[Congressional Record Volume 150, Number 52 (Wednesday, April 21, 2004)]
[Senate]
[Pages S4184-S4218]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2004--MOTION TO PROCEED
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of the motion to proceed to S. 2290, which the
clerk will report.
The legislative clerk read as follows:
A motion to proceed to the bill (S. 2290) to create a fair
and efficient system to resolve claims of victims for bodily
injury caused by asbestos exposure, and for other purposes.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Madam President, this is one of the most important bills
in many decades because this bill will determine whether or not 8,400-
plus companies go into bankruptcy, with a loss of jobs, pensions, and
opportunities for people all over this country--and all because of an
out-of-whack tort system that has been manipulated by some veracious
lawyers who should know better but who are too addicted to being able
to milk the system for billions and billions of dollars, $20 billion
thus far in legal fees and transaction costs.
[[Page S4185]]
Opponents of this bill continue to assert that the fund is nothing
more than a bailout of corporate America because it is not big enough.
There is one word for that: baloney. This charge, which the personal
injury lawyers keep repeating in television and print ads, completely
baffles me. Let me explain why.
Currently, estimates of what the existing tort system will pay to
plaintiffs in the future range from $61 billion to $92 billion. That is
currently. This is what the independent actuaries say is the amount of
money the victims will actually receive under the current system.
Let me just point to this chart: the asbestos victims' compensation
in billions of dollars. Under the tort system--the current out-of-whack
tort system--you have three colors on the chart: dark blue, kind of
light blue, and yellow. The light blue illustrates the fees we pay to
the defense lawyers in these cases. The dark blue happens to consist of
the fees we pay to the trial lawyers--in other words, the plaintiffs'
lawyer.
Between them, as you can see on that Tillinghast account, shown at
the top, you have $69 billion. How much goes to the victims? It is $61
billion--if it is there, if these companies do not go bankrupt. Take
the Milliman one, shown down below: $61 billion to the personal injury
lawyers, $42 billion to the defense lawyers. That is $103 billion. Only
$92 billion goes to the victims. That is assuming these 8,400 companies
have not gone into bankruptcy. We have already had 70 companies go into
bankruptcy.
But look what happens under the FAIR Act. The attorneys would still
get a whopping $2.5 billion for what really amounts to rolling-off-a-
log type of a lawsuit because it would not take all the efforts they
would have to put in to make cases otherwise in court. They would get
$2.5 billion. But $111.5 billion would go to the victims. It is pretty
hard to say that is not a fair deal or that it is a bailout of
corporate America.
Now, our bill, in comparison to the $61 billion to $92 billion of
those two actuary accounts that will go to the plaintiffs, gets them
$111.5 billion, which is a lot more than either of those estimates
were. This goes to the pockets of the injured persons.
So where does the rest of the expected cost of the tort system go?
Under the current system, it is going to lawyers. It is going to
lawyers' fees and other litigation costs, with personal injury lawyers
alone expected to garner $40 billion of these future expenses. In
addition, 80 percent or more of claims filed in recent years are from
individuals who do not have a medically cognizable injury and are not
impaired in their daily routine. Let me put that in lay terms. They do
not have any injury that can be shown by the current medical analysis
we have in existence today, and it is the best in the history of the
world.
Indeed, one scholar estimated that meritless claims--claims without
any merit at all--based on questionable ``diagnoses'' for mass
screenings have accounted for $28.5 billion in costs already. As a
result, the truly ill get even less than the $61 billion to $92 billion
estimate that is suggested by these two studies.
Measured against the existing system, with all of its inequities and
high transaction costs, the FAIR Act will deliver far more directly to
victims. Up to $124 billion will be available to compensate those who
are sick from asbestos while still providing medical monitoring for
those at risk but not yet impaired--in other words, not yet sick, and
who may never get sick. This is a simplified, no-fault, nonadversarial
system which will not require forking over 40 percent to 60 percent to
any professional.
No matter how you look at it, victims get far more compensation under
this bill--and in a far more timely manner--than in the current system.
This alone indicates that the fund is big enough.
But let's look at it from another angle. Are the aggregate fund
contributions by companies and insurers expected to be less than they
are paying in the current system? According to the Congressional Budget
Office, the answer is no. CBO estimates that defendants will have about
the same expenses in the current system for the next 5 years. This is
on page 20 of the CBO's October 2, 2003, cost estimate for this fund.
On the same page, CBO estimates, for the bill as reported from
committee, that insurers would actually pay more to the fund in this
same period than they would under the current system.
Keep in mind, the current system is gouging billions of dollars for
nonsick claimants. Look, this fund, No. 1, calls for about as much
money as companies are paying now; No. 2, shifts this money to the
truly sick; and No. 3, reduces the transaction costs so more funds are
available to compensate injured parties. In other words, we help those
who deserve to be helped, where under the current system there are a
lot of people sopping up the funds that are there who are not even
sick, who have not suffered from sickness, and may never suffer from
sickness.
This is a bailout? Give me a break. The chief benefit contributors
get out of this deal is one thing, and that is predictability. They
know what their payments will be from year to year, and that is it.
I was told if I was able to get $108 billion a number of Democrats
would gladly sponsor and support this bill. I had indications from the
union movement: But, boy, if you got $108 billion on the table, we will
be there. They did not think we could get it done. But we did.
Now, despite all of these things I have been talking about, we have
heard the argument that the money is not enough since S. 1125 was first
introduced in May of 2003 when industry agreed to a $94 billion fund.
Before introducing S. 1125, I had heard from the other side of the
aisle that $94 billion was not sufficient but that $108 billion might
be enough, as I have just said. I worked hard to get the business
community to commit to this funding, and, in the end, the Judiciary
Committee added a provision that would simply require $14 billion in
additional funds in order to reach this goal. The funds, however, were
not guaranteed in the committee-reported bill, as are those under S.
2290.
During the committee process, this $14 billion was added to the
substantial contributions required from both defendants and insurers.
When S. 1125 was reported out of committee, therefore, it provided for
$104 billion in mandatory funding from defendant companies and
insurers, plus an estimated $4 billion from bankruptcy trusts. The $108
billion was there.
The committee voted by a 14-3 margin that the claim values which
added up to $108 billion--those values--were fair--14 to 3, with a
number of Democrats voting with us. Not a single Democrat voted against
these claim values. The only ones who did were 3 Republicans, and they
thought it was too much.
Now we are hearing that the total just is not high enough. If the
values were good enough for every Democrat before, why not now? I just
do not get it.
By the way, let's go back just a step or two here. As shown on this
chart, we are getting far more money to the sick and needy than the two
expert actuarial firms say will go to the sick and needy--far more
money. Those who make arguments to the contrary are not being fair.
Later in the committee markup, to ensure the risk of insufficient
funding would not fall on claimants, an amendment was offered by
Senators Kohl and Feinstein to provide a huge amount of open-ended,
contingent funding that could be available to pay claims, up to an
additional $31 billion over a nearly 20-year period. The number $31
billion was not in the amendment, nor was the number $45 billion, which
some claim it was. The amendment simply called for maintaining the
contributions at the same level if such funds were needed to maintain
solvency, and this flat line happened to add up to $31 billion, since
we had already added $14 billion to the base funding. This meant when
the contingent funding was added to the $108 billion of mandatory
funding, up to $139 billion could come into the fund and ultimately out
to the people.
Democrats and labor unions falsely continue to cite the $153 billion
number whenever they can. I challenge any of them to show me that
number in S. 1125, the committee-reported bill. Moreover, the $139
billion was not hard money that would be going to claimants. That is a
fact. It was not hard
[[Page S4186]]
money that would be going to claimants. The fund under S. 2290 would
reach this same and substantial level of funding.
Further rendering this $139 billion obsolete is the fact a sunset
provision was added later in the markup. This provided an ultimate
safeguard, in the eyes of those who filed it, for fund solvency. Still
further, we added in S. 2290 a measure which renders the contingent
funding amendment from the markup totally unnecessary--the ability for
the fund to borrow against 7 years of future revenue. With this
provision, the Feinstein-Kohl contingent funding measure is no longer
needed. Thus the whole premise for arguing more money is needed because
the committee bill had more money is literally destroyed. The
Feinstein-Kohl amendment created what amounts to a rhetorical problem
on the total value of claims for some Democrats and some labor unions.
But it is only that, a rhetorical problem.
Claims values adding to $108 billion were good enough for almost all
the Democrats at the markup, and there is no reason the current $114
billion now should be inadequate.
Finally, I will give another indication of why those who now argue
$114 billion is not enough are being unfair, if not somewhat
disingenuous. Back on April 24, 2003, the AFL-CIO asked an investment
banking firm to run a financial model with certain claims values. How
much did this model, which they shared with Republicans during
negotiations, add up to? Believe it or not, under the base case, it
added to $121 billion. You heard that correctly, $121 billion. We offer
a fund with a base of $114 billion in guaranteed money with a $10
billion contingency, 7 times the borrowing authority, and a sunset back
to the tort system, and there is no deal yet?
I said earlier, I don't get it. But I suspect the reason we are
seeing retrenchment and revisionism is that--and there is simply no
delicate way to say this so I will be blunt--when personal injury
lawyers put the screws on Democrats and labor unions, they are trying
to stop this good bill at all costs. It is pretty apparent if you look
at the flagrantly misleading ads they put on television, all paid for
by the victims, by the way, through these exorbitant fees and
transaction costs.
I will tell you one thing, they don't want to kill the golden goose
that asbestos litigation is for them. They are only too happy to
collect the golden eggs, even though the people who are truly sick,
truly injured, will not get the money in many cases. In the end
imposing financial obligations on the business community that are much
more than they would have to pay under the broken litigation system to
compensate victims would only risk bankrupting even more businesses and
losing more jobs and pensions. Already, as I have mentioned, more than
70 companies have gone bankrupt due to asbestos litigation, and as many
as 60,000 American jobs have been lost. It is estimated if this keeps
going and we don't do what we should do here on this floor, there could
be as many as a half million jobs lost. I believe that is a low,
conservative figure.
If most of these companies go into bankruptcy, I can't begin to tell
you what a detriment it will be to our country, let alone the sick and
needy who really deserve the moneys.
Rather than rely on their own numbers or provide a reasonable
alternative, opponents of the bill falsely contend S. 1125 had provided
$153 billion and, therefore, S. 2290 does not provide enough funding.
Of course, litigating these cases in Federal court may be a big risk to
some personal injury lawyers who have successfully manipulated some
outlier State courts to create a system of jackpot justice.
In reality, the Feinstein-Kohl amendment in committee, which
introduced the open-ended contingency funding, was designed to ensure
the fund established under the act did not become another Manville
trust, placing the risk of insufficient funding on future victims and
leaving them with only pennies on the dollar. That is a risk which
victims will not face under S. 2290.
If, despite paying significantly more money than the current tort
system, the fund is unable at any point to pay full value; that is, 100
percent on eligible claims, then the fund will sunset and the tort
system will reopen in Federal courts to compensate for future victims.
There will be no risk to the victims.
We can't forget this bill is about the victims, not overinflated
estimates of a broken tort system that diverts much-needed resources to
unimpaired claimants and reduces awards significantly to pay attorney's
fees and other transaction costs that do not directly benefit
claimants. By any objective standard, this fund is more than adequately
funded.
Although we are being met with obstacles in getting to the substance
of the legislation, I am heartened by something. There has been
significant bipartisan support for passage of a legislative solution to
the asbestos litigation crisis throughout the session. In fact, calls
for Senate action have been occurring for several years.
For example, when the esteemed ranking member was chairman of the
Judiciary Committee, my good friend Senator Leahy stated:
. . . Congress can provide a secure, fair and efficient means
of compensating victims. I believe it is in the national
interest to encourage fair and expeditious settlement between
companies and asbestos victims.
Those were Senator Leahy's remarks in the September 25, 2002, U.S.
Senate Judiciary Committee hearing on asbestos litigation.
Senator Leahy echoed his sentiments last year during a hearing I
chaired, when he said:
These bankruptcies create a lose-lose situation. Asbestos
victims deserving fair compensation do not receive it and
bankrupt companies cannot create new jobs nor invest in our
economy . . . If we work in good faith toward a bipartisan
asbestos solution, we can meet the challenge created by
[asbestos] litigation. I agree with the Supreme Court's
conclusion that the number of claims defies ``customary
judicial administration and calls for national legislation.''
That was Senator Leahy's statement on March 5, 2003 in the committee
hearing which was entitled, ``It is time for Congress to act.''
Other Members have made clear they share his opinions. For example,
last May, nearly a year ago, Senator Dodd made the following
observation:
[W]e are working very hard to come up with a compromise
proposal on the asbestos issue. And we've taken major steps
in that direction, working with organized labor, with the
insurance industry, with the insured, and many others who
have a stakeholding in the outcome of this particular avenue.
It's a critically important effort.
That statement was made on May 3, 2003. The distinguished Senator
from Connecticut, Senator Dodd, reinforced those statements later when
he noted on March 4, 2004, when referring to the asbestos problem:
This is a matter that does cry out for a solution.
As work progressed on bipartisan legislation establishing a privately
funded national trust fund, support for the concept grew. In a July
2003 letter to Senators Frist and Daschle, Senators Dorgan, Breaux,
Nelson, Baucus, Kohl, Miller, Lincoln, Levin, Stabenow, and Carper
stated:
The asbestos litigation crisis is real and urgently
requires a legislative solution. . . . An administrative
trust fund is the right approach and represents a good
foundation for a solid legislative solution. . . . A
legislative solution to the asbestos crisis is a crucial
goal. . . . We believe that the groundwork has been laid by
the Committee leadership to provide a real solution to this
ongoing problem.
That was a July 11, 2003, letter to Senators Frist and Daschle.
In fact, when the legislation was originally introduced, Senator
Nelson stated:
This will protect victims, save jobs, and force companies
to pay their fair share. This is a good start to solving a
big problem.
That was a press release on May 23, 2003. I have appreciated Senator
Nelson's support over the last year. I don't know whether they can pull
him back on this cloture vote on Thursday. But if they do, it would
show this is becoming a political exercise to the detriment of these
workers, to the detriment of these unions, to the detriment of the
insurance companies, and to the detriment of these companies.
As last year progressed and fears grew that the legislative effort
might fall victim to election year politics, calls for action
intensified. For example, Senator Dorgan wrote the following in another
letter to Senators Frist and Daschle:
We must complete asbestos reform before this session. I
think it would be a serious
[[Page S4187]]
mistake--for victims, for the economy, and for the Senate--if
we adjourned without enacting asbestos legislation.
Certainly, a compromise must meet the needs of all the
stakeholders. . . . We must seize this opportunity to solve a
major public policy challenge for our Nation.
That was written on October 29, 2003, in a letter to Senators Frist
and Daschle. Yet, as you know, we were unable to get this up and get it
passed last year. I agree with the Senator; it needed to be passed last
year. To allow us to go past this year would be almost criminal.
His opinions were echoed by Senator Baucus, who wrote:
After all the hard work that has been put into this bill
over the past several years, particularly this year, it would
be a shame to let it go to waste. It would also have serious
implications for the economy and for victims if we let this
historic opportunity pass us by. . . . From what I
understand, we are very close. . . . I urge you both to do
everything in your power to bring both sides together for a
swift resolution of this longstanding debate.
That was before we have gone way beyond last year's bill, and we have
given well over 50 amendments to Democrats to achieve this bill.
That was a November 5, 2003 letter.
On the same day, Senator Levin also sent a letter to Senators Frist
and Daschle expressing his own concerns about the importance of the
Senate taking action:
I would like to again stress the importance of addressing
the issue of asbestos reform before we adjourn this session
of Congress. . . . [T]he Senate is in jeopardy of missing a
historic opportunity to pass asbestos legislation with strong
bipartisan support. It is obvious to anyone . . . that the
system is broken and needs to be repaired.
That letter was dated November 5, 2003.
These were all written during the last year's session of Congress.
A week later, Senator Stabenow gave the following advice to Senators
Frist and Daschle in a letter:
I believe that we have an historic opportunity right now to
pass asbestos reform legislation with strong bipartisan
support. . . . The current system has a devastating impact on
victims and their families, who have to continue to wait
while the judicial system wades through their claims, and on
companies, many who have had to file for bankruptcy because
of asbestos lawsuits. I urge you both to continue to work on
a bipartisan solution to this national problem.
That was in a November 13, 2003, letter.
Senator Leahy made the following statement on the floor a few days
later:
. . . [W]e have come to a complete accord on the idea that
the fairest, most efficient way to provide compensation for
asbestos victims is through the creation of a national fund
that will apply agreed-upon medical criteria in evaluating
patients' injuries . . . an effective and efficient means to
end the asbestos litigation crisis within reach, and we must
grasp it.
That was a floor statement made on November 22 of last year.
Unfortunately, time ran out before consensus could be reached.
At the urging of members on both sides of the aisle, Senator Frist
announced in December his intention to accommodate Democratic requests
for more time, and he announced he would delay floor consideration
until this spring. This year, as negotiations continued in various
settings, a call for action has continued. For example, on March 4,
Senator Dodd noted the crisis in asbestos litigation is ``a matter that
does cry out for a solution.'' That was on March 4 in the Congressional
Record.
A few days later, Senator Reid acknowledged ``we have to do something
about asbestos litigation.'' That was in the March 9 Congressional
Record.
It would be impossible to argue there is an absence of bipartisan
interest in fixing the asbestos litigation crisis. Nothing has changed
since the Democratic leadership council made the following observation
in 2002:
This is one issue where the fight is not simply a part of
the age-old struggle between companies seeking to avoid
financial responsibilities for misdeeds and trial attorneys
seeking to punish them while rewarding their clients and
themselves. We agree with Supreme Court Justice Ruth Bader
Ginsburg, who argued in an earlier case that the goal should
be to provide secure, fair, and efficient means of
compensating victims of asbestos exposure. We concur with the
view of the AFL-CIO that the current system is unfair and
unpredictable. Senate Judiciary Committee Chairman Pat
Leahy's decision to hold a fair and balanced hearing on the
asbestos litigation crisis should signal the beginning of a
bipartisan effort to create certainty in the system and get
help to victims without spurring new waves of bankruptcies.
That was in the New Democratic Daily on September 18, 2002, a year
and a half ago.
These are some of the Democratic calls for reforms on this chart. I
have on this particular chart quotes by Senators Dorgan, Breaux,
Nelson, Baucus, Kohl, Miller, Lincoln, Levin, Stabenow, and Carper. In
a letter, they said:
The asbestos litigation crisis is real and urgently
requires a legislative solution.
On March 4, Senator Dodd said:
This is a matter that does cry out for a solution.
Senator Dorgan wrote on October 29 a letter to the leaders:
We must complete asbestos reform before this session.
Senator Stabenow wrote on November 13:
I believe that we have an historic opportunity right now to
pass asbestos reform legislation with strong bipartisan
support.
Senator Leahy, on November 22, 2003, said:
An effective and efficient means to end the asbestos
litigation crisis is within reach, and we must grasp it.
Some of the statements I have quoted from my Democratic colleagues
are listed on that chart. When viewing just a segment of these quotes,
I think it is clear the need for reform is universally understood. The
issues that must be addressed are clear. The time has come to act. We
have worked our guts out to try to accommodate our friends on the other
side. All we hear is: more money, more money, more money. It is as
though these 8,400 companies have an unlimited supply of money to be
given. In many cases, those companies are dramatically mistreated by
this whole system. In many cases, they should never have had to pay a
dime. I will cite one of the larger insurance companies in this
country. They never, ever insured for asbestos or asbestosis, or any
problem or malady that comes from asbestos; they never had anything to
do with asbestos, other than they had their medical team do a medical
analysis and concluded mesothelioma probably comes from exposure to
asbestos. That was a service to society, not anything that should cause
liability. Because of that, this company has been joined in over 60,000
cases, every one of which they can win and should win. The last one
they tried, they did win, but it cost them $2 million for attorneys'
fees alone.
That is money that could have gone to the victims, and just to get
some finality to this situation, just to solve this problem, that
company is willing to pay out what amounts to millions of dollars that
they do not owe just to get this over with. There is a raft of
companies that are in the lawsuits that fit that category.
Where is the justice on the other side? I admit, you want to fight
for your constituencies--the personal injury lawyers and the unions--
but you also have constituencies, my friends on the other side, in
these businesses that are going to go bankrupt and insurance companies
that also are going to go bankrupt and the economy that is going to be
tremendously hurt by this situation if we do not resolve this problem.
We have a whopping amount of money to resolve these problems.
The issues that must be addressed are clear. The time has come to
act. The asbestos litigation crisis is a national nightmare, and the
failure of Congress to fix it would be a legislative disgrace.
I would like to show some charts with other calls for reform from
labor unions and the media. Let me go into some of those.
Organized labor calls for reform. This is a statement of Jonathan
Hiatt, general counsel with the AFL-CIO. This was made before the
Judiciary Committee on January 25, 2002:
Uncertainty for workers and their families is growing as
they lose health insurance and see their companies file for
bankruptcy protection.
Mr. Hiatt is a very bright and noble attorney in many respects, and I
have a lot of respect for him. What has the AFL-CIO done? We reached
$108 billion which I had indications they would accept, but now we are
as high as $124 billion. Where are they?
Take AFL-CIO Principles on Asbestos Compensation which was stated on
August 7, 2002:
[[Page S4188]]
[U]nder current law and legal processes, many asbestos
victims are not being treated fairly.
In other words, the system is broken. Here we have a chance of
changing the system. This is the art of the doable. And where are the
trade unions? They are the ones that are losing the jobs. They are the
ones that are primarily losing health care benefits. They are the ones
that are losing their pensions from these companies that are going
bankrupt. Where are they? Why aren't they demanding that our friends on
the other side do something about this, other than scream for more
money all the time. Stones can only give so much blood, and, of course,
there is a certain irony in that statement.
Let's take the United Steelworkers of America, local 12773:
We really believe this needs to be resolved now.
Or take the Paper, Allied-Industrial Chemical, Energy Workers
International Union, local 2-0891:
. . . we might not have another chance for some time.
They might not have jobs in the future because of this dragging of
the feet we are getting from the other side on this matter.
Or take the United Steelworkers of America, local 7110:
It is too important to let pass by.
These sum it up. Let's take media calls for reform just so people
understand.
The Pittsburgh Post-Gazette, September 25, 2003:
There is an elephant to be moved, and this is the best
chance in years. The time for Congress to act is now.
The Detroit News, April 4, 2004:
The bill makes economic sense for companies and would
ensure significant payments to employees who develop serious
illness. It's a humane solution and ought to be adopted.
That is the Detroit News, a heavily industrialized city. They
understand this. Why the slowdown?
Take the Chicago Times, on June 16, 2004:
It is ludicrous to keep litigating for the benefit of the
litigators, when what is needed is a claims system for the
benefit of the victims.
That is what this bill does. It is a claims system for the benefit of
the victims.
There is a whopping amount of money that will go to the victims, not
to attorneys, although the attorneys still will get $2.5 billion of it,
which is a lot of money.
Take the Washington Times on September 24, 2003:
. . . current legislation to control asbestos-related
lawsuits is one of the best ways Congress can protect jobs.
The current legislation.
Or take the Capital Times & Wisconsin State Journal on May 13, 2003:
An asbestos trust fund is a good idea. It should become
law.
Fund Could End Asbestos Legal Battles.
That is what this bill can do. Why don't we have more help from the
other side?
None of these papers, with the possible exception of Washington
Times, one would call moderate to conservative. Most are more liberal
papers.
The Chicago Times, June 16, 2003:
The proposal . . . would get compensation to genuine
victims and get hundreds of thousands of cases out of the
regular court system.
That is one of the points I have not emphasized up to now. As a
former trial lawyer, I have to tell you, our courts are clogged with
all kinds of frivolous suits, all kinds of frivolous cases. I am not
talking about these cases necessarily, but all kinds of them. Then you
add these hundreds of thousands of cases, and one can see why justice
is not being obtained, especially for those who are sick and needy.
I notice that my colleague from Washington is in the Chamber. I thank
her and her staff for their good-faith efforts in working with us to
reach consensus on an appropriate asbestos ban. I am pleased that we,
including Senators Feinstein and Kohl, were able to reach bipartisan
consensus on this very important issue. It is important.
Madam President, I ask unanimous consent that immediately following
the remarks of the distinguished Senator from Washington, the
distinguished Senator from Ohio, Mr. Voinovich, be recognized to give
his remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I yield the floor.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. Madam President, I ask unanimous consent that during
today's session of the Senate Senator Harkin be recognized for up to 15
minutes as in morning business; Senator Byrd for up to 40 minutes as in
morning business; and Senator Inhofe for up to 30 minutes as in morning
business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. MURRAY. Madam President, I rise today to share my serious
concerns with the asbestos liability bill now before the Senate. As my
colleagues know, this is not just another bill for me. This is
something I spent years learning about, educating my colleagues about,
and writing legislation to address.
In fact, my work on asbestos started 3 years ago this very month when
I asked the Senate HELP Committee to hold a hearing on asbestos
exposure in the workplace.
I started this as a very lonely battle with my good friend, Senator
Paul Wellstone. We held press conferences, and it seemed like no one
came. Senator Baucus and Senator Cantwell were with us, but it was a
very lonely fight.
That is why today it is so great to watch my colleagues, such as
Senator Daschle, Senator Reid, Senator Dayton, and Senator Leahy moving
this discussion to such a productive level. They have taken the time to
listen to the victims, and I think if everyone did, we would have a
much more balanced bill in front of us today.
I am pleased that after working all these years with the victims,
family members, and doctors, the full Senate is now engaged in a debate
about asbestos. I am also pleased that many of the issues I have been
fighting for have been included in this legislation. This bill does
include a modified ban on asbestos, similar to the original ban that I
first introduced 2 years ago. That is an important acknowledgment of
what I told the Judiciary Committee did last June:
If Congress is going to prevent any future lawsuits, then
Congress must try to prevent any more asbestos casualties, by
banning the use of asbestos.
