[Congressional Record Volume 150, Number 51 (Tuesday, April 20, 2004)]
[Senate]
[Pages S4127-S4150]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           DIVERSION OF FUNDS FOR MILITARY OPERATIONS IN IRAQ

  Mr. LEAHY. Mr. President, I want to take a moment to respond to the 
very serious allegations contained in Bob Woodward's book about the use 
of counterterrorism funds to support preparations for the U.S. military 
invasion of Iraq.
  As a Senator and a taxpayer, I am very troubled by this information. 
The Constitution gives Congress the sole power of the purse. The 
Founding Fathers did this for good reason. It is a responsibility that 
I take very seriously.
  As a member of the Appropriations Committee for more than two 
decades, I know there is a long, bipartisan tradition of 
administrations--of both political parties--informing Congress when 
money is going to be used for purposes different than what it was 
intended for, especially if it is part of a major change of policy.
  We do not yet know all of the facts, and we need to get the whole 
story as soon as possible. But I will say that in the wake of September 
11, the Congress moved very quickly in a bipartisan way to appropriate 
billions of dollars to respond to the threat of international 
terrorism.

[[Page S4128]]

  In doing so, we gave the administration a great deal of flexibility, 
but we also made clear that we expected the administration to keep the 
Congress informed on the use of these funds. And administration 
officials gave us their word that they would keep us informed.
  We now learn, as a result of Bob Woodward's book, that millions of 
dollars that we thought we were appropriating for Afghanistan, or to 
respond to other terrorist threats, may have been used by the Defense 
Department to begin preparations for the invasion of Iraq.
  The problem is that there is not a shred of evidence linking Saddam 
Hussein to the September 11 attacks. Even the President has 
acknowledged this.
  In effect, it appears that the administration has treated the 
Congress with much the same disdain as it treated our European allies. 
Remember? They were the ``old Europe,'' who were out of touch, whose 
support we did not need. Like the United Nations, they were 
``irrelevant.''
  So too the Congress: What do they know? They just appropriate money. 
They do not need to know what it is being used for.
  We also have learned, in even more detail, how this administration 
rushed into war without making adequate post-war plans or building a 
real international coalition. As a result, the reconstruction efforts 
are a mess, our credibility is in tatters, and America's soldiers are 
shouldering a grossly disproportionate share of the burden and the 
casualties.
  The proper use of taxpayers' money is not a Democratic or a 
Republican issue. As representatives of the American people, it is 
something that we should all be concerned about, and it may force us to 
change the way we do business around here.
  Mr. President, we also have before us an asbestos bill, the Asbestos 
Injury Resolution Act of 2004. This partisan asbestos bill is not ready 
for floor consideration. It is not ready for prime time, not by a long 
shot. I do believe the Senate should pass legislation to establish a 
national trust fund to fairly compensate asbestos victims. After all, I 
held the first hearing ever held by the full Senate Judiciary Committee 
in an effort to get a resolution to the problem facing victims of 
asbestos poisoning. But, despite the title of this bill, it is far from 
fair. It is very partisan. This partisan bill creates a trust fund that 
provides unfair compensation for asbestos victims. This partisan bill 
creates a trust fund with inadequate funding, no startup protections, 
and major solvency problems. This partisan bill contains a warped 
sunset provision that could trap victims in a failed trust fund for 7 
years or more without having access to compensation.
  Look at this chart. This fund says victims could be trapped in a 
failed trust fund for 7 years or more and would have no compensation. 
If the fund becomes insolvent, then the Hatch-Frist substitute provides 
for a reversion to the tort system, but only after 7 years from when 
the fund begins processing claims, and then only in Federal court, and 
then only for some limited disease categories. So victims could be 
trapped for 7 years or more with no compensation. That is not fair.
  Some have claimed this bill provides for contingency funding to try 
to address the many uncertainties of future projections for asbestos 
victims, but the $10 billion for continued funding only kicks in after 
year 2023 and only if the funds still exist at this time. Let me show 
you on this chart. It is only after year 2023. We are in the year 2004. 
There will be very few in the Senate who will still be around to try to 
correct the mischief of this bill. You have contingency funding 
available after 2023. That means a lot will not be available to pay the 
pending 300,000 claims on day one. That is not a fair trust fund.
  So I would say it is a mistake for the Republican leadership of the 
Senate to insist on proceeding to a bill and have so many major 
problems still unresolved. The bill is not ready for prime time. Let's 
work at making it ready, not work at scoring partisan points. Let's do 
something for the victims of asbestos.
  Creating a fair national trust fund to compensate asbestos victims is 
one of the most complex legislative situations I have seen in 29 years 
in the Senate. The interrelated aspects necessary for a fair national 
trust fund is like a child's Rubik's Cube. So it is all the more 
necessary that a bill be a consensus piece of legislation for it to 
become law. I am not looking for a Democratic or Republican piece of 
legislation; I am looking for a bipartisan one that would work. That is 
why I worked so hard in months of bipartisan negotiation, why I worked 
so hard to encourage the interested stakeholders to reach agreement on 
all the critical details. I have had so many meetings in my office and 
in other Senators' offices with the major stakeholders across-the-
board, and this is where we are. We have Senator Hatch and the majority 
leader introducing a partisan asbestos bill.
  I hoped the bipartisan dialog over the past year would yield a fair 
and efficient compensation system that we could in good conscience 
offer to those suffering today from asbestos-related diseases and to 
the victims yet to come. Our leader, the senior Senator from South 
Dakota, Senator Daschle, was entrusted by all of us to speak for our 
caucus and to try to negotiate an agreement. Time and again he made 
that attempt. Time and again he was put off.
  I stood there with him when he spoke to the leadership on the 
Republican side saying, Can't we get together on a piece of 
legislation? But unfortunately the Senate majority leadership decided 
to walk away from those negotiations and resort to unilateralism by 
introducing a partisan bill without Democratic support. That is a 
shame. They ought to pull this bill and sit down with Senator Daschle, 
knowing Senator Daschle will go to the table and negotiate a real bill, 
because the introduction of this bill raises many questions, most 
notably what the sponsors are trying to achieve, because it certainly 
is not a fair compensation model for asbestos victims. By breaking off 
bipartisan negotiations and pushing this bill to the floor, they have 
turned their backs on those of us who have worked so long for a fair 
solution.
  I was encouraged to learn this week from a news wire report that a 
colleague, the senior Senator from Pennsylvania, Senator Specter, who 
played an important role in the negotiations, favored resumption of 
negotiations. Senator Specter told the Associated Press:

       I declined to join with Senator Frist and Senator Hatch in 
     their substitute bill because I think it is the better 
     practice to try to work through these problems. Senator 
     Specter, of course, has put in untold hours with retired 
     distinguished Judge Becker in trying to work through the 
     points of such a bill.

  We have all learned a great deal about the harms caused by asbestos 
exposure since that first hearing that convened in September of 2002. 
Asbestos is the most lethal substance ever widely used in the 
workplace. Between 1940, the year I was born, and 1980, more than 27.5 
million workers in this country were exposed to asbestos on the job and 
nearly 19 million of them had high levels of exposure over long periods 
of time. Unbelievably, asbestos is still used today.
  What we face is an asbestos-induced disease crisis. Hundreds of 
thousands of workers and their families have suffered debilitating 
disease and death due to asbestos exposure. The disease and the death 
are among the most horrible ways of being sickened or to die. These are 
the real victims of the nightmare and they must be the first and 
foremost focus of our concern and effort. These are people who, simply 
by showing up for work and doing their job as they are supposed to, 
endured lives of extreme pain and suffering.
  Not only do they continue to suffer, and their number will grow, but 
the businesses involved in the litigation, along with their employees 
and their retirees, are suffering from the economic uncertainty created 
by the situation.
  More than 60 companies have filed for bankruptcy because of their 
asbestos-related liabilities. These 60 bankruptcies have a devastating 
human economic effect. Asbestos victims deserving fair compensation do 
not receive it and bankrupt companies do not create new jobs or invest 
in our economy.
  In working with Senators Daschle, Dodd, Frist, Hatch, and Specter, we 
encouraged representatives from organized labor, the trial bar, and 
industry

[[Page S4129]]

help reach consensus on a national trust fund to compensate asbestos 
victims. We wanted to give financial certainty also for the defendants 
and their insurers.
  Now a successful trust fund--by that, I mean one that would provide 
fair and adequate compensation to all victims--would bring reasonable 
financial certainty to defendant companies and their insurers. To be 
successful, it has to have four essential components. It has to have 
appropriate medical criteria, it has to have fair award values, 
adequate funding, and an efficient, expedited system for processing 
claims.
  During the markup session of the Judiciary Committee on the first 
FAIR Act, we unanimously adopted the Leahy-Hatch amendment on medical 
criteria. This created 10 categories of disease. The medical criteria 
represent bipartisan agreement the national trust fund should provide 
monetary compensation to claimants who suffered impairment and it 
should provide medical monitoring to those individuals with less 
serious asbestos-related conditions. The bipartisan medical criteria 
are in this new bill. I agree with them.
  During the mediation process established by Senator Specter and Judge 
Becker--I referred to him earlier as Judge Edward Becker, retired chief 
judge for the United States Third Circuit Court of Appeals--the 
interested stakeholders tried to craft a streamlined administrative 
process. Senator Specter and Judge Becker worked very hard on this 
process. They deserve the thanks of all Members. I believe their very 
inclusive process was crucial to the establishment of a national trust 
fund at the Department of Labor.
  Even that agreement, the agreement between the interested 
stakeholders, left many details unresolved. In fact, as this chart 
shows, Judge Becker listed 22 outstanding issues. Many involved 
administrative process. That list of 22 outstanding issues did not 
include the 2 other major components of a fair trust fund: fair award 
values and adequate funding to pay for it. These are the remaining 
issues.

  We cannot zip to the Senate floor and because we could not find 
anything else to do, we bring it up. There are many issues, including 
startup language, sunset time, timeframe, reversion to tort system, in 
what forum, pending cases, settlements in pending cases, treatment of 
existing trusts, worker's compensation, medical screening of high-risk 
workers, transparencies, setoff rules, statute of limitation language, 
exclusive default judgments, bankruptcies, FELA, exclusivity for 
asbestos-related claims, and on and on.
  I mention this because this is a highly complex area. Simply putting 
something on the Senate calendar to say we put something on the Senate 
calendar is a lot different than actually being legislators and trying 
to pass something. What we want is a decent piece of legislation, not a 
headline. The people who are suffering from asbestos-induced injuries 
and illness are not helped by a headline. They are helped by real 
legislation which requires real Senators doing--guess what--real work.
  The changes made to a few award values by Majority Leader Frist moved 
in the right direction. His partisan bill does not move far enough 
toward providing fair compensation to all impaired victims of asbestos 
exposure. In fact, seriously ill victims of exposure would receive 
significantly less compensation on average under the current version of 
this act than they would in the tort system. The so-called FAIR Act is 
not yet fair.
  The gravest injustice to the bill is to lung cancer victims. A victim 
with at least 15 years of asbestos exposure could receive only $25,000 
in compensation for his or her asbestos-related disease under the new 
bill. Goodness gracious. I ask any Member of this committee, if 
somebody's negligence caused them to have lung cancer, would they feel 
satisfied with a $25,000 award? I don't have to poll the other 99 
Senators. I know it would be a resounding no. Don't do it to the 
victims of asbestos just because they do not serve in the Senate.
  My chart underscores the fairness of the award value for asbestos-
related lung cancer victims compared to compensation available in the 
tort system and under the proposal offered by Senator Kennedy and 
myself during the committee markup.
  The legislation we are considering today provides as little as 
$25,000 in compensation for victims suffering asbestos-related lung 
cancer. What a cruel joke on these lung cancer victims, especially 
those who are going to die within the next 2 years. What a cruel joke 
on their families who see this as the punishment because the 
breadwinner in their family went to work every day in one of these 
industries.
  When there is smoking and asbestos combined, the likelihood of the 
resulting disease is greater than the sum of the parts.
  Dr. Laura Welch is a well-respected medical expert who helped us 
craft medical criteria which was accepted by an overwhelming bipartisan 
majority in the committee. She said:

       Smoking and asbestos act in concert together to cause lung 
     cancer, each multiplying the risk conferred by the other.

  There is a synergistic relationship between asbestos exposure and 
smoking. Smokers who meet the bill's exposure requirements face a risk 
of lung cancer that is up to five times greater than smokers not 
exposed to asbestos. But they receive only $25,000 under this bill.
  In other words, if you go to work at W.R. Grace or Halliburton or 
some of the other companies that are getting a real, real big deal 
under this bill, and they say, ``OK, guys and gals, you can take a 10-
minute cigarette break,'' if they are foolish enough to do it, that 
combination of asbestos and smoking--at whatever company it might be; I 
picked W.R. Grace and Halliburton only because they benefit so greatly 
under the bill; others do, too--then their risk is much greater, and 
then they may have their awards reduced or even eliminated to repay any 
insurance carrier.
  Now, that is a lot different than what happens now. Usually, under 
these programs, you do not have to repay your insurance carrier, you do 
not have to repay workman's compensation. Under the Radiation Exposure 
Compensation Act, you do not have to do that. Under the Energy 
Employees Occupational Illness Compensation Program Act, you do not 
have to do that. Under the Ricky Ray Hemophiliac Relief Fund Act, you 
do not have to do that.
  But what bothers me is that when we made the medical criteria, we got 
a bipartisan consensus on the medical criteria. We did it in a way to 
guarantee that we were eliminating what were the most troublesome 
claims. We were setting a roadmap on which business and everybody else 
agreed. We all say we need to compensate the truly sick, but fair 
compensation is not free.
  The Judiciary Committee's bipartisan agreement on medical criteria 
will be meaningless if the majority, in effect, rewrites the categories 
by failing to fairly compensate many who fall within them. You cannot 
come to the floor and say, look, you have Republicans and Democrats who 
came together and worked out the medical criteria that they are all 
very happy about--and we met with labor, and we met with businesses, 
and we met with insurers, we met with the victims themselves, and we 
worked out a fair medical criteria--and then come to the floor and say, 
see, we worked it all out. However, we made one little change. And what 
is the little change? The little change is to take away all the money 
or much of the money that was going to pay these victims.
  If the award values are unfair, the bill will be unfair. And if the 
bill is unfair, it is unworthy of our support. In this case, with this 
partisan bill, it is unfair. It is unworthy of the support of Senators.
  Since the first hearing, the hearing I held, we have had one bedrock 
principle: It has to be a balanced solution. Whatever solution we have, 
it has to be balanced. I cannot support a bill that gives inadequate 
compensation to victims. I will not adjust fair award values into some 
discounted amount just to make the final tally come within a 
predetermined and artificial limit. That is not fair, and I will not 
vote for a bill that is not fair. Remember, we are taking away people's 
most cherished right, the right of a jury trial. If we are going to do 
that, we cannot do it in a bill that is not fair.
  Now, my friends on the other side of the aisle have insisted for 
months they will only support a bill that contains

[[Page S4130]]

funding with a goal of raising $109 billion over 24 years. But it is 
very clear from projections of future claims that this funding is 
inadequate to pay fair award values. You cannot have good legislation, 
successful legislation, fair legislation if it is based on a false 
promise. The promise we have to make is, if we are going to take away 
the rights of a jury trial to these victims, then we have to promise 
them fair compensation. This bill does not do that.

  On the Judiciary Committee, we reported a bill that contained total 
funding of $153 billion. But this new partisan bill, introduced less 
than 2 weeks ago, contains mandatory funding of only $109 billion. All 
of a sudden, we have lost--we have lost--over $40 billion from the 
total funding approved by the Judiciary Committee under contingency 
funding amendments by Senators Feinstein and Kohl.
  Senator Feinstein--she can speak for herself; she is in the Chamber--
but she worked night and day on this issue to get a fair agreement. I 
do not know the number of times she buttonholed me at the committee or 
elsewhere, and every other Senator on both sides of the aisle, to reach 
an agreement; and she got it. That has been taken out.
  Look at this chart. Is this fair? We reported a bill, which many 
questioned whether it had enough money, S. 1125, at $153 billion. Now 
it comes back and it is $109 billion. The first bill, many complained, 
did not have enough money; the current bill drops $44 billion out.
  We also know there has to be adequate funding at the beginning of a 
national trust fund. Why? There are more than 300,000 asbestos claims 
in our current legal system, so you are going to have to have enough 
money in there to handle the claims that are going to be there on day 1 
of this fund. However, this new bill actually provides less upfront 
funding than the bill reported by the Judiciary Committee.
  It strikes what we passed in the committee, by bipartisan majorities, 
a commonsense requirement that directs insurers--who, after all, have 
billions of dollars sitting today in current asbestos reserves--to 
contribute their funding within the first 3 years of the fund because 
that is when most of the claims would come.
  Another fundamental unfairness in this bill is it provides a 
corporate bailout for certain companies with serious asbestos 
liability.
  Take a look at another chart. I ask if this is fair. The present 
value of Halliburton's asbestos liability is $4.8 billion. Under this 
bill, they would only pay $75 million a year to a national trust fund. 
The reason I mention this is Halliburton told their shareholders 
sometime ago they could handle this $4.8 billion, they could handle the 
amount of money set aside for their liability. They knew they were 
liable. They knew they would have to pay for it. They could set this 
money aside. In fact, when they thought they had a settlement of that 
amount, their stock actually went up.
  But, lo and behold, by the time the Republican majority got the 
amount Halliburton would owe--the $4.8 billion--by the time our friends 
on the Republican side of the aisle got it, they only have to pay $1.2 
billion. They saved $3.6 billion overnight. Not only that, they only 
had to pay it over 24 years. They are going to make that on the 
interest on their money. I am not even going to point out how much 
money they are making in profits in Iraq at the moment. I will leave 
that for another day. But they suddenly go from the $4.8 billion that 
basically they knew they were going to have to pay, and as soon as this 
Republican bill came up, it is down to $1.2 billion. No wonder 
Halliburton likes some of my friends on the other side of the aisle.

  Let's take W.R. Grace, another good friend of some of my friends on 
the other side of the aisle. W.R. Grace was a company that was 
responsible for poisoning an entire community. Some of these companies 
only poison a few hundred or 200 or so of their employees when they 
come to work. They only poison a few hundred by hiding what they are 
doing. W.R. Grace goes big time, to quote one of the people they 
support.
  W.R. Grace was responsible for poisoning an entire community, the 
whole community, whether you worked for them or not. They poisoned the 
whole community from its asbestos mining facilities in Libby, MT. W.R. 
Grace must love their Republican friends because while they had total 
asbestos liabilities of about $3.1 billion, under this bill they 
suddenly have to only make payments of $27 million over 24 years, which 
is pocket change for them. Instead of paying the $3.1 billion they are 
liable for today, they will pay only $424 million. No wonder they love 
Republicans. I mean, this is a walkaway.
  And the irony is, with a straight face there are those who call this 
the FAIR Act. I am sure they probably call it the FAIR Act at the board 
of directors of W.R. Grace. I am sure they call it the FAIR Act at the 
board of Halliburton. But I can tell you, in the families where they 
see the breadwinner with the oxygen tank suffering, coughing up blood, 
suffering a horrible death, they don't call it the FAIR Act. They might 
call it the Halliburton Relief Act. They might call it the W.R. Grace 
Relief Act. They don't call it the FAIR Act.
  As presently written, the FAIR Act would completely negate all 
legally binding settlement agreements between asbestos defendants and 
victims. It would take away their right to the courthouse. Even 
settlements that have already been partially paid, even those 
settlements--whether it is W.R. Grace or Halliburton, anybody else--
where they have agreed they are liable, where they have started to make 
payments, all of a sudden comes the FAIR Act, and it is like Christmas 
in April because they can void those agreements even though they have 
been making payments.
  In other words, if a victim agreed to take a settlement over a period 
of time from a defendant in return for dismissing the case, and even 
though that settlement agreement is an enforceable contract, the 
defendant, whether it is Halliburton or W.R. Grace or anybody else, 
gets the right to walk away.
  Victims are actually punished under this legislation for agreeing to 
settlement terms proposed by asbestos defendants. Is that fair? 
Absolutely not.
  In addition, the FAIR Act would retroactively extinguish all pending 
asbestos cases regardless of the stage in the litigation. The asbestos 
cases currently in trial or on the verge of trial would immediately be 
brought to a halt. Cases with jury verdicts or judgments would end, and 
all appeals would be suspended. Is that fair? No. It is not fair to the 
victims. It might be fair to W.R. Grace or Halliburton; it is not fair 
to the victims at home coughing out their lungs.
  The partisan emphasis in this bill on behalf of the interests of the 
industrial and insurance companies involved, to the detriment of the 
victims, has predictably produced an imbalanced bill. This bill is a 
reflection of the priorities that went into it. Remember, many of us 
wanted to bring certitude to the companies, to bring fair compensation 
to the victims. Instead, this is totally skewed.

