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
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-
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
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-
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
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-
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.
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.
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
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
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.
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 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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