So I am pleased by some of the progress in this bill, but I am also
deeply disturbed by what this bill will do to people whose lives have
been torn apart by asbestos, to future victims, to family members, and
to average Americans who are being exposed to deadly asbestos every day
without even knowing it. After listening to the victims, hearing their
stories, looking them in the eye, there is no way I could vote for this
inadequate and unbalanced bill today.
As I have learned about asbestos over the past 3 years, I have been
troubled by the duplicity of some of the companies, by the negligence
of our own Government, and by the absolute horror that asbestos
inflicts on people. Throughout this process, I have also been touched
by the commitment and the optimism of victims. Some of them realize it
is too late for them, but they want to make sure no other American goes
through the horror they have experienced.
After working with them, I know I am not just standing on the Senate
floor as a single Senator. I am standing here on behalf of all of the
people I have been honored to meet and stand with over the past 3
years.
I am standing here on behalf of people like Brian Harvey, Gayla
Benefield, Bret Williams, Ralph Busch, Marv Sather, and George
Biekkola.
They were all exposed to asbestos through no fault of their own.
I am standing here on behalf of the family members of asbestos
victims, people like Sue Vento, the wife of the late Congressman Bruce
Vento of Minnesota; Sue Harvey, and LTC James Zumwalt, the son of Navy
hero Elmo Zumwalt.
I am standing here on behalf of doctors who have labored to save
their patients against a merciless killer, doctors like Michael Harbut,
Alan Whitehouse, and Harvey Pass who not only provided medical care but
worked to raise awareness and call for needed research.
I am standing here on behalf of public health leaders like Dr.
Richard Lemen, a former Assistant Surgeon General of the United States;
Dr. Phil Landrigan, and people like Andrew
[[Page S4189]]
Schneider and Barry Castleman who have worked to warn the public about
these dangers.
I am standing here on behalf of researchers and advocates, people
like Chris Hahn of the Mesothelioma Applied Research Foundation and
advocates at the Environmental Working Group.
All of these people have stood with me at press conferences and have
testified before Senate hearings, calling for us to help the victims
and to ban asbestos. We have a real obligation to them.
I am standing on the Senate floor today to make sure the Senate does
right by people who have been wronged.
Let me share one of their voices with my colleagues. In July 2001,
the HELP Committee held that hearing that I requested on workplace
safety and asbestos exposure. One of the witnesses was Mr. George
Biekkola of Michigan, a World War II veteran and a community leader who
helped bring a hockey rink to the children of his community.
Those of us who were at that hearing 3 years ago will never forget
what he said. He broke down several times as he read his statement, but
his message was clear. He told us he had spent 30 years working at the
Cleveland Cliff Iron Company in Michigan. He operated a hard rock drill
and was exposed to asbestos dust. He was forced to retire at the age of
60 because asbestos had scarred his lungs and reduced his lung capacity
by one-third. At that hearing, he told us:
I thought I'd be spending my retirement traveling out West
with my wife, hunting deer up in the mountains. But today I
can't.
He said he could not exert himself because his heart was weak and
that he had to be careful because a simple case of pneumonia could kill
him. He told us:
This isn't how I thought I'd be spending my retirement, but
when I think about the other guys I worked with--I guess I
came out lucky.
He said:
I'm here today to tell you my story so that maybe someone
else working in a mine or a brake shop or a factory won't
lose the things I have lost.
He concluded his statement with these words:
Senators, please make sure that what happened to me won't
happen to anyone else. . . . Workers like me are counting on
you to protect us. Please don't let us down.
I am sad to report that George Biekkola died 2 weeks ago today from
asbestosis and mesothelioma. Until the end, he was looking out for
other victims. In fact, at his funeral last Saturday his family
displayed a photograph of him testifying at that Senate hearing.
George is not with us today, but his words ring as loudly now as they
did 3 years ago: Senators, do not let us down.
That is why I have been working on asbestos for the last 3 years and
that is why I cannot support this inadequate bill. After all the things
that Americans like George Biekkola have been through, after all they
have lost, after all their families have lost, after all they have done
to protect others, I will not let them down, and that is why I cannot
support this bill.
Before I turn to the specifics, I want to put this discussion in
context. For decades we have been pumping this poison into Americans,
on purpose and by accident. It has wrecked lives, families, and
fortunes, and it has been a problem for many businesses. Asbestos is
everywhere, and it is killing us. We have to stop putting this killer
in products. We have to stop importing products that contain asbestos.
We have to figure out a way to make whole everyone who has been
affected by this epidemic, and we need to do it in a balanced way that
gives certainty and equity to both victims and to companies.
This process has been an education for me because like many Americans
I thought asbestos had been banned a very long time ago. In 1989, the
EPA did try to ban asbestos, but that effort was overturned in a
lawsuit from the asbestos industry. Ten years later, in 1999, reporter
Andrew Schneider and the Seattle Post-Intelligencer published articles
about a disturbing trend in a small mining town of Libby, MT. Residents
there are suffering from extraordinarily high rates of asbestos-related
disease. At many plants where vermiculite from Libby was processed and
then shipped, waste rock left over from the expansion process was given
away for free. I learned that people used this free waste rock in their
yards, in their driveways, and in their gardens.
This picture that I have with me today is Justin and Tim Jorgensen.
They are climbing on waste rock that was given out by Western Minerals,
Inc., in St. Paul, MN, some time in the 1970s. According to W.R. Grace
records, this rock they are playing on contained between 2 and 10
percent temuline asbestos. This rock produced airborne asbestos
concentrations 135 times higher than OSHA's current standards for
workers.
We need to do right by Justin and Tim, and those are the people I
think about when I look at this bill.
I learned, in fact, that our country is far behind others. The United
States remains the only industrialized country besides Canada that has
not yet banned asbestos. More than 30 million pounds of asbestos are
still today right now consumed in the United States each year. I
learned that asbestos is still found today in over 3,000 common
products in the United States, including baby powder, cosmetics, brake
pads, pipes, hairdryers, ceiling tiles and vinyl flooring.
It is still legal in 2004 to construct buildings with asbestos cement
shingles and to treat them with asbestos roof coatings. It is still
legal today to construct new water systems using asbestos cement pipes
imported from other countries. It is still legal today for cars and
trucks to be made and serviced with asbestos brake pads and linings.
Workers in this country are still being exposed to dangerous levels of
asbestos. According to OSHA, an estimated 1.3 million employees in
construction and general industry face significant asbestos exposure on
the job today. Asbestos, in fact, has taken a particularly large toll
on the people of my State.
According to a recent report by the Environmental Working Group, King
County has the fourth highest number of deaths related to asbestos in
the country. Three other counties, Kitsap, Pierce, and Snohomish, all
rank in the top 100 for asbestos-related deaths. Overall, Washington
State ranks eighth in asbestos-related deaths nationwide. Just last
week in Spokane, WA, our State department of health announced that 100
former workers at a vermiculite factory likely inhaled deadly asbestos
fibers and should seek advice from their doctors. They also warned that
children and spouses who lived with those workers could become ill from
particles that were carried home with the loved ones on their clothing,
on their hair, and their skin.
Given the known dangers of this mineral, we should all be asking why
are we still using it? Why are we still adding it to products on
purpose where there are perfectly acceptable substitutes? Americans in
every walk of life and in every corner of this country have been
exposed, and we have to protect them. That is why I have worked to do a
series of things over the past few years.
On June 18 of 2002 I introduced the Ban Asbestos in America Act. I
reintroduced that bill again last May as S. 1115.
I do thank all the Senators who have cosponsored my bill: Senators
Baucus, Boxer, Cantwell, Daschle, Dayton, Durbin, Feingold, Feinstein,
Hollings, Jeffords, Lautenberg, Leahy, and Reid.
I have pushed the EPA to warn homeowners about the dangers of
Zonolite insulation, which today is in the attics of as many as 35
million homes, schools, and businesses.
I have urged the EPA to warn brake mechanics about the deadly
asbestos dust they are exposed to on the job today.
I have asked OSHA to increase its efforts to enforce existing
regulations that attempt to protect automobile brake mechanics.
I have shared my concern with legislators in Canada, the country that
is the largest source of America's asbestos imports.
I testified at a hearing on Libby, MT, and I testified before the
Judiciary Committee last July.
Asbestos liability is a real problem. It is a problem for victims,
and it is a problem for companies. We need a balanced solution.
Unfortunately, the bill that is before us today falls short in six
ways. First
[[Page S4190]]
of all, it is unfair to victims because the awards are too small, even
smaller than many would get if they were allowed a day in court.
Second, it could lock future victims out of getting help because the
trust fund is inadequate.
Third, it keeps Americans in the dark about the dangers of asbestos.
It does not include the education campaign that we know is needed and
that I have been pushing for over the past 3 years.
Fourth, it falls short on research, tracking, and treatment for
asbestos diseases.
Fifth, it makes family members jump through too many restrictive
hurdles.
And sixth, it allows insurance companies to place liens on the awards
family members receive, unfairly reducing the award they deserve, and
treating them much differently than other Federal compensation
programs.
Let me take a few minutes to discuss each of those in detail. First
of all, as I said, the awards are too small. Many people who had their
lives torn apart by asbestos will actually do worse under this bill
than they would in court. For example, awards for lung cancer victims
who have more than 15 years of exposure to asbestos are limited to
$25,000 to $75,000, even though most of those victims will die within a
year.
Victims with asbestosis who have lost 20 percent to 40 percent of
their breathing capacity, many of whom will be disabled for life, will
receive only $85,000. That is far less than their lost wages and
medical costs. This bill gives them less than they deserve. At the same
time, it blocks the courthouse door to victims who have staggering
medical bills, lost wages, and other damages. I do not see how Congress
can leave asbestos victims worse off than they are today, but that is
what this bill will do.
Second, the trust fund is too small to compensate all the victims,
but that is just one of the problems with this trust fund. I believe a
successful trust fund will provide fair and adequate compensation to
all victims and would bring reasonable financial certainty to defendant
companies and insurers. To do that, the trust fund must include four
things: Fair award values, appropriate medical criteria, adequate
funding, and fast processing.
The system for processing claims must allow victims to get prompt
payments, without the complications, time, and expense of a traditional
lawsuit. Unfortunately, the trust fund in this bill falls far short of
what is needed. I have already discussed how the award values are
unfair.
In addition, the trust fund is not adequately funded. In fact, the
trust fund in this bill has been slashed dramatically from the original
Hatch legislation. In the Judiciary Committee's bill the trust fund was
$153 billion. But in this bill we are being asked to vote on the trust
fund has been slashed by over $40 billion.
Now, the trust fund didn't shrink on its own. It was reduced after
closed-door negotiations that included only one side, the defendant
companies and the insurance industry. It was not based on the actual
needs of victims. Instead, it was based on what the insurers and
businesses were willing to pay. This one-sided agreement reduced the
funding provided in S. 1125 by more than $40 billion.
Making matters worse, an additional $10 billion in contingent funds
does not become available for 24 years. The Senate should not adopt a
policy of adjusting award values just to meet an arbitrary and
artificial limit reached in a back room with only one side present.
Not only was this figure arrived at in an unfair way, but it is clear
it is not enough to meet the needs of current and future asbestos
victims.
The Congressional Budget Office has estimated the cost of this bill
at $134 billion. This bill provides only $109 billion. So there is a
significant shortfall already. But there is very good reason to believe
this shortfall will be even larger. Recent claims in the Manville trust
show much higher than expected claims for many asbestos diseases. Those
claims also show that recent mortality and morbidity data increase the
likelihood that the number of asbestos-related diseases and related
claims will exceed current estimates.
If this fund becomes insolvent it will leave victims without the help
they deserve and without the help they need. Because of that
possibility, last year Senators inserted a number of protections during
the Judiciary Committee markup. Tragically, very tragically, the bill
before us today throws away all of those carefully crafted bipartisan
protections.
For example, we had protections for victims in case the trust fund
became insolvent. Those protections in the Biden amendment were
stripped from this bill.
We had protections that guaranteed that asbestos victims would
preserve their legal rights until the trust fund is operational. That
is important because if this bill becomes law, it will end up in court
and there will be no mechanism for victims and their families to get
help while this law is tied up in court. We solved that problem with
the Feinstein amendment, but again those protections were stripped from
this bill.
So overall this trust fund is inadequate. If we are going to lock the
courthouse doors to victims, we have to be 100 percent certain the
trust fund will have enough money to cover all of the 600,000 current
claims and the thousands more that may be found later. This is
especially important because asbestos diseases have a very long latency
period, often decades long, making it hard for us to predict today who
will need help in the future. If we pass this inadequate trust fund, my
constituents and hundreds of thousands of Americans will be left out in
the cold with only the fading memories of their loved ones to carry
them through this tragic ordeal.
My third concern with this bill is it keeps Americans in the dark
about the dangers of asbestos exposure. This bill completely drops the
education campaign that was in both of my asbestos bills. One of the
reasons why asbestos takes such a deadly toll is because people are
unaware that they're being exposed to it.
Ralph Busch, a constituent of mine, exposed himself and his wife to
asbestos when he renovated his home. He never knew about the dangers
until he happened to read a story in the Seattle Post-Intelligencer.
Today, his dream house is abandoned, his credit is ruined, and his
health is a constant worry. Ralph Busch didn't do anything wrong. He
couldn't have known about the danger of Zonolite insulation. There is
no way that Ralph Busch could have known that by buying and renovating
an old house he would eventually expose his family to dangerous levels
of asbestos.
We must make sure others do know about this public health risk by
providing additional resources to educate the American public about the
dangers of worksite and home exposures to products that contain
asbestos.
We must also provide safety information to homeowners on what they
can do to prevent asbestos exposures at home, particularly in the attic
and basement.
In addition to homeowners, many workers are exposed to asbestos on
the job. Often they are not aware of the danger, and they don't have
the protective equipment they need.
I am heartened to hear that EPA, ATSDR and NIOSH are now proactively
reaching out to consumers and workers to warn them to stay away from
vermiculite attic insulation. But, I am very concerned that the EPA,
prodded by a request from the law firm of the former acting agency
administrator, is considering revising its ``Guidance for Preventing
Asbestos Disease Among Auto Mechanics'' to convey the false impression
that brake repair work is no longer a risk.
Clearly, any effort by the EPA to downplay these risks flies in the
face of current congressional intent regarding the inherent health
problems with exposure to asbestos in the workplace. I sincerely hope
that EPA will not bow to the pressure of the industry and in fact
strengthen its guidance for brake mechanics.
My fourth concern is that this bill does not do enough for research,
tracking and treatment.
I want to thank Senator Hatch for including some modest resources in
his latest version of the bill--which should be used to establish
mesothelioma research and treatment centers around the country.
Yesterday I was pleased to hear Senator Hatch say that he would be
willing to explore additional funding for asbestos research and
treatment
[[Page S4191]]
centers. These centers will be critical as the medical community works
to develop new treatments and protocols for the variety of deadly
cancers and diseases that exposure to asbestos brings to workers and
their families.
Unfortunately, not included in S. 2290 are the resources needed to
track the victims of mesothelioma and other asbestos causing cancers,
and to conduct additional research about the harmful effects of this
deadly material.
These are areas that doctors and other experts have told me time and
again we must invest in. I heard from some of those doctors last month
at a press conference I held, which Senator Reid and Senator Dayton
attended. At the press conference, Dr. Bret Williams of North Carolina
said, ``As a doctor, a cancer patient, a husband and father, I am
asking my government to take a stand. Fix the problem. Give us hope.
Fund a mesothelioma research program. Please invest in a cure.''
A surgeon from Detroit, Dr. Harvey Pass, told us that progress on
asbestos diseases requires funding, and he said that funding, ``remains
absolutely insufficient to set up the type of collaborative approaches
that already exist with lung cancer, breast cancer, prostate cancer,
and colon cancer.''
The fourth problem with this bill is its inadequate support for
research, tracking and treatment of asbestos diseases.
My fifth concern with this bill is the way it treats family members.
Under this bill, family members of victims will be forced to jump
through an additional series of hoops, reducing the likelihood they
will ever receive an award.
Let us remember that these family members have lost loved ones. In
many cases they are vulnerable themselves because they came into
contact with asbestos fibers through a family member. Take the case of
Susan Lawes. Her father was a pipe fitter and was exposed to asbestos
on the job. When he came home from work, asbestos fibers were still on
his clothes. He would walk through the door after the end of a long day
and give his daughter a hug. Last month, Susan was diagnosed with an
asbestos disease. As she told me,'' I am literally dying because I
hugged my dad.''
Susan and many people like her are not treated fairly under this
bill. The children and the spouses of workers should not have to prove
five years of exposure to asbestos from their husbands and fathers as
they would under this bill. They also should not be forced to appear
before a special Physicians Review Board in order to determine their
medical condition and whether they are eligible for a compensatory
award.
It is the same for people in Spokane, WA. Spokane is one of the 22
sites that EPA has determined is still contaminated. Why are we forcing
these innocent victims of take-home asbestos exposure to jump through
extraordinary hoops to determine their eligibility of an award?
My fifth concern is the unfair way this bill treats family members--
making them jump through hurdles that reduce the chance they will ever
get the help they need.
Finally, this bill allows insurance companies to reduce any awards
that victims actually receive--something that is not found in similar
federal plans.
This bill allows insurance companies to place liens on the awards
that victims and family members receive.
I find it unconscionable that health insurance companies and other
entities can recoup their costs by placing liens on the awards family
members receive in compensation for their loss of a father, a husband,
a son or a daughter.
These workers were often the only breadwinners in their households,
but this bill tells their surviving family members that they can be
sued by their health insurance provider for a substantial part of an
award--an award that as I've shown may already be inadequate.
What is especially disturbing is other federal compensation programs
do not allow this type of action, but for some reason, asbestos victims
are being given fewer protections. For example, the awards provided to
victims in federal compensation programs like the Radiation Exposure
Compensation Act, the Energy Employees Occupational Illness
Compensation Program Act and the Ricky Ray Hemophiliac Relief Fund Act
are not subject to liens by workers compensation insurers. I don't know
why the authors want to treat asbestos victims differently, but I do
know that it is not fair, and it's one of the reasons why I can't
support this bill.
In the end, this bill falls far short of what victims deserve. The
awards are too small. The trust fund is inadequate. It fails to educate
Americans about the dangers of asbestos. It falls short on research,
tracking and treatment for asbestos diseases. It puts unfair burdens on
family members, and it allows insurance companies to reduce a victim's
award.
I have been fighting on this for years, and it makes no sense that we
could squander this moment with a bill that is so inadequate. George
and Gayla and Ralph and Marv and Bret and Brian deserve so much better,
and I will continue to fight for them.
Regardless of what happens with this bill, the one thing we must do
is ban asbestos, and I assure my colleagues that I will keep fighting
for that. I do want to pass a law. We need a real solution. I don't
want companies going bankrupt. I don't want victims going without the
help they need. I still think we can do it, and I will continue to
fight for a balanced and fair bill that will do right by victims across
the country. We have an obligation to them and their families. I have
been fighting for them for the last 3 years. No matter what happens
this week, I am not going to stop now.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. VOINOVICH. Mr. President, I preface my remarks by saying my
thoughts are with the victims of asbestos exposure, those families that
have lost loved ones, and those that have to live with the debilitating
illness caused by asbestos. They are at the forefront of my mind and in
my heart as I discuss this issue of asbestos liability.
I want to be sure the legislation we pass today will ensure that
those truly sick individuals are allowed fair and just compensation.
Without the passage of this legislation, they will not be compensated.
As hundreds of companies will cascade into bankruptcy, we will lose
thousands of good-paying jobs and see the pensions of thousands of
retirees evaporate.
Most people would agree that the issue of asbestos litigation and its
aftermath is presenting a crisis in our country. With roughly 70
companies already in bankruptcy and a slew of bankruptcies soon to
follow, the U.S. Supreme Court had it right when they called this an
elephantine mess.
People need to understand this mess has far-reaching effects and
ripples and they are being felt way beyond corporate boardrooms. They
are being felt intensely by middle America, people from States such as
Ohio, in the form of job loss. We have lost over 2.7 million
manufacturing jobs in the United States. In my State alone, in July,
there were 1 million manufacturing jobs in 2000, but by October 2003
that fell to 840,000, 17.6 percent of our State's manufacturing
employment, a loss of more than 1 out of every 6 Ohio factory jobs.
These numbers represent a crisis for Ohio's economy. Already, roughly
70 companies have been forced into bankruptcy with between 52,000 and
60,000 jobs lost as a result.
Shattered families and communities. The statistics are only the
beginning as thousands of jobs were subsequently lost in industries
dependent on those bankrupt firms. In fact, a recent study by Financial
Institutions for Asbestos Reform and conducted by Navigant Consulting
details the hidden cost of this crisis and shows how passage of Federal
asbestos legislation would provide a tremendous boost to the economy
and create jobs. Dr. William Kerr, author of the study, said the
failure to enact legislation would reduce economic growth by $2.4
billion per year. Failure to enact legislation could reduce economic
growth by $2.4 billion per year, costing more than 30,000 jobs
annually. Extended over a 27-year frame, as contemplated, this means
the loss of more than 800,000 jobs and $64 billion in economic growth.
Another study, entitled The Secondary Impacts of Asbestos
Liabilities, conducted by NERA Economic Consulting for the U.S. Chamber
of Commerce, shows how asbestos lawsuits
[[Page S4192]]
can cause secondary harm to businesses, governments, communities, and
individuals. The study found the ripple effects of plant closures and
mass layoffs, such as causing local real estate values to fall, per
capita income to decline, and tax coffers to dwindle. The study
estimates the total cost to taxpayers of unemployment insurance
benefits to displaced workers for asbestos-related bankruptcies at $80
million. The study put the indirect cost of the company closing due to
asbestos liability at as much as $2.1 billion. If nothing is done to
resolve what has been described as the elephantine mess of asbestos
litigation, scores, if not hundreds, of additional businesses will be
forced into bankruptcies and tens of thousands of additional workers
will find themselves unemployed. Retiree and workers who spent decades
working for retirement will see their life savings vanish.
This crisis can really be felt in my home State of Ohio. In fact,
Ohio is the fifth biggest State in the country in terms of asbestos
claims hanging around our court. In Cuyahoga County, more than 41,000
asbestos cases have swamped the court system. At least 20 large Ohio
companies, representing more than 80,000 employees, are the targets of
asbestos litigation. Of course, over the past few years the circle of
liability has expanded to pull in more and more solvent companies, many
of which never manufactured or installed asbestos.
There are numerous examples of Ohio companies negatively impacted by
this crisis. Take the case of Federal Mogul, a company that employs
over 1,200 in six cities through my State. Employees held 16 percent of
the company stock. That stock lost 99 percent of its value. Current
employees and also retirees feel the effects of the bankruptcies. Many
retirees depend on company stock and dividends for income, and as this
value heads south, retirees feel it immediately.
Another company which does a lot for the Toledo area is Owens
Corning. As Governor, I worked hard to get Owens Corning to put the new
corporate headquarters in downtown Toledo to help facilitate the city
of Toledo renaissance. Owens Corning, unfortunately, went bankrupt in
2000. In the 2 years preceding this bankruptcy, the stock lost 97
percent of its value. Fourteen percent of the stock was owned by
company employees.
Another Ohio company spoke with me off the record about its growing
asbestos liability. When this company announced it had limited asbestos
liability, the stock dropped by about 20 percent and its debt rating
was lowered. This began a chain-reaction ripple effect that included
the loss of over 100 jobs, the sale of assets, a 50-percent cut in
capital investments, and a huge cut in the amount of contributions to
the surrounding community.
As a former mayor, I know firsthand the impact of what happens when
companies go bankrupt. Many of us forget that these companies make a
significant contribution to the tax revenues of the cities in which
they are located, including their philanthropic contributions, such as
United Way, arts, education, health care, and many other forms of
community involvement. As I have said before, companies such as this
one make up the backbone of the Ohio economy. They do not want to shirk
their responsibility to those victims who will become sick truly
because of asbestos exposure; they want to know that they are not
compensating those individuals who are unimpaired.
Ohio feels the crisis most acutely. It has so impacted my State of
Ohio that the State legislature has decided to act where the Federal
legislature has failed to do so. On December 11, 2003, the Ohio House
of Representatives approved a bill to make Ohio the first in the Nation
to block suits by people exposed to potentially deadly asbestos but who
have yet to fall ill. The bill would adopt State medical standards for
such litigation, allowing lawsuits to be filed by those who have yet to
develop cancer or suffer measurable loss of lung function to be placed
on hold until they do actually develop the symptoms.
I applaud the State of Ohio for recognizing the true magnitude of the
threat to Ohio citizens and for not waiting for Washington to act. With
the passage of this bill, Ohioans who are sick from asbestos exposure
will go to the top of the court dockets where they belong. Finite
resources will be available for those who need compensation most. The
people who are now sick will be able to file claims.
Now, if we could only get something done here. I have been working on
this issue since I was elected to the Senate, and I have been a
cosponsor to several pieces of legislation, including the Asbestos Tax
Fairness Act and both versions of the Fairness in Asbestos Injury
Resolution Act. I have testified twice before the Judiciary Committee
on the need for this legislation. I have lobbied my colleagues in the
administration on the need to see this bill passed.
If we want to get something done, we need to do it now. Now is the
time. We passed the FAIR Act out of the Judiciary Committee last summer
and have spent the time between then and now negotiating to try to find
a solution that everyone can support. That is almost a year that we
have been negotiating back and forth trying to figure out something we
think will be fair to everyone. The time has come for action. We cannot
afford any more delays. The ever rising tide of corporate bankruptcies
affect victims' compensation so that the truly sick asbestos victims in
too many cases and more and more frequently only receive pennies on the
dollar. In addition, employees of bankrupt companies suffer as they
watch their jobs disappear and their pensions in 401(k) plans decrease
dramatically. Again, we have to do something now, not later. Passage of
this legislation will get us well on our way. And we have never come
closer to resolving the asbestos litigation crisis than this
legislation.
