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CONGRESSIONAL RECORD—SENATE S4127

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CONGRESSIONAL RECORD—SENATE S4127 Powered By Docstoc
					      April 20, 2004                                    CONGRESSIONAL RECORD — SENATE                                                                S4127
      Good public policy demands expedited                    says this requires a legislative solu-                   Mr. LEAHY. Mr. President, I ask
      termination of the broken tort system                   tion. This is the only legislative solu-               unanimous consent that I be recog-
      and preservation of funds so that pay-                  tion that is available, and if we want to              nized at 2:15 p.m. to speak on the asbes-
      ments can go to the most worthy                         get something done, we are going to                    tos legislation.
      claimants, as defined by the consensus                  have to work on this bill.                               The PRESIDING OFFICER. Without
      medical criteria.                                          Personally, rather than have a fili-                objection, it is so ordered.
        As a final note, proposals for re-                    buster on the motion to proceed, I                       Mr. LEAHY. I thank the Chair.
      search moneys for mesothelioma were                     think we should go to the bill. I person-                              f
      circulated in committee. Mesothelioma                   ally would be willing to grant more
      victims generally live only a year or so                time if we would have a definite date.                                  RECESS
      after diagnosis of this horrible disease.               I cannot speak for the majority leader,                  The PRESIDING OFFICER. Under
      More research is needed on mesothe-                     naturally, but I would personally be                   the previous order, the hour of 12:30
      lioma to find better treatments and                     willing to grant more time, as Senator                 p.m. having arrived, the Senate stands
      even a cure, and I am pleased this bill                 SPECTER was, to have further negotia-                  in recess until the hour of 2:15 p.m.
      addresses this problem.                                 tions outside the context of debate on                   Thereupon, the Senate, at 12:28 p.m.,
        Our bill now provides up to $50 mil-                  the bill where usually those negotia-                  recessed until 2:15 p.m. and reassem-
      lion—and I am willing to consider in-                   tions help bring about a bill. But I                   bled when called to order by the Pre-
      creasing that amount—in grants to                       would be willing to go another 2 weeks                 siding Officer (Mr. VOINOVICH).
      mesothelioma research and treatment                     to a month in intensive 9 to 6 negotia-                  The PRESIDING OFFICER. The Sen-
      centers. In addition, these centers                     tions every day, which we have been                    ator from Vermont.
      must be associated with the Depart-                     doing now for 8 months, if we had a                                    f
      ment of Veterans Affairs medical cen-                   definite time to bring up amendments
                                                              and a definite time for final passage of               FAIRNESS IN ASBESTOS INJURY
      ters to provide research benefits and
                                                              the bill or a final vote on the bill.                    RESOLUTION ACT OF 2004—MO-
      care to veterans who have suffered ex-
                                                              Maybe we will vote it down in the end.                   TION TO PROCEED—Continued
      cessively from mesothelioma. These,
      along with the asbestos ban, are impor-                 I doubt it. In fact, I am sure we will                   Mr. LEAHY. Mr. President, what is
      tant and vital pieces of legislation that               not.                                                   the parliamentary situation?
      must not be overlooked.                                    The fact is, in other words, if we do                 The PRESIDING OFFICER. The Sen-
        Again, I tried to highlight here some                 not have to face another filibuster and                ate is on a motion to proceed to S. 2290.
      of the major changes from S. 1125 as re-                if everybody in good faith works to try                  Mr. LEAHY. Before we recessed, was
      ported, many of which were made to                      to bring this about and we have a de-                  there a unanimous consent request
      address the concerns raised by various                  bate on the floor and people have                      made for the Senator from Vermont to
      members in committee, especially on                     amendments they want to bring up,                      be recognized?
                                                              they can do it. I cannot speak for the                   The PRESIDING OFFICER. The
      the Democratic side. These revisions
                                                              majority leader, but I certainly would                 order is the Senator from Vermont be
      are aimed at ensuring that the pro-
                                                              be willing to recommend that, again                    recognized.
      gram established under the FAIR Act
                                                              bending over backwards to try to ac-                     Mr. LEAHY. That was without any
      is fair to victims.
        In short, the Hatch-Frist-Miller bill                 commodate our colleagues on the other                  time limitations, as I recall?
                                                              side.                                                    The PRESIDING OFFICER. That is
      represents a reasonable and fair solu-
                                                                 If that is not acceptable, then I have
      tion to the asbestos litigation crisis                                                                         correct.
                                                              to conclude that the statements made
      and may be the only solution to it.                                                                              Mr. LEAHY. I thank the distin-
                                                              by some of the folks outside of the Sen-
      Members from both sides of the aisle                                                                           guished Presiding Officer, my good
                                                              ate who are knowledgeable about this
      recognize that an equitable compensa-                                                                          friend from Ohio.
                                                              that politics is more important than
      tion program is necessary.                              solving this problem, that money is                                    f
        I believe S. 2290, the Hatch-Frist-Mil-
                                                              more important than solving this prob-                      DIVERSION OF FUNDS FOR
      ler bill, meets the test. I urge all of my              lem, that the personal injury lawyers                    MILITARY OPERATIONS IN IRAQ
      colleagues to support this bill and at                  are more important than solving this
      least support debate on this bill and                                                                            Mr. LEAHY. Mr. President, I want to
                                                              problem happens to be true. I hope that                take a moment to respond to the very
      bring up amendments so we can see                       is not true. I hope we can get our col-
      what further changes the Senate, in                                                                            serious allegations contained in Bob
                                                              leagues to work together. I would like                 Woodward’s book about the use of
      working its will, will require. We                      to work with them, as we have. We
      should certainly see that this bill is                                                                         counterterrorism funds to support
                                                              have not rejected or failed to consider                preparations for the U.S. military inva-
      fully considered by the Senate.                         any idea that has come up, and we will
        Having said all of that, I am very                                                                           sion of Iraq.
                                                              continue to do so. But if not, then let’s                As a Senator and a taxpayer, I am
      concerned that this bill is being treat-
                                                              go to cloture on this bill and let’s let               very troubled by this information. The
      ed only politically; that there are those
                                                              everybody know who wants to stop                       Constitution gives Congress the sole
      who are afraid to vote on this matter;
                                                              even a reasonable debate, even a rea-                  power of the purse. The Founding Fa-
      that there are those who do not want
                                                              sonable time to file amendments, even                  thers did this for good reason. It is a
      to be involved in this matter right
                                                              the reasonable position the Senate                     responsibility that I take very seri-
      now; that there are those who want to
                                                              ought to always take, and that is the                  ously.
      stop this matter because of political
                                                              Senate should work its will and we                       As a member of the Appropriations
      pressure by special interest groups.
                                                              should vote on the amendments one                      Committee for more than two decades,
        We now have 8,400 companies that are
                                                              way or the other, vote on this bill one                I know there is a long, bipartisan tradi-
      being sued, and it may go as high as
                                                              way or the other, and let the chips fall               tion of administrations—of both polit-
      15,000. I might add that we have about
                                                              where they may.                                        ical parties—informing Congress when
      16 major insurance companies that are
                                                                 Mr. President, I yield the floor.
      being sued, some of which should not                       Mr. LEAHY. Mr. President, will the                  money is going to be used for purposes
      have the liabilities we are imposing                    Senator withhold?                                      different than what it was intended for,
      upon them. Nevertheless, the more                          Mr. HATCH. I will be happy to.                      especially if it is part of a major
      companies that go into bankruptcy,                         The PRESIDING OFFICER. The Sen-                     change of policy.
      the more jobs are lost, the more pen-                   ator from Vermont.                                       We do not yet know all of the facts,
      sions are lost, the more this economy                      Mr. LEAHY. Mr. President, is the                    and we need to get the whole story as
      will suffer, and the more all of us will                parliamentary situation that we are                    soon as possible. But I will say that in
      be worse off.                                           going to recess for the party caucuses                 the wake of September 11, the Congress
        I might also add that the courts have                 at 12:30 p.m.?                                         moved very quickly in a bipartisan way
      not proven to be effective here and that                   The PRESIDING OFFICER. The Sen-                     to appropriate billions of dollars to re-
      the tort system has failed. Even the                    ator is correct, until the hour of 2:15                spond to the threat of international
      Supreme Court of the United States                      p.m.                                                   terrorism.



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      S4128                                             CONGRESSIONAL RECORD — SENATE                                                         April 20, 2004
         In doing so, we gave the administra-                 fund becomes insolvent, then the                       and resort to unilateralism by intro-
      tion a great deal of flexibility, but we                Hatch-Frist substitute provides for a                  ducing a partisan bill without Demo-
      also made clear that we expected the                    reversion to the tort system, but only                 cratic support. That is a shame. They
      administration to keep the Congress                     after 7 years from when the fund begins                ought to pull this bill and sit down
      informed on the use of these funds. And                 processing claims, and then only in                    with Senator DASCHLE, knowing Sen-
      administration officials gave us their                  Federal court, and then only for some                  ator DASCHLE will go to the table and
      word that they would keep us in-                        limited disease categories. So victims                 negotiate a real bill, because the intro-
      formed.                                                 could be trapped for 7 years or more                   duction of this bill raises many ques-
         We now learn, as a result of Bob                     with no compensation. That is not fair.                tions, most notably what the sponsors
      Woodward’s book, that millions of dol-                    Some have claimed this bill provides                 are trying to achieve, because it cer-
      lars that we thought we were appro-                     for contingency funding to try to ad-                  tainly is not a fair compensation model
      priating for Afghanistan, or to respond                 dress the many uncertainties of future                 for asbestos victims. By breaking off
      to other terrorist threats, may have                    projections for asbestos victims, but                  bipartisan negotiations and pushing
      been used by the Defense Department                     the $10 billion for continued funding                  this bill to the floor, they have turned
      to begin preparations for the invasion                  only kicks in after year 2023 and only if              their backs on those of us who have
      of Iraq.                                                the funds still exist at this time. Let                worked so long for a fair solution.
         The problem is that there is not a                   me show you on this chart. It is only                    I was encouraged to learn this week
      shred of evidence linking Saddam Hus-                   after year 2023. We are in the year 2004.              from a news wire report that a col-
      sein to the September 11 attacks. Even                  There will be very few in the Senate                   league, the senior Senator from Penn-
      the President has acknowledged this.                    who will still be around to try to cor-                sylvania, Senator SPECTER, who played
         In effect, it appears that the adminis-              rect the mischief of this bill. You have               an important role in the negotiations,
      tration has treated the Congress with                   contingency funding available after                    favored resumption of negotiations.
      much the same disdain as it treated                     2023. That means a lot will not be                     Senator SPECTER told the Associated
      our European allies. Remember? They                     available to pay the pending 300,000                   Press:
      were the ‘‘old Europe,’’ who were out of                claims on day one. That is not a fair                    I declined to join with Senator FRIST and
      touch, whose support we did not need.                   trust fund.                                            Senator HATCH in their substitute bill be-
      Like the United Nations, they were                        So I would say it is a mistake for the               cause I think it is the better practice to try
      ‘‘irrelevant.’’                                         Republican leadership of the Senate to                 to work through these problems. Senator
         So too the Congress: What do they                    insist on proceeding to a bill and have                SPECTER, of course, has put in untold hours
      know? They just appropriate money.                      so many major problems still unre-                     with retired distinguished Judge Becker in
      They do not need to know what it is                     solved. The bill is not ready for prime                trying to work through the points of such a
                                                                                                                     bill.
      being used for.                                         time. Let’s work at making it ready,
         We also have learned, in even more                   not work at scoring partisan points.                     We have all learned a great deal
      detail, how this administration rushed                  Let’s do something for the victims of                  about the harms caused by asbestos ex-
      into war without making adequate                        asbestos.                                              posure since that first hearing that
      post-war plans or building a real inter-                  Creating a fair national trust fund to               convened in September of 2002. Asbes-
      national coalition. As a result, the re-                compensate asbestos victims is one of                  tos is the most lethal substance ever
      construction efforts are a mess, our                    the most complex legislative situations                widely used in the workplace. Between
      credibility is in tatters, and America’s                I have seen in 29 years in the Senate.                 1940, the year I was born, and 1980,
      soldiers are shouldering a grossly dis-                 The interrelated aspects necessary for                 more than 27.5 million workers in this
      proportionate share of the burden and                   a fair national trust fund is like a                   country were exposed to asbestos on
      the casualties.                                         child’s Rubik’s Cube. So it is all the                 the job and nearly 19 million of them
         The proper use of taxpayers’ money                   more necessary that a bill be a con-                   had high levels of exposure over long
      is not a Democratic or a Republican                     sensus piece of legislation for it to be-              periods of time. Unbelievably, asbestos
      issue. As representatives of the Amer-                  come law. I am not looking for a Demo-                 is still used today.
      ican people, it is something that we                    cratic or Republican piece of legisla-                   What we face is an asbestos-induced
      should all be concerned about, and it                   tion; I am looking for a bipartisan one                disease crisis. Hundreds of thousands of
      may force us to change the way we do                    that would work. That is why I worked                  workers and their families have suf-
      business around here.                                   so hard in months of bipartisan nego-                  fered debilitating disease and death
         Mr. President, we also have before us                tiation, why I worked so hard to en-                   due to asbestos exposure. The disease
      an asbestos bill, the Asbestos Injury                   courage the interested stakeholders to                 and the death are among the most hor-
      Resolution Act of 2004. This partisan                   reach agreement on all the critical de-                rible ways of being sickened or to die.
      asbestos bill is not ready for floor con-               tails. I have had so many meetings in                  These are the real victims of the night-
      sideration. It is not ready for prime                   my office and in other Senators’ offices               mare and they must be the first and
      time, not by a long shot. I do believe                  with the major stakeholders across-                    foremost focus of our concern and ef-
      the Senate should pass legislation to                   the-board, and this is where we are. We                fort. These are people who, simply by
      establish a national trust fund to fairly               have Senator HATCH and the majority                    showing up for work and doing their
      compensate asbestos victims. After all,                 leader introducing a partisan asbestos                 job as they are supposed to, endured
      I held the first hearing ever held by the               bill.                                                  lives of extreme pain and suffering.
      full Senate Judiciary Committee in an                     I hoped the bipartisan dialog over the                 Not only do they continue to suffer,
      effort to get a resolution to the prob-                 past year would yield a fair and effi-                 and their number will grow, but the
      lem facing victims of asbestos poi-                     cient compensation system that we                      businesses involved in the litigation,
      soning. But, despite the title of this                  could in good conscience offer to those                along with their employees and their
      bill, it is far from fair. It is very par-              suffering today from asbestos-related                  retirees, are suffering from the eco-
      tisan. This partisan bill creates a trust               diseases and to the victims yet to                     nomic uncertainty created by the situ-
      fund that provides unfair compensation                  come. Our leader, the senior Senator                   ation.
      for asbestos victims. This partisan bill                from South Dakota, Senator DASCHLE,                      More than 60 companies have filed for
      creates a trust fund with inadequate                    was entrusted by all of us to speak for                bankruptcy because of their asbestos-
      funding, no startup protections, and                    our caucus and to try to negotiate an                  related liabilities. These 60 bank-
      major solvency problems. This partisan                  agreement. Time and again he made                      ruptcies have a devastating human eco-
      bill contains a warped sunset provision                 that attempt. Time and again he was                    nomic effect. Asbestos victims deserv-
      that could trap victims in a failed trust               put off.                                               ing fair compensation do not receive it
      fund for 7 years or more without hav-                     I stood there with him when he spoke                 and bankrupt companies do not create
      ing access to compensation.                             to the leadership on the Republican                    new jobs or invest in our economy.
         Look at this chart. This fund says                   side saying, Can’t we get together on a                  In working with Senators DASCHLE,
      victims could be trapped in a failed                    piece of legislation? But unfortunately                DODD, FRIST, HATCH, and SPECTER, we
      trust fund for 7 years or more and                      the Senate majority leadership decided                 encouraged representatives from orga-
      would have no compensation. If the                      to walk away from those negotiations                   nized labor, the trial bar, and industry



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      April 20, 2004                                    CONGRESSIONAL RECORD — SENATE                                                                 S4129
      help reach consensus on a national                      ple who are suffering from asbestos-in-                they are foolish enough to do it, that
      trust fund to compensate asbestos vic-                  duced injuries and illness are not                     combination of asbestos and smoking—
      tims. We wanted to give financial cer-                  helped by a headline. They are helped                  at whatever company it might be; I
      tainty also for the defendants and their                by real legislation which requires real                picked W.R. Grace and Halliburton
      insurers.                                               Senators      doing—guess     what—real                only because they benefit so greatly
        Now a successful trust fund—by that,                  work.                                                  under the bill; others do, too—then
      I mean one that would provide fair and                    The changes made to a few award                      their risk is much greater, and then
      adequate compensation to all victims—                   values by Majority Leader FRIST                        they may have their awards reduced or
      would bring reasonable financial cer-                   moved in the right direction. His par-                 even eliminated to repay any insurance
      tainty to defendant companies and                       tisan bill does not move far enough to-                carrier.
      their insurers. To be successful, it has                ward providing fair compensation to all                  Now, that is a lot different than what
      to have four essential components. It                   impaired victims of asbestos exposure.                 happens now. Usually, under these pro-
      has to have appropriate medical cri-                    In fact, seriously ill victims of expo-                grams, you do not have to repay your
      teria, it has to have fair award values,                sure would receive significantly less                  insurance carrier, you do not have to
      adequate funding, and an efficient, ex-                 compensation on average under the                      repay workman’s compensation. Under
      pedited system for processing claims.                   current version of this act than they                  the Radiation Exposure Compensation
        During the markup session of the Ju-                  would in the tort system. The so-called                Act, you do not have to do that. Under
      diciary Committee on the first FAIR                     FAIR Act is not yet fair.                              the Energy Employees Occupational
      Act, we unanimously adopted the                           The gravest injustice to the bill is to              Illness Compensation Program Act,
      Leahy-Hatch amendment on medical                        lung cancer victims. A victim with at                  you do not have to do that. Under the
      criteria. This created 10 categories of                 least 15 years of asbestos exposure                    Ricky Ray Hemophiliac Relief Fund
      disease. The medical criteria represent                 could receive only $25,000 in compensa-                Act, you do not have to do that.
      bipartisan agreement the national                       tion for his or her asbestos-related dis-                But what bothers me is that when we
      trust fund should provide monetary                      ease under the new bill. Goodness gra-                 made the medical criteria, we got a bi-
      compensation to claimants who suf-                      cious. I ask any Member of this com-                   partisan consensus on the medical cri-
      fered impairment and it should provide                  mittee,    if   somebody’s    negligence               teria. We did it in a way to guarantee
      medical monitoring to those individ-                    caused them to have lung cancer,                       that we were eliminating what were
      uals with less serious asbestos-related                 would they feel satisfied with a $25,000               the most troublesome claims. We were
      conditions. The bipartisan medical cri-                 award? I don’t have to poll the other 99               setting a roadmap on which business
      teria are in this new bill. I agree with                Senators. I know it would be a resound-                and everybody else agreed. We all say
      them.                                                   ing no. Don’t do it to the victims of as-              we need to compensate the truly sick,
        During the mediation process estab-                   bestos just because they do not serve in               but fair compensation is not free.
      lished by Senator SPECTER and Judge                     the Senate.                                              The Judiciary Committee’s bipar-
      Becker—I referred to him earlier as                       My chart underscores the fairness of                 tisan agreement on medical criteria
      Judge Edward Becker, retired chief                      the award value for asbestos-related                   will be meaningless if the majority, in
      judge for the United States Third Cir-                  lung cancer victims compared to com-                   effect, rewrites the categories by fail-
      cuit Court of Appeals—the interested                    pensation available in the tort system                 ing to fairly compensate many who fall
      stakeholders tried to craft a stream-                   and under the proposal offered by Sen-                 within them. You cannot come to the
      lined administrative process. Senator                   ator KENNEDY and myself during the                     floor and say, look, you have Repub-
      SPECTER and Judge Becker worked                         committee markup.                                      licans and Democrats who came to-
      very hard on this process. They deserve                   The legislation we are considering                   gether and worked out the medical cri-
      the thanks of all Members. I believe                    today provides as little as $25,000 in                 teria that they are all very happy
      their very inclusive process was crucial                compensation for victims suffering as-                 about—and we met with labor, and we
      to the establishment of a national                      bestos-related lung cancer. What a                     met with businesses, and we met with
      trust fund at the Department of Labor.                  cruel joke on these lung cancer vic-                   insurers, we met with the victims
        Even that agreement, the agreement                    tims, especially those who are going to                themselves, and we worked out a fair
      between the interested stakeholders,                    die within the next 2 years. What a                    medical criteria—and then come to the
      left many details unresolved. In fact,                  cruel joke on their families who see                   floor and say, see, we worked it all out.
      as this chart shows, Judge Becker list-                 this as the punishment because the                     However, we made one little change.
      ed 22 outstanding issues. Many in-                      breadwinner in their family went to                    And what is the little change? The lit-
      volved administrative process. That                     work every day in one of these indus-                  tle change is to take away all the
      list of 22 outstanding issues did not in-               tries.                                                 money or much of the money that was
      clude the 2 other major components of                     When there is smoking and asbestos                   going to pay these victims.
      a fair trust fund: fair award values and                combined, the likelihood of the result-                  If the award values are unfair, the
      adequate funding to pay for it. These                   ing disease is greater than the sum of                 bill will be unfair. And if the bill is un-
      are the remaining issues.                               the parts.                                             fair, it is unworthy of our support. In
        We cannot zip to the Senate floor and                   Dr. Laura Welch is a well-respected                  this case, with this partisan bill, it is
      because we could not find anything else                 medical expert who helped us craft                     unfair. It is unworthy of the support of
      to do, we bring it up. There are many                   medical criteria which was accepted by                 Senators.
      issues, including startup language, sun-                an overwhelming bipartisan majority                      Since the first hearing, the hearing I
      set time, timeframe, reversion to tort                  in the committee. She said:                            held, we have had one bedrock prin-
      system, in what forum, pending cases,                     Smoking and asbestos act in concert to-              ciple: It has to be a balanced solution.
      settlements in pending cases, treat-                    gether to cause lung cancer, each multi-               Whatever solution we have, it has to be
      ment of existing trusts, worker’s com-                  plying the risk conferred by the other.                balanced. I cannot support a bill that
      pensation, medical screening of high-                     There is a synergistic relationship                  gives inadequate compensation to vic-
      risk workers, transparencies, setoff                    between asbestos exposure and smok-                    tims. I will not adjust fair award val-
      rules, statute of limitation language,                  ing. Smokers who meet the bill’s expo-                 ues into some discounted amount just
      exclusive default judgments, bank-                      sure requirements face a risk of lung                  to make the final tally come within a
      ruptcies, FELA, exclusivity for asbes-                  cancer that is up to five times greater                predetermined and artificial limit.
      tos-related claims, and on and on.                      than smokers not exposed to asbestos.                  That is not fair, and I will not vote for
        I mention this because this is a high-                But they receive only $25,000 under this               a bill that is not fair. Remember, we
      ly complex area. Simply putting some-                   bill.                                                  are taking away people’s most cher-
      thing on the Senate calendar to say we                    In other words, if you go to work at                 ished right, the right of a jury trial. If
      put something on the Senate calendar                    W.R. Grace or Halliburton or some of                   we are going to do that, we cannot do
      is a lot different than actually being                  the other companies that are getting a                 it in a bill that is not fair.
      legislators and trying to pass some-                    real, real big deal under this bill, and                 Now, my friends on the other side of
      thing. What we want is a decent piece                   they say, ‘‘OK, guys and gals, you can                 the aisle have insisted for months they
      of legislation, not a headline. The peo-                take a 10-minute cigarette break,’’ if                 will only support a bill that contains



