February 10, 2006 CONGRESSIONAL RECORD — SENATE S1065
growing, it is significant, and it is dan- Yahoo!, an American company. The week, 12 to 14 hours a day, and then
gerous. Chinese Government traced the e-mails send the Huffy bicycles to America to
By the way, most of this Congress sent by Mr. Shi Tao—a journalist— be sold in Sears, Wal-Mart, and Kmart
and the White House will simply sleep they traced those e-mails with the co- and believe that is good for our coun-
through all of this. They are not awake operation of Yahoo! They asked Yahoo! try. It is not.
for these issues; no one thinks this is a to provide the information. Yahoo! did. It might be good in the short run for
problem; no one cares much about it. And now this fellow is in jail for 10 some consumers in this country, but,
So what if it is $2 billion a day more years for passing on an e-mail by the after all, America is not going to be
than we import than export? Who Chinese Government that said they measured in the long term by what it
cares? Another 30,000, million or 2 mil- worried about the dangers of ‘‘social consumes. It will be measured by what
lion jobs shipped overseas. Who cares? destabilization’’ from the return of dis- it produces. Economic health is about
It is not anybody at the White House sidents on the 15th anniversary of the what you produce, not what you con-
who loses their job, so we do not hear Tiananmen Square massacre. sume.
about this. But for a lot of the Amer- Reporters Without Borders, an orga- I believe this morning’s announce-
ican families, it is a very serious prob- nization that we hear about these days, ment will produce one more large yawn
lem. has complained that Yahoo! has dis- at the White House, one more large
We believe a significant part of the regarded ethical concerns in an effort yawn in the Congress. I do not know
problem rests with China. Almost a to maintain a good business relation- exactly what it is that is going to pro-
third of that trade deficit is with ship with the Chinese Government. vide a tipping point that will finally
China. China’s markets are still too There are other cases that are simi- convince policymakers we are headed
closed to our products. They say they lar to this. toward very serious trouble. It is
are open, but they are not. China is Last month, Google, an American unsustainable to have a fiscal policy
awash in counterfeit goods and piracy. company—a great American success that increases the debt in this year
Two-thirds of the goods that come into story, I might add—agreed to censor its from our budget policies of $704 billion
our country that are counterfeit goods search engine results in China, agree- and a trade policy that increases the
come from the country of China. And ing to free-speech restrictions in ex- trade debt in this year of $720 billion.
China does nothing about that. change for better access to the fast- That is $1.4 trillion in combined debt.
China, as we know, is an attractive growing Internet market in China. That will choke this country.
place for American companies to move This shows you the power of money We know better than that. We know
their workers. I will not do it today, and profits over ethics and morality what to do. We know better than to sit
but I have given plenty of examples— when it comes to doing these kinds of around on our hands and gnash our
Huffy bicycles, Radio Flyer, Little Red things. teeth and wipe our brow. We need to
Wagons, Etch-a-Sketch—I could go on Google, last month, rolled out a new get busy and solve these problems. But
for a long period of time. Those jobs go version of its search engine that is first they have to be recognized. There
to China because you can hire people easier, specifically for use in China. is this blissful ignorance these days
for 30 cents an hour in China. You can What has happened is, previously Gov- about a fiscal policy that is wildly off-
work them for 7 days a week and you ernment barriers that were set up to track and a trade policy that has not
do not have to give them a day off for suppress information had prevented the worked for some years, that is shipping
months. And the Chinese Government Chinese users from using Google at all. America’s jobs overseas and weakening
looks the other way. You can do that So in order to obtain a Chinese license, this country.
in China. You cannot do that here. Google has agreed to omit Web content This Congress and this President
So that is why these companies are that the country’s Government offi- have a responsibility to address this
moving their jobs to China. American cials find objectionable. That includes head on. My colleague, LINDSEY
companies move their jobs to China. information about Taiwan’s independ- GRAHAM from South Carolina, and I
They produce the product, ship it to ence and the Tiananmen Square mas- joined on the legislation I described
the United States to sell it in the U.S. sacre, and so on. yesterday, and I hope my colleagues
marketplace, and then they run their It is particularly concerning, I think will support it.
income through the Cayman Islands, in to me and to a lot of others, that we Mr. President, I yield the floor and
a tax-haven country, so they do not have American companies helping the suggest the absence of a quorum.
have to pay taxes or at least avoid as Chinese authorities track down a jour- The PRESIDING OFFICER. The
much as they can of their tax burden. nalist who did nothing wrong, was en- clerk will call the roll.