This bill provides for a privately funded, no-fault, national
asbestos victims compensation fund that will replace the broken tort
system and ensure that individuals who are truly sick receive
compensation quickly, fairly, and efficiently. It retains the
bipartisan agreement on medical criteria that was approved unanimously
by the Judiciary Committee. These criteria form the basis of a no-fault
victims' compensation fund that will stop the flow of resources to the
unimpaired and ensure that the truly ill will be paid quickly and
fairly.
The bill contains many improvements made to its predecessor and
reflects the product of the last several months of extensive
negotiations by the stakeholders in this debate--all of the
stakeholders.
I urge my colleagues to vote for cloture on this very important piece
of legislation.
On a broader scale, the litigation crisis in this country is like a
tornado ripping its way through our economy. The American Tort Reform
Association published a study in 2002 on the impact of litigation in
Ohio and found that it costs every Ohioan $636 per year--that is every
Ohioan, all 11.5 million. That is $636 a head. A large part of it is
due to the issue that we have before us today, asbestos. We need to
move immediately on this issue.
In my opinion, passing responsible asbestos reform legislation to
ensure that the truly injured receive fair and just compensation, and
to prevent more companies from sliding into bankruptcy, will do far
more for Ohio's economy than many other stimulus proposals we have been
talking about on the floor of the Senate or in our respective
committees.
The consequences of inaction are grave. As previously mentioned, a
large swath of corporate America is at risk, jeopardizing the jobs of
thousands of employees, impoverishing retirees, and shattering families
and communities. America's clear national interest lies in making sure
asbestos funds are available for those who become sick and lifting an
ominous cloud of litigation from our troubled economy.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Hagel). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. INHOFE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
False Advertisement By Special Interest Groups
Mr. INHOFE. Mr. President, I have to admit that I do not read the New
York
[[Page S4193]]
Times cover to cover each day. But from time to time, items in that
paper do catch my attention. For instance, when a group runs a full-
page advertisement, one cannot help but at least glance at the ad.
A couple weeks ago, one such advertisement caught my attention. It
was a full-page advertisement placed in the New York Times by two
special interest groups: the Natural Resources Defense Council and
Moveon.org. These two special interest groups are especially vocal and
devoted solely to disparaging the environmental record of the Bush
administration.
I have an enlarged version of that advertisement that ran in the New
York Times. It is chart 1. As you can see, it states, in large print:
``First Arsenic, Now Mercury.'' It has pictures of President Bush
alongside a powerplant billowing with smoke. The ad makes such claims
as: the President's policies are the source for mercury contamination
in fish and that the President is simply following the wishes of
industry contributors. The ad makes direct statements such as: ``So why
is President Bush trying to weaken controls on mercury pollution?''
I am chairman of the Environment and Public Works Committee, so this
ad was of particular interest to me for at least a couple reasons. To
anyone reading this advertisement, the reader would naturally assume
there must be some already existing controls on mercury emissions from
powerplants because the ad explicitly claims that President Bush is
trying to weaken those controls.
How can you weaken controls if there are no controls to start with?
So it is assuming there are controls existing. This claim is completely
false. I believe this chart demonstrates that. The NRDC's lobbying
claim is that the President is weakening controls on mercury emissions
from powerplants. The facts, however, are very different.
On December 15, 2003, this President proposed the first ever controls
on mercury emissions from utilities. Now, keep in mind, there were no
controls before, none whatsoever. How can you weaken controls if there
are no controls there?
The Clinton administration had 8 years to propose such controls and
did not. In nearly 3,000 days as EPA Administrator, how many mercury
regulations on powerplants did former EPA Administrator Carol Browner
issue? Zero. Instead, in the last month of the eighth year of the
Clinton administration, Carol Browner deftly handed a regulatory lemon
to the Bush administration that she was unwilling to impose during the
Clinton administration. What a courageous move.
I am very proud that President Bush and his EPA Administrator, Mike
Leavitt, have shown leadership where President Clinton and Carol
Browner fumbled and failed. In fact, Administrator Leavitt testified
before the Environment and Public Works Subcommittee on Clean Air in a
hearing on April 1, 2004. In questioning, the Administrator ably drew
the line between fact and fiction regarding the President's proposals
regulating mercury from powerplants. I want to read to you one of his
quotes. The Administrator explained:
One fiction is that the EPA does not view mercury as a
toxin. The fact is mercury is a toxin and it needs to be
reduced. Another fiction is that somehow the agency is
seeking the Administration to roll back standards. The fact
is there has never been a standard, this will be the first
time that we will have regulated mercury from power plants in
our Nation's history and we want to do it right.
Now, that is what Administrator Leavitt said, reemphasizing there has
been no regulation on mercury.
Why shouldn't we propose the right mercury rule based on sound
science? There are no existing control standards for utility mercury
emissions, so how can President Bush weaken a control standard for
mercury that does not exist? That simply does not make sense.
The NRDC has been a prominent national special interest group for
many years. So why would the NRDC run such an ad that is completely
false? I believe the answer to that question leads me to the second
reason this ad was of particular interest to me.
I had this advertisement enlarged to highlight one particular part of
it. Keep in mind, this was a full-page ad that cost, as I understand
it, around $110,000 for 1 day.
This is what was on the bottom, if you will notice the perforated
block at the end of the full-page ad circled in red. I especially
wanted to highlight this portion of the ad pictured on the chart
because this block is the reason why this ad ran. This perforated block
is a contribution form. The contribution form states:
Yes, I want to join the Natural Resources Defense Council
and help thwart President Bush's plan to weaken controls on
toxic mercury.
This is the most important part:
Here is my tax deductible gift of $ [blank].
The form further states to ``make your check payable to the NRDC and
mail it to the NRDC mercury campaign.''
I believe it is bad enough to run a false advertisement, but to
solicit charitable contributions based on that false advertisement is
especially troubling. The New York Times is widely distributed in my
home State of Oklahoma, as it is throughout the rest of the country. It
would be very disturbing to learn that based on a false ad, people are
scared into contributing.
For the past several years, my State of Oklahoma has been rated in
the top 25 percent of States for charitable contributions per gross
income. It would greatly trouble me if even one of these contributors
was misled by any charitable solicitation.
The Council for Better Business Bureaus, a national organization,
compiles a Wise Giving Alliance report authorizing a seal of approval
to charities that meet the organization's standards. One of the
standards the council has established to measure charities deals with
solicitations by those charities. Part C of those standards states the
following:
1. Solicitations and informational materials, distributed
by any means, shall be accurate, truthful and not misleading,
both in whole and in part.
2. Soliciting organizations shall substantiate on request
that solicitations and informational materials, distributed
by any means, are accurate, truthful and not misleading in
whole or in part.
The NRDC, describing itself as a charity, should substantiate this
false advertisement. The President has proposed the first controls on
mercury emissions from powerplants, the first ever. The Better Business
Bureau should hold the NRDC accountable for their purposefully
misleading statements. However, NRDC's irresponsibility is sanctionable
in other manners as well.
Solicitations by charitable organizations are regulated in part by
Federal statutes and case law. However, the solicitation of charitable
contributions is mainly regulated by individual State law, and
violations of solicitation statutes can be prosecuted under state law.
Solicitation by charitable organizations is strictly regulated against
fraud and misleading advertisement under the Oklahoma statutes.
Oklahoma State law reads in relevant part:
Any person [or organization] who attempts to solicit any
contribution as a charitable organization by means of
knowingly false or misleading advertisement shall lose its
status as a tax exempt organization and upon conviction be
guilty of a felony.
This criminal liability extends to all officers and agents of the
charity involved in the solicitation. We take this very seriously in
Oklahoma. At least 40 other States have just as strict statutes against
soliciting contributions by misleading advertising.
Arguably this ad by NRDC may be unlawful in as many as 40 other
States that also have charitable solicitation statutes. This
advertisement by the NRDC and MoveOn.org explicitly states the
President is weakening mercury standards while they are trying to
swindle contributions from people all across the country who may see
this advertisement. I don't know what else this ad represents, but
specifically NRDC, which describes itself as a charitable organization
on its Web site, soliciting contributions by making knowingly false
statements to cheat people out of contributions--in Oklahoma, that
could make you a felon.
The most shocking part of this is not even that NRDC is running a
completely false ad or NRDC is running a completely false ad simply to
fleece people for contributions; the most shocking part is the American
taxpayer subsidizes the NRDC hundreds of thousands of dollars each year
to conduct this type of activity. Public IRS
[[Page S4194]]
records for the last several years demonstrate NRDC regularly receives
thousands of Federal grant dollars each year. In 2002, the NRDC
received more than a half million dollars in government grants. In
2003, the NRDC was additionally awarded more than half a million
dollars again in government grants. The cycle continues year after year
after year.
The Environment and Public Works Committee has oversight jurisdiction
over several Federal agencies. I believe my committee has the
obligation to ensure Federal funds allocated to these agencies are used
responsibly.
One agency in particular under the jurisdiction of the committee I
chair, the Committee on the Environment and Public Works, is the
Environmental Protection Agency. The committee has the responsibility
to assure American taxpayers their money is going toward accomplishing
the EPA's mission of protecting human health and the environment.
On March 3, my committee held its first hearing into the matter in
which EPA allocates grants each year. The EPA is a granting agency,
allocating more than half of its $8 billion annual budget in grants to
State, local, tribal governments, educational institutions, nonprofit
organizations, and a variety of other recipients. I announced at the
hearing the committee was going to take its oversight responsibilities
seriously in regard to grants management, and I intend to take this
responsibility seriously until real changes are made in grants
management.
The committee heard testimony of problems with grants management. I
am confident we will begin to make real changes with the leadership of
the Bush administration and Administrator Leavitt.
However, the NRDC, for example, has made it a matter of doing
business to apply for Federal grant awards that I believe help
subsidize it to run ads such as this one. It costs more than $110,000 a
day to run a full-page ad in the New York Times. The NRDC and
MoveOn.org are spending thousands of dollars to purposely misrepresent
the Bush environmental record and scare people into contributing based
on those false representations.
I am announcing that I am sending letters today to the two largest
judicial jurisdictions in Oklahoma and requesting those district
attorneys to investigate the legality of this advertisement in
Oklahoma. I am also sending a letter to the Better Business Bureau
requesting that organization to more carefully consider this false
advertisement in their rating of the NRDC in awarding their Wise Giving
Alliance seal and ask that it formally request NRDC to substantiate its
baseless claim.
I ask unanimous consent that all three letters be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate, Committee on
Environment and Public Works,
Washington, DC, April 21, 2004.
Hon. Tim Harris,
District Attorney, Tulsa County Courthouse,
Tulsa, OK.
Dear Tim: I am writing to bring to your attention an
advertisement that ran in the New York Times on March 26,
2004. A copy of this advertisement is attached to this
letter. I wanted to highlight issues of concern to me in this
advertisement. The New York Times is widely distributed in
Tulsa, Oklahoma, throughout Oklahoma, and the rest of the
country. This advertisement makes claims that due to
President Bush's policies concerning environmental protection
specifically concerned regulations on mercury emissions from
public utilities, more toxic mercury will be emitted into the
air. It pictures President Bush next to a picture of a power
plant billowing with smoke, and specifically solicits
contributions to the Natural Resources Defense Council, a IRS
designated 501(c)(3) organization, to ``help thwart President
Bush's plan to weaken controls on toxic mercury.''
As you are aware, I am Chairman of the U.S. Senate
Committee on Environment and Public Works, so this
advertisement was of particular interest to me. One of the
issues before this Congress is regulation emissions from
power plants. President Bush has proposed the first controls
on toxic mercury emissions from utilities. Currently there
are no existing controls on mercury emissions from utilities.
The Clinton Administration had eight years to propose such
controls and did not. I believe NRDC's claim that President
Bush is trying to weaken control on mercury pollution is
completely false and simply an effort to raise contributions.
It is irresponsible enough that NRDC runs false
advertising, however, it is also attempting to solicit
contributions as a 501(c)(3) and self-described charitable
organization.
I understand that there are federal statues governing
charitable solicitations, but I also know that Oklahoma state
statutes address perceived false solicitation by a charitable
organization under The Oklahoma Solicitation of Charitable
Contributions Act (18 Okl.St.Ann. Sec. 552.1 et seq). What I
find particularly interesting is the penalties section of the
Act stating the following:
``Any person who solicits or attempts to solicit any
contribution as a charitable organization or for a charitable
purpose by means of knowingly false or misleading
representation, advertisement or promise or any person
violating the provisions of this act, including the filing of
false information hereunder, shall lose its status as a tax-
exempt organization, and shall be taxed in the same manner
and at the same rate as any other corporation, and shall upon
conviction be guilty of a felony punishable by a fine not to
exceed One Thousand Dollars ($1,000.00) or by imprisonment in
the State Penitentiary for not more than two (2) years, or by
both such fine and imprisonment, and every officer or agent
of a charitable organization who authorizes or conducts
illegal solicitations shall be jointly and severally liable
for such fine.'' (18 Okl.St.Ann. Sec. 552.18).
I know that your office is continually engaged in
prosecuting hundreds of felony cases each year with
tremendous success. As a resident of your jurisdiction, I
appreciate the work of your office. Any attention that your
office could provide to this matter would be greatly
appreciated. I intend to highlight the irresponsible
activities, like the enclosed advertisement, by groups like
NRDC that the federal government subsidizes with hundreds of
thousands of taxpayer dollars in grants and other financial
assistance each year.
Thank you again for your attention to this matter.
Sincerely,
James M. Inhofe,
Chairman.
____
First Arsenic Now Mercury--George Bush's EPA and the Politics of
Pollution
America learned this week that tuna, and many other fish,
can contain harmful levels of toxic mercury. Forty-five
states already post warnings of mercury contamination in
their lakes and streams. So why is President Bush trying to
weaken controls on mercury pollution?
It's deja vu all over again. Early in his presidency,
George Bush tried to allow more arsenic in drinking water.
Now, he wants the EPA to let coal-fired power plants treat
their mercury pollution as ``non-hazardous'' even though
mercury threatens pregnant women and children.
The Bush administration's ploy would allow coal-fired power
plants to put more mercury into the air, where it rains down
on lakes and oceans, is swallowed by fish, and could wind up
on your plate. Exposure to mercury can cause learning
disabilities and neurological damage in kids and the
developing fetus.
Guess who is praising this scheme? Coal power companies,
who are big mercury polluters and big political contributors,
too.
the mercury money trail
The big mercury polluters and their trade associations are
aggressive political players in Washington. Their executives
and PACs are also generous political donors. It's no surprise
that the Bush administration is following the industry's
script for weakening mercury regulations.
Last time around, President Bush had to back down on
arsenic in the face of a massive outcry from people across
the political spectrum.
Let's make history repeat itself.
Tell President Bush to get serious about reducing mercury
pollution. Our kids deserve no less. Let the Bush
administration and the EPA hear your voice about its proposed
mercury rule. Go to www.nrdc.org--NRDC, MoveOn.org, Democracy
in Action.
____
U.S. Senate, Committee on
Environment and Public Works,
Washington, DC, April 21, 2004.
Hon. Wes Lane,
District Attorney, Oklahoma County Courthouse, Oklahoma City,
OK.
Dear West: I am writing to bring to your attention an
advertisement that ran in the New York Times on March 26,
2004. A copy of this advertisement is attached to this
letter. I wanted to highlight issues of concern to me in this
advertisement. The New York Times is widely distributed in
Oklahoma City, throughout Oklahoma, and the rest of the
country. This advertisement makes claims that due to
President Bush's policies concerning environmental protection
specifically concerning regulations on mercury emissions from
public utilities, more toxic mercury will be emitted into the
air. It pictures President Bush next to a picture of a power
plant billowing with smoke, and specifically solicits
contributions to the Natural Resources Defense Council, a IRS
designated 501(c)(3) organization, to ``help thwart President
Bush's plan to weaken controls on toxic mercury.''
As you are aware, I am Chairman of the U.S. Senate
Committee on Environment and Public Works, so this
advertisement was of particular interest to me. One of the
being considered before this Congress is regulation on
emissions from power plants. President Bush has proposed the
first controls on toxic
[[Page S4195]]
mercury emissions from utilities. Currently there are no
existing controls on mercury emissions from public utilities.
The Clinton Administration had eight years to propose such
controls and did not. I believe NRDC's claim that President
Bush is trying to weaken control on mercury pollution is
completely false and simply an effort to raise contributions.
It is irresponsible enough that NRDC runs false
advertising, however, it is also attempting to solicit
contributions as a 501(c)(3) organization and self-described
charitable organization.
I understand that there are federal statutes governing
charitable solicitations, but I also know that Oklahoma state
statues address perceived false solicitation by a charitable
organization under The Oklahoma Solicitation of Charitable
Contributions Act (18 Okl.St.Ann. Sec. 552.1 et seq). What I
find particularly interesting is the penalties section of the
Act stating the following:
Any person who solicits or attempts to solicit any
contribution as a charitable organization or for a charitable
purpose by means of knowingly false or misleading
representation, advertisement or promise or any person
violating the provisions of this act, including the filing of
false information hereunder, shall lose its status as a tax-
exempt organization, and shall be taxed in the same manner
and at the same rate as any other corporation, and shall upon
conviction be guilty of a felony punishable by a fine not to
exceed One Thousand Dollars ($1,000.00) or by imprisonment in
the State Penitentiary for not more than two (2) years, or by
both such fine and imprisonment, and every officer or agent
of a charitable organization who authorizes or conducts
illegal solicitations shall be jointly and severally liable
for such fine.'' (18 Okl.St.Ann. Sec. 552.18).
I know that your office is continually engaged in
prosecuting hundreds of felony cases each year with
tremendous success. Any attention that your office could
provide to this matter would be greatly appreciated. I intend
to highlight the irresponsible activities, like the enclosed
advertisement, by groups like NRDC that the federal
government subsidizes with hundreds of thousands of taxpayer
dollars by way of grants and other financial assistance each
year.
Thank you again for your attention to this matter.
Sincerely,
James M. Inhofe,
Chairman.
____
U.S. Senate, Committee on
Environment and Public Works,
Washington, DC, April 21, 2004.
Mr. Ken Hunter,
Council of Better Business Bureaus, Wilson Blvd., Arlington,
VA.
Dear Mr. Hunter: I am writing to bring to your attention
an advertisement that ran in the New York Times on March 26,
2004. A copy of this advertisement is attached to this
letter. I wanted to highlight issues of concern to me in this
advertisement. The New York Times is widely distributed
throughout the country. This advertisement makes claims that
due to President Bush's policies concerning environmental
protection specifically concerning regulations on mercury
emissions from public utilities, more toxic mercury will be
emitted into the air. It pictures President Bush next to a
picture of a power plant billowing with smoke, and
specifically solicits contributions to the Natural Resources
Defense Council, a IRS designated 501(c)(3) organization, to
``help thwart President Bush's plan to weaken controls on
toxic mercury.''
As Chairman of the U.S. Senate Committee on Environment
and Public Works, this advertisement was of particular
interest to me. One of the issues considered before the
Congress is multi-emissions legislation. On December 15,
2003, the Environmental Protection Agency proposed the first
controls on toxic mercury emissions from power plants.
Currently there are no existing controls on mercury emissions
from public utilities. I believe NRDC's claim that President
Bush is trying to weaken controls on mercury pollution is
completely false and simply an effort to raise contributions.
It is irresponsible enough that NRDC runs false
advertising, however, it is also attempting to solicit
contributions as a 501(c)(3) organization and self-described
charitable organization.
I understand that the council for Better Business Bureaus
rates charities by its Wise Giving Alliance standards
requiring that solicitations be ``accurate, truthful, and not
misleading in whole and in part'' and that charities be
required to substantiate all claims. I request that the
Council require the NRDC to substantiate its claims and
consider this false advertisement in future ratings of this
charity.
Thank you for your attention to this matter.
Sincerely,
James M. Inhofe,
Chairman.
Mr. INHOFE. A couple years ago, I read a series of articles in the
Sacramento Bee highlighting the facade of many environmental groups.
The article made the point that today's environmental groups, like
NRDC, are more about their own prosperity than environmental
protection. I still have those articles in my office. I thought one
particular quote was especially fitting.
The author wrote of environmental groups:
Competition for money and members is keen. Litigation is
blood sport. Crises, real or not, is a commodity, and slogans
and sound bites masquerade as scientific fact.
That quote was written in 2001. It is still more true today in 2004.
But it is not something new. That quote captures the way NRDC and its
cohorts have been doing business for years. They should be responsible.
They should be truthful. This type of activity goes beyond what the
NRDC does with Federal tax dollars, but I intend to explore what NRDC
and groups like it are also publishing and the extent of the rampant
false claims made by these groups the American taxpayers help to fund
each year.
We are not going to allow this to continue. They are getting into the
types of discretionary grants we are dealing with through the EPA and
other agencies. It is shameful that it is going on. We are now in a
position, with the committee I chair, to do something about it. We
intend to do that.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. HARKIN. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HARKIN. Mr. President, might I inquire as to how much time I
would have to speak on the floor now?
The PRESIDING OFFICER. Under the previous order, the Senator from
Iowa has been allotted 15 minutes to speak in morning business.
Refocusing Our Health Care System
Mr. HARKIN. Mr. President, last week the Labor, Health, and Human
Services Subcommittee of Appropriations held a hearing in my State of
Iowa. I wanted to learn more about the medical and financial
ramifications of chronic conditions such as obesity, tobacco use,
mental illness, and lack of physical activity. I come away from that
hearing and other hearings that we have had in Washington, and others
we have had going back probably over a dozen years, even more convinced
that we need to refocus our health care system toward wellness and
prevention. I am convinced now more than ever that we really do not
have a health care system in America. We have a ``sick care system'' in
America. I will say more about that in a moment.
At the hearing and at others before that, we heard the familiar
litany of grim statistics associated with these chronic conditions. But
we also heard from Iowans, students and adults, who are taking matters
into their own hands, doing innovative things to promote wellness and
healthier living in their communities.
In the United States we spend in excess of $1.5 trillion a year on
health care. Fully 75 percent of that total is accounted for by chronic
diseases, such as heart disease, cancer, diabetes. What these diseases
have in common is, in so many cases, they are preventable. In the
United States we fail to make an up-front investment in prevention, so
we end up spending hundreds of billions on hospitalization, treatment,
and disability.
This is foolish, and clearly is unsustainable. We need a new paradigm
in American health care. We need a prevention paradigm. As I said,
right now we have a sick care system in the United States. If you get
sick, one way or another you get care, either through health insurance
or through Medicaid, Medicare, or something like that. Of course we
know we have 43 million uninsured who do not have access, even, many
times, to our sick care system. But what we need is a genuine health
care system, a system focused on wellness and prevention, a system
focused on keeping you healthy in the first place.
Consider the cost of major chronic diseases, diseases that in many
cases are preventable. The annual costs for cardiovascular disease are
about $352 billion; for obesity, $117 billion a year; for diabetes,
$132 billion a year; for smoking, more than $75 billion a year; and for
untreated mental illness, $79 billion a year. Indeed, major depression
is the leading cause of disability in the United States.
[[Page S4196]]
If I bought a new car and I drove that car off the lot and I never
maintained it, I never checked the oil, I never changed the oil, I
never checked the transmission fluid, never got it tuned up, I just
drove it, you would think I was crazy, not to mention grossly
irresponsible. The commonsense principle with an automobile is: Pay a
little now, keep it maintained, or you are going to pay a whole lot
later for a new engine.
It is the same with our national health priorities. Right now our
system is in a downward spiral. We are not paying a little now so we
are paying a whole lot later. If we are serious about bringing down
health care costs, we must get people access to preventive care. We
must give people the tools they need to stay healthy. We must build
incentives throughout the entire society, incentives for prevention and
wellness. This will take a sustained commitment from government,
schools, communities, employers, health officials, and of course the
food industries. But this can have a huge payoff for individuals and
families, for employers, for society, and for the economy at large.
One condition in particular is fast becoming our Nation's leading
public health threat: being overweight and obesity. Several weeks ago a
new study came out that confirms what many of us already know. Obesity,
unhealthy diets, and lack of physical activity have made us a nation at
risk. The Centers for Disease Control and Prevention did a study that
determined that poor diet and lack of physical activity are now the
second leading cause of death in the United States, contributing to at
least 400,000 deaths annually.
I think this chart shows the startling statistics very clearly. This
is from the Centers for Disease Control and Prevention. The actual
cause of death in the United States in 1990 from tobacco was 400,000.
By the year 2000 the cause of death by tobacco was 435,000. But look at
this. Poor diet and physical inactivity, in 1990: 300,000 deaths; by
2000, 400,000 deaths. So while the cause of death from tobacco use had
gone up less than 10 percent in 10 years, the cause of death from poor
diet, obesity, and physical inactivity went up 33 percent in one
decade. It is now the second leading cause of death in the United
States.
One of the authors of this study was the Director of the Centers for
Disease Control and Prevention, Dr. Julie Gerberding. The media and the
American public increasingly recognize this growing crisis. Seemingly
every day I open the paper and read about the public health impacts of
chronic disease. A recent cover of the Economist magazine hit the nail
on the head. If we don't act now and act aggressively, the progress we
have made in promoting health and fighting disease, all of the public
health gains we have made in the last couple of hundred years, will be
totally wiped away.
I thought this illustration from the Economist showed the progress of
humankind as we became more and more like modern man--and then here we
are, descending into obesity and overweight. That was the cover of the
Economist last December entitled ``The Shape of Things to Come.'' Of
course, here he is, drinking his supersized soft drink, walking down
the road to chronic illness and disease.
In 1990, 1997, and 2002, the Centers for Disease Control and
Prevention did a State-by-State obesity prevalence study. I am going to
show three charts which are startling in how they depict what is
happening just in the last 14 years in the United States. The first
chart I will put up is obesity in the United States among adults in
1990. In 1990, the dark shaded areas here are obesity rates between 10
percent and 14 percent. The light blue areas are States where we have
less than 10 percent incidence of obesity. For the white States we just
didn't have data. But as you can see, in 1990 no State had a prevalence
of obesity over 15 percent--not one. All of the States were less than
15 percent or less than 10 percent. That was in 1990.
