The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS” mentioning the U.S. Dept of Agriculture was published in the Senate section on pages S5723-S5725 on Sept. 14, 2016.
The publication is reproduced in full below:
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. GRASSLEY:
S. 3323. A bill to improve the Foreign Sovereign Immunities Act of 1976, and for other purposes; to the Committee on the Judiciary.
Mr. GRASSLEY. Mr. President, I have mentioned before that I have been paying attention to foreign state-owned companies' growing investments in American companies and commercial markets. I would like to spend a few minutes discussing that issue today.
It is becoming increasingly clear that foreign state-owned companies are highly involved in international commerce and competing with companies that are privately owned by shareholders, not governments. This trend is part and parcel of globalization. While there are some obvious benefits to globalization, we also need to be aware of the challenges it may bring with it, and I think this is one of those.
To give one example, I have seen this trend at work in the agricultural sector. ChemChina, a Chinese state-owned company, is currently working on a deal to buy the Swiss-based seed company, Syngenta. About a third of Syngenta's revenue comes from North America--meaning the company is heavily involved with American farmers, including Iowans--and that's why I'm interested in the transaction.
I have already been considering the approval aspect of this proposed merger. Senator Stabenow and I asked the Committee on Foreign Investment in the United States to review thoroughly the proposed Syngenta acquisition with the Department of Agriculture's help. We raised the issue because, as I have said before, protecting the safety and integrity of our food system is a national security imperative.
Now there is another aspect of this issue I would like to focus on today. Consider this the flip-side of the approval question. As their involvement in international commerce grows, how can we ensure that foreign state-owned companies are held to the same standards and requirements as their non-state-owned counterparts.
First consider two age-old principles of international law. One is that American courts don't exercise jurisdiction over foreign governments as a matter of comity and respect for equally independent sovereigns. This is called ``foreign sovereign immunity.'' The second is that when foreign governments do in fact enter into commerce and behave like market participants--conducting a state-owned business, for example--they are not entitled to foreign sovereign immunity because they are no longer acting as a sovereign, but rather as a business. In that case they should be treated just like any other market participant. This is called the ``commercial activity exception'' to the principle of foreign sovereign immunity. Congress codified both of these age-old principles in the Foreign Sovereign Immunities Act of 1976.
These principles are well and good, but I am concerned that, in some cases, they may not have their intended effects in today's global marketplace.
Some foreign state-owned companies have recently used the defense of foreign sovereign immunity--the principle that a foreign government can't be sued in American courts--as a litigation tactic to avoid claims by American consumers and companies that non-state-owned foreign companies would have to answer. In some cases, foreign state-owned corporate parent companies have succeeded in escaping Americans' claims. They have done this by arguing that the entity conducted commercial activities only through a particular subsidiary--not a parent company often closer to the foreign sovereign. Unless a plaintiff--which may be an American company or consumer--is able to show complete control of the subsidiary by the parent company, the parent company is able to get out of court before the plaintiffs can even try to make their case.
This results in two problems. First, there's an unequal playing field where state-owned foreign companies benefit from a defense not available to non-state-owned companies. Second, there is an uphill battle for American companies and consumers seeking to sue state-owned entities as opposed to non-state-owned entities. When a foreign state-
owned entity raises the defense of foreign sovereign immunity, American companies and consumers don't even get the chance to prove their case.
Consider the example I talked about a few months ago. American plaintiffs brought claims against Chinese manufacturers of much of the drywall used to rebuild the Gulf Coast after Hurricanes Katrina and Rita. The drywall in question was manufactured by two Chinese companies--one owned by a German parent and one owned by a Chinese state-owned parent company.
The court considering these plaintiffs' claims had this to say: ``In stark contrast to the straight forwardness with which the . . . litigation proceeded against the [German] defendants, the litigation against the Chinese entities has taken a different course.'' The German, non-state-owned parent company appeared in court and participated in a bellwether trial where plaintiffs were allowed to try to make out their cases.
