Nomination of Major General Robert T. Clark to be Lieutenant General

NOMINATION OF MAJ. GEN. ROBERT T. CLARK TO BE LIEUTENANT GENERAL

Mr. KENNEDY. Mr. President, I oppose the nomination of Major General Clark to the rank of lieutenant general.

I agree that General Clark has a strong record as a soldier. He has received numerous decorations for his distinguished service and courage, and he has served in a number of leadership capacities during his more than 30 years in the Army.

I am concerned, however, about General Clark's performance as Commanding General at Fort Campbell, KY, at the time of the brutal murder of PVT Barry Winchell on the base in 1999.

There are few more respected units in the Army than the 101st Airborne Division at Fort Campbell. The "Screaming Eagles," as the division is called, has a well-deserved reputation of professionalism, heroism, and outstanding performance. Yet, in the months leading up to the murder of Private Winchell, the command climate at Fort Campbell was seriously deficient. According to a report by the Army inspector general, Fort Campbell had command-wide low morale, and inadequate delivery of health care to soldiers and their families, and the leadership condoned widespread, leader-condoned underage drinking in the barracks.

There is compelling evidence that anti-gay harassment was pervasive at Fort Campbell during this period. The inspector general reported multiple examples of anti-gay graffiti, the use of anti-gray slurs in cadences by non-commissioned officers during training runs, and routine remarks and bantering that, in the inspector general's words, "could be viewed as harassment." Outside groups have documented many instances of anti-gay harassment in the months leading up to the murder.

The inspector general also found that prior to the murder, there was no sustainment training at Fort Campbell on the proper implementation of the Homosexual Conduct Policy, known as "Don't Ask, Don't Tell" and that, as a result, "most officers, NCOs, and soldiers at Fort Campbell lacked an understanding and working knowledge of the Policy."

In his response to my questions, General Clark stated that he agrees with these findings, but that he was nevertheless not aware of even a single instance of anti-gay harassment before the murder.

On July 5, 1999, after enduring anti-gay harassment for many months, including harassment by members of his chain of command, Private Winchell was bludgeoned to death with a baseball bat by a fellow soldier in his barracks.

It seems clear that if General Clark had exercised his responsibility to deal with the serious anti-gay harassment that was prevalent at Fort Campbell during his 17 months of command leading up to the murder of Private Winchell, the murder would probably not have occurred.

Even more serious, however, was General Clark's performance at Fort Campbell in the days, weeks, and months following the murder. A brutal bias-motivated hate crime is an extraordinary event in any community, civilian or military, and it demands an extraordinary response from the community's leaders. Such a crime sends the poisonous message that some members of the community deserve to be victimized solely because of who they are. The potential for such a crime was magnified in this case because of the existing climate of anti-gay harassment at Fort Campbell, but the available evidence indicates that General Clark's response was not adequate with respect to his contacts with Private Winchell's family or his command responsibilities at Fort Campbell.

One factual issue which I have repeatedly asked the Army to resolve, without receiving a satisfactory response, is why General Clark did not meet with the parents of Private Barry Winchell, Patricia and Wally Kutteles, in the days following his murder.

Following such a brutal murder it is difficult to believe that such a meeting did not take place. Any responsible and compassionate commanding officer would want to meet with and console the parents of the murdered soldier, even if no request for such a meeting had formally been made.

I understand that during the 4 days immediately following the murder, General Clark was at the Walter Reed Army Medical Center in Washington with his wife, who was undergoing tests for a longstanding illness. It is understandable that General Clark had declined to meet with the parents for this reason, during that period and did not attend the memorial service for Private Winchell on July 9. But Clark did not meet with the parents in the days after his return to Fort Campbell from Walter Reed Hospital nor in the weeks and months that followed the Winchell murder. Instead, he states that he never received a request to meet with the parents, but he would gladly have met with then if he had received a request to do so.

