact for the future.

 

The long-term challenges facing federal spending on health care are also representative of the challenges facing the private sector. 

DR. ORSZAG: Rising health care costs represent a challenge not only for the budget, but also for the private sector, which is not surprising, because the same forces that are driving up costs in the public sector are driving up costs in the private sector, including the spread of new technologies and changes in cost sharing requirements. 

There are many different possible approaches with bipartisan support that could help our country lower health care costs. 

SEN. FEINGOLD: Do you think there is sufficient data now to show that any one particular approach is the best way to help our country lower health care costs?

 

DR. ORSZAG: What I would say is I think there are a variety of approaches that hold promise. One of the challenges that we have is that I have not seen, and I don’t think one exists, a comprehensive plan that would, given the available information today, credibly bend that curve sustainably over the long term. So one of the challenges is we need to be trying different things, seeing what works, and then readjusting as we figure it out. And the sooner we start that, the better off we’re going to wind up being. 

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SEN. CONRAD: Let me ask you, you are somebody who has studied this carefully and closely. You have one of the best groups anywhere in the country, perhaps anywhere in the world, organized to evaluate and understand these issues. I heard your answer to Senator Feingold, I think it was Senator Feingold, earlier, that you don’t see a comprehensive plan that’s out there that, if adopted, we could be confident would get this under control. Was I hearing you right?

 

DR. ORSZAG: Basically, yes. There are things that seem promising and that hold out the promise of bending that curve over the long term, but in terms of having the confidence to say in 2025, there would be a reduction of X percent in health care expenditures from known interventions, that, unfortunately, is not where the state of knowledge is. 

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SEN. CONRAD: The only way that I see this proceeds is if there is a group that is given responsibility to come up with a plan that is totally bipartisan in nature, that involves all three of the entities that have to be brought together for any plan to be actually implemented, and that means the House of Representatives, the Senate, the White House. All of them have to play a role not only on the landing, but on the takeoff. If people aren’t involved, one thing I’ve learned around here, if people aren’t involved in the development of the plan, they aren’t going to support the plan when the going gets tough. 

But that still leaves us with the question of a plan and a plan that could really make a meaningful difference and one in which we could have confidence that it would not only save money, but at least do no harm to health care outcomes and hopefully improve health care outcomes. 

I just want to go back over what I heard you say. What I heard you say is you’re not aware of any comprehensive plan that exists at this moment that we could be assured would save money and at least not hurt health care outcomes. Did I hear you correctly?

DR. ORSZAG: That’s correct. I do think that there are steps that can be taken to move towards creating the opportunity for such approaches or options to exist and that regardless of your broader vision for health care reform would make sense. 

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SEN. WHITEHOUSE: How close are we to what you think would be the ideal level of experimentation and evidence generation and research and development on how we work through these steps that you’ve described? Are we like the Lewis and Clark expedition, what we’re doing so far, with a vast, unexplored landscape in front of us or [are] we like somebody who’s like cleaned six rooms of the house, there may be one left to do, but we’ve pretty much done it? In those sort of ranges, how close are we to where we should be, in your view, in terms of investment in experimentation and analysis of how we get ahead of this problem? 

DR. ORSZAG: I think we’re closer to the Lewis and Clark trip. 

The variation in health care costs and outcomes across the country suggests a significant opportunity to reduce health care costs for the federal government and private sector by replicating best practices throughout the country. 

SEN. CONRAD: Our budget resolution, which was adopted by Congress last month, takes a number of important steps to begin addressing these rising health care costs…. [W]e include a comparative effectiveness reserve fund to jumpstart an initiative to provide research on the comparative effectiveness of different treatments, medical devices and drugs. This research will lead to savings over the long term by allowing health care providers and patients to avoid treatments that may be ineffective or overly expensive, while, at the same time, improving health care outcomes. 

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DR. ORSZAG: I would note that a very significant opportunity exists to reduce costs, because the evidence suggests that more expensive care need not mean higher quality care. 

Perhaps the most compelling evidence of that opportunity comes from the significant geographic variation in Medicare cost per beneficiary, which this chart shows. And in reference to a comment that was made earlier by Senator Gregg, I would note that the Senators in this room all come from the light states, where costs are lower than in other parts of the country. 