  For us to succeed in reaching the consensus solution we sought for so 
long, a workable bill should fairly reflect and not discount the 
significant benefits that a fair solution would confer on the companies 
involved. A trust fund solution would offer these firms reasonable 
financial security. Even a casual glance at the way the stock values of 
these firms have closely tracked the Senate's work on this issue are 
enough to make it crystal clear.
  I think forcing this new asbestos bill through the Senate would prove 
counterproductive, even fatal, to the legislative effort. The near 
party-line vote within the committee on the earlier bill was more of a 
setback than a step forward. Proceeding further without consensus would 
make it worse.
  Many of us have worked very hard. Senator Daschle has worked 
extremely hard. Many of us have worked very hard for more than a year 
toward the goal of a consensus asbestos bill. This new partisan bill is 
especially saddening to me, and it is confounding. The obvious question 
that all of us, including those who brought this new bill to the floor, 
should be asking is, Does the partisan turn that the sponsors of this 
bill have taken help or hurt our efforts to produce and enact a 
consensus bill? I think the answer is clear.
  Instead of writing a bill that will make Halliburton and W.R. Grace 
very happy with some in this partisan exercise, let's restart our work 
to achieve

[[Page S4131]]

the common ground needed to enact a good and fair law. That is the best 
way to move it forward. Remember, we are not legislating as an arm of 
Halliburton or W.R. Grace or a few others. We are legislating for the 
good of this country. The 100 of us represent 280 million Americans. We 
want to be fair. Let's represent them.
  The PRESIDING OFFICER (Mr. Ensign). The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I thank the ranking member for his 
comments, most of which--I think all of which I agree with.
  Mr. HATCH. Will the Senator yield for a unanimous consent request?
  Mrs. FEINSTEIN. Yes, of course.
  Mr. HATCH. I ask unanimous consent that I be recognized immediately 
following the distinguished Senator from California.
  Mr. REID. Reserving the right to object, does the distinguished 
chairman of the Judiciary Committee know approximately how long he 
might speak when he does get the floor?
  Mr. HATCH. I think it would be less than a half hour.
  Mr. REID. We want to let other people come and speak. So it does not 
matter how long he speaks, just so we have some general idea. I 
withdraw the reservation of objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, as a member of the Judiciary Committee 
who voted for the bill in committee and worked out two amendments that 
are substantial, I regretfully rise to urge my colleagues to vote no on 
cloture on the motion to proceed to this bill. In the course of my 
remarks, what I hope to do is indicate my reasons for opposing cloture 
and make some positive suggestions as to how to close the gap on the 
unresolved issues.
  There are only two ways to get a bill on asbestos. I say this to 
everybody out there who has a legitimate concern and need for a bill. 
That is, one, unless the two leaders agree or, two, a bill that goes 
back to the Judiciary Committee and is worked out as a product of that 
committee's work.
  Last July, nearly 9 months ago, the Judiciary Committee passed out a 
comprehensive asbestos bill. We deliberated and had hearings over 
several years.
  The bill wasn't perfect, but it reflected a substantial step forward 
in crafting a legislative compromise. A few issues were unresolved. 
They were to be worked out by members in the intervening time. Since 
July, labor representatives, defendant companies, insurers, and others 
have engaged in multilateral negotiations, not only to settle these few 
unresolved issues, but to renegotiate the entire bill.
  The legislation proposed by Senator Hatch, the distinguished chairman 
of our committee, and Senator Frist, the distinguished majority leader, 
actually sets the debate backward by taking positions directly 
contradictory to the will of the majority of the Judiciary Committee. 
It is a substantially different bill that is on the Senate floor today 
than was the bill that I voted for in committee.
  I don't believe the bill is ready for the floor and I hope to 
technically explain why. In fact, I have written the chairman of the 
Judiciary Committee requesting that the bill be returned to committee 
for future deliberations. We, the Senators serving on that committee, 
did do our job, and we should be allowed to finish that job and work 
through the issues necessary to forge a bill that can pass in this 
body.
  Let me explain my concerns. Specifically, the bill Senator Frist 
proposes to bring to the Senate floor eliminates a crucial startup 
amendment that guaranteed asbestos victims would continue to have their 
legal rights until the Trust Fund is fully operational. This was a 
major deletion. It will cost the Trust Fund an additional $5 billion.
  Let me read to you from the CBO letter on that point, which is dated 
today and sent to Senator Nickles. ``You''--meaning Senator Nickles--
``also requested that CBO explain the major differences between our 
cost estimates for S. 1125''--that is the bill that came out of 
committee--``and S. 2290''--that is the Hatch-Frist bill on the floor. 
``On March 24, 2004, in a letter to Senator Hatch, CBO updated its 
October 2, 2003, cost estimate for S. 1125, principally to reflect new 
projections about the rate of future inflation, and it assumed a later 
enactment date for the bill. That letter explains that we now estimate 
enactment of S. 1125 at the end of fiscal year 2004 would result in 
claims payments totaling $123 billion over the lifetime of the asbestos 
fund (about 50 years).''
  The bill that came out of committee was originally projected to cost 
$108 billion. An amendment I made put in a contingency reserve of $45 
billion in case more money was needed. What this CBO letter shows is 
that money would, in fact, be needed. CBO's projections indicate that a 
$10 billion contingency fund would not be enough to cover the cost. 
That is major in scope.
  The bill we are considering today would cost, according to CBO, $17 
billion more than the Committee passed bill. Eleven billion of this 
increase comes from higher awards values.
  Five billion of that $17 billion increase is due to the elimination 
of my startup amendment. Here is why it costs $5 billion. The startup 
amendment guarantees that asbestos victims would continue to have their 
legal rights until the Trust Fund is operational. In other words, they 
could go to court until the Trust Fund was fully operational. CBO 
estimates that the Fund would save $5 billion by allowing the private 
settlement of these claims during this start-up period. That is the 
implication of eliminating the Feinstein startup amendment made in the 
Judiciary Committee.
  Secondly, the Hatch-Frist bill, as I have said, reduces the asbestos 
victims' trust fund's contingent reserve from $45 billion to $10 
billion. The reason for the original $45 billion contingent reserve was 
to ensure the solvency of the Trust Fund if the estimates are wrong. If 
the reserve is not necessary, it is not used. But if it is necessary, 
it is there. I have already shown you by this CBO letter that it would 
likely be necessary. CBO predicts that the $108 billion bill we passed 
last July would actually costs $123 billion because of revised 
projections. Thus, at the get-go, CBO predicts the Trust would need an 
additional $15 billion, which is already greater than the $10 billion 
reserve in the new bill. So why pass a bill that, at its beginning, is 
not going to have adequate funds?

  Thirdly, this bill wipes out final asbestos settlements and trial 
court judgments granting victims awards. This was one of the points 
that was left hanging when we passed it out of committee, and the 
members were supposed to get together and solve this. Well, the 
members--at least this member--didn't get together. But I gather a 
judge and one member did get together and, up to this point, there is 
no solution. The bill before us simply says to everybody that has a 
trial court judgment that that judgment is wiped out. That is wrong.
  This bill also prevents individuals from returning to the tort system 
for 7 years after the administrator starts processing the claims, even 
if the trust fund goes bust in its first years of operation.
  In contrast, the bill we passed out of committee said that if there 
is not adequate money, individuals could revert to the tort system at 
any time.
  Now, I am not going to vote for cloture, but I recognize that 18.8 
million U.S. workers were exposed to asbestos between 1940 and 1979. 
The best way to look at asbestos is tiny spears, smaller than grains of 
sand, that lodge in your lungs, guts, stomach, and, over a period of 
time, in your organs. It is bad stuff and it ought to be prohibited. 
This bill ought to prohibit it, for starters.
  Our courts are overloaded with claims arising from these exposures. 
Individuals have brought more than a half million asbestos suits over 
the last 20 years against 8,400 companies. Approximately 71 companies 
have filed for bankruptcy due to asbestos lawsuits.
  Moreover, the current system doesn't ensure compensation for the 
sickest victims. Currently, nonmalignant cases get 65 percent of the 
compensation awards, compared to 17 percent for mesothelioma, and 18 
percent for other causes. That is wrong on its face.
  As this tidal wave of asbestos cases goes forward, serious questions 
remain whether existing victims will ever receive the compensation they 
deserve. For example, because of the extraordinary influx of claims, 
the Manville trust is only paying 5 cents on the dollar.

[[Page S4132]]

  So I am one who believes we need a comprehensive solution to the 
asbestos crisis so that victims who are truly sick get compensated in a 
timely and fair manner.

  I recognize negotiations over the asbestos bill have proceeded at a 
pace that is satisfying no one, and to advance the debate, I would like 
to ask the Senate to consider the following core proposals, and let me 
mention what they are.
  The fund must be fiscally prudent. Clearly, it has to have a 
contingent fund of more than $15 billion. Whether that fund is $20 
billion or $25 billion or $30 billion, I think we need to go back in 
the Judiciary Committee and work the values versus the other provisions 
in the bill. I showed how eliminating my startup amendment cost the 
fund $5 billion. That is not my analysis. That is the CBO analysis.
  Second, the risk of a delay in the start of a national asbestos trust 
fund should not be borne by asbestos victims. What do I mean by that? I 
pointed out the bill eliminates the startup I authored in committee 
that permitted asbestos claimants to pursue asbestos claims in court 
until the administrator of the trust fund certifies the fund is fully 
operational.
  The reason this amendment is so necessary is to protect the legal 
rights of plaintiffs, and it should be restored. Without it, asbestos 
victims could be left without any recourse if there is a delay in 
starting up the fund. Under this bill, they cannot go to court. So if 
the money is not there right upfront or the money is short upfront, 
they are out in the cold.
  The amendment I offered serves as a hammer to get defendant companies 
and insurers to cooperate with the new trust administrator. And for the 
third time, I point out, it saves $5 billion, according to the CBO.
  I recognize the concern of some in the industry that asbestos 
claimants who are not yet ill will use the interim period to press a 
host of lawsuits against defendant companies. To address this, I would 
like to propose modifying the Feinstein amendment to allow a 6-month 
stay on asbestos claims upon enactment, except for those claimants 
facing life-threatening, asbestos-related illness. Thus, the stay would 
only apply to those who are not ill. I think that is a way out of the 
problem. For those who are ill, there would be no stay.
  Thirdly, I would like to suggest if claims exceed projections and the 
trust runs out of money, plaintiffs should have immediate access to the 
tort system in both State and Federal court. The current proposal on 
the floor would prevent victims from filing claims for 7 years after 
the trust starts processing them, even if the trust expires in the 
first or second year of operation. We cannot leave victims in this kind 
of legal purgatory.
  So to address legitimate concerns by defendant companies about forum 
shopping, I would also like to propose plaintiffs who return to court, 
if the trust fund collapses, would only be able to file as a member of 
a class or as an individual in State court jurisdictions where they 
were exposed or where they currently reside. This would handle the 
great bulk of forum shopping, if you think about it.
  Fourth, I would like to suggest award values should have a sliding 
scale in order to reflect the individual circumstances of victims. The 
current asbestos bill applies a one-size-fits-all solution to asbestos 
awards. An 83-year-old asbestos victim without dependents and a 37-
year-old single mother with three small children would both receive $1 
million for mesothelioma under the bill, but if we look at the awards 
given by asbestos trusts, such as the Western MacArthur trust, 
individual circumstances are definitely taken into account.
  For example, mesothelioma victims, under that trust, can receive 
between $52,000 and $4 million, with an average value of $524,000 in 
this particular Western MacArthur trust. This sliding scale brings 
fairness to individual victims' awards. It works in this trust.

  I have talked with the managers of the trust. They believe this half-
a-million-dollar average takes care of the younger victims and balances 
that in a fair way against older victims.
  Fifth, award values for the trust should be set in a way that 
prioritizes compensation for the sickest victims whose illnesses can 
clearly be traced to asbestos. This is the hobgoblin of this whole 
thing. All of the companies I have spoken to are concerned the trust 
will be abused, and it will be abused in this way: that smokers would 
have access without the defined connection to asbestos. Specifically, I 
think we should not allow the asbestos trust fund to be overwhelmed by 
smoking claims. This is a deep and valid concern.
  In the committee-passed bill--and I want to speak to it--awards in 
category 7 of the medical values raise the largest specter of 
uncertainty in terms of smoking claims. This category grants awards to 
smokers with lung cancer with 15 years of weighted exposure to asbestos 
but no obvious evidence of asbestos disease, such as pleural plaques or 
asbestosis.
  To prevent these claims from overwhelming the trust resources, I 
propose title VII, smoking cases, revert to the tort system, both State 
and Federal court, if the administrator determines at the year-end 
review that the incidence rates of those smoking claims will exceed 
projections by greater than 50 percent.
  Why do I say that? The tort system historically has been able to 
handle those cases. So it seems to me if there is a smoking case and it 
shows neither the evidence of asbestos disease, such as pleural plaques 
or asbestosis, let a court make that decision. This would deter smokers 
from misusing the trust fund for illnesses caused by smoking rather 
than asbestos.
  This is the most difficult part of the bill. In all of the medical 
values and all of the hearings and the medical testimony we heard back 
and forth, it is clear there is a difficult line of definition here, 
and that is why the trust fund, which is supposed to be a kind of no-
fault fund where a medical valuation can be made quickly and 
scientifically, may not always be able to make that valuation.
  So if the fund is going to be overburdened by smoking cases and the 
administrator at the end of the year says, Look, we are not going to be 
able to make next year, he can then file in that year-end review with 
the Congress the request that those cases go to court.
  We would give him that authority. I believe this is a solution to 
that problem. I am not wed to it, but to my knowledge it is the only 
one that anyone has come up with so far.
  Six, a fair asbestos bill must exempt from the trust fund final 
settlements as well as trial court verdicts that compensate victims. 
The Hatch-Frist bill fails to do this. Specifically, the bill would 
overturn any final settlement that ``requires future performance by any 
party.'' Thus, if an individual received a $\1/2\ million award 5 years 
ago to be paid in 10 annual installments, this bill would wipe out the 
last 5 installments.
  Of equal concern, the Hatch-Frist bill would wipe out lawsuits unless 
they were ``no longer subject to any appeal or judicial review before 
the day of enactment of the act.'' In other words, this bill would 
erase any trial verdict favorable to plaintiffs still on appeal.
  We should not undermine a litigant's reasonable expectation that he 
or she can pursue a favorable trial court verdict to its conclusion.
  I am also concerned the bill would overturn the final bankruptcy 
settlements that have formed the $2.1 billion Western Mac Arthur trust. 
Award recipients of Western Mac Arthur, 90 percent of whom are 
Californians, include 8,000 claimants who will be paid hundreds of 
millions of dollars in a very few weeks. The Mac Arthur trust has also 
set aside funds for 30,000 future claimants. All of this money is taken 
by this bill and put in the national fund. So this final bankruptcy 
trust is totally wiped out and 8,000 individuals who are going to be 
paid in a matter of weeks lose their settlements. It is just not right.
  Unlike some other settlements, the Mac Arthur trust places priorities 
on the sickest patients. A minimum of 80 percent of the awards paid out 
under the trust goes to asbestos cancer victims. These awards will be 
based on historical rates of asbestosis awards in California, which are 
higher than the rest of the nation.
  According to attorneys involved with the Mac Arthur trust, almost 
every present claimant expecting payment

[[Page S4133]]

under the Mac Arthur trust will do worse under the Hatch bill than 
under the trust because of the Hatch bill's requirement that collateral 
sources of compensation be subtracted from any award.
  Remember, this trust is not the only defendant for many of these 
plaintiffs. Many of the claimants have cases against other defendants 
and those are all wiped out as well.
  Now, I have policy concerns about wiping out the settlements and the 
fairness, but it is an open question as to whether such a transfer of 
assets is constitutional. Let me speak about that for a moment. Legal 
scholars such as Harvard law professor Elizabeth Warren have argued 
that the bill's expropriation of money from settlement trusts would 
violate the takings clause of the U.S. Constitution, which prohibits 
the taking of ``private property . . . for public use, without just 
compensation.''
  Specifically, there are a number of individuals with a confirmed 
court order allocating money to them who will have these awards taken 
away without receiving comparable compensation from the national trust 
fund. If I have ever heard of a takings case, that is it.
  Additionally, the Mac Arthur trust, which is an independent legal 
entity in its own right, may have a takings claim if its assets are 
transferred to a national fund without receiving comparable assets in 
return.
  Renowned legal scholar Laurence Tribe takes an opposing view and 
argues that the conversion of trust assets would be constitutionally 
permissible. The ultimate outcome of this debate is unknown. But it is 
clear that the trustees managing the Fuller-Austin and other asbestos 
trusts have indicated they will file constitutional challenges against 
the proposed legislation as soon as it is enacted unless changes are 
made.

  I will read from a letter dated July 2, 2003, to me from the Fuller-
Austin asbestos settlement trust:

       Passage of this legislation undoubtedly will set-off a 
     firestorm of litigation challenging its constitutionality. 
     The Trustees' present view is that their mandates under the 
     Fuller-Austin Trust agreement and the Fuller-Austin plan of 
     reorganization would require them to file litigation to 
     challenge the taking of the Trust's assets and the violation 
     of the rights of its claimants. Other existing trusts 
     doubtless will reach the same conclusion. The resulting 
     litigation will likely take years to resolve. In addition, it 
     will take years to establish the claims handling facility 
     mandated by the bill and for that entity to become 
     operational.