Patricia Kutteles, Private Winchell's mother, has submitted a sworn affidavit stating that she and her husband traveled to Fort Campbell immediately after hearing about her son's murder. She was assigned an Army liaison officer, Lieutenant Colonel Stratis, as their point of contact with Fort Campbell and the Army. Two or three days after the murder, she made a request to Lieutenant Colonel Stratis to meet with General Clark to talk about her son's death. Lieutenant Colonel Stratis told her that General Clark was unable to meet with them.

There are three possible explanations for this dispute of fact: Ms. Kutteles may have submitted a false affidavit, General Clark may have given false information to the Committee, or General Clark was, for some reason, not informed by his staff about the parent's request.

Like others on the Armed Services Committee, I have met with the parents, and I was struck by their sincerity, their patriotism, and their continuing support for our Armed Forces in spite of the tragedy. I find it difficult to believe that they are lying or mistaken when they say they asked for a meeting with General Clark.

Nevertheless, that appears to be the position of the Army inspector general, who states in his most recent memorandum, dated October 20, 2003, that the mother's statement in the affidavit is "unfounded." The inspector general states that his office "determined, after extensive interviews, none of the key staff members and other relevant witnesses recalled receiving or learning of such a request."

I have seen several of the affidavits relied upon by the inspector general, and I found the statements relied on to be disturbingly non-responsive. These affidavits fail to resolve the serious factual dispute about whether the parents requested a meeting with General Clark, and it seems improper for the Army inspector general to suggest that no such request was made.

I believe that it is inappropriate for the Senate to act on this nomination until this issue is more satisfactorily resolved.

General Clark states that he was not aware of any instance of anti-gay harassment on the base before the murder. At the very least, the murder should have made painfully clear that anti-gay bias and anti-gay harassment were real and pressing problems at Fort Campbell, problems that demanded an immediate and effective response. Yet from the very start, and throughout the remainder of his command, General Clark and his office took patently ineffective steps to respond to these specific problems.

Two days after the murder, the Fort Campbell public affairs office issued a statement describing the incident as a "physical altercation in a post barracks," insinuating that Winchell was partly responsible for his own death. In fact, Winchell was asleep in the barracks when he was attacked by his killer. General Clark stated that he probably learned about the false press statement 3 or 4 days later, following his return to Fort Campbell from the Walter Reed Army Medical Center. He said he did not instruct the public affairs office to retract the statement or issue a correction because "comments by my command spokesperson regarding the case might well have influenced the investigation, or suggested that I had reached premature conclusions about the case, and might have influenced or tainted the deliberations of any soldier serving on a court martial-panel."

It is important for a commanding officer not to make statements that might influence an investigation or court-martial. But it is well established in military law that a statement may be made to correct a false public statement, in order to avoid prejudice to the Government or the accused.

General Clark's explanation is doubly unconvincing in the light of the fact that the Fort Campbell public affairs office made a statement, 2 days after Clark returned to Fort Campbell, that there was "no evidence" that Private Winchell was killed because he was gay. This statement was clearly false, and it also raised a far more serious issue about whether the command at Fort Campbell was undermining the ability of the Government to prosecute the murder as a bias-motivated offense.

In fact, anti-gay harassment continued in the months following the murder.

The continuing anti-gay harassment at Fort Campbell was also accompanied by a sudden exodus of soldiers discharged for violations of the Homosexual Conduct Policy. In the 10 months after the murder, 120 soldiers were discharged from Fort Campbell under this policy, compared to only 6 such discharges from Fort Campbell during the same time period in the previous year. In all of 1999, there were 271 such discharges in the entire Army.

Instead of dealing directly with the problem of anti-gay harassment, General Clark chose to deny that any problem existed. In an op-ed article in the New York Times, a year after the murder, he stated that "There is not, nor has there ever been during my times here, a climate of homophobia on post."

In addition, he refused to meet with groups concerned about the welfare of gay soldiers, including a local gay community group, and the Servicemembers Legal Defense Network, a national organization.

Another of General Clark's most serious failure of leadership after the murder is the fact that, from all the evidence we have seen, he did not even once speak out against the specific problems of anti-gay harassment and anti-gay violence, or implement any training for the soldiers against it.