Now let's take a look at 1997. By 1997, here we have some orange
States coming up now which we didn't see in 1990. The orange States
mean that the prevalence of obesity is over 15 percent. Now we have
these States with a prevalence of obesity over 15 percent. Remember all
those blue States that were less than 15 percent? It is now 15 to 20
percent. So all of the dark areas are now over 15 percent. And only a
few States here are from 10 percent to 15 percent, but no State has an
incidence of less than 10 percent now. That is just in less than 7
years. That is 1997. Keep in mind now we have these three States, and
the majority of the States now are between 15 and 20 percent.
Let's take a look at what happened in 2002. Here is the real shocker.
Look at all the orange States. These are the States now where the
incidence of obesity is 20 percent to 24 percent. Now we have three red
States where the incidence is over 25 percent. We have a few States
here below 20 percent. Now we have no States less than 15 percent.
If I could have the first chart of 1990, I want to show the
comparison. Here we have in 1990 no States with an incidence of obesity
of over 15 percent. By 2002, according to the Centers for Disease
Control and Prevention, three States are over 25 percent, the vast
majority of States are over 20 percent, and the rest of the country
over 15 percent. In 1990, we didn't have one State that fit the pattern
we see in the United States now. That is what has happened in 14 years.
Now we see even some States exceeding 25 percent. We see the trend.
Actually, the story is even worse than this. The data on these charts
is based on self-reported weight, which tends to be significantly
understated, as you might imagine. As catastrophic as this chart of
2002 appears, it actually understates the extent of the obesity
epidemic. If you use reported data rather than self-reported, obesity
rates are much higher. In fact, using this scientific approach, we
learned that almost two out of every three Americans are either
overweight or obese. Think about that. Right now, only one in three
Americans is within their weight range for their height.
Obesity takes a terrible toll on a person's health. It can lead to
diabetes, heart disease, high blood pressure, cancer, and numerous
other chronic diseases. Incredibly, obesity causes more chronic
conditions than either smoking or alcoholism.
This is what this chart shows. This is again from the Centers for
Disease Control. We have a higher incidence of the number of chronic
conditions associated with health behavior. The No. 1 incidence of
chronic condition is aging. The older you get, the more liable you are
to get a chronic condition. Aging from 30 to 50 has the highest
incidence of a chronic disease. Second only to that is obesity, and it
is almost the same. Being obese is like aging from 30 to 50. If you are
30 years old and you are obese, you might as well be 50 years old in
terms of susceptibility to a chronic disease.
Here is smoking. It is down here quite a ways. Just being overweight
is down here. Drinking, past smoker, and obesity. In fact, right now
obesity is, as I said, the second largest killer of people in this
country.
Thus far, Congress has not been willing to adequately take on the
challenge of obesity and the challenge of encouraging healthy choices
and lifestyles. It is time for the Senate to lead in a new direction by
encouraging wellness and prevention.
To that end, I am currently working with others on several
initiatives to create a healthier workplace and a healthier environment
for our Senate family. In March, I sent a letter to the Senate Rules
Committee to request that signs be placed next to elevator buttons and
at the entrances to stairwells and at the base of escalators
encouraging people to use the stairs. Just the other day, I heard
someone on the elevator say they wanted to use the stairs, but they
didn't because they couldn't find them.
The other day I happened to visit Secretary Thompson down at HHS.
They have signs right there by the elevators and the doors encouraging
people to take a flight of stairs rather than riding the elevator.
I have also been in discussions with the Senate cafeteria on the
matter of food labeling. To their credit, they already have food
labeling available on their Web site. But I would like to see the
Senate cafeteria go the next step by including nutrition information on
menus or handouts that customers can pick up when they enter one of the
Senate restaurants. If Ruby Tuesday's can do it and put all of the
information
[[Page S4197]]
on their menus, why can't we in the Senate cafeterias?
I have also developed what I called the ``Harkin Health Challenge''
to promote wellness for my staff here and back in Iowa. This is a
comprehensive workplace wellness program that addresses stress
management, nutrition, physical, wellness screenings, and, of course,
smoking cessation.
Some believe there should be no role for the government in curbing
obesity. Some believe this is a matter of personal responsibility. I
don't agree. We can take steps to encourage and facilitate healthy
lifestyles. We can make sure ordinary Americans have the tools and
information they need to make informed healthy choices and be more
responsible for their own health.
We are about to pass a highway bill of approximately $300 billion for
highways, roads, and bridges. We tried to get an attachment to that
bill to promote bike paths along our highways. I saw a figure the other
day about how much less young people ride bikes today than they did 15
or 20 years ago. Ask yourselves as you drive down one of our busy
thoroughfares or streets: Would you ride a bike down there during rush
hour traffic? Of course not. You look to the side and there are no bike
paths. There are no walkways for people to have access. We have streets
now that do not even have sidewalks by them, let alone a bike path. I
think when we invest taxpayers' money to build highways, roads, and
bridges, we ought to mandate that, as a part of that, there ought to be
an access for bike and/or walking paths next to those streets.
I have already introduced legislation that would require menu
labeling in chain restaurants, but I can already hear objections that
this will be too expensive. It will be a burden on businesses, for
example, to put all of their information on menus. I mentioned that
Ruby Tuesday's already announced plans to implement food labeling in
its restaurants. Clearly they don't consider this to be too expensive.
They made a hardheaded corporate decision that it was both doable and
good for business.
I remember the same objections which were raised when Congress first
passed the Nutrition Labeling and Education Act to require labeling of
retail foods and packaged foods. But lo and behold, years later, the
sky has not fallen. To the contrary, consumers like labeling. When they
go into the grocery store, they pick up boxes, cans, and packages and
they read the nutrition labeling. They rely on those labels to help
them make informed healthy choices.
Consumers say they want nutrition information available when they
make menu selections at restaurants. Yet, while they have access to
excellent nutrition information at supermarkets when they go to buy
packaged foods, when they go to a restaurant, consumers have to resort
to guessing and estimating.
What about our special responsibility to the children? The food
industry spends more than $12 billion a year bombarding our kids with
advertisements through television, movies, magazines, and the Internet.
I don't have to tell you that they are not advertising broccoli and
apples and orange juice. The majority of these ads are for candy and
fast food--foods that are higher in sugar, salt, fat, and calories.
Today, specialty marketing firms have made a science out of
influencing children to buy a particular candy or to go to a particular
fast-food restaurant. Yes, parents have a responsibility to shield
their kids from harmful influences of all kinds. But what about
corporate responsibility? What about corporate ethics? What about our
Government's responsibility to make sure our children have a healthy
environment?
Children, especially those under 8 years of age, don't always have
the ability to distinguish fact from fiction. The number of TV ads that
kids see over the course of their childhood has doubled from 20,000 to
40,000; meanwhile, the percentage of children who are overweight or
obese has also doubled. The percentage of overweight or obese teens
has, in fact, tripled. The United States right now has a higher
percentage of overweight teens than any other industrialized country.
We also need to take steps to reduce the junk food that our children
are getting at schools. The GAO found that 43 percent of elementary
schools, 74 percent of middle schools, and 98 percent of high schools
have vending machines, school snack bars, or other food sources outside
of the school lunch and school breakfast programs. We know that when
kids have access to vending machines and snack bars and a la carte
lines at school, bad things happen. Kids' consumption of milk, fruits,
and vegetables goes down, and their intake of sodas and fried foods
skyrockets. This is one more area where Congress has a responsibility
to intervene to protect our children.
I had this brought home to me the other day when it was pointed out
that a 20-ounce size soft drink--Coke, Pepsi, all the soft drinks--has
the equivalent of 15 teaspoons of sugar. I ask: As a parent, would you
send your kid to school during the day and say, Here are 15 teaspoons
of sugar, please eat this. No parent would want to do that. Yet when
that kid goes to school and buys a 20-ounce soft drink, that is exactly
what they are getting. And they will probably have two of them during
the day. That is 30 teaspoons of sugar in 1 day.
Go home, take 15 teaspoons of sugar, put it in a cup and see if you
would like to eat that. Or do 30 teaspoons, the equivalent of what a
lot of kids are drinking today. No wonder obesity among teenagers has
tripled. No wonder our teenagers in this country are more obese than
teenagers in any other industrialized country in the world.
We have a responsibility; parents have a responsibility; schools have
a responsibility. But it is Congress that funds the school lunch and
school breakfast programs and the nutrition programs. This year we will
reauthorize the nutrition program, school lunches and school
breakfasts. We will reauthorize that this year.
What will we do as Senators and Congressmen to help promote healthier
eating and healthier lifestyle choices among our kids in school? Do we
have a responsibility? You bet we do. I hope we will step up to that
responsibility when the nutrition reauthorization bill comes through
the committee to the Senate.
In the coming months, I will be announcing a package of bills and
initiatives focusing on wellness, focusing on preventing chronic
diseases. The emphasis will be on nutrition, physical activity, mental
health, tobacco cessation. It will stress prevention, consumer
awareness, responsible marketing practices, and wellness programs in
schools, communities, and the workplace.
We face an obesity epidemic. We face an explosion of largely
preventable chronic diseases. We face health care costs and health
insurance premiums that are skyrocketing. All of these things are
related. We have to meet our responsibilities. We as Senators must set
a good example: Walk more, use the stairs more, have information on all
of our menus in all of our Senate cafeterias so we know exactly how
much trans fats, calories, sodium we are getting with each meal
ordered, and also to do what we can in our official capacity to help
support wellness and to support healthy lifestyles among our kids in
school and at daycare centers. That is where it starts. If we can get
the kids and teach them healthier lifestyles, healthier eating choices
early on, chances are that is what they will follow when they grow
older.
It seems to me the golden rule of holes is this: When you are in a
hole and you find it is getting up to your shoulders or up to your
head, stop digging. We have dug one whopper of a hole in health care in
this country by failing to emphasize prevention and wellness. It is
time to stop digging. It is time to focus our attention on healthy
lifestyle, prevention, wellness, providing incentives for businesses.
I hear about tax incentives for business to do this, and that we need
more tax incentives for businesses to provide wellness and prevention
programs at the worksite for people who work in small and large
businesses. We need to provide the kind of support for our public
schools to provide better choices for our kids, also.
I thank the indulgence of the Chair. I wanted to take this time to
talk about this and to alert my fellow Senators that I will be
introducing a package of wellness bills and I have been working with
the majority leader, a doctor, Senator Frist, on some of
[[Page S4198]]
these items, especially about getting signs posted about trying to use
the stairs more often, about getting Senators wearing pedometers and
doing more walking, for us to set a good example for the rest of the
country.
I am hopeful we can also use the nutrition reauthorization bill this
year to make some changes in how we approach how kids eat and what they
eat at school and what is available to them in terms of vending
machines, soft drinks, sugar, salt, that type of thing, and to get them
eating healthier at an early age.
I yield the floor and 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. BYRD. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
iraq
Mr. BYRD. Mr. President, it is the poet T.S. Eliot who reminds us, as
if we needed to be reminded, that ``April is the cruelest month.'' How
prescient his words ring this April 2004, as we reflect upon the
deepening crisis and the steadily mounting death toll in Iraq. This
April, this month in which millions of Americans marked the holiest
season of the Judeo-Christian calendar, has been an unholy nightmare
for American military forces and American policy in Iraq.
April 2004, 11 months after the President proclaimed the end of major
combat operations in Iraq, has proved to be the deadliest month for
American forces in Iraq since the onset of the war more than a year
ago. Major combat operations may have ended--let me repeat that: major
combat operations may have ended--as President Bush asserted nearly 1
year ago, but major combat casualties have not. The ``Mission
Accomplished'' banner under which President Bush spoke so confidently
on May 1, 2003, has come back to haunt us and to taunt us many times
over.
In the weeks and months leading up to the war, Americans were assured
by President Bush and his cadre of top advisers--most particularly Vice
President Richard Cheney--that we would be greeted as liberators in
Iraq, our path to victory strewn with cheers and flowers. Those
flowers, it now appears, are less like rose petals tossed at the feet
of liberators and more like Eliot's mournful April lilacs--``Lilacs out
of the deadland, mixing Memory and desire, stirring Dull roots with
spring rain.''
April--April--has indeed become the cruelest month. Memory and desire
cannot supplant reality in Iraq. More than 100 American military
personnel have been killed in Iraq so far this month, the highest
number of deaths in a single month since the beginning of the war. In
all, more than 700 American military members have died in Iraq since
the beginning of combat. Today, more than 1 year after the fall of
Baghdad, America's military forces are being greeted in too many
quarters of Iraq, not with flowers--not with flowers, not with
flowers--but with gunfire, not with cheers but with jeers, nor as
liberators but as occupiers--occupiers--oppressors.
In the harsh glare of hindsight, it is now clear that the President's
preconceived notions of the war and the aftermath of the war in Iraq
were profoundly flawed. Even the President's Secretary of Defense--one
of the supreme architects of the war in Iraq--has been forced to admit
that the battle has not gone according to the plan, that the level of
casualties, continuing so long after the fall of Baghdad, was neither
anticipated nor planned for before the invasion.
And yet President Bush refuses to admit any flaws in his grand
strategy to invade Iraq to overthrow the regime of Saddam Hussein
without giving adequate consideration to the potential perils awaiting
America in the seething streets and towns of post-war Iraq. Despite the
fact that debate over the war in Iraq rages worldwide, despite the fact
that the American occupation is reeling from unexpected opposition from
the very people it was intended to liberate, still the President is
hard pressed under questioning to come up with any mistakes that he
might have made in dealing with Iraq. What a sad, sad commentary.
In his press conference last week, President Bush acknowledged
``tough weeks'' in Iraq, but he clung to his oft-repeated assertion
that Iraq is mostly stable, and shrugged off the violence of recent
weeks as the work of a small faction of fanatical ``thugs'' and
terrorists bent on imposing their will over the popular will of Iraq.
In this assessment, I hope and pray that the President is right.
For the sake of America's military families, for the sake of the
mothers and fathers, for the sake of the wives and children who have
had to bear the burden of the increased violence in Iraq, I hope the
President is right.
I hope that Iraq achieves stability and security soon. For while Iraq
and the world may indeed be better off with Saddam Hussein behind bars,
alas--alas--I do not believe that an Iraq in turmoil is either a boon
to the Middle East or an asset to the security of the United States.
Instead of reflecting candidly on the current challenges in Iraq,
President Bush would prefer to focus on his grandiose, grandiloquent
vision for reforming the Middle East. In this he speaks in ideological,
almost messianic, cadences as he paints a picture of Iraq as a central
front not just in the war on terror but also in a battle of Biblical
proportions pitting ``good'' against ``evil.''
President Bush is a man of absolutes. Either we stay the course in
Iraq or we cut and run. Those are the two choices: stay the course or
cut and run. Either we fight terrorists on the streets of Iraq or we
fight them on the streets of New York or Washington, DC. Either we
support President Bush's policies absolutely or we give aid and comfort
to the enemy. Those are the two choices. Do you believe it? I don't.
No, no, no, a thousand times no. Either-or propositions like those
invoked by the President to describe the war in Iraq are nothing more
than politically inspired slogans like last year's ill-advised
``Mission Accomplished'' banner, designed to whip up emotions while
masking the complexity of national security considerations.
Fighting in the streets of Iraq has not prevented terrorists from
striking in Saudi Arabia or Bali or Madrid. Are you with me? And there
is no guarantee--none--that it will prevent them from striking again in
the United States. Just this week, Homeland Security Secretary Tom
Ridge disclosed the formation of a Federal task force to respond to
heightened threats that al-Qaida will strike again in the United
States, sometime before the November election. Significant events,
including the dedication of the World War II Memorial in Washington and
the political conventions in New York and Boston, are among those
viewed as prime targets for a new al-Qaida offensive.
This is the sobering reality. Osama bin Laden remains at large, and
his minions appear to be multiplying, not diminishing. That is
sobering. That ought to curl your hair.
If anything, the war in Iraq has served as a rallying cry for anti-
American and antidemocratic extremists in the Middle East and beyond.
Sadly, given the distraction from the war on terror that the war in
Iraq has proved itself to be, the capture or killing of Osama bin
Laden, when and if it comes, is likely to be an anticlimactic footnote
to a widening and ever more deadly surge in independent national
terrorism. Mark my words.
Despite the often invoked and patently misleading conclusion drawn by
the Bush administration, cutting and running is not the only
alternative to staying the course in Iraq, especially when that course
is fraught with disaster. Altering a flawed and dangerous course of
action, seeking meaningful support from the international community, is
another alternative, one that this President is loathe to acknowledge
but evidently more than willing to embrace in the face of the calamity
that has befallen his own roadmap for Iraq.
For months, I and others have implored the President to return to the
United Nations and to seek a greater role for the U.N. in the
occupation, administration, and reconstruction of Iraq. Hear me. Hear
me. Long before the war, we begged--didn't we? Yes--we begged the
President to seek the support of the United Nations Security Council
before invading Iraq. Were our pleas heeded? No. Our pleas fell upon
deaf ears.
[[Page S4199]]
This administration was confident that it could go it alone. And it
said so, did it not? Yes. It said: If you don't do it, we will. This
administration was confident it could go it alone with only a
threadbare coalition of the willing to paper over its unilateral
action. How hollow that confidence now rings. In the face of disaster,
in the face of mounting doubts among members of the coalition, the
President has now been forced to seek shelter--Help me, Cassius, or I
sink--under the wings of the United Nations. The Iraqis have rejected
every plan for transition of power put forward by the President's
Coalition Provisional Authority. Our only hope left is that they will
embrace a plan put forward by the United Nations, the very body the
United States spurned when the President chose to invade Iraq without
the support of the U.N. Security Council. Irony scarcely begins to
describe the current state of affairs.
The fact is, while espousing hard-line rhetoric and ironclad resolve,
this administration has ducked and bobbed and weaved at every
opportunity. In the administration's ever-shifting explanation for the
war in Iraq, the face of our enemy has ricocheted over the past 12
months from Saddam Hussein and his Republican Guard to disgruntled
Baathist dead-enders to foreign terrorists taking advantage of the
unrest in Iraq to pursue their agenda of jihad to today's vague
assortment of thugs and fanatics opposed to democracy for Iraq.
We hear the refrain. We hear the refrain: Stay the course. Stay the
course. Stay the course. Well, exactly what course is it we are
supposed to be staying in Iraq? Is it to furnish more boys as cannon
fodder? What is meant by stay the course? Is it to furnish more of our
young men and women as cannon fodder to die in the streets of Iraq? Is
that what is meant when we hear the refrain: We shall stay the course,
we must stay the course?
The President failed to explain what that is supposed to mean to the
American people at his press conference. How did we get from protecting
the United States from the threat of weapons of mass destruction to the
vague notion of fighting extremists opposed to democracy in Iraq? The
President failed to explain that fact as well. Where were those
extremists before the invasion? Why is it that they are emerging in
force only now, a full year after the fall of Baghdad? Could it be that
this administration has created America's own worst nightmare because
of its colossal arrogance, its clumsy mistakes, and its painful
misjudgments on virtually every aspect of the war in Iraq?
These are not the questions of an unpatriotic or reckless opposition.
Where are the voices today in this Senate? It is not unpatriotic to ask
questions. It is not unpatriotic to voice opposition to the policies of
this administration. These are not questions intended to demoralize
America or to hearten our enemies. Rather, these are the questions that
a free and open society--the kind of society that the President
envisions for Iraq--is expected to pose of its leaders. These are the
kind of questions that a democratic nation's leader is beholden to
answer. Dogmatic admonitions and grandiose allusions will not suffice.
In a democratic society, the people demand and the people deserve the
simple and unvarnished truth. So do the people's representatives in
Government. They, too, demand, they are entitled to, and they deserve
the simple and unvarnished truth. Congress also demands and deserves
the simple and unvarnished truth from the executive branch.
This is a coequal branch of Government, Mr. Bush. As a coequal branch
of Government, as the body in which the Constitution vests the power of
the purse, Congress requires the truth from the President, from the
executive branch, from the Pentagon, from the Defense Department, from
the State Department, from the White House. This is what makes recent
allegations in Bob Woodward's new book regarding the redirection of
appropriated funds into clandestine appropriations for the war on Iraq
so disturbing, and the American people ought to be disturbed. The
American people ought to ask questions, and their representatives in
this body ought to ask questions. If the President, as alleged in this
book, made the decision to wage war against Iraq and secretly spent
appropriated funds to prepare for that war without prior consultation
with Congress, then the letter of the law, the intent of the law, the
spirit of the law, and the constitutional power of the purse have been
subverted This would be not only a very grave breach of trust on the
part of the executive branch, on the part of the administration, but
also a very grave abuse of power.
Mr. President, I hope with all my heart that Iraq will emerge from
the current chaos to become a free and democratic nation. I hope with
all my heart that the sacrifices that America's military forces have
endured in Iraq will be validated by reality, and not justified merely
on the basis of wishful thinking. The path forward is not yet clear,
but this I know: President Bush led America into a preemptive war that
was neither dictated by circumstances nor driven by events. President
Bush led America into a war of choice, a war that might well have been
avoided with patience and prudence. Would that we could read that
``April is the cruelest month'' without reflecting on the cruel and
terrible toll that the war on Iraq has taken on America's men and women
in uniform in Iraq during this bloody and sorrowful month of April.
It is said in the King James version of the Holy Bible that of those
to whom much is given, much is required. Mr. President, much is
required of this administration and this President with regard to Iraq.
The American people expect answers, the American people expect a
judicious strategy, and the American people expect a well-thought-out
military and diplomatic campaign. On all fronts, the American people
have been let down. A President who wages war and manages the aftermath
of war by the seat of his pants is not what the American people either
expect or deserve. I fear that is what they are seeing in Iraq.
This President, having blundered into this war in Iraq, does not have
much time left to get the stabilization of Iraq right. We have spent
our blood and treasure in Iraq, and it is now time--past time--to
aggressively explore ways in which the burden on Americans can be
mitigated. It is time to abandon the go-it-alone attitude, the go-it-
alone, cocky, arrogant attitude established by this President.
It is time--long past time--for the President to admit to mistakes
made, to forsake his divisive either/or rhetoric, and to seek a way out
of the deepening morass of Iraq with the full partnership of the United
Nations, the region, and the international community.
President Bush needs to drop all pretensions that the war in Iraq and
the battle for stability are going according to plan. Only by accepting
the fact that a bold new direction is needed to untangle the mess in
Iraq can this President extricate the United States from what is fast
becoming a quagmire. It is time for the President to set aside his
pride and to convene an international summit on the future of Iraq,
composed of representatives of the Iraqi people, their Arab neighbors,
NATO, and the United Nations. Then and only then will the Iraqi people
be in a position to chart their own future with the help of the
international community. Then and only then will the United States be
able to relinquish ownership of the tiger that it now holds by the
tail.
America must alter its course in Iraq to deal with the volatile
vacuum left by the fall of Saddam Hussein's regime. America must be
prepared to fight terrorism wherever it rears its ugly head and not be
lulled into the false belief that attacking terrorists overseas will
stop them from attacking America on its homefront. Above all, Americans
must never be cowed into believing that questions are somehow
``unpatriotic'' or that Presidents, even wartime Presidents, are ever
above answering them. And finally, Americans must remember that in this
country there are no kings.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. CORZINE. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
[[Page S4200]]
Mr. CORZINE. Mr. President, I rise today to talk about S. 2290, the
pending bill on asbestos legislation before the Senate. Like many of my
colleagues before me, I also want to express great frustration because
it does not seem as though we are moving the ball down the field on
something that I think a lot of us believe is a very important issue.
It is one that demands to be addressed and looks for a legislative
solution that we are all trying to find.
Among the many issues that I hear about from my constituents, this is
one that very frequently shows up in our discussions and at townhall
meetings. A lot of people have suffered devastating injuries after
exposure to asbestos. Families have lost loved ones. It is a real deal
in people's lives.
I have heard from companies, CEOs, and people who are trying to
manage their company's liabilities, and it is a real problem. Insurance
companies, many of which are headquartered in my State, have spoken
about this issue and my old industry, the financial industry, is
concerned about the penalties and its implications in the capital
markets that are imposing very severe costs on defending companies and
insurers because of the crisis. This is something that we ought to
address.
Unfortunately, our current system is not working, and that is a
reality for those who need it. It is not working for the defendant
companies that want certainty for their business planning. It is not
working for insurance companies that face accelerating claims, and it
is certainly not working for asbestos victims. We need to make sure
those who are truly injured receive the compensation they deserve in a
timely fashion and on a basis that is fair to all involved. It needs to
be done. We need to address it.
Decades of asbestos use and a coverup of its health effects have
resulted in a massive occupational and environmental health crisis. By
the way, we are still having exposure developed by a lot of the imports
that we are now receiving into our Nation, where some of those who
manufacture abroad are not dealing with the issues we have begun to
deal with. It is a real killer, a silent killer, physically but also
emotionally debilitating to many people across America.
Medical costs associated with asbestos-related diseases are
astronomical. They are off the charts. It is not a matter of millions.
It is billions and it is an annual affair and it cries out to be
addressed.
Hundreds of thousands of workers and their family members have
suffered and died from asbestos-related cancer and lung diseases. I
think the number is about 10,000 die each year. Approximately 24
million have been exposed. In my home State of New Jersey, which is an
old manufacturing State, 2,700 people have been killed by asbestos
since 1979, and two of our counties in New Jersey are in the top 10 in
the Nation in those asbestos-related deaths. That is Camden and
Somerset Counties. So this is a real deal for us. We would like to see
this addressed.
We cannot ignore the tragedy of these asbestos deaths and injuries.
We can and we should be able to come up with a workable solution. As I
said, like many of my colleagues, I would like to see a national trust
fund to compensate victims through a no-fault system, ensuring that
those who are most injured receive a just award as quickly as possible.
It should not be going on for 5 or 10 years. I hope we can agree that
we need to focus on paying those who are truly sick and that we must
pay those people fairly.
That is why I was pleased last year when the Judiciary Committee held
bipartisan hearings on the issue, had bipartisan negotiations, and
seemed to be making progress towards arriving at a fair and balanced
solution. Unfortunately, last year the Judiciary Committee reported out
a bill that did not have broad bipartisan support and was not, in my
view at least, balanced in its approach to the issue.