  We have $4 billion in this fund from bankruptcy trusts, and $2.1 
billion additional dollars from the Western Mac Arthur trust. So that 
tells us something about how this bill is going to start up and whether 
the money is actually going to be there to pay the people.
  In this bill, the people lose their right to go to court. It is a 
little bit diabolical if one thinks about it for a few minutes. That is 
why the startup amendment I offered in committee was so important, 
because it said nothing begins until the fund has its money and is 
operational. Therefore, those people had recourse. Once the start-up 
amendment was taken out, they had no recourse, and the CBO report says 
that is a $5 billion cost item right off the top.
  Now, I offer the principles as a basis for compromise on this 
legislation. I offer this as one who sat through the hearings and the 
medical testimony and committee debates and participated in bipartisan 
amendments offered on the bill.
  Thanks to Goldman Sachs, we ran numbers after numbers and Goldman 
Sachs has been good enough to run another set of numbers for me. We 
have changed some of the values to try to meet some of the concerns. I 
have those numbers with me.
  I ask unanimous consent that the Fuller-Austin asbestos settlement 
letter to me dated July 2 be printed in the Record.
   There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                            Fuller-Austin Asbestos


                                             Settlement Trust,

                                     Greenville, TX, July 2, 2003.
      Hon. Senator Dianne Feinstein,
      U.S. Senate, Washington, DC.
     Re: S. 1125, The Fairness In Asbestos Injury Resolution Act 
         Of 2003
        Dear Senator Feinstein: The Fuller-Austin Asbestos 
     Settlement Trust (the ``Fuller-Austin Trust'') was 
     established in December 1998 by order of the United States 
     District Court for the District of Delaware (the ``Court'') 
     in connection with the confirmation of the Chapter 11 plan of 
     reorganization of Fuller-Austin Insulation Company (``Fuller-
     Austin''). The purpose of the Fuller-Austin Trust is to 
     review and pay allowed asbestos claims of individuals who 
     were exposed to asbestos-containing materials sold, 
     distributed, installed or removed by Fuller-Austin Insulation 
     Company. Pursuant to the plan of reorganization, the Fuller-
     Austin Trust was funded with limited cash and other assets 
     and received the right to the proceeds of insurance policies 
     that covered Fuller-Austin's asbestos liabilities. The 
     purpose of this letter is to express the concerns of the 
     Trustees regarding the application of Senate bill 1125 to the 
     Trust.
        The Trustees, pursuant to Section 524(g) of the Bankruptcy 
     Code, are mandated to provide fair and equitable treatment to 
     all beneficiaries of the Fuller-Austin Trust over the 
     expected claims period, which is anticipated to be the next 
     35 to 40 years. These are beneficiaries who must provide 
     proof of their asbestos-related illness and exposure at one 
     of approximately 360 sites where Fuller-Austin worked from 
     1947 through 1986. There is a finite amount of funding 
     available to the Fuller-Austin Trust to fund its current and 
     anticipated future liability to claimants. The claims 
     procedures for the Trust, as approved by the Court, require 
     the Trustees to make provision for equivalent treatment for 
     present known claimants and the currently unknown claimants 
     who will make claims in the future as their asbestos-related 
     diseases are diagnosed. This requires a careful analysis and 
     balancing by the Trustees to assure the long-term solvency of 
     the Fuller-Austin Trust to meet the anticipated claims. In 
     addition to the trustees, there is a Trust Advisor, whose 
     mandate is to provide advice and consent to the Trustees 
     with respect to issues regarding present, known claimants, 
     and a legal Representative, whose mandate is to provide 
     advice and consent to the Trustees with respect to issues 
     regarding currently unknown claimants, including 
     safeguarding their rights to equivalent treatment.
       Since 1998, the Trustees have managed the Trust's small 
     base of liquid assets to pay a small percentage of the 
     allowed liquidated value of allowed claims and to cover the 
     cost of insurance coverage litigation to pursue the major 
     asset of the trust--the insurance available to Fuller-Austin 
     to fund its asbestos liabilities. The litigation has been 
     active since 1994. A second phase followed in September 2001, 
     and a jury trial (the final phase) was just completed in May 
     2003. The litigation resulted in (i) settlements with nine 
     insurers for approximately $200 million, some to be paid over 
     the next few years, and (ii) a $188 million jury verdict 
     against the remaining insurers in favor of Fuller-Austin on 
     May 6, 2003. As a result of the settlements, the Trustees 
     have increased the percentage of payments for each 
     established disease value paid to holders of valid asbestos 
     claims. The claims facility that receives, reviews, 
     determines and pays these claims has been fully operational 
     since August 2001.
       Senate Bill 1125 presents the Trustees with several 
     conflicts. First, the proposed law would take away the cash, 
     property and insurance assets that were dedicated or 
     transferred to the Fuller-Austin Trust pursuant to the 
     Fuller-Austin plan of reorganization confirmed by the Court, 
     undermining the orders of the Court. It would take away the 
     assets in the form of settlements and verdicts the Trustees 
     carefully have fought to muster for the beneficiaries of the 
     Fuller-Austin Trust. The foreign insurers that are now the 
     subject of a jury verdict, will argue that they now escape 
     all liability under the proposed law, avoiding their 
     contractual obligations as affirmed by the verdict of a 
     dedicated jury, who spent more than eleven weeks hearing and 
     deciding the Fuller-Austin case. Fuller-Austin's insurers 
     used and abused the court system for nine years to delay 
     paying their obligations under the policies they issued. The 
     proposed law would reward that behavior. In return, the 
     proposed law cannot provide any assurances when the national 
     fund will be in a position to begin paying claims or what 
     those payments will be, and it cannot provide any assurances 
     that the national fund will be solvent and able to provide 
     equivalent benefits to future claimants when their claims are 
     asserted.
       Second, passage of this legislation undoubtedly will set-
     off a firestorm of litigation challenging its 
     constitutionality. The Trustees' present view is that their 
     mandates under the Fuller-Austin Trust agreement and the 
     Fuller-Austin plan of reorganization would require them to 
     file litigation to challenge the taking of the Trust's assets 
     and the violation of the rights of its claimants. Other 
     existing trusts doubtless will reach the same conclusion. The 
     resulting litigation will likely take years to resolve. In 
     addition, it will take years to establish the claims handling 
     facility mandated by the bill and for that entity to become 
     operational. Finally, the limited annual funding provided by 
     the bill will result in the need for years of build-up in the 
     fund before current claim obligations can be paid. In the 
     meantime, the beneficiaries of the Fuller-Austin Trust, many 
     of whom gave up valuable rights in the tort system in 
     exchange for the promised certainty of being paid by the 
     Trust, would not be paid. Many would die before payments 
     began from the federal fund and many more would not have 
     funding for

[[Page S4134]]

     much-needed medical care over the next few years. Please 
     remember that most of our beneficiaries are senior 
     citizens, and a delay of a few years could be critical.
       The Trustees realize that many oppose the bill on a number 
     of grounds, including constitutional challenges and concerns 
     as basic as that the proposed funding levels will be 
     insufficient to pay expected claims over the life of the 
     trust. However, if the Committee decides to approve the bill, 
     the Fuller-Austin Trust urges that existing asbestos trusts 
     be exempted from the legislation or at least given the option 
     not to participate. As a solution to (i) the issue that the 
     proposal would take away the rights of beneficiaries of 
     trusts established by court order under confirmed plans of 
     reorganization and (ii) the funding crisis that would result 
     for many present and future asbestos claimants, we suggest 
     that existing trusts be allowed the option of continuing to 
     function as intended and funded, leaving in place the 
     obligations of the insurers to fund existing policies, 
     settlements and judgments.
       While we personally have concerns about the constitutional 
     issues, the proposed funding levels for the trust, the 
     medical criteria to be utilized, the award values and the 
     potential windfall to certain insurers, our primary concern 
     is to be able to continue to meet our mandate using funds and 
     assets provided by Fuller-Austin's court-approved plan of 
     reorganization through its fully operational trust and claims 
     processing facility. The Fuller-Austin Trust is currently 
     receiving, reviewing, determining and paying valid asbestos 
     claims that meet the requirements of the procedures 
     established by its plan. Senate Bill 1125 would completely 
     derail this efficient and effective process to the extreme 
     detriment of the beneficiaries of the Fuller-Austin Trust. In 
     an effort to find a global solution to the asbestos 
     litigation problem, pleas do not ignore the workable 
     solutions already confirmed, in place and funded in the form 
     of the existing trusts.
           Sincerely yours,
     Anne M. Ferrazzi,
       Trustee.
     W.D. Hilton, Jr.,
       Managing Trustee.
     Mark A. Peterson,
       Trustee.

  Mrs. FEINSTEIN. I also ask unanimous consent that the CBO report 
dated as of today to Senator Don Nickles also be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                    U.S. Congress,


                                  Congressional Budget Office,

                                   Washington, DC, April 20, 2004.
     Hon. Don Nickles,
     Chairman, Committee on the Budget,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: As you requested, CBO has prepared a 
     cost estimate for S. 2290, the Fairness in Asbestos Injury 
     Resolution Act of 2004, as introduced on April 7, 2004. The 
     bill would establish the Asbestos Injury Claims Resolution 
     Fund (Asbestos Fund) to provide compensation to individuals 
     whose health has been impaired by exposure to asbestos. The 
     fund would be financed by levying assessments on certain 
     firms. Based on a review of the major provisions of the bill, 
     CBO estimates that enacting S. 2290 would result in direct 
     spending of $71 billion for claims payments over the 2005-
     2014 period and additional revenues of $57 billion over the 
     same period. Including outlays for administrative costs and 
     investment transactions of the Asbestos Fund, CBO estimates 
     that operations of the fund would increase budget deficits by 
     $13 billion over the 10-year period. The estimated net 
     budgetary impact of the legislation is shown in Table 1.
       S. 2290 contains both intergovernmental and private-sector 
     mandates as defined in the Unfunded Mandates Reform Act 
     (UMRA). CBO estimates that the aggregate direct cost of 
     complying with the intergovernmental mandates in S. 2290 
     would be small and would fall well below the annual threshold 
     ($60 million in 2004, adjusted annually for inflation) 
     established in UMRA. CBO also estimates that the aggregate 
     direct cost of complying with the private-sector mandates in 
     S. 2290 would well exceed the annual threshold established in 
     UMRA ($120 million in 2004 for the private sector, adjusted 
     annually for inflation) during each of the first five years 
     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         -1.5     -0.8      1.0      2.3      5.5      3.2      1.0      1.0      0.9      0.8
 changes in revenues and direct spending......................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 legislation.

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

[[Page S4135]]



 TABLE 2.--SUMMARY OF ESTIMATED ASBESTOS CLAIMS AND AWARDS UNDER S. 2290
                          [Dollars in billions]
------------------------------------------------------------------------
                                 Initial 10-year        Life of fund
                                     period        ---------------------
                             ----------------------
                              Number of             Number of   Cost of
                                claims      Cost      claims     claims
------------------------------------------------------------------------
Claims for malignant             59,000        $36    127,000        $82
 conditions.................
Claims for nonmalignant         627,000         17  1,230,000         36
 conditions.................
Pending claims..............    300,000         22    300,000         22
                             -------------------------------------------
    Total...................    986,000         75  1,657,000        140
------------------------------------------------------------------------

     Major differences in the estimated costs of claims under S. 
         1125 and S. 2290
       You also requested that CBO explain the major differences 
     between our cost estimates for S. 1125 and S. 2290. On March 
     24, 2004, in a letter to Senator Hatch, CBO updated its 
     October 2, 2003, cost estimate for S. 1125, principally to 
     reflect new projections about the rate of future inflation 
     and an assumed later enactment date for the bill. That letter 
     explains that we now estimate enactment of S. 1125 at the end 
     of fiscal year 2004 would result in claims payments totaling 
     $123 billion over the lifetime of the Asbestos Fund (about 50 
     years).
       Three factors account for the difference between the 
     estimated cost of claims under S. 1125 and that under S. 2290 
     (see Table 3):
       The award values specified in S. 2290 are higher for 
     certain types of diseases. That difference would add about 
     $11 billion to the cost of claims, CBO estimates.
       Under S. 2290, most asbestos claims could not be settled 
     privately once the bill is enacted. In contrast, under S. 
     1125, asbestos claims could continue to be settled by private 
     parties between the date of enactment and the date when the 
     Asbestos Fund is fully implemented; defendant firms could 
     credit any payments made during that period against required 
     future payments to the fund. Consequently, CBO estimates that 
     the fund created by S. 2290 would face about $5 billion in 
     claims that, under S. 1125, we anticipate would be settled 
     privately.
       S. 2290 specifies that administrative expenses of the 
     program would be paid from the fund. Under S. 1125, in 
     contrast, administrative costs would be appropriated from the 
     general funds of the Treasury. That difference would increase 
     costs to the fund by about $1 billion over its lifetime.
       In the limited time available to prepare this estimate, CBO 
     has not evaluated the differences between the two bills in 
     administrative procedures. Under S. 2290, the Asbestos Fund 
     would be operated by the Department of Labor rather than the 
     U.S. Court of Federal Claims. This and other differences 
     between the two bills could affect the cost of 
     administration, the timing and volume of claims reviewed, and 
     the rate of approval for claims payments.

   TABLE 3.--DIFFERENCES IN ESTIMATED CLAIMS AGAINST THE ASBESTOS FUND
                        UNDER S. 1125 AND S. 2290
------------------------------------------------------------------------
                                                                   In
                                                                billions
                                                                   of
                                                                dollars
------------------------------------------------------------------------
Estimated cost of asbestos claims under S. 1125:                     123
  Added costs due to higher award values under S. 2290.......         11
  Additional claims not privately settled after enactment              5
   under S. 2290.............................................
  Administrative costs under S. 2290 \1\.....................          1
------------------------------------------------------------------------
    Total estimated claims against the fund under S. 2290....        140
------------------------------------------------------------------------
\1\ Under S. 1125 administrative costs would be appropriated from the
  general fund of the Treasury.

     Major differences in estimated revenue collections under S. 
         1125 and S. 2290
       CBO estimates that the Asbestos Fund under S. 2290 would be 
     limited to revenue collections of about $118 billion over its 
     lifetime, including contingent collections. CBO has not 
     estimated the maximum amount of collections that could be 
     obtained under S. 1125, but they could be greater than $118 
     billion under certain conditions. In our cost estimate for S. 
     1125, we concluded that revenue collections and interest 
     earnings were likely to be sufficient to pay the estimated 
     cost of claims under that bill. That is not the case for S. 
     2290.
       Over the first 10 years of operations, we estimate that 
     revenue collections under S. 1125 would exceed those under S. 
     2290 by $7 billion. Thus, under S. 2290 we estimate that 
     there would be little interest earnings on surplus funds and 
     that the Asbestos Fund would need to borrow against future 
     revenues to continue to pay claims during the first 10 years 
     of operations.
     Estimates of the cost of resolving asbestos claims are 
         uncertain
       Any budgetary projection over a 50-year period must be used 
     cautiously, and as we discussed in our analysis of S. 1125, 
     estimates of the long-term costs of asbestos claims likely to 
     be presented to a new federal fund for resolution are highly 
     uncertain. Available data on illnesses caused by asbestos are 
     of limited value. There is no existing compensation system or 
     fund for asbestos victims that is identical to the system 
     that would be established under S. 1125 or S. 2290 in terms 
     of application procedures and requirements, medical criteria 
     for award determination, and the amount of award values. The 
     costs would depend heavily on how the criteria would be 
     interpreted and implemented. In addition, the scope of the 
     proposed fund under this legislation would be larger than 
     existing (or previous) private or federal compensation 
     systems. In short, it is difficult to predict how the 
     legislation might operate over 50 years until the 
     administrative structure is established and its operations 
     can be studied.
       One area in which the potential costs are particularly 
     uncertain is the number of applicants who will present 
     evidence sufficient to obtain a compensation award for 
     nonmalignant injuries. CBO estimates that about 15 percent of 
     individuals with nonmalignant medical conditions due to 
     asbestos exposure would qualify for awards under the medical 
     criteria and administrative procedures specified in the 
     legislation. The remaining 85 percent of such individuals 
     would receive payments from the fund to monitor their future 
     medical condition. If that projection were too high or too 
     low by only 5 percentage points, the lifetime cost to the 
     Asbestos Fund could change by $10 billion. Small changes in 
     other assumptions--including such routine variables as the 
     future inflation rate--could also have a significant 
     impact on long-term costs.
     Intergovernmental and private-sector mandates
       S. 2290 would impose an intergovernmental mandate that 
     would preempt state laws relating to asbestos claims and 
     prevent state courts from ruling on those cases. In addition, 
     the bill contains private-sector mandates that would:
       Prohibit individuals from bringing or maintaining a civil 
     action alleging injury due to asbestos exposure;
       Require defendant companies and certain insurance companies 
     to pay annual assessments to the Asbestos Fund;
       Require asbestos settlement trusts to transfer their assets 
     to the Asbestos Fund;
       Prohibit persons from manufacturing, processing, or 
     distributing in commerce certain products containing 
     asbestos; and
       Prohibit certain health insurers from denying or 
     terminating coverage or altering any terms of coverage of a 
     claimant or beneficiary on account of participating in the 
     bill's medical monitoring program or as a result of 
     information discovered through such medical monitoring.
       S. 2290 contains one provision that would be both an 
     intergovernmental and private-sector mandate as defined in 
     UMRA. That provision would provide the fund's administrator 
     with the power to subpoena testimony and evidence, which is 
     an enforceable duty.
       CBO estimates that the aggregate direct cost of complying 
     with the intergovernmental mandates in S. 2290 would be small 
     and would fall well below the annual threshold ($60 million 
     in 2004, adjusted annually for inflation) established in 
     UMRA. CBO also estimates that the aggregate direct cost of 
     complying with the private sector mandates in S. 2290 would 
     well exceed the annual threshold established in UMRA ($120 
     million in 2004 for the private sector, adjusted annually for 
     inflation) during each of the first five years those mandates 
     would be in effect.
       If you wish further details on this estimate, we will be 
     pleased to provide them. The CBO staff contacts are Lanette 
     J. Walker (for federal costs, who can be reached at 226-2860, 
     Melissa Merrell (for the impact on state, local, and tribal 
     governments), who can be reached at 225-3220, and Paige 
     Piper/Bach (for the impact on the private sector), who can be 
     reached at 226-2960.
           Sincerely,
                                              Douglas Holtz-Eakin,
                                                         Director.