He did take general steps after the Winchell murder to address the quality of life for soldiers at Fort Campbell, and he reinforced existing programs on the need to treat all soldiers with "dignity and respect." These measures were helpful, but hardly sufficient to address the specific problem of anti-gay harassment.

Private Winchell's murder was an anti-gay hate crime, and it called for, at the very least, a clear and unequivocal statement by Fort Campbell's commanding officer that violence against homosexuals is wrong. According to the record, no such statement was ever made.

General Clark has been asked repeatedly for instances in which he spoke publicly about anti-gay harassment. In his response last November 6, 2002 to written questions, he listed a number of speeches, press conferences, and publications, but none of these examples dealt with the specific problem of anti-gay harassment.

For example, General Clark wrote that on January 14, 2000:

I published an article in the post newspaper, The Fort Campbell Courier, in which I emphasized the quality of soldiers serving at Fort Campbell, and outlines the initiatives we had undertaken to eliminate anti-gay harassment. I also reinforced our longstanding policy of treating all soldiers with dignity and respect.

In fact the article itself contains no information regarding efforts to address anti-gay harassment-not even a statement that such harassment is wrong. The article includes only two references to homosexuality.

First, General Clark writes that he has requested a review and assessment:

to determine whether any member of this command violated the Department of Defense Homosexual Conduct Policy in any interaction with PFC Barry Winchell.

Second, he writes that he has:

issued a policy on the handling of discharges for homosexual conduct to ensure these matters preserve the privacy and
dignity of individual soldiers.

There is nothing in the article about anti-gay harassment. It deals only with the "Don't Ask, Don't Tell" policy.

The article refers only to General Clark's efforts to improve barracks conditions generally and his "special emphasis" on the dignity of all soldiers. Much of the article is defensive in tone; General Clark writes that the soldiers at Fort Campbell are the "best we have ever had," that they are "intolerant of abuse of anybody for any reason," and that "leaders" at Fort Campbell "set the example through word and deed." He concludes with this sentence:

This is the climate that exists at Fort Campbell, in contrast to which you have seen on TV and in the papers during these past few months.

This tone has characterized much of General Clark's public statements during the remainder of his command at Fort Campbell. On June 9, 2000, he said at a news conference that he objects:

in the strongest terms to the way our soldiers, and the climate that embraces them, have been characterized.

At a Rotary Club meeting in March 2000-another event listed by General Clark as an example of his efforts to address anti-gay harassment-press reports, say that he:

used the Rotary speech to lambaste the Kentucky New Era and other area newspapers

for printing an earlier story on his refusal to allow Servicemembers Legal Defense Network to place an advertisement in the post newspaper.

The ad had listed an anonymous hotline number for the Army inspector general's office and the telephone number for the organization. General Clark justified his decision to reject the ad on the ground that the inspector general's office had all the access it needed to soldiers on post. Newspaper reports of General Clark's Rotary Club speech contained no mention of any statement condemning anti-gay harassment.

I have repeatedly asked the Department to investigate this issue further, to find out whether in fact General Clark made any statements specifically addressing anti-gay harassment and anti-gay violence following the Winchell murder. But the responses of the Department have been inadequate.

In response to similar questions by the parents, the inspector general stated:

During the 6 months following the murder, Major General Clark was personally involved in talking to Commanders at all levels about the anti-gay harassment.

There have been other cases where commanding officers have had to respond to tragedies, and they have done so in a variety of ways that demonstrate their leadership.

Many have drawn comparisons between General Clark's response in this case and General John Keane's response to the murder of African American civilians at Fort Bragg by racist soldiers. After these murders, General Keane held a 1-year anniversary remembrance and publicly offered his condolences. He met with the NAACP and the Anti-Defamation League to discuss the murders and consider ways to improve the racial climate.

General Keane offered very strong public statements against racism, and he implemented sensitivity training on the base. General Clark did none of this.

In all the services, discrimination against gays is codified in the ban on their service in military. In reporting anti-gay discrimination, soldiers face potential investigation, further harassment, and even discharge. This makes this population even more vulnerable to acts of harassment and violence, which makes it even more essential for leaders to act quickly and effectively in response to attacks on soldiers perceived to be gay.