The bill before us has gotten worse. Good amendments that were added
in committee have been dropped, and the size of the fund, frankly, is
at the low end of anyone's expectations of what is appropriate.
I will take a few moments to discuss what I see are some of the most
glaring flaws in the bill that we are debating and reasons, at least
right now as it stands, I cannot support it. First, the size of the
fund is quite simply out of touch with reality. I hear estimates of
anywhere from $100 billion to $300 billion as the cost of settlement
that people would expect for the probability of the associated problems
with asbestos, and we have picked the low end of that number as the
basis on which we are going to deal with it. The bill that was reported
out of committee would have had $153 billion, and we have come up with
$109 billion, absolutely at the very low end of any of the national
estimates, any of the academic estimates of objective outside
observers. We are starting at the wrong place in the negotiation.
In addition to the anemic overall funding, the bill has other
weaknesses. For example, the Hatch substitute deprives victims of
exposure adequate compensation. Awards just remain far too low for many
victims with serious diseases that are an outgrowth of this. Funding
would not pay for victims' medical bills, let alone compensate their
families for any type of hardships.
To give an example, a worker with 15 years of asbestos exposure and
lung cancer would be guaranteed only $25,000 in compensation. I do not
see how that relates to the risk of life that individuals would be
taking in that context.
In another example, victims with asbestos who lose 20 to 40 percent
of breathing capacity or are disabled from work will receive only
$85,000 for lost wages and medical costs. These numbers do not fit the
circumstance. Now, $25,000 barely gets a family of four above the
poverty line, and we are talking about $25,000 and $85,000 in lost
wages and medical costs that accrue to those things. We are not in the
right ballpark.
The pending bill also guts a Biden amendment adopted in the committee
with strong bipartisan support to protect victims' rights in the event
of fund insolvency. It would allow that once the fund was insolvent, if
that $109 billion was not enough, then bring claims back into State
court. That was overwhelmingly supported in committee.
Given the low level of funding in this bill, insolvency obviously is
a problem. I believe it is unfair to ask the victims to give up their
rights to enter into a fund without knowing that fund would have
sufficient assets to cover the claims, and where do they go in those
circumstances. So it is another major problem.
The pending bill would also treat victims with pending claims
unfairly. This one is really hard to swallow. It would wipe out the
claims of more than 300,000 people who have claims pending in the
current system, even those who have already received jury awards.
We are looking back into history and changing history. I don't
understand why, when we have had a judicial process, we have come to a
conclusion or we are even in the process of that, we want to stop,
start all over and move people into another system. It does not strike
me as consistent with a commonsense sense of fairness. If you have an
award, it ought to go through.
In addition, the bill significantly weakens key provisions that would
protect victims without an effective remedy during the transition to a
new system. The bill also lacks transparency with regard to companies
and insurers and how they are going to contribute to the fund and in
what amounts, which makes it difficult to determine whether companies
are paying their fair share.
By the way, there is a lot of hooting and hollering among the
insurance companies. A lot of them oppose this because they don't know
what their deal will be. There is no certainty here, either for the
victims or for a lot of the people who are going to participate here in
funding this trust fund. That doesn't make sense and I think it is a
real problem that also needs to be addressed. We need to amend it.
It also contains a windfall for certain companies. While we are
taking it away from some folks, we are certainly giving it to others.
It contains this windfall with regard to Halliburton, which has an
estimated $4.8 billion in asbestos liability, but would only have to
pay $1.2 billion under the Hatch-Frist bill. Why them? Why are they
getting such a break, particularly after a judgment has already gone
through? It is sort of the reciprocal or the reverse of what we already
were talking
[[Page S4201]]
about with a lot of individuals. They are going to get slammed and
somebody here is going to get the advantage. They are going to apply it
in a way that is very uneven and lacking in balance. That should be
addressed.
This is not a fair and balanced approach to this problem. It is not
fair to the injured victims or the families of those who died, and it
is not fair to companies that want relief from the growing problem, and
it doesn't provide for the certainty and planning I think corporate
America is looking for.
Let me take a moment to discuss what I think is also a misleading
claim by supporters of the bill. This one is actually hard to
understand, how this gets any circulation at all. Unfortunately, this
administration, as a lot of us have talked about on other occasions,
has been weak in the record of creating jobs. I don't have to go
through the litany of 2 million lost jobs, 8.4 million unemployed
Americans, 2.6 million private sector jobs lost. That was the only
period of time, actually, since the Depression an administration has
more than likely overseen a period of decline in job growth in the
country. But somehow we have decided this is a jobs bill; somehow this
is going to create jobs.
There are those who will argue many of the asbestos companies have
been forced into bankruptcy and that cost has seriously damaged the
American economy, particularly as it relates to jobs. The facts don't
meet the description. This is sometimes a fact-free arena. We make
assertions and do not necessarily follow through. But if anybody does
any serious analysis of what goes on in these companies that have gone
through these reorganizations under chapter 11 protection, they will
know they have been able to use this device as a means to manage
through their obligations and they are able to pay out some of their
responsibilities but it has kept their companies going. The truth is,
they have not gone out of business, many of them--most of them. Some
are doing better than ever.
Let's take Halliburton, since I mentioned it once before. Halliburton
has agreed to compensate the innocent victims and companies poisoned
with a settlement of more than $4 billion. That is, of course, unless
we pass this legislation, then only $1.2 billion. In order to pursue
this settlement Halliburton has agreed to put two of its companies into
chapter 11 temporarily until a court approves a trust arrangement to
compensate asbestos victims.
Meanwhile, Halliburton on its own Web site is telling its customers
that it:
. . . will continue in business and will continue to provide
all the excellent services our customers expect from us. In
other words, outside the asbestos and silica settlement, it
will be business as usual.
In what kind of shape are these companies that have chosen chapter 11
reorganization? The answer can be found in a new analysis conducted by
Professor George Benston of Emory of the seven largest asbestos
companies that sought chapter 11 bankruptcy reorganization protection
in 2000 and 2001. This is a real study by someone trying to bring an
objective perspective. Professor Benston studied the asbestos companies
and compared them to companies in their business that did not declare
bankruptcy reorganization in order to determine how successful their
operations would be under the supervision of the bankruptcy court. He
concluded:
On the whole, they essentially have increased or stabilized
their sales, assets, employment, and profitability, and have
projected increases. It is fair to say they are viable and
likely to be increasingly successful companies that should
generate funds to exit bankruptcy significantly stronger than
when they went in.
We are doing this because this is a jobs bill, when it is fair to say
they have increased or stabilized their sales, assets, employment, and
profitability, and have projected increases. Somehow or another,
objective evidence doesn't seem to match with the claims. This is
hardly a jobs bill. The argument falls apart on the surface of it, as
far as I can tell.
So while I am sympathetic to the corporations that generally want to
fulfill their obligations with respect to asbestos victims and
certainly I have an appreciation for their desire for serious financial
planning, if this asbestos bill is the best we can do, the
administration can do, the leadership--Senator Frist and Senator
Hatch--can do to create jobs in our country and address this problem,
then I think we have a lot higher objectives for which we need to set
our standards.
That is why I think we ought to have a full debate. We ought to have
a lot of votes on amendments that will actually address a number of
these problems we talked about. I hope we can get back to those
bipartisan negotiations, away from this floor, where we can talk about
the size of the trust fund, we can talk about some of this ex post
facto analysis about who is benefiting and who is not; where we can
make sure the general awards to victims are actually higher and there
is some serious backstop if the fund doesn't actually have the
resources to be able to deal with these issues.
We sure the heck ought to stop talking about this in a context that
makes no sense in economic reality, that this is a jobs bill. I go back
to this. This is one of those things I think Americans across the board
want to see Congress act on. This is not something that has a
Republican or Democratic label. We want to find a resolution. I want to
find a resolution. We have to do that in a fair and balanced manner. I
thought the Judiciary Committee made a lot of progress on this on the
bill they reported out. That is not what we are working on.
I don't understand why we don't turn the clock back just a little bit
and get on with some of the hard work that was done when we came up
with some of these bipartisan approaches to deal with this very thorny
issue. On the basis of offering a helping hand to many victims and
their families, for companies that need to have stability in their
balance sheet and the ability to make plans for the future, to reduce
the caseload we have in our court system, there are a lot of reasons we
ought to be moving in this area. We are not pulling together, sitting
down and negotiating a transaction formulation of legislation that
makes sense for everybody.
Everyone is going to have to give a little bit, but this is something
that could be done if we wanted to go to work to make it happen. The
will is there. Certainly the demand is there. I think there is a lot of
ground for positive, constructive dialog.
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. NELSON of Nebraska. 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. NELSON of Nebraska. Mr. President, I appreciate this opportunity
to speak today regarding the Fairness in Asbestos Injury Resolution
Act. As debate draws to a close on the motion to proceed to
consideration of this bill, I take a few minutes to express my
appreciation to those who have worked so hard over the past several
years to find a solution to what has become an enormous--and continues
to grow every day--problem. I offer my views as to how this process can
be revived and lead to a satisfactory resolution yet this year.
First, a bit of history will be helpful. Soon after I arrived in the
Senate in 2001, I approached then-Chairman Leahy of the Judiciary
Committee and indicated to him that I thought legislation was necessary
to come up with a solution to compensate asbestos victims; if we worked
on it in an appropriate fashion, it could be passed. I knew the process
would be long and difficult, but I thought it was worth pursuing. If we
did not begin, we would never conclude that solution. Senator Leahy
very graciously agreed and held hearings to explore the feasibility of
this approach.
Following the elections of 2002, Chairman Hatch continued those
efforts and began formulating a legislative proposal. I agreed to
cosponsor that legislation, not because I supported everything in the
bill, but because I believed it would provide an incentive for those
with a major stake in the resolution of this issue to begin discussions
aimed at solutions.
That strategy worked. Discussions began, the major issues were
framed, the Judiciary Committee held 4 long
[[Page S4202]]
days of markup, and a bill was reported out. However, there were
problems with the bill. Still, the process was moving forward.
Sometimes it felt like one step forward, two steps backward. But
stakeholders continued to negotiate.
Senator Specter, to his credit, brought the parties together and
worked on the array of issues other than values and dollar amounts.
That process was also extremely helpful in bringing us to the point
where we are today.
The majority leader has now incorporated a number of the elements of
the Specter-Judge Becker negotiations into the bill before the Senate.
Unfortunately, the bill before the Senate is not complete. It still
lacks a consensus among the major stakeholders. That is why I have
chosen not to cosponsor this substitute amendment when I was asked to
do so. It simply, in my judgment, is not ready. Several major issues
have not been resolved. I don't believe this is a bill that can be
written on the floor of the Senate.
I do believe a solution can still be achieved yet this year if the
leaders will make a renewed commitment to continue the process. With a
very limited time agreement, no more than 2 or 3 weeks at the most, and
with active involvement by leadership, I believe we can reach a
solution. It may inevitably be a solution that is least objectionable,
but at the very least we can arrive at a solution that almost every
stakeholder can accept.
As a matter of information, a constituent of mine by the name of
Warren Buffett--some of you may have heard of him--expressed to me his
view that there probably is not anything more important that the
Congress can do for the economy than to resolve this issue which
continues to overhang our economy. The economic impact is important.
Of course, the most compelling reason to find a solution is not
simply to provide certainty to the economy; it is, in fact, to provide
relief to the many victims of the debilitating and deadly illnesses
caused by asbestos.
I know my colleagues understand the scope of the problem before the
Senate. The suffering of the victims and their families has been
brought home to each of us. We all have many examples of those
unfortunate victims and their situations. But I would like to
personalize it for my colleagues.
When I served as Governor, I had the pleasure of appointing an Omaha
attorney by the name of Mike Amdor to the Nebraska District Court
bench. Mike Amdor was a very good friend. I had known him and his
family for years. His father had gone to law school with my late
father-in-law. I knew his mother when she was alive and worked with his
father in the insurance business.
I appointed him to the Nebraska District Court bench. He was a bright
and vibrant lawyer, and he came to be a trusted and respected jurist.
But more important, he was a consummate family man, a devoted husband,
a father of five young children.
In late 1999, he began to experience serious health problems and was
soon diagnosed with mesothelioma. Despite a courageous and painful
fight with the disease--and it looked at times as though he might be
able to beat the odds and survive--he, unfortunately, passed away on
November 28, 2002. Mike had been exposed to asbestos as a young man
working his way through college and law school. We all know that
virtually the only cause of mesothelioma is exposure to asbestos.
Mike's family pursued legal action against those responsible for his
exposure and obtained a series of settlements totaling $655,000.
However, to date, his widow and five children have realized a total of
$56,463.76 on those judgments. Fifty-six thousand dollars and change:
less than 10 cents on the dollar because the defendants were bankrupt.
Under the terms of the trust fund legislation, which we are debating
and working to achieve, his widow and family could receive $1 million.
Mr. President, I ask unanimous consent to have printed in the Record
the letter which I received yesterday from Judge Mike Amdor's widow.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Omaha, NE
April 20, 2004.
Re Mike Amdor and the Fairness in Asbestos Injury Resolution
Act of 2003, The FAIR Act, (S. 1125) Renumbered S. 2290.
Senator Ben Nelson,
Hart Senate Office Building,
Washington, DC.
Dear Senator Nelson: I am writing to thank you for
sponsoring the Fairness in Asbestos Injury Resolution Act of
2003. Your continued support of this legislation is very
important. As the spouse of a victim of asbestos I have a
personal interest in the success of this bill. There are many
others in the same situation and our numbers will continue to
grow because the onset of many of the effects of asbestos
exposure are not seen for many years.
You are familiar with the illness and death of my husband,
Michael Amdor. Please allow me to give you a short history of
his exposure to asbestos and the subsequent deadly illness he
suffered.
After finishing high school Mike worked at Physician's
Mutual Insurance during the summer of 1965. He worked in the
mailroom while an elevator was being installed through the
existing walls of the building. At this time there were no
existing requirements to contain the asbestos being disturbed
or removed during renovation of existing buildings. In 1971
Mike worked for Northwestern Bell, now Qwest, in downtown
Omaha, NE. He was a computer operator and his job did not
involve using asbestos products. However, the building was
being remodeled during the time he was employed there. The
crews doing the remodeling during the daytime wore some
protective equipment because of the known presence of
asbestos in the area being remodeled. The overnight computer
staff were neither warned of the asbestos nor given any
protection from the particles that were in the air and on the
surfaces of the tables in their lunchroom.
Fast forward to the fall of 1999. Mike and I had been
married almost 30 years. We were raising five children, Erin,
then 20, Diane, 16, Sara, 15, John, 12, and Bennett 10. Mike
was a District Court Judge, and deeply honored that you had
seen fit to appoint him while you were Governor. As the
holidays began, Mike noticed a sudden weight gain and
enlargement of his abdomen. After Christmas it became so
uncomfortable that he went to see our family doctor on
December 30, 1999. The doctor was very alarmed by Mike's
appearance and arranged for him to be admitted to Immanuel
Hospital the next day.
Following 3 weeks of tests by several doctors, we received
the diagnosis of Perotoneal Mesothelioma. The prognosis was
devastating, a 50 percent chance of living another 6 months
and 18 months as the most optimistic life expectancy. Mike
began chemotherapy at the University of Nebraska Medical
Center and we searched for information on this disease.
Virtually all of the information we could find indicated
that the only cause of Mesothelioma is the exposure to
asbestos and that the time between exposure and illness
could be 30 years or longer.
After 6 months of chemotherapy, Mike was stable and we
dared to hope that he would make a complete recovery despite
the dire descriptions we were able to find about this
disease. In June of 2001 the tumors began to grow and Mike
again needed to undergo chemotherapy. This time he did not
respond to the treatments. We sought other options and Mike
entered a Clinical Trial at the National Cancer Institute
(NCI) located in Bethesda MD. He underwent 12 hours of
surgery and intraperitoneal chemotherapy in December of 2001.
After a week in intensive care he began to improve. We were
able to return to Omaha on December 31, 2001. He had been
fighting this disease for 2 years and once again we hoped for
a reprieve from the death sentence he had been given.
Sadly that was not to be. In August of 2002 the disease
again began to progress. Mike underwent weekly procedures to
drain the fluid accumulating in his abdomen and then his
lungs. Additional attempts with chemotherapy were
unsuccessful. Even after he needed supplemental oxygen to
assist his breathing he continued to work at the Court House
nearly every day.
Mike died on November 28, 2002. Nothing will make up for
the loss of his presence in our lives. He had so many things
left undone. Our children had to see the suffering and death
of the most important man in their lives. Only Erin is
through school and living on her own. Diane is a sophomore at
Duquesne University. Sarah is a freshman at Creighton
University. John and Bennett are students at Creighton Prep.
I have lost the love of my life. Few people are lucky enough
to know the joy we found in each other. And few can
understand the loss of such a special person. One of the
first things I ever heard Mike say was my name. His final
word, spoken with his final breath, was my name.
Mike worked at the Court House until 2 days before his
death. He knew he was very close to the end of his time on
earth. He continued to provide justice to others even though
he knew there would be no justice for him in this world. The
Congress alone now has the ability to provide some measure of
justice to the victims of asbestos by providing equitable
financial settlements to them and their families.
I trust you will also support efforts to prevent future
exposure to asbestos by supporting the passage of legislation
to prohibit the use of this deadly material anywhere in the
United States. These measures are needed to insure that no
new victims are exposed to the cause of such deadly diseases.
As he continued to work and receive treatment, Mike
contacted an attorney familiar with asbestos cases. Michael
J. Lehan represented Mike and now myself in efforts to
[[Page S4203]]
seek some compensation for his illness and death resulting
from asbestos exposure.
Mr. Lehan filed a Workers Compensation claim with Qwest and
Physician's Mutual Insurance Company because Mike believed he
had been exposed at both work sites. Before a formal hearing
could be held, Qwest accepted his claim and began paying
Mike's medical bills. After his death I began receiving a
death benefit under this claim.
In addition to the Workers Compensation claim, Mr. Lehan
filed several lawsuits against companies that manufactured or
provided asbestos materials that Mike thought he might have
been exposed to. As a result of these suits, we received
several settlements, which were subject to attorney's fees
and expenses. The first Settlement was from Owens-
Illinois Inc., for $20,000.00. We received $11,633.34. In
March of 2001 Celotex Corporation offered a settlement of
$8,500.00. We received $4,266.00. Eagle Picher Industries
Trust offered a settlement of $6,500.00. This company has
filed bankruptcy and there was very little money for
asbestos claimants. After attorney fees and expenses we
received $3,333.33. Another company in bankruptcy, H.K.
Porter made a settlement of $20,000.00. Because of the
limited assets of the trust the payment value was $920.00,
and we received $563.00.
In March of 2002 AcandS, Inc. made a settlement offer of
$600,000. However, they have filed for bankruptcy and they
are unlikely to pay anymore than the $58,584.00 first payment
they made before filing. We received $36,628.09 from this
settlement. Mr. Lehan has told me that it is unlikely that
much more will be paid of this settlement.
The FAIR Act with the proposed amendments offered after S.
1125 was reported out of Committee last July would assure
compensation for Mesothelioma victims such as Mike and at
this time offers the only hope for any meaningful
compensation for the loss we have suffered.
Many of the companies directly responsible for the asbestos
exposure of Mike and millions of others have either filed for
bankruptcy or found other ways to shelter themselves from
responsibility to their victims. The FAIR Act would provide
compensation for many families and avoid the abuse that
sometimes takes place in our current tort system. Exposure to
asbestos in and of itself will not always result in illness.
When it does there should be resources available to the
victims and their families.
Thank you for taking the time to read this lengthy letter.
Mike was such a just man and had great faith in our systems
of law. No amount of monetary compensation can replace the
loss of Mike and the many thousands of other Mesothelioma
victims, he believed that there would be a way for the system
to insure that his family and others would at least have some
measure of financial security provided by those most
responsible for the continued use of asbestos.
Please let me know if there is any way that I could assist
you in seeing this important legislation enacted into law.
Gratefully,
Cathleen C. Amdor.
Mr. NELSON of Nebraska. Mr. President, it is imperative we get this
resolved. This legislation, unfortunately, is not complete. But it
could be completed, and completed relatively quickly, with the right
approach. And the right approach is to put the stakeholders in a room,
with guidance from the leadership on both sides of the aisle, with a
firm deadline, and with a firm charge to come to a resolution. It can
be done, and, moreover, it should be done.
The judge's case is a tragedy, but it does not stand alone,
unfortunately. There are hundreds, yet thousands, of cases similar to
Mike and Cathy Amdor's. There will be future victims who will not
receive compensation because there will not be anybody left to collect
from. I am committed to the trust fund approach because I believe it
represents the best opportunity for those who are sick, and those who
will become sick, to obtain reasonable compensation for their
suffering. I remain optimistic that it can be done if we demonstrate
the resolve, the determination, to put politics aside and get it done.
We are now on the threshold of floor action on the bill. I urge the
leadership to renew their commitment to a process which I and others on
both sides of the aisle believe can still work. Fair treatment for
thousands of asbestos victims is at stake, and we have come too far to
quit now. We must make the final push to reach consensus.
Again, I commend the hundreds of people who have spent thousands of
hours working towards a solution. Those who have struggled with this
issue have worked in good faith, determined to find the mechanism to
compensate those victims and those who will in the future fall victim
to asbestos. I still believe we can do this, and I know with absolute
certainty, though, that we must.
Mr. President, I appreciate this opportunity to address the body
today. I hope my colleagues will join together in asking our leaders to
work together to come up with a solution that will meet the needs and
will meet the opportunities that this legislation represents. But I
think it has to be other legislation. This legislation is not yet ready
to be passed. But with a very brief period of intense negotiation and
working, with the support of the leaders, I do believe it can be. In
the final analysis, it must be.
Thank you, Mr. President.
The PRESIDING OFFICER (Mr. Cornyn). The Senator from Georgia.
Mr. CHAMBLISS. Mr. President, I rise in support of the motion to
invoke cloture on the asbestos bill. I say to my good friend from
Nebraska, with whom I agree on so many issues, and work so very closely
with, I think this bill is ready because it is a bill we have been
negotiating for months and months and months, and a bill on which great
compromises have been made on both sides of the issue. I do think it is
time we invoke cloture, that we bring this bill to the floor, and that
it be open for whatever amendments may be necessary by those who
disagree with it, but let's have a vote on it.
Asbestos-related bankruptcies have inflicted a staggering toll on the
American workforce. Companies that have declared bankruptcy because of
asbestos-related litigation employed more than 200,000 workers before
their bankruptcies. So far, asbestos-related bankruptcies have led to
the direct loss of as many as 60,000 jobs, while each displaced worker
will lose an average of $25,000 to $50,000 in wages over his or her
career. For example, when Federal Mogul declared bankruptcy in 2001,
employees reportedly lost more than $800 million in their 401(k) plans.
The AFL-CIO has testified before Congress that:
Uncertainty for workers and their families is growing as
they lose health insurance and see their companies file for
bankruptcy protection.
There is no question that the escalating claims and costs are a
threat to workers' jobs and retirement savings. The AFL-CIO further
testified that ``the tort system is damaging business far more than it
is compensating victims'' when it comes to asbestos-related cases.
One economic study found that, considering the multiplying effect of
private investment, failure to enact asbestos legislation could reduce
economic growth by $2.4 billion per year, costing more than 30,000 jobs
annually. Extended over a 27-year timeframe--which is the timeframe of
this bill--this would translate into the loss of more than 800,000 jobs
and $64 billion in economic growth. Another study concluded that
423,000 new jobs will not be created due to asbestos litigation, and
$33 billion in capital investment will not now be made, unless we bring
this bill to the floor and pass this asbestos litigation bill.
Asbestos-related bankruptcies threaten American workers' jobs,
incomes, job-related benefits, and retirement savings. To date,
approximately 70 or more companies--35 since the year 2000--have been
driven into bankruptcy as a result of asbestos litigation. Forty-seven
States have had at least one asbestos-related bankruptcy.
How does this translate into lost jobs? As I have already said, these
bankruptcies have led to the direct loss of at least 60,000 jobs. Many
of the affected companies are highly unionized. If this direct impact
is not bad enough, we have plenty of additional collateral damage from
these lost jobs. It is estimated that for every 10 jobs lost as a
direct result of an asbestos-related bankruptcy, an additional 8 jobs
are lost. Each worker who has lost a job as a result of bankruptcy will
lose an estimated $25,000 to $50,000 in wages because of periods of
unemployment and/or lower wages in subsequent employment. Moreover,
each worker loses, on average, at least 25 percent of the value of
their 401(k) retirement account as a result of their company's
bankruptcy.
While we are on the subject of retirement savings, asbestos-related
bankruptcies have an adverse impact on the retirement savings of
millions of Americans. We have already seen how badly these
bankruptcies impact the retirement savings of individual investors. We
have seen the devastation to employees of bankrupt companies whose
401(k) retirement accounts hold
[[Page S4204]]
their employers' stock. And we have seen the damage to those whose
pension funds have invested in companies driven into bankruptcy as a
result of asbestos-related cases.
All one has to do is look at a couple of examples to get a sense of
the dramatic negative impact that asbestos-related bankruptcies have
had and will continue to have on retirement savings.
Owens Corning stock, 14 percent of which was owned by its employees
in their 401(k) accounts, lost 96 percent of its value, dropping from
$1.8 billion to $75 million in the 2 years before its bankruptcy filing
in October of 2000.
Then there is the example of Federal Mogul. At the time of Federal
Mogul's bankruptcy in October 2001, 22,000 of its employees owned 16
percent of the company's stock, stock that lost 99 percent of its value
or more than $70 million. Between January 1999 and the time of its
bankruptcy, Federal Mogul's market capitalization dropped from $4
billion to only $49 million. And by the way, Federal Mogul never, ever
produced asbestos. It simply acquired a company with asbestos
liability. Federal Mogul's stock, which once traded for more than $70 a
share, now sells for pennies. Company retirees who once had secure
retirement nest eggs must now work minimum wage jobs to survive.