The manufacturer with a Chinese state-owned parent ``failed timely to answer or otherwise enter an appearance'' in court--and didn't do so for nearly two years. In fact, it waited until the court had already entered a judgment against it. Only then did the Chinese state-owned company finally appear in court. When it did, it argued, that it was immune from suit in the United States because it was a state-owned company. After approximately 6 years of litigation, it ultimately succeeded in its request for dismissal. In contrast to the German parent company, the plaintiffs didn't have a chance to try to prove up their case against the Chinese parent company merely because it happened to be owned by a foreign government. I think that is a problem.
To address these issues I am proposing a modest fix to the Foreign Sovereign Immunities Act. This change would extend the jurisdiction of United States courts to state-owned corporate affiliates of foreign state-owned companies insofar as their commercial activities are concerned. It wouldn't create any additional substantive causes of action against these foreign state-owned companies. Instead, it would mean only that a foreign state-owned company would have to respond to the claims brought by American companies and consumers, just like any other foreign company that isn't owned by a government.
The fix has two main results--correcting the problems I just mentioned. First, it levels the playing field between foreign state-
owned and foreign private companies by making both subject to suit in the United States on the same footing, as the ``commercial activity exception'' originally contemplated. Second, it brings clarity to the sometimes opaque structure of foreign state-owned enterprises and provides American companies and consumers the chance to prove their case against these companies just as against private companies.
In an age when sovereign owned entities, with increasingly complex structures, are interacting with American companies and consumers more than ever it is appropriate to re-examine the ``commercial activity'' exception and to update it. We have to make sure it is working as it was designed and historically understood.
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By Mr. ALEXANDER (for himself, Ms. Ayotte, Mr. Barrasso, Mr.
Cochran, Mr. Johnson, Mr. Kirk, Mr. Perdue, and Mr. Portman):
S. 3326. A bill to give States the authority to provide temporary access to affordable private health insurance options outside of Obamacare exchanges; read the first time.
Mr. ALEXANDER. Mr. President, I am here to talk about another issue that is also a real emergency. Later today, I will introduce, with other Senators, the State Flexibility to Provide Affordable Health Options Act. This bill addresses a real emergency. It provides immediate relief to families who use their ObamaCare subsidies to buy insurance on failing ObamaCare exchanges for the 2017 health care plan year.
Here is an example. If you are a single mother in Memphis who gets an ObamaCare subsidy to buy health insurance for your family, you might have read that Tennessee's insurance commissioner says your rates may be more than 60 percent higher for the same health insurance policy for next year, 2017.
You may be eligible for an ObamaCare subsidy. This could soften the blow of some premium increases, but there is also a good chance the insurance you currently have may be gone by this November, 2 months from now, when you sign up for your insurance for next year, 2017. You will have to figure out how to stretch your subsidy dollars as your options shrink. Maybe the new plan options don't include your doctor in their network so you will have to pay higher copays for your office visits. Maybe you need to buy a new plan altogether with new doctors. You can spend the new year trying to move all your records from your child's old doctor to your child's new doctor, if you can get an appointment.
This legislation will do two things for you and the nearly 11 million Americans who buy health insurance for themselves or their families on ObamaCare exchanges. No. 1, it gives States with a failing ObamaCare exchange the authority to allow residents to use their ObamaCare subsidy to purchase any health care plan of their choice, even those off the exchange for the 2017 plan year.
This opportunity would be available in every single State. It will give Governors the opportunity to step in if he or she determines this emergency relief is ``necessary to ensure that residents of the state have access to an adequate number of affordable private health insurance options in the individual or small group markets.''
This bill means, the mother in Memphis can shop around for a health insurance policy that meets her family's needs but is unavailable on the exchange in Tennessee. When she goes to pay for it, she can use the ObamaCare subsidy currently limited to exchange plans.
The second thing this bill does is this. If a State chooses to use this authority to allow residents to use subsidies outside the exchange, the legislation will waive the ObamaCare law's requirement that you must buy a specific health care plan or pay a fine of as much as $2,000 for a family of four next year. In other words, if that mother cannot find affordable insurance options that meet her family's needs, meaning a plan that covers the right doctors and services on the ObamaCare exchange, then she doesn't have to waste her money or the taxpayer's money on a plan she does not want or does not need. She will not be threatened with paying a fine if she doesn't. The individual mandate and its penalty will be lifted.