In the recent controversy at the Air Force Academy, the senior leadership has been held accountable, from the Commandant of the Academy, to the Secretary of the Air Force. The Commandant of the Air Force Academy has been held responsible for the shortcomings of his subordinate commanders.

General Clark never held a single officer responsible for the command climate that led to the murder of Private Winchell. General Clark did not take responsibility for addressing the problem of anti-gay harassment at Fort Campbell after the murder. He should bear the ultimate responsibility for the climate that led to this tragedy and for not remedying that climate afterwards.

These are important questions that go to the heart of this officer's suitability for promotion to lieutenant general. The Senate deserves better information acting on such a controversial nomination.

I will just review for a few moments the difference between Fort Bragg and Fort Campbell. This is the difference, the comparison between General Keane's response to the murder of two African-American civilians and General Clark's response to the murder of PVT Barry Winchell. Fort Bragg:

In December 1995, three White Fort Bragg soldiers murdered two Black North Carolina civilians. Then Fort Bragg commanding general, LTG John Keane, currently General Keane, did the following actions after the murder:

At Fort Bragg, an on-base memorial service for "remembrance and reconciliation" was held 1 year after the murders. Lieutenant General Keane publicly communicated strong condolences.

On General Clark's actions after the murder, he declined to meet with the Winchell family, did not attend the Winchells' on-
base memorial service held shortly following the murder, and did not hold any subsequent memorial events.

LTG John Keane invited the NAACP and the ADL to discuss the murders and work with the base to improve the racial climate. The local NAACP leader, James Florence, on the NAACP's relationship with Fort Bragg, said:

Since [the murders] we have had a liaison with Fort Bragg. We can talk with them almost any time we need.

General Clark declined to meet with the gay groups, declined to meet with the legal defense funds, and declined to meet with gay veterans organizations.

There is a dramatic difference between two commanding officers and how they dealt with the hate crimes. General Keane's response to the soldiers after the murders? LTG John Keane and the Army launched an aggressive program to "weed skinheads and extremists out of the military." General Keane said:

We did not see this cancer coming. We missed the signs, symbols, and manifestations of extremism.

General Keane implemented sensitivity training at Fort Bragg regarding race relations. He said:

We've educated our people, in terms of what to look for and how to deal with it, and when we find soldiers whose attitudes and behavior are disruptive to good order and discipline of our unit, we are going to act.

General Clark publicly stated there was not a climate of homophobia on Fort Campbell, did not make any public statements or issue any written directives and never publicly communicated an appreciation of the harm caused by the antigay murder.

There are dramatic differences between how an officer dealt with this, who continues to serve with great distinction in our service, and the nominee.

Finally, here is the comparison between General Clark's response to the murder of PVT Barry Winchell and the response of the Air Force Academy leaders on sexual assaults. At the Air Force Academy during the period of 1993 through 2003, 60 cases of sexual assault were reported. Earlier this year, LTG John Dallager, the academy commandant from 2000 to 2003, lost his third star and retired as a major general because the Secretary of the Air Force determined he "did not exercise the degree of leadership in this situation that we expect of our commanders."

In September 2003, an independent panel commissioned to review the climate situation issued a report supporting the demotion of General Dallager and recommending an additional review to assess the actions taken by other leaders and holding individuals accountable.

On General Clark, in July 1999, two Fort Campbell soldiers murdered Barry Winchell because they believed him to be gay. This murder occurred on the base, in the barracks. This murder and additional problems with antigay harassment occurred during the tenure of Commander Clark and there has been no response.

My final point on the ultimate responsibility:

General Dallager is the Academy leader-[this was the finding]-bearing ultimate responsibility for the failure to adequately respond to sexual assault issues.

The Panel concurs with the decision . . . to retire General Dallager. . . .

Retire him.

On the ultimate responsibility, Army leadership doctrine states that commanders:

. . . have to answer for how their subordinates live and what they do after work.

That is in the field manual.

In a July 19, 2000 article in the New York Times, General Clark stated:

There is no, nor has there ever been during my times here, a climate of homophobia on post.