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      S4130                                             CONGRESSIONAL RECORD — SENATE                                                        April 20, 2004
      funding with a goal of raising $109 bil-                aside. In fact, when they thought they                 Act, and it is like Christmas in April
      lion over 24 years. But it is very clear                had a settlement of that amount, their                 because they can void those agree-
      from projections of future claims that                  stock actually went up.                                ments even though they have been
      this funding is inadequate to pay fair                    But, lo and behold, by the time the                  making payments.
      award values. You cannot have good                      Republican majority got the amount                       In other words, if a victim agreed to
      legislation, successful legislation, fair               Halliburton would owe—the $4.8 bil-                    take a settlement over a period of time
      legislation if it is based on a false                   lion—by the time our friends on the                    from a defendant in return for dis-
      promise. The promise we have to make                    Republican side of the aisle got it, they              missing the case, and even though that
      is, if we are going to take away the                    only have to pay $1.2 billion. They                    settlement agreement is an enforceable
      rights of a jury trial to these victims,                saved $3.6 billion overnight. Not only                 contract, the defendant, whether it is
      then we have to promise them fair                       that, they only had to pay it over 24                  Halliburton or W.R. Grace or anybody
      compensation. This bill does not do                     years. They are going to make that on                  else, gets the right to walk away.
      that.                                                   the interest on their money. I am not                    Victims are actually punished under
        On the Judiciary Committee, we re-                    even going to point out how much                       this legislation for agreeing to settle-
      ported a bill that contained total fund-                money they are making in profits in                    ment terms proposed by asbestos de-
      ing of $153 billion. But this new par-                  Iraq at the moment. I will leave that                  fendants. Is that fair? Absolutely not.
      tisan bill, introduced less than 2 weeks                for another day. But they suddenly go                    In addition, the FAIR Act would
      ago, contains mandatory funding of                      from the $4.8 billion that basically they              retroactively extinguish all pending as-
      only $109 billion. All of a sudden, we                  knew they were going to have to pay,                   bestos cases regardless of the stage in
      have lost—we have lost—over $40 bil-                    and as soon as this Republican bill                    the litigation. The asbestos cases cur-
      lion from the total funding approved by                 came up, it is down to $1.2 billion. No                rently in trial or on the verge of trial
      the Judiciary Committee under contin-                   wonder Halliburton likes some of my                    would immediately be brought to a
      gency funding amendments by Sen-                        friends on the other side of the aisle.                halt. Cases with jury verdicts or judg-
      ators FEINSTEIN and KOHL.                                 Let’s take W.R. Grace, another good                  ments would end, and all appeals would
        Senator FEINSTEIN—she can speak for                   friend of some of my friends on the                    be suspended. Is that fair? No. It is not
      herself; she is in the Chamber—but she                  other side of the aisle. W.R. Grace was                fair to the victims. It might be fair to
      worked night and day on this issue to                   a company that was responsible for                     W.R. Grace or Halliburton; it is not
      get a fair agreement. I do not know the                 poisoning an entire community. Some                    fair to the victims at home coughing
      number of times she buttonholed me at                   of these companies only poison a few                   out their lungs.
      the committee or elsewhere, and every                   hundred or 200 or so of their employees                  The partisan emphasis in this bill on
      other Senator on both sides of the                      when they come to work. They only                      behalf of the interests of the industrial
      aisle, to reach an agreement; and she                   poison a few hundred by hiding what                    and insurance companies involved, to
      got it. That has been taken out.                        they are doing. W.R. Grace goes big                    the detriment of the victims, has pre-
        Look at this chart. Is this fair? We                  time, to quote one of the people they                  dictably produced an imbalanced bill.
      reported a bill, which many questioned                  support.                                               This bill is a reflection of the priorities
      whether it had enough money, S. 1125,                     W.R. Grace was responsible for poi-                  that went into it. Remember, many of
      at $153 billion. Now it comes back and                  soning an entire community, the whole                  us wanted to bring certitude to the
      it is $109 billion. The first bill, many                community, whether you worked for                      companies, to bring fair compensation
      complained, did not have enough                         them or not. They poisoned the whole                   to the victims. Instead, this is totally
      money; the current bill drops $44 bil-                  community from its asbestos mining                     skewed.
      lion out.                                               facilities in Libby, MT. W.R. Grace                      For us to succeed in reaching the
        We also know there has to be ade-                     must love their Republican friends be-                 consensus solution we sought for so
      quate funding at the beginning of a na-                 cause while they had total asbestos li-                long, a workable bill should fairly re-
      tional trust fund. Why? There are more                  abilities of about $3.1 billion, under                 flect and not discount the significant
      than 300,000 asbestos claims in our cur-                this bill they suddenly have to only                   benefits that a fair solution would con-
      rent legal system, so you are going to                  make payments of $27 million over 24                   fer on the companies involved. A trust
      have to have enough money in there to                   years, which is pocket change for                      fund solution would offer these firms
      handle the claims that are going to be                  them. Instead of paying the $3.1 billion               reasonable financial security. Even a
      there on day 1 of this fund. However,                   they are liable for today, they will pay               casual glance at the way the stock val-
      this new bill actually provides less up-                only $424 million. No wonder they love                 ues of these firms have closely tracked
      front funding than the bill reported by                 Republicans. I mean, this is a                         the Senate’s work on this issue are
      the Judiciary Committee.                                walkaway.                                              enough to make it crystal clear.
        It strikes what we passed in the com-                   And the irony is, with a straight face                 I think forcing this new asbestos bill
      mittee, by bipartisan majorities, a                     there are those who call this the FAIR                 through the Senate would prove coun-
      commonsense requirement that directs                    Act. I am sure they probably call it the               terproductive, even fatal, to the legis-
      insurers—who, after all, have billions                  FAIR Act at the board of directors of                  lative effort. The near party-line vote
      of dollars sitting today in current as-                 W.R. Grace. I am sure they call it the                 within the committee on the earlier
      bestos reserves—to contribute their                     FAIR Act at the board of Halliburton.                  bill was more of a setback than a step
      funding within the first 3 years of the                 But I can tell you, in the families                    forward. Proceeding further without
      fund because that is when most of the                   where they see the breadwinner with                    consensus would make it worse.
      claims would come.                                      the oxygen tank suffering, coughing up                   Many of us have worked very hard.
        Another fundamental unfairness in                     blood, suffering a horrible death, they                Senator DASCHLE has worked ex-
      this bill is it provides a corporate bail-              don’t call it the FAIR Act. They might                 tremely hard. Many of us have worked
      out for certain companies with serious                  call it the Halliburton Relief Act. They               very hard for more than a year toward
      asbestos liability.                                     might call it the W.R. Grace Relief                    the goal of a consensus asbestos bill.
        Take a look at another chart. I ask if                Act. They don’t call it the FAIR Act.                  This new partisan bill is especially sad-
      this is fair. The present value of                        As presently written, the FAIR Act                   dening to me, and it is confounding.
      Halliburton’s asbestos liability is $4.8                would completely negate all legally                    The obvious question that all of us, in-
      billion. Under this bill, they would                    binding settlement agreements be-                      cluding those who brought this new bill
      only pay $75 million a year to a na-                    tween asbestos defendants and victims.                 to the floor, should be asking is, Does
      tional trust fund. The reason I mention                 It would take away their right to the                  the partisan turn that the sponsors of
      this is Halliburton told their share-                   courthouse. Even settlements that                      this bill have taken help or hurt our ef-
      holders sometime ago they could han-                    have already been partially paid, even                 forts to produce and enact a consensus
      dle this $4.8 billion, they could handle                those settlements—whether it is W.R.                   bill? I think the answer is clear.
      the amount of money set aside for                       Grace or Halliburton, anybody else—                      Instead of writing a bill that will
      their liability. They knew they were                    where they have agreed they are liable,                make Halliburton and W.R. Grace very
      liable. They knew they would have to                    where they have started to make pay-                   happy with some in this partisan exer-
      pay for it. They could set this money                   ments, all of a sudden comes the FAIR                  cise, let’s restart our work to achieve



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      April 20, 2004                                    CONGRESSIONAL RECORD — SENATE                                                                 S4131
      the common ground needed to enact a                     will of the majority of the Judiciary                  trust fund’s contingent reserve from
      good and fair law. That is the best way                 Committee. It is a substantially dif-                  $45 billion to $10 billion. The reason for
      to move it forward. Remember, we are                    ferent bill that is on the Senate floor                the original $45 billion contingent re-
      not legislating as an arm of Halli-                     today than was the bill that I voted for               serve was to ensure the solvency of the
      burton or W.R. Grace or a few others.                   in committee.                                          Trust Fund if the estimates are wrong.
      We are legislating for the good of this                    I don’t believe the bill is ready for               If the reserve is not necessary, it is not
      country. The 100 of us represent 280                    the floor and I hope to technically ex-                used. But if it is necessary, it is there.
      million Americans. We want to be fair.                  plain why. In fact, I have written the                 I have already shown you by this CBO
      Let’s represent them.                                   chairman of the Judiciary Committee                    letter that it would likely be nec-
        The PRESIDING OFFICER (Mr. EN-                        requesting that the bill be returned to                essary. CBO predicts that the $108 bil-
      SIGN). The Senator from California.                     committee for future deliberations.                    lion bill we passed last July would ac-
        Mrs. FEINSTEIN. Mr. President, I                      We, the Senators serving on that com-                  tually costs $123 billion because of re-
      thank the ranking member for his com-                   mittee, did do our job, and we should                  vised projections. Thus, at the get-go,
      ments, most of which—I think all of                     be allowed to finish that job and work                 CBO predicts the Trust would need an
      which I agree with.                                     through the issues necessary to forge a                additional $15 billion, which is already
        Mr. HATCH. Will the Senator yield                     bill that can pass in this body.                       greater than the $10 billion reserve in
      for a unanimous consent request?                           Let me explain my concerns. Specifi-                the new bill. So why pass a bill that, at
        Mrs. FEINSTEIN. Yes, of course.                       cally, the bill Senator FRIST proposes                 its beginning, is not going to have ade-
        Mr. HATCH. I ask unanimous consent                    to bring to the Senate floor eliminates                quate funds?
      that I be recognized immediately fol-                   a crucial startup amendment that                         Thirdly, this bill wipes out final as-
      lowing the distinguished Senator from                   guaranteed asbestos victims would con-                 bestos settlements and trial court
      California.                                             tinue to have their legal rights until                 judgments granting victims awards.
        Mr. REID. Reserving the right to ob-                  the Trust Fund is fully operational.                   This was one of the points that was left
      ject, does the distinguished chairman                   This was a major deletion. It will cost                hanging when we passed it out of com-
      of the Judiciary Committee know ap-                     the Trust Fund an additional $5 billion.               mittee, and the members were sup-
      proximately how long he might speak                        Let me read to you from the CBO let-
                                                                                                                     posed to get together and solve this.
      when he does get the floor?                             ter on that point, which is dated today
                                                                                                                     Well, the members—at least this mem-
        Mr. HATCH. I think it would be less                   and sent to Senator NICKLES. ‘‘You’’—
                                                                                                                     ber—didn’t get together. But I gather a
      than a half hour.                                       meaning Senator NICKLES—‘‘also re-
                                                                                                                     judge and one member did get together
        Mr. REID. We want to let other peo-                   quested that CBO explain the major
                                                                                                                     and, up to this point, there is no solu-
      ple come and speak. So it does not                      differences between our cost estimates
                                                                                                                     tion. The bill before us simply says to
      matter how long he speaks, just so we                   for S. 1125’’—that is the bill that came
                                                              out of committee—‘‘and S. 2290’’—that                  everybody that has a trial court judg-
      have some general idea. I withdraw the                                                                         ment that that judgment is wiped out.
      reservation of objection.                               is the Hatch-Frist bill on the floor. ‘‘On
                                                              March 24, 2004, in a letter to Senator                 That is wrong.
        The PRESIDING OFFICER. Without                                                                                 This bill also prevents individuals
      objection, it is so ordered.                            HATCH, CBO updated its October 2, 2003,
                                                                                                                     from returning to the tort system for 7
        Mrs. FEINSTEIN. Mr. President, as a                   cost estimate for S. 1125, principally to
                                                                                                                     years after the administrator starts
      member of the Judiciary Committee                       reflect new projections about the rate
                                                              of future inflation, and it assumed a                  processing the claims, even if the trust
      who voted for the bill in committee                                                                            fund goes bust in its first years of oper-
      and worked out two amendments that                      later enactment date for the bill. That
                                                              letter explains that we now estimate                   ation.
      are substantial, I regretfully rise to                                                                           In contrast, the bill we passed out of
      urge my colleagues to vote no on clo-                   enactment of S. 1125 at the end of fiscal
                                                                                                                     committee said that if there is not ade-
      ture on the motion to proceed to this                   year 2004 would result in claims pay-
                                                                                                                     quate money, individuals could revert
      bill. In the course of my remarks, what                 ments totaling $123 billion over the
                                                              lifetime of the asbestos fund (about 50                to the tort system at any time.
      I hope to do is indicate my reasons for                                                                          Now, I am not going to vote for clo-
      opposing cloture and make some posi-                    years).’’
                                                                 The bill that came out of committee                 ture, but I recognize that 18.8 million
      tive suggestions as to how to close the                                                                        U.S. workers were exposed to asbestos
                                                              was originally projected to cost $108
      gap on the unresolved issues.                                                                                  between 1940 and 1979. The best way to
                                                              billion. An amendment I made put in a
        There are only two ways to get a bill                                                                        look at asbestos is tiny spears, smaller
                                                              contingency reserve of $45 billion in
      on asbestos. I say this to everybody out                                                                       than grains of sand, that lodge in your
                                                              case more money was needed. What
      there who has a legitimate concern and                                                                         lungs, guts, stomach, and, over a pe-
                                                              this CBO letter shows is that money
      need for a bill. That is, one, unless the               would, in fact, be needed. CBO’s projec-               riod of time, in your organs. It is bad
      two leaders agree or, two, a bill that                  tions indicate that a $10 billion contin-              stuff and it ought to be prohibited.
      goes back to the Judiciary Committee                    gency fund would not be enough to                      This bill ought to prohibit it, for start-
      and is worked out as a product of that                  cover the cost. That is major in scope.                ers.
      committee’s work.                                          The bill we are considering today                     Our courts are overloaded with
        Last July, nearly 9 months ago, the                   would cost, according to CBO, $17 bil-                 claims arising from these exposures.
      Judiciary Committee passed out a                        lion more than the Committee passed                    Individuals have brought more than a
      comprehensive asbestos bill. We delib-                  bill. Eleven billion of this increase                  half million asbestos suits over the last
      erated and had hearings over several                    comes from higher awards values.                       20 years against 8,400 companies. Ap-
      years.                                                     Five billion of that $17 billion in-                proximately 71 companies have filed
        The bill wasn’t perfect, but it re-                   crease is due to the elimination of my                 for bankruptcy due to asbestos law-
      flected a substantial step forward in                   startup amendment. Here is why it                      suits.
      crafting a legislative compromise. A                    costs $5 billion. The startup amend-                     Moreover, the current system doesn’t
      few issues were unresolved. They were                   ment guarantees that asbestos victims                  ensure compensation for the sickest
      to be worked out by members in the in-                  would continue to have their legal                     victims. Currently, nonmalignant cases
      tervening time. Since July, labor rep-                  rights until the Trust Fund is oper-                   get 65 percent of the compensation
      resentatives, defendant companies, in-                  ational. In other words, they could go                 awards, compared to 17 percent for
      surers, and others have engaged in                      to court until the Trust Fund was fully                mesothelioma, and 18 percent for other
      multilateral negotiations, not only to                  operational. CBO estimates that the                    causes. That is wrong on its face.
      settle these few unresolved issues, but                 Fund would save $5 billion by allowing                   As this tidal wave of asbestos cases
      to renegotiate the entire bill.                         the private settlement of these claims                 goes forward, serious questions remain
        The legislation proposed by Senator                   during this start-up period. That is the               whether existing victims will ever re-
      HATCH, the distinguished chairman of                    implication of eliminating the Fein-                   ceive the compensation they deserve.
      our committee, and Senator FRIST, the                   stein startup amendment made in the                    For example, because of the extraor-
      distinguished majority leader, actually                 Judiciary Committee.                                   dinary influx of claims, the Manville
      sets the debate backward by taking po-                     Secondly, the Hatch-Frist bill, as I                trust is only paying 5 cents on the dol-
      sitions directly contradictory to the                   have said, reduces the asbestos victims’               lar.



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      S4132                                             CONGRESSIONAL RECORD — SENATE                                                       April 20, 2004
        So I am one who believes we need a                    shopping, I would also like to propose                 fund for illnesses caused by smoking
      comprehensive solution to the asbestos                  plaintiffs who return to court, if the                 rather than asbestos.
      crisis so that victims who are truly                    trust fund collapses, would only be able                 This is the most difficult part of the
      sick get compensated in a timely and                    to file as a member of a class or as an                bill. In all of the medical values and all
      fair manner.                                            individual in State court jurisdictions                of the hearings and the medical testi-
        I recognize negotiations over the as-                 where they were exposed or where they                  mony we heard back and forth, it is
      bestos bill have proceeded at a pace                    currently reside. This would handle the                clear there is a difficult line of defini-
      that is satisfying no one, and to ad-                   great bulk of forum shopping, if you                   tion here, and that is why the trust
      vance the debate, I would like to ask                   think about it.                                        fund, which is supposed to be a kind of
      the Senate to consider the following                      Fourth, I would like to suggest award                no-fault fund where a medical valu-
      core proposals, and let me mention                      values should have a sliding scale in                  ation can be made quickly and scientif-
      what they are.                                          order to reflect the individual cir-                   ically, may not always be able to make
        The fund must be fiscally prudent.                    cumstances of victims. The current as-                 that valuation.
      Clearly, it has to have a contingent                    bestos bill applies a one-size-fits-all so-              So if the fund is going to be overbur-
      fund of more than $15 billion. Whether                  lution to asbestos awards. An 83-year-                 dened by smoking cases and the admin-
      that fund is $20 billion or $25 billion or              old asbestos victim without dependents                 istrator at the end of the year says,
      $30 billion, I think we need to go back                 and a 37-year-old single mother with                   Look, we are not going to be able to
      in the Judiciary Committee and work                     three small children would both re-                    make next year, he can then file in
      the values versus the other provisions                  ceive $1 million for mesothelioma                      that year-end review with the Congress
      in the bill. I showed how eliminating                   under the bill, but if we look at the                  the request that those cases go to
      my startup amendment cost the fund                      awards given by asbestos trusts, such                  court.
      $5 billion. That is not my analysis.                    as the Western MacArthur trust, indi-                    We would give him that authority. I
      That is the CBO analysis.                               vidual circumstances are definitely                    believe this is a solution to that prob-
        Second, the risk of a delay in the                    taken into account.                                    lem. I am not wed to it, but to my
      start of a national asbestos trust fund                   For example, mesothelioma victims,                   knowledge it is the only one that any-
      should not be borne by asbestos vic-                    under that trust, can receive between                  one has come up with so far.
      tims. What do I mean by that? I point-                  $52,000 and $4 million, with an average                  Six, a fair asbestos bill must exempt
      ed out the bill eliminates the startup I                value of $524,000 in this particular                   from the trust fund final settlements
      authored in committee that permitted                    Western MacArthur trust. This sliding                  as well as trial court verdicts that
      asbestos claimants to pursue asbestos                   scale brings fairness to individual vic-               compensate victims. The Hatch-Frist
      claims in court until the administrator                 tims’ awards. It works in this trust.                  bill fails to do this. Specifically, the
      of the trust fund certifies the fund is                   I have talked with the managers of                   bill would overturn any final settle-
      fully operational.                                      the trust. They believe this half-a-mil-               ment that ‘‘requires future perform-
        The reason this amendment is so nec-                  lion-dollar average takes care of the                  ance by any party.’’ Thus, if an indi-
      essary is to protect the legal rights of                younger victims and balances that in a                 vidual received a $1⁄2 million award 5
      plaintiffs, and it should be restored.                  fair way against older victims.                        years ago to be paid in 10 annual in-
      Without it, asbestos victims could be                     Fifth, award values for the trust                    stallments, this bill would wipe out the
      left without any recourse if there is a                 should be set in a way that prioritizes                last 5 installments.
      delay in starting up the fund. Under                    compensation for the sickest victims                     Of equal concern, the Hatch-Frist bill
      this bill, they cannot go to court. So if               whose illnesses can clearly be traced to               would wipe out lawsuits unless they
      the money is not there right upfront or                 asbestos. This is the hobgoblin of this                were ‘‘no longer subject to any appeal
      the money is short upfront, they are                    whole thing. All of the companies I                    or judicial review before the day of en-
      out in the cold.                                        have spoken to are concerned the trust                 actment of the act.’’ In other words,
        The amendment I offered serves as a                   will be abused, and it will be abused in               this bill would erase any trial verdict
      hammer to get defendant companies                       this way: that smokers would have ac-                  favorable to plaintiffs still on appeal.
      and insurers to cooperate with the new                  cess without the defined connection to                   We should not undermine a litigant’s
      trust administrator. And for the third                  asbestos. Specifically, I think we                     reasonable expectation that he or she
      time, I point out, it saves $5 billion, ac-             should not allow the asbestos trust                    can pursue a favorable trial court ver-
      cording to the CBO.                                     fund to be overwhelmed by smoking                      dict to its conclusion.
        I recognize the concern of some in                    claims. This is a deep and valid con-                    I am also concerned the bill would
      the industry that asbestos claimants                    cern.                                                  overturn the final bankruptcy settle-
      who are not yet ill will use the interim                  In the committee-passed bill—and I                   ments that have formed the $2.1 billion
      period to press a host of lawsuits                      want to speak to it—awards in cat-                     Western Mac Arthur trust. Award re-
      against defendant companies. To ad-                     egory 7 of the medical values raise the                cipients of Western Mac Arthur, 90 per-
      dress this, I would like to propose                     largest specter of uncertainty in terms                cent of whom are Californians, include
      modifying the Feinstein amendment to                    of smoking claims. This category                       8,000 claimants who will be paid hun-
      allow a 6-month stay on asbestos                        grants awards to smokers with lung                     dreds of millions of dollars in a very
      claims upon enactment, except for                       cancer with 15 years of weighted expo-                 few weeks. The Mac Arthur trust has
      those claimants facing life-threat-                     sure to asbestos but no obvious evi-                   also set aside funds for 30,000 future
      ening, asbestos-related illness. Thus,                  dence of asbestos disease, such as pleu-               claimants. All of this money is taken
      the stay would only apply to those who                  ral plaques or asbestosis.                             by this bill and put in the national
      are not ill. I think that is a way out of                 To prevent these claims from over-                   fund. So this final bankruptcy trust is
      the problem. For those who are ill,                     whelming the trust resources, I propose                totally wiped out and 8,000 individuals
      there would be no stay.                                 title VII, smoking cases, revert to the                who are going to be paid in a matter of
        Thirdly, I would like to suggest if                   tort system, both State and Federal                    weeks lose their settlements. It is just
      claims exceed projections and the trust                 court, if the administrator determines                 not right.
      runs out of money, plaintiffs should                    at the year-end review that the inci-                    Unlike some other settlements, the
      have immediate access to the tort sys-                  dence rates of those smoking claims                    Mac Arthur trust places priorities on
      tem in both State and Federal court.                    will exceed projections by greater than                the sickest patients. A minimum of 80
      The current proposal on the floor                       50 percent.                                            percent of the awards paid out under
      would prevent victims from filing                         Why do I say that? The tort system                   the trust goes to asbestos cancer vic-
      claims for 7 years after the trust starts               historically has been able to handle                   tims. These awards will be based on
      processing them, even if the trust ex-                  those cases. So it seems to me if there                historical rates of asbestosis awards in
      pires in the first or second year of oper-              is a smoking case and it shows neither                 California, which are higher than the
      ation. We cannot leave victims in this                  the evidence of asbestos disease, such                 rest of the nation.
      kind of legal purgatory.                                as pleural plaques or asbestosis, let a                  According to attorneys involved with
        So to address legitimate concerns by                  court make that decision. This would                   the Mac Arthur trust, almost every
      defendant companies about forum                         deter smokers from misusing the trust                  present claimant expecting payment