One Federal Mogul retiree told the Detroit News he managed to salvage
most of his retirement savings by selling the company's shares before
the bottom fell out. But unfortunately, his 82-year-old former
colleague was not as fortunate. Because he held on to his Federal Mogul
stock, his $1 million retirement plan evaporated to $22,000. As a
result, this individual now works as a greeter at a Wal-Mart store--a
very credible job, but he didn't take the job because he wanted to meet
people. He simply needed to eat.
The runaway asbestos litigation crisis must be brought to an end. The
economic data we have seen is troubling because it shows that asbestos
litigation creates job losses. American workers and retirees cannot
afford to continue shouldering the weight of Congress's failure to act.
In fact, we create a class of economic victims by our inaction as
companies go into bankruptcy and people lose their jobs.
What I find truly ironic is my colleagues on the other side of the
aisle who have repeatedly stressed the importance of protecting
American jobs want to block us from considering a bill that squarely
addresses this very objective. If protecting American jobs is a
priority, then I strongly urge my Democratic colleagues to rethink
their position on the Frist-Hatch-Miller asbestos bill or at least vote
for cloture on Thursday so we can get an up-or-down vote on the merits
of the bill and in the process we can consider what amendments they
think might be proper.
I have not been one to pound on my former colleagues in the trial
bar. During my 26 years of practicing law, I engaged in plaintiffs'
work as well as defense work, and they are very noble parts of our
great legal profession. This bill is not directed at trial lawyers, as
some have indicated. This bill is directed at two different segments of
our society and our economy. First of all, at those companies who are
now struggling because of the asbestos-related cases facing them; they
are facing bankruptcy if we don't act. We are going to continue to see
the loss of jobs directly attributable to the failure on the part of
this body to act. The second class of folks this bill is directed to
are the victims. Under this bill, the way it is crafted, these victims
don't have to file a lawsuit. They don't have to go through the long,
drawn-out discovery process that is a necessary part of every lawsuit.
They don't have to go through a trial by jury and let a jury of their
peers determine what their compensation ought to be. They are
compensated directly and immediately when their injury is brought
forward.
The fund we establish is a fund that is going to be here forever and
ever. We started out with a demand, as the Presiding Officer knows,
since he is also a member of the Judiciary Committee, from the folks on
the other side of this bill, that we have a trust fund that has $107
billion in it. We resisted that early on. We started out with about an
$86 billion proposal. That $86 billion steadily grew until we not only
got to $107 billion, we exceeded $107 billion. The trust fund that is
set forth in this bill before the Senate today is set at $114 billion.
In addition, we have a 10-percent overage fund that can come into play
if need be, if that $114 billion is exhausted.
Beyond that, even if all of that money is exhausted in asbestos-
related claims, anyone who has a true asbestos-related injury can then
go back to the process that is now in force, the legal system we have.
So nobody stands to lose in the process. The American worker stands to
gain. The injured asbestos victims stand to gain by the passage of this
bill.
I urge my colleagues on Thursday to join those of us who are strong
supporters of the legislation and vote to invoke cloture. Let's bring
the bill to the floor. Let's debate it. And then let's have an up-or-
down vote on the bill. Let's compensate those victims who so badly need
it.
I yield the floor.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. ALLARD. Mr. President, I ask unanimous consent to speak as in
morning business for 10 minutes. I would like to speak about my trip to
Iraq and Afghanistan and welcome home the Bravo Company of Fort Carson,
CO.
The PRESIDING OFFICER. Without objection, it is so ordered.
Thanking the Men and Women in Uniform in Iraq and Afghanistan
Mr. ALLARD. Mr. President, I rise today to share my thoughts with my
colleagues about the courageous heroism being shown by our men and
women in uniform deployed in Iraq and Afghanistan.
On the second day of my visit to Iraq and Afghanistan last month, I
had the opportunity to meet with a staff sergeant who was a reservist
from Denver, CO. Before Operation Iraqi Freedom, he had a great family
life, good-paying job, and much happiness in his life. Yet when
President Bush ordered our men and women in uniform to prepare and
eventually rid Iraq of Saddam Hussein, the staff sergeant's unit, the
324th Tactical PsyOps Company, was mobilized and deployed to Iraq.
When I met with this brave soldier, his unit had been deployed for
over a year in Iraq and was expected to spend at least another 3 months
in the country. Yet to my surprise, this staff sergeant did not
complain about the lengthy deployment, nor did he complain about
missing his family or express any worry about losing his job. Instead,
he spoke of the importance of his mission and how much of a difference
he and the rest of our forces were making in Iraq. He said the United
States did the right thing in liberating Iraq from Saddam's tyranny,
and not a day goes by when at least one Iraqi doesn't thank him
personally for freeing their country.
His only request was for me to contact his wife and thank her for
supporting him, a great sacrifice, over these many months. This was the
least I could do to repay him for his brave service to our Nation.
During that conversation, I could not have been more proud of or more
thankful for our men and women in uniform. Many of these soldiers,
sailors, airmen, and marines are in their early 20s, and some have
never been outside the United States. Others have seen combat before
and are struggling with the long deployment away from their families.
But every soldier I spoke with made it clear they are dedicated to
their mission and committed to defeating extremists that seek to return
that land to a rein of terror.
I am especially proud of those Coloradans who have confronted our
enemies in Iraq and Afghanistan. For example, the Third Armored Cavalry
Regiment from Fort Carson, CO returned after being deployed in one of
the most hostile areas of Iraq for over a year. They fought multiple
battles with extremists and overcame numerous hardships during the
course of their assignment. I commend the Third ACR for their service
and welcome them home.
I would also like to acknowledge the 10th Special Forces Group, also
stationed at Fort Carson, for their ongoing contributions to Operation
Iraqi Freedom. Units from the 10th Special Forces Group continue to
serve in Iraq and continue to make me and the rest of Colorado very
proud.
As we in Colorado celebrate the return of thousands of troops, we
should
[[Page S4205]]
not forget those who lost their lives on the battlefield. More than 50
men who were either from or stationed in Colorado have made the
ultimate sacrifice. The families who have lost loved ones deserve
special honor. Our thoughts and prayers have been with them as we all
remember the sacrifices their sons and daughters have made for the
security of our Nation.
This past weekend, I had the opportunity to welcome home the Bravo
Company of the 244th Engineering Battalion. Bravo Company is stationed
in Fort Collins, CO, and the community's response to these men and
women returning was truly heartening.
Equally as encouraging were the remarks shared to me from the members
of the Bravo Company. These professional soldiers want to succeed in
Iraq, their morale is high, and are proud of the time they devoted to
the reconstruction of Iraq.
The Bravo Company's mission in Iraq was to help provide
infrastructure. This consisted of things such as sanitation facilities,
electric utilities, water utilities, as well as highways. They also
helped in other ways with construction of hospitals and schools during
their deployment. They shared their feelings with me that they felt
they were really serving a need there. They were proud of their
opportunity to serve over in Iraq. Obviously, they were glad to return
home, but many of them were very, very happy about having an
opportunity to serve the country in a valuable way.
The point of emphasis shared with me by these soldiers is that it is
imperative the American people continue to stand firmly behind our
troops deployed overseas. This is not the time for grandstanding by
drawing parallels between this military action and the Vietnam War. In
fact, those distortions run counter to the strong support that the
American public still has for completing the job in Iraq.
This is not an issue of people not supporting our Armed Forces,
because I know that every Member in this body supports our troops,
regardless of personal beliefs about the rationale for Operation Iraqi
Freedom. The issue is our support to stay the course for a struggling
democracy; one that can bring freedom not only to the Iraqis, but
perhaps to the Middle East. The United States will be defined by our
response to the terrorists and despots that want to see Iraq return to
chaos and dictatorship.
The efforts of units like Colorado's 3rd Armored Calvary Regiment,
the 10th Special Forces Group, and 244th Engineering Battalion have
helped to spread freedom and democracy to Iraq after decades of terror.
A free Iraq is a historic opportunity to change the world.
By demonstrating our commitment to not only rid Iraq of terrorists
but also improve the lives of ordinary Iraqis, we show the world that
America is still the torchbearer for liberty. Our soldiers understand
the challenges, and they want Americans to help them face the challenge
and support their efforts.
Meeting these men and women reminded me of a statement that Chairman
of the Joint Chiefs of Staff, General Myers, told the Armed Services
Committee last year. He said that we would win in Iraq as long as we
have the continuing will of the American people. I believe that
Americans still have the will to win, especially the men and women in
uniform who I have met.
Mr. President, I thank you for allowing me the time to praise some of
my brave fellow Coloradans. I will continue to spread the word from the
soldiers that while even in the gravest of situations, they understand
the importance of what the United States is trying to accomplish in
Iraq.
I yield the floor and 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. WARNER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Iraq and Afghanistan
Mr. WARNER. Mr. President, there has been some discussion on the
floor, as there should be, about the very serious situations,
challenging situations that our Nation and other nations fighting
against terrorism and for freedom are facing now in Iraq and
Afghanistan.
In the company of the distinguished senior Senator from Alaska, Mr.
Stevens, and the senior Senator from South Carolina, Mr. Hollings, I
visited those two countries just four weeks ago. Senator Hollings,
Senator Stevens, and I had an opportunity to discuss with the heads of
state and government and our military leaders the situation, and we
also visited with our troops. We visited Jordan. We visited Iraq. We
visited Kuwait. We visited, of course, Pakistan. We went into
Afghanistan, and we came back through Paris where we had, I thought, a
very interesting and lengthy opportunity to discuss our views with
President Chirac of France.
Today I would like to discuss some of these issues that were
discussed on the floor today. I do so by expressing that the past few
weeks have been particularly challenging for the citizens of the United
States of America and, indeed, the citizens of other coalition
countries fighting bravely with us in those theaters of war, namely,
Afghanistan and Iraq.
We are ever mindful the risks our troops face every day and the
sacrifices made by the families and the communities that support them
as those who have been removed from power seek to delay their
inevitable defeat as terrorists lash out against the loss of yet
another haven, both in Afghanistan and in Iraq, where terrorism has
been spawned to spread worldwide.
We mourn every loss of life of these brave men and women in uniform
and salute those who serve and their families for their bravery, their
commitment, and their sacrifice. We are at a critical juncture for the
coalition operations in both of these theaters. The brilliant military
victories achieved by our forces, together with coalition partners,
have presented an opportunity to fully defeat violence and terror in
both Iraq and Afghanistan, nations whose previous rulers had
perpetrated violence and terror on their own populations, neighbors,
and, indeed, the world.
The cycle of violence that has gripped this part of the world must
end if we are to win the global war on terrorism and to make America
and the world a safer place. Deviation from our current course will
only embolden--embolden--those who are intent on causing instability
and anarchy in these regions of the world.
We have achieved extraordinary success in a relatively short period
of time. In Iraq, Saddam Hussein and the threat he posed are gone, and
now he, I think, to the credit of the Iraqi people, is likely to face a
court of law and be judged by his own peers for his frightful
administration over a period of over 30 years in that country and the
hardships he imposed.
We must continue, however, to send a strong message of resolve to the
people of Iraq, to our troops, to our coalition partners, and to the
rest of the world that we, the United States of America, will stay the
course and get the job done. As President Bush stated last week:
Now is the time and Iraq is the place in which the enemies
of the civilized world are testing the will of the civilized
world. We must not waiver.
I take great encouragement by listening to that strong statement. I
have supported the President throughout these operations. As I said, I
recently visited both of those areas, and I have done it three or four
other times. It has been an opportunity for me, as chairman of our
Armed Services Committee, to follow these operations very carefully.
President Bush has set a course that calls for the return of
political sovereignty to the Iraqis on June 30. It is critical that we
end our status as an occupying power and give the Iraqis an increased
stake in what happens in their nation.
I would like to pause on that point. Yesterday, in the course of our
series of hearings before the Armed Services Committee, at which time
we had the benefit of the testimony of the Deputy Secretary of Defense,
Mr. Wolfowitz, and the Chairman of the Joint Chiefs of Staff and Under
Secretary of State for Political Affairs, Ambassador Gross, I raised a
question about the use of the term ``sovereignty.'' I have watched
[[Page S4206]]
carefully as all those in positions of authority have begun to discuss
what takes place on the 30th of June.
It has been referred to, and I do not say this out of disrespect but
just factually, somewhat loosely. People have said we are going to
convey sovereignty, as I have just read from these remarks. Others say
it is a conveyance of power to a new Iraqi interim form of government.
I shall address that later.
In the hearing yesterday, through questioning by myself and other
colleagues, it was clearly established that the security of Iraq must
be maintained by the coalition forces until such time as the Iraqis can
put in place, whether it is police, a national guard, an army, or a
combination of all of those forces, a force such that we can turn over
to them completely the operations that must take place to repel the
insurgents and otherwise maintain security in that country.
The question is, Since that must be maintained and the document that
the Iraqi Governing Council and the Coalition Provisional Authority put
together--the Transitional Administrative Law--specifically states that
the Iraqi security forces, as they come along, will be under the
unified command of a U.S. led multinational force that is authorized by
UN Security Council Resolution 1511. This resolution goes into some
detail with regard to how the security will continue to be maintained
under the auspices of the coalition military leadership. The security
will still emanate from the President of the United States, the Prime
Minister of Great Britain, and others who are now directing, through
their military commanders, the security operation in Iraq. Those forces
are going to stay.
If we look at the pure definition of ``sovereignty,'' one must say:
Wait a minute. The very heart of being a sovereign nation is providing
security of one's borders, of one's internal situation, and security
against anyone attacking one's nation. That is the very heart of what I
believe is sovereignty. But that authority simply does not pass, as I
said, because of the Transitional Administrative Law and related orders
enacted by the Iraqi Governing Council and the Coalition Provisional
Authority, which are the current authority in Iraq, and by United
Nations Security Council Resolution 1511. So I think as we use the term
``sovereignty'' with reference to what passes on June 30, we should be
very careful to say limited sovereignty passes.
A great deal of responsibility will be transferred to this new
entity, but the security function is going to remain under the control
of those I have just described until such time--presumably with the
combined judgment of the coalition forces and the governing body of
Iraq--there is a sequential series of governing bodies that take place,
and until that time we are going to be very active in continuing to
support a security framework so that government can work.
Again, I return to the date of June 30. This date was endorsed by the
U.N. special representative, Mr. Brahimi. Mr. Brahimi and the U.N. are
playing an important and growing role in this transition of the
government and will continue to play a critical role, hopefully, in
helping Iraq on its path to democracy.
The President's appointment earlier this week of the trusted
international statesman and current U.S. Ambassador to the U.N., John
Negroponte, as the first U.S. Ambassador to a free and democratic Iraq
is another important step in the process. I have known Mr. Negroponte
for a number of years, and I have the highest regard for his
professional capabilities and his character.
Continued U.S. commitment to the June 30 transition date is of
enormous importance to the Iraqi people and to the region, for it will
be the day Iraq takes its place in the community of free nations and
the day Iraqis assume responsibility for their future. A free,
democratic Iraq means defeat for the forces of terrorism and
instability in Iraq.
Clearly, the recent surge of violence in Iraq is related to the
imminent transfer of sovereignty. Those who fear democracy are trying
to delay its arrival. Those who incite terror realize their days are
numbered. Opponents of a free and democratic Iraq are desperate and
will become even more desperate, we all fear--at least I do, and I
think some others--in the weeks to come until June 30.
It is my hope, but I certainly do not want to raise expectations, but
I do have a hope that once the realization, after June 30, settles in
among the Iraqi people that at long last the first of a series of steps
to give them total sovereignty is occurring, that 80 to 90 percent of
Iraqi citizens want this program to succeed and the coalition forces to
finish their work. Those people will help us in establishing a greater
degree of security in Iraq.
We must be prepared, however, for such violence as does continue to
occur between now and June 30 and afterwards. There is not going to be
a cliff, an abrupt drop-off. It is likely to continue for a period of
time, but our coalition forces are resolute to maintain that security.
Some greater detail was shared with this body by the Deputy Secretary
of Defense and the Under Secretary of State yesterday during our
hearing outlining these first steps towards democracy, including:
formation of an Iraqi Interim Government, with the assistance of the
U.N., and extensive consultation with the Iraqi people, to accept
limited sovereignty on June 30, 2004; the organization of elections for
a representative national assembly and transitional government, to be
held no later than January 31, 2005; the drafting and ratification of a
constitution by October 2005; and, elections and formation of a
constitutional Iraqi government by the end of December 2005. During
this interim and transitional period, considerable effort will be made
by U.S. and coalition forces to select, train, equip and mentor the
various components of the Iraqi security forces, so as to be able to
assume increasing responsibility for the internal security and external
defense of Iraq.
This is a good plan--a realistic plan--that has received the support
of Ambassador Brahimi, the special representative of the U.N. Secretary
General, Kofi Annan. This plan, and what additional support may be
required from the U.N., are the subject of ongoing discussions at the
U.N.
Lasting peace and security in Iraq and Afghanistan will be achieved
when we establish the conditions for democratic, economically viable
nations. The first steps to democracy have been taken and new
governments are, or soon will be, preparing to assume the
responsibilities and challenges of freedom and democracy. These new
governments will need the continued support and commitment of the
Congress, the American people, and the international community. Their
success will stand as a beacon of hope to others in the region and
around the world, and as a harbinger of defeat for the forces of
violence and terror.
I yield the floor, and 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. KENNEDY. I ask unanimous consent the order for the quorum call be
rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Mr. President, all of us believe that the current system
for compensating asbestos victims is not working well and that
legislation creating a fairer, more effective process is needed.
However, this bill, S. 2290, is not that legislation. In its current
form, it does not create a system which will fairly and reliably
compensate seriously ill victims of asbestos exposure.
This is not a balanced approach to the asbestos problem which comes
from negotiations between business and labor. The bill reads as if it
was dictated by the defendants solely for the benefit of the
defendants. In fact, there have been no serious negotiations for months
on the central issues fair levels of compensation for seriously ill
workers, and adequate funding for the asbestos trust to make sure that
injured workers actually receive what they are promised.
The only issue on which any progress has been made is the
administrative structure of the compensation program. Senator Specter
deserves great credit for convening a series of discussions on this
topic involving both labor and business. However, as long as the
compensation values are unreasonably low and the amount of money in the
[[Page S4207]]
trust is grossly inadequate, improving the way in which that money is
distributed to individual victims cannot make an otherwise bad bill
acceptable.
Since the Judiciary Committee voted out a bill in July, the process
has moved backward, not forward. While I had serious objections to the
committee-passed bill, the Frist bill is much worse. It reduces the
funding level of the asbestos trust by more than $40 billion dollars--
$153 billion in the committee bill versus $109 billion in the Frist
bill. They stripped out the major improvements we made in committee the
two Feinstein amendments and the Biden amendment. They made a mockery
of the committee process.
The bill before us does not reflect what is necessary to compensate
the enormous number of workers who suffer from asbestos-induced
disease, it reflects only what the companies who made them sick are
willing to pay.
The Republican sponsors of this bill are insisting on compensation
levels which are far below what these seriously ill workers deserve,
and less than what they are receiving, on average, under current law.
These are people whose health has been destroyed and, in many cases,
whose lives have been substantially shortened, by asbestos induced
disease. Shortchanging them would be extraordinarily cruel.
There is also no adequate guarantee in the legislation that
sufficient funds will be available to fully pay all injured workers who
are eligible to collect, even at the low levels of compensation in the
bill. For injured workers and their families, this proposal is clearly
worse than the current system.
The real crisis which confronts us is not an asbestos litigation
crisis, it is an asbestos-induced disease crisis. Asbestos is the most
lethal substance ever widely used in the workplace. Between 1940 and
1980, there were 27.5 million workers in this country who were exposed
to asbestos on the job, and nearly 19 million of them had high levels
of exposure over long periods of time. That exposure changed many of
their lives. Each year, more than 10,000 of them die from lung cancer
and other diseases caused by asbestos. Each year, hundreds of thousands
of them suffer from lung conditions which make breathing so difficult
that they cannot engage in the routine activities of daily life. Even
more have become unemployable due to their medical condition. And,
because of the long latency period of these diseases, all of them live
with fear of a premature death due to asbestos-induced disease. These
are the real victims. They deserve to be the first and foremost focus
of our concern.
All too often, the tragedy these workers and their families are
enduring becomes lost in a complex debate about the economic impact of
asbestos litigation. We cannot allow that to happen. The litigation did
not create these costs. Exposure to asbestos created them. They are the
costs of medical care, the lost wages of incapacitated workers, and the
cost of providing for the families of workers who died years before
their time. Those costs are real. No legislative proposal can make them
disappear. All legislation can do is shift those costs from one party
to another.
Any proposal which would have the effect of shifting more of the
financial burden onto the backs of injured workers is unacceptable to
me, and I would hope that it would be unacceptable to every one of us.
The key test of any legislative proposal on asbestos claims is whether,
by reducing transaction costs, it will put more money into the pockets
of seriously injured workers and their families than they are receiving
under the current system. That should be our goal.
I believe that a properly designed trust fund to compensate workers
suffering with asbestos-induced disease can move us toward that goal.
To do so, it must use inclusive medical criteria which cover all
workers who have sustained real injuries, it must provide fair levels
of compensation for all workers who have been injured, and it must
guarantee that all injured workers who qualify will receive full
compensation on a timely basis. At best, this legislation satisfies
only one of these three criteria.
Any proposal which would merely create one new large underfunded
trust in place of the many smaller underfunded bankruptcy trusts which
exist today is unacceptable. Injured workers need certainty even more
than businesses and insurers.
One basic test of fairness is how a compensation system treats the
most seriously injured victims. S. 2290 fails this test miserably.
Those who meet the medical criteria for the most serious illnesses
would still not be fairly compensated.
Mesothelioma is a horrible disease which is usually fatal. There is
no question that it is caused by asbestos exposure. In the current
system, mesothelioma victims often receive multi-million dollar
settlements. This bill will limit them to much less.
The gravest injustice done by the bill is to lung cancer victims. We
all understand how devastating lung cancer can be. The issue with lung
cancer is causation. If a worker had substantial asbestos exposure and
was a non-smoker, his primary lung cancer was almost certainly caused
by asbestos. Yet the bill would pay these victims as little as
$225,000. In many instances, that will not even cover their medical
expenses. They are currently receiving much higher judgments in the
courts, and fairness requires far more compensation for their life
threatening diseases than this bill offers.
If the worker smoked--and unfortunately most of these workers did--
the combination of tobacco and asbestos exposure dramatically increases
the likelihood of contracting lung cancer.
Workers who smoke and have been exposed to asbestos are over four
times more likely to get lung cancer than smokers with no asbestos
exposure. Asbestos is clearly a major contributor to their lung
cancers. Yet, this bill would give them next to nothing. Under the
terms of this bill, they would receive between $25,000 to $75,000. That
is outrageous. These victims, who must have at least 15 weighted years
of asbestos exposure, deserve much more--they deserve a level of
compensation that reflects the reality of their conditions and their
families' needs.
Even when the worker's lungs show specific evidence of asbestos
disease, raising the probability that the asbestos exposure
significantly contributed to the lung cancer to a virtual certainty,
the legislation would pay them as little as $150,000. That is
incredibly low. These lung cancer victims have literally had their
lives shattered by asbestos. They must be fairly compensated in any
legitimate national trust proposal. They are not in the Frist proposal.
To make matters even worse, the legislation would actually allow
workers' compensation and health insurance companies to seek
reimbursement out of the meager amounts these seriously ill workers
receive from the asbestos trust. Thus, the worker and his family may
literally end up with nothing despite his undeniable injuries. At the
very least, the bill should protect the compensation paid to a worker
by the trust from subrogation claims.
Proponents of this bill argue that in the tort system too much money
is going to victims who are not really impaired and not enough is going
to those who are truly sick. But their self-proclaimed concern for the
truly sick certainly is not reflected in this bill. Lung cancer victims
are ``truly sick'' by anyone's definition. In fact, a large percentage
of them will have their lives cut short by this disease. Yet even in
these cases, the most compelling cases, S. 2290 provides grossly
inadequate compensation. I am deeply troubled by the way this
legislation treats even the sickest of the sick.
Not only does this bill not provide adequate levels of compensation,
but it does not even contain sufficient funding to pay the compensation
levels contained in the bill. According to a CBO analysis, it is
underfunded by over $25 billion dollars. CBO's cost estimate is $140
billion.
Furthermore, there is no guarantee that this bill will raise even the
$109 billion which the sponsors say is necessary. The bill establishes
contribution tiers for defendant corporations of various sizes and
asbestos histories. However, the Senate has no hard information about
the number of companies which will fall in each tier. Thus, the
aggregate amount which will be raised to fund the asbestos trust is
highly speculative. Under the proposed funding plan--some
corporations--such as Halliburton and WR Grace--can escape
accountability for their wrong-doing by paying only a small percentage
of
[[Page S4208]]
the amounts they are currently responsible to pay. As long as companies
such as Halliburton and Grace are permitted to pay billions of dollars
less than their fair share, it will be extremely difficult--if not
impossible--to fund the trust at a level sufficient to fairly
compensate those who have been poisoned by asbestos.
Similarly, the manner of determining the amount that individual
insurers and reinsurers will contribute to the trust is also
questionable. It appears to unfairly benefit some companies at the
expense of others. The way it has been structured, it may actually
create unintended legal obstacles to the expeditious payment of
billions of dollars into the trust by reinsurers with the largest
asbestos exposure.
These funding concerns seriously jeopardize the financial viability
of the trust and its capacity to compensate injured workers in the
manner promised. In fact, there is no guarantee that the dollars will
be there to fully pay all eligible victims what the legislation
promises they will receive.
If the asbestos trust does become insolvent, workers will have to
wait years before they can return to the tort system. Under the Biden
amendment adopted by the Judiciary Committee, if the trust was unable
to fully pay claims in a timely manner, injured workers would
immediately regain their right to seek compensation in the courts.
Unfortunately, that right--so essential to fundamental fairness--has
been removed in the Frist bill. Victims will have to wait as long as 7
years after the trust becomes insolvent before they can take their
claim to court. Many of them will be dead by then. And, if they do
return to court, the workers will not have the same rights that they do
today. Under the Frist bill, seriously ill workers can find themselves
in an intolerable legal limbo through no fault of their own. All of us
should find that unacceptable.