General Shinseki, on July 21, 2000, stated in a DoD News Briefing:

We take full responsibility for what happened to Private Winchell. . . .

There is General Shinseki taking responsibility. There is a general.

We take full responsibility for what happened to Private Winchell.

General Clark has failed to accept similar responsibility in this case and doesn't deserve the promotion.

On another matter, I believe there is some remaining time.

Mr. WARNER. Mr. President, I was going to reply to some of the points my colleague from Massachusetts made. As you well know, the General-

Mr. KENNEDY. May I reserve the remainder of my time? Is this on the Senator's time?

Mr. WARNER. Yes.

Mr. KENNEDY. Since I had the floor, I want this additional comment I would like to make on another subject, but I also want to respond to the questions of the Senator, so I will be glad to do whatever you would like.

Mr. WARNER. Mr. President, parliamentary question: We are on this nomination with 2 hours of debate and 1 hour each divided equally. I manage this side and Senator Kennedy manages that side. If the Senator wishes to go on to another matter, I am not sure how the Senator wishes to handle this.

Mr. KENNEDY. Mr. President, it is not difficult, I think, since I have 40 minutes. I will use my remaining time and ask that my comments be inserted into another part of the RECORD so it doesn't interfere, and then I will be glad to answer any questions of the Senator.

Mr. WARNER. Mr. President, I wonder if the Senator from Massachusetts will accommodate the Senator from Virginia. I would like to make some comments with respect to his important remarks while they are fresh in the minds of the listeners.
I think it is appropriate that I take a little time. Then, as far as I am concerned, we will both yield back our time and the Senator from Massachusetts can take some time on another matter, if he wishes. Is that helpful?

Mr. KENNEDY. How long did the Senator plan to speak?

Mr. WARNER. I will summarize my comments in about 5 or 6 minutes, at the conclusion of which we could both yield our time.

Mr. KENNEDY. Mr. President, if the Senator wants to address the Senate first, Senator Dayton was yielded 15 minutes.

Mr. WARNER. That is under the order. I didn't realize he just walked in the Chamber. I am trying to do the best I can to accommodate everybody and manage the time efficiently. But I do desire at this point in time an opportunity to reply to my colleague from Massachusetts.

Mr. KENNEDY. Mr. President, I will yield the floor for that purpose and ask unanimous consent that at the conclusion I be recognized.

BREAK IN TRANSCRIPT

Mr. KENNEDY. Mr. President, first of all, I thank the chairman of the committee, Senator Warner, for all of his courtesies during the consideration of this nominee. I mentioned during my comments that we wanted to get additional answers. He has been extremely accommodating to those of us who raised the questions, as he always is as the chairman of the committee. I thank him for his fairness and ensuring that all of those who had concerns were able to conduct our concerns in accordance with the rules. I thank him very much for all of his courtesies.

Mr. WARNER. I thank my colleague.

Mr. KENNEDY. Senator Bunning I know has a great interest in this. I thank him also.

I will address the Senate briefly on another matter which is of importance and consequence to the Senate. Then I will yield the time because I know my colleague wants to address this issue. Then we will be prepared to move to a vote.

How much time do I have remaining, Mr. President?

The PRESIDING OFFICER. The Senator has 17 minutes of the 40 minutes.

Mr. KENNEDY. I thank the Chair. If you would let me know when 15 minutes have been used, I would appreciate it.

CONFERENCE REPORT ON MEDICARE

Mr. President, in a very few days we are going to be confronted with the conference report on Medicare. There is no more important issue facing the Congress and no more important issue to senior citizens and their families. Every senior citizen, every child of senior citizens, and every American should understand that this legislation must be defeated or drastically modified.

This conference report represents a right-wing agenda to privatize Medicare and to force senior citizens into HMOs and private insurance plans. The day it is implemented, it will make millions of seniors worse off than they are today. It is a cynical attempt to use the elderly and the disabled's need for affordable prescription drugs as a Trojan horse to destroy the program on which they have relied for 40 years.

It is important to understand how we got to this point.