  Mrs. FEINSTEIN. Where we have made some changes--and I would suggest 
them--is in the second class, raising the Hatch-Frist values from 
$20,000 to $25,000; in class III, raising the values for asbestosis/
pleural disease B from $85,000 to $100,000; in class VI, other cancers, 
going from $150,000 to $200,000; in class VII, giving nonsmokers with 
15 years weighted exposure a range of $225,000 to $650,000--that is 
$50,000 more than in the Hatch-Frist proposal; in class VIII, lung 
cancer with pleural disease, giving nonsmokers a range of $600,000 to 
$1.1 million--a $100,000 increase; in class IX, giving nonsmokers a 
range of $800,000 to $1.1 million a $100,000 increase; and for 
mesothelioma, the last category, a $1.1 million average award on a 
sliding scale.
  These numbers have been run by Goldman Sachs. They total $123.6 
billion, as opposed to the $114.4 estimated for the Hatch-Frist 
proposal.
  Because I have not been party directly to any of the discussion, 
regretfully, the only way I can get my views through, it appears, is 
through the floor of the Senate. I believe this is much more fair to 
nonsmokers and I believe the methodology of giving the trust 
administrator the ability that, if nonsmoker cases rise above a certain 
percent in the next year, at the end of the previous year the 
administrator be given the power to put all of those cases into the 
tort system which will not only act as a deterrent, but will also 
provide the ability to fund this.
  One other point I want to make before I yield the floor has to do 
with the CBO letter. The CBO letter, in addition to the additional $5 
billion that removing my startup amendment would cost the fund, also 
points out the bill on the floor is different from the bill we passed 
out of committee because in the

[[Page S4136]]

bill we passed out of committee, administrative costs would be 
appropriated from the general funds of the Treasury. That difference 
increases costs to the fund $1 billion over its lifetime.
  So those are the reasons why CBO determined that the Hatch-Frist bill 
will cost $17 billion more than the Committee-passed bill.
  By way of conclusion, I would very much hope this bill will go back 
to the Judiciary Committee. I very much hope all members of the 
Judiciary Committee would have input into this bill. Or a bill should 
be negotiated between the two leaders, so it is bipartisan. There is no 
way I see a bill being written in private passing this body. Too many 
of us have put in too much time to try to get a fair solution to let 
that happen.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Allard). The Senator from Utah.
  Mr. DODD. Will the Senator from Utah yield for 1 minute?
  Mr. HATCH. I am delighted to yield.
  Mr. DODD. I commend the Senator from California for her statement and 
comments. She has been deeply involved in this effort, as have many of 
us over the last number of months, if not years. She has made a very 
comprehensive set of suggestions, to which I think our colleagues want 
to pay serious attention. I know my colleague from Utah will. He is a 
fairminded individual who cares deeply about this legislation as well. 
But I commend her for her comments.
  Mrs. FEINSTEIN. Thank you very much.
  Mr. DODD. At an appropriate time, I say to the distinguished chairman 
of the committee, I will ask unanimous consent that following the 
remarks of the Senator I may have some time, too. I don't know what the 
order is, but is such a request appropriate, Mr. President?
  The PRESIDING OFFICER. The Senator can seek consent.
  Mr. DODD. I ask unanimous consent at the conclusion of the remarks by 
the chairman of the Judiciary Committee, the Senator from Utah, that 
the Senator from Connecticut be recognized for 30 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Utah.
  Mr. HATCH. Mr. President, I listened to the distinguished Democratic 
leader on the Judiciary Committee, Senator Leahy. He made a number of 
statements I feel need to be corrected. I know he sincerely made them. 
I am not trying to disparage him in any way, but he has made the same 
mistake I think the minority leader made this morning, that only 
$25,000 is given to these people who are heavy smokers, who have no 
sign of asbestosis, no markers, no signs on their X-rays, where we have 
$25,000 to $75,000 for these people, even though in all likelihood 
their maladies have come from their smoking.
  If smoking and asbestos work in concert, together, why don't any of 
the bankruptcy trusts pay any money for lung cancer claims that do not 
present any markers or impairment at all? They do not.
  Here we are giving $25,000 to $75,000 for complaints that get 
absolutely zero in court. Why are these same claims almost always met 
with a defense verdict in the tort system? Even the tort system, as out 
of whack as it is, will not give these people money. Yet we do. You 
would think it was a crime that it is not more. That is typical of the 
arguments on the other side. You will never have enough money here to 
satisfy some on the other side no matter what you do. What we are 
trying to do is resolve this problem so the country can go forward, so 
these businesses don't all go belly up, so the jobs are not lost, 
pensions are not lost, and so people can get money without paying 60 
percent of the recoveries to attorneys and for transaction fees.
  By the time you add the defense attorneys' costs, the plaintiffs' 
attorneys' contingent fees, and the transaction costs, it is 60 percent 
of every dime that is raised in these horrendous court decisions that 
are paying people who are not sick to the exclusion of people who are. 
This bill solves that problem.

  Isn't it true this bill pays up to $1 million to lung cancer claims 
where there is more certainty it was caused by asbestos exposure? The 
fact is, it is true. That is $1 million some of these--a lot of these 
people will never get under the current tort system. But a lot of 
people who have never suffered 1 day of impairment in these 
jurisdictions I have been talking about will wind up with millions of 
undeserved dollars because this system is out of whack.
  I am getting a little sick and tired of hearing my colleagues blast 
Halliburton. There is only one reason they do that. That is because, 
even though he has nothing to do with it, even though he has long been 
gone from it, even though everything he has had to do with it has been 
finalized and closed, the Vice President used to work for Halliburton. 
It gets old. I mean it is cheap shots, there is no question about it. 
Frankly, let me say I have to respond to the dubious argument that 
Halliburton is gaining a windfall by this fund. Anybody who believes 
that should call them and ask how they feel about this fund. The truth 
is they may actually be better off by not having this legislation.
  Even some personal injury lawyers involved in the settlement with 
Halliburton believe that is the case, that they are better off not 
being part of raising the $124 billion.
  The truth has not stopped some of my colleagues from making 
exaggerated statements about this bill. I suppose it is no surprise 
that when they get the chance to take a shot, truthful or not, at their 
favorite whipping boy, they are not going to pass it up. That is what 
they do--as if all big businesses are bad and all big businesses screw 
their employees and all big businesses are out to hurt the economy.
  Let me state for the record how this bill compares to the Halliburton 
settlement. The conditional settlement reached with the plaintiffs' 
lawyers is just over $4 billion. There is a conditional settlement that 
Halliburton entered into that is a little over $4 billion. Only $2.7 
billion of that amount is cash. Of this $2.7 billion, about $2.3 
billion may be recovered by Halliburton from insurers. The remaining 
amount of the settlement, about $1.3 billion, involves issuing shares 
of stock. If the legislation is adopted, it seems likely the stock 
value will increase so that any dilution of stock values in the short 
run will be offset by medium- and long-term capital gains. So the 
actual cost to Halliburton is not the $4 billion they throw in, which 
some of my colleagues claim.
  We understand the firm believes recoveries from insurers in issuing 
new stock--two elements that those who argue this is a bailout always 
neglect to mention--will act together to create an actual out-of-pocket 
liability to the firm of less than $1 billion.
  How does their fund liability compare? As a tier 1 company in this 
bill, under the fund they would pay $86.5 million per year. The total 
nominal value of their liability under the fund would be just short of 
$2 billion. This is a bailout? It is a lot more than they would have to 
pay under their settlement. I hesitate to even say this in the Senate 
because if I were with Halliburton, I would take care of the 
settlement, the heck with this. But it would take some real effective 
money away from this trust fund. Halliburton is not the only one.
  Again, it appears some of my colleagues are not interested in hearing 
details such as these. They would rather confuse the facts and do 
anything they can to make sure the personal injury lawyers who support 
them do not lose out on their more than $60 billion of projected fees--
just from asbestos litigation--if this bill is not passed.
  No wonder they can afford to run these stupid ads all over America, 
acting as if they are fighting for little individual people. Give me a 
break. The fact is, everybody in this body knows there is a tremendous 
rip-off of a lot of people who have suffered from mesothelioma and 
other related asbestos diseases who are not going to get anything, or 
will get relatively nothing, if this bill does not pass.
  Now, we are faced today with a historic opportunity to right a 
serious wrong being committed against victims of asbestos exposure, as 
well as the thousands of companies and individuals who stand to lose 
out in terms of potential bankruptcies, loss of jobs, loss of pensions, 
under today's downright irrational system of compensation under our 
current tort system.

[[Page S4137]]

  For more than 20 years, our compensation of legitimate asbestos 
victims has been unacceptably diminished and delayed. It has become 
quite evident to the Judiciary Committee that tens of thousands of true 
asbestos victims, including their families, are faced with agonizing 
pain and suffering, with uncertain prospects of any meaningful recovery 
in the existing tort system.
  These inequitable results are particularly troubling when viewed 
against the reality that large dose exposures to asbestos, associated 
with asbestos-related diseases, ended in the 1970s. That is when they 
ended. Asbestosis is considered by many as a ``disappearing disease.'' 
These victims are left with little to nothing because, among other 
things, precious resources are being diverted toward the defense and 
payment of a massive influx of asbestos claims brought largely by a 
group of overzealous personal injury lawyers on behalf of these many 
unimpaired plaintiffs, people who have never suffered from anything to 
do with asbestos.
  Cardozo law school professor, Lester Brickman, found that more than 
80 percent of claims made in recent years and 90 percent at present do 
not involve a medically recognizable injury. You wonder what is going 
on. That would not happen but for courts that literally are not abiding 
by the law, where judges are bought by trial lawyers, and where they 
are totally plaintiffs oriented and the jurors come from areas where it 
is not their money, so they will put up any amount of money for people 
who are not even injured.
  In other words, a great majority of asbestos lawsuits today are 
brought by those who are not even sick. These claimants show lung 
conditions similar to the general population, including that of 
individuals with absolutely no asbestos exposure at all.
  To put the asbestos litigation problem in perspective, I will share 
the story of Mary Lou Keener, the daughter of an asbestos victim, who 
has spoken out in support of this legislation. Mary Lou knows all too 
well how the current asbestos crises has failed some of our Nation's 
true patriots, our veterans.
  Mary Lou Keener's father served in the engine rooms of the USS 
Mayrant, Lindsey, and Columbus in World War II in the Pacific. Both the 
Mayrant and Lindsey suffered serious damage from enemy attacks. Mary 
Lou's father had the dangerous assignment of helping to bring these 
crippled ships back to port, spending months fighting to keep them 
afloat, and beginning massive repair work while they were still at sea. 
He then spent months at the shipyard helping to finish the repairs.
  What Mary Lou's father did not know was that the countless hours 
spent in the engine rooms and boilers would cost him his life. The same 
is true of thousands of veterans like him. These ships, like almost 
every vessel in our fleet at the time, contained massive amounts of 
asbestos. Every moment he spent working to return these ships to 
battle, breathing the contaminated dust and debris, worsened his 
condition and guaranteed that he would never ever be able to recover.
  Not surprisingly, he developed mesothelioma, ultimately succumbing to 
this horrible, painful, and deadly disease on--guess what--Veterans 
Day, 2001.
  Mary Lou's father was more fortunate in one way than many veterans: 
He had a daughter, a truly exceptional woman who is a nurse, a lawyer, 
and a Navy Vietnam veteran. She is also a member of the Veterans Rights 
Commission.
  When she learned of her dad's condition, she rushed to help him and 
her mother navigate the complicated maze of regulatory and legal 
systems that he faced. Unwilling to take no for an answer, Mary Lou 
pushed to have him examined at the National Cancer Institute, part of 
the National Institutes of Health. It was there that Mary Lou's father 
received the definitive diagnosis that he suffered from mesothelioma. 
Mary Lou made sure he received the best treatment available from 
experts throughout the country.
  After his death, Mary Lou helped her mother fight through the 
regulatory requirement to obtain dependent indemnity compensation from 
the Federal Department of Veterans Affairs for a service-connected 
death. She helped her mother find an asbestos plaintiffs law firm to 
file a tort and wrongful death claim. Now, despite Mary Lou's efforts, 
her father's lawsuit, even with a resourceful and tenacious advocate 
like his daughter, has been languishing in the courts for over 18 
months.

  As most veterans learn, there are few viable defendants left who are 
responsible for supplying asbestos to the Navy. Mary Lou's mother 
received three checks from defendant companies, but they are all 
bankrupt and the amounts are very tiny. She can only cling to the hope 
that there may be other viable defendants, but the reality is that far 
too many veterans will go uncompensated under the current tort system.
  Perhaps this is why Mary Lou Keener spoke out in support of S. 2290, 
stating:

       The courts are clogged with asbestos cases, and even if [my 
     mother] finally has her day in court, the law firm will 
     collect almost half of any jury award. That's why passage of 
     [the FAIR Act] is so important. The Trust Fund solution to 
     this problem envisioned by [the FAIR Act] will bring much 
     needed compensation to veterans suffering from asbestos 
     related diseases and end the vagaries and lengthy delays of 
     the current/tort wrongful death systems.

  Last year, Mary's mother received a call from her attorney. 
Unfortunately, it was not about her husband's case. Instead, she was 
told she should consider contacting her Senators immediately and ask 
them to vote against the asbestos legislation. Needless to say, she 
declined that request. She understands that for veterans like her 
husband, while the status quo might benefit a handful of personal 
injury lawyers, it completely fails the one group that should be given 
the ultimate priority; that is, the asbestos victims.
  Now, let me refer to this chart: What is wrong with asbestos 
litigation? This is for the Navy veteran I have been talking about with 
mesothelioma. Under the tort system, he gets nothing. Under the FAIR 
Act, each of them gets $1 million. I have to say, no amount of money 
will compensate people for what they have gone through, but that is so 
much more than any of them are ever going to get without this bill.
  Now, as I say, unfortunately, the asbestos litigation problem reaches 
beyond our veterans and into the lives of everyday, hard-working 
Americans who are victimized by asbestos and the very system designed 
to vindicate their rights. One matter I find particularly troubling is 
the case of Huber v. Taylor. That is a class action lawsuit currently 
pending in the Western District of Pennsylvania. The suit was filed by 
2,644 plaintiffs in asbestos personal injury suits against the personal 
injury lawyers who represented them. The suit charges that the lawyers 
treated their clients as mere inventory, distributing only a few 
thousand dollars to each plaintiff for their injuries, while retaining 
tens of millions of dollars in attorneys' fees.
  Now, I bring this case to the Chamber's attention because it 
underscores the severity of the asbestos litigation crisis and why it 
is imperative we, as a legislative body, must now act to address this 
problem.
  Ronald Huber spent 35 years as a steelworker, inhaling asbestos 
fibers while working on the job. In 1995, he joined a class action 
against nearly 200 companies that made or distributed asbestos or 
asbestos-containing products. Although that class action settled for 
approximately $140 million, Mr. Huber has not seen a single penny from 
this award. How much did Mr. Huber's lawyers walk away with? They 
received $56 million.
  Look at this chart: What is wrong with asbestos litigation? Huber v. 
Taylor. The trial lawyers got $56 million; asbestos victims basically 
nothing. Think about it. That is right, the lawyers received $56 
million and the asbestos victims received nothing.
  In response to this severe injustice, Mr. Huber and over 2,000 of his 
fellow class members filed a lawsuit on February 7, 2002, in the U.S. 
District Court for the Western District of Pennsylvania against the 
personal injury lawyers who represented them in the first action. As of 
today, the court is still hearing arguments on various motions.
  The complaint charges the defendants with breach of fiduciary duty; 
failure to disclose the identity and nature of the actions they had 
joined; false representation to deprive the plaintiffs of funds 
belonging to the plaintiffs;

[[Page S4138]]

failure to exercise the degree of competence and diligence exercised by 
lawyers in similar circumstances; and misrepresentation of material 
facts. The plaintiffs are seeking compensatory and punitive damages.
  All of the plaintiffs to this action are described as ``hard-working 
union members in blue-collar trades.'' All of them were exposed to 
asbestos during their working years. All, to a large extent, have 
little knowledge or experience in the legal system. All state they were 
``recruited'' by plaintiffs' law firms for inclusion in ``mass 
actions,'' and all say their lawyers told them nothing about the 
lawsuits in which they were involved.
  Their complaint arises from what they call the ``corruption of the 
personal injury bar.'' The lawsuit states that, as early as the early 
1980s, the prosecution of asbestos personal injury claims had evolved 
into an industry and the lawyers who were prominent in that industry 
had accumulated a vast amount of wealth. To quote the complaint:

       The promise of such wealth drew additional plaintiffs' 
     lawyers into the field, and this resulted in more and more 
     aggressive efforts to recruit asbestos personal injury 
     plaintiffs.

  I think it is a sad state of affairs when asbestos victims have to 
sue their own lawyers to receive compensation for their injuries. We 
cannot allow the current, broken system to continue in this manner. It 
deprives victims of a meaningful remedy and diminishes public 
confidence in our civil justice system.
  I think we have to do something now to ensure there are no more 
Robert Hubers who are left with no recourse other than to sue their own 
lawyers.
  We must also act now to ensure that the tireless efforts of everyday 
Americans such as Mary Lou Kenner are not taken in vain. These are two 
of just thousands and thousands of people.
  It is because of these problems that I urge my colleagues to support 
S. 2290. Under this bill, victims will receive prompt and certain 
compensation through a privately funded trust administered by the 
Department of Labor. Moving existing claims to the fund will 
significantly cut out the exorbitant transaction costs inherent in our 
tort system--especially given the no-fault nature of the new system 
being proposed.
  In today's tort system, victims bear the heavy burden of proving that 
a specific product caused their illness. They must show culpability 
through causation and connect the dots that lead to the ultimate 
defendant. Unfortunately, few victims today are capable of producing 
sufficient evidence to show their illnesses were caused by a particular 
company's products. In fact, because of the long latency period 
associated with these asbestos-related diseases, the quality of 
evidence will inevitably degrade over time where memories fade and 
documents get lost. Thus, for the scores of victims who do not have an 
ironclad case against any one defendant, a no-fault system is an 
extremely important component when crafting a solution to the asbestos 
problem.
  Now, to illustrate my point, I would like to share the story of 
siblings Paul and Suzanne Verret. After being diagnosed with plural 
mesothelioma, both brought suit against four defendants, each a 
potentially responsible party under tort law. But after hearing 
evidence presented by the defense, a Texas jury ruled, just last month, 
that the Verrets' conditions were not caused by any of the four 
defendants who were likely to have been the result of exposure to 
asbestos from a Johns Manville factory in the neighborhood.
  Asbestos tailings from the plant have been used for driveways and 
parking lots in the neighborhood where the Verrets grew up. Johns 
Manville, however, is now bankrupt and its asbestos trust is paying 
pennies on the dollar on all claims. As a result of the jury's verdict, 
the Verrets are unlikely to recover any compensation for their 
injuries, but under S. 2290 they stand to recover $1 million each in 
compensation.
  Now, look at these Texas mesothelioma victims, Paul and Suzanne 
Verret. Under the current tort system, as shown on the chart on the 
left, victims hire lawyers and sue defendants. After years of trial 
processes and delays, victims are unable to prove causation. They use 
trial lawyers and collect zero. But under this bill, S. 2290, with the 
trust fund--if enacted--each of these people will collect $1 million in 
compensation.