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      April 20, 2004                                    CONGRESSIONAL RECORD — SENATE                                                                     S4133
      under the Mac Arthur trust will do                      abolical if one thinks about it for a few              sor, whose mandate is to provide advice and
      worse under the Hatch bill than under                   minutes. That is why the startup                       consent to the Trustees with respect to
      the trust because of the Hatch bill’s re-               amendment I offered in committee was                   issues regarding present, known claimants,
                                                                                                                     and a legal Representative, whose mandate
      quirement that collateral sources of                    so important, because it said nothing
                                                                                                                     is to provide advice and consent to the
      compensation be subtracted from any                     begins until the fund has its money and                Trustees with respect to issues regarding
      award.                                                  is operational. Therefore, those people                currently unknown claimants, including
         Remember, this trust is not the only                 had recourse. Once the start-up amend-                 safeguarding their rights to equivalent treat-
      defendant for many of these plaintiffs.                 ment was taken out, they had no re-                    ment.
      Many of the claimants have cases                        course, and the CBO report says that is                  Since 1998, the Trustees have managed the
      against other defendants and those are                  a $5 billion cost item right off the top.              Trust’s small base of liquid assets to pay a
                                                                Now, I offer the principles as a basis               small percentage of the allowed liquidated
      all wiped out as well.
                                                              for compromise on this legislation. I                  value of allowed claims and to cover the cost
         Now, I have policy concerns about                                                                           of insurance coverage litigation to pursue
      wiping out the settlements and the                      offer this as one who sat through the                  the major asset of the trust—the insurance
      fairness, but it is an open question as                 hearings and the medical testimony                     available to Fuller-Austin to fund its asbes-
      to whether such a transfer of assets is                 and committee debates and partici-                     tos liabilities. The litigation has been active
      constitutional. Let me speak about                      pated in bipartisan amendments of-                     since 1994. A second phase followed in Sep-
      that for a moment. Legal scholars such                  fered on the bill.                                     tember 2001, and a jury trial (the final phase)
      as Harvard law professor Elizabeth                        Thanks to Goldman Sachs, we ran                      was just completed in May 2003. The litiga-
                                                              numbers after numbers and Goldman                      tion resulted in (i) settlements with nine in-
      Warren have argued that the bill’s ex-                                                                         surers for approximately $200 million, some
      propriation of money from settlement                    Sachs has been good enough to run an-
                                                                                                                     to be paid over the next few years, and (ii) a
      trusts would violate the takings clause                 other set of numbers for me. We have
                                                                                                                     $188 million jury verdict against the remain-
      of the U.S. Constitution, which pro-                    changed some of the values to try to                   ing insurers in favor of Fuller-Austin on May
      hibits the taking of ‘‘private property                 meet some of the concerns. I have                      6, 2003. As a result of the settlements, the
      . . . for public use, without just com-                 those numbers with me.                                 Trustees have increased the percentage of
      pensation.’’                                              I ask unanimous consent that the                     payments for each established disease value
         Specifically, there are a number of                  Fuller-Austin asbestos settlement let-                 paid to holders of valid asbestos claims. The
                                                              ter to me dated July 2 be printed in the               claims facility that receives, reviews, deter-
      individuals with a confirmed court                                                                             mines and pays these claims has been fully
      order allocating money to them who                      RECORD.
                                                                There being no objection, the mate-                  operational since August 2001.
      will have these awards taken away                                                                                Senate Bill 1125 presents the Trustees with
                                                              rial was ordered to be printed in the                  several conflicts. First, the proposed law
      without receiving comparable com-
                                                              RECORD, as follows:                                    would take away the cash, property and in-
      pensation from the national trust fund.
                                                                         FULLER-AUSTIN ASBESTOS                      surance assets that were dedicated or trans-
      If I have ever heard of a takings case,
                                                                                   SETTLEMENT TRUST,                 ferred to the Fuller-Austin Trust pursuant to
      that is it.                                                                Greenville, TX, July 2, 2003.       the Fuller-Austin plan of reorganization con-
         Additionally, the Mac Arthur trust,                  Hon. Senator DIANNE FEINSTEIN,                         firmed by the Court, undermining the orders
      which is an independent legal entity in                 U.S. Senate, Washington, DC.                           of the Court. It would take away the assets
      its own right, may have a takings                       Re: S. 1125, The Fairness In Asbestos Injury           in the form of settlements and verdicts the
      claim if its assets are transferred to a                    Resolution Act Of 2003                             Trustees carefully have fought to muster for
      national fund without receiving com-                       DEAR SENATOR FEINSTEIN: The Fuller-Aus-             the beneficiaries of the Fuller-Austin Trust.
      parable assets in return.                               tin Asbestos Settlement Trust (the ‘‘Fuller-           The foreign insurers that are now the subject
                                                              Austin Trust’’) was established in December            of a jury verdict, will argue that they now
         Renowned legal scholar Laurence
                                                              1998 by order of the United States District            escape all liability under the proposed law,
      Tribe takes an opposing view and ar-                    Court for the District of Delaware (the                avoiding their contractual obligations as af-
      gues that the conversion of trust assets                ‘‘Court’’) in connection with the confirma-            firmed by the verdict of a dedicated jury,
      would be constitutionally permissible.                  tion of the Chapter 11 plan of reorganization          who spent more than eleven weeks hearing
      The ultimate outcome of this debate is                  of    Fuller-Austin     Insulation     Company         and deciding the Fuller-Austin case. Fuller-
      unknown. But it is clear that the trust-                (‘‘Fuller-Austin’’). The purpose of the Fuller-        Austin’s insurers used and abused the court
      ees managing the Fuller-Austin and                      Austin Trust is to review and pay allowed as-          system for nine years to delay paying their
      other asbestos trusts have indicated                    bestos claims of individuals who were ex-              obligations under the policies they issued.
                                                              posed to asbestos-containing materials sold,           The proposed law would reward that behav-
      they will file constitutional challenges
                                                              distributed, installed or removed by Fuller-           ior. In return, the proposed law cannot pro-
      against the proposed legislation as                     Austin Insulation Company. Pursuant to the             vide any assurances when the national fund
      soon as it is enacted unless changes are                plan of reorganization, the Fuller-Austin              will be in a position to begin paying claims
      made.                                                   Trust was funded with limited cash and                 or what those payments will be, and it can-
         I will read from a letter dated July 2,              other assets and received the right to the             not provide any assurances that the national
      2003, to me from the Fuller-Austin as-                  proceeds of insurance policies that covered            fund will be solvent and able to provide
      bestos settlement trust:                                Fuller-Austin’s asbestos liabilities. The pur-         equivalent benefits to future claimants when
                                                              pose of this letter is to express the concerns         their claims are asserted.
        Passage of this legislation undoubtedly
                                                              of the Trustees regarding the application of             Second, passage of this legislation un-
      will set-off a firestorm of litigation chal-
                                                              Senate bill 1125 to the Trust.                         doubtedly will set-off a firestorm of litiga-
      lenging its constitutionality. The Trustees’
                                                                 The Trustees, pursuant to Section 524(g) of         tion challenging its constitutionality. The
      present view is that their mandates under
                                                              the Bankruptcy Code, are mandated to pro-              Trustees’ present view is that their man-
      the Fuller-Austin Trust agreement and the
                                                              vide fair and equitable treatment to all bene-         dates under the Fuller-Austin Trust agree-
      Fuller-Austin plan of reorganization would
                                                              ficiaries of the Fuller-Austin Trust over the          ment and the Fuller-Austin plan of reorga-
      require them to file litigation to challenge
                                                              expected claims period, which is anticipated           nization would require them to file litigation
      the taking of the Trust’s assets and the vio-
                                                              to be the next 35 to 40 years. These are bene-         to challenge the taking of the Trust’s assets
      lation of the rights of its claimants. Other
                                                              ficiaries who must provide proof of their as-          and the violation of the rights of its claim-
      existing trusts doubtless will reach the same
                                                              bestos-related illness and exposure at one of          ants. Other existing trusts doubtless will
      conclusion. The resulting litigation will
                                                              approximately 360 sites where Fuller-Austin            reach the same conclusion. The resulting
      likely take years to resolve. In addition, it
                                                              worked from 1947 through 1986. There is a fi-          litigation will likely take years to resolve.
      will take years to establish the claims han-
                                                              nite amount of funding available to the                In addition, it will take years to establish
      dling facility mandated by the bill and for
                                                              Fuller-Austin Trust to fund its current and            the claims handling facility mandated by the
      that entity to become operational.
                                                              anticipated future liability to claimants.             bill and for that entity to become oper-
        We have $4 billion in this fund from                  The claims procedures for the Trust, as ap-            ational. Finally, the limited annual funding
      bankruptcy trusts, and $2.1 billion ad-                 proved by the Court, require the Trustees to           provided by the bill will result in the need
      ditional dollars from the Western Mac                   make provision for equivalent treatment for            for years of build-up in the fund before cur-
      Arthur trust. So that tells us some-                    present known claimants and the currently              rent claim obligations can be paid. In the
      thing about how this bill is going to                   unknown claimants who will make claims in              meantime, the beneficiaries of the Fuller-
                                                              the future as their asbestos-related diseases          Austin Trust, many of whom gave up valu-
      start up and whether the money is ac-                   are diagnosed. This requires a careful anal-           able rights in the tort system in exchange
      tually going to be there to pay the peo-                ysis and balancing by the Trustees to assure           for the promised certainty of being paid by
      ple.                                                    the long-term solvency of the Fuller-Austin            the Trust, would not be paid. Many would die
        In this bill, the people lose their                   Trust to meet the anticipated claims. In ad-           before payments began from the federal fund
      right to go to court. It is a little bit di-            dition to the trustees, there is a Trust Advi-         and many more would not have funding for




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      S4134                                                                                                      CONGRESSIONAL RECORD — SENATE                                                                                                                                            April 20, 2004
      much-needed medical care over the next few                                                                                 ing, reviewing, determining and paying valid                                                                 Act of 2004, as introduced on April 7, 2004.
      years. Please remember that most of our                                                                                    asbestos claims that meet the requirements                                                                   The bill would establish the Asbestos Injury
      beneficiaries are senior citizens, and a delay                                                                             of the procedures established by its plan.                                                                   Claims Resolution Fund (Asbestos Fund) to
      of a few years could be critical.                                                                                          Senate Bill 1125 would completely derail this                                                                provide compensation to individuals whose
         The Trustees realize that many oppose the                                                                               efficient and effective process to the extreme                                                               health has been impaired by exposure to as-
      bill on a number of grounds, including con-                                                                                detriment of the beneficiaries of the Fuller-                                                                bestos. The fund would be financed by lev-
      stitutional challenges and concerns as basic                                                                               Austin Trust. In an effort to find a global so-                                                              ying assessments on certain firms. Based on
      as that the proposed funding levels will be                                                                                lution to the asbestos litigation problem,                                                                   a review of the major provisions of the bill,
      insufficient to pay expected claims over the                                                                               pleas do not ignore the workable solutions                                                                   CBO estimates that enacting S. 2290 would
      life of the trust. However, if the Committee                                                                               already confirmed, in place and funded in the                                                                result in direct spending of $71 billion for
      decides to approve the bill, the Fuller-Austin                                                                             form of the existing trusts.                                                                                 claims payments over the 2005–2014 period
      Trust urges that existing asbestos trusts be                                                                                      Sincerely yours,                                                                                      and additional revenues of $57 billion over
      exempted from the legislation or at least                                                                                                   ANNE M. FERRAZZI,                                                                           the same period. Including outlays for ad-
      given the option not to participate. As a so-                                                                                                 Trustee.                                                                                  ministrative costs and investment trans-
      lution to (i) the issue that the proposal                                                                                                   W.D. HILTON, Jr.,                                                                           actions of the Asbestos Fund, CBO estimates
      would take away the rights of beneficiaries                                                                                                   Managing Trustee.                                                                         that operations of the fund would increase
      of trusts established by court order under                                                                                                  MARK A. PETERSON,                                                                           budget deficits by $13 billion over the 10-year
      confirmed plans of reorganization and (ii)                                                                                                    Trustee.                                                                                  period. The estimated net budgetary impact
      the funding crisis that would result for many                                                                                                                                                                                           of the legislation is shown in Table 1.
      present and future asbestos claimants, we                                                                                    Mrs. FEINSTEIN. I also ask unani-
      suggest that existing trusts be allowed the                                                                                mous consent that the CBO report                                                                               S. 2290 contains both intergovernmental
      option of continuing to function as intended                                                                               dated as of today to Senator DON NICK-                                                                       and private-sector mandates as defined in
      and funded, leaving in place the obligations                                                                               LES also be printed in the RECORD.                                                                           the Unfunded Mandates Reform Act (UMRA).
      of the insurers to fund existing policies, set-                                                                                                                                                                                         CBO estimates that the aggregate direct cost
                                                                                                                                   There being no objection, the mate-
      tlements and judgments.                                                                                                                                                                                                                 of complying with the intergovernmental
         While we personally have concerns about
                                                                                                                                 rial was ordered to be printed in the                                                                        mandates in S. 2290 would be small and
      the constitutional issues, the proposed fund-                                                                              RECORD, as follows:                                                                                          would fall well below the annual threshold
      ing levels for the trust, the medical criteria                                                                                                  U.S. CONGRESS,                                                                          ($60 million in 2004, adjusted annually for in-
      to be utilized, the award values and the po-                                                                                       CONGRESSIONAL BUDGET OFFICE,                                                                         flation) established in UMRA. CBO also esti-
      tential windfall to certain insurers, our pri-                                                                                           Washington, DC, April 20, 2004.                                                                mates that the aggregate direct cost of com-
      mary concern is to be able to continue to                                                                                  Hon. DON NICKLES,                                                                                            plying with the private-sector mandates in
      meet our mandate using funds and assets                                                                                    Chairman, Committee on the Budget,                                                                           S. 2290 would well exceed the annual thresh-
      provided by Fuller-Austin’s court-approved                                                                                 U.S. Senate, Washington, DC.                                                                                 old established in UMRA ($120 million in 2004
      plan of reorganization through its fully oper-                                                                               DEAR MR. CHAIRMAN: As you requested,                                                                       for the private sector, adjusted annually for
      ational trust and claims processing facility.                                                                              CBO has prepared a cost estimate for S. 2290,                                                                inflation) during each of the first five years
      The Fuller-Austin Trust is currently receiv-                                                                               the Fairness in Asbestos Injury Resolution                                                                   those mandates would be in effect.
                                                                                                                                    TABLE 1.—ESTIMATED BUDGETARY IMPACT OF S. 2290
                                                                                                                                                                                                                                                     By fiscal year, in billions of dollars—

                                                                                                                                                                                                                          2005       2006    2007     2008       2009       2010       2011       2012       2013       2014

                                                                                                                                                                    CHANGES IN DIRECT SPENDING
      Claims and administrative expenditures of the Asbestos Fund:
            Estimated budget authority ........................................................................................................................................................................                  *    18.5    12.8      12.9        5.3        5.3       5.3        5.2        5.0        4.9
            Estimated outlays .......................................................................................................................................................................................            *     7.5    10.7      14.6        9.8        7.6       5.3        5.3        5.2        5.0
      Investment transactions of the Asbestos Fund:
            Estimated budget authority ........................................................................................................................................................................             5.4        2.0   ¥4.8      ¥3.3             0          0          0          0          0          0
            Estimated outlays .......................................................................................................................................................................................       5.4        2.0   ¥4.8      ¥3.3             0          0          0          0          0          0
      Total direct spending:
            Estimated budget authority ........................................................................................................................................................................             5.4       20.6     8.0       9.6        5.3        5.3       5.3        5.2        5.0        4.9
            Estimated outlays .......................................................................................................................................................................................       5.4        9.5     5.9      11.3        9.8        7.6       5.3        5.3        5.2        5.0
                                                                                                                                                                       CHANGES IN REVENUES
      Collected from bankruptcy trusts 1 .....................................................................................................................................................................              1.0          0       0       4.6          0          0         0          0          0          0
      Collected from defendant firms ..........................................................................................................................................................................             3.3        2.8     2.8       2.8        2.7        2.7       2.7        2.7        2.7        2.6
      Collected from insurers .......................................................................................................................................................................................       2.7        7.5     2.2       1.6        1.6        1.6       1.6        1.6        1.6        1.6
              Total revenues ........................................................................................................................................................................................      7.0        10.3     5.0       9.0        4.4        4.3       4.3        4.3        4.3        4.3
      Estimated net increase or decrease (¥) in the deficit from changes in revenues and direct spending .......................................................                                                          ¥1.5       ¥0.8      1.0       2.3        5.5        3.2       1.0        1.0        0.9        0.8
         1 Cash and financial assets of the bankruptcy trusts have an estimated value of about $5 billion. The federal budget would record the cash value of the noncash assets as revenues when they are liquidated by the fund’s administrator
      to pay claims.
         Notes.—Numbers in the table may not add up to totals because of rounding. * = less than $50 million. CBO estimates that by 2014 the Asbestos Fund under S. 2290 would have a cumulative debt of around $15 billion. Borrowed
      funds would be used during this period to pay claims and would later be repaid from future revenue collections of the fund. We estimate that interest costs over that period would exceed $2.5 billion, and CBO’s projections of the fund’s
      balances reflect those costs. However, they are not shown in this table as part of the budgetary impact of S. 2290 because debt service costs incurred by the government are not included in cost estimates for individual pieces of legisla-
      tion.


      Major provisions                                                                                                           Budgetary impact after 2014                                                                                  authorized by S. 2290 to continue operations
                                                                                                                                   CBO estimates that S. 2290 would require                                                                   for several years after 2014. Within certain
        Under S. 2290, a fund administrator would
      manage the collection of federal assessments                                                                               defendant firms, insurance companies, and                                                                    limits, the fund’s administrator would be au-
      on certain companies that have made ex-                                                                                    asbestos bankruptcy trusts to pay a max-                                                                     thorized to borrow funds to continue to
                                                                                                                                 imum of about $118 billion to the Asbestos                                                                   make payments to asbestos claimants, pro-
      penditures for asbestos injury litigation
                                                                                                                                 Fund over the 2005–2031 period. Such collec-                                                                 vided that forecasted revenues are sufficient
      prior to enactment of the legislation. Claims
                                                                                                                                 tions would be recorded on the budget as rev-
      by private individuals would be processed                                                                                                                                                                                               to retire any debt incurred and pay resolved
                                                                                                                                 enues.
      and evaluated by the fund and awarded com-                                                                                   We estimate that, under S. 2290, the fund                                                                  claims. based on our estimate of the bill’s
      pensation as specified in the bill. The admin-                                                                             would face eligible claims totaling about $140                                                               likely long-term cost and the revenues likely
      istrator would be authorized to invest sur-                                                                                billion over the next 50 years. That projec-                                                                 to be collected from defendant firms, insur-
      plus funds and to borrow from the Treasury                                                                                 tion is based on CBO’s estimate of the num-                                                                  ance companies, and certain asbestos bank-
      or the public—under certain conditions—to                                                                                  ber of pending and future asbestos claims by                                                                 ruptcy trust funds, we anticipate that the
      meet cash demands for compensation pay-                                                                                    type of disease that would be filed with the
      ments. Finally, the bill contains provisions                                                                                                                                                                                            sunset provisions in section 405(f) would have
                                                                                                                                 Asbestos Fund, as presented in our cost esti-                                                                to be implemented by the Asbestos Fund’s
      for ending the fund’s operations if revenues                                                                               mate for S. 1125. While the projected number
      are determined to be insufficient to meet its                                                                                                                                                                                           administrator before all future claimants are
                                                                                                                                 of claims remains the same, differences be-                                                                  paid. Those provisions would allow the ad-
      obligations.                                                                                                               tween the two bills result in higher projected                                                               ministrator to continue to collect revenues
        S. 2290 is similar in many ways to S. 1125.                                                                              claims payments under S. 2290. The composi-                                                                  but to stop accepting claims for resolution.
      A more detailed discussion of the fund’s op-                                                                               tion of those claims and a summary of the
      erations and the basis for CBO’s estimates of                                                                                                                                                                                           In that event, and under certain other condi-
                                                                                                                                 resulting costs is displayed in Table 2.
      the cost of compensation under these bills is                                                                                Although CBO estimates that the Asbestos                                                                   tions, such claimants could pursue asbestos
      provided in our cost estimate for S. 1125, the                                                                             Fund would pay more for claims over the                                                                      claims in U.S. district courts.
      Fairness in Asbestos Injury Resolution Act                                                                                 2005–2014 period than it would collect in reve-
      of 2003, which was transmitted to the Senate                                                                               nues, we expect that the administrator of
      Judiciary Committee on October 2, 2003.                                                                                    the fund could use the borrowing authority




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      April 20, 2004                                                                                      CONGRESSIONAL RECORD — SENATE                                                                         S4135
        TABLE 2.—SUMMARY OF ESTIMATED ASBESTOS CLAIMS                                                                 time, including contingent collections. CBO          bill’s medical monitoring program or as a re-
                  AND AWARDS UNDER S. 2290                                                                            has not estimated the maximum amount of              sult of information discovered through such
                                                [Dollars in billions]                                                 collections that could be obtained under S.          medical monitoring.
                                                                                                                      1125, but they could be greater than $118 bil-         S. 2290 contains one provision that would
                                                 Initial 10-year period                     Life of fund              lion under certain conditions. In our cost es-       be both an intergovernmental and private-
                                                                                                                      timate for S. 1125, we concluded that revenue        sector mandate as defined in UMRA. That
                                                 Number                               Number            Cost of       collections and interest earnings were likely        provision would provide the fund’s adminis-
                                                                      Cost
                                                of claims                            of claims          claims
                                                                                                                      to be sufficient to pay the estimated cost of        trator with the power to subpoena testimony
      Claims for malignant                                                                                            claims under that bill. That is not the case         and evidence, which is an enforceable duty.
         conditions ...................             59,000                 $36          127,000              $82      for S. 2290.                                           CBO estimates that the aggregate direct
      Claims for nonmalignant                                                                                                                                              cost of complying with the intergovern-
         conditions ...................           627,000                    17      1,230,000                 36       Over the first 10 years of operations, we es-
      Pending claims ...............              300,000                    22        300,000                 22     timate that revenue collections under S. 1125        mental mandates in S. 2290 would be small
                                                                                                                      would exceed those under S. 2290 by $7 bil-          and would fall well below the annual thresh-
              Total .......................       986,000                    75      1,657,000               140                                                           old ($60 million in 2004, adjusted annually for
                                                                                                                      lion. Thus, under S. 2290 we estimate that
                                                                                                                      there would be little interest earnings on           inflation) established in UMRA. CBO also es-
      Major differences in the estimated costs of                                                                                                                          timates that the aggregate direct cost of
                                                                                                                      surplus funds and that the Asbestos Fund
          claims under S. 1125 and S. 2290                                                                                                                                 complying with the private sector mandates
                                                                                                                      would need to borrow against future reve-
        You also requested that CBO explain the                                                                       nues to continue to pay claims during the            in S. 2290 would well exceed the annual
      major differences between our cost estimates                                                                    first 10 years of operations.                        threshold established in UMRA ($120 million
      for S. 1125 and S. 2290. On March 24, 2004, in                                                                                                                       in 2004 for the private sector, adjusted annu-
                                                                                                                      Estimates of the cost of resolving asbestos claims
      a letter to Senator Hatch, CBO updated its                                                                                                                           ally for inflation) during each of the first
                                                                                                                          are uncertain
      October 2, 2003, cost estimate for S. 1125,                                                                                                                          five years those mandates would be in effect.
      principally to reflect new projections about                                                                      Any budgetary projection over a 50-year              If you wish further details on this esti-
      the rate of future inflation and an assumed                                                                     period must be used cautiously, and as we            mate, we will be pleased to provide them.
      later enactment date for the bill. That letter                                                                  discussed in our analysis of S. 1125, estimates      The CBO staff contacts are Lanette J. Walk-
      explains that we now estimate enactment of                                                                      of the long-term costs of asbestos claims            er (for federal costs, who can be reached at
      S. 1125 at the end of fiscal year 2004 would re-                                                                likely to be presented to a new federal fund         226–2860, Melissa Merrell (for the impact on
      sult in claims payments totaling $123 billion                                                                   for resolution are highly uncertain. Avail-          state, local, and tribal governments), who
      over the lifetime of the Asbestos Fund                                                                          able data on illnesses caused by asbestos are        can be reached at 225–3220, and Paige Piper/
      (about 50 years).                                                                                               of limited value. There is no existing com-          Bach (for the impact on the private sector),
        Three factors account for the difference be-                                                                  pensation system or fund for asbestos vic-           who can be reached at 226–2960.
      tween the estimated cost of claims under S.                                                                     tims that is identical to the system that                   Sincerely,
      1125 and that under S. 2290 (see Table 3):                                                                      would be established under S. 1125 or S. 2290                          DOUGLAS HOLTZ-EAKIN,
        The award values specified in S. 2290 are                                                                     in terms of application procedures and re-                                                Director.
      higher for certain types of diseases. That dif-                                                                 quirements, medical criteria for award deter-          Mrs. FEINSTEIN. Where we have
      ference would add about $11 billion to the                                                                      mination, and the amount of award values.
                                                                                                                      The costs would depend heavily on how the
                                                                                                                                                                           made some changes—and I would sug-
      cost of claims, CBO estimates.                                                                                                                                       gest them—is in the second class, rais-
        Under S. 2290, most asbestos claims could                                                                     criteria would be interpreted and imple-
                                                                                                                      mented. In addition, the scope of the pro-           ing the Hatch-Frist values from $20,000
      not be settled privately once the bill is en-
      acted. In contrast, under S. 1125, asbestos                                                                     posed fund under this legislation would be           to $25,000; in class III, raising the val-
      claims could continue to be settled by pri-                                                                     larger than existing (or previous) private or        ues for asbestosis/pleural disease B
      vate parties between the date of enactment                                                                      federal compensation systems. In short, it is        from $85,000 to $100,000; in class VI,
      and the date when the Asbestos Fund is fully                                                                    difficult to predict how the legislation might       other cancers, going from $150,000 to
      implemented; defendant firms could credit                                                                       operate over 50 years until the administra-          $200,000; in class VII, giving non-
      any payments made during that period                                                                            tive structure is established and its oper-
                                                                                                                      ations can be studied.
                                                                                                                                                                           smokers with 15 years weighted expo-
      against required future payments to the                                                                                                                              sure a range of $225,000 to $650,000—that
      fund. Consequently, CBO estimates that the                                                                        One area in which the potential costs are
                                                                                                                      particularly uncertain is the number of ap-          is $50,000 more than in the Hatch-Frist
      fund created by S. 2290 would face about $5
      billion in claims that, under S. 1125, we an-                                                                   plicants who will present evidence sufficient        proposal; in class VIII, lung cancer
      ticipate would be settled privately.                                                                            to obtain a compensation award for non-              with pleural disease, giving non-
        S. 2290 specifies that administrative ex-                                                                     malignant injuries. CBO estimates that               smokers a range of $600,000 to $1.1 mil-
      penses of the program would be paid from                                                                        about 15 percent of individuals with non-            lion—a $100,000 increase; in class IX,
      the fund. Under S. 1125, in contrast, adminis-                                                                  malignant medical conditions due to asbes-
                                                                                                                                                                           giving nonsmokers a range of $800,000
      trative costs would be appropriated from the                                                                    tos exposure would qualify for awards under
                                                                                                                      the medical criteria and administrative pro-         to $1.1 million a $100,000 increase; and
      general funds of the Treasury. That dif-                                                                                                                             for mesothelioma, the last category, a
      ference would increase costs to the fund by                                                                     cedures specified in the legislation. The re-
                                                                                                                      maining 85 percent of such individuals would         $1.1 million average award on a sliding
      about $1 billion over its lifetime.
        In the limited time available to prepare                                                                      receive payments from the fund to monitor            scale.
      this estimate, CBO has not evaluated the dif-                                                                   their future medical condition. If that pro-           These numbers have been run by
      ferences between the two bills in administra-                                                                   jection were too high or too low by only 5           Goldman Sachs. They total $123.6 bil-
      tive procedures. Under S. 2290, the Asbestos                                                                    percentage points, the lifetime cost to the          lion, as opposed to the $114.4 estimated
      Fund would be operated by the Department                                                                        Asbestos Fund could change by $10 billion.           for the Hatch-Frist proposal.
      of Labor rather than the U.S. Court of Fed-                                                                     Small changes in other assumptions—includ-             Because I have not been party di-
      eral Claims. This and other differences be-                                                                     ing such routine variables as the future in-
                                                                                                                      flation rate—could also have a significant
                                                                                                                                                                           rectly to any of the discussion, regret-
      tween the two bills could affect the cost of                                                                                                                         fully, the only way I can get my views
      administration, the timing and volume of                                                                        impact on long-term costs.
                                                                                                                      Intergovernmental and private-sector mandates        through, it appears, is through the
      claims reviewed, and the rate of approval for
      claims payments.                                                                                                  S. 2290 would impose an intergovernmental
                                                                                                                                                                           floor of the Senate. I believe this is
                                                                                                                      mandate that would preempt state laws re-            much more fair to nonsmokers and I
       TABLE 3.—DIFFERENCES IN ESTIMATED CLAIMS AGAINST                                                               lating to asbestos claims and prevent state          believe the methodology of giving the
          THE ASBESTOS FUND UNDER S. 1125 AND S. 2290                                                                 courts from ruling on those cases. In addi-          trust administrator the ability that, if
                                                                                                                      tion, the bill contains private-sector man-          nonsmoker cases rise above a certain
                                                                                                       In billions    dates that would:                                    percent in the next year, at the end of
                                                                                                       of dollars       Prohibit individuals from bringing or              the previous year the administrator be
      Estimated cost of asbestos claims under S. 1125:                                                       123      maintaining a civil action alleging injury
                                                                                                                                                                           given the power to put all of those
         Added costs due to higher award values under S. 2290 ........                                        11      due to asbestos exposure;
         Additional claims not privately settled after enactment under                                                  Require defendant companies and certain            cases into the tort system which will
           S. 2290 .................................................................................              5                                                        not only act as a deterrent, but will
         Administrative costs under S. 2290 1 .......................................                             1   insurance companies to pay annual assess-
                                                                                                                      ments to the Asbestos Fund;                          also provide the ability to fund this.
              Total estimated claims against the fund under S. 2290 ...                                      140        Require asbestos settlement trusts to                One other point I want to make be-
         1 Under S. 1125 administrative costs would be appropriated from the gen-                                     transfer their assets to the Asbestos Fund;          fore I yield the floor has to do with the
      eral fund of the Treasury.                                                                                        Prohibit persons from manufacturing,               CBO letter. The CBO letter, in addition
                                                                                                                      processing, or distributing in commerce cer-         to the additional $5 billion that remov-
      Major differences in estimated revenue collec-
                                                                                                                      tain products containing asbestos; and
          tions under S. 1125 and S. 2290                                                                               Prohibit certain health insurers from de-          ing my startup amendment would cost
        CBO estimates that the Asbestos Fund                                                                          nying or terminating coverage or altering            the fund, also points out the bill on the
      under S. 2290 would be limited to revenue                                                                       any terms of coverage of a claimant or bene-         floor is different from the bill we
      collections of about $118 billion over its life-                                                                ficiary on account of participating in the           passed out of committee because in the