First of all, we all understand that Medicare is one of the most beloved programs this Nation has ever enacted. It is depended upon by seniors all over this country. It is a program which is relied on and depended upon, and it works. If there is a failure in the Medicare Program, it was not to have included a prescription drug program in the legislation we passed.

That really is not what this current conference report is all about. This conference report is going to threaten Medicare in a very significant and important way-in a way that those of us who believe in Medicare should not permit.

We started in the Senate with a bipartisan bill to expand the prescription drug coverage. We also provided additional choices to private insurance coverage for senior citizens as the President requested. The bill was not a solution for the problems senior citizens face. It only provided about $400 billion between now and 2012 toward the prescription costs that will total $1.8 trillion. But it was a start, a downpayment. It was a fair and balanced compromise that protected Medicare and protected senior citizens. That is why it passed by 76 votes. Only 11 Democrats voted no; only 10 Republicans voted no.

The House took a different course. They passed a bill that was designed to radically alter Medicare, not for the benefit of the elderly. That is why it passed by a slim partisan majority of one vote. Now the conference has been hijacked by those who want to radically alter Medicare, privatize, to voucherize it, to force seniors into HMOs and into private insurance plans.

The bill the Senate will consider shortly is not a bill to provide a prescription drug benefit. It is a bill to carry out the right wing agenda and asks the elderly to swallow unprecedented changes in Medicare in return for a limited and inadequate small prescription drug benefit.

This conference report is so ill-conceived, not only does it put the whole Medicare Program at risk, it makes 9 million seniors, almost a quarter of the Medicare population, worse off than they are today. If this bill passes, the country will want to know: Where was their Senator when the Senate debated a bill that left a quarter of all seniors with worse drug coverage than before the bill passed? Where was their Senator when the Senate debated a so-called premium support demonstration that jacked up senior citizens' premiums-senior citizens who live on a fixed income, who have a median income of about $14,000-starting us down the road to the unraveling of Medicare? Where was their Senator when the Senate debated a bill that stacked the deck against Medicare with a $12 billion slush fund for PPOs and much higher payments for HMOs than standard Medicare? Where was their Senator when the bill gave away $6 billion to health savings accounts that could jeopardize whole systems of health insurance?

On issue after issue after issue after issue, this report abandons the bipartisan Senate bill and capitulates to the partisan right-wing House bill. On some issues it is even to the right of what the House passed.

One of the most important of these destructive changes is a concept called premium support. It should really be called insurance company profit support or senior citizen coercion support. It replaces the stable, reliable, dependable premium that senior citizens pay for Medicare today with an unstable, unaffordable premium.

Under premium support, the administration's own estimates show the average Medicare premiums will initially jump 25 percent. That is the administration's estimate. Several years ago the estimate was a whopping 47 percent.

The truth is, no one really knows how high the Medicare premiums could rise. But rise they will. But we do know this. Over time, the increase will become higher and higher and higher and higher. That is just average premiums. Under premium support, how much you pay will depend on where one lives, and the amount could change dramatically from year to year. In Florida, you will pay $900 in Osceola and $2,000 if you live in Dade County. This chart demonstrates the price of premium support. This is not my estimate of what the premiums are going to be. This is the estimate of the Medicare actuaries. If you live in Dade County, you will pay $2,050; if you live in Osceola, you will pay $1,000, twice as much. Explain that to someone who has a house in Dade County when they find out their neighbor is paying half of what they are paying because of premium support. This is just the beginning.

Premium support is a vast social experiment using senior citizens as guinea pigs. If it works as the proponents intend, it will raise the premiums in Medicare dramatically and force senior citizens to join HMOs and PPOs to get prescription drugs. Why would anyone want to make the destructive changes to the Medicare Program that have served senior citizens so well for 40 years? The answer is a radical ideology. They say Medicare is bad. HMOs and PPOs are good.

There is no mystery here. We know what this is all about. The principal supporters of premium support are those people who are strongly opposed to Medicare. Many of our colleagues-our friends, but our political adversaries-want to see the Medicare system withdrawn or destroyed. What do they support? Premium support. What has been accepted in this conference? Premium support.