  By the way, unless they are lucky enough to get a lawyer who is going 
to forum shop for them into a jurisdiction where the judges are 
basically in the pockets of the plaintiffs' lawyers, the personal 
injury lawyers, they might get something that way, but there are going 
to be very few who get that, and most of those people are not going to 
be ill. They are not going to have suffered and not going to be able to 
prove their case in other courts of law in the country. It is pathetic.
  Naturally, there are some great lawyers who do what is right here. I 
do not mean to find fault with them. I find fault with these phonies 
who use forum shopping jurisdictions and really what I consider to be 
corrupt judges and, in many cases, corrupt juries, to obtain humongous 
verdicts for people who are not even sick, taking the moneys away from 
those who are sick, which this bill would solve.
  In the coming days, we will be engaged in a historic debate regarding 
the asbestos litigation crisis facing this country. The outcome of this 
debate will have very real consequences on the victims of asbestos and 
their families. These victims are counting on us, their elected 
Senators, to do the right thing and address the problems in our tort 
system that is badly broken by asbestos litigation.
  I have to say, when you folks out there see these phony ads about how 
this bill is bad and the tort system is good, those ads are paid for by 
these attorneys who have already taken $20 billion in fees away from 
victims, and will take another $40 billion more, for a total of $60 
billion, out of their pockets. It is easy to see why they do not want 
this bill. It is a gravy train they do not want to stop.
  They certainly don't want it to be stopped by this bill, which is 
where the gravy train would end for lawyers and recoveries that are 
worthy will begin for victims.
  Let me say, although the stakes in this debate are high, the risk of 
not acting or allowing a broken system to remain broken is even more 
consequential. We at the very least owe it to people such as Mary Lou 
Kenner and Ronald Huber to make this bill the pending business of the 
Senate. We really need to do that.
  Let me tell you one more story about the impact of the current 
asbestos system on American business. The reach of the personal injury 
lawyers--I am talking about the dishonest ones--and their web of 
abusive litigation practices appears to have no limit. At last count 
these personal injury lawyers have cast their asbestos net to include 
some 8,400 defendant companies representing virtually every industrial 
sector of the U.S. economy.
  Approximately 70 companies, 35 since the year 2000 alone, have now 
been driven into bankruptcy as a result of asbestos litigation. 
Disturbingly, most of these companies that now find themselves named as 
defendants in asbestos cases had little or nothing to do with the 
manufacture, sale, or distribution of asbestos or asbestos-containing 
products. Under the ``deep pocket'' theory of law now commonly 
subscribed to by many personal injury lawyers, liability is not based 
on culpability; instead, it is based on the nearest available pot of 
money.
  What is more, an estimated 90 percent of the claims now being filed 
are on behalf of persons with no discernable illness, many of whom were 
recruited by for-profit, mass- screening operations being sponsored by 
enterprising trial lawyers.
  I would like to talk about a company that has facilities in my home 
State of Utah. Philadelphia-based Crown Cork & Seal is representative 
of all too many of the businesses that have found themselves targeted 
by the personal injury lawyers over asbestos.
  In 1963, Crown Cork & Seal, a consumer products packager in the can 
and bottle cap business, purchased, for $7 million, the stock of Mundet 
Cork Company, a New Jersey-based firm that made cork-lined bottle caps 
and insulation that contained asbestos. Because Crown was only 
interested in the bottle-cap business, Mundet sold its insulation 
division approximately 90 days after the purchase of its stock by 
Crown. Thereafter, Mundet, consisting

[[Page S4139]]

only of its bottle cap business, was merged into Crown.
  Crown never operated Mundet's insulation business, nor had it ever 
intended to operate its insulation business. Crown was only interested 
in acquiring Mundet's bottle-cap assets; no Mundet insulation managers 
ever worked for Crown, and no Mundet stockholders ever had any 
ownership interest in Crown.
  The trial lawyers have made Crown Cork & Seal pay dearly for the 90 
days it owned the insulation division of Mundet. To date, Crown has had 
to pay out over $400 million in asbestos claims. To give this some 
context, that is over 57 times what Crown paid for Mundet in 1963. In 
fiscal year 2003 alone, Crown paid over $200 million in asbestos-
related costs, of which only $25 million--or 12.5 percent--went to real 
victims of asbestos-related diseases, and that is what is going on.
  It is a rip-off. That is what is going on. That is what our 
colleagues are arguing for. It is a rip-off. Why? Some say it is 
because these personal injury lawyers are going to put up $50 million 
or $100 million for their nominee for President. I hope that is not 
true, but it is all too evident that that probably is.
  Here are these victims who should not have been able to sue Crown 
Cork & Seal to begin with. Crown Cork paid over $200 million in 
asbestos-related costs last year alone, and the victims got $25 million 
out of $200-plus million or 12.5 percent. All the rest went to lawyers, 
claimants who were not ill, and other costs.
  Look at this Crown Cork & Seal chart. What is wrong with asbestos 
litigation? Crown Cork & Seal: $25 million out of $200 million total. 
Of the more than $200 million paid by Crown Cork & Seal in 2003, 
actually only $25 million went to individuals impaired with asbestos-
related illnesses. Where did the $175 million go? It is a rip-off. That 
is what is happening.
  This bill will stop that. It is an expensive bill for the companies 
involved. They are going to have to pay for 27 years and pay through 
the nose. Many of them are in the same position as Crown Cork. They 
should never have had to pay a dime to begin with. The story of Crown 
Cork & Seal is just one of thousands of examples why we cannot put off 
fixing this problem any longer. Our current system is one that does not 
serve businesses and their employees whose livelihoods depend on them. 
Our current system surely has not served the victims of asbestos.
  I urge my colleagues to join me in supporting the FAIR Act, to vote 
for cloture so that we can stop this obstructionist filibuster being 
led by some of my Democratic colleagues. Think about it. They are 
filibustering a motion to proceed to this bill so we can debate the 
bill itself, filibustering it so we cannot add amendments to the bill. 
If they have good amendments, bring them up. We will listen to them and 
hopefully pass them, if they are good. If they are not, they might get 
them passed anyway. The point is, let's at least allow the Senate to 
work its will. Let's not stop even a motion to proceed this bill.
  I would like to respond to claims that were made earlier today that 
the Hatch-Frist-Miller bill is not fair to pending plaintiffs. This 
bill preempts and supersedes those claims pending in the tort system 
today, including verdicts that are still subject to appeal or judicial 
review. Preemption of such claims assures an end to a broken tort 
system that everyone agrees is slow, unwieldy, and fundamentally unfair 
to asbestos victims.
  The opponents' solution to their concern that the FAIR Act is unfair 
for pending plaintiffs is to keep the tort system open for pending 
claims. These critics are asking Congress to perpetuate the very 
problem this bill is seeking to rectify; that is, a broken system that 
is failing victims by misallocating resources away from the truly sick, 
where such victims receive too little because so much is going to the 
unimpaired and to attorneys who take most of the money.
  We all know the statistics. The vast majority of the claims being 
filed today, as high as 90 percent, are by individuals with little or 
no current functional impairment. Let me tell you how this translates 
into real money. Using the values cited by the minority views in the 
report of the Judiciary Committee on S. 1125 for unimpaired claimants, 
it is $40,000 to $125,000. Allowing pending claims to continue could 
direct anywhere from $10.8 billion to $33.8 billion or more to 
unimpaired claimants.

  How many of these claims are based on mass screenings? It has been 
estimated that the abuse of mass screenings has resulted in $28.5 
billion having been paid for meritless claims. That is almost $30 
billion that has gone to people who don't really have claims. This 
completely undermines the consensus public policy decision to redirect 
these funds to those who are truly sick from asbestos exposure and the 
whole purpose of this asbestos legislation.
  The bipartisan medical criteria argument forged in the Judiciary 
Committee recognizes unimpaired claimants should be monitored but 
should not be paid for illnesses they have not and may never develop. 
But we will pay for monitoring.
  Opponents of the bill who seek to perpetuate the tort system would 
also preserve the exorbitant attorney's fees associated with such 
claims. As much as 40 to 50 percent of awards go to the personal injury 
plaintiffs' lawyers fees and costs. Indeed, while we debate the bill, 
personal injury attorneys likely will file a large number of claims in 
the tort system, most of which undoubtedly will be for unimpaired 
claimants which would be allowed to continue if these opponents have 
their way. The rest, probably another 10 percent, goes to the defendant 
attorneys who have to defend these companies, many of which should not 
have any liability at all.
  There is no justification for allowing personal injury lawyers to 
continue to siphon significant resources out of the system when these 
resources could be dedicated to compensating those who are truly sick 
from asbestos exposure. The intent of the FAIR Act is to fix a system 
that everyone agrees is badly broken and in desperate need of repair.
  John Hyatt, the counsel for the AFL-CIO who testified before the 
Judiciary Committee in 2002, described the tort system as having ``high 
transaction costs, inequitable allocation of compensation among 
victims, delays in payment to victims, and a general climate of 
uncertainty that is damaging business far more than it is compensating 
victims.'' That is the counsel for the AFL-CIO. I have often heard 
Democratic colleagues make similar statements perpetuating the tort 
system, claims that undermine the bill, saying that would be better or 
more ``fair'' treatment than they would get under the FAIR Act. 
``Fair'' has to be in quotes in that manner.

  In fact, the Hatch-Frist-Miller bill provides relief to current 
pending claims. Any claimant who has filed a lawsuit in any State would 
be eligible for prompt compensation from the fund provided they meet 
the eligibility criteria set forth in the bill. These criteria are 
quite wrong. We should not treat plaintiffs in court as second class 
citizens. Cases filed in the tort system take years to process, and 
there is no guarantee that even with the trial date, a case will 
proceed. Cases in New York City given trial dates in 2002 have yet to 
go to trial. Even then, in most jurisdictions, cases that actually have 
been tried are often appealed, and years pass before the case is 
formally resolved. In the interim, plaintiffs are without relief, and 
money is being spent on lawyers, with no relief. There is no reason to 
leave this type of system in place. Moreover, the mere fact that a case 
is filed is no guarantee it will proceed. Claimants' cases proceed 
sometimes based on how many slots the trial has for your lawyer, where 
the cases were filed, what defendants are left, and other vagaries 
completely out of a claimant's control. That day will stop with the 
passage of this bill, which now provides expedited payments to anyone 
who can demonstrate a hardship, who has been diagnosed--anybody who can 
demonstrate a hardship or who has been diagnosed with mesothelioma or 
with another asbestos-related disease who has less than a year to live 
or can otherwise establish a circumstance requiring accelerated 
payment. The money is there now, when it is needed, and it can be paid 
out quickly to help these families. This bill also fixes the judicial 
system, unclogs the courts, allowing these judges to deal with other 
matters, not

[[Page S4140]]

asbestos cases in the wings waiting for court time that is precious 
and, at this point, unavailable.
  There is no need or benefit to leave these cases which have been 
clogging the courts pending in the courts. These cases are the very 
reason we are seeking to fix a broken system. There is no evidence the 
courts can or will handle them properly and not prejudice the litigants 
waiting their turn. Creating a two-track process is likewise unfair to 
victims and defendants. Despite all the rhetoric from opponents to the 
bill, when compared to what the current tort system will provide, 
legitimately ill claimants will fare much better under this FAIR Act.
  We will have victims who get immediate relief through the fund, while 
those with litigation pending must wait and hope for a court date and 
then hope the company responsible is still solvent and can afford the 
cost. What will we say to them when we have left a system that we agree 
is broken, and they are sitting in court for years? Great care has been 
made to ensure that the compensation program would be processing and 
paying claims soon after the date of enactment. There are no assurances 
that plaintiffs would have claims resolved in the tort system within 
this same amount of time. Indeed, experienced staffs say they are 
likely to continue to sit in court even longer.
  Furthermore, awards in the tort system are disparate and depend 
largely on where the claim was filed, what judge is presiding, rather 
than the severity of the illness. In other words, it is a phony system.

  Professor Laurence Tribe described the system as resembling a 
lottery, noting: Some victims receive astronomical awards, while others 
receive little or nothing. Quite a few severely injured victims die 
before their cases could can be heard. Plaintiffs point to the larger 
awards in some cases and cannot be denied, so some have been able to 
win in this lottery system, or win the lottery. These awards, however, 
are the exception and reserved for the few claimants who can survive 
through a long and hard trial, as well as appeals, often taking many 
years to see any moneys at all. Then they will find that about 60 
percent of the moneys are gone anyway.
  The plaintiffs bar doesn't point to the majority of claims receiving 
significantly less money for more severe claims or even up to 40 
percent taken out for attorneys' fees. As a stark example, a 2001 
asbestos verdict awarded Mississippi plaintiffs $25 million each, where 
none of the plaintiffs claim prior medical expenses or absences from 
work due to any related illness with the case of a cancer victim who 
underwent a lung removal operation. This cancer victim grudgingly 
agreed to join a class action suit against an asbestos company. He 
never lived to see the outcome of the case, and after 7 months his 
estate was awarded a mere $3,000. The others didn't even have injuries.
  Substantial judicial proceeds dating back to the early 20th century 
supports the constitutionality of Congress' authority to preempt tort 
claims when it believes it is in the public interest. It is clearly in 
the public interest, and especially in the interest of asbestos 
victims, that Congress used the full extent of its powers to preempt 
the current asbestos litigation system.
  Finally, Mr. President, allowing personal injury lawyers and the 
unimpaired to continue to drain resources out of the system and away 
from those who deserve the resources would not only be unfair to the 
truly ill, it is likewise unfair to defendants who ask them to pay into 
a no-fault system, give up some of their insurance company, and still 
expose them to the litigation lottery. We cannot expect the defendants 
to bear the costs and risks if it fails the judicial process. This 
system will continue to take 60 percent of every dollar and waste it on 
lawyers' experts and administrative costs.
  The Hatch-Frist-Miller bill will stop the litigation lottery in its 
tracks and instead replace it with a fair administrative process that 
treats all participants fairly and consistently.
  I want to respond to a few statements made by my friend and colleague 
from South Dakota earlier this morning regarding S. 2290, the Fairness 
in Asbestos Injury Resolution Act of 2004.
  Senator Daschle stated there was no reversion to the tort system. In 
fact, there is reversion to the tort system. It is one of the 
concessions we made. Should the fund become insolvent, then claimants 
with asbestos injuries who have not received compensation under the 
fund may pursue their claims in the courts. The statement that there is 
no reversion is simply wrong. I want to correct the record.
  Senator Sarbanes stated that we ``sprung'' the bill on the Democratic 
Senators and their staffs. Senator Daschle called attention to the 
total fund value. For the record, Senator Daschle's staff was informed 
of the new numbers last October. That was 6 months ago. Since October, 
there have been repeated and continuing discussions of these numbers 
over the ensuing months. We repeatedly asked the Democrats for a 
response to the numbers. We have received absolutely none. We 
repeatedly asked the Democrats for a legislative proposal--some 
language, an outline, a concept of a structure, something, anything. We 
received nothing.
  As Senator Daschle knows, this so-called new bill that we allegedly 
``sprung'' on him includes the very numbers we released months ago, the 
changes demanded by the Democrats, and the changes demanded by the 
unions. We have had 8 months of serious negotiations. I don't think it 
is justified for anybody to say they have been kept out of the process, 
we have not tried to accommodate them about these matters.
  Mr. President, I have one more comment that I would like to make to 
senator Daschle's statements this morning. He stated that a lung cancer 
victim with 15 years of exposure would receive only $25,000 in 
compensation. He painted an incomplete picture which I would like to 
finish. First, that figure is the bottom of the range of compensation. 
Under the claims values in FAIR Act, claimants who were exposed to 
asbestos and still smoking will receive between $25,000 to $75,000 in 
compensation. And for the record, Senators Leahy and Kennedy have 
stated that they want $50,000 for claimants falling into this category. 
Mr. President, I have come here to discuss the FAIR Act. We have a 
chance to help those who have suffered from asbestos-related injuries 
for far too long. Many people have spent many months getting us to this 
point and I want to ensure that we have a complete picture of the bill 
for the record. We owe at least that much to those victims.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Chaffee). The Senator from Connecticut is 
recognized.
  Mr. DODD. Mr. President, let me begin by, first of all, commending my 
colleagues on the Judiciary Committee. I am not a member of this 
distinguished committee. I had the good fortune of serving on the 
Judiciary Committee in the other body years ago, in the House of 
Representatives. I have great respect for my colleagues who serve on 
the Senate Judiciary Committee in either body because they deal with 
some of the most contentious issues before the American public.
  It is not easy to be the chairman of that committee, regardless of 
which party is in the majority in the Senate. I have the utmost respect 
for my friend from Utah. He and I have spent many years serving in this 
body together. There have been countless pieces of legislation that we 
have worked on together that are the law of the land today. I have 
great admiration for him.
  He is a legislator. I say that because there seems to be a shrinking 
number of legislators around here regardless of party affiliation. He 
is a legislator. That means someone who is willing to sit down and work 
out issues. I wish to begin by thanking and commending him for his 
efforts on this difficult subject matter, asbestos. This is an area in 
which I have had a longstanding interest, as many of my colleagues 
know, going back a number of years. This issue is of critical 
importance to my State of Conneticut, because it is the home of 
numerous small and large manufacturers, as well as several major 
insurance companies. They have a strong interest in the outcome of a 
resolution of this very perplexing problem of asbestos litigation and 
related issues.
  I have a strong interest in trying to come up with a solution for, 
first and

[[Page S4141]]

foremost, victims of asbestos exposure. It is estimated that more than 
27 million people who have been exposed to asbestos over the years.
  Regrettably, we know there are many who will die prematurely because 
of their exposure to this product. In fact, last year alone, 10,000 
people in this country died as a result of their exposure to asbestos. 
The numbers are truly staggering. We know there are over 600,000 past 
and pending cases involving over 6,000 businesses, that have been cited 
as defendants in these cases. And we know there are going to be 
literally millions of people who are going to suffer.
  So we must attempt to provide a better answer than the present system 
which has clogged up our courts, which has denied too many victims--
seriously impaired victims--of the kind of compensation they deserve. I 
have had a longstanding interest in trying to come up with a solution. 
We have gotten very close to such a solution.
  Let me begin by reporting on the progress that has been made. There 
is a tendency to only discuss the areas where there is still 
disagreement, and I think that only tells part of the story. People 
such as Senator Hatch and Senator Leahy, have worked tirelessly on this 
issue. The majority leader, Senator Frist, and the minority leader, 
Senator Daschle and their staffs have also spent a great deal of time 
on this legislation. Senator Daschle has always kept his door open, and 
repeatedly tried to see if we could proceed with a meaningful 
negotiation process. Such a process must occur in order to bring the 
various parties together around a resolution of this issue.
  There are many others who have been critically involved in this 
issue. We heard from Senator Feinstein earlier and other members of the 
Judiciary Committee. Senator Nelson from Nebraska has also worked hard 
on this issue. Senator Carper has also worked on this issue. There are 
many others who care about this issue and have spent a great deal of 
time on it. Senator Specter has been performing an invaluable service 
in trying to work out the administrative structure of the proposed 
compensation fund. I am sure I am leaving some of my colleagues out, 
and I apologize for that, knowing, as I do, that almost every State, 
without exception, is affected by this lingering question. When there 
are over 600,000 total cases, every State and Senator is affected.
  Seventy companies have already declared bankruptcy on this issue 
alone because of the judgments that have come in against them.
  As a result of those 70 bankruptcies, over 70,000 jobs have been lost 
from these companies. This is a major economic problem, as well as a 
major health issue that needs and demands resolution.