The danger that the asbestos trust, as structured in this
legislation, will be unable to meet its financial obligations to the
victims is very real. There is a serious risk of a substantial
shortfall in the early years, when nearly 300,000 pending cases will be
transferred to the newly created national trust for payment. The trust
may not have the resources to pay those claims in a timely manner.
Payments to critically ill people may be delayed for years, and the
trust itself may become insolvent.
The best way to reduce the enormous financial burden on the trust in
the early years would be to leave many of those pending cases in the
tort system, especially cases which were close to resolution. That
would be fair to the parties in those cases and it would greatly
improve the financial viability of the trust. Unfortunately, the Frist
bill would do just the opposite. It fails to respect stare decisis even
in cases where substantial judicial determinations have already been
made. In many cases, it would actually abrogate jury verdicts and
existing settlements, requiring the injured workers to start from
scratch. That is terribly unfair. It will also greatly increase the
burden on the asbestos trust.
Unfortunately, there is so much wrong with this legislation that I
could literally discuss the shortfalls for hours. However, that would
serve no purpose. Clearly, the issues are too complex and too
interrelated to fix in a few days on the Senate floor. For that reason,
the Senate should reject the motion to proceed to S. 2209 and send the
parties back to the drawing board. The only way to produce an
acceptable bill is to seriously address the legitimate concerns of
injured workers as well as the concerns of the corporate defendants.
The Frist bill clearly fails that test. It is not a bill which
reduces the high transaction costs in the current system, and thus puts
more money in the pockets of injured workers while reducing the costs
to businesses and their insurers. That would be a real solution.
It is a bill which merely shifts more of the financial burden of
asbestos-induced disease to the injured workers by unfairly and
arbitrarily limiting the liability of defendants. Sick workers would
receive lower levels of compensation than they receive on average in
the current system, and payment of even those lower levels of
compensation would not be guaranteed. That is no solution at all.
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. HATCH. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Ms. Collins). Without objection, it is so
ordered.
Mr. HATCH. Madam President, I ask unanimous consent that immediately
following the distinguished Senator from Connecticut, I be permitted to
speak.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Connecticut.
Mr. DODD. Madam President, what is the business before the Senate?
The PRESIDING OFFICER. The pending business is the motion to proceed
to S. 2290.
Education
Mr. DODD. Madam President, I want to take a few minutes and talk
about an issue off the pending matter, if I may, before the Senate.
While it may not be germane to the subject matter before the Senate,
the matter I want to talk about is extremely germane to the American
public and what they are interested in. That is education. I
particularly want to focus for a few minutes on higher education.
We are now coming into the months of April and May when students will
be wrapping up their academic year and taking exams. Those who are in
their last year will be graduating and going out into the private
sector or graduate school.
As we focus on graduation and the termination of an academic year, I
think it is important to take stock of the financial availability of
most students to access higher education in this country, and what we
are doing about it as we conclude this academic year. It is also
important to ask what will be available next year to students who are
either starting higher education or are continuing their higher
education.
What are the economic challenges these individuals and their families
face as it relates to affording college? I want to spend a couple of
minutes describing what the present situation is as it relates to
college cost, how important it is to have access to college, and where
we are today in our ability to try to make college more accessible and
more affordable.
In the 21st century we must have the best educated and best prepared
generation of Americans we have ever produced if we are going to be
highly competitive in a global marketplace and have a growing and
expanding economy to produce goods and services of increasing value;
that is, more technology and more sophistication to offer the 95
percent of the population which lives outside the United States all
over this globe.
We have seen tuition and fees at public colleges and universities go
up 26 percent over the last 38 months. Since President Bush took office
on January 20 of 2001, tuition and fees at public colleges and
universities has gone up more than 25 percent--close to 26 percent in
38 months.
Last year alone, on average, tuition at a public university rose 14
percent, and over 10 percent in my own State of Connecticut. The
average total cost of attending a public 4-year college is now over
$9,000, and for private colleges the average cost is $24,000.
As tuition rates increase, so does the portion of a family's income
needed to pay tuition. On average, 29 percent of a family's income goes
toward public university tuition and 41 percent goes toward private
university tuition. Just think about that: almost 30 percent of a
family's income paying a public college tuition and more than 40
percent to go to a private university or college. In comparison, a
family's mortgage payment represents 32 percent of annual income.
Education is now eating up more of a family budget than a home
mortgage--the largest single investment most families ever make is
owning their own home.
It is estimated that approximately 200,000 college-ready high school
graduates will not pursue higher education this year because they do
not have the resources to do it and don't have access to the various
programs that may provide them some assistance.
Apart from initial affordability, students also often graduate with
huge
[[Page S4209]]
amounts of debt. In Connecticut, the average student graduates in 4
years $15,000 in debt. The numbers are rather clear.
We are seeing a tremendous economic burden growing with each and
every passing year, for families and individuals who wish to go on and
get that absolutely critical higher education they need and we need
them to have.
Pell grants are such a great cornerstone of the Federal financial aid
system, but they are shrinking in value. Pell grants originally covered
80 percent of the cost of attending a public university. Today, at
$4,050, they cover only 30 percent; and at a 4-year private college, 16
percent. Imagine that, from 80 percent down to 34 percent.
The maximum Pell amount remains stagnant at a time when tuition is
going up, people are losing jobs and extra income, and when higher
education is increasingly the ticket to a better life not only for the
students but for us, as well.
Today, the average low-income student has an annual unmet need of
almost $4,000 in college expenses, costs not covered by grants, loans,
work, or family savings. These are the students that an increase in the
Pell grant would most directly help.
What are we doing about this? The President's budget is clearly not
in the best interest, at all, of serving this critical need that, by
all accounts, we admit is necessary. I don't know of anyone who does
not go back to their respective States and talk about the importance of
education, the importance particularly of higher education, that people
have the ability to earn that degree.
I am sure every one of my colleagues has said exactly the words I am
about to share, or something similar: No one ought to be denied a
higher education because they lack the financial resources. It goes to
the depth of a person's drive, the depth of their character, the depth
of their ambition. It ought not be the depth of their parents' or their
pockets that determines whether someone can have access to a higher
education. I am sure we all feel that way.
Mr. KENNEDY. Would the Senator be good enough to yield?
Mr. DODD. I am happy to yield to my colleague.
Mr. KENNEDY. The Senator has appropriately pointed out the explosion
of increased costs of tuition for the sons and daughters of middle-
income families. This is basically a middle America working-class
family issue. As the Senator has pointed out so well and so eloquently,
it is at the heart of the hopes and dreams of every family in this
country.
I am sure the Senator would agree with me, when we talk about
education, we are not only talking about a better educated society; we
are talking about individuals who are going to be the stewards of our
democratic institutions and also the individuals who are going to be
able to lead this country in terms of the international global economy
and beyond that; individuals who are going to be able to be in the
Armed Forces of this country.
The Senator is mentioning the increases in tuition. The Senator
pointed out the costs to families: in many families, the children
cannot go to college. And if they are able to go, they experience
increased debt.
I understand the Advisory Committee on Student Financial Assistance
has said as a result of the increase in tuition, there are almost
200,000 young individuals, young men and women, sons of working class
families in this country, who effectively have been priced out of the
opportunity to continue in higher education. And reports point out the
enormous increase in indebtedness of even those who are going to
schools. We know that over the last 10 years, indebtedness has actually
almost doubled. The average debt families have when they graduate is
some $17,000.
I am wondering if the Senator remembers that it was a few weeks ago
the Senate passed a $2.4 trillion budget. We had an opportunity to
provide a helping hand to students in this country who come from
working families, by increasing the Pell grants for the young people in
this country. It was the judgment and the decision of this body and the
Republican administration, the Bush administration, to effectively say
no, we will not increase the Pell grants, in spite of the fact--I know
the Senator remembers this--that this President, when he ran for the
Presidency of the United States, said in the final days of the campaign
in the State of New Hampshire, that he was committed to increasing the
Pell grants to $5,100. He said, in the State of New Hampshire on August
thirtieth, in the year 2000: Pell grants significantly affect the
ability of a child to stay in college or to stay in school. The future
of a child eligible for a Pell grant will be affected by the size of
the Pell grant. I am going to ask Congress to bolster first year aid
from $3,300 to $5,100.
Does the Senator from Connecticut remember when we had an opportunity
to do something about helping middle-class families in this country, to
provide some help and assistance to them, to ease the burden of the
increase in tuition, whether there was any effort from the Republican
side to increase the Pell grants to provide this important help and
assistance to these qualified young students who are seeking to
continue their education?
Mr. DODD. In response to my colleague, I very clearly remember
supporting the senior Senator from Massachusetts and his amendment that
would have increased the higher education budget, including, obviously,
an increase in the Pell grants to meet exactly what the commitment of
the President had been on this subject matter. We were unable to get
that.
It is important to point out to people the effects. We have now had a
freeze in Pell grants over the last 3 years, despite the President's
campaign promise to raise them. I mentioned earlier that a Pell grant
now pays about 34 percent of the cost of public higher education. It
was at 80 percent when it was originally passed.
Let me also state what shrinking resources and rising costs have
done. My colleague from Massachusetts has pointed out that the average
student now finishes college in excess of $17,000 debt. As a result of
freezing the Pell grant over the last 3 years, and the administration's
proposal to raise freshman loan limits, we are now told that student
debt could increase nationally by almost $5 billion. If we take student
debt, that will now grow as a result of not having Pell grants trying
to keep some pace with the increased cost of education, if students
have to take out more loans, we will have student debt amount to $5
billion more nationally than presently is the case.
The President's budget also froze funding for work-study programs in
addition to Pell grants. We watched, over the last 38 months, tuition
costs go up at public universities 26 percent. Costs go up and the
President's budget says: No, no, I am not going to give you a nickel
more for Pell grants. Freeze work-study. Freeze Pell grants. Not a
penny more for higher education despite costs going up and here is $5
billion more debt to shoulder as you leave higher education to go out
and try to get a job, get into the workforce, raise a family.
I don't know of anyone who believes that is a sound investment in the
21st century. I thank my colleague for raising those points.
Mr. KENNEDY. Does the Senator agree with me that at one time we, as a
nation, made a commitment to every child in this country that if they
were qualified to get into any institution of higher learning based
upon their academic standing, a series of grants and loans would be
available to them so they would be able to go to the school, the
college to which they were admitted?
We saw over the period of time going back to the 1970s, going back to
the time this whole program, the Pell grants and the Stafford loans
were established, a balance between grants and loans so young people of
talent could go to the schools and universities to which they were
admitted.
Now if I could direct the attention of the Senator from Connecticut,
what we have seen is a complete abdication of that commitment in the
fact of the declining purchasing power of the Pell grants, and in the
reduction of the Work-Study Program. Fundamentally we are saying to the
young people, and particularly to their parents: You are on your own.
Go on out there and borrow, and pay a good deal for that additional $5
billion you will borrow. And
[[Page S4210]]
there is just going to be paying the interest and indebtedness for
those young people in the years ahead.
Would the Senator be good enough to indicate whether he agrees with
me, that the whole pattern in the recent years under Republican
leadership has been to reduce the purchasing power, the value of the
Pell grant, and to require the students to borrow a good deal more,
which has meant an increase in indebtedness to these students? And
would he not agree with me, when you visit schools and colleges and you
meet with these young people around recess time or lunchtime, they are
talking about their loans rather than talking about their books?
Mr. DODD. Madam President, the Senator, again, is exactly correct. As
I noted earlier, we are talking about families who are middle-income
families, who are lower middle-income families who are out there
struggling to make ends meet. As I pointed out, the increased cost of a
public education, as well as a private education, in 38 months has gone
through the ceiling, outpacing the cost of anything else. Inflation has
been relatively flat in the last number of months with the economy
where it is. But yet in the midst of all that, we have seen a 26-
percent increase in the cost of going to a private college or
university, and a 14-percent increase to go to a public institution.
So we have seen this tremendous increase in a family's income going
toward education and tuition. As I pointed out earlier, 29 percent of a
family's income goes to pay for public university tuition; 41 percent
goes to pay for private university tuition.
The debt these kids are faced with, their families are faced with, is
an additional strain on families who are already paying so much to see
to it their kids can get the education they need. And we know so
clearly the importance of education. You find yourself almost wondering
why you have to say this. I don't know of anyone who believes that for
a single second this country's ability to maintain itself in a
leadership position economically and politically can be sustained
without the proper education. Thomas Jefferson said, 200 years ago this
year, in 1804, any nation that ever expects to be ignorant and free
expects what never was and what never possibly could be.
If you believe that had validity in 1804, you certainly must believe
that in 2004 it has even more validity, not only in terms of embracing
and supporting our constitutional principles, but also as to the
importance of being able to get the education to produce the goods and
services of high value which 5 percent of the world's population, which
lives in this country, will be able to market to the 95 percent of the
world's population which lives outside this country.
Anyone who believes for a single second that you can deny 200,000
young people, as you will this year--almost a quarter of a million
young people--the opportunity to go on to higher education because we
cannot come up with a few extra bucks to put into a Pell Grant Program
or a Work-Study Program--if you think America benefits from that, then
you are deluding yourself. This will be the first generation where the
older generation is actually cutting back on its commitments in its
attempts to provide access to higher education for people in this
country.
I hope in the coming days as we move through the appropriations
process and the like, our colleagues will find it possible to break
this freezing of the budgets to make it possible for students who are
completing this academic year and thinking about next year, or thinking
about graduate school, or leaving high school and wanting to go on to
college--that the Congress of the United States, the President of the
United States, would stand up and say: We are going to do what we can.
We are going to meet that promise I made in New Hampshire in the fall
of 2000 when I promised I would increase Pell grants to more than
$5,000 per child. I am going to meet that promise before this term is
over.
My hope is we will achieve that particular result.
I see my colleague from Rhode Island.
Mr. REED. Will the Senator yield for a question?
Mr. DODD. Yes.
Mr. REED. Mr. President, I say to the Senator, you were speaking
about increasing the Pell grant, which strikes a chord with me. Senator
Pell was my predecessor, the architect of this great program. I am sure
you are aware, but if you can confirm this awareness, the Pell Grant
program has a $3.7 billion shortfall because of an increase in the
number of students who have qualified for the Pell grant since our
economy has not produced jobs over the last several years and has been
dead in the water until very recently. We, in our budget, included the
$3.7 billion, but I am told this funding might be in jeopardy in the
conference, which would be a grievous blow to the Pell Grant Program in
addition to what you have described. Are you aware of this difficulty?
Mr. DODD. Madam President, I thank my colleague from Rhode Island. He
very appropriately points out he succeeded Claiborne Pell, whom the
Senator from Massachusetts and I had the great privilege of serving
with. The Senator from Rhode Island knows the wonderful contribution he
made to millions of young Americans, Americans of all ages, but
particularly young Americans.
I was not aware of what my colleague from Rhode Island told me. I
think that is extremely important information. I would hope, as I am
sure he does, the conferees and the American public would let conferees
and the leadership here in Congress know this shortfall must not be
allowed to exist if we are going to have any hope at all of meeting
some of the obligations we have.
I might ask my colleague from Rhode Island, give us some indication
how that is working now. Does he believe that is going to be the case?
And what would be the implications of that?
Mr. NICKLES. Regular order.
Mr. DODD. Madam President, I believe the Senator has the floor.
The PRESIDING OFFICER. The Senator from Connecticut may yield only
for a question.
Mr. DODD. Madam President, I am responding to a question. Without
yielding my right to the floor, I am asking my colleague from Rhode
Island to respond to a question.
Mr. REED. Will my colleague yield for another question?
Mr. DODD. Yes.
Mr. REED. First, the Pell Grant Program is in jeopardy because of its
low funding levels. As you and Senator Kennedy have pointed out so
accurately, the maximum award has not been raised, contrary to the
President's promise. In addition, the $3.7 billion shortfall exists
today. We have taken a step on our side to remedy the shortfall, but it
is unclear what the other side and the conferees will do. So that is
another detriment to the Pell Grant Program.
But I will ask a final question of the Senator. The President's
budget not only inadequately funds the Pell Grant Program, but it
eliminates the LEAP Program--Leveraging Educational Assistance
Partnerships--a collaboration between the State and Federal governments
to provide need-based grants to low-income students.
The President's budget also zeroes out funds for the Perkins Loan
Capital Contributions, which provides low-interest loans to millions of
low-income college students.
Additionally, the President's budget fails to increase funding for
the campus-based programs, Supplemental Educational Opportunity Grants
and Federal Work-Study, as well as the early awareness programs, TRIO
and GEAR UP.
I again inquire whether the Senator is aware that in addition to the
blows that have been taken to the Pell Grant Program, so many other
Federal programs that aid particularly low-income Americans are not
being adequately funded. I think that goes directly to your point, I
say to the Senator, that 200,000 young Americans with talent, ambition,
and drive are unable to go to college because we are not providing the
resources.
Mr. DODD. Again, Madam President, I am very grateful to my colleague
from Rhode Island for pointing out matters I had not addressed; that
is, these other areas of higher education.
This is an assault on higher education. But more importantly, it is
an assault on young people in this country who are going to provide the
well-being. I always like to point out this
[[Page S4211]]
Nation historically, even during times of our most significant crises,
has found a time and a place to support higher education. I have often
pointed out one of the first acts of Congress in 1789, as we were still
struggling to get on our feet, was the Northwest Ordinance, which set
aside lands for education. It was a rather remarkable accomplishment.
Think of all the things the first Congress had to deal with. Education
was one of the top priorities on their list.
Then right in the middle of the Civil War--imagine the country
divided, wondering whether we would survive as a nation--the Congress
of the United States passed something called the Morrill Act, which was
the land grant colleges. I believe the University of Rhode Island--I
know the University of Connecticut got started as a land grant college,
and I know colleges all across this country got their start because of
the Morrill Act. Congress found the money during the great Civil War to
fund higher education.
Even before the end of World War II, before the defeat of nazism and
the Japanese empire, the Congress passed the GI Bill. And think, if you
will, of the investment made in those years, coming off the war years,
and how we have benefitted, when you consider a generation of Americans
which was able to get an education and go on, and how we have been paid
back a thousandfold by the contributions of a generation of young
Americans who fought in World War II, who were able to get an
education, and then provide the kind of innovation and creativity and
jobs and incomes that has helped us grow to the great Nation we are in
terms of economic strength.
So there was the Northwest Ordinance, the Morrill Act, the GI bill,
generations that understood the importance of investing in education.
Here we are in the 21st century, we have a President that not only
doesn't have an idea about how to increase resources for higher
education, he wants to cut back on what we have. How do you explain
that to the American people when we are trying to increase the
opportunities for higher education?
I thank my colleagues.
Mr. KENNEDY. Madam President, if I may ask the Senator, we have
talked about higher education. Does the Senator not agree with me that
we have seen cutbacks in support for K- 12 as well? We have seen the
failure of funding No Child Left Behind, which has left 4.6 million
children behind. So we are leaving the children behind in higher
education. We are leaving them in No Child Left Behind.
I would like to ask the Senator from Connecticut as well whether he
is not concerned, as I am, about the failure to fund the Head Start
Program which reaches out and helps 4-year-olds and 5-year-olds prior
to the time they enter kindergarten, to give them skills and help in
building confidence so they can gain knowledge and understanding in
their early years in school.
Would the Senator not agree with me that what we are talking about is
basically failing almost a whole generation? There are 54 million
elementary and secondary school students across this country, and then
we have the millions of children going on to college. And now we are
talking about the millions who are eligible for the Head Start Program,
who failed to receive the support they need.
Would the Senator agree with me that money isn't everything, but it
is a pretty clear indication of a Nation's priorities? We make choices
about what the Nation's priorities are. What we are doing now, with the
conclusion of the budget which we passed here, is failing the children
in higher education. We have failed children with No Child Left Behind.
We are failing the children with the funding of the Head Start Program.
What does that say about the commitment of this Nation in terms of the
young people? And to their families, hard-working American families,
what does that say about our willingness to reach out a helping hand to
these families to make sure the education system is going to be the
best that it can be?
Mr. DODD. I would say to my colleague, he has hit the nail on the
head in talking about elementary and secondary education, beginning
with, obviously, Head Start and preschool efforts. He has cited the
numbers, and he is absolutely correct. But more than the numbers, when
you start to talk about the dollar amounts, I think you can probably
see the eyes of even the most determined listener to glaze over. When I
talk about an $8.6 billion shortfall to No Child Left Behind this year
alone, shortchanged more than $26 billion since passage, I am
disturbed. It is the children and the families themselves that feel the
shortfalls. Families lacking the kinds of investments that we know make
a difference in their children's educational lives.
We know categorically, after more than a quarter of a century of
watching, the benefits of the Head Start Program. It gives them that
even start. When they enter kindergarten or the first grade, it puts
them on a level playing field with other children who come from
slightly more advantaged situations than they may have.
We know that getting Title I money into our school districts has made
a huge difference to schools, and certainly we need to be doing far
better on special education. But to give some idea of what these
shortfalls mean, this year alone over 7,500 school districts are going
to see their elementary school funding cut this July. Millions of
disadvantaged children will be left behind because of inadequate
resources in Title I. More than 1.3 million children won't receive
afterschool services because of funding freezes that have occurred.
Teacher quality, English language acquisition, impact aid, rural
education all have been frozen in this country despite the increasing
demands that have occurred.
The President's budget eliminates 38 programs in areas such as arts
education, school counseling, small school support, dropout prevention.
You don't need to tell the American public about the importance of
these things. They make a difference every day. The fact is that we are
just decimating these significant efforts, many of which were achieved
and were created through bipartisan effort and support.
I am deeply concerned about what is happening to these younger people
as they enter the school system, where we want them to have an equal
opportunity to learn, where they get uncertified teachers and old
textbooks, some that say today maybe one day we will land a man on the
moon. We actually have children using textbooks that predate 1969 when
we landed a man on the moon. Imagine in 2004, you discover your child
has a science book that says that. That happens today. Or that your
child walks into a biology class or chemistry class in elementary
school and almost 35 percent of them in poor rural districts and poor
urban districts do not have a certified teacher who is teaching.
This is the United States of America. If you want us to grow and be
stronger, you are going to have to make the investments.
I thank my colleague from Massachusetts for raising these issues
about both elementary and secondary education as well as higher
education. The American public needs to know this.
Mr. KENNEDY. If the Senator will yield for a final question, I think
the Senator from Connecticut has the floor. Before we leave this
discussion, I have heard the resolution of the Senator from
Connecticut, his determination. I would like to ask him whether he
intends to battle with the rest of us in the remaining days of this
session to try to provide that kind of help to these working families
in these areas of education. Does he not agree with me that this ought
to still be a priority, and that even as we are coming into the
critical times of the appropriations committees, we will have some
opportunity to continue this battle and call Senators to account to
find out whether they believe it is the responsibility of this
institution to continue to invest in the children of our country and to
continue the opportunities of education, and that is the highest
priority we have here? Do I hear from the Senator that he will join in
that battle and continue to fight for those children?
Mr. DODD. Madam President, I commit to my colleague and to others as
well. This has been an ongoing effort. It will be a continuing one.
Nothing is more important. I have often said, if you can only solve one
issue, I would choose this one. I don't think there is any more
important problem to solve. Not that others are not important, but if
we fail to address the education question effectively, then we leave
every other issue in jeopardy, to chance.
[[Page S4212]]
That goes to the heart of endorsing and supporting our constitutional
principles, our values system, as well as our economic growth.
I am not minimizing other issues. I am often asked, as we all are,
what is the single most important issue we have to deal with. Obviously
issues of going to war, sending young men and women into harm's way,
amending the Constitution, confirming a justice to the Supreme Court
are high on that list. I would place education as the No. 1 priority, a
substantive issue that ought to be on every one of our lists.
I thank the Senator for taking a few minutes out of today to talk
about this. There will be other opportunities to raise these concerns
and these questions, and I hope that before this session of Congress
ends, we will have a more effective result for the American people.
The PRESIDING OFFICER (Mr. Alexander). Under the previous order, the
Senator from Utah is recognized.
Mr. HATCH. Mr. President, I have been interested in this discussion.
It has nothing to do with asbestos, but nevertheless an important
discussion. I have to say I have taken great interest in the education
processes myself. The other side just thinks there is money growing on
trees. Frankly, there is never enough money to satisfy them.
All of us wish we could do better. I wish every school district in
the country would teach music because it softens kids' lives. When I
was a young kid, I was born on the wrong side of the tracks. I was a
tough little kid. My mother made me learn the piano for 6 months and
then made me play the violin, and that made me even tougher, carrying
that violin to school. I have to say that softened me and gave me a
soft side to what some people think is a fairly tough guy. So I commend
my colleagues for wanting to do more. But having Democrats call for
more and more spending is a little bit like a glutton who has eaten
everything on the table and now wants more.
There is no end of the spending that they would do, even if we do
have a $1.2 trillion deficit. This President has all he can handle.
There is no question about it. I commiserate with him. I also look at
the outrageous costs of some aspects of higher education brought into
discussion here, what a gravy train it is for some people in many
universities, and how tuition has gone up so much to pay for the gravy
train. It reminds me of the trial lawyers we have been talking about
with respect to asbestos reform.
Mr. President, I wish to respond to some criticism some friends
across the aisle have made regarding my comments about personal injury
lawyers. In particular, I have been criticized for repeating in public
on the floor of the Senate what many people are saying in private--that
there is a political tie between many of these trial lawyers and many
of my friends across the aisle. I don't think it is news that, as a
rule, you will find that, all things being equal, most trial lawyers
will likely support with their voices, and especially their wallets,
the Democratic Presidential nominee and other Democrats across the
aisle. They are the largest single hard money donors to the Democrats--
the liberal Democrats. It is hard to find any conservative Democrats,
other than one I know of over there.
If I offended anybody by repeating in public a widely known dynamic,
I guess I should apologize. I also recognize that I am unlikely to be
the American Trial Lawyers' man of the year awardee. I am a member of
that organization. I know a lot of great trial lawyers who are honest,
decent, and do what is right in serving the American people. They know
that when they are right, I am on their side. But in this case they are
not right--the few who are abusing the laws.