Some of the supporters of this program claim it's just a demonstration-nothing to get excited about. But it's not a demonstration. Under the terms of the demonstration, 7 million Americans could be forced into the program. Half the States have local areas where senior citizens could be forced to take part in this demonstration.

And that's just today. Tomorrow it will be 10 million senior citizens, or 20 million, or the whole country. People say we can change it. Change it? We will have to pass a law to change it. We will have to come to the Senate and the House of Representatives to change it.

This program will drain healthy seniors from Medicare and leave behind those who are sick and need help the most and it will send premiums for those who remain in traditional Medicare up through the roof. People who support this program make no secret what they want to do. They are on record as saying that Medicare is outdated and should be scrapped and seniors should be forced into HMOs. That is the same philosophy the President embraced when he initially proposed to give senior citizens a drug benefit only if they joined an HMO or PPO. Remember that? That is what this President wanted in March of this year. You only get the prescription drug program if you left the Medicare system and joined. We have carried that view forward with this program. I respect their opinions, but they should not use a prescription drug program as a Trojan horse to foist a bad idea on senior citizens.

The second way this program privatizes and voucherizes Medicare is by providing vast subsidies to the private sector at the expense of Medicare. Payments to the private sector will be 109 percent of the payments to Medicare for the private companies. If we want competition, can someone explain to me why we have to give 109 percent of what we are giving to Medicare to the private companies? Who is paying for those billions of dollars? It is the Medicare population. They have paid in. They are paying in. They are the ones who will pay the 109 percent.

I thought competition was supposed to be an even playing field. Not in this bill. Medicare is at one level; the HMOs are at 109 percent of Medicare. That is what they are getting. Medicare overpays by 16 percent because HMO enrollees are healthier. That is according to the CMS, the governmental institution that reviews these statistics. They find out seniors in private plans are 16 percent healthier than those in traditional Medicare. We ask for a level playing field yet they get 109 percent of what Medicare receives. And the people they are caring for are a good deal healthier than those in Medicare.

It does not stop there. The private plans have an additional $12 billion slush fund in case they are having difficulty. The 109 percent is not enough. They have a healthier population. But still, if you need some help, just come my way. We have $12 billion here with which to reach out and help you.

Medicare will pay at least 25 percent more to insurance companies for every senior citizen who joins an HMO and PPO than it would cost to care for the same person in Medicare. That is competition? That is competition, my friends? That is competition? That is what is in this conference report.

The Medicare trust fund, which today's retirees paid into and rely on, will be robbed to lavish billions of dollars on HMOs. That money, that 25 percent additional premium, ought to be invested right back in terms of the drug program for our seniors.

There is no truer indication of a nation's priorities than the investments it makes. The legislation the Senate considers today squanders that historic opportunity with reckless disregard for the Nation's health.

No provision in the bill reveals its warped priorities more clearly than the $12 billion slush fund to lure HMOs into Medicare.

Let's see if I have the reasoning behind this fund right. The supporters of this legislation are so convinced HMOs can provide health care to senior citizens more efficiently than Medicare that they have given HMOs a $12 billion payoff so they can compete. If they are so efficient, why do they need a handout?

I guess the sponsors believe the 9-percent reimbursement bonus HMOs already get is not enough, and that is on top of the 16 percent boost HMOs get from serving a healthier population. It is a good thing HMOs are so efficient or we might have to bleed Medicare completely dry to pay for them.

I wonder which HMO will be the lucky winner for the $12 billion Government handout. Will it be United Health Group, which made $1.4 billion last year? Or maybe the $12 billion lottery winner will be WellPoint, whose profits last year were $703 million, and whose CEO made $22.4 million. Perhaps the sponsors of this legislation think he needs a handout to make ends meet.

Anyone who reads the bill and comes to these provisions setting up this slush fund should be sickened at what they see. I challenge the supporters of this legislation to go to a senior center in their State, to go to the coffee shop on Main Street, to go to the churches and explain to the seniors they meet why their Medicare benefits are being stinted to give a $12 billion handout to HMOs. Explain to them why, with all the Medicare improvements that could be made with $12 billion, this bill decided the best use of that money is to inflate the profits of an HMO industry that is expected to make $6 billion this year.