  The good news is this: There are about five or six major issues 
involved in the question of whether we can establish a bona fide trust 
that would allow for fair and equitable compensation to those who have 
been determined to suffer from diseases related to exposure of 
asbestos. The five or six major issues are the following:
  One, can we establish medical criteria which would make it possible 
to determine who has been exposed and to what extent have they been 
adversely affected as a result of that exposure. I thought that issue 
would never get resolved. This has not been an easy task. Can you 
imagine trying to bring doctors together with organized labor, 
manufacturers, and insurance companies, all sitting down and agreeing 
on what the medical criteria for this legislation should be? I am 
pleased to announce that months ago we were actually able to reach an 
agreement on the medical criteria. Amazingly, the issue of medical 
criteria has been resolved.
  The second issue is whether we could create an administrative system 
to process and review claims. This is also not an easy undertaking. 
Thanks to Senator Arlen Specter of Pennsylvania and thanks to his 
constituent, Judge Becker, and, by the way, the involvement of a number 
of our Senate colleagues under the auspices of Senator Specter's 
leadership--we have reached an agreement in this area we think is going 
to work.
  Creating an administrative system is a major accomplishment. Many 
people thought we would never be able to resolve this issue. On two of 
the major five or six issues, we have already achieved results. But it 
took weeks to work out the details behind these agreements.
  An asbestos compensation trust fund idea is complex. It is very 
complex. When we envision a trust fund that might have to last for 30 
years or more, that must deal with thousands and thousands of cases of 
people who have been exposed to asbestos, it is a serious undertaking. 
Every comma, every period, every semicolon can and does mean something. 
So we have to be very careful in how we draft this legislation.
  We have hundreds of manufacturers who have been, and continue to be 
affected by what we are doing. There are major insurance companies that 
clearly must be involved and will contribute to a trust fund, as the 
manufacturers will be. Organized labor, representing the hundreds of 
thousands of victims, must ensure that a trust fund is going to have 
adequate funding, and that monetary awards are fair and efficiently 
provided.
  We have seen the consequences of the current system. In fact, in the 
Johns-Manville trust resolution, the trust that was established under 
the name of that particular company, is a example of the problems with 
the current system. They believed that the amount of money initially 
placed put into that trust was going to more than adequately provide 
for the victims who have been exposed under the Manville situation. As 
it turns out today, the Manville trust is only paying about 5 percent 
of the compensation victims should be receiving.
  It went very wrong, not because the people who put it together 
planned it that way, but nevertheless that is what happened. No one I 
know of wants that to happen here, but it makes my point that this is a 
complex issue. And that getting this right is very important. We must 
be sure that this solution is going to work well. So it takes a little 
time--and in my opinion, it is time well spent.
  I do not know why at this very hour we have this legislation before 
us. It is not ripe yet. It has not matured enough yet. There are still 
huge issues outstanding.
  Obviously, one of the major open issues is the overall dollar 
amounts. I know it sounds like a lot of money--and there is a lot of 
money at stake here. But when we start talking about 25 or 30 years of 
a trust fund's existence, the difference is somewhere around $115 
billion and $155 billion, give or take a billion here and there. As 
Senator Everett Dirksen said: A billion here and a billion there and 
pretty soon you are talking about real money. This is real money. We 
are not talking about hundreds of billions of dollars difference. We 
are talking $20 to $30 billion or so over 30 years, spread among a 
large number a defendant companies and insurers who face greater losses 
and greater uncertainty under the current system.
  It seems to me if we get actuaries together, and agree at the 
universe of potential claimants, and provide them fair compensation, we 
should be able to come up with a neutral number to satisfy the needs of 
expected claimants.
  We have changed approaches from where we started at the outset of 
this debate. We initially tried to create a bill that was 
``evergreen,'' that is, that it would be the complete solution to this 
problem for as far as the eye could see in the future. However, we 
began to realize the difficulties of creating a fund that lasts 
forever. Several factors caused us significant uncertainty. For 
example, we still import asbestos in this country. There is still 
asbestos being used, or at least people are being exposed to it even 
though we now know the problems that result from exposure. So the idea 
that we are going to have a final number in perpetuity, I think, was 
abandoned by all sides.

  We have contended that this number is somewhere between $115 billion 
and $155 billion. If that does not end up being right at the end of the 
day, then we ought to resort back to the present tort system to solve 
the problem.
  I just heard my colleague from Utah say his bill includes that 
provision. With all due respect, I must disagree with my friend from 
Utah because the provision in the bill being offered by the Senator 
from Utah and the Senator from Tennessee, the majority leader, has a 7-
year gap between when the trust fund may run out of money and

[[Page S4142]]

when the tort system could be used by a victim.
  Now, that is hardly reassuring to the victims and their families that 
the system that presently is in place which provides them some 
financial relief will be taken off of the table in the event that the 
trust fund becomes insolvent.
  Let me quickly point out as well, that these numbers of 115 or 155--
if one takes the high end or the low end, are hardly unreasonable. The 
Rand Corporation, which is hardly an organization that identifies 
ideologically with the left or right or Democrats or Republicans, has 
estimated that the cost of the current problem is somewhere around $300 
billion. So at the outset we are talking about a trust of only $155 
billion.
  While we disagree over actual dollar amounts at this point, I believe 
that people of good will, sitting down, can come to an honest 
compromise that would satisfy all parties involved in this debate.
  Another open issue is the value of the claims themselves. If we are 
able to reach agreement on the medical criteria and able to reach 
agreement on an administrative system, it seems to me, again, that good 
people who care about this should be able to resolve this issue and 
provide fair compensation to victims of asbestos.
  Another outstanding issue that needs resolution is what to do with 
pending claims. There are some claims that have been adjudicated. Some 
are completely adjudicated, others are only in the discovery process. I 
do not want to get too technical legally, but I think most people would 
understand there are some cases that are already mature in the judicial 
system. Determining at what point in the judicial process, should cases 
be abrogated and claimants directed into the trust fund is a difficult 
question. When is the judicial process allowed to be completed where 
those claims exist? I do not have an answer for that one today, but, 
again, I think people of good will who care about this issue and 
realize what a huge problem this is could come to some thoughtful, 
reasonable compromise on how to deal with pending claims.
  That is not the complete universe of all the problems, but those are 
the major ones. Two of them we have solved. Three or four of them 
deserve additional time and effort to resolve. Certainly the intent of 
the amendments adopted in Committee by Senators Feinstein and Biden 
that addresses pending claims and returning back to the tort system in 
the event of insolvency are ideas that should be reconsidered and 
adapted. There may be others ideas that are also helpful.
  The point is there are people making suggestions to resolve these 
questions. I do not understand why this body is being asked to make a 
definitive decision on this bill that none of us have seen because it 
was introduced only 2 or 3 days before the last senatorial recess. We 
are being asked to accept voting on cloture on this matter on Wednesday 
or Thursday of this week. I might point out that last November or early 
December we reached an agreement, a compromise, on how to proceed to 
the class action issue. I happened to be one of those involved in that 
negotiation. Why do we not bring up that bill? That bill is ripe and 
ready to go, not that many of my colleagues would support it. But for 
those of us who are willing to support a class action reform bill, we 
reached an agreement on that 4 or 5 months ago, and yet that bill is 
not being brought up. Why not? That bill is ready to go. This bill is 
not ready to go.

  Why are we taking 3 days in a very abbreviated session of the Senate, 
when we do not have much time remaining, some 30 days, to bring up a 
matter where there is so much disagreement that could be resolved if we 
would spend the time doing it as Senator Specter has done, as Senator 
Daschle has done, and as Senator Leahy has done? I know Senator Hatch 
and his staff have also worked tirelessly on this topic.
  Legislating on a matter like this is hard work. It is labor 
intensive. Any one of my colleagues, Republican or Democrat, who has 
been in the Senate for any length of time will say that on major 
legislation, particularly legislation that is precedent setting such as 
this is, people are required to roll up their sleeves and put in a 
tremendous amount of hours to resolve these matters. In my view, it 
cannot be done thoughtfully or carefully by engaging in open-ended 
floor debate with amendments flying around that no one really knows the 
implications of, some of which are passed 51 to 49, others defeated 51 
to 49. When we are dealing with something as serious as this, where 
literally thousands and thousands of lives depend upon receiving 
adequate compensation, we know we are dealing with a very complex 
problem.
  I urge that a cloture motion not be filed. I know one has not yet 
been filed, and my strong appeal to the majority leader would be please 
do not file this cloture motion. There is still time. This is only 
April. I presume we are going to be here until sometime in early 
October. Give us the chance, insist upon people meeting and trying to 
resolve these issues. It may come down that a few of these matters are 
not resolvable through negotiation, and the only way to resolve them is 
by having some floor votes on them. I accept that may be the final 
determination. But we ought not to jump to that when there still is an 
opportunity to resolve some of these outstanding questions.
  I have spoken to organized labor, John Sweeney, and his 
representatives. They want a bill. It is their membership, many of 
them, who suffer from the exposure to asbestos. It is their membership 
that is losing jobs in companies that are declaring bankruptcy. They 
want a bill, but they want to make sure when they have a bill that the 
resources will be there to provide adequate compensation.
  By and large, the insurance industry, with some exceptions, wants a 
bill because they realize that the current system is flawed and could 
cause untold economic hardships on some of these companies. It could 
cause some of them to collapse, and I am not exaggerating when I say 
that. They are very interested in getting a bill. I know the 
overwhelming majority of manufacturers, those that were either involved 
in the production or use of asbestos over the years, in most cases 
before anyone knew of the great harms caused by this product, they want 
a bill.
  This is one of those unique situations where all of the parties, all 
of them, and including, I might add, many of the trial lawyers involved 
in this area, understand some different resolution of this issue is 
needed other than the present tort system. Obviously, that is not the 
view of everyone who is a trial lawyer, but many of them have already 
spoken out on this issue.
  So we have a unique political environment where the major 
participants are anxious to get a bill. I rarely find that. Normally 
one finds people highly divided where labor or business is at complete 
opposite ends of the spectrum on a matter that is before us. Here, 
nearly all stakeholders want a bill. Instead of sitting down and 
keeping people at the table and working it out, we are prematurely 
bringing up something causing this bill likely to fail, and fall before 
we have an opportunity to resolve the differences. As I said a moment 
ago, why not bring up class action? Why not bring that up? That is 
ready to go. Where is the business community that has said to me over 
and over again: Why don't we get a class action bill here? We have been 
ready since November and December. Here it is April and nothing has 
happened on class action. Yet you bring up and consume 3 days of time 
on the floor of the Senate with a bill that everyone knows, if you 
invoke cloture or file a cloture motion on the motion to proceed, it is 
going to fail. And it should fail. It should fail. I say that with deep 
regret.

  I have committed the time of staff members and my own time over the 
last number of years on this issue. I think to come this close to 
resolving a major issue affecting the lives of hundreds of thousands of 
people and their families and attempt to address it in a premature 
fashion is a huge mistake.
  So my appeal to my colleagues is: Sit back and work this out. It is 
hard, but it can be done. And, if we get near the end of the session 
and we have not been able to resolve everything, either wait until we 
get back in January or bring it up and leave a smaller number of issues 
out on the floor to be resolved

[[Page S4143]]

by votes on the floor and healthy debate. But don't jam this now, 
particularly when we know the outcome, taking up the valuable time of 
this body on the floor where the time can be better used to take up 
issues where there has been agreement, at least agreement by a 
significant majority of us to move forward on the legislation. That has 
been done now on class action.
  Why doesn't the majority leader come over and move to proceed to that 
bill so we can vote on it? We have been ready for that now, as I said, 
since 3 or 4 or 5 months ago. There has been no action at all. No 
action. Why not? Why is that bill not on the floor right now, being 
debated and discussed?
  Of course we have seen the same thing with medical malpractice. There 
is no effort to negotiate it out. There is a proposal on the Democratic 
side. It is different from what the majority has proposed, but not that 
different. You could bring those two sides together and resolve the 
issue. Doctors deserve better than they are getting. They are being 
told the Democrats are stopping everything. Why is it the majority 
refuses to even sit down and try to work out the differences?
  I stand ready. My staff does. Again, I am not a member of the 
committee. Obviously, Senator Hatch and Senator Leahy, as I mentioned 
earlier, have done a tremendous amount of work on this and deserve a 
great deal of credit for trying their best at this.
  The leader on this side, politically, is Senator Daschle. I have been 
with him on numerous occasions when we met with the manufacturers, met 
with the insurance industry. As Senator Daschle has said over and over 
again, his door has been open to do whatever it takes to try to get a 
bill done. I know from personal knowledge he has offered on numerous 
occasions to meet with the majority leader and others to try to figure 
these things out.
  I mentioned Senator Specter already. Senator Biden, obviously, 
Senator Feinstein, and a number of others have been involved in this, 
trying to get this done. My hope is that the majority leader will not 
wait until Thursday. Listen to us over here. We can get this done. It 
could be a proud moment of this Senate's session, to have actually come 
up with an answer to a major problem in this country. We are getting 
very close to resolving it. It will take a little more work, in my 
view, over the next coming weeks, but it could be done.
  My plea this afternoon would be that filing a cloture motion on the 
motion to proceed would be withheld, that we bring up other matters 
that are ripe and ready to go forward, and send the people back to work 
on this bill and let's see if we cannot draft a piece of legislation of 
which America can be proud.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                                JOBS Act

  Mr. REID. Mr. President, right before we had our break we were asked, 
Senator Daschle and I, to see what we could do to move the FSC bill 
along. The majority has affixed the name the jobs and opportunity bill, 
or something like that.
  We have always known the importance of this legislation, and we did 
our very best to move this along. It was held up initially because we 
wanted a vote on overtime. The majority, for reasons I fully don't 
understand, refused to allow us to have a vote on this.
  As the Chair will recall, this amendment passed previously. What our 
amendment would do is say the President does not have the right to take 
away the ability of American nurses, firemen, police, and a total of 8 
million people, from getting overtime. In effect, what we have been 
told by the administration is they were going to promulgate a rule that 
would take away overtime pay for people who make more than $22,000 a 
year.
  We wanted a vote on this. You can't do that. It passed once; it was 
stricken in a Republican-only conference. The House passed a resolution 
saying they wanted their conferees to do the same thing the Senate did 
and stop the President from doing this.
  We have been told by the majority--the distinguished majority leader 
has come out here on a number of occasions and said this is a must-pass 
bill. American businesses are getting hurt. So Senator Daschle and I 
worked for the better part of a day calling individual Members. We had 
75 amendments. We worked to get them cut down. We not only cut down the 
amendments to 18, but we have time agreements on these amendments, as 
little as 5 minutes on some of the amendments. We clearly could have 
finished all of these amendments in 1 day. All of them wouldn't require 
votes but, if they did, we would be willing to put in an extra-long 
day. Therefore, we, through our Democratic leader, went to the 
Republican leader and said, Here is what we have. Some of these 
amendments, quite frankly, would not require votes and some would not 
even be offered. So we wait one night, come back to the majority and 
say, We are willing to do this deal. We know this is an important bill, 
that tariffs are being applied against American manufacturers and other 
business people; what is the problem?

  To make a long story short, we were told the majority had 50 
amendments with no time limits on them whatever.
  The FSC bill is not going forward not because of anything we have 
done. It is because this Congress, I am sorry to say, using the Harry 
Truman term, is a do-nothing Congress. We do not do anything. If we 
have to work past 5 or 6 o'clock at night, that is not a good idea. We 
cannot even consider coming in and voting at noon on Monday. To think 
we could vote past 9 or 10 o'clock on Friday, even on a bad day, is out 
of the question. We usually vote Tuesday afternoon and finish the votes 
as early on Thursday as we can. This is not a good way to accomplish 
things. That is why this Congress is doing nothing.
  I don't want another word ever said about the FSC bill not going 
forward because of the Democrats. We want to go forward. We have done 
everything we can to move this forward. We have wasted on this piece of 
legislation many days of legislative business when we could be working 
on things that need to be done in addition to that.
  Gasoline prices in Nevada have increased 46 cents a gallon since the 
beginning of the year, almost 50 cents a gallon. I have not checked 
today. They may be up another 4 cents. Since the first of the year the 
prices in Nevada have gone up 46 cents per gallon.
  I talked to a contractor who is the largest contractor, he says, in 
northern Nevada, the Reno area. Diesel fuel prices for his company are 
costing his company $7,500 a day in addition to what he was paying at 
the first of the year. This is in addition to the mess we have with 
steel prices. This is a tremendous burden.
  There is no doubt the price of crude oil has contributed to higher 
prices in Nevada and throughout the country. However, the outrageous 
46-cent-a-gallon increase in Nevada since January is not driven by 
crude oil but corporate greed and profit.
  We are used to it in Nevada because during the Enron debacle we were 
told it was supply and demand. It had nothing to do with supply and 
demand. It had everything to do with Enron reaping windfall profits. 
Enron told consumers it was a matter of supply and demand. But it 
turned out Enron was manipulating the supply of electricity.
  In Nevada we get all of our gasoline from California refineries, so 
any problem with the supply in California is a problem for Nevada. This 
is a lot of talk about the tight California gasoline market, where 
prices are typically 20 to 30 cents above the national average. We hear 
about the law of supply and demand all the time driving prices higher.
  One thing I know for certain about the law of supply and demand with 
the Enron situation, is that it cost the Nevada ratepayers nearly $1 
billion during the electricity crisis almost 3 years ago. Based on this 
bitter experience which is still being litigated in the courts, I was 
concerned Nevadans might be getting ripped off again when gasoline 
prices went through the roof early this year. I asked the Federal Trade 
Commission to investigate these wild price increases, particularly with 
an eye toward any possible manipulation of gasoline markets. After 5

[[Page S4144]]

weeks, the FTC responded by saying prices in Nevada were ``unusually 
high'' and above predicted norms. An informal FTC investigation is 
still looking into the cause of the price hike.
  There are spikes FTC says they cannot understand. They are having a 
hard time showing collusion or market manipulation, but they know 
something is wrong. As they said, the usually high prices are above 
predicted norms.

  I don't need an investigation to tell me big oil profits have soared 
at the expense of working families. These markets are not competitive 
when a handful of companies can decide what price they are willing to 
sell for and what price a consumer is forced to pay.
  As a nation, we need to address both the supply and demand side of 
the energy equation to promote a truly competitive market. On the 
demand side, we have to increase the fuel efficiency of cars and 
promote public transit. Maybe that is wishful thinking. On the supply 
side, we can increase the use of alternative fuels and renewable 
energy.
  In the short term, we have to increase supply. We can do that, in my 
opinion, by having the President at this time, when the Saudis and 
others are turning off the spigots and making the supply less--we can 
increase supply by pulling oil from our petroleum reserves. We need to 
do that. President Clinton did it. The first President Bush did it.
  In the long term, we have to do something with alternative energy. We 
have to. It is important. I was encouraged before the recess when the 
energy tax incentives were added to the FSC bill, which I just talked 
about. I applaud Senators Grassley and Baucus for the excellent 
provision dealing with section 45 production tax credit for renewable 
energy resources that expands and extends the credit for wind, 
geothermal, solar, and biomass energy. We must harness the brilliance 
of the sun, the force of the wind, and the heat within the Earth. By 
using the bountiful resources to diversify our energy supply, we 
protect the air we breathe and we protect consumers from these wild 
price swings.
  We cannot lose sight of the fact renewable energy will make our 
Nation more secure because it is made in the United States of America. 
I was disappointed to learn we will put off consideration of the FSC 
bill, even though we have agreed to the finite list of amendments.
  The other thing the President can do on a short-term basis is have 
the Saudis provide more oil. We are told in Woodward's book he has a 
deal to do this in the fall. Move it up, make the deal a little 
earlier.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Crapo). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FRIST. Mr. President, it is time for us to bring the asbestos 
bill to a floor vote and to bring it to discussion so we can continue 
the progress that needs to be made on this important bill. As I said 
earlier this morning, every day we do not act is a day victims are not 
receiving appropriate compensation for what they need and deserve.
  The bill we put forward provides a reasonable solution to the 
asbestos litigation crisis and has numerous consensus-building changes 
that have been added to the underlying bill, many made at the request 
of Democrats and representatives of organized labor.
  What has emerged is a collective effort to date on a proposal that 
comes from the original S. 1125 and has critical modifications that 
have been added on the counsel of stakeholders. As I said this morning, 
there will be a lot of constructive proposals put on the table through 
the amendment process from Senators on both sides of the aisle to 
further refine and improve this bill.
  I encourage this process. We have had numerous discussions throughout 
the day, solidly since this morning. I have had the opportunity to talk 
to the Democratic leader on several occasions discussing both options 
and how we can best bring this bill to appropriate closure. We will 
continue these conversations over the course of this evening and 
tomorrow. A lot of stakeholders are at the table discussing issues that 
are very important.
  Reference has been made to Judge Becker on numerous occasions and 
over the course of the day and in the statements this morning, and of 
the mutual respect both sides of the aisle have of the work he has done 
to date. I would like to continue those discussions tonight and 
tomorrow to see if there is some way we and the Democratic leadership 
can put a process in order where we can help mediate some of the 
differences we all know exist.
  My colleagues on the other side of the aisle say we need more time, 
and I respect that. In truth, we have made real progress, and we are 
getting real focus on a very important bill. We have been discussing 
and negotiating and changing and working on this bill for over a year 
now, and I believe all our colleagues are coming to the table in 
earnest at this point.
  We are going to be filing a cloture motion. The cloture vote will 
give everyone an opportunity to put their views on the record as we go 
forward and continue to work on this bill.
  Again, every day we do not reach an agreement on this bill is another 
day victims of asbestos litigation malfunction are suffering. 
Therefore, I believe working together we are going to be able to bring 
resolution.
  Having said that, we will be filing a cloture motion.