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      S4136                                             CONGRESSIONAL RECORD — SENATE                                                        April 20, 2004
      bill we passed out of committee, ad-                      If smoking and asbestos work in con-                 they are not going to pass it up. That
      ministrative costs would be appro-                      cert, together, why don’t any of the                   is what they do—as if all big businesses
      priated from the general funds of the                   bankruptcy trusts pay any money for                    are bad and all big businesses screw
      Treasury. That difference increases                     lung cancer claims that do not present                 their employees and all big businesses
      costs to the fund $1 billion over its life-             any markers or impairment at all?                      are out to hurt the economy.
      time.                                                   They do not.                                             Let me state for the record how this
        So those are the reasons why CBO de-                    Here we are giving $25,000 to $75,000                bill compares to the Halliburton settle-
      termined that the Hatch-Frist bill will                 for complaints that get absolutely zero                ment. The conditional settlement
      cost $17 billion more than the Com-                     in court. Why are these same claims al-                reached with the plaintiffs’ lawyers is
      mittee-passed bill.                                     most always met with a defense verdict                 just over $4 billion. There is a condi-
        By way of conclusion, I would very                    in the tort system? Even the tort sys-                 tional settlement that Halliburton en-
      much hope this bill will go back to the                 tem, as out of whack as it is, will not                tered into that is a little over $4 bil-
      Judiciary Committee. I very much                        give these people money. Yet we do.                    lion. Only $2.7 billion of that amount is
      hope all members of the Judiciary                       You would think it was a crime that it                 cash. Of this $2.7 billion, about $2.3 bil-
      Committee would have input into this                    is not more. That is typical of the ar-                lion may be recovered by Halliburton
      bill. Or a bill should be negotiated be-                guments on the other side. You will                    from insurers. The remaining amount
      tween the two leaders, so it is bipar-                  never have enough money here to sat-                   of the settlement, about $1.3 billion, in-
      tisan. There is no way I see a bill being               isfy some on the other side no matter                  volves issuing shares of stock. If the
      written in private passing this body.                   what you do. What we are trying to do                  legislation is adopted, it seems likely
      Too many of us have put in too much                     is resolve this problem so the country                 the stock value will increase so that
      time to try to get a fair solution to let               can go forward, so these businesses                    any dilution of stock values in the
      that happen.                                            don’t all go belly up, so the jobs are                 short run will be offset by medium- and
        I yield the floor.                                    not lost, pensions are not lost, and so                long-term capital gains. So the actual
        The PRESIDING OFFICER (Mr. AL-
                                                              people can get money without paying                    cost to Halliburton is not the $4 billion
      LARD). The Senator from Utah.
        Mr. DODD. Will the Senator from                       60 percent of the recoveries to attor-                 they throw in, which some of my col-
      Utah yield for 1 minute?                                neys and for transaction fees.                         leagues claim.
        Mr. HATCH. I am delighted to yield.                     By the time you add the defense at-                    We understand the firm believes re-
        Mr. DODD. I commend the Senator                       torneys’ costs, the plaintiffs’ attor-                 coveries from insurers in issuing new
      from California for her statement and                   neys’ contingent fees, and the trans-                  stock—two elements that those who
      comments. She has been deeply in-                       action costs, it is 60 percent of every                argue this is a bailout always neglect
      volved in this effort, as have many of                  dime that is raised in these horrendous                to mention—will act together to create
      us over the last number of months, if                   court decisions that are paying people                 an actual out-of-pocket liability to the
      not years. She has made a very com-                     who are not sick to the exclusion of                   firm of less than $1 billion.
      prehensive set of suggestions, to which                 people who are. This bill solves that                    How does their fund liability com-
      I think our colleagues want to pay seri-                problem.                                               pare? As a tier 1 company in this bill,
      ous attention. I know my colleague                        Isn’t it true this bill pays up to $1                under the fund they would pay $86.5
      from Utah will. He is a fairminded indi-                million to lung cancer claims where                    million per year. The total nominal
      vidual who cares deeply about this leg-                 there is more certainty it was caused                  value of their liability under the fund
      islation as well. But I commend her for                 by asbestos exposure? The fact is, it is               would be just short of $2 billion. This is
      her comments.                                           true. That is $1 million some of these—                a bailout? It is a lot more than they
        Mrs. FEINSTEIN. Thank you very                        a lot of these people will never get                   would have to pay under their settle-
      much.                                                   under the current tort system. But a                   ment. I hesitate to even say this in the
        Mr. DODD. At an appropriate time, I                   lot of people who have never suffered 1                Senate because if I were with Halli-
      say to the distinguished chairman of                    day of impairment in these jurisdic-                   burton, I would take care of the settle-
      the committee, I will ask unanimous                     tions I have been talking about will                   ment, the heck with this. But it would
      consent that following the remarks of                   wind up with millions of undeserved                    take some real effective money away
      the Senator I may have some time, too.                  dollars because this system is out of                  from this trust fund. Halliburton is not
      I don’t know what the order is, but is                  whack.                                                 the only one.
      such a request appropriate, Mr. Presi-                    I am getting a little sick and tired of                Again, it appears some of my col-
      dent?                                                   hearing my colleagues blast Halli-                     leagues are not interested in hearing
        The PRESIDING OFFICER. The Sen-                       burton. There is only one reason they                  details such as these. They would rath-
      ator can seek consent.                                  do that. That is because, even though                  er confuse the facts and do anything
        Mr. DODD. I ask unanimous consent                     he has nothing to do with it, even                     they can to make sure the personal in-
      at the conclusion of the remarks by the                 though he has long been gone from it,                  jury lawyers who support them do not
      chairman of the Judiciary Committee,                    even though everything he has had to                   lose out on their more than $60 billion
      the Senator from Utah, that the Sen-                    do with it has been finalized and                      of projected fees—just from asbestos
      ator from Connecticut be recognized                     closed, the Vice President used to work                litigation—if this bill is not passed.
      for 30 minutes.                                         for Halliburton. It gets old. I mean it is               No wonder they can afford to run
        The PRESIDING OFFICER. Without                        cheap shots, there is no question about                these stupid ads all over America, act-
      objection, it is so ordered.                            it. Frankly, let me say I have to re-                  ing as if they are fighting for little in-
        The Senator from Utah.                                spond to the dubious argument that                     dividual people. Give me a break. The
        Mr. HATCH. Mr. President, I listened                  Halliburton is gaining a windfall by                   fact is, everybody in this body knows
      to the distinguished Democratic leader                  this fund. Anybody who believes that                   there is a tremendous rip-off of a lot of
      on the Judiciary Committee, Senator                     should call them and ask how they feel                 people who have suffered from meso-
      LEAHY. He made a number of state-                       about this fund. The truth is they may                 thelioma and other related asbestos
      ments I feel need to be corrected. I                    actually be better off by not having                   diseases who are not going to get any-
      know he sincerely made them. I am not                   this legislation.                                      thing, or will get relatively nothing, if
      trying to disparage him in any way,                       Even some personal injury lawyers                    this bill does not pass.
      but he has made the same mistake I                      involved in the settlement with Halli-                   Now, we are faced today with a his-
      think the minority leader made this                     burton believe that is the case, that                  toric opportunity to right a serious
      morning, that only $25,000 is given to                  they are better off not being part of                  wrong being committed against vic-
      these people who are heavy smokers,                     raising the $124 billion.                              tims of asbestos exposure, as well as
      who have no sign of asbestosis, no                        The truth has not stopped some of                    the thousands of companies and indi-
      markers, no signs on their X-rays,                      my colleagues from making exagger-                     viduals who stand to lose out in terms
      where we have $25,000 to $75,000 for                    ated statements about this bill. I sup-                of potential bankruptcies, loss of jobs,
      these people, even though in all likeli-                pose it is no surprise that when they                  loss of pensions, under today’s down-
      hood their maladies have come from                      get the chance to take a shot, truthful                right irrational system of compensa-
      their smoking.                                          or not, at their favorite whipping boy,                tion under our current tort system.



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      April 20, 2004                                    CONGRESSIONAL RECORD — SENATE                                                                S4137
        For more than 20 years, our com-                      amounts of asbestos. Every moment he                   while the status quo might benefit a
      pensation of legitimate asbestos vic-                   spent working to return these ships to                 handful of personal injury lawyers, it
      tims has been unacceptably diminished                   battle, breathing the contaminated                     completely fails the one group that
      and delayed. It has become quite evi-                   dust and debris, worsened his condition                should be given the ultimate priority;
      dent to the Judiciary Committee that                    and guaranteed that he would never                     that is, the asbestos victims.
      tens of thousands of true asbestos vic-                 ever be able to recover.                                 Now, let me refer to this chart: What
      tims, including their families, are                       Not surprisingly, he developed meso-                 is wrong with asbestos litigation? This
      faced with agonizing pain and suf-                      thelioma, ultimately succumbing to                     is for the Navy veteran I have been
      fering, with uncertain prospects of any                 this horrible, painful, and deadly dis-                talking about with mesothelioma.
      meaningful recovery in the existing                     ease on—guess what—Veterans Day,                       Under the tort system, he gets nothing.
      tort system.                                            2001.                                                  Under the FAIR Act, each of them gets
        These inequitable results are particu-                  Mary Lou’s father was more fortu-                    $1 million. I have to say, no amount of
      larly troubling when viewed against                     nate in one way than many veterans:                    money will compensate people for what
      the reality that large dose exposures to                He had a daughter, a truly exceptional                 they have gone through, but that is so
      asbestos, associated with asbestos-re-                  woman who is a nurse, a lawyer, and a                  much more than any of them are ever
      lated diseases, ended in the 1970s. That                Navy Vietnam veteran. She is also a                    going to get without this bill.
      is when they ended. Asbestosis is con-                  member of the Veterans Rights Com-
                                                              mission.                                                 Now, as I say, unfortunately, the as-
      sidered by many as a ‘‘disappearing dis-
                                                                When she learned of her dad’s condi-                 bestos litigation problem reaches be-
      ease.’’ These victims are left with little
                                                              tion, she rushed to help him and her                   yond our veterans and into the lives of
      to nothing because, among other
                                                              mother navigate the complicated maze                   everyday,     hard-working     Americans
      things, precious resources are being di-
                                                              of regulatory and legal systems that he                who are victimized by asbestos and the
      verted toward the defense and payment
                                                              faced. Unwilling to take no for an an-                 very system designed to vindicate their
      of a massive influx of asbestos claims
                                                              swer, Mary Lou pushed to have him ex-                  rights. One matter I find particularly
      brought largely by a group of over-
                                                              amined at the National Cancer Insti-                   troubling is the case of Huber v. Tay-
      zealous personal injury lawyers on be-
                                                              tute, part of the National Institutes of               lor. That is a class action lawsuit cur-
      half of these many unimpaired plain-
                                                              Health. It was there that Mary Lou’s                   rently pending in the Western District
      tiffs, people who have never suffered
                                                              father received the definitive diagnosis               of Pennsylvania. The suit was filed by
      from anything to do with asbestos.
        Cardozo law school professor, Lester                  that he suffered from mesothelioma.                    2,644 plaintiffs in asbestos personal in-
      Brickman, found that more than 80                       Mary Lou made sure he received the                     jury suits against the personal injury
      percent of claims made in recent years                  best treatment available from experts                  lawyers who represented them. The
      and 90 percent at present do not in-                    throughout the country.                                suit charges that the lawyers treated
      volve a medically recognizable injury.                    After his death, Mary Lou helped her                 their clients as mere inventory, dis-
      You wonder what is going on. That                       mother fight through the regulatory                    tributing only a few thousand dollars
      would not happen but for courts that                    requirement to obtain dependent in-                    to each plaintiff for their injuries,
      literally are not abiding by the law,                   demnity compensation from the Fed-                     while retaining tens of millions of dol-
      where judges are bought by trial law-                   eral Department of Veterans Affairs for                lars in attorneys’ fees.
      yers, and where they are totally plain-                 a service-connected death. She helped                    Now, I bring this case to the Cham-
      tiffs oriented and the jurors come from                 her mother find an asbestos plaintiffs                 ber’s attention because it underscores
      areas where it is not their money, so                   law firm to file a tort and wrongful                   the severity of the asbestos litigation
      they will put up any amount of money                    death claim. Now, despite Mary Lou’s                   crisis and why it is imperative we, as a
      for people who are not even injured.                    efforts, her father’s lawsuit, even with               legislative body, must now act to ad-
        In other words, a great majority of                   a resourceful and tenacious advocate                   dress this problem.
      asbestos lawsuits today are brought by                  like his daughter, has been languishing                  Ronald Huber spent 35 years as a
      those who are not even sick. These                      in the courts for over 18 months.                      steelworker, inhaling asbestos fibers
      claimants show lung conditions similar                    As most veterans learn, there are few                while working on the job. In 1995, he
      to the general population, including                    viable defendants left who are respon-                 joined a class action against nearly 200
      that of individuals with absolutely no                  sible for supplying asbestos to the                    companies that made or distributed as-
      asbestos exposure at all.                               Navy. Mary Lou’s mother received                       bestos or asbestos-containing products.
        To put the asbestos litigation prob-                  three checks from defendant compa-                     Although that class action settled for
      lem in perspective, I will share the                    nies, but they are all bankrupt and the                approximately $140 million, Mr. Huber
      story of Mary Lou Keener, the daugh-                    amounts are very tiny. She can only                    has not seen a single penny from this
      ter of an asbestos victim, who has spo-                 cling to the hope that there may be                    award. How much did Mr. Huber’s law-
      ken out in support of this legislation.                 other viable defendants, but the reality               yers walk away with? They received $56
      Mary Lou knows all too well how the                     is that far too many veterans will go                  million.
      current asbestos crises has failed some                 uncompensated under the current tort
                                                                                                                       Look at this chart: What is wrong
      of our Nation’s true patriots, our vet-                 system.
                                                                Perhaps this is why Mary Lou Keener                  with asbestos litigation? Huber v. Tay-
      erans.                                                                                                         lor. The trial lawyers got $56 million;
        Mary Lou Keener’s father served in                    spoke out in support of S. 2290, stating:
                                                                The courts are clogged with asbestos cases,
                                                                                                                     asbestos victims basically nothing.
      the engine rooms of the USS Mayrant,
                                                              and even if [my mother] finally has her day            Think about it. That is right, the law-
      Lindsey, and Columbus in World War II
                                                              in court, the law firm will collect almost             yers received $56 million and the asbes-
      in the Pacific. Both the Mayrant and
                                                              half of any jury award. That’s why passage of          tos victims received nothing.
      Lindsey suffered serious damage from
                                                              [the FAIR Act] is so important. The Trust                In response to this severe injustice,
      enemy attacks. Mary Lou’s father had                    Fund solution to this problem envisioned by
      the dangerous assignment of helping to                                                                         Mr. Huber and over 2,000 of his fellow
                                                              [the FAIR Act] will bring much needed com-
      bring these crippled ships back to port,                pensation to veterans suffering from asbes-
                                                                                                                     class members filed a lawsuit on Feb-
      spending months fighting to keep them                   tos related diseases and end the vagaries and          ruary 7, 2002, in the U.S. District Court
      afloat, and beginning massive repair                    lengthy delays of the current/tort wrongful            for the Western District of Pennsyl-
      work while they were still at sea. He                   death systems.                                         vania against the personal injury law-
      then spent months at the shipyard                         Last year, Mary’s mother received a                  yers who represented them in the first
      helping to finish the repairs.                          call from her attorney. Unfortunately,                 action. As of today, the court is still
        What Mary Lou’s father did not know                   it was not about her husband’s case. In-               hearing arguments on various motions.
      was that the countless hours spent in                   stead, she was told she should consider                  The complaint charges the defend-
      the engine rooms and boilers would                      contacting her Senators immediately                    ants with breach of fiduciary duty; fail-
      cost him his life. The same is true of                  and ask them to vote against the as-                   ure to disclose the identity and nature
      thousands of veterans like him. These                   bestos legislation. Needless to say, she               of the actions they had joined; false
      ships, like almost every vessel in our                  declined that request. She understands                 representation to deprive the plaintiffs
      fleet at the time, contained massive                    that for veterans like her husband,                    of funds belonging to the plaintiffs;