Without this emergency bill, she is locked into a failing exchange. The only place her subsidy works is the exchange, and in the words of Tennessee's insurance commissioner last week, Tennessee's exchange is
``very near collapse.''
ObamaCare is unraveling at an alarming rate. In November, Americans in nearly one-third of the Nation's counties will have only one insurance carrier to choose from, when they have to buy health insurance on their regional ObamaCare exchange. Most Americans on the exchanges will face higher rates.
In my home State of Tennessee, residents will see their rates increase between 44 and 62 percent, on the average, next year. So even for a healthy, 40-year-old, nonsmoking Tennessean with the lowest price silver plan on Tennessee's exchange, premiums increased last year to
$262 a month. Next year it is $333 a month.
Tennessee had to take extreme measures to allow these increases because insurance companies told the State: If you don't let us file for rate increases, we will have to leave. If that happened, Tennesseans might have had only one insurer to choose from. That is what is happening in States all over the country as ObamaCare plans and rates get locked in for next year.
According to the consulting firm Avalere Health, Americans buying insurance in one-third of ObamaCare exchange regions next year may have only one insurer to choose from. People buying on an ObamaCare exchange will have only one insurance carrier to choose from in the following States: Alaska, Alabama, Oklahoma, South Carolina, and Wyoming, according to the Kaiser Family Foundation.
The same Kaiser Family Foundation report found that in a growing number of States, States that have multiple insurers offering plans statewide will have only one insurer selling policies in a majority of counties. Tennessee is one of those States.
Last year, Tennesseans could choose ObamaCare plans between at least 2 insurers in all 95 counties in our State. For next year, 2017, it is estimated that 60 percent of Tennessee's counties will have only one insurer offering ObamaCare plans. North Carolina is experiencing the same thing. Next year, 90 percent of the counties in North Carolina are estimated to have only one insurer offering ObamaCare plans, up from 23 percent last year.
There is a similar picture in West Virginia, Utah, South Carolina, Nevada, Arizona, Mississippi, Missouri, and Florida. Just last week, the Concord Monitor in New Hampshire published an article with this headline: ``Maine health insurance cooperative leaves N.H. market, reeling from losses.'' That is their headline.
The story goes on to describe how this health insurance plan will no longer be operating in New Hampshire after experiencing over $10 million in losses in the ObamaCare exchange over just the first two quarters of this year alone.
That move leaves more than 11,000 individuals in the Granite State looking for new health care plans.
The bill I am introducing will not fix ObamaCare for Americans. It is not a permanent solution, but it does give the mom in Memphis a real solution for next year, for 2017. It lets her know we are on her side and we have not forgotten her and her family as we seek to repeal ObamaCare and replace it with step-by-step reforms that transform the health care delivery system by putting patients in charge, giving them more choices, and reducing the cost of health care so more people can afford it, which is precisely the alternative Republicans offered in 2008, 2009, and 2010, when ObamaCare was debated and voted in.
It also highlights the big structural change we will need to make in the near future to avoid a near collapse of our Nation's health insurance market.
Americans get their insurance, our insurance, through many different places, some from Medicare, some from Medicaid, and most from their employers, but nearly 11 million buy their insurance through the exchanges.
If the ObamaCare policyholder isn't bearing the cost of the higher premiums I just described, then you--the taxpayer--will because a large portion of ObamaCare premiums are subsidized with tax dollars. There is no excuse for having a failing insurance market where taxpayers are paying most of the bill and costs are so out of control that we may soon have a situation where no insurance company is willing to sell insurance on an ObamaCare exchange.
Where does that leave these 11 million Americans? ObamaCare and its one-size-fits all takeover of health care robs States of their abilities to provide access to affordable health care plans in a way that makes sense for their State populations and economies.
ObamaCare was supposed to create a marketplace where people would have more access to affordable, private health insurance plans. Robust, private, market competition was supposed to spur innovative insurance design and help drive down costs. But just the opposite has happened, as those stuck in ObamaCare are facing fewer and more expensive options.
Long term, Americans should have the freedom to make their own choices about their families' health care needs.
But short-term, in November, nearly 11 million Americans need freedom from the ObamaCare exchanges. And this legislation that I will introduce later today with other Senators will provide that immediately.
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