It is a very serious problem. gaged in some free speech, and now sits The assistant legislative clerk pro-
In discussing this issue of normal in prison for 10 years. ceeded to call the roll.
trade relations, we have to remember But I digress. My main point is that Mr. SESSIONS. Mr. President, I ask
who we are dealing with. Yesterday, we have a pretty serious trade problem. unanimous consent that the order for
my colleague from South Carolina, It is a trade problem that is signifi- the quorum call be rescinded.
LINDSEY GRAHAM—described the case of cant in a lot of ways, and is by no The PRESIDING OFFICER. Without
a man named Shi Tao. Not many means limited to China. We run very objection, it is so ordered.
Americans, perhaps, know Shi Tao. But large trade deficits with everyone with f
Shi Tao was sentenced, in April of last whom we have had a trade agreement.
year, to 10 years in prison. He happens We run big trade deficits with Mexico. THE FAIR ACT
to be a journalist. He was ‘‘divulging We run big trade deficits with Canada, Mr. SESSIONS. Mr. President, I want
state secrets,’’ which is the reason he with Europe, with Japan, and yes, with to share some thoughts on the asbestos
was sent to prison in China. He is a China. A part of it, of course, is the litigation legislation that is before us.
former staffer at the Contemporary basic incompetence of our trade nego- We have a point of order raised. I be-
Business News agency. He was con- tiators. And the other part is a trade lieve that point of order is a technical
victed of sending to foreign Web sites strategy that has been embraced by point of order. I believe it is not a
the text of a message from authorities this and previous administrations and point of order that has the potential to
in China warning journalists of the this Congress that chants about ‘‘free avoid a large amount of Federal ex-
dangers of ‘‘social destabilization’’ trade’’—not caring, of course, whether penditures. In fact, as we all know, the
from the return of certain dissidents on trade is fair—and has allowed Amer- asbestos bill is funded by those compa-
the 15th anniversary of the Tiananmen ican corporations to decide to struc- nies and defendants who are being sued
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Square massacre. ture trade in its own image. And that as an alternative to paying out money
So he sent this to some foreign sites, image is to decide it wants to produce from aberrational, disjointed, incon-
and, as a result, he was charged with where it is cheap; that is, take Huffy sistent lawsuit verdicts, with 60 per-
‘‘divulging state secrets’’ and sent to bicycles away from Ohio and fire 900 cent of that money going to lawyers
prison. Much of the evidence against workers. Move it to China, pay them 33 both for the defendant companies and
him came from a company called cents an hour, work them 7 days a for the plaintiffs. They propose to pay
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S1066 CONGRESSIONAL RECORD — SENATE February 10, 2006
this money into a fund, allowing it to Secondly, we have a large number of America. Some dockets have tens of
be distributed, with 5 percent or less companies—77—that have gone into thousands of lawsuits and only a hand-
attorney’s fees cost, directly to those bankruptcy, and many are in bank- ful of judges. These cases are not going
who are determined to be sick from as- ruptcy now. If we allow this uncon- to trial immediately. People are not
bestos. trolled rush to take every dime out of getting paid promptly. It is an embar-
Surely, we can make this happen. those companies as quickly as possible, rassment to all of us. Some people are
Surely, we cannot allow the spasm that as the lawyers for the individuals who getting paid aberrationally and with-
now exists, that is an embarrassment are sick are trying to do, those compa- out consistency or fairness. Some are
to the legal system, embarrassment to nies, too, will go out of existence. getting a lot, some are getting nothing.
the profession of law, and an embar- There are other reasons certain peo- Some people are getting paid little
rassment to Congress for failing to fix ple are not going to be able to recover checks over a period of 10 years, and
it, when the Supreme Court and other who are sick from asbestos. This bill there from different companies that
judges have, on numerous occasions, would give everybody a chance to have settle up. That is not a way to handle
called on us to fix it. That is what I a fair recovery, so I believe it has a big a mass tort, where a lot of people are
would point out. humanitarian benefit. ill, in which the defendant companies
I was hoping that this afternoon we Also, if we leave these cases in the are prepared to pay.