And, in fact, in many states, costs are lower than in other countries and the reasons cannot be explained by the underlying risk characteristics of the patients. They cannot be explained by the cost of building hospitals or wage rates in the lighter areas. 

And the kicker is that the darker areas, where higher spending occurs, do not generate better health outcomes than the lower spending regions, as my next chart shows. 

If you look at a simple correlation across states of spending versus quality, there is no correlation that exists. One of the reasons for that is that a lot of spending occurs without any evidence associated with it. The Institute of Medicine has suggested that only about a quarter of health care costs have any evidence associated with them. 

So the vast bulk of what we’re doing in health care is not backed by medical evidence in terms of whether it works better than something else. As a result, you get a lot of variation in cost that doesn’t translate into better quality. 

SEN. CONRAD: Let me just stop you on that point, so we rivet that point. Let’s not have anybody miss that point. What you’re saying is more spending does not result in better health care outcomes. 

DR. ORSZAG: That is correct. And that represents a very substantial opportunity, it’s going to be difficult to capture, but to take costs out of the system without harming health. So embedded in this central long-term fiscal challenge facing the United Statesis an opportunity to take costs out of the system without harming health, and I think moving towards capturing that opportunity is the most important objective that policy-makers could pursue if you’re interested in achieving long-term fiscal balance. 

And, by the way, it’s the same problem that private employers are facing with the rising cost of health care in the rest of the health system. The kind of variation that I showed you for Medicare also exists in Medicaid and it exists in the rest of the health system, also. 

SEN. CONRAD: So this goes beyond Medicare, Medicaid. It’s endemic in the health care system that more expenditures do not result in better health care outcomes.

 

DR. ORSZAG: Within the United States, I think there’s a wide variety of evidence suggesting that, at the margin, more expenditures don’t seem to generate better health outcomes and the amount of money that we’re talking about is very significant. Just as an example and without embracing the specific estimate, the Dartmouth Group that Senator Gregg mentioned before has suggested that if you move the darker regions of the country, if we go back to the earlier slide, the darker regions of the country towards practice norms and practice patterns and medical practices that are like the lighter parts of the country, you could reduce overall health care costs by 30 percent without harming health… 

SEN. CONRAD: Reduce health care costs by 30 percent? 

DR. ORSZAG: Three-zero. We’re currently spending 16 percent of GDP on health care. You do the math. We’re talking about a lot of money. And in light of that, I think it’s very important, again, to emphasize the variation is larger often where there is no evidence on what works and what doesn’t…. 

So, Senator Conrad, as you mentioned, the interest and comparative effectiveness research basically looking at what works and what doesn’t is precisely aimed at trying to build out or increase the share of health care costs where there’s some evidence on what works and what doesn’t and then practitioners and patients could use that information to move towards higher value health care rather than paying for things and doing things that might not be generating any better outcomes. 

I think we have to really ask the question why some parts of the country are able to deliver quality health care at so much lower rate – costs than other parts of the country and be delving into ways to try to narrow that variation as one mechanism for addressing this opportunity to reduce costs without harming health. 

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SEN. CONRAD: Thirty percent savings would be in the range of $600 billion a year if we were able to have the practices that are already pursued in very large parts of the country. I mean, geographically speaking, as I looked at your map, roughly half of the country has the practices in place that would lead to that kind of savings if they were broadly distributed. 

DR. ORSZAG: A significant part of the country. There’s a question about how you do the – a lot of those states are smaller states. So there’s a question about the population weighting. But the point holds, which is that there are significant parts of the country, in fact, the four of you right there represent parts of it, where costs are much lower than other parts of the country and where quality is not any worse. 

SEN. CONRAD: And have you thought through how we could spread those practices? How could we effectively get those practices adopted in other parts of the country? 

DR. ORSZAG: Well, I think it will likely require two things. One is I think it does require more information about exactly what works and what doesn’t for specific interventions, coming back to should you do an MRI after your hip fracture surgery or not kind of thing, and then it will likely also require changes in incentives for providers so that they would be presented with incentives to pursue value care, high value care, rather than just churning high cost care.

 

The additional cost of the Medicare Advantage program is exacerbating federal health care spending problems and could threaten the future of Medicare.