                             Cloture Motion

  Mr. President, I now send a cloture motion to the desk.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the motion to 
     proceed to calendar No. 472, S. 2290, a bill to create a fair 
     and efficient system to resolve claims of victims for bodily 
     injury caused by asbestos exposure, and for other purposes.
         Bill Frist, Orrin Hatch, Gordon Smith, Lamar Alexander, 
           Saxby Chambliss, Ted Stevens, Michael B. Enzi, Trent 
           Lott, Kay Bailey Hutchison, Susan M. Collins, Pete 
           Domenici, Rick Santorum, Jon Kyl, George Allen, George 
           Voinovich, John Ensign, Wayne Allard.

  Mr. FRIST. Mr. President, I ask unanimous consent that the mandatory 
quorum under rule XXII be waived.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FRIST. Mr. President, we will continue discussions tonight and 
tomorrow. We will talk with the Democratic leadership as we go forward 
over the next several days. I am very hopeful we are going to work out 
a suitable and appropriate process to address these important issues.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The assistant Democratic leader.
  Mr. REID. Mr. President, I have been listening to the discussions 
today on asbestos litigation, and there have been some provocative 
statements made on both sides. This is a very important issue. I have 
to say I have some sympathy for the businesses. But the sympathy I have 
for the businesses is overwhelmed by what I have seen in the personal 
suffering of the people who have been injured, some of whom are dead. 
We do not know how many thousands will die this year. Estimates are 
probably 10,000 from asbestos.
  We still import thousands of pounds of this poison into our country. 
So I hope all the people who have good intentions--I know they all do--
talking about this asbestos reform will, first of all, understand Judge 
Becker, whom I have never met, is not a Senator. It is nice he has 
agreed to come in and work on these proposals, but Judge Becker is not 
a Senator, I repeat. He is not a member of the staff. I do not know who 
he is meeting with, why he is meeting with them. There are a lot of 
judges in America, retired judges. It so happens this one is from 
Pennsylvania. There are retired judges in other places who have the 
same expertise he has.
  I listened to Senator Hatch speak today. I listened to Senator Leahy 
speak today. We cannot write an asbestos bill in the Senate. We cannot 
write it outside here in some office building downtown. The only way I 
will ever feel comfortable about legislation dealing with asbestos is 
if it goes through

[[Page S4145]]

the channels it is supposed to go through: the Judiciary Committee.
  We have men and women on the Judiciary Committee, both from the 
majority and the minority, who have spent years working on this issue. 
They are certified experts. They not only understand litigation, they 
understand legislation.

  So I hope everyone understands it is good people who are interested 
in this legislation do everything they can to weigh in on this issue, 
but I hope we all look to the Judiciary Committee to come to us with a 
product. It cannot come out of the Environment and Public Works 
Committee that I work on. It cannot come out of the Appropriations 
Committee. It cannot come out of the Governmental Affairs Committee. It 
cannot come out of any other committee. It has to come out of the 
Judiciary Committee.
  But we have people who have worked on this issue--not only the two 
leading members of the committee; that is, the ranking member and the 
chairman--but also people on that committee who have listened to hours 
and hours and days of testimony. Maybe they should listen to some more. 
But this is legislation we are talking about that is going to have a 
price tag on it from $150 billion--I should say, the figure in this 
bill is a very ridiculously low figure of $109 billion, to maybe as 
much as $700 billion or $800 billion, maybe $1 trillion. So this is not 
something we need to rush into.
  We need to help victims of asbestosis, mesothelioma. I would hope we 
would do as the State of Illinois has done, have some type of pleural 
registry so people who have worked around asbestos and are afraid they 
are going to get sick would be able to go on to that registry so the 
statute of limitations is not tolled.
  In short, the Judiciary Committee has jurisdiction over this 
legislation, and this is from where the legislation should come that we 
deal with on the floor, not some retired judge, or not a Senator who 
feels he knows more about it than others. I am not pinpointing any 
Senator. I am saying there are a lot of people who think they have an 
interest in this issue. Everyone has an interest in this issue. All 100 
Senators care greatly about this issue. Some feel more strongly about 
the businesses than I do; others feel for the victims.
  But I would hope we do not try to rush into this and do something 
that is written here or downtown someplace; that whatever we do, 
whatever suggestions, whatever people feel will improve our ability to 
pass this legislation, they will work through Senators Hatch and Leahy 
and have the full committee vote on what we do.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, I did not hear all the Senator from Nevada 
had to say about this subject. I have listened to some of the 
presentations this afternoon. I want to make a couple of comments about 
the asbestos issue and then I want to talk about a couple of other 
unrelated matters.
  First, on the asbestos issue, I am one of those Senators who has in 
the past year or year and a half written letters to my colleagues, to 
Senator Frist and to Senator Daschle, in support of efforts to find a 
negotiated solution.
  On July 31 of last year, I sent a letter to our joint leadership 
urging that we reach a bipartisan compromise on the issue of asbestos. 
That letter was signed by a number of other colleagues: Senators 
Miller, Breaux, Ben Nelson, Baucus, Carper, Kohl, Lincoln, Levin, and 
Stabenow.
  In late October, I sent another letter to Senators Frist and Daschle 
urging that we seize the moment and pass an asbestos bill, but 
recognizing that in order to do that, there needs to be serious 
negotiation. All of the stakeholders--and there are big stakeholders on 
this matter--need to come together to resolve the issues in a way that 
reflects a true compromise.
  There are a couple of things that are necessary to say at this point. 
One, I believe there is an urgency to deal with this issue. The failure 
to deal with it causes great economic uncertainty for companies and for 
our economy. The failure to deal with it means there are some who are 
sick as a result of having contact with asbestos during their lifetime 
and who will not be compensated. There are others who are not sick who 
will receive compensation. There are lawyers in the middle of some of 
these suits who will receive a disproportionate percentage of awards. I 
don't think this system works at all. The system is broken.
  For that reason, I believe it is in the interest of everyone for us 
to have legislation in the Senate that can truly reflect a bipartisan 
compromise. But the bill before us now is not such legislation.
  I was surprised, frankly, the week before last, just before the 
Senate took a 1-week break, to read statements made on the floor of the 
Senate. I shall not ascribe them to any particular colleague, but those 
who want to know can look in the Record.
  One of the colleagues who brought this bill to the Senate floor 
suggested that the asbestos negotiations were being blocked because the 
personal injury bar would not otherwise put up $50 million for John 
Kerry in the election. This colleague of mine said that such a 
suggestion, if true, was ``pathetic.'' Well, these words are an affront 
to all those colleagues on my side of the aisle who have been working 
very hard to get a good asbestos bill through the Senate this year. And 
these words are hardly appropriate from someone bringing a bill to the 
Senate floor, for which he seeks bipartisan support.
  This is not a serious proposal. We understand that. Senator Specter, 
who I think has done much of the serious work in the Senate trying to 
bring people together and reach a compromise, does not support this 
proposal. Let me read what Senator Specter said, again a Member of the 
majority party:

       I decline to join with Senator Frist and Senator Hatch in 
     their substitute bill because I think it is the better 
     practice to try to work through these problems.

  I completely agree with Senator Specter. I think the approach to have 
taken on this would have been for Senator Frist to have engaged with 
Senator Daschle and have all of the stakeholders work over a period of 
months to reach a compromise. And it is not too late to do that.
  In recent months, Senator Daschle has attempted numerous times to 
meet with Senator Frist to hammer out these issues, but those meetings 
have not taken place. I don't know all that has happened with respect 
to that, but I do know this: Putting a bill on the floor of the Senate 
that is far short of a true compromise with the stakeholders is not 
going to solve the problem.

  Yet this is an urgent problem that needs solving. I believe, as some 
of my colleagues do--Senator Carper, for example, on my side, who has 
worked very hard on this issue, who believes very strongly, as do I--
that there needs to be a solution. I certainly believe that if we end 
this session of the Congress without addressing this issue, without 
passing some legislation, we will have failed. All of us will have 
failed.
  It is simple enough to bring legislation that is unacceptable to the 
Senate floor so you can then have a press conference and say: Well, the 
other side killed this legislation. That is simple enough, but it does 
not address any problem or solve any issue.
  My hope is that in the coming days, the joint leadership--Senator 
Frist, Senator Daschle--might join with the stakeholders in this issue 
around a table and have some hardnosed negotiating and hammer out and 
develop a proposal that represents a true bipartisan proposal that 
represents a true compromise by all of those engaged in this issue so 
that we can pass legislation. Bringing what has been brought to the 
floor of the Senate the week before last and filing cloture on it is 
not a way to legislate. They know and we know that this means this 
legislation does not advance. I fail to see how that solves a problem 
or begins to address an issue that I believe is urgent.
  Once again, there are some principles involved. One, I don't believe 
that people who are not sick and have never been sick should be 
compensated. Two, I believe those who are sick should be compensated 
and compensated fairly and not have to go through a tort system and 
spend a lot of money for lawyers to be compensated. Three, I believe 
that the American business community deserves some certainty and that 
certainty does not exist at this point. That is why I believe a trust 
fund of sorts that is set up and established with appropriate medical 
criteria and other definitions is the best

[[Page S4146]]

way for us to resolve the issue. I believe we should get to that 
point--the sooner, the better. But we have wasted a great deal of time.
  The process that has now been embarked upon by the majority leader 
will almost certainly guarantee we will not get to that point. I regret 
that because I hope at the end of this process, this Congress will 
understand the urgency for workers, for business, for all of the 
stakeholders to pass asbestos legislation.


                  The Office of Foreign Asset Control

  Mr. DORGAN. Mr. President, I would like to speak for a moment about a 
subject I discussed with the Treasury Secretary this morning when he 
testified before my Appropriations subcommittee. We are fighting 
terrorists who want to attack this country. They have killed thousands 
of innocent Americans. They wish to attack this country and kill 
innocent Americans once again. It is an enormous challenge to fight and 
defeat terrorism. It takes all of our energy every day in our law 
enforcement areas, in the intelligence community. It takes a lot of 
coordination and good work. It takes getting it right.
  So we have the homeland security office. We have the CIA. We have the 
FBI, the Defense Department. We have everybody working on these 
issues--the U.S. Customs Service, and a little agency in the Treasury 
Department called OFAC, the Office of Foreign Asset Control. These are 
the people whose principal responsibility is to try to track the 
financial transactions happening between terrorists, to shut down the 
financial connections that finance terrorist activities.
  But that is not all that is done in the Treasury Department with 
respect to OFAC. This rather small office is doing other things. Their 
principal job ought to be to track terrorism and to shut down the 
financial root that funds terrorist activities. But there are some at 
the OFAC who are doing other things. Let me describe them.
  First, from a speech in December by the Under Secretary of Homeland 
Security, in Miami, a speech by Asa Hutchinson, where he talked about 
the crackdown on enforcement of the U.S. embargo against Cuba and goes 
into some detail; and then the Secretary of the Treasury, also in 
Florida, on February 9 gives a speech. The Office of Foreign Assets 
Control at Treasury, he said, is working closely with customs agents 
inspecting all direct flights to Cuba at Miami, JFK airport, Los 
Angeles Airport. That is hundreds of aircraft, tens of thousands of 
passengers, and agents are being meticulous.
  Well, I wonder if we are checking quite so closely with respect to 
trying to track terrorists. You know what they are looking for? I will 
give you an example. They are enforcing the embargo that we have with 
respect to Cuba, and part of that embargo is to prohibit Americans from 
traveling in Cuba, so we have all of these resources and personnel at 
airports tracking every passenger and every plane to see if someone has 
done something wrong. This is an example of what they discovered.
  This agency in the Treasury Department that is supposed to track 
terrorism tracked down Joanie Scott. She went to Cuba 4 years ago to 
distribute free Bibles. Four years later, the folks who wear suspenders 
at OFAC at the Treasury Department decide they are going to slap her 
with a $10,000 fine because 4 years ago she went to Cuba to give away 
free Bibles. She said she didn't know she needed to get a license. Four 
years later, they slapped her with a $10,000 fine. That is not all of 
it.
  This is a picture of Joan Slote, a 74-year-old grandmother, who is a 
bicyclist. She is a senior olympian. She rides bicycles all over the 
world. She happened to ride one in Cuba with a bicycling group from 
Canada. Guess what happened to Joan Slote? She got fined by OFAC, this 
little agency in Treasury that is supposed to be tracking terrorists. 
They are tracking little grandmothers who are riding bicycles in Cuba, 
in order to punish Castro and enforce the travel ban. They fine 
American citizens for traveling in Cuba. So she gets fined $7,630 for 
riding a bicycle in Cuba.
  These are some folks who are disabled athletes. They got to go to 
Havana about 2 years ago for the games for disabled athletes, the world 
games. They applied again this year, but as the Treasury Secretary and 
Mr. Hutchinson and others have said, including President Bush, we have 
this crackdown now on travel to Cuba; so these folks were denied a 
license to compete in the games for disabled athletes in Havana. The 
result is that they lost the $8,000 they paid to a travel agency for 
transportation to Havana to participate in world team sports for 
disabled athletes. Quite the terrorists, aren't they?
  So we have people down at the Treasury Department tracking these 
folks, a retired grandmother, a woman who takes free Bibles for 
distribution in Cuba, to see if we can find them. That is what is going 
on--levying fines of $5,000, $10,000.
  There is another man from the State of Washington who decided his 
father's last wish was to be buried or have his ashes distributed in 
the church he once ministered at in Cuba. Cevin Allen of Washington 
State traveled to Cuba to bury his father's ashes on the church grounds 
where his father once ministered. They decided to fine him $20,000.
  That is what they are tracking down at OFAC. They ought to be ashamed 
of themselves. Their job is to track terrorists.
  Let's look at what they have done. They have people stationed at 
airports. They have trained Homeland Security agents. Hundreds have 
been trained to do this. Here is what they have nabbed with 45,000 
passengers. They have actually worked overtime to thwart terrorists 
importing cigars from Cuba.
  On October 10 of last year, they had this directive from the 
President and, boy, they went at it. Homeland Security and OFAC at 
Treasury grabbed this issue. They found that 215 of the 45,461 
travelers to Cuba were suspected of taking a vacation. Maybe that is a 
felony. They were suspected of taking a vacation. What an awful thing. 
And 283 tobacco and alcohol violations were found. The Homeland 
Security spokesperson, Christine Halsey, said each violation involved a 
small amount of rum or cigars; 245 are going to take a vacation, and a 
small number are bringing in rum. There were 42 narcotics seizures, but 
it involved prescription drugs, not heroin. There was one hazardous 
material violation. We have this ramp-up and we are supposed to protect 
America against terrorism, and you have these folks in green eyeshades 
trying to levy fines on Americans, and you have agents at airports 
trying to see who comes back from Cuba, and who traveled illegally so 
we can fine them. One hazardous material violation was discovered. It 
was apparently a carbon bioxide canister, which was probably used to 
add fizz to seltzer water.

  Does this sound stupid? It does to me. That is a harsh word. 
Sometimes our public policies seem flatout dumb. We are confronted with 
the specter of terrorists who want to kill Americans, cross our borders 
and commit acts of terror. Yet we have people at airports, Homeland 
Security agents, and OFAC trying to track little old ladies that went 
on bicycle trips in Cuba. What are they thinking at the Department of 
Treasury? Is that the way they want to use their resources?
  All of us know that lifting the travel ban to Cuba would happen 
instantly if we had a vote in the House and Senate. The only way they 
prevent it is to prevent a vote. But to use assets at the Department of 
Treasury, agents are supposed to be tracking terrorists, but instead 
are tracking little grandmothers riding bicycles, or women distributing 
Bibles, or a son who wants to bury his father's ashes at his home 
church in Cuba. That defies description to me.
  So I am going to find a way during the appropriations process to find 
out how many resources they are using at the Department of Treasury to 
do this, and if they don't want to use them properly, they should lose 
them. If they want to keep them, they ought to use them to protect us 
against terrorists, not to slap a fine on a grandmother who rode a 
bicycle in Havana. I think that is nuts.
  As we go into the appropriations process, I want to bring attention 
to that single issue. That is an important issue, and one that I think 
ought to be dealt with.
  I wish to make a comment on an additional issue today. We are heading 
into an appropriations process. We

[[Page S4147]]

have a huge budget deficit, significant fiscal policy problems. Three 
years ago, it looked as if there were going to be surpluses forever. 
Now we have the biggest budget deficit in the history of this country. 
There is no prospect in sight of anything resembling a surplus for the 
next 10 years and beyond. Despite all that, we still have some needs in 
this country. We need to find a way to meet them.
  With respect to a number of functions, it is Katie bar the door, 
whatever they need. We are spending $100 billion more for defense than 
we used to spend. I understand that. We are spending $130 billion 
already in Iraq, $5 billion a month, $4 billion in Iraq, $1 billion in 
Afghanistan. Nobody is being asked to pay for it. Increases in homeland 
security spending, I understand that. Tax cuts, tax cuts, and more tax 
cuts, and a President who says: Let's make all of them permanent. I 
understand why he is saying that as well. I don't support it.
  I think someone who makes $1 million a year is fortunate, and good 
for them. I am all for them, but suggesting they should have a $123,000 
tax cut per year on their $1 million salary, at a time when we are up 
to our neck in deficits, in my judgment, defies description.
  Let me mention one other issue that I think we need to deal with--the 
issue of the Indian Health Service. I want to show a picture of a 
little girl named Avis Littlewind. She died 2 weeks ago. Her aunt said 
she took her own life around noon in her home. She missed 90 days of 
school since the start of the school year. She is a 14-year-old girl 
who apparently felt there was no hope. She lives on an Indian 
reservation. On the reservations, there are precious few resources to 
deal with the kinds of problems this young girl obviously confronted--
one psychologist, a social worker, no psychiatrist, no automobile to 
provide necessary transportation.
  There is a crisis in resources to deal with these issues. A young 
girl takes her own life and nobody seems to say much about it. It is 
just what happens. The fact is, this should not happen. It should not 
ever happen.
  I remember speaking one day on the floor of the Senate about another 
young girl, a Native American, a young Indian girl, age 3, placed in a 
foster home, but they did not check out the foster home before they 
placed her there. The caseworker worked 150 separate cases and did not 
check out the foster home.
  This young girl had her nose broken, her hair pulled out by its 
roots, and her arms broken at a drunken party. She will never outlive 
the scars of that beating she took. Why? Because one person was 
handling 150 cases involving children.
  We have a full-blown crisis on Indian reservations in this country 
dealing with the basic social services that every American family ought 
to be able to expect to access. When a young girl has serious problems, 
serious emotional difficulties, and needs help, that young girl ought 
not to take her own life at age 14 because help is not available. This 
is a better country than that.
  When we come to funding the Indian Health Service this year, we can 
no longer pretend Third World conditions do not exist on some of the 
Indian reservations in this country when it comes to health care for 
kids. We just cannot any longer pretend. Lives are being lost, lives 
are being ruined, and we can do something about it.
  I am going to have more to say as we get into the appropriations 
process, but I did want to simply say there is a tragedy that is 
unfolding every day, every hour in parts of this country that are in 
America's shadows. Out of mind, out of sight for some, but not for all. 
We, in this Congress, must shine a light on these problems and begin to 
solve them.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, I ask unanimous consent that I be allowed 
to speak as in morning business for such time as I may consume.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                              Patriot Act

  Mr. CORNYN. Mr. President, I rise to speak about the PATRIOT Act, a 
subject which has been much misunderstood. I think some of the 
misunderstanding has been perhaps just from lack of information or has 
been misinformation that has been spun in an effort to confuse people 
and perhaps even to scare people about what is in this important 
legislation. Indeed, we are all committed to making sure not only that 
our Nation is secure, and I believe the PATRIOT Act has contributed 
tremendously to improving the security of the United States of America, 
but at the same time we have a fundamental commitment in this country 
to civil liberties. I believe, and I think the American people believe, 
the Founders of this country believed firmly that we can have both our 
national security and our civil liberties. Particularly, in a time of 
war such as we are in now, while there will be some tension, we need 
not sacrifice our civil liberties.