Seriously, if in this debate I have sometimes come down too hard on
personal injury lawyers, I have done so because I am concerned that
what stands in the way of a much needed asbestos bill is the handful of
overzealous, greedy personal injury lawyers--just a handful of lawyers
in this country. I don't intend to malign personal injury lawyers as a
class. I believe personal injury attorneys can serve and, in
many cases, have served a vital function for many injured plaintiffs.
While I don't always see eye to eye with the personal injury bar,
when I think they are right, I don't hesitate to say it and they know
it. I had plenty of them thanking me for saying so when they were right
during the discussion over the tobacco legislation in 1998. I was
impressed with Richard Scruggs, or Dickie Scruggs, in the Castano group
of trial lawyers. I think many trial attorneys played a constructive
role in reaching a historic compromise with the tobacco industry. I
helped them, and they know it. They were right and I backed them. Some
in Congress held out for so much money that it was impossible to pass
Federal tobacco legislation. The theme of some in Congress holding out
for too much money is applicable to the asbestos debate.
In any event, the work that a gifted group of trial lawyers did with
Mississippi Attorney General Mike Moore deserves a lot of credit. I
supported their efforts publicly and even provided my support for
reasonable compensation for those attorneys. I am not afraid to speak
up for trial attorneys when I think they are right. I irritated people
on my side who felt they should not get the compensation that I think
they more than earned.
Frankly, as a former medical malpractice defense lawyer, I liked
nothing more than to go up against the best plaintiffs' attorneys for
the pure challenge of competing against the most skilled adversary. As
a plaintiffs' lawyer, I liked nothing more than having gone up against
the best defense lawyers in the country, having the thrill to be able
to compete with them. In many cases, I would win against them.
We all have to recognize that the work of personal injury attorneys
on asbestos litigation has dated back 30 or more years. Without the
hard work of these lawyers, it is unlikely the U.S. would have come so
far in responding to the dangers of asbestos. It is the success of the
trial attorneys that put us in the position of recommending legislation
that calls for a private trust fund to compensate asbestos victims
without the need for each one to establish causation.
In short, personal injury lawyers have won the case, and they won it
long ago. What this legislation is trying to do is sort out who pays
and how much, and do so in a fashion that minimizes the transaction
costs so that more of the money goes to the injured persons and less of
the money gets swallowed up in litigation, and the courts can get
unclogged, and so that other fairly brought litigation can be heard.
In compensating asbestos victims, we must be mindful not to corrupt
more and more firms, which results in more and more job losses, and
more and more loss of health care, and losing more and more value in
retirement stock portfolios, and more and more loss of pensions. That
is what we are trying to do here.
All I hear is whining from the other side. We have heard a lot of
talk about how much the bill costs and how much it will pay out to
victims. We heard talk about who pays, and how much, and whether they
are paying enough.
If we ever get on the bill, we will hear more talk about these
important issues, as we should. I have no problem with that. But they
are filibustering even the motion to proceed. My gosh, when are the
American people going to understand what is going on? They have
filibustered virtually everything that has come up this year. It is
going to take a supermajority to pass the simplist of bills the way
they have been carrying on. It boggles my mind. But that is what is at
stake in tomorrow's cloture vote.
Will we vote for cloture so we can talk about the issues on the bill
itself? I hope we will proceed to the bill. But it shows the politics
that are being played. For my friends on the other side to come on the
floor and say this bill doesn't do enough, after we have given and
given and given in to their suggestions time after time, or to say it
is not procedurally proper or not written right, after 15 months of
dedicated, hard effort--I have to say by a few Democrats, and by many
on our side--it goes beyond the pale.
It is true that I have irritated some personal injury lawyers in some
of my remarks. The ones I am talking about deserve irritation. I don't
believe they are honest. I believe they are exploiting a system and
taking moneys that should go to people who are sick. What
[[Page S4213]]
I am about to say may further irritate them and some of those across
the aisle.
I have some important questions to raise with respect to attorneys'
fees. Frankly, the issue of attorneys' fees is a key issue because it
is critical in determining how much of the funds will actually end up
in the pockets of the injured people. As I have said, today about 60
percent of the funds wither away to lawyers on both sides of these
cases. You can expect that about one-third of any recovery will go to
the plaintiffs' attorneys. In a no-fault, nonadversarial compensation
system, there should be no place for the routine attorneys' fee level
of one-third of the recovery.
Accordingly, in our bill, we employ the same fee schedule used by the
Radiation Exposure Compensation Act, or RECA. In the RECA law--a bill I
wrote and passed through this body a number of times--the lawyers' cut
is 2 percent of the recovery in noncontested cases, and 10 percent for
complicated cases. These cases are like rolling off a log if this is
passed. Lawyers do not deserve 60 percent in defendant and plaintiff
attorneys' fees, in addition to the transaction clause. The fee
schedule results in the lion's share going to the injured persons and
their families. This is the way it should be in the radiation exposure
cases involving downwinders of nuclear tests, and this is the way it
should be for asbestos victims. This is what is in our bill. It is a
long settled way of solving these problems and a reasonable way that
pays the attorneys what they should be paid--actually more, in many
instances--but it stops the gravy train that is ripping off the sick
and needy who have suffered from asbestos.
What is unknown is what our friends believe to be a fair level of
compensation for personal injury lawyers in this new no-fault system. I
ask today for our colleagues to come to the floor and tell us if they
support or oppose our proposed attorneys' fees levels, if they believe
our 2 percent for uncontested cases that are like rolling off a log,
and 10 percent for those who might have some small contest, and they
will still be like rolling off a log compared to litigation in trial.
If this provision is not proper, please tell us how they would do it.
We have not had the slightest suggestion from them.
If they believe it is still appropriate to retain attorneys' fees of
33 percent to 40 percent or higher, please explain why this is fair or
necessary in a no-fault, nonadversarial system that this bill would
make into reality. In the spirit of good faith, we agreed to move the
program into the labor-friendly Department of Labor. The Secretary of
Labor does not favor this. The White House does not favor this. I,
frankly, do not favor this. I am afraid that will run the program into
the ground because the Labor Department has been controlled by liberal
bureaucrats for many years. But we are willing, in the interest of
getting this done, in the interest of helping these people, to even do
that.
Running a program to compensate workers out of the Department of
Labor may be somewhat akin to voluntarily playing the Celtics in the
Boston Garden. We made a genuine concession on the administrative
process, as our colleagues know. We have repeatedly asked them to
recognize it is appropriate for them to act in a spirit of genuine
compromise with respect to attorneys' fees.
Let's face it, numbers are flying around in this debate. One way that
the difference between our respective proposed level of total claims
can be bridged is to reach agreement on the appropriate level of
compensation for attorneys' fees. But we cannot even get them to talk
about that. Even if we could, we could not talk about it because we are
on a filibuster on the motion to even proceed to the bill. Once we go
to the bill, we would have a filibuster on that, if we can ever get to
that point, but at least we would be able to be on the bill.
We believe the RECA, the Radiation Exposure Compensation Act,
exposure level of 2 percent of noncontested cases and 10 percent for
contested cases is both fair and reasonable because both cases will be
easy for the plaintiffs or those who claim to be sick to get
compensation if they are sick.
What do our friends across the aisle think about this? What are they
proposing on this important issue? I ask they be specific so we and
other interested parties can evaluate their position on this essential
question. We have only been negotiating with them for 15 solid months,
and we still do not have their suggestions. Yet they are saying: Oh,
this is just too premature. That is after many of them said last year
we should have gotten this bill done before the end of last year's
session.
When is it going to end? When is this kind of phoniness going to end?
A great deal of the difference in the compensation levels, in each of
our respective levels of total compensation, in our bill it is $114
billion plus a $10 billion set of contingency funds, and in one widely
cited Democratic claim values amendment $167 billion can be bridged by
factoring in the share that can go to personal injury attorneys.
I do not want to cut them out from reasonable fees, but I do think
$60 billion is unreasonable because that money comes out of the hides
of the sick people. No wonder attorneys in this country are so looked
down upon, especially personal injury lawyers. I happen to know about
90 percent of the ATL people are sick of this and sick of this 10
percent who are running wild taking advantage of the whole system and
basically destroying the right of individual sick people to get
adequate compensation.
This bill would take care of that problem. If the Democrats are
advocating that the customary one-third of the award can go to the
lawyers, then we are not that far apart as to how much money should go
to injured workers and families. We should work together to see if we
can agree on a reasonable level of compensation for these attorneys. I
call them the Fred Barrons of this world and other personal injury
lawyers who are bringing these suits in selected favored jurisdictions
so they can get easier verdicts. I challenge them to come in and tell
us what would be a reasonable level of attorneys' fees, and let's quit
playing the game.
This is a no-fault, nonadversarial system that does not justify the
type of attorneys' fees that have been ripping off the public,
especially the sick, the weak, the feeble, and the injured the way the
current broken tort system is. I have no doubt that public discussion
of this issue may bring great consternation among the ranks of some of
my Democratic friends due to their close relationships with many in the
trial attorney bar. But if we are ever going to have a meaningful no-
fault trust fund asbestos bill, we are not going to be able to
guarantee and should not be asked to guarantee the usual one-third to
40 percent of the take going to the plaintiffs' trial lawyers regime.
One-third or more going to the lawyers is simply too much, especially
in a no-fault, nonadversarial system.
The unions should recognize this, and the public should recognize
this, but most of all these lawyers ought to recognize this and quit
ripping off the sick and the downtrodden and those who really deserve
these moneys.
The silence of my friends across the aisle on this issue, both in
private and public talks, is deafening. When we did the RECA bill, I
was chairman of the Labor Committee. I fought that bill through for
years until we finally were able to get it done. All these people are
asking for more money for education, more money for all the social
programs, more money for this, more money for that, and they were the
ones who were giving us a rough time. Finally, after I was reelected,
they then realized we better get on the ball and do something about
this. That is how the radiation exposure compensation law, which is now
followed by countries all over the world because of what we did, is now
law, compensating people, not very much for the suffering they went
through, nothing like we are going to compensate from the private
sector, no way near what we are going to compensate here.
The silence of my friends on the other side of the aisle, both in
private and public talks, is deafening. I heard some of my colleagues,
who I respect, come on this floor with a straight face and say this is
not the right way to do it, although last year it was. They were
talking about this administrative approach is the right way to do it.
Why isn't it the right way to do it during a
[[Page S4214]]
Presidential election year? I ask the people out there watching and
listening, why is it they suddenly think this is not the right way to
do it when we put up even more money before, giving in on at least 53
different amendments, have moved this into an administrative process in
the Department of Labor that many on our side question? Why is it that
they are still balking at this in this Presidential election year?
I think there is only one conclusion most people are drawing, and I
hate to see that. I hate to see that. If they do not like this bill,
they should offer a substitute amendment. Let's have it out. Maybe they
will win. Maybe these 8,400 companies and 16 insurance companies will
get clobbered even worse so they can barely survive, and some are still
going to go into bankruptcy. They certainly will if some of these
people with their outrageous demands get their way. It is time to stop
talking generalities and start voting on specific amendments.
I want next to make a few remarks about the process that has been
observed to date and why I will be very disappointed if we are not
allowed to proceed to the bill tomorrow after the cloture vote. Just
think about it; they are filibustering the motion to proceed. They
could have easily given in just like that and said, No, let's go to the
bill, and we will filibuster the bill. That would be the straight up
way of doing it. But to filibuster the motion to proceed means they
must be beholden to somebody to pull that kind of a procedural
mechanism. That does not happen very often, and it should not be
happening here.
Frankly, that we are being forced to vote cloture is disturbing to me
and should be disturbing to everyone, although I do recognize if
cloture is not invoked, it would be pleasing to these few trial
attorneys who are milking this system dry at the expense of those who
are sick and afflicted and downtrodden. They will not have to see if
their customary one-third or 40 percent of representation in the
asbestos claims in the new no-fault system can be justified on the
floor of the Senate. That is just matter of fact and people need to
know it. That is why I am here on the Senate floor.
I rise today in response, again, to complaints that I have been
hearing from some Members on the other side of the aisle about being
rushed to consider a national solution to this asbestos mess. As many
of my colleagues know, the asbestos litigation crisis is not new to
this body. We have been talking about the problem for the better part
of a decade, but now that we find ourselves on the verge of considering
a proposed solution, I am puzzled to hear that the process has somehow
been unfair, that we are not acting as ``proper legislators'' for
bringing this bill to the floor under the current circumstances.
I think anybody with brains would find these complaints devoid of any
merit whatsoever, especially when viewed against the legislative
history of this asbestos bill.
While we have tried to build consensus over the past 15 months,
thousands of asbestos victims have gone uncompensated or left with only
pennies on the dollars they deserve. Veterans and people like those in
Libby, MT, are left with no one to sue. More than 70 companies have
gone bankrupt and dozens more will soon follow.
Since we started working on this legislation, 60,000 jobs have been
already lost at a cost of more than $2.2 billion in lost wages alone.
Let me repeat these numbers so they can sink in. Sixty thousand jobs
have been already lost at a cost of more than $2.2 billion in lost
wages alone, and sadly another 400,000 jobs will soon be lost. Yet we
still talk. There are compelling calls for action. There are empathetic
expressions of compassion for victims. There are meetings and letters,
promises of solutions to come and proposals to be made, and yet for all
of this ocean of good intentions we are all still stuck.
Frankly, much of the current asbestos litigation is all too
reminiscent of the mythical Jarndyce case from the Charles Dickens
``Bleak House.'' As my colleagues will recall, this was a case in which
most of the estate was swallowed up by lawyers' fees and court costs.
One has to ask how and why we got to this point. In September 2002,
when Senator Leahy chaired the Judiciary Committee, he held a hearing
on the asbestos litigation crisis. I commend Senator Leahy for his
efforts. The hearing was balanced. It was instructive, providing
valuable evidence of the dire circumstances for asbestos victims,
employees, companies, and insurance carriers. The judicial system and
the American economy at this national embarrassment was left intact.
That was a year and a half ago.
When I became chairman of the committee 4 months later, I immediately
made it clear that I wanted to build on that record, draft a bipartisan
legislative solution and pass it. Almost immediately, concerns were
raised, warnings were issued: You are moving too fast, some said. The
issue is not ripe, others advised. You better get it right, others
still warned.
Two months later, on March 5, 2003, I chaired another hearing. Some
of the same witnesses from before appeared again and the testimony made
it abundantly clear that while the problem had gotten worse, there was
bipartisan interest in the idea of creating a national trust fund. We
heard solutions from a variety of perspectives--from academia, from
business, from the unions, and from trial bar experts. I made clear I
would incorporate any constructive proposals offered. I wanted a bill
that would work. I wanted it to be a bipartisan bill.
As a result of hearing the magnitude of the asbestos problem, we
worked toward drafting a bill that would create a national privately
financed no-fault compensation fund for asbestos victims. As word
spread about our efforts, warning flags were raised. Some in the
minority on the other side of the aisle urged us to move slowly, not to
rush; more time was needed; more talk was needed.
We finished drafting the bill and we shared it with others, both in
the Senate and among interested shareholders. There was real interest
and we were given several good ideas and suggestions. Unfortunately,
for the first time the minority's caution chorus took voice: We're
being rushed; we're being jammed.
This is the minority's caution chorus of worrisome lions. This is
what we have been going through now for 15 solid months: Do not rush
us; do not do this; do not do that; we must be cautious.
We were rushing them, we were jamming them; according to them; I was
acting unfairly. All this drama was over a bill that I had not even
introduced.
I had listened for hours and hours, worked with my colleagues on both
sides of the aisle for days, weeks, and months. They asked that I delay
introduction. They asked that I delay introduction so they could have
more time to study the issue and my proposal, which I did. We had more
meetings, more talk. I incorporated several of their ideas into the
bill and asked if they would cosponsor it.
Now I am pleased that a few did. I am forever grateful to those on
the Democratic side who did. There were two who did--two, after all
this work. Fifteen months later, we are down to one. More said that it
was not the right time. They were upset with the way I had shared my
draft legislation.
On May 22, 2003, Senators Nelson, Miller, DeWine, Voinovich, Allen,
Chambliss, Hagel, and I introduced S. 1125, the FAIR Act. The
minority's caution chorus sang again. These miserable, cowardly lions
sang again. They were being rushed. They were being jammed.
In truth, I introduced the bill 78 days after my hearing, 20 weeks
after the beginning of the session, 6 months after the hearing of 2002.
This was clearly no sprint.
On June 19, I held the first markup. Again, the minority caution
chorus took over again and took voice. The issue was still too complex.
The bill was too complicated. We were not doing it right. They were
being rushed. They were being jammed. They asked for more time, and
they were given it.
Unlike ever before, the committee's markup of the legislation was
spread over 3 weeks, 3 solid weeks. We spent 4 separate days--not many
bills take 4 days to mark up--considering changes, often working late
into the night. We invited experts to sit with us as we worked through
complicated medical issues. This was no sprint, no rush to judgment.
There was no mad dash.
[[Page S4215]]
Interestingly, when there was engagement from the other side,
agreements were reached. In fact, the committee was able to resolve
what at the time was supposed to be the biggest impediment to reaching
a consensus, an issue so fraught with partisan disagreement that it
could never be resolved.
In the end, we accommodated scores of concerns raised by the minority
and found a common ground on medical criteria that everybody, Democrats
and Republicans, agreed to. It was a major victory. This bipartisan
accord was achieved and the committee adopted it unanimously. This was
one of the most ideologically divided committees in the Senate, some
say the toughest committee in the Senate with those who are the most
ideologically challenged, I should say, and I cannot disagree with
that.
The next impossible hurdle was claims values. Again, I was told there
was no way a group so divisive, so argumentative, so plainly
disagreeable as the Judiciary Committee could reach an agreement on how
much to pay victims. Now, despite the dire predictions, a bipartisan
agreement was reached again. The committee adopted the Graham-Feinstein
amendment on claims values by the whopping bipartisan vote of 14 to 3.
Now I just want to mention to my colleagues on the other side that
every one of the Democrats voted for that. Three of our Republicans
thought it was too much money and they voted against it, and they may
not have been wrong. The only problem is that we are way beyond that
money today.
I might add that all of these negative votes were cast by Republicans
who thought some values were too high. As my colleagues know, we are
more moderate to conservative over here, and I cannot blame them for
raising those issues.
On July 10, 2003, despite the constant wailing from the minority's
caution chorus again, we reported the bill out of committee by a vote
of 10 yeas and 8 nays and 1 abstention. We all knew more work had to be
done before the legislation could be brought to the floor. We also knew
there would be no bill unless there was a willingness on both sides to
pass a solution to move towards the middle.
As summer turned to fall, there were sporadic attempts at additional
negotiations involving committee staff, as well as among the
leadership. Minor matters were resolved, but there was no evidence on
the part of the minority's leadership of any real interest to engage in
the kind of meaningful effort needed to finalize a bill. Individual
members of the minority were very public about their interest in
legislating, but those purportedly tasked with the negotiations did not
possess the same zeal.
We have heard, for my whole 28 years, how much more concerned the
other side is about people and their problems. Well, it does not take
much to figure out their concern here is more about the trial lawyers
and the personal injury lawyers who are involved, because they are sure
not working hard, in my eyes, or I think anybody else who looks at it
objectively, to find a way of helping those who are truly injured and
hurt.
Now, while these efforts were making little progress, work was
underway on another front beginning in August. Senator Specter began an
intriguing, arduous mediation among the major stakeholders. That means
the victims, the alleged victims, the trial attorneys, the personal
injury lawyers, the insurance companies, the companies that have been
sued, and companies that are about to be sued. He took on this job. I
give him a lot of credit for it. He convinced Judge Edward Becker,
former Chief Judge of the Third Federal Circuit Court of Appeals, to
play a lead role as a negotiator, as a mediator, for which Judge Becker
is eminently qualified. He and the judge forced the parties to spend
dozens and dozens of hours together. We were there, so we do know.
We spent hours and hours, days, weeks, and months, arguing the
positions and searching for a common ground. Senator Specter and Judge
Becker should be commended for their Herculean efforts to keep the
parties talking and, despite the objections of the representatives and
the personal injury lawyers, there was progress--slow, incremental, but
progress. The unions played a significant role. They were there
virtually all the time.
However, we have never been able to satisfy them, even though their
workers are the ones who are going to be hurt the most if this bill
doesn't pass. They are the ones who are not going to get compensated
because the moneys are being sopped up by personal injury lawyers and
people who are not sick because these personal injury lawyers are going
to jurisdictions that basically are out of whack, that really will not
look at these things in a reasonable way and who basically find for
whoever brings the case and find in huge amounts for people who are not
even sick in many cases.
I compliment Senator Specter and Judge Becker. There has been some
slow progress during that period of time.
During the fall, Senator Frist and I spent considerable time working
with those who would be paying for the fund to ensure its solvency. It
was imperative that the bill establish a steady and sufficient flow of
moneys without allowing the fund itself to perpetuate the same kind of
economic disasters caused by the tort system as a whole and by the tort
system with regard to this type of case.
By the end of October, these issues had been completed and there was
a renewed attempt to begin negotiations with those on the other side of
the aisle, but every time an overture was made, the caution chorus was
being rolled out: We are being rushed. We are being jammed. Every time
it was rolled out by the other side of the aisle.
There was always some reservation; Things were moving too fast; There
were other more important issues; They hadn't been asked the right way;
They were being rushed; They were being jammed. The reasons changed but
the result was always the same--no real negotiations. In fact, to this
day we do not have a substitute or an offer by those who are
complaining on the other side--to this day. We don't even have a
monetary amount other than they have thrown out $170 billion, which
everybody knows cannot be the number.
During my tenure in this body, I worked with my colleagues in the
minority on a number of issues, on landmark drug legislation, the
Hatch-Waxman Act, which gave life to the generic drug industry and
saved consumers and our Government tens of billions of dollars since
1984. I worked with minority Members on children's health insurance, on
childcare, on tax reform, job training. I have worked with them on
issues involving crime, on legal reform, and a whole raft of other
issues.
The Members of the minority are excellent legislators and skilled
negotiators. They have insightful and creative staffs. I have worked
with them when they wanted to pass a bill, and I know what it is like
when they want to pass a bill. I have worked with them when they do
not, and I know what it is like when they do not. I am telling you this
is a time when they just don't seem to want to, because there has been
plenty of opportunity to resolve this matter.
It is not hard to tell the difference. When there is a genuine
interest in legislating, one of two things happens. A member of the
minority leadership comes on at the outset and his or her presence and
commitment helps to generate sufficient pressure on both sides to move
legislation.
The second way, the minority offers their own version of the bill
enabling both sides to sit down and work through the differences and
craft a compromise.
Here there was no move by the minority's leadership and there was
never, despite repeated and frequent requests, any interest by the
minority in introducing their own solution. Instead, they chose to
spend their time finding fault with our legislation and complaining
about our process.
Another concentrated effort to move the bill was made in November,
last year, and not surprisingly the caution chorus came out and began
singing its song again: We are being rushed; we are being jammed, even
though there were a number of Democrats who stood up and said they had
to get this done before the end of this year.
Where are the real Democrats? That is what I would like to know. The
pressure continued, however. Interested
[[Page S4216]]
stakeholders would not take no for an answer. Hints were made about
bringing the bill to the floor, even if it resulted in a filibuster.
Suddenly the message changed. Now we were told the minority's
leadership wanted to find a resolution, that there was bipartisan
interest in passing a solution. It was implied if we would just
postpone consideration to early next year, there would be ample time to
finish work on this bill.
The majority leader agreed and on November 22, 2003, he announced he
would not bring up the asbestos bill prior to the end of the session.
Instead, he would give the parties additional time to complete their
negotiations. But he made clear his intention of bringing the bill to
the floor this year.
His announcement was well received by the other side. I remember. As
this year began, it was clear from the outset that, despite the
promises of November, little had changed; there were no real
breakthroughs. So, in February, the majority leader announced his
intention to bring the bill to the floor the third week of April. But
yet again the caution chorus rolled out its usual objections: The issue
was too complex; the legislation was too complicated; they were being
rushed; they were being jammed. Indeed, we even offered to engage in
protracted negotiating sessions, but again the Democrats demurred.
In February, my staff sent an e-mail to Democratic staffers proposing
a multiday negotiation to seek a resolution of the issue. It contains
an offer to meet during all-day sessions, ``during recess weekends, or
weekends during session.''
The response from the minority was unambiguous: Don't rush us. Don't
rush us.
Senator Specter, to his credit, kept pushing forward and, as a result
of his efforts, the stakeholders reached agreement on what was supposed
to be another impossible hurdle, the administrative structure, which I
mentioned earlier.
The proposal was not to our liking. It would require a fundamental
change in our position, allowing the fund to be run out of the
Department of Labor, but because organized labor signaled its strong
support for this change and because we wanted to reach consensus on
other critical issues remaining on the bill, we agreed and we agreed
despite the objections from many on our side of the aisle and in spite
of the objections from the White House.
The minority, instead of accepting this concession, instead of
endorsing this considerable victory for organized labor, made it clear
that this significant agreement meant nothing more than a chance to
bank an advantage. They offered no alternative. They revealed no new
proposal or compromise. In fact, it is reminiscent of the style of
negotiation that says: What is mine is mine; what is yours is
negotiable.
Nonetheless, additional proposals were made but there was no
counteroffer, none of the typical give and take that is the hallmark of
serious negotiations in this most important legislative body in the
world. It was like trying to play tennis with a curtain. There is never
any meaningful discussion of what the payers, the ones who have to pay
these bills, most desire and, frankly, they deserve: a fair and
predictable payment schedule.
Whatever we do is going to be tough on the payers here. This bill is
plenty tough on the payers. Don't think they are not squealing; they
are.
It was now obvious even to the most optimistic Member of this Chamber
that it would be impossible to bring a consensus bill to the floor, one
supported by the leadership of both parties. We are hearing Senator
Leahy has at last put together an alternative proposal on this national
trust fund. Has it been