This bill not only undermines Medicare, we find 6 million senior citizens and disabled people on Medicaid-the poorest of the poor-will be worse off. Their out-of-pocket payments will be raised, and their access to drugs could be curtailed.

Two to 3 million people with good employer retiree drug coverage will lose it, according to CBO estimates. This means almost a quarter of all Medicare beneficiaries will be worse off the day this bill passes.

This legislation reimposes the asset test, retreats from the positive things in the Senate bill. Not only does this agreement put all the dreadful things in that harm senior citizens, it unravels Medicare by reimposing the asset test. Three million people who were protected with the Senate bill are cut off in this program.

Finally, this conference puts in place an unrestricted program on health savings accounts, what used to be called medical savings accounts. They provide billions of new tax breaks for the healthy and the wealthy.

The PRESIDING OFFICER. The Senator has consumed all but 2 minutes.

Mr. KENNEDY. Worse, they encourage the healthy and wealthy to take high deductible policies, policies that require you to pay thousands of dollars before you get benefits. That is fine for people who can afford to put money into a tax-free savings account, but it is not good for ordinary working people.

We all know what is going on here. Not a word in this controversy is about prescription drugs for senior citizens. We have an agreement on that. In the Senate we had a solid bipartisan compromise that would have helped millions of seniors pay for the drugs they so desperately need. It was not full coverage, but it was a good start. That is not the issue here. We could send the bipartisan Senate bill to the White House this afternoon. President Bush could sign it before supper. But Republicans will not do that. They are holding prescription drug coverage hostage to their plan to destroy Medicare. They could never pass that plan on its own, so they are adding it to the prescription drug bill. Shame on them.

They say they have to destroy Medicare in order to save it. That is nonsense. There is nothing wrong with Medicare that Republicans can fix.

There is still time to do what is right. Let's stand up for senior citizens and for prescription drug coverage of Medicare. Let's stand up against this conference report and these shameful assaults on Medicare.

I will include at this point the organizations opposed to the Medicare conference report. Included are the National Committee to Preserve Social Security; the Alliance for Retired Americans; Families USA; Medicare Rights Center; Center for Medicare Advocacy; Consumers Union, National Senior Citizens Law Center; NETWORK: A Catholic Social Justice Lobby; American Public Health Association; the American Federation of State, County, and Municipal Employees; the American Federation of Teachers; NEA; Service Employees International Union; AFL-CIO; Older Women's League-there are close to 40 groups here. I ask unanimous consent that list be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

ORGANIZATIONS OPPOSED TO MEDICARE CONFERENCE REPORT

National committee to Preserve Social Security and Medicare
Alliance for Retired Americans
Families USA
US Action
Medicare Rights Center
Center for Medicare Advocacy
Consumers Union
National Health Law Program
National Senior Citizens Law Center
New York State Alliance for Retired Americans
Seniors Citizens Law, Albuquerque, NM
Legal Assistance to the Elderly, San Francisco, CA
Medicare Advocacy Project of Greater Boston Legal Services
Connecticut Association of Area Agencies on Aging
PRO Seniors Health Care Consumer Rights Project
NETWORK: A Catholic Social Justice Lobby
American Public Health Association
Arizona Center for Disability Law
Center for Health Care Rights, Los Angeles, CA
Florida Community Health Action Information Network
Florida Legal Services
Human Services Coalition of Miami Dade County
United Food and Commercial Workers
United Auto Workers
American Federation of State, County, and Municipal Employees
American Federation of Teachers
International Association of Fire Fighters
National Education Association
Service Employees International Union
AFL-CIO
International Association of Machinists and Aerospace Workers
International Longshore and Warehouse Union
Transport Workers Union of America
United Steelworkers of America
National Association of Area Agencies on Aging and the Center for Aging Policy
Older Women's League
National Taxpayers Union
United Food and Commercial Workers International Union.