  Nevertheless, there are those who would play politics with this issue 
in an effort to score political points, or I think others who perhaps 
for more benign reasons might just be not very well informed and kind 
of go along, not really knowing the truth. So I want to talk just a few 
minutes about the PATRIOT Act and what it has done.
  Of course the PATRIOT Act has passed overwhelmingly, just a short 
time after the terrible events of September 11. Indeed, the purpose of 
the PATRIOT Act was to give law enforcement the tools and our 
counterterrorism experts and agents the tools they needed in order to 
prevent future 9/11s.
  Indeed, the evidence is clear that the PATRIOT Act has served that 
important purpose. The Department of Justice has broken up four 
terrorist cells in the United States since September 11, in Buffalo, 
Portland, Detroit, and Seattle. It has filed criminal charges related 
to terrorism against more than 300 individuals. So far it has secured 
176 convictions or guilty pleas. Perhaps the best evidence of the 
success of the PATRIOT Act has been the fact that, thank goodness, 
America has not suffered another horrific event like 9/11 since that 
terrible day some 2\1/2\ years ago.
  I might add we have also been successful in freezing some of the 
funding that has been essential to financing terrorism around the 
world. In fact, the PATRIOT Act has allowed us to freeze more than $200 
million in funds from organizations that have been sponsoring and 
funding international terrorism.
  Particularly, last week, I guess it was, when we heard the testimony 
of the former FBI Director Louis Freeh, the former Attorney General 
Janet Reno, and the current Attorney General John Ashcroft, the 
American people became introduced more or less the same way that law 
students are to fundamental principles of law enforcement and due 
process. Even more than that, the American people were introduced to 
something that was referred to as ``the wall.''
  The wall was the subject of a 1995 memo by Jamie Gorelick, then 
Deputy Attorney General, now on the 9/11 Commission. Indeed, as she has 
pointed out, the wall between our antiterrorism and intelligence-
gathering efforts and our law enforcement efforts has been 
longstanding. But it is not a matter that is constitutionally required; 
it is something the American Government had done to itself. It is a 
limitation that Congress had placed on information sharing between law 
enforcement officials. Some only investigate crimes after they have 
occurred, trying to root out the guilty and then to convict the guilty 
of the crimes they have committed. The wall is between those law 
enforcement officials and those intelligence agencies, counterterrorism 
officials whose job it is to prevent a terrorist attack from even 
occurring and to preempt that terrible event from occurring. So it was 
through the PATRIOT Act that we saw this wall come down that has been 
so important to information sharing.
  Indeed, this is not a partisan issue. Attorney General Janet Reno 
said just a few short days ago, on April 13, with respect to the 
problems of information sharing within the FBI and other Federal 
officials, that:


[[Page S4148]]


       Many of these issues will be or have been resolved by the 
     passage of the PATRIOT Act or other statements.

  Indeed, to my recollection, that is not the same words but 
essentially the same testimony that was presented by former FBI 
Director Louis Freeh. Former FBI Director Louis Freeh, who served 
during the previous administration, in talking about this wall that had 
been brought down as a result of the PATRIOT Act said:

       . . . the wall is not an appropriate one with respect to 
     counterterrorism, and that's been repaired both by the 
     PATRIOT Act and the court of review.

  I believe the court of review he is referring to is the Foreign 
Intelligence Surveillance Act, which creates a court of seven Federal 
judges who review requests for various intelligence mechanisms that try 
to make sure or, in fact, do make sure as much as is humanly possible 
that the rights of people who are accused of crimes are not unfairly 
jeopardized in this process.
  The point is that the wall that had been erected separating our law 
enforcement personnel and preventing them from sharing information with 
our counterterrorism officials has now been torn down and we now allow 
information sharing which, indeed, has made America safer.
  The PATRIOT Act specifically makes it easier to track terrorists in 
the digital age. When journalist Daniel Pearl of the Wall Street 
Journal was kidnapped in Pakistan, the terrorists made the mistake, as 
it turned out, of sending the ransom demands by e-mail. The PATRIOT 
Act, having brought our laws into the information age, allowed 
investigators to quickly obtain essential information from the Internet 
service provider that the terrorists were using. This in turn led them 
to cybercafes in Pakistan and then to some of Daniel Pearl's killers, 
who are now in prison thanks to the expanded tools provided by the 
PATRIOT Act.
  Some have worried aloud that we are jeopardizing our civil liberties 
by creating a law which allows expanded authority to law enforcement 
and counterterrorism authorities. But what many people don't 
understand, or don't know--there is no reason they should know other 
than the fact that they have now learned more about it--is the PATRIOT 
Act actually applies tools that have already been in use in other 
contexts. For example, before September 11, investigators had better 
tools to fight organized crime than they did to fight terrorism. For 
example, for years law enforcement officials used roving wiretaps to 
investigate organized crime. I think it was Senator Joe Biden who said 
if roving wiretaps are good enough for the mob, then they are good 
enough for terrorists. He, of course, advocated, as many on this floor 
did, for that. Here is a copy of his remarks. I paraphrased it. Let's 
go to the exact quote. He said:

       . . . the FBI could get a wiretap to investigate the Mafia, 
     but they could not get one to investigate terrorists. To put 
     it bluntly, that was crazy. What's good for the Mob should be 
     good for terrorists.

  Those are statements with which I agreed, made by Senator Joe Biden 
on October 25, 2001, which I submit were true then and remain true 
today.
  I already mentioned that aspect of the PATRIOT Act which has made it 
easier for us to cut off the financial support that has been used to 
support terrorist acts. Osama bin Laden, when he first left Saudi 
Arabia and went to Afghanistan as part of the anti-Communist Jihad, 
after the Soviets invaded Afghanistan, he and other Jihadists declared 
holy war against the Soviets at the time. The way he got started in his 
terrorist activities was financially supporting the acts of other 
Jihadists, other Muslim extremists. At that time, he directed their 
fire at the Soviet Union until, of course, the Soviet Union left 
Afghanistan. Then they turned their fire on America and other freedom-
loving countries.
  My point is, getting at the financial support for terror was very 
important. Indeed, the PATRIOT Act has made it much easier to get to 
that and was responsible for capturing some $200 million in terrorist 
financing, which has been very important.
  One of the things that has concerned me, and no doubt others, about 
the PATRIOT Act has been the way people have used the PATRIOT Act as 
almost a dirty word. It has been used to scare people. It has been used 
to mislead people about what the act does. It is important to 
understand what the act does and what it does not do.
  It has also been used to raise money. This is part of the scare 
campaign the American people deserve to know about and we as Members of 
this body need to remind ourselves of and make ourselves aware of. I 
happened to get a solicitation from the American Civil Liberties Union 
at my home. This is an excerpt. It caught my eye because I thought, now 
I understand why there are so many people who are misled and frightened 
by the PATRIOT Act because there are organizations such as the ACLU 
that are misleading people about what it does. They are using that fear 
to raise money. We know one of the strongest motivations there is for 
human beings is to scare them. Indeed, that is exactly what is 
happening by misleading the American people about what the PATRIOT Act 
does, by organizations such as the ACLU.
  This solicitation letter I received at my residence said in part:

       We need your immediate help to stop radical anti-liberty 
     proposals from becoming radical anti-liberty laws of the land 
     with Congress' and the White House' seal of approval.

  Indeed, that sort of statement is not alone. We have another chart 
that talks specifically about the PATRIOT Act, and another excerpt from 
the same solicitation by the ACLU:

       The USA PATRIOT Act expands terrorism laws to include 
     ``domestic terrorism'' which could subject political 
     organizations to surveillance, wiretapping, harassment, and 
     criminal action for political advocacy.

  If that were true, I would be standing and saying we need to look at 
this twice. We need to do something about it. We need to look further 
to see whether perhaps we have done something wrong or it needs 
correction or review.
  I was at a hearing of a subcommittee of the Senate Judiciary 
Committee, and Senator Feinstein put her finger on this and pointed out 
the kind of hysterical scare tactics the ACLU and others have used in 
mischaracterizing what the PATRIOT Act does are flatly unfounded. I was 
there at this hearing, but I had the statement made into a chart so the 
quote is clear. Senator Feinstein, to her credit, is always a Senator 
who does her homework. She does her homework in every case, sometimes 
to my aggravation when she is on the other side of an issue, but 
sometimes I am glad she does. This is a case where I am glad she did 
her homework as she always does.

       I have never had a single abuse of the PATRIOT Act reported 
     to me.

  She was not just sitting passively back waiting for people to write 
or call as they do to our offices to complain or to register some 
concern about legislation or some Federal activity.
  She went on to say:

       My staff e-mailed the ACLU and asked them for instances of 
     actual abuses. They e-mailed back and said they had none.

  It is very disturbing that the same organization that mails 
solicitations to houses of not just Members of Congress but to people 
all across America, trying to frighten them, mislead them, and scare 
them into believing Congress has acted without concern for civil 
liberties or perhaps some law we passed has been abused by Attorney 
General John Ashcroft and others, when, in fact, it is just not true. 
Everyone should be concerned about that. It ought to be exposed for 
what it is.

  Notwithstanding the comments of people like Senator Biden, who 
supports the PATRIOT Act, Senator Feinstein, who has done this 
investigation to find out whether, in fact, there has been abuse--and 
there has been none reported, even when asked for examples to support 
their scare tactics--there are some now who say it is time to eliminate 
the PATRIOT Act or to replace it, using other similar scare tactics.
  I might point out this is not limited to the Congress. I had my staff 
refresh my recollection because I had remembered--indeed, the Presiding 
Officer may remember, too--there are press reports about city councils 
around the United States that passed resolutions condemning the PATRIOT 
Act based on the disinformation and scare tactics the ACLU and others 
have used to mislead them about whether there was, indeed, a threat to 
the civil liberties of their constituents. In fact, 287 local 
governments across the United States

[[Page S4149]]

of America have passed such resolutions condemning the PATRIOT Act. I 
am sad to say, three of those were in Texas: If my recollection is 
correct, the Dallas City Council, Austin City Council, and one from a 
smaller municipality.
  So we know at least there is some evidence that the kind of scare 
tactics and misinformation people have been spreading, people at the 
ACLU have been spreading, is, unfortunately, working, because not 
enough people like me and others in this body are standing up and 
correcting the record and providing the truth.
  Unfortunately--it is not unfortunate; it is our system. We have 
elections for President every 4 years. We have elections for the House 
every 2 years and every 6 years for the Senate, but it should not be 
too surprising some of this disinformation and misinformation and scare 
tactics have gotten into the Presidential campaign.
  Indeed, I listened with some concern during the race for the 
Democratic nomination for President where various candidates for that 
Democratic nomination for President continued along this line of 
disinformation, misinformation, and scare tactics specifically 
regarding the PATRIOT Act. The current nominee for President of the 
Democratic Party participated in that, what I call ``piling on.'' He 
said in a speech at Iowa State University:

       So it is time to end the era of John Ashcroft.

  Unfortunately, this is an instance, I will interject in the quote, in 
which Attorney General Ashcroft has been reviled, he has been called 
all sorts of names, held up as a boogeyman in part of the scare tactic 
for doing his job, for enforcing the laws Congress has passed and the 
President has signed. If the Attorney General of the United States of 
America will not enforce the laws Congress passes and the President 
signs in order to make America more secure, who will? Thank goodness, 
we have a courageous individual who is willing to stand up against 
unwarranted criticism and this sort of misinformation or disinformation 
campaign and enforce the law Congress passes because he believes, as 
Congress believed when it passed the law, as the President believed 
when he signed the law, the PATRIOT Act makes America more secure.
  Going back to the quote by Senator Kerry at the Iowa State 
University:

       So it is time to end the era of John Ashcroft.

  He goes on to say:

       That starts with replacing the PATRIOT Act with a new law 
     that protects our people and our liberties at the same time.

  He later had an interview on ``Morning Edition'' on National Public 
Radio on August 18, 2003. He said:

       If you are sensitive to and care about civil liberties, you 
     can make provisions to guarantee that there is not this blind 
     spot in the American justice system that there is today under 
     the Patriot Act.

  Unfortunately, this disinformation campaign, which stands in stark 
contrast to the lack of any evidence that Senator Feinstein found in 
her investigation about abuses, continues now into the Presidential 
campaign, now that the Presidential nominee of the Democratic Party has 
been chosen.
  Indeed, this is on Senator Kerry's Web site, John Kerry for President 
Web site. He said:

       John Ashcroft has used new authority under the Patriot Act 
     to perform ``sneak and peek'' searches without ever notifying 
     anyone and without any judicial oversight.

  Well, besides this campaign of disinformation and misinformation and 
scare tactics, I can assure you neither the Attorney General nor any 
other United States attorney or Federal law enforcement official can 
legally perform any kind of search without judicial oversight. That is 
wrong. It is a false statement.
  Even if we pulled this out of all the other contexts I have talked 
about--the disinformation, the misinformation, and the scare tactics--
this is a flat misstatement. I hope Senator Kerry will correct that on 
his Web site because no search under any kind of warrant can be 
conducted without the approval of a judge or an impartial magistrate. 
That is a basic part of our criminal law. But, here again, I am worried 
that unless people stand up and correct the record, this kind of 
disinformation will continue.
  But the worst part of it is this: Notwithstanding the kind of 
statements I covered by Senator Kerry and others, these are some of the 
same people who voted for the PATRIOT Act when it passed. Indeed, on 
October 25, 2001, Senator Kerry said:

       I am pleased at the compromise we have reached on the 
     antiterrorism legislation, as a whole, which includes the 
     sunset provision on the wiretapping and electronic 
     surveillance component.

  Then later, more specifically to the subject at hand, this quote is 
talking generically about the laws that changed included in the PATRIOT 
Act and others. But he was interviewed on Fox News on October 25, 2001. 
John Gibson of Fox News said:

       Senator Kerry, today, Attorney General Ashcroft said that 
     terrorists have reason to be afraid, very afraid of this new 
     terror legislation. Why? What's in it that has so much 
     sharper teeth?

  Senator Kerry said:

       It streamlines the ability of law enforcement to do its 
     job. It modernizes our ability to fight crime.

  Well, I agree with the comments of Senator Kerry in October of 2001 
about the benefits of the PATRIOT Act. And I disagree with the comments 
Senator Kerry--the same person--made when he decided to run for 
President, and now that he is a Presidential nominee, where he is using 
the misinformation, this disinformation, these scare tactics, 
unfortunately, in contrast to the lack of evidence Senator Feinstein 
was able to glean from even the ACLU about any evidence of abuses.
  The fact is, the PATRIOT Act has made America a safer place. And no 
political campaign, no fundraising goal justifies misleading the 
American people about what is good about the PATRIOT Act and how it has 
contributed to bringing down this wall separating law enforcement and 
counterterrorism officials from sharing information. Indeed, as I said, 
the best evidence about why the PATRIOT Act is good law, good public 
policy, is the fact we have not been hit like we were on 9/11. Thank 
God for that. I know, of course, we hope and pray we never will again 
be hit in that way. But we are not going to be safer if we play 
politics with our national security, even in a Presidential year when 
the attraction is so irresistible, it appears, to some.

  The PATRIOT Act has made America safer. Janet Reno, John Ashcroft, 
Louis Freeh, people on both sides of the aisle, people who have put 
their hand on a Bible and sworn to uphold the laws of the United States 
of America, to protect the Constitution--these are people who have 
testified under oath the PATRIOT Act has made America safer.
  So I say, let's not play politics with this important law. Let's not 
play politics and risk American lives by continuing the disinformation 
and misinformation and the scare tactics to the point where we would go 
back and eliminate or revise or neuter this important protection which 
has made our country so much safer.
  So, Mr. President, with that, I would like to turn to some additional 
matters on behalf of the majority leader.
  I see Senator Reid on the floor. At this time, on behalf of the 
majority leader, I would ask----
  Mr. REID addressed the Chair.
  The PRESIDING OFFICER (Mr. Alexander). The assistant Democratic 
leader.
  Mr. REID. If the Senator would yield for a comment?
  Mr. CORNYN. I would be happy to yield.
  Mr. REID. The staffs are not quite ready to do the close yet. They 
should be ready in a matter of a few minutes. So if the Senator would 
allow us a few more minutes?
  Mr. CORNYN. Under the circumstances, Mr. President, I ask----
  Mr. REID. I will make a statement that will take a couple minutes. 
Senator Daschle is going to make a statement. We can go ahead and do 
the close, and he can speak after the close, but we are not quite ready 
on this side to close. It will take another few minutes.
  Mr. President, if the Senator will yield for me to make a very brief 
statement?
  Mr. CORNYN. I will be glad to yield.
  The PRESIDING OFFICER. The assistant Democratic leader.


                              Patriot Act

  Mr. REID. Mr. President, I would agree with my friend, the former 
attorney general of Texas, the PATRIOT

[[Page S4150]]

Act has made America a safer place. I think that is a fair statement. 
But I would also say the PATRIOT Act is something we have to watch very 
closely. We realized when we passed this legislation there may be 
provisions in it that went too far, not far enough. As a result of 
that, we have put a provision in this very important bill, the PATRIOT 
Act, that it would sunset; that if we did not renew that legislation, 
it would fail; therefore, next year we have to renew this act.
  I am confident, based on what is going on around the country, in 
spite of the statement from the American Civil Liberties Union--we can 
look to Las Vegas, my home, on one criminal prosecution, what the 
authorities did there. It is my understanding they used the PATRIOT 
Act. A person bought a car with global positioning in it. The reason 
they bought that, of course, is in case something went wrong you could 
press a button and come and find out where the car is, or, if it was an 
emergency, someone trying to hijack the car, emergency authorities 
would be notified. The person never realized law enforcement 
authorities could focus on that vehicle and listen to everything that 
went on in that car. That is what they did.
  I would have to think without getting a judge's order, without doing 
some things in addition to what I have described, that was probably 
going a little too far. The point being, the PATRIOT Act is something 
we need to take a look at. That is why we have this legislation that 
will sunset.
  I hope the Judiciary Committee and other committees that believe they 
have jurisdiction will begin as soon as possible taking a look at this 
legislation to see if there are provisions that should be revised, 
eliminated, added to. I don't think we need to criticize Senator Kerry 
because he thinks we need to take a look at the PATRIOT Act. I believe 
we do, and that is certainly appropriate. The Senate agreed. That is 
why we included a sunset provision in this most important legislation.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CRAPO. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________