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      S4138                                             CONGRESSIONAL RECORD — SENATE                                                       April 20, 2004
      failure to exercise the degree of com-                  Thus, for the scores of victims who do                   I have to say, when you folks out
      petence and diligence exercised by law-                 not have an ironclad case against any                  there see these phony ads about how
      yers in similar circumstances; and mis-                 one defendant, a no-fault system is an                 this bill is bad and the tort system is
      representation of material facts. The                   extremely important component when                     good, those ads are paid for by these
      plaintiffs are seeking compensatory                     crafting a solution to the asbestos                    attorneys who have already taken $20
      and punitive damages.                                   problem.                                               billion in fees away from victims, and
        All of the plaintiffs to this action are                Now, to illustrate my point, I would                 will take another $40 billion more, for
      described as ‘‘hard-working union                       like to share the story of siblings Paul               a total of $60 billion, out of their pock-
      members in blue-collar trades.’’ All of                 and Suzanne Verret. After being diag-                  ets. It is easy to see why they do not
      them were exposed to asbestos during                    nosed with plural mesothelioma, both                   want this bill. It is a gravy train they
      their working years. All, to a large ex-                brought suit against four defendants,                  do not want to stop.
      tent, have little knowledge or experi-                  each a potentially responsible party                     They certainly don’t want it to be
      ence in the legal system. All state they                under tort law. But after hearing evi-                 stopped by this bill, which is where the
      were ‘‘recruited’’ by plaintiffs’ law                   dence presented by the defense, a Texas                gravy train would end for lawyers and
      firms for inclusion in ‘‘mass actions,’’                jury ruled, just last month, that the                  recoveries that are worthy will begin
      and all say their lawyers told them                     Verrets’ conditions were not caused by                 for victims.
      nothing about the lawsuits in which                     any of the four defendants who were                      Let me say, although the stakes in
      they were involved.                                     likely to have been the result of expo-                this debate are high, the risk of not
        Their complaint arises from what                      sure to asbestos from a Johns Manville                 acting or allowing a broken system to
      they call the ‘‘corruption of the per-                  factory in the neighborhood.                           remain broken is even more consequen-
      sonal injury bar.’’ The lawsuit states                    Asbestos tailings from the plant have                tial. We at the very least owe it to peo-
      that, as early as the early 1980s, the                  been used for driveways and parking                    ple such as Mary Lou Kenner and Ron-
      prosecution of asbestos personal injury                 lots in the neighborhood where the                     ald Huber to make this bill the pending
      claims had evolved into an industry                     Verrets grew up. Johns Manville, how-                  business of the Senate. We really need
      and the lawyers who were prominent in                   ever, is now bankrupt and its asbestos                 to do that.
      that industry had accumulated a vast                    trust is paying pennies on the dollar on                 Let me tell you one more story about
      amount of wealth. To quote the com-                     all claims. As a result of the jury’s ver-             the impact of the current asbestos sys-
      plaint:                                                 dict, the Verrets are unlikely to re-                  tem on American business. The reach
        The promise of such wealth drew addi-                 cover any compensation for their inju-                 of the personal injury lawyers—I am
      tional plaintiffs’ lawyers into the field, and          ries, but under S. 2290 they stand to re-              talking about the dishonest ones—and
      this resulted in more and more aggressive ef-           cover $1 million each in compensation.                 their web of abusive litigation prac-
      forts to recruit asbestos personal injury                 Now, look at these Texas mesothe-                    tices appears to have no limit. At last
      plaintiffs.                                             lioma victims, Paul and Suzanne                        count these personal injury lawyers
        I think it is a sad state of affairs                  Verret. Under the current tort system,                 have cast their asbestos net to include
      when asbestos victims have to sue                       as shown on the chart on the left, vic-                some 8,400 defendant companies rep-
      their own lawyers to receive compensa-                  tims hire lawyers and sue defendants.                  resenting virtually every industrial
      tion for their injuries. We cannot allow                After years of trial processes and                     sector of the U.S. economy.
      the current, broken system to continue                  delays, victims are unable to prove                      Approximately 70 companies, 35 since
      in this manner. It deprives victims of a                causation. They use trial lawyers and                  the year 2000 alone, have now been
      meaningful remedy and diminishes                        collect zero. But under this bill, S. 2290,            driven into bankruptcy as a result of
      public confidence in our civil justice                  with the trust fund—if enacted—each                    asbestos litigation. Disturbingly, most
      system.                                                 of these people will collect $1 million                of these companies that now find them-
        I think we have to do something now                   in compensation.                                       selves named as defendants in asbestos
      to ensure there are no more Robert                        By the way, unless they are lucky                    cases had little or nothing to do with
      Hubers who are left with no recourse                    enough to get a lawyer who is going to                 the manufacture, sale, or distribution
      other than to sue their own lawyers.                    forum shop for them into a jurisdiction                of asbestos or asbestos-containing
        We must also act now to ensure that                   where the judges are basically in the                  products. Under the ‘‘deep pocket’’ the-
      the tireless efforts of everyday Ameri-                 pockets of the plaintiffs’ lawyers, the                ory of law now commonly subscribed to
      cans such as Mary Lou Kenner are not                    personal injury lawyers, they might                    by many personal injury lawyers, li-
      taken in vain. These are two of just                    get something that way, but there are                  ability is not based on culpability; in-
      thousands and thousands of people.                      going to be very few who get that, and                 stead, it is based on the nearest avail-
        It is because of these problems that I                most of those people are not going to                  able pot of money.
      urge my colleagues to support S. 2290.                  be ill. They are not going to have suf-                  What is more, an estimated 90 per-
      Under this bill, victims will receive                   fered and not going to be able to prove                cent of the claims now being filed are
      prompt and certain compensation                         their case in other courts of law in the               on    behalf    of   persons    with    no
      through a privately funded trust ad-                    country. It is pathetic.                               discernable illness, many of whom were
      ministered by the Department of                           Naturally, there are some great law-                 recruited by for-profit, mass- screening
      Labor. Moving existing claims to the                    yers who do what is right here. I do not               operations being sponsored by enter-
      fund will significantly cut out the ex-                 mean to find fault with them. I find                   prising trial lawyers.
      orbitant transaction costs inherent in                  fault with these phonies who use forum                   I would like to talk about a company
      our tort system—especially given the                    shopping jurisdictions and really what                 that has facilities in my home State of
      no-fault nature of the new system                       I consider to be corrupt judges and, in                Utah. Philadelphia-based Crown Cork
      being proposed.                                         many cases, corrupt juries, to obtain                  & Seal is representative of all too
        In today’s tort system, victims bear                  humongous verdicts for people who are                  many of the businesses that have found
      the heavy burden of proving that a spe-                 not even sick, taking the moneys away                  themselves targeted by the personal in-
      cific product caused their illness. They                from those who are sick, which this bill               jury lawyers over asbestos.
      must show culpability through causa-                    would solve.                                             In 1963, Crown Cork & Seal, a con-
      tion and connect the dots that lead to                    In the coming days, we will be en-                   sumer products packager in the can
      the ultimate defendant. Unfortunately,                  gaged in a historic debate regarding                   and bottle cap business, purchased, for
      few victims today are capable of pro-                   the asbestos litigation crisis facing                  $7 million, the stock of Mundet Cork
      ducing sufficient evidence to show                      this country. The outcome of this de-                  Company, a New Jersey-based firm
      their illnesses were caused by a par-                   bate will have very real consequences                  that made cork-lined bottle caps and
      ticular company’s products. In fact, be-                on the victims of asbestos and their                   insulation that contained asbestos. Be-
      cause of the long latency period associ-                families. These victims are counting on                cause Crown was only interested in the
      ated with these asbestos-related dis-                   us, their elected Senators, to do the                  bottle-cap business, Mundet sold its in-
      eases, the quality of evidence will in-                 right thing and address the problems in                sulation division approximately 90 days
      evitably degrade over time where                        our tort system that is badly broken by                after the purchase of its stock by
      memories fade and documents get lost.                   asbestos litigation.                                   Crown. Thereafter, Mundet, consisting



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      April 20, 2004                                    CONGRESSIONAL RECORD — SENATE                                                                S4139
      only of its bottle cap business, was                    and hopefully pass them, if they are                   way. The rest, probably another 10 per-
      merged into Crown.                                      good. If they are not, they might get                  cent, goes to the defendant attorneys
        Crown never operated Mundet’s insu-                   them passed anyway. The point is, let’s                who have to defend these companies,
      lation business, nor had it ever in-                    at least allow the Senate to work its                  many of which should not have any li-
      tended to operate its insulation busi-                  will. Let’s not stop even a motion to                  ability at all.
      ness. Crown was only interested in ac-                  proceed this bill.                                       There is no justification for allowing
      quiring Mundet’s bottle-cap assets; no                    I would like to respond to claims                    personal injury lawyers to continue to
      Mundet insulation managers ever                         that were made earlier today that the                  siphon significant resources out of the
      worked for Crown, and no Mundet                         Hatch-Frist-Miller bill is not fair to                 system when these resources could be
      stockholders ever had any ownership                     pending plaintiffs. This bill preempts                 dedicated to compensating those who
      interest in Crown.                                      and supersedes those claims pending in                 are truly sick from asbestos exposure.
        The trial lawyers have made Crown                     the tort system today, including ver-                  The intent of the FAIR Act is to fix a
      Cork & Seal pay dearly for the 90 days                  dicts that are still subject to appeal or              system that everyone agrees is badly
      it owned the insulation division of                     judicial review. Preemption of such                    broken and in desperate need of repair.
      Mundet. To date, Crown has had to pay                   claims assures an end to a broken tort                   John Hyatt, the counsel for the AFL–
      out over $400 million in asbestos                       system that everyone agrees is slow,                   CIO who testified before the Judiciary
      claims. To give this some context, that                 unwieldy, and fundamentally unfair to                  Committee in 2002, described the tort
      is over 57 times what Crown paid for                    asbestos victims.                                      system as having ‘‘high transaction
      Mundet in 1963. In fiscal year 2003                       The opponents’ solution to their con-                costs, inequitable allocation of com-
      alone, Crown paid over $200 million in                  cern that the FAIR Act is unfair for                   pensation among victims, delays in
      asbestos-related costs, of which only                   pending plaintiffs is to keep the tort                 payment to victims, and a general cli-
      $25 million—or 12.5 percent—went to                     system open for pending claims. These                  mate of uncertainty that is damaging
      real victims of asbestos-related dis-                   critics are asking Congress to perpet-                 business far more than it is compen-
      eases, and that is what is going on.                    uate the very problem this bill is seek-               sating victims.’’ That is the counsel for
        It is a rip-off. That is what is going                ing to rectify; that is, a broken system               the AFL–CIO. I have often heard Demo-
      on. That is what our colleagues are ar-                 that is failing victims by misallocating               cratic colleagues make similar state-
      guing for. It is a rip-off. Why? Some                   resources away from the truly sick,                    ments perpetuating the tort system,
      say it is because these personal injury                 where such victims receive too little                  claims that undermine the bill, saying
      lawyers are going to put up $50 million                 because so much is going to the                        that would be better or more ‘‘fair’’
      or $100 million for their nominee for                   unimpaired and to attorneys who take                   treatment than they would get under
      President. I hope that is not true, but                 most of the money.                                     the FAIR Act. ‘‘Fair’’ has to be in
      it is all too evident that that probably                  We all know the statistics. The vast                 quotes in that manner.
      is.                                                     majority of the claims being filed                       In fact, the Hatch-Frist-Miller bill
        Here are these victims who should                     today, as high as 90 percent, are by in-               provides relief to current pending
      not have been able to sue Crown Cork                    dividuals with little or no current func-              claims. Any claimant who has filed a
      & Seal to begin with. Crown Cork paid                   tional impairment. Let me tell you                     lawsuit in any State would be eligible
      over $200 million in asbestos-related                   how this translates into real money.                   for prompt compensation from the fund
      costs last year alone, and the victims                  Using the values cited by the minority                 provided they meet the eligibility cri-
      got $25 million out of $200-plus million                views in the report of the Judiciary                   teria set forth in the bill. These cri-
      or 12.5 percent. All the rest went to                   Committee on S. 1125 for unimpaired                    teria are quite wrong. We should not
      lawyers, claimants who were not ill,                    claimants, it is $40,000 to $125,000. Al-              treat plaintiffs in court as second class
      and other costs.                                        lowing pending claims to continue                      citizens. Cases filed in the tort system
        Look at this Crown Cork & Seal                        could direct anywhere from $10.8 bil-                  take years to process, and there is no
      chart. What is wrong with asbestos liti-                lion to $33.8 billion or more to                       guarantee that even with the trial
      gation? Crown Cork & Seal: $25 million                  unimpaired claimants.                                  date, a case will proceed. Cases in New
      out of $200 million total. Of the more                    How many of these claims are based                   York City given trial dates in 2002 have
      than $200 million paid by Crown Cork &                  on mass screenings? It has been esti-                  yet to go to trial. Even then, in most
      Seal in 2003, actually only $25 million                 mated that the abuse of mass                           jurisdictions, cases that actually have
      went to individuals impaired with as-                   screenings has resulted in $28.5 billion               been tried are often appealed, and
      bestos-related illnesses. Where did the                 having been paid for meritless claims.                 years pass before the case is formally
      $175 million go? It is a rip-off. That is               That is almost $30 billion that has gone               resolved. In the interim, plaintiffs are
      what is happening.                                      to people who don’t really have claims.                without relief, and money is being
        This bill will stop that. It is an ex-                This completely undermines the con-                    spent on lawyers, with no relief. There
      pensive bill for the companies involved.                sensus public policy decision to redi-                 is no reason to leave this type of sys-
      They are going to have to pay for 27                    rect these funds to those who are truly                tem in place. Moreover, the mere fact
      years and pay through the nose. Many                    sick from asbestos exposure and the                    that a case is filed is no guarantee it
      of them are in the same position as                     whole purpose of this asbestos legisla-                will proceed. Claimants’ cases proceed
      Crown Cork. They should never have                      tion.                                                  sometimes based on how many slots
      had to pay a dime to begin with. The                      The bipartisan medical criteria argu-                the trial has for your lawyer, where the
      story of Crown Cork & Seal is just one                  ment forged in the Judiciary Com-                      cases were filed, what defendants are
      of thousands of examples why we can-                    mittee recognizes unimpaired claim-                    left, and other vagaries completely out
      not put off fixing this problem any                     ants should be monitored but should                    of a claimant’s control. That day will
      longer. Our current system is one that                  not be paid for illnesses they have not                stop with the passage of this bill,
      does not serve businesses and their em-                 and may never develop. But we will pay                 which now provides expedited pay-
      ployees whose livelihoods depend on                     for monitoring.                                        ments to anyone who can demonstrate
      them. Our current system surely has                       Opponents of the bill who seek to                    a hardship, who has been diagnosed—
      not served the victims of asbestos.                     perpetuate the tort system would also                  anybody who can demonstrate a hard-
        I urge my colleagues to join me in                    preserve the exorbitant attorney’s fees                ship or who has been diagnosed with
      supporting the FAIR Act, to vote for                    associated with such claims. As much                   mesothelioma or with another asbes-
      cloture so that we can stop this ob-                    as 40 to 50 percent of awards go to the                tos-related disease who has less than a
      structionist filibuster being led by                    personal injury plaintiffs’ lawyers fees               year to live or can otherwise establish
      some of my Democratic colleagues.                       and costs. Indeed, while we debate the                 a circumstance requiring accelerated
      Think about it. They are filibustering                  bill, personal injury attorneys likely                 payment. The money is there now,
      a motion to proceed to this bill so we                  will file a large number of claims in                  when it is needed, and it can be paid
      can debate the bill itself, filibustering               the tort system, most of which un-                     out quickly to help these families. This
      it so we cannot add amendments to the                   doubtedly will be for unimpaired                       bill also fixes the judicial system,
      bill. If they have good amendments,                     claimants which would be allowed to                    unclogs the courts, allowing these
      bring them up. We will listen to them                   continue if these opponents have their                 judges to deal with other matters, not



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      S4140                                             CONGRESSIONAL RECORD — SENATE                                                       April 20, 2004
      asbestos cases in the wings waiting for                 $3,000. The others didn’t even have in-                not tried to accommodate them about
      court time that is precious and, at this                juries.                                                these matters.
      point, unavailable.                                        Substantial judicial proceeds dating                  Mr. President, I have one more com-
         There is no need or benefit to leave                 back to the early 20th century supports                ment that I would like to make to sen-
      these cases which have been clogging                    the constitutionality of Congress’ au-                 ator DASCHLE’s statements this morn-
      the courts pending in the courts. These                 thority to preempt tort claims when it                 ing. He stated that a lung cancer vic-
      cases are the very reason we are seek-                  believes it is in the public interest. It              tim with 15 years of exposure would re-
      ing to fix a broken system. There is no                 is clearly in the public interest, and es-             ceive only $25,000 in compensation. He
      evidence the courts can or will handle                  pecially in the interest of asbestos vic-              painted an incomplete picture which I
      them properly and not prejudice the                     tims, that Congress used the full ex-                  would like to finish. First, that figure
      litigants waiting their turn. Creating a                tent of its powers to preempt the cur-                 is the bottom of the range of com-
      two-track process is likewise unfair to                 rent asbestos litigation system.                       pensation. Under the claims values in
      victims and defendants. Despite all the                    Finally, Mr. President, allowing per-               FAIR Act, claimants who were exposed
      rhetoric from opponents to the bill,                    sonal     injury    lawyers    and     the             to asbestos and still smoking will re-
      when compared to what the current                       unimpaired to continue to drain re-                    ceive between $25,000 to $75,000 in com-
      tort system will provide, legitimately                  sources out of the system and away                     pensation. And for the record, Senators
      ill claimants will fare much better                     from those who deserve the resources                   LEAHY and KENNEDY have stated that
      under this FAIR Act.                                    would not only be unfair to the truly                  they want $50,000 for claimants falling
         We will have victims who get imme-                   ill, it is likewise unfair to defendants               into this category. Mr. President, I
      diate relief through the fund, while                    who ask them to pay into a no-fault                    have come here to discuss the FAIR
      those with litigation pending must                      system, give up some of their insurance                Act. We have a chance to help those
      wait and hope for a court date and then                 company, and still expose them to the                  who have suffered from asbestos-re-
      hope the company responsible is still                   litigation lottery. We cannot expect                   lated injuries for far too long. Many
      solvent and can afford the cost. What                   the defendants to bear the costs and                   people have spent many months get-
      will we say to them when we have left                   risks if it fails the judicial process.                ting us to this point and I want to en-
      a system that we agree is broken, and                   This system will continue to take 60                   sure that we have a complete picture of
      they are sitting in court for years?                    percent of every dollar and waste it on                the bill for the record. We owe at least
      Great care has been made to ensure                      lawyers’ experts and administrative                    that much to those victims.
      that the compensation program would                     costs.                                                   Mr. President, I yield the floor.
      be processing and paying claims soon                       The Hatch-Frist-Miller bill will stop                 The PRESIDING OFFICER (Mr.
      after the date of enactment. There are                  the litigation lottery in its tracks and               CHAFFEE). The Senator from Con-
      no assurances that plaintiffs would                     instead replace it with a fair adminis-                necticut is recognized.
      have claims resolved in the tort system                 trative process that treats all partici-                 Mr. DODD. Mr. President, let me
      within this same amount of time. In-                    pants fairly and consistently.                         begin by, first of all, commending my
      deed, experienced staffs say they are                      I want to respond to a few statements               colleagues on the Judiciary Com-
      likely to continue to sit in court even                 made by my friend and colleague from                   mittee. I am not a member of this dis-
      longer.                                                 South Dakota earlier this morning re-                  tinguished committee. I had the good
         Furthermore, awards in the tort sys-                 garding S. 2290, the Fairness in Asbes-                fortune of serving on the Judiciary
      tem are disparate and depend largely                    tos Injury Resolution Act of 2004.                     Committee in the other body years
      on where the claim was filed, what                         Senator DASCHLE stated there was no                 ago, in the House of Representatives. I
      judge is presiding, rather than the se-                 reversion to the tort system. In fact,                 have great respect for my colleagues
      verity of the illness. In other words, it               there is reversion to the tort system. It              who serve on the Senate Judiciary
      is a phony system.                                      is one of the concessions we made.                     Committee in either body because they
         Professor Laurence Tribe described                   Should the fund become insolvent, then                 deal with some of the most contentious
      the system as resembling a lottery,                     claimants with asbestos injuries who                   issues before the American public.
      noting: Some victims receive astro-                     have not received compensation under                     It is not easy to be the chairman of
      nomical awards, while others receive                    the fund may pursue their claims in                    that committee, regardless of which
      little or nothing. Quite a few severely                 the courts. The statement that there is                party is in the majority in the Senate.
      injured victims die before their cases                  no reversion is simply wrong. I want to                I have the utmost respect for my friend
      could can be heard. Plaintiffs point to                 correct the record.                                    from Utah. He and I have spent many
      the larger awards in some cases and                        Senator SARBANES stated that we                     years serving in this body together.
      cannot be denied, so some have been                     ‘‘sprung’’ the bill on the Democratic                  There have been countless pieces of
      able to win in this lottery system, or                  Senators and their staffs. Senator                     legislation that we have worked on to-
      win the lottery. These awards, how-                     DASCHLE called attention to the total                  gether that are the law of the land
      ever, are the exception and reserved for                fund value. For the record, Senator                    today. I have great admiration for him.
      the few claimants who can survive                       DASCHLE’s staff was informed of the                      He is a legislator. I say that because
      through a long and hard trial, as well                  new numbers last October. That was 6                   there seems to be a shrinking number
      as appeals, often taking many years to                  months ago. Since October, there have                  of legislators around here regardless of
      see any moneys at all. Then they will                   been repeated and continuing discus-                   party affiliation. He is a legislator.
      find that about 60 percent of the mon-                  sions of these numbers over the ensu-                  That means someone who is willing to
      eys are gone anyway.                                    ing months. We repeatedly asked the                    sit down and work out issues. I wish to
         The plaintiffs bar doesn’t point to                  Democrats for a response to the num-                   begin by thanking and commending
      the majority of claims receiving sig-                   bers. We have received absolutely none.                him for his efforts on this difficult sub-
      nificantly less money for more severe                   We repeatedly asked the Democrats for                  ject matter, asbestos. This is an area in
      claims or even up to 40 percent taken                   a legislative proposal—some language,                  which I have had a longstanding inter-
      out for attorneys’ fees. As a stark ex-                 an outline, a concept of a structure,                  est, as many of my colleagues know,
      ample, a 2001 asbestos verdict awarded                  something, anything. We received                       going back a number of years. This
      Mississippi plaintiffs $25 million each,                nothing.                                               issue is of critical importance to my
      where none of the plaintiffs claim prior                   As Senator DASCHLE knows, this so-                  State of Conneticut, because it is the
      medical expenses or absences from                       called new bill that we allegedly                      home of numerous small and large
      work due to any related illness with                    ‘‘sprung’’ on him includes the very                    manufacturers, as well as several
      the case of a cancer victim who under-                  numbers we released months ago, the                    major insurance companies. They have
      went a lung removal operation. This                     changes demanded by the Democrats,                     a strong interest in the outcome of a
      cancer victim grudgingly agreed to                      and the changes demanded by the                        resolution of this very perplexing prob-
      join a class action suit against an as-                 unions. We have had 8 months of seri-                  lem of asbestos litigation and related
      bestos company. He never lived to see                   ous negotiations. I don’t think it is jus-             issues.
      the outcome of the case, and after 7                    tified for anybody to say they have                      I have a strong interest in trying to
      months his estate was awarded a mere                    been kept out of the process, we have                  come up with a solution for, first and



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      April 20, 2004                                    CONGRESSIONAL RECORD — SENATE                                                                 S4141
      foremost, victims of asbestos exposure.                 tablish a bona fide trust that would                   Manville trust is only paying about 5
      It is estimated that more than 27 mil-                  allow for fair and equitable compensa-                 percent of the compensation victims
      lion people who have been exposed to                    tion to those who have been deter-                     should be receiving.
      asbestos over the years.                                mined to suffer from diseases related to                 It went very wrong, not because the
        Regrettably, we know there are                        exposure of asbestos. The five or six                  people who put it together planned it
      many who will die prematurely because                   major issues are the following:                        that way, but nevertheless that is what
      of their exposure to this product. In                     One, can we establish medical cri-                   happened. No one I know of wants that
      fact, last year alone, 10,000 people in                 teria which would make it possible to                  to happen here, but it makes my point
      this country died as a result of their                  determine who has been exposed and to                  that this is a complex issue. And that
      exposure to asbestos. The numbers are                   what extent have they been adversely                   getting this right is very important.
      truly staggering. We know there are                     affected as a result of that exposure. I               We must be sure that this solution is
      over 600,000 past and pending cases in-                 thought that issue would never get re-                 going to work well. So it takes a little
      volving over 6,000 businesses, that have                solved. This has not been an easy task.                time—and in my opinion, it is time
      been cited as defendants in these cases.                Can you imagine trying to bring doc-                   well spent.
      And we know there are going to be lit-                  tors together with organized labor,                      I do not know why at this very hour
      erally millions of people who are going                 manufacturers, and insurance compa-                    we have this legislation before us. It is
      to suffer.                                              nies, all sitting down and agreeing on                 not ripe yet. It has not matured enough
        So we must attempt to provide a bet-                  what the medical criteria for this legis-              yet. There are still huge issues out-
      ter answer than the present system                      lation should be? I am pleased to an-                  standing.
      which has clogged up our courts, which                  nounce that months ago we were actu-                     Obviously, one of the major open
      has denied too many victims—seriously                   ally able to reach an agreement on the                 issues is the overall dollar amounts. I
      impaired victims—of the kind of com-                    medical criteria. Amazingly, the issue                 know it sounds like a lot of money—
      pensation they deserve. I have had a                    of medical criteria has been resolved.                 and there is a lot of money at stake
      longstanding interest in trying to come                   The second issue is whether we could                 here. But when we start talking about
      up with a solution. We have gotten                      create an administrative system to                     25 or 30 years of a trust fund’s exist-
      very close to such a solution.                          process and review claims. This is also                ence, the difference is somewhere
        Let me begin by reporting on the                      not an easy undertaking. Thanks to                     around $115 billion and $155 billion,
      progress that has been made. There is a                 Senator ARLEN SPECTER of Pennsyl-                      give or take a billion here and there.
      tendency to only discuss the areas                      vania and thanks to his constituent,                   As Senator Everett Dirksen said: A bil-
      where there is still disagreement, and I                Judge Becker, and, by the way, the in-                 lion here and a billion there and pretty
      think that only tells part of the story.                volvement of a number of our Senate                    soon you are talking about real money.
      People such as Senator HATCH and Sen-                   colleagues under the auspices of Sen-                  This is real money. We are not talking
      ator LEAHY, have worked tirelessly on                   ator SPECTER’s leadership—we have                      about hundreds of billions of dollars
      this issue. The majority leader, Sen-                   reached an agreement in this area we                   difference. We are talking $20 to $30 bil-
      ator FRIST, and the minority leader,                    think is going to work.                                lion or so over 30 years, spread among
      Senator DASCHLE and their staffs have                     Creating an administrative system is                 a large number a defendant companies
      also spent a great deal of time on this                 a major accomplishment. Many people                    and insurers who face greater losses
      legislation. Senator DASCHLE has al-                    thought we would never be able to re-                  and greater uncertainty under the cur-
      ways kept his door open, and repeat-                    solve this issue. On two of the major                  rent system.
      edly tried to see if we could proceed                   five or six issues, we have already                      It seems to me if we get actuaries to-
      with a meaningful negotiation process.                  achieved results. But it took weeks to                 gether, and agree at the universe of po-
      Such a process must occur in order to                   work out the details behind these                      tential claimants, and provide them
      bring the various parties together                      agreements.                                            fair compensation, we should be able to
      around a resolution of this issue.                        An asbestos compensation trust fund                  come up with a neutral number to sat-
        There are many others who have                        idea is complex. It is very complex.                   isfy the needs of expected claimants.
      been critically involved in this issue.                 When we envision a trust fund that                       We have changed approaches from
      We heard from Senator FEINSTEIN ear-                    might have to last for 30 years or more,               where we started at the outset of this
      lier and other members of the Judici-                   that must deal with thousands and                      debate. We initially tried to create a
      ary Committee. Senator NELSON from                      thousands of cases of people who have                  bill that was ‘‘evergreen,’’ that is, that
      Nebraska has also worked hard on this                   been exposed to asbestos, it is a serious              it would be the complete solution to
      issue. Senator CARPER has also worked                   undertaking. Every comma, every pe-                    this problem for as far as the eye could
      on this issue. There are many others                    riod, every semicolon can and does                     see in the future. However, we began to
      who care about this issue and have                      mean something. So we have to be very                  realize the difficulties of creating a
      spent a great deal of time on it. Sen-                  careful in how we draft this legislation.              fund that lasts forever. Several factors
      ator SPECTER has been performing an                       We have hundreds of manufacturers                    caused us significant uncertainty. For
      invaluable service in trying to work                    who have been, and continue to be af-                  example, we still import asbestos in
      out the administrative structure of the                 fected by what we are doing. There are                 this country. There is still asbestos
      proposed compensation fund. I am sure                   major insurance companies that clear-                  being used, or at least people are being
      I am leaving some of my colleagues                      ly must be involved and will contribute                exposed to it even though we now know
      out, and I apologize for that, knowing,                 to a trust fund, as the manufacturers                  the problems that result from expo-
      as I do, that almost every State, with-                 will be. Organized labor, representing                 sure. So the idea that we are going to
      out exception, is affected by this lin-                 the hundreds of thousands of victims,                  have a final number in perpetuity, I
      gering question. When there are over                    must ensure that a trust fund is going                 think, was abandoned by all sides.
      600,000 total cases, every State and                    to have adequate funding, and that                       We have contended that this number
      Senator is affected.                                    monetary awards are fair and effi-                     is somewhere between $115 billion and
        Seventy companies have already de-                    ciently provided.                                      $155 billion. If that does not end up
      clared bankruptcy on this issue alone                     We have seen the consequences of the                 being right at the end of the day, then
      because of the judgments that have                      current system. In fact, in the Johns-                 we ought to resort back to the present
      come in against them.                                   Manville trust resolution, the trust                   tort system to solve the problem.
        As a result of those 70 bankruptcies,                 that was established under the name of                   I just heard my colleague from Utah
      over 70,000 jobs have been lost from                    that particular company, is a example                  say his bill includes that provision.
      these companies. This is a major eco-                   of the problems with the current sys-                  With all due respect, I must disagree
      nomic problem, as well as a major                       tem. They believed that the amount of                  with my friend from Utah because the
      health issue that needs and demands                     money initially placed put into that                   provision in the bill being offered by
      resolution.                                             trust was going to more than ade-                      the Senator from Utah and the Senator
        The good news is this: There are                      quately provide for the victims who                    from Tennessee, the majority leader,
      about five or six major issues involved                 have been exposed under the Manville                   has a 7-year gap between when the
      in the question of whether we can es-                   situation. As it turns out today, the                  trust fund may run out of money and