 SEN. CONRAD: [W]ithin Medicare, I believe we also need to look at the additional cost of Medicare Advantage plans. MedPAC has found that Medicare Advantage plans are costing, on average, 112 percent of the cost of traditional Medicare fee for service. 

These plans were meant to save money. Instead, they’re contributing to Medicare’s financial instability and continued growth in Medicare Advantage, similar to what we’ve seen recently, has major implications for future costs and the structure of the Medicare program. 

At my request, CBO has done an analysis of savings if we capped Medicare Advantage expenditures at as much as 150 percent of traditional fee for service Medicare and they found savings even at that level, much more significant savings if we would cap Medicare Advantage at 120 percent or 125 percent of traditional fee for service Medicare. 

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SEN. STABENOW: Medicare Advantage, and I think it’s – I support having a private sector option, but that was supposed to save us money. Mr. Chairman, you’ve been extremely articulate on that. It was supposed to save us money and now we are seeing that, as you indicated, even if we were to pay 50 percent more, 150 percent for the private plans versus the public plans, we would save money if we capped it. 

So I am very concerned that as we hone in on things, all of which I’m very supportive of, that there’s like the 800-pound gorilla in the room that we’re not focusing on, which is the fact that there are those who will fight change because there is huge amounts of money being made in this system. 

So how do we address public interest versus private interest? And I know that’s a big challenge for us and that leads me to my question. 

And thank you for your input. And I should also say health IT, huge savings. There’s huge things that we can do, but Medicare Advantage, CBO estimated that setting the payment for Medicare Advantage at 100 percent, and I’m not suggesting that we not allow a higher payment, but if you were to set it at 100 percent for local fee for service, as recommended by MedPAC, you indicated it would save $46 billion over ten years. 

Now, CBO is saying that the savings would be $160 billion over ten years. That’s an increase of 3.5 times higher. And so I’m wondering why you’re assuming the much larger overpayments and why it is getting so much larger. What’s happening in that number? 

DR. ORSZAG: What’s happening is that enrollment in Medicare Advantage has grown substantially and particularly within the private fee for service component of Medicare Advantage. We now anticipate rapid growth over the next decade. So the base of savings is very much larger than it was last year…. More people are driving a higher level of federal subsidy for each… 

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SEN. CONRAD: I want to go back to Medicare Advantage, because I’m increasingly concerned about what I see happening. Medicare Advantage are private plans that compete with fee for service traditional Medicare and Medicare Advantage plans were sold to the Congress based on the notion that they would save money. 

The whole idea with Medicare Advantage was that it was going to save money, going to be less costly than traditional Medicare, because the private sector was going to bring efficiencies to the table and the result would be reduced costs. In fact, Medicare Advantage, when it was adopted, was capped at, as I recall, 95 percent of traditional fee for service Medicare. That was then raised, as I recall, to 97 percent. 

We now know, on average, that it’s 110 percent and, in fact, in scoring done by the CBO, we see if we put a cap of 150 percent of a traditional fee for service Medicare, there would still be savings at that level. Now, we’ve got a runaway train here. Nineteen percent of Medicare enrollments are now Medicare Advantage. That’s up from 13 percent in 2004. What do you see as the implications for the cost of Medicare and the future of Medicare if these trends continue? 

DR. ORSZAG: Senator, if, over the next couple years, the rate of growth that we have experienced recently in Medicare Advantage were to continue, I think the result would be a fundamental change in the nature of the Medicare system that may then be hard to reverse, including within it higher costs than are currently projected. 

So the more rapid the growth in Medicare Advantage under current law, the more fundamental the change in the nature of the Medicare system and the higher the cost of that system. 

SEN. CONRAD: That is sobering testimony. You know, I see people advocating even more costly health care systems for the country. I personally don’t believe that is the answer. We are now pending $1 in every $6 in this economy for health care, $1 in every $6. 

No one else in the world is spending more than $1 in every $9 in their economy in health care and we’re not getting better health care outcomes. And what I’ve just heard you say is that if the current trends on Medicare Advantage continue, those costs will only escalate and, in fact, it may become even more of a challenge to get all of this under control. Am I hearing you correctly? 

ORSZAG: Yes, you are, Senator.

DPC