would be able to discuss votes through- litigation system, a jury might become All of that is not working right. We
out the day, amendments. Senator inflamed or become sympathetic for a ought to take those companies’
CORNYN has offered an amendment, and victim and may render a $100 million money—$140 billion of it—and set it
we have had votes. There are others verdict. Another jury may render a aside in a fund and create a fund from
out there. $100,000 verdict. Another jury may which we can pay people whenever they
I will point out amendments that I render nothing. So we have really aber- are sick. That can be done, and that
have offered and plan to offer which rational allocations of scarce resources can make the system better.
deal with the subrogation issue, par- to people who are sick. We need to have It was interesting to note that we
ticularly involving longshore shipping a comprehensive system by which don’t often see a lot of agreement be-
companies, where they are self-insured, those who are sick are compensated tween the Washington Post and the
and those companies are entitled to fairly, promptly, and without attor- Washington Times. But the Wash-
subrogate to some of this money that ney’s fees. ington Post had an editorial today in
would come out, under normal cir- There is no doubt, as we know, that which they say:
cumstances, to money that is paid to the attorney’s fees, according to the Some amendments may be reasonable at
the margin, but the bill’s central idea to re-
the victims. And for a lot of reasons, I Rand Corporation, total 58 percent of place litigation with a $140 billion compensa-
think they are in a specific special the amount of money paid out by the tion fund, to be financed by defendant com-
place that needs some relief. The silica defendants. So defendant companies panies and their insurers, must be preserved.
claims, we need to consider that more hire their own lawyers, and they are They go on to say:
carefully. I have proposed legislation being sued for huge amounts of money, The fact that the bill is being attacked
that if this bill were to fail, the 5-per- and they hire the best lawyers they can from both directions suggests that its au-
cent cap on attorney’s fees would get. They defend those cases. One study thors, Senator Arlen Specter, Republican of
apply, or the court would apply stand- shows they get a little more than Pennsylvania, and Senator Patrick Leahy,
ards of comparable attorney’s fees in- plaintiffs’ attorneys. Then the plain- Democrat of Vermont, have balanced
stead of allowing such a large chunk of tiffs’ attorneys sue, and they take competing interests in a reasonable
money to be taken from the victims their fee out of the recovery. If you manner.
and their recovery to pay attorneys, as look at it in an economic sense, all of I am not sure that is totally correct,
is the case today. the money paid out by the defendant but there is some truth to that. It says:
We have some medical criteria in the companies should go to the victims, as But the truth is that the bill’s main oppo-
bill; that is, if you are going to be sick, much as possible. They should not have nents are the trial lawyers who profit might-
how do you know it was caused by as- to pay a chunk to their own lawyers or ily from asbestos lawsuits and who con-
bestos; what do you have to show be- a chunk of it to the plaintiffs’ lawyers. stitute a powerful lobby in their own right.
fore you can make a claim so that we We have 60 percent at stake. This bill Mr. Specter and Mr. Leahy are, in fact,
model resisters of special interests who have
can pay those who are sick but not pay caps the attorney’s fees at 5 percent.
spent more than two years crafting legisla-
those who are not sick; or if those who So we are talking about 53, 55 percent tion that serves the public interest. For Mr.
are sick have a sickness unconnected of the money being paid out by the de- Reid to demean this effort in order to fire off
to asbestos, they should not recover fendant companies, and it is not get- campaign sound bites is reprehensible.
from the asbestos fund; otherwise, we ting to the victims. So we have a lot of That is the Washington Post. I cer-
would have a fund that can’t survive. ability here to do the right thing. We tainly agree with that. The special in-
That needs to be tightened. can get more money promptly to vic- terests here are those who have lost
Those are some of the amendments I tims. We can get victims compensation sight of the victims, who have lost
would like to offer. We will get on that who otherwise would not get it because sight of trying to create a justice sys-
presumably next week after we vote on the companies they might sue are no tem that works; the special interest of
this point of order. longer in existence or there are other those people engaged in the system
I urge my colleagues not to allow legal impediments to it, and we can who are enriching themselves in it
this budget point of order to derail the treat people fairly, and people simi- every single day and do not desire to
opportunity we have today—it may be larly situated would get similar see it end.
the last, best opportunity—to fix an as- amounts. But I will note that Dicky Scruggs,
bestos system that is out of control. It For example, mesothelioma, the one of America’s most prominent, per-
is just not working right. Under the deadly cancer that has been connected haps the most accomplished trial
present system, we are going to have— to asbestos exposure, would result in a plaintiff lawyer in America, who lives
and we have today—thousands of peo- prompt payment of $1.1 million to any- in the Mississippi gulf coast area,
ple who have been injured by asbestos. body who has contracted that disease where asbestos was such a bad problem
Many of them are veterans—thousands due to asbestos exposure. If the doctor at the shipyards, commenced this liti-
of people who are injured, some se- diagnoses that and it is not a diagnosis gation many years ago—maybe 30
verely, some dying as a result of their of any real dispute, you simply go in to years ago. He just appeared with Chair-
exposure, who will not be able to re- the claim administration, make your man SPECTER and said that enough is
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cover any money because the company claim, and 50 percent of that $1.1 mil- enough. We don’t need this in the
against which they have a lawsuit, the lion is to be paid within 30 days and the courts anymore. Not enough money is
company which was responsible for ex- additional 50 percent paid in 6 months. getting to the victims. The system is
posing them to asbestos, no longer ex- That kind of process is quite dif- not working. We need change. He sup-
ists. They are bankrupt, and there is no ferent from what is happening today. ports this bill. He believes there is suf-
one to sue. There are 300,000 lawsuits pending in ficient money in it to take care of
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February 10, 2006 CONGRESSIONAL RECORD — SENATE S1067
those who are sick, and he supports Why can we not do this? That is why vote. To keep the bill on track, 60 Sen-
this bill that has my amendment in it independent groups such as the liberal ators will have to vote to waive this
that limits lawyer’s fees to 5 percent, Washington Post and the conservative point of order. It would be a tragedy,
unless it goes on appeal. Washington Times have both endorsed indeed. When we see Senator LEAHY,
If the lawyer comes in with a client the bill. I am hopeful that we will, over Senator SPECTER, and Senator SES-
with mesothelioma, gets a doctor’s re- the weekend, take a good look at the SIONS supporting a piece of legislation,
port, spends a few hours on that, talks budget point of order that has been when we see the Washington Times and
with the client, files a claim with the raised here. When my colleagues look the Washington Post supporting a
board and they give him a date, and at it, I hope they will conclude that piece of legislation, when we see the
they walk down there and have the this is not the kind of budget point of veterans groups incredibly anxious to
doctor’s report and the physician says order which was contemplated when see this legislation passed, and when
this person has mesothelioma, he is en- this rule was passed. This budget point we see overwhelmingly the businesses
titled to $1.1 million, and a 5-percent of order arose from Chairman GREGG’s that are involved in this process and
fee is $55,000. That ought to be enough. brilliant understanding that many of are paying out this money that want to
Yet we have people saying that we can- our entitlement programs are drafted see it passed, why can’t we get it
not have these fees. We cannot cut in such a way that when they score passed?
these fees. This is too much. that bill, they score it over a maximum Let’s not allow it to fall on a super-
We are creating a trust fund. If you of 10 years. People write the bill so it majority vote of 60 instead of the nor-
file a claim for a person under the So- will cost more the next 10 years than it mal 50 required to pass legislation. I
cial Security Act, the Federal law lim- does the first 10 years. hope everyone will study it, and when
its your attorney’s fees. If you make If the Government is starting an en- they do, I think they will feel com-
claims in workman’s compensation titlement program, you can object if fortable in voting to waive the budget
cases in most States, attorney’s fees you can show it goes up too much in point of order.
are limited. It is perfectly proper to do the outyears, which I think is a good
so. I believe 5 percent is adequate. reform. But this bill is not Federal tax-
payers’ money. This bill represents NSA WIRETAPPING
The Washington Times said this. It is
a conservative newspaper here: money that will be paid into the fund Mr. SESSIONS. Mr. President, I wish
This bill should pass; Senator Arlen Spec-
by the people who are paying out to share some thoughts about NSA, the
ter, Pennsylvania Republican, and Patrick money now to victims in a willy-nilly, National Security Agency, and the
Leahy, Vermont Democrat, are due acco- random fashion that is unprincipled wiretaps that have taken place, the
lades for getting this far on a longstanding and unjustified. They will put the brouhaha that has occurred in the
problem that has befuddled everyone for dec- money in voluntarily in exchange for press and in Congress, and why I be-
ades. Many asbestos victims have suffered or not having to hire a bunch of lawyers lieve this program is necessary, why I
died of mesothelioma or other illnesses while to defend themselves in courts in every believe it is legal.
the courts and Washington struggle with a jurisdiction, virtually, in this country. I know the Presiding Officer has
resolution. The victims and their families That is what they are trying to do.
deserve to be made whole. been, perhaps, the most eloquent
The legislation does not impose any spokesman in the Senate on this sub-
I believe those were strong and ap- cost on the American taxpayers, and if ject. He believes this is legal and prop-
propriate words. the fund was to collapse and not have er and has articulated those views very
Then they comment on Senator REID, enough money in it, then the taxpayers ably.
the Democratic leader. They say: do not pick up the tab. They do not I shared some thoughts the other day
Mr. Reid said the bill benefited ‘‘a few pick up the tab. The cases go back in about why it is so important, why
large companies’’ while supposedly leaving the courts, and any companies that there is much political goings-on here
the little guy in the lurch. Really? Why, still exist would have to pay, just like
then, do insurance giants AllState and AIG instead of substance, and why we need
they would before this reform passed. to continue with the program. I would
oppose the bill? Why are many plaintiffs anx- I think this budget point of order, for
ious to see it pass? In reality, the big guys like to share a few more thoughts
speak through Mr. Reid—in this case, un-
reasons I am not clear about, lies ap- today about the care the administra-
scrupulous lawyers who stand to profit parently in a technicality. It does not tion took to be respectful of Congress,
greatly from keeping asbestos cases in the lie in the classical understanding of its to not overreach their legal authority,
courts. purpose to protect the Federal tax- and how they worked to keep Congress
That is who the big guys are who are payers because this is not taxpayers’ briefed on what the program was
making the big money. They say: money; it is the defendant companies’
. . . the FAIR Act offers what nothing else
money. The administration officials briefed
previously has: A light at the end of the tun-
When we vote on this budget point of
congressional leaders more than a
nel for claimants. order early next week—I am a member
dozen times on the terrorist surveil-
of the Budget Committee. I know Sen-
I think one estimate I have seen has lance program. More than a dozen
ator CORNYN is and others are who care
been that $70 billion has been paid out times they went before the proper sen-
about the budget. We meet every day
to date to victims of asbestos. Some- ior officials of the U.S. Congress—in
and we take heat every day for trying
body said the figure is more than that. to constrain the growth of spending the House and Senate, both Republican
Think about this: think about the fees. and entitlements in this country in a and Democrat—to advise them about
Let’s say 25 percent of that is a legal rational way to meet the needs of our what this program was about and what
fee. Some make more than that. Some people. But to stop the abusive growth they were doing. That includes the ma-
of the numbers show 25 percent as an in these programs, we support a bal- jority leader of the Senate, who is Re-
average total when all is said and done. anced budget. We support containing publican, the Democratic leader, Mr.
But most fees are normally one-third. spending. REID, and before him, Mr. Daschle. In
What is 25 percent of $70 billion? What, Many of the people who are sup- the House, it includes the Speaker of
$18 billion? That is going to lawyers. porting this objection, however, have the House and the Democratic leader.
These are not thousands and thousands not demonstrated, in my view, any im- It includes the chairman of the House
of lawyers. Really, I would say there portant interest over the years in con- Intelligence Committee and the rank-
are probably no more than a few hun- taining spending. A lot of them are big ing Democrat on the House Intel-
dred plaintiff lawyers who are handling spenders. ligence Committee; the Senate Intel-
well over 50 percent of the cases. So it That objection, while technically is ligence Committee chairman and the
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is an incredible amount of money. We legitimate, does not in any substantive ranking Democrat on the Senate Intel-
could create a system where you can way have an impact on the debt of the ligence Committee. Those are what
walk in with a medical report, basi- United States in the next 30 years as they call the big 8—or The 8. The Intel-
cally, and have your compensation de- this act would be enforced. ligence Committees deal with these
livered to you promptly, without all I urge my colleagues to look into this highly classified programs involving
these fees being taken from it. point. Do not allow this supermajority national security.
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