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      S4142                                             CONGRESSIONAL RECORD — SENATE                                                       April 20, 2004
      when the tort system could be used by                   or 3 days before the last senatorial re-               panies that are declaring bankruptcy.
      a victim.                                               cess. We are being asked to accept vot-                They want a bill, but they want to
        Now, that is hardly reassuring to the                 ing on cloture on this matter on                       make sure when they have a bill that
      victims and their families that the sys-                Wednesday or Thursday of this week. I                  the resources will be there to provide
      tem that presently is in place which                    might point out that last November or                  adequate compensation.
      provides them some financial relief                     early December we reached an agree-                      By and large, the insurance industry,
      will be taken off of the table in the                   ment, a compromise, on how to proceed                  with some exceptions, wants a bill be-
      event that the trust fund becomes in-                   to the class action issue. I happened to               cause they realize that the current sys-
      solvent.                                                be one of those involved in that nego-                 tem is flawed and could cause untold
        Let me quickly point out as well,                     tiation. Why do we not bring up that                   economic hardships on some of these
      that these numbers of 115 or 155—if one                 bill? That bill is ripe and ready to go,               companies. It could cause some of
      takes the high end or the low end, are                  not that many of my colleagues would                   them to collapse, and I am not exag-
      hardly unreasonable. The Rand Cor-                      support it. But for those of us who are                gerating when I say that. They are
      poration, which is hardly an organiza-                  willing to support a class action reform               very interested in getting a bill. I know
      tion that identifies ideologically with                 bill, we reached an agreement on that                  the overwhelming majority of manu-
      the left or right or Democrats or Re-                   4 or 5 months ago, and yet that bill is                facturers, those that were either in-
      publicans, has estimated that the cost                  not being brought up. Why not? That                    volved in the production or use of as-
      of the current problem is somewhere                     bill is ready to go. This bill is not                  bestos over the years, in most cases be-
      around $300 billion. So at the outset we                ready to go.                                           fore anyone knew of the great harms
      are talking about a trust of only $155                     Why are we taking 3 days in a very                  caused by this product, they want a
      billion.                                                abbreviated session of the Senate,                     bill.
        While we disagree over actual dollar                  when we do not have much time re-                        This is one of those unique situations
      amounts at this point, I believe that                   maining, some 30 days, to bring up a                   where all of the parties, all of them,
      people of good will, sitting down, can                  matter where there is so much dis-                     and including, I might add, many of
      come to an honest compromise that                       agreement that could be resolved if we                 the trial lawyers involved in this area,
      would satisfy all parties involved in                   would spend the time doing it as Sen-                  understand some different resolution of
      this debate.                                            ator SPECTER has done, as Senator                      this issue is needed other than the
        Another open issue is the value of the                DASCHLE has done, and as Senator                       present tort system. Obviously, that is
      claims themselves. If we are able to                    LEAHY has done? I know Senator HATCH                   not the view of everyone who is a trial
      reach agreement on the medical cri-                     and his staff have also worked tire-                   lawyer, but many of them have already
      teria and able to reach agreement on                    lessly on this topic.                                  spoken out on this issue.
      an administrative system, it seems to                      Legislating on a matter like this is
      me, again, that good people who care                    hard work. It is labor intensive. Any                    So we have a unique political envi-
      about this should be able to resolve                    one of my colleagues, Republican or                    ronment where the major participants
      this issue and provide fair compensa-                   Democrat, who has been in the Senate                   are anxious to get a bill. I rarely find
      tion to victims of asbestos.                            for any length of time will say that on                that. Normally one finds people highly
        Another outstanding issue that needs                  major legislation, particularly legisla-               divided where labor or business is at
      resolution is what to do with pending                   tion that is precedent setting such as                 complete opposite ends of the spectrum
      claims. There are some claims that                      this is, people are required to roll up                on a matter that is before us. Here,
      have been adjudicated. Some are com-                    their sleeves and put in a tremendous                  nearly all stakeholders want a bill. In-
      pletely adjudicated, others are only in                 amount of hours to resolve these mat-                  stead of sitting down and keeping peo-
      the discovery process. I do not want to                 ters. In my view, it cannot be done                    ple at the table and working it out, we
      get too technical legally, but I think                  thoughtfully or carefully by engaging                  are prematurely bringing up something
      most people would understand there                      in open-ended floor debate with amend-                 causing this bill likely to fail, and fall
      are some cases that are already mature                  ments flying around that no one really                 before we have an opportunity to re-
      in the judicial system. Determining at                  knows the implications of, some of                     solve the differences. As I said a mo-
      what point in the judicial process,                     which are passed 51 to 49, others de-                  ment ago, why not bring up class ac-
      should cases be abrogated and claim-                    feated 51 to 49. When we are dealing                   tion? Why not bring that up? That is
      ants directed into the trust fund is a                  with something as serious as this,                     ready to go. Where is the business com-
      difficult question. When is the judicial                where literally thousands and thou-                    munity that has said to me over and
      process allowed to be completed where                   sands of lives depend upon receiving                   over again: Why don’t we get a class
      those claims exist? I do not have an an-                adequate compensation, we know we                      action bill here? We have been ready
      swer for that one today, but, again, I                  are dealing with a very complex prob-                  since November and December. Here it
      think people of good will who care                      lem.                                                   is April and nothing has happened on
      about this issue and realize what a                        I urge that a cloture motion not be                 class action. Yet you bring up and con-
      huge problem this is could come to                      filed. I know one has not yet been filed,              sume 3 days of time on the floor of the
      some thoughtful, reasonable com-                        and my strong appeal to the majority                   Senate with a bill that everyone
      promise on how to deal with pending                     leader would be please do not file this                knows, if you invoke cloture or file a
      claims.                                                 cloture motion. There is still time.                   cloture motion on the motion to pro-
        That is not the complete universe of                  This is only April. I presume we are                   ceed, it is going to fail. And it should
      all the problems, but those are the                     going to be here until sometime in                     fail. It should fail. I say that with deep
      major ones. Two of them we have                         early October. Give us the chance, in-                 regret.
      solved. Three or four of them deserve                   sist upon people meeting and trying to                   I have committed the time of staff
      additional time and effort to resolve.                  resolve these issues. It may come down                 members and my own time over the
      Certainly the intent of the amend-                      that a few of these matters are not re-                last number of years on this issue. I
      ments adopted in Committee by Sen-                      solvable through negotiation, and the                  think to come this close to resolving a
      ators FEINSTEIN and BIDEN that ad-                      only way to resolve them is by having                  major issue affecting the lives of hun-
      dresses pending claims and returning                    some floor votes on them. I accept that                dreds of thousands of people and their
      back to the tort system in the event of                 may be the final determination. But we                 families and attempt to address it in a
      insolvency are ideas that should be re-                 ought not to jump to that when there                   premature fashion is a huge mistake.
      considered and adapted. There may be                    still is an opportunity to resolve some                  So my appeal to my colleagues is: Sit
      others ideas that are also helpful.                     of these outstanding questions.                        back and work this out. It is hard, but
        The point is there are people making                     I have spoken to organized labor,                   it can be done. And, if we get near the
      suggestions to resolve these questions.                 John Sweeney, and his representatives.                 end of the session and we have not been
      I do not understand why this body is                    They want a bill. It is their member-                  able to resolve everything, either wait
      being asked to make a definitive deci-                  ship, many of them, who suffer from                    until we get back in January or bring
      sion on this bill that none of us have                  the exposure to asbestos. It is their                  it up and leave a smaller number of
      seen because it was introduced only 2                   membership that is losing jobs in com-                 issues out on the floor to be resolved



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      April 20, 2004                                    CONGRESSIONAL RECORD — SENATE                                                                S4143
      by votes on the floor and healthy de-                     The assistant legislative clerk pro-                 say, using the Harry Truman term, is a
      bate. But don’t jam this now, particu-                  ceeded to call the roll.                               do-nothing Congress. We do not do any-
      larly when we know the outcome, tak-                      Mr. REID. Mr. President, I ask unan-                 thing. If we have to work past 5 or 6
      ing up the valuable time of this body                   imous consent that the order for the                   o’clock at night, that is not a good
      on the floor where the time can be bet-                 quorum call be rescinded.                              idea. We cannot even consider coming
      ter used to take up issues where there                    The PRESIDING OFFICER. Without                       in and voting at noon on Monday. To
      has been agreement, at least agree-                     objection, it is so ordered.                           think we could vote past 9 or 10 o’clock
      ment by a significant majority of us to                                       JOBS ACT                         on Friday, even on a bad day, is out of
      move forward on the legislation. That                     Mr. REID. Mr. President, right before                the question. We usually vote Tuesday
      has been done now on class action.                      we had our break we were asked, Sen-                   afternoon and finish the votes as early
         Why doesn’t the majority leader                      ator DASCHLE and I, to see what we                     on Thursday as we can. This is not a
      come over and move to proceed to that                   could do to move the FSC bill along.                   good way to accomplish things. That is
      bill so we can vote on it? We have been                 The majority has affixed the name the                  why this Congress is doing nothing.
      ready for that now, as I said, since 3 or               jobs and opportunity bill, or something                  I don’t want another word ever said
      4 or 5 months ago. There has been no                    like that.                                             about the FSC bill not going forward
      action at all. No action. Why not? Why                    We have always known the impor-                      because of the Democrats. We want to
      is that bill not on the floor right now,                tance of this legislation, and we did our              go forward. We have done everything
      being debated and discussed?                            very best to move this along. It was                   we can to move this forward. We have
         Of course we have seen the same                      held up initially because we wanted a                  wasted on this piece of legislation
      thing with medical malpractice. There                   vote on overtime. The majority, for                    many days of legislative business when
      is no effort to negotiate it out. There is              reasons I fully don’t understand, re-                  we could be working on things that
      a proposal on the Democratic side. It is                fused to allow us to have a vote on                    need to be done in addition to that.
      different from what the majority has                    this.                                                    Gasoline prices in Nevada have in-
      proposed, but not that different. You                     As the Chair will recall, this amend-                creased 46 cents a gallon since the be-
      could bring those two sides together                    ment passed previously. What our                       ginning of the year, almost 50 cents a
      and resolve the issue. Doctors deserve                  amendment would do is say the Presi-                   gallon. I have not checked today. They
      better than they are getting. They are                  dent does not have the right to take                   may be up another 4 cents. Since the
      being told the Democrats are stopping                   away the ability of American nurses,                   first of the year the prices in Nevada
      everything. Why is it the majority re-                  firemen, police, and a total of 8 million              have gone up 46 cents per gallon.
                                                              people, from getting overtime. In ef-                    I talked to a contractor who is the
      fuses to even sit down and try to work
                                                              fect, what we have been told by the ad-                largest contractor, he says, in northern
      out the differences?
                                                              ministration is they were going to pro-                Nevada, the Reno area. Diesel fuel
         I stand ready. My staff does. Again, I
                                                                                                                     prices for his company are costing his
      am not a member of the committee.                       mulgate a rule that would take away
                                                                                                                     company $7,500 a day in addition to
      Obviously, Senator HATCH and Senator                    overtime pay for people who make
                                                                                                                     what he was paying at the first of the
      LEAHY, as I mentioned earlier, have                     more than $22,000 a year.
                                                                We wanted a vote on this. You can’t                  year. This is in addition to the mess we
      done a tremendous amount of work on
                                                              do that. It passed once; it was stricken               have with steel prices. This is a tre-
      this and deserve a great deal of credit
                                                              in a Republican-only conference. The                   mendous burden.
      for trying their best at this.                                                                                   There is no doubt the price of crude
         The leader on this side, politically, is             House passed a resolution saying they
                                                                                                                     oil has contributed to higher prices in
      Senator DASCHLE. I have been with him                   wanted their conferees to do the same
                                                                                                                     Nevada and throughout the country.
      on numerous occasions when we met                       thing the Senate did and stop the                      However, the outrageous 46-cent-a-gal-
      with the manufacturers, met with the                    President from doing this.                             lon increase in Nevada since January is
      insurance     industry.     As    Senator                 We have been told by the majority—
                                                                                                                     not driven by crude oil but corporate
      DASCHLE has said over and over again,                   the distinguished majority leader has
                                                                                                                     greed and profit.
      his door has been open to do whatever                   come out here on a number of occa-                       We are used to it in Nevada because
      it takes to try to get a bill done. I                   sions and said this is a must-pass bill.               during the Enron debacle we were told
      know from personal knowledge he has                     American businesses are getting hurt.                  it was supply and demand. It had noth-
      offered on numerous occasions to meet                   So Senator DASCHLE and I worked for                    ing to do with supply and demand. It
      with the majority leader and others to                  the better part of a day calling indi-                 had everything to do with Enron reap-
      try to figure these things out.                         vidual Members. We had 75 amend-                       ing windfall profits. Enron told con-
         I mentioned Senator SPECTER al-                      ments. We worked to get them cut                       sumers it was a matter of supply and
      ready. Senator BIDEN, obviously, Sen-                   down. We not only cut down the                         demand. But it turned out Enron was
      ator FEINSTEIN, and a number of others                  amendments to 18, but we have time                     manipulating the supply of electricity.
      have been involved in this, trying to                   agreements on these amendments, as                       In Nevada we get all of our gasoline
      get this done. My hope is that the ma-                  little as 5 minutes on some of the                     from California refineries, so any prob-
      jority leader will not wait until Thurs-                amendments. We clearly could have                      lem with the supply in California is a
      day. Listen to us over here. We can get                 finished all of these amendments in 1                  problem for Nevada. This is a lot of
      this done. It could be a proud moment                   day. All of them wouldn’t require votes                talk about the tight California gasoline
      of this Senate’s session, to have actu-                 but, if they did, we would be willing to               market, where prices are typically 20
      ally come up with an answer to a major                  put in an extra-long day. Therefore,                   to 30 cents above the national average.
      problem in this country. We are get-                    we, through our Democratic leader,                     We hear about the law of supply and
      ting very close to resolving it. It will                went to the Republican leader and said,                demand all the time driving prices
      take a little more work, in my view,                    Here is what we have. Some of these                    higher.
      over the next coming weeks, but it                      amendments, quite frankly, would not                     One thing I know for certain about
      could be done.                                          require votes and some would not even                  the law of supply and demand with the
         My plea this afternoon would be that                 be offered. So we wait one night, come                 Enron situation, is that it cost the Ne-
      filing a cloture motion on the motion                   back to the majority and say, We are                   vada ratepayers nearly $1 billion dur-
      to proceed would be withheld, that we                   willing to do this deal. We know this is               ing the electricity crisis almost 3 years
      bring up other matters that are ripe                    an important bill, that tariffs are being              ago. Based on this bitter experience
      and ready to go forward, and send the                   applied against American manufactur-                   which is still being litigated in the
      people back to work on this bill and                    ers and other business people; what is                 courts, I was concerned Nevadans
      let’s see if we cannot draft a piece of                 the problem?                                           might be getting ripped off again when
      legislation of which America can be                       To make a long story short, we were                  gasoline prices went through the roof
      proud.                                                  told the majority had 50 amendments                    early this year. I asked the Federal
         Mr. President, I suggest the absence                 with no time limits on them whatever.                  Trade Commission to investigate these
      of a quorum.                                              The FSC bill is not going forward not                wild price increases, particularly with
         The PRESIDING OFFICER. The                           because of anything we have done. It is                an eye toward any possible manipula-
      clerk will call the roll.                               because this Congress, I am sorry to                   tion of gasoline markets. After 5



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      S4144                                             CONGRESSIONAL RECORD — SENATE                                                          April 20, 2004
      weeks, the FTC responded by saying                        The PRESIDING OFFICER. Without                         The PRESIDING OFFICER. The clo-
      prices in Nevada were ‘‘unusually                       objection, it is so ordered.                           ture motion having been presented
      high’’ and above predicted norms. An                      Mr. FRIST. Mr. President, it is time                 under rule XXII, the Chair directs the
      informal FTC investigation is still                     for us to bring the asbestos bill to a                 clerk to read the motion.
      looking into the cause of the price                     floor vote and to bring it to discussion                 The assistant legislative clerk read
      hike.                                                   so we can continue the progress that                   as follows:
        There are spikes FTC says they can-                   needs to be made on this important                                    CLOTURE MOTION
      not understand. They are having a hard                  bill. As I said earlier this morning,                    We the undersigned Senators, in accord-
      time showing collusion or market ma-                    every day we do not act is a day vic-                  ance with the provisions of rule XXII of the
      nipulation, but they know something is                  tims are not receiving appropriate                     Standing Rules of the Senate, do hereby
      wrong. As they said, the usually high                   compensation for what they need and                    move to bring to a close debate on the mo-
                                                              deserve.                                               tion to proceed to calendar No. 472, S. 2290, a
      prices are above predicted norms.
                                                                                                                     bill to create a fair and efficient system to
        I don’t need an investigation to tell                   The bill we put forward provides a
                                                                                                                     resolve claims of victims for bodily injury
      me big oil profits have soared at the                   reasonable solution to the asbestos liti-              caused by asbestos exposure, and for other
      expense of working families. These                      gation crisis and has numerous con-                    purposes.
      markets are not competitive when a                      sensus-building changes that have been                     Bill Frist, Orrin Hatch, Gordon Smith,
      handful of companies can decide what                    added to the underlying bill, many                           Lamar Alexander, Saxby Chambliss,
      price they are willing to sell for and                  made at the request of Democrats and                         Ted Stevens, Michael B. Enzi, Trent
      what price a consumer is forced to pay.                 representatives of organized labor.                          Lott, Kay Bailey Hutchison, Susan M.
        As a nation, we need to address both                    What has emerged is a collective ef-                       Collins,    Pete    Domenici,       Rick
      the supply and demand side of the en-                   fort to date on a proposal that comes                        Santorum, Jon Kyl, George Allen,
                                                              from the original S. 1125 and has crit-                      George Voinovich, John Ensign, Wayne
      ergy equation to promote a truly com-
                                                                                                                           Allard.
      petitive market. On the demand side,                    ical modifications that have been
      we have to increase the fuel efficiency                 added on the counsel of stakeholders.                    Mr. FRIST. Mr. President, I ask
      of cars and promote public transit.                     As I said this morning, there will be a                unanimous consent that the manda-
      Maybe that is wishful thinking. On the                  lot of constructive proposals put on the               tory quorum under rule XXII be
      supply side, we can increase the use of                 table through the amendment process                    waived.
      alternative fuels and renewable energy.                 from Senators on both sides of the aisle                 The PRESIDING OFFICER. Without
        In the short term, we have to in-                     to further refine and improve this bill.               objection, it is so ordered.
      crease supply. We can do that, in my                      I encourage this process. We have had                  Mr. FRIST. Mr. President, we will
      opinion, by having the President at                     numerous discussions throughout the                    continue discussions tonight and to-
      this time, when the Saudis and others                   day, solidly since this morning. I have                morrow. We will talk with the Demo-
      are turning off the spigots and making                  had the opportunity to talk to the                     cratic leadership as we go forward over
      the supply less—we can increase supply                  Democratic leader on several occasions                 the next several days. I am very hope-
      by pulling oil from our petroleum re-                   discussing both options and how we can                 ful we are going to work out a suitable
      serves. We need to do that. President                   best bring this bill to appropriate clo-               and appropriate process to address
      Clinton did it. The first President Bush                sure. We will continue these conversa-                 these important issues.
      did it.                                                 tions over the course of this evening                    Mr. President, I yield the floor.
        In the long term, we have to do some-                 and tomorrow. A lot of stakeholders                      The PRESIDING OFFICER. The as-
      thing with alternative energy. We have                  are at the table discussing issues that                sistant Democratic leader.
                                                                                                                       Mr. REID. Mr. President, I have been
      to. It is important. I was encouraged                   are very important.
                                                                Reference has been made to Judge                     listening to the discussions today on
      before the recess when the energy tax
                                                              Becker on numerous occasions and                       asbestos litigation, and there have
      incentives were added to the FSC bill,
      which I just talked about. I applaud                    over the course of the day and in the                  been some provocative statements
      Senators GRASSLEY and BAUCUS for the                    statements this morning, and of the                    made on both sides. This is a very im-
      excellent provision dealing with sec-                   mutual respect both sides of the aisle                 portant issue. I have to say I have
      tion 45 production tax credit for renew-                have of the work he has done to date.                  some sympathy for the businesses. But
      able energy resources that expands and                  I would like to continue those discus-                 the sympathy I have for the businesses
      extends the credit for wind, geo-                       sions tonight and tomorrow to see if                   is overwhelmed by what I have seen in
      thermal, solar, and biomass energy. We                  there is some way we and the Demo-                     the personal suffering of the people
      must harness the brilliance of the sun,                 cratic leadership can put a process in                 who have been injured, some of whom
      the force of the wind, and the heat                     order where we can help mediate some                   are dead. We do not know how many
      within the Earth. By using the bounti-                  of the differences we all know exist.                  thousands will die this year. Estimates
      ful resources to diversify our energy                     My colleagues on the other side of                   are probably 10,000 from asbestos.
      supply, we protect the air we breathe                   the aisle say we need more time, and I                   We still import thousands of pounds
      and we protect consumers from these                     respect that. In truth, we have made                   of this poison into our country. So I
      wild price swings.                                      real progress, and we are getting real                 hope all the people who have good in-
        We cannot lose sight of the fact re-                  focus on a very important bill. We have                tentions—I know they all do—talking
      newable energy will make our Nation                     been discussing and negotiating and                    about this asbestos reform will, first of
      more secure because it is made in the                   changing and working on this bill for                  all, understand Judge Becker, whom I
      United States of America. I was dis-                    over a year now, and I believe all our                 have never met, is not a Senator. It is
      appointed to learn we will put off con-                 colleagues are coming to the table in                  nice he has agreed to come in and work
      sideration of the FSC bill, even though                 earnest at this point.                                 on these proposals, but Judge Becker is
      we have agreed to the finite list of                      We are going to be filing a cloture                  not a Senator, I repeat. He is not a
      amendments.                                             motion. The cloture vote will give ev-                 member of the staff. I do not know who
        The other thing the President can do                  eryone an opportunity to put their                     he is meeting with, why he is meeting
      on a short-term basis is have the                       views on the record as we go forward                   with them. There are a lot of judges in
      Saudis provide more oil. We are told in                 and continue to work on this bill.                     America, retired judges. It so happens
      Woodward’s book he has a deal to do                       Again, every day we do not reach an                  this one is from Pennsylvania. There
      this in the fall. Move it up, make the                  agreement on this bill is another day                  are retired judges in other places who
      deal a little earlier.                                  victims of asbestos litigation malfunc-                have the same expertise he has.
        I suggest the absence of a quorum.                    tion are suffering. Therefore, I believe                 I listened to Senator HATCH speak
        The PRESIDING OFFICER (Mr.                            working together we are going to be                    today. I listened to Senator LEAHY
      CRAPO). The clerk will call the roll.                   able to bring resolution.                              speak today. We cannot write an asbes-
        The assistant legislative clerk pro-                    Having said that, we will be filing a                tos bill in the Senate. We cannot write
      ceeded to call the roll.                                cloture motion.                                        it outside here in some office building
        Mr. FRIST. Mr. President, I ask                                         CLOTURE MOTION                       downtown. The only way I will ever
      unanimous consent that the order for                     Mr. President, I now send a cloture                   feel comfortable about legislation deal-
      the quorum call be rescinded.                           motion to the desk.                                    ing with asbestos is if it goes through



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      April 20, 2004                                    CONGRESSIONAL RECORD — SENATE                                                                    S4145
      the channels it is supposed to go                       of comments about the asbestos issue                   does not support this proposal. Let me
      through: the Judiciary Committee.                       and then I want to talk about a couple                 read what Senator SPECTER said, again
        We have men and women on the Judi-                    of other unrelated matters.                            a Member of the majority party:
      ciary Committee, both from the major-                     First, on the asbestos issue, I am one                 I decline to join with Senator FRIST and
      ity and the minority, who have spent                    of those Senators who has in the past                  Senator HATCH in their substitute bill be-
      years working on this issue. They are                   year or year and a half written letters                cause I think it is the better practice to try
      certified experts. They not only under-                 to my colleagues, to Senator FRIST and                 to work through these problems.
      stand litigation, they understand legis-                to Senator DASCHLE, in support of ef-                    I completely agree with Senator
      lation.                                                 forts to find a negotiated solution.                   SPECTER. I think the approach to have
        So I hope everyone understands it is                    On July 31 of last year, I sent a letter             taken on this would have been for Sen-
      good people who are interested in this                  to our joint leadership urging that we                 ator FRIST to have engaged with Sen-
      legislation do everything they can to                   reach a bipartisan compromise on the                   ator DASCHLE and have all of the stake-
      weigh in on this issue, but I hope we all               issue of asbestos. That letter was                     holders work over a period of months
      look to the Judiciary Committee to                      signed by a number of other colleagues:                to reach a compromise. And it is not
      come to us with a product. It cannot                    Senators MILLER, BREAUX, BEN NEL-                      too late to do that.
      come out of the Environment and Pub-                    SON, BAUCUS, CARPER, KOHL, LINCOLN,
                                                                                                                       In recent months, Senator DASCHLE
      lic Works Committee that I work on. It                  LEVIN, and STABENOW.                                   has attempted numerous times to meet
      cannot come out of the Appropriations                     In late October, I sent another letter               with Senator FRIST to hammer out
      Committee. It cannot come out of the                    to Senators FRIST and DASCHLE urging                   these issues, but those meetings have
      Governmental Affairs Committee. It                      that we seize the moment and pass an                   not taken place. I don’t know all that
      cannot come out of any other com-                       asbestos bill, but recognizing that in                 has happened with respect to that, but
      mittee. It has to come out of the Judi-                 order to do that, there needs to be seri-              I do know this: Putting a bill on the
      ciary Committee.                                        ous negotiation. All of the stake-                     floor of the Senate that is far short of
        But we have people who have worked                    holders—and there are big stakeholders                 a true compromise with the stake-
      on this issue—not only the two leading                  on this matter—need to come together                   holders is not going to solve the prob-
      members of the committee; that is, the                  to resolve the issues in a way that re-                lem.
                                                                                                                       Yet this is an urgent problem that
      ranking member and the chairman—                        flects a true compromise.
                                                                There are a couple of things that are                needs solving. I believe, as some of my
      but also people on that committee who
                                                              necessary to say at this point. One, I                 colleagues do—Senator CARPER, for ex-
      have listened to hours and hours and
                                                                                                                     ample, on my side, who has worked
      days of testimony. Maybe they should                    believe there is an urgency to deal with
                                                                                                                     very hard on this issue, who believes
      listen to some more. But this is legisla-               this issue. The failure to deal with it
                                                                                                                     very strongly, as do I—that there needs
      tion we are talking about that is going                 causes great economic uncertainty for
                                                                                                                     to be a solution. I certainly believe
      to have a price tag on it from $150 bil-                companies and for our economy. The
                                                                                                                     that if we end this session of the Con-
      lion—I should say, the figure in this                   failure to deal with it means there are
                                                                                                                     gress without addressing this issue,
      bill is a very ridiculously low figure of               some who are sick as a result of having
                                                                                                                     without passing some legislation, we
      $109 billion, to maybe as much as $700                  contact with asbestos during their life-
                                                                                                                     will have failed. All of us will have
      billion or $800 billion, maybe $1 tril-                 time and who will not be compensated.
                                                                                                                     failed.
      lion. So this is not something we need                  There are others who are not sick who                    It is simple enough to bring legisla-
      to rush into.                                           will receive compensation. There are                   tion that is unacceptable to the Senate
        We need to help victims of asbestosis,                lawyers in the middle of some of these                 floor so you can then have a press con-
      mesothelioma. I would hope we would                     suits who will receive a dispropor-                    ference and say: Well, the other side
      do as the State of Illinois has done,                   tionate percentage of awards. I don’t                  killed this legislation. That is simple
      have some type of pleural registry so                   think this system works at all. The                    enough, but it does not address any
      people who have worked around asbes-                    system is broken.                                      problem or solve any issue.
      tos and are afraid they are going to get                  For that reason, I believe it is in the                My hope is that in the coming days,
      sick would be able to go on to that reg-                interest of everyone for us to have leg-               the joint leadership—Senator FRIST,
      istry so the statute of limitations is                  islation in the Senate that can truly                  Senator DASCHLE—might join with the
      not tolled.                                             reflect a bipartisan compromise. But                   stakeholders in this issue around a
        In short, the Judiciary Committee                     the bill before us now is not such legis-              table and have some hardnosed negoti-
      has jurisdiction over this legislation,                 lation.                                                ating and hammer out and develop a
      and this is from where the legislation                    I was surprised, frankly, the week be-               proposal that represents a true bipar-
      should come that we deal with on the                    fore last, just before the Senate took a               tisan proposal that represents a true
      floor, not some retired judge, or not a                 1-week break, to read statements made                  compromise by all of those engaged in
      Senator who feels he knows more about                   on the floor of the Senate. I shall not                this issue so that we can pass legisla-
      it than others. I am not pinpointing                    ascribe them to any particular col-                    tion. Bringing what has been brought
      any Senator. I am saying there are a                    league, but those who want to know                     to the floor of the Senate the week be-
      lot of people who think they have an                    can look in the RECORD.                                fore last and filing cloture on it is not
      interest in this issue. Everyone has an                   One of the colleagues who brought                    a way to legislate. They know and we
      interest in this issue. All 100 Senators                this bill to the Senate floor suggested                know that this means this legislation
      care greatly about this issue. Some feel                that the asbestos negotiations were                    does not advance. I fail to see how that
      more strongly about the businesses                      being blocked because the personal in-                 solves a problem or begins to address
      than I do; others feel for the victims.                 jury bar would not otherwise put up $50                an issue that I believe is urgent.
        But I would hope we do not try to                     million for JOHN KERRY in the election.                  Once again, there are some principles
      rush into this and do something that is                 This colleague of mine said that such a                involved. One, I don’t believe that peo-
      written here or downtown someplace;                     suggestion, if true, was ‘‘pathetic.’’                 ple who are not sick and have never
      that whatever we do, whatever sugges-                   Well, these words are an affront to all                been sick should be compensated. Two,
      tions, whatever people feel will im-                    those colleagues on my side of the aisle               I believe those who are sick should be
      prove our ability to pass this legisla-                 who have been working very hard to                     compensated and compensated fairly
      tion, they will work through Senators                   get a good asbestos bill through the                   and not have to go through a tort sys-
      HATCH and LEAHY and have the full                       Senate this year. And these words are                  tem and spend a lot of money for law-
      committee vote on what we do.                           hardly appropriate from someone                        yers to be compensated. Three, I be-
        The PRESIDING OFFICER. The Sen-                       bringing a bill to the Senate floor, for               lieve that the American business com-
      ator from North Dakota.                                 which he seeks bipartisan support.                     munity deserves some certainty and
        Mr. DORGAN. Mr. President, I did                        This is not a serious proposal. We un-               that certainty does not exist at this
      not hear all the Senator from Nevada                    derstand that. Senator SPECTER, who I                  point. That is why I believe a trust
      had to say about this subject. I have                   think has done much of the serious                     fund of sorts that is set up and estab-
      listened to some of the presentations                   work in the Senate trying to bring peo-                lished with appropriate medical cri-
      this afternoon. I want to make a couple                 ple together and reach a compromise,                   teria and other definitions is the best



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      S4146                                             CONGRESSIONAL RECORD — SENATE                                                      April 20, 2004
      way for us to resolve the issue. I be-                  and personnel at airports tracking                     ally worked overtime to thwart terror-
      lieve we should get to that point—the                   every passenger and every plane to see                 ists importing cigars from Cuba.
      sooner, the better. But we have wasted                  if someone has done something wrong.                     On October 10 of last year, they had
      a great deal of time.                                   This is an example of what they discov-                this directive from the President and,
        The process that has now been em-                     ered.                                                  boy, they went at it. Homeland Secu-
      barked upon by the majority leader                        This agency in the Treasury Depart-                  rity and OFAC at Treasury grabbed
      will almost certainly guarantee we will                 ment that is supposed to track ter-                    this issue. They found that 215 of the
      not get to that point. I regret that be-                rorism tracked down Joanie Scott. She                  45,461 travelers to Cuba were suspected
      cause I hope at the end of this process,                went to Cuba 4 years ago to distribute                 of taking a vacation. Maybe that is a
      this Congress will understand the ur-                   free Bibles. Four years later, the folks               felony. They were suspected of taking a
      gency for workers, for business, for all                who wear suspenders at OFAC at the                     vacation. What an awful thing. And 283
      of the stakeholders to pass asbestos                    Treasury Department decide they are                    tobacco and alcohol violations were
      legislation.                                            going to slap her with a $10,000 fine be-              found. The Homeland Security spokes-
          THE OFFICE OF FOREIGN ASSET CONTROL                 cause 4 years ago she went to Cuba to                  person, Christine Halsey, said each vio-
        Mr. DORGAN. Mr. President, I would                    give away free Bibles. She said she                    lation involved a small amount of rum
      like to speak for a moment about a                      didn’t know she needed to get a license.               or cigars; 245 are going to take a vaca-
      subject I discussed with the Treasury                   Four years later, they slapped her with                tion, and a small number are bringing
      Secretary this morning when he testi-                   a $10,000 fine. That is not all of it.                 in rum. There were 42 narcotics sei-
      fied before my Appropriations sub-                        This is a picture of Joan Slote, a 74-               zures, but it involved prescription
      committee. We are fighting terrorists                   year-old grandmother, who is a bicy-                   drugs, not heroin. There was one haz-
      who want to attack this country. They                   clist. She is a senior olympian. She                   ardous material violation. We have this
      have killed thousands of innocent                       rides bicycles all over the world. She                 ramp-up and we are supposed to pro-
      Americans. They wish to attack this                     happened to ride one in Cuba with a bi-                tect America against terrorism, and
      country and kill innocent Americans                     cycling group from Canada. Guess what                  you have these folks in green eye-
      once again. It is an enormous challenge                 happened to Joan Slote? She got fined                  shades trying to levy fines on Ameri-
      to fight and defeat terrorism. It takes                 by OFAC, this little agency in Treas-                  cans, and you have agents at airports
      all of our energy every day in our law                  ury that is supposed to be tracking ter-               trying to see who comes back from
      enforcement areas, in the intelligence                  rorists. They are tracking little grand-               Cuba, and who traveled illegally so we
      community. It takes a lot of coordina-                  mothers who are riding bicycles in                     can fine them. One hazardous material
      tion and good work. It takes getting it                 Cuba, in order to punish Castro and en-                violation was discovered. It was appar-
      right.                                                  force the travel ban. They fine Amer-                  ently a carbon bioxide canister, which
        So we have the homeland security of-                  ican citizens for traveling in Cuba. So                was probably used to add fizz to seltzer
      fice. We have the CIA. We have the                      she gets fined $7,630 for riding a bicycle             water.
      FBI, the Defense Department. We have                    in Cuba.                                                 Does this sound stupid? It does to me.
      everybody working on these issues—                        These are some folks who are dis-                    That is a harsh word. Sometimes our
      the U.S. Customs Service, and a little                  abled athletes. They got to go to Ha-                  public policies seem flatout dumb. We
      agency in the Treasury Department                       vana about 2 years ago for the games                   are confronted with the specter of ter-
      called OFAC, the Office of Foreign                      for disabled athletes, the world games.                rorists who want to kill Americans,
      Asset Control. These are the people                     They applied again this year, but as                   cross our borders and commit acts of
      whose principal responsibility is to try                the Treasury Secretary and Mr. Hutch-                  terror. Yet we have people at airports,
      to track the financial transactions                     inson and others have said, including                  Homeland Security agents, and OFAC
      happening between terrorists, to shut                   President Bush, we have this crack-                    trying to track little old ladies that
      down the financial connections that fi-                 down now on travel to Cuba; so these                   went on bicycle trips in Cuba. What are
      nance terrorist activities.                             folks were denied a license to compete                 they thinking at the Department of
        But that is not all that is done in the               in the games for disabled athletes in                  Treasury? Is that the way they want to
      Treasury Department with respect to                     Havana. The result is that they lost                   use their resources?
      OFAC. This rather small office is doing                 the $8,000 they paid to a travel agency                  All of us know that lifting the travel
      other things. Their principal job ought                 for transportation to Havana to par-                   ban to Cuba would happen instantly if
      to be to track terrorism and to shut                    ticipate in world team sports for dis-                 we had a vote in the House and Senate.
      down the financial root that funds ter-                 abled athletes. Quite the terrorists,                  The only way they prevent it is to pre-
      rorist activities. But there are some at                aren’t they?                                           vent a vote. But to use assets at the
      the OFAC who are doing other things.                      So we have people down at the Treas-                 Department of Treasury, agents are
      Let me describe them.                                   ury Department tracking these folks, a                 supposed to be tracking terrorists, but
        First, from a speech in December by                   retired grandmother, a woman who                       instead are tracking little grand-
      the Under Secretary of Homeland Secu-                   takes free Bibles for distribution in                  mothers riding bicycles, or women dis-
      rity, in Miami, a speech by Asa Hutch-                  Cuba, to see if we can find them. That                 tributing Bibles, or a son who wants to
      inson, where he talked about the                        is what is going on—levying fines of                   bury his father’s ashes at his home
      crackdown on enforcement of the U.S.                    $5,000, $10,000.                                       church in Cuba. That defies description
      embargo against Cuba and goes into                        There is another man from the State                  to me.
      some detail; and then the Secretary of                  of Washington who decided his father’s                   So I am going to find a way during
      the Treasury, also in Florida, on Feb-                  last wish was to be buried or have his                 the appropriations process to find out
      ruary 9 gives a speech. The Office of                   ashes distributed in the church he once                how many resources they are using at
      Foreign Assets Control at Treasury, he                  ministered at in Cuba. Cevin Allen of                  the Department of Treasury to do this,
      said, is working closely with customs                   Washington State traveled to Cuba to                   and if they don’t want to use them
      agents inspecting all direct flights to                 bury his father’s ashes on the church                  properly, they should lose them. If
      Cuba at Miami, JFK airport, Los Ange-                   grounds where his father once min-                     they want to keep them, they ought to
      les Airport. That is hundreds of air-                   istered. They decided to fine him                      use them to protect us against terror-
      craft, tens of thousands of passengers,                 $20,000.                                               ists, not to slap a fine on a grand-
      and agents are being meticulous.                          That is what they are tracking down                  mother who rode a bicycle in Havana. I
        Well, I wonder if we are checking                     at OFAC. They ought to be ashamed of                   think that is nuts.
      quite so closely with respect to trying                 themselves. Their job is to track ter-                   As we go into the appropriations
      to track terrorists. You know what                      rorists.                                               process, I want to bring attention to
      they are looking for? I will give you an                  Let’s look at what they have done.                   that single issue. That is an important
      example. They are enforcing the em-                     They have people stationed at airports.                issue, and one that I think ought to be
      bargo that we have with respect to                      They have trained Homeland Security                    dealt with.
      Cuba, and part of that embargo is to                    agents. Hundreds have been trained to                    I wish to make a comment on an ad-
      prohibit Americans from traveling in                    do this. Here is what they have nabbed                 ditional issue today. We are heading
      Cuba, so we have all of these resources                 with 45,000 passengers. They have actu-                into an appropriations process. We



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      April 20, 2004                                    CONGRESSIONAL RECORD — SENATE                                                                S4147
      have a huge budget deficit, significant                 girl has serious problems, serious emo-                time after the terrible events of Sep-
      fiscal policy problems. Three years                     tional difficulties, and needs help, that              tember 11. Indeed, the purpose of the
      ago, it looked as if there were going to                young girl ought not to take her own                   PATRIOT Act was to give law enforce-
      be surpluses forever. Now we have the                   life at age 14 because help is not avail-              ment       the      tools    and      our
      biggest budget deficit in the history of                able. This is a better country than                    counterterrorism experts and agents
      this country. There is no prospect in                   that.                                                  the tools they needed in order to pre-
      sight of anything resembling a surplus                     When we come to funding the Indian                  vent future 9/11s.
      for the next 10 years and beyond. De-                   Health Service this year, we can no                       Indeed, the evidence is clear that the
      spite all that, we still have some needs                longer pretend Third World conditions                  PATRIOT Act has served that impor-
      in this country. We need to find a way                  do not exist on some of the Indian res-                tant purpose. The Department of Jus-
      to meet them.                                           ervations in this country when it                      tice has broken up four terrorist cells
        With respect to a number of func-                     comes to health care for kids. We just                 in the United States since September
      tions, it is Katie bar the door, what-                  cannot any longer pretend. Lives are                   11, in Buffalo, Portland, Detroit, and
      ever they need. We are spending $100                    being lost, lives are being ruined, and                Seattle. It has filed criminal charges
      billion more for defense than we used                   we can do something about it.                          related to terrorism against more than
      to spend. I understand that. We are                        I am going to have more to say as we                300 individuals. So far it has secured
      spending $130 billion already in Iraq, $5               get into the appropriations process, but               176 convictions or guilty pleas. Perhaps
      billion a month, $4 billion in Iraq, $1                 I did want to simply say there is a                    the best evidence of the success of the
      billion in Afghanistan. Nobody is being                 tragedy that is unfolding every day,                   PATRIOT Act has been the fact that,
      asked to pay for it. Increases in home-                 every hour in parts of this country that               thank goodness, America has not suf-
      land security spending, I understand                    are in America’s shadows. Out of mind,                 fered another horrific event like 9/11
      that. Tax cuts, tax cuts, and more tax                  out of sight for some, but not for all.                since that terrible day some 21⁄2 years
      cuts, and a President who says: Let’s                   We, in this Congress, must shine a                     ago.
      make all of them permanent. I under-                    light on these problems and begin to                      I might add we have also been suc-
      stand why he is saying that as well. I                  solve them.                                            cessful in freezing some of the funding
      don’t support it.                                          Mr. President, I yield the floor, and I             that has been essential to financing
        I think someone who makes $1 mil-                     suggest the absence of a quorum.                       terrorism around the world. In fact,
                                                                 The PRESIDING OFFICER. The                          the PATRIOT Act has allowed us to
      lion a year is fortunate, and good for
                                                              clerk will call the roll.                              freeze more than $200 million in funds
      them. I am all for them, but suggesting                    The legislative clerk proceeded to
      they should have a $123,000 tax cut per                                                                        from organizations that have been
                                                              call the roll.
      year on their $1 million salary, at a                      Mr. CORNYN. Mr. President, I ask                    sponsoring and funding international
      time when we are up to our neck in                      unanimous consent that the order for                   terrorism.
      deficits, in my judgment, defies de-                    the quorum call be rescinded.                             Particularly, last week, I guess it
      scription.                                                 The PRESIDING OFFICER. Without                      was, when we heard the testimony of
        Let me mention one other issue that                   objection, it is so ordered.                           the former FBI Director Louis Freeh,
      I think we need to deal with—the issue                     Mr. CORNYN. Mr. President, I ask                    the former Attorney General Janet
      of the Indian Health Service. I want to                 unanimous consent that I be allowed to                 Reno, and the current Attorney Gen-
      show a picture of a little girl named                   speak as in morning business for such                  eral John Ashcroft, the American peo-
      Avis Littlewind. She died 2 weeks ago.                  time as I may consume.                                 ple became introduced more or less the
      Her aunt said she took her own life                        The PRESIDING OFFICER. Without                      same way that law students are to fun-
      around noon in her home. She missed                     objection, it is so ordered.                           damental principles of law enforcement
      90 days of school since the start of the                                    PATRIOT ACT                        and due process. Even more than that,
      school year. She is a 14-year-old girl                    Mr. CORNYN. Mr. President, I rise to                 the American people were introduced
      who apparently felt there was no hope.                  speak about the PATRIOT Act, a sub-                    to something that was referred to as
      She lives on an Indian reservation. On                  ject which has been much misunder-                     ‘‘the wall.’’
      the reservations, there are precious few                stood. I think some of the misunder-                      The wall was the subject of a 1995
      resources to deal with the kinds of                     standing has been perhaps just from                    memo by Jamie Gorelick, then Deputy
      problems this young girl obviously con-                 lack of information or has been misin-                 Attorney General, now on the 9/11 Com-
      fronted—one psychologist, a social                      formation that has been spun in an ef-                 mission. Indeed, as she has pointed out,
      worker, no psychiatrist, no automobile                  fort to confuse people and perhaps even                the wall between our antiterrorism and
      to provide necessary transportation.                    to scare people about what is in this                  intelligence-gathering efforts and our
        There is a crisis in resources to deal                important legislation. Indeed, we are                  law enforcement efforts has been long-
      with these issues. A young girl takes                   all committed to making sure not only                  standing. But it is not a matter that is
      her own life and nobody seems to say                    that our Nation is secure, and I believe               constitutionally required; it is some-
      much about it. It is just what happens.                 the PATRIOT Act has contributed tre-                   thing the American Government had
      The fact is, this should not happen. It                 mendously to improving the security of                 done to itself. It is a limitation that
      should not ever happen.                                 the United States of America, but at                   Congress had placed on information
        I remember speaking one day on the                    the same time we have a fundamental                    sharing between law enforcement offi-
      floor of the Senate about another                       commitment in this country to civil                    cials. Some only investigate crimes
      young girl, a Native American, a young                  liberties. I believe, and I think the                  after they have occurred, trying to
      Indian girl, age 3, placed in a foster                  American people believe, the Founders                  root out the guilty and then to convict
      home, but they did not check out the                    of this country believed firmly that we                the guilty of the crimes they have com-
      foster home before they placed her                      can have both our national security                    mitted. The wall is between those law
      there. The caseworker worked 150 sepa-                  and our civil liberties. Particularly, in              enforcement officials and those intel-
      rate cases and did not check out the                    a time of war such as we are in now,                   ligence agencies, counterterrorism offi-
      foster home.                                            while there will be some tension, we                   cials whose job it is to prevent a ter-
        This young girl had her nose broken,                  need not sacrifice our civil liberties.                rorist attack from even occurring and
      her hair pulled out by its roots, and her                 Nevertheless, there are those who                    to preempt that terrible event from oc-
      arms broken at a drunken party. She                     would play politics with this issue in                 curring. So it was through the PA-
      will never outlive the scars of that                    an effort to score political points, or I              TRIOT Act that we saw this wall come
      beating she took. Why? Because one                      think others who perhaps for more be-                  down that has been so important to in-
      person was handling 150 cases involving                 nign reasons might just be not very                    formation sharing.
      children.                                               well informed and kind of go along, not                   Indeed, this is not a partisan issue.
        We have a full-blown crisis on Indian                 really knowing the truth. So I want to                 Attorney General Janet Reno said just
      reservations in this country dealing                    talk just a few minutes about the PA-                  a few short days ago, on April 13, with
      with the basic social services that                     TRIOT Act and what it has done.                        respect to the problems of information
      every American family ought to be                         Of course the PATRIOT Act has                        sharing within the FBI and other Fed-
      able to expect to access. When a young                  passed overwhelmingly, just a short                    eral officials, that:



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      S4148                                             CONGRESSIONAL RECORD — SENATE                                                         April 20, 2004
        Many of these issues will be or have been             to investigate terrorists. To put it bluntly,          could subject political organizations to sur-
      resolved by the passage of the PATRIOT Act              that was crazy. What’s good for the Mob                veillance, wiretapping, harassment, and
      or other statements.                                    should be good for terrorists.                         criminal action for political advocacy.
        Indeed, to my recollection, that is                     Those are statements with which I                      If that were true, I would be standing
      not the same words but essentially the                  agreed, made by Senator JOE BIDEN on                   and saying we need to look at this
      same testimony that was presented by                    October 25, 2001, which I submit were                  twice. We need to do something about
      former FBI Director Louis Freeh.                        true then and remain true today.                       it. We need to look further to see
      Former FBI Director Louis Freeh, who                      I already mentioned that aspect of                   whether perhaps we have done some-
      served during the previous administra-                  the PATRIOT Act which has made it                      thing wrong or it needs correction or
      tion, in talking about this wall that                   easier for us to cut off the financial                 review.
      had been brought down as a result of                    support that has been used to support                    I was at a hearing of a subcommittee
      the PATRIOT Act said:                                   terrorist acts. Osama bin Laden, when                  of the Senate Judiciary Committee,
        . . . the wall is not an appropriate one with         he first left Saudi Arabia and went to                 and Senator FEINSTEIN put her finger
      respect to counterterrorism, and that’s been            Afghanistan as part of the anti-Com-                   on this and pointed out the kind of
      repaired both by the PATRIOT Act and the                munist Jihad, after the Soviets invaded                hysterical scare tactics the ACLU and
      court of review.                                        Afghanistan, he and other Jihadists de-                others have used in mischaracterizing
        I believe the court of review he is re-               clared holy war against the Soviets at                 what the PATRIOT Act does are flatly
      ferring to is the Foreign Intelligence                  the time. The way he got started in his                unfounded. I was there at this hearing,
      Surveillance Act, which creates a court                 terrorist activities was financially sup-              but I had the statement made into a
      of seven Federal judges who review re-                  porting the acts of other Jihadists,                   chart so the quote is clear. Senator
      quests for various intelligence mecha-                  other Muslim extremists. At that time,                 FEINSTEIN, to her credit, is always a
      nisms that try to make sure or, in fact,                he directed their fire at the Soviet                   Senator who does her homework. She
      do make sure as much as is humanly                      Union until, of course, the Soviet                     does her homework in every case,
      possible that the rights of people who                  Union left Afghanistan. Then they                      sometimes to my aggravation when she
      are accused of crimes are not unfairly                  turned their fire on America and other                 is on the other side of an issue, but
      jeopardized in this process.                            freedom-loving countries.                              sometimes I am glad she does. This is
        The point is that the wall that had                     My point is, getting at the financial                a case where I am glad she did her
      been erected separating our law en-                     support for terror was very important.                 homework as she always does.
      forcement personnel and preventing                      Indeed, the PATRIOT Act has made it                     I have never had a single abuse of the PA-
      them from sharing information with                      much easier to get to that and was re-                 TRIOT Act reported to me.
      our counterterrorism officials has now                  sponsible for capturing some $200 mil-                   She was not just sitting passively
      been torn down and we now allow infor-                  lion in terrorist financing, which has                 back waiting for people to write or call
      mation sharing which, indeed, has                       been very important.                                   as they do to our offices to complain or
      made America safer.                                       One of the things that has concerned                 to register some concern about legisla-
        The PATRIOT Act specifically makes                    me, and no doubt others, about the PA-                 tion or some Federal activity.
      it easier to track terrorists in the dig-               TRIOT Act has been the way people                        She went on to say:
      ital age. When journalist Daniel Pearl                  have used the PATRIOT Act as almost                      My staff e-mailed the ACLU and asked
      of the Wall Street Journal was kid-                     a dirty word. It has been used to scare                them for instances of actual abuses. They e-
      napped in Pakistan, the terrorists                      people. It has been used to mislead peo-               mailed back and said they had none.
      made the mistake, as it turned out, of                  ple about what the act does. It is im-                   It is very disturbing that the same
      sending the ransom demands by e-mail.                   portant to understand what the act                     organization that mails solicitations to
      The PATRIOT Act, having brought our                     does and what it does not do.                          houses of not just Members of Congress
      laws into the information age, allowed                    It has also been used to raise money.                but to people all across America, try-
      investigators to quickly obtain essen-                  This is part of the scare campaign the                 ing to frighten them, mislead them,
      tial information from the Internet                      American people deserve to know                        and scare them into believing Congress
      service provider that the terrorists                    about and we as Members of this body                   has acted without concern for civil lib-
      were using. This in turn led them to                    need to remind ourselves of and make                   erties or perhaps some law we passed
      cybercafes in Pakistan and then to                      ourselves aware of. I happened to get a                has been abused by Attorney General
      some of Daniel Pearl’s killers, who are                 solicitation from the American Civil                   John Ashcroft and others, when, in
      now in prison thanks to the expanded                    Liberties Union at my home. This is an                 fact, it is just not true. Everyone
      tools provided by the PATRIOT Act.                      excerpt. It caught my eye because I                    should be concerned about that. It
        Some have worried aloud that we are                   thought, now I understand why there                    ought to be exposed for what it is.
      jeopardizing our civil liberties by cre-                are so many people who are misled and                    Notwithstanding the comments of
      ating a law which allows expanded au-                   frightened by the PATRIOT Act be-                      people like Senator BIDEN, who sup-
      thority to law enforcement and                          cause there are organizations such as                  ports the PATRIOT Act, Senator FEIN-
      counterterrorism authorities. But what                  the ACLU that are misleading people                    STEIN, who has done this investigation
      many people don’t understand, or don’t                  about what it does. They are using that                to find out whether, in fact, there has
      know—there is no reason they should                     fear to raise money. We know one of                    been abuse—and there has been none
      know other than the fact that they                      the strongest motivations there is for                 reported, even when asked for examples
      have now learned more about it—is the                   human beings is to scare them. Indeed,                 to support their scare tactics—there
      PATRIOT Act actually applies tools                      that is exactly what is happening by                   are some now who say it is time to
      that have already been in use in other                  misleading the American people about                   eliminate the PATRIOT Act or to re-
      contexts. For example, before Sep-                      what the PATRIOT Act does, by orga-                    place it, using other similar scare tac-
      tember 11, investigators had better                     nizations such as the ACLU.                            tics.
      tools to fight organized crime than                       This solicitation letter I received at                 I might point out this is not limited
      they did to fight terrorism. For exam-                  my residence said in part:                             to the Congress. I had my staff refresh
      ple, for years law enforcement officials                  We need your immediate help to stop rad-             my recollection because I had remem-
      used roving wiretaps to investigate or-                 ical anti-liberty proposals from becoming              bered—indeed, the Presiding Officer
      ganized crime. I think it was Senator                   radical anti-liberty laws of the land with             may remember, too—there are press re-
      JOE BIDEN who said if roving wiretaps                   Congress’ and the White House’ seal of ap-             ports about city councils around the
      are good enough for the mob, then they                  proval.                                                United States that passed resolutions
      are good enough for terrorists. He, of                    Indeed, that sort of statement is not                condemning the PATRIOT Act based
      course, advocated, as many on this                      alone. We have another chart that                      on the disinformation and scare tactics
      floor did, for that. Here is a copy of his              talks specifically about the PATRIOT                   the ACLU and others have used to mis-
      remarks. I paraphrased it. Let’s go to                  Act, and another excerpt from the                      lead them about whether there was, in-
      the exact quote. He said:                               same solicitation by the ACLU:                         deed, a threat to the civil liberties of
        . . . the FBI could get a wiretap to inves-             The USA PATRIOT Act expands terrorism                their constituents. In fact, 287 local
      tigate the Mafia, but they could not get one            laws to include ‘‘domestic terrorism’’ which           governments across the United States



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      April 20, 2004                                    CONGRESSIONAL RECORD — SENATE                                                                 S4149
      of America have passed such resolu-                       Unfortunately, this disinformation                     The fact is, the PATRIOT Act has
      tions condemning the PATRIOT Act. I                     campaign, which stands in stark con-                   made America a safer place. And no po-
      am sad to say, three of those were in                   trast to the lack of any evidence that                 litical campaign, no fundraising goal
      Texas: If my recollection is correct, the               Senator FEINSTEIN found in her inves-                  justifies misleading the American peo-
      Dallas City Council, Austin City Coun-                  tigation about abuses, continues now                   ple about what is good about the PA-
      cil, and one from a smaller munici-                     into the Presidential campaign, now                    TRIOT Act and how it has contributed
      pality.                                                 that the Presidential nominee of the                   to bringing down this wall separating
        So we know at least there is some                     Democratic Party has been chosen.                      law enforcement and counterterrorism
      evidence that the kind of scare tactics                   Indeed, this is on Senator KERRY’s                   officials from sharing information. In-
      and misinformation people have been                     Web site, John Kerry for President Web                 deed, as I said, the best evidence about
      spreading, people at the ACLU have                      site. He said:                                         why the PATRIOT Act is good law,
      been spreading, is, unfortunately,                        John Ashcroft has used new authority                 good public policy, is the fact we have
      working, because not enough people                      under the Patriot Act to perform ‘‘sneak and           not been hit like we were on 9/11.
      like me and others in this body are                     peek’’ searches without ever notifying any-
                                                                                                                     Thank God for that. I know, of course,
                                                              one and without any judicial oversight.
      standing up and correcting the record                                                                          we hope and pray we never will again
      and providing the truth.                                  Well, besides this campaign of                       be hit in that way. But we are not
        Unfortunately—it is not unfortunate;                  disinformation and misinformation and                  going to be safer if we play politics
      it is our system. We have elections for                 scare tactics, I can assure you neither                with our national security, even in a
      President every 4 years. We have elec-                  the Attorney General nor any other                     Presidential year when the attraction
      tions for the House every 2 years and                   United States attorney or Federal law
                                                                                                                     is so irresistible, it appears, to some.
      every 6 years for the Senate, but it                    enforcement official can legally per-                    The PATRIOT Act has made America
      should not be too surprising some of                    form any kind of search without judi-                  safer. Janet Reno, John Ashcroft,
      this disinformation and misinforma-                     cial oversight. That is wrong. It is a                 Louis Freeh, people on both sides of
      tion and scare tactics have gotten into                 false statement.
                                                                                                                     the aisle, people who have put their
                                                                Even if we pulled this out of all the
      the Presidential campaign.                                                                                     hand on a Bible and sworn to uphold
        Indeed, I listened with some concern                  other contexts I have talked about—
                                                              the disinformation, the misinforma-                    the laws of the United States of Amer-
      during the race for the Democratic                                                                             ica, to protect the Constitution—these
      nomination for President where var-                     tion, and the scare tactics—this is a
                                                              flat misstatement. I hope Senator                      are people who have testified under
      ious candidates for that Democratic                                                                            oath the PATRIOT Act has made
      nomination for President continued                      KERRY will correct that on his Web site
                                                              because no search under any kind of                    America safer.
      along this line of disinformation, mis-                                                                          So I say, let’s not play politics with
                                                              warrant can be conducted without the
      information, and scare tactics specifi-                                                                        this important law. Let’s not play poli-
                                                              approval of a judge or an impartial
      cally regarding the PATRIOT Act. The                                                                           tics and risk American lives by con-
                                                              magistrate. That is a basic part of our
      current nominee for President of the                                                                           tinuing the disinformation and misin-
                                                              criminal law. But, here again, I am
      Democratic Party participated in that,                                                                         formation and the scare tactics to the
                                                              worried that unless people stand up
      what I call ‘‘piling on.’’ He said in a                                                                        point where we would go back and
                                                              and correct the record, this kind of
      speech at Iowa State University:                                                                               eliminate or revise or neuter this im-
                                                              disinformation will continue.
       So it is time to end the era of John                     But the worst part of it is this: Not-               portant protection which has made our
      Ashcroft.                                                                                                      country so much safer.
                                                              withstanding the kind of statements I
        Unfortunately, this is an instance, I                 covered by Senator KERRY and others,                     So, Mr. President, with that, I would
      will interject in the quote, in which At-               these are some of the same people who                  like to turn to some additional matters
      torney General Ashcroft has been re-                    voted for the PATRIOT Act when it                      on behalf of the majority leader.
      viled, he has been called all sorts of                  passed. Indeed, on October 25, 2001, Sen-                I see Senator REID on the floor. At
      names, held up as a boogeyman in part                   ator KERRY said:                                       this time, on behalf of the majority
      of the scare tactic for doing his job, for                I am pleased at the compromise we have
                                                                                                                     leader, I would ask——
      enforcing the laws Congress has passed                  reached on the antiterrorism legislation, as             Mr. REID addressed the Chair.
      and the President has signed. If the At-                a whole, which includes the sunset provision             The PRESIDING OFFICER (Mr. AL-
      torney General of the United States of                  on the wiretapping and electronic surveil-             EXANDER). The assistant Democratic
      America will not enforce the laws Con-                  lance component.                                       leader.
      gress passes and the President signs in                   Then later, more specifically to the                   Mr. REID. If the Senator would yield
      order to make America more secure,                      subject at hand, this quote is talking                 for a comment?
      who will? Thank goodness, we have a                     generically about the laws that                          Mr. CORNYN. I would be happy to
      courageous individual who is willing to                 changed included in the PATRIOT Act                    yield.
      stand up against unwarranted criticism                  and others. But he was interviewed on                    Mr. REID. The staffs are not quite
      and this sort of misinformation or                      Fox News on October 25, 2001. John Gib-                ready to do the close yet. They should
      disinformation campaign and enforce                     son of Fox News said:                                  be ready in a matter of a few minutes.
      the law Congress passes because he be-                    Senator KERRY, today, Attorney General               So if the Senator would allow us a few
      lieves, as Congress believed when it                    Ashcroft said that terrorists have reason to           more minutes?
      passed the law, as the President be-                    be afraid, very afraid of this new terror legis-         Mr.     CORNYN.       Under    the   cir-
      lieved when he signed the law, the PA-                  lation. Why? What’s in it that has so much             cumstances, Mr. President, I ask——
      TRIOT Act makes America more se-                        sharper teeth?                                           Mr. REID. I will make a statement
      cure.                                                        Senator KERRY said:                               that will take a couple minutes. Sen-
        Going back to the quote by Senator                      It streamlines the ability of law enforce-           ator DASCHLE is going to make a state-
      KERRY at the Iowa State University:                     ment to do its job. It modernizes our ability          ment. We can go ahead and do the
                                                              to fight crime.                                        close, and he can speak after the close,
       So it is time to end the era of John
      Ashcroft.                                                 Well, I agree with the comments of                   but we are not quite ready on this side
        He goes on to say:                                    Senator KERRY in October of 2001 about                 to close. It will take another few min-
                                                              the benefits of the PATRIOT Act. And                   utes.
        That starts with replacing the PATRIOT
      Act with a new law that protects our people             I disagree with the comments Senator                     Mr. President, if the Senator will
      and our liberties at the same time.                     KERRY—the same person—made when                        yield for me to make a very brief state-
                                                              he decided to run for President, and                   ment?
        He later had an interview on ‘‘Morn-
                                                              now that he is a Presidential nominee,                   Mr. CORNYN. I will be glad to yield.
      ing Edition’’ on National Public Radio
                                                              where he is using the misinformation,                    The PRESIDING OFFICER. The as-
      on August 18, 2003. He said:
                                                              this disinformation, these scare tac-                  sistant Democratic leader.
        If you are sensitive to and care about civil
      liberties, you can make provisions to guar-             tics, unfortunately, in contrast to the                                PATRIOT ACT

      antee that there is not this blind spot in the          lack of evidence Senator FEINSTEIN was                   Mr. REID. Mr. President, I would
      American justice system that there is today             able to glean from even the ACLU                       agree with my friend, the former attor-
      under the Patriot Act.                                  about any evidence of abuses.                          ney general of Texas, the PATRIOT



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      S4150                                             CONGRESSIONAL RECORD — SENATE                                                       April 20, 2004
      Act has made America a safer place. I                     Mr. REID. I object.                                  earn as much money as a man earned
      think that is a fair statement. But I                     The PRESIDING OFFICER. Objec-                        last year.
      would also say the PATRIOT Act is                       tion is heard.                                           Women are paid less than men even
      something we have to watch very                           Mr. CRAPO. Mr. President, the ma-                    when they have the same experience,
      closely. We realized when we passed                     jority leader has been attempting to                   the same education, the same skills,
      this legislation there may be provi-                    clear this request to allow us to pro-                 and live in the same parts of the coun-
      sions in it that went too far, not far                  ceed to the consideration of the con-                  try.
      enough. As a result of that, we have                    stitutional rights for victims resolu-                   And they are paid less for doing the
      put a provision in this very important                  tion. Given the objection, and on behalf               same jobs.
      bill, the PATRIOT Act, that it would                    of the majority leader, I now ask unan-                  For example, women lawyers and
      sunset; that if we did not renew that                   imous consent to withdraw the request.                 women doctors both have median
      legislation, it would fail; therefore,                    The PRESIDING OFFICER. Without                       weekly earnings that are nearly $500
      next year we have to renew this act.                    objection, it is so ordered.                           less than those of male lawyers and
        I am confident, based on what is                                                                             doctors.
                                                                                f
      going on around the country, in spite                                                                            Women food service supervisors are
      of the statement from the American                      CONSTITUTIONAL AMENDMENT TO                            paid about $100 less each week than
      Civil Liberties Union—we can look to                     PROTECT THE RIGHTS OF CRIME                           men in the same job, and waitresses
      Las Vegas, my home, on one criminal                      VICTIMS—MOTION TO PROCEED                             earn about $50 less than waiters.
      prosecution, what the authorities did                                                                            Women professors’ weekly earnings
                                                                                CLOTURE MOTION
      there. It is my understanding they used                                                                        are nearly $300 less each week than
      the PATRIOT Act. A person bought a                        Mr. CRAPO. Mr. President, I now
                                                                                                                     men’s, and the median weekly salary
      car with global positioning in it. The                  move to proceed to S.J. Res. 1, and I
                                                                                                                     for women elementary school teachers
      reason they bought that, of course, is                  send a cloture motion to the desk.
                                                                                                                     is $70 per week less than that of male
      in case something went wrong you                          The PRESIDING OFFICER. The clo-
                                                                                                                     elementary school teachers.
      could press a button and come and find                  ture motion having been presented
                                                                                                                       When women are short-changed in
      out where the car is, or, if it was an                  under rule XXII, the Chair directs the
                                                                                                                     their paychecks, it doesn’t just hurt
      emergency, someone trying to hijack                     clerk to read the motion.
                                                                                                                     them. It hurts their whole family, in-
      the car, emergency authorities would                      The legislative clerk read as follows:
                                                                                                                     cluding their children and spouses.
      be notified. The person never realized                                 CLOTURE MOTION                            Lower pay for women means a family
      law enforcement authorities could                         We the undersigned Senators, in accord-              can’t afford as nice of a home, or give
      focus on that vehicle and listen to ev-                 ance with the provisions of Rule XXII of the           their children the same opportunities,
      erything that went on in that car. That                 Standing Rules of the Senate, do hereby
                                                              move to bring to a close debate on the mo-
                                                                                                                     as they could if women were paid as
      is what they did.                                                                                              much as men.
                                                              tion to proceed to Calendar No. 271, S.J. Res.
        I would have to think without get-                                                                             If married women were paid the same
                                                              1, a joint resolution proposing an amend-
      ting a judge’s order, without doing                     ment to the Constitution of the United                 as comparable men, their family in-
      some things in addition to what I have                  States to protect the rights of crime victims.         comes would rise by nearly 6 percent.
      described, that was probably going a                        Bill Frist, Jon Kyl, Gordon Smith, Ted             And the poverty rate among families of
      little too far. The point being, the PA-                      Stevens, Trent Lott, Kay Bailey                  working women would decline from 2.1
      TRIOT Act is something we need to                             Hutchison, Susan Collins, Pete Domen-            percent to 0.8 percent.
      take a look at. That is why we have                           ici, Rick Santorum, George Allen, John
                                                                                                                       On average, every working family
      this legislation that will sunset.                            Ensign, Wayne Allard, Mitch McCon-
                                                                    nell, Jim Inhofe, C. Grassley, Mike              loses $4,000 every year because of un-
        I hope the Judiciary Committee and                                                                           equal pay for women.
      other committees that believe they                            DeWine.
                                                                                                                       If single working mothers earned as
      have jurisdiction will begin as soon as                   Mr. CRAPO. Mr. President, I ask
                                                                                                                     much as comparable men, their family
      possible taking a look at this legisla-                 unanimous consent that the manda-
                                                                                                                     incomes would increase by nearly 17
      tion to see if there are provisions that                tory quorum under rule XXII be
                                                                                                                     percent, and their poverty rates would
      should be revised, eliminated, added to.                waived.
                                                                                                                     be cut in half, from 25.3 percent to 12.6
      I don’t think we need to criticize Sen-                   The PRESIDING OFFICER. Without
                                                                                                                     percent.
      ator KERRY because he thinks we need                    objection, it is so ordered.
                                                                                                                       If single women earned as much as
      to take a look at the PATRIOT Act. I                      Mr. CRAPO. I now withdraw my mo-
                                                                                                                     comparable men, their incomes would
      believe we do, and that is certainly ap-                tion.
                                                                                                                     rise by 13.4 percent and their poverty
      propriate. The Senate agreed. That is                     The PRESIDING OFFICER. The mo-
                                                                                                                     rate would fall from 6.3 percent to 1
      why we included a sunset provision in                   tion is withdrawn.
                                                                                                                     percent.
      this most important legislation.                                          f                                      Women lose 23 cents on the dollar
        I suggest the absence of a quorum.
        The PRESIDING OFFICER. The                                    MORNING BUSINESS                               compared to men—almost a quarter.
      clerk will call the roll.                                                                                        Over a lifetime of work, that 23 cents
                                                                Mr. CRAPO. Mr. President, I ask                      adds up fast. It adds up to real money.
        The assistant legislative clerk pro-                  unanimous consent that the Senate
      ceeded to call the roll.                                                                                         For an average 25-year old working
                                                              now proceed to a period of morning                     woman, it adds up to about $523,000
        Mr. CRAPO. Mr. President, I ask
                                                              business with Senators permitted to                    during her working life. That’s more
      unanimous consent that the order for
                                                              speak therein for up to 10 minutes                     than a half-million dollars less than a
      the quorum call be rescinded.
        The PRESIDING OFFICER. Without                        each.                                                  man will be paid.
      objection, it is so ordered.                              The PRESIDING OFFICER. Without                         Because women are paid less when
                                                              objection, it is so ordered.                           they work, they can’t save as much to-
                       f
                                                                                f                                    ward their retirement. Half of all older
       UNANIMOUS CONSENT REQUEST—                                                                                    women who received a private pension
                    S.J. RES. 1                                          EQUAL PAY DAY                               in 1998 got less than $3,486 per year,
        Mr. CRAPO. Mr. President, on behalf                     Mr. REID. Mr. President, today,                      compared with $7,020 per year for older
      of the majority leader, I ask unani-                    April 20th, is being observed as Equal                 men. In other words, the pensions for
      mous consent that at a time deter-                      Pay Day.                                               women were less than half of the pen-
      mined by the majority leader, after                       I wish I could say it is a celebration               sions for men.
      consultation with the Democratic lead-                  of Equal Pay for women. But it isn’t.                    The figures are even worse for women
      er, the Senate proceed to the consider-                   Instead, this day symbolizes the fact                of color. African-American women earn
      ation of Calendar No. 271, S.J. Res. 1, a               that women continue to earn only 77                    only 67 cents and Latinas 55 cents for
      joint resolution proposing an amend-                    percent as much as men, 77 cents on                    every dollar that men earn. Asian Pa-
      ment to the Constitution of the United                  the dollar.                                            cific American women still earn only
      States to protect the rights of crime                     Today, April 20, marks how many                      83.5 cents on the dollar compared to
      victims.                                                extra days a woman has to work to                      men’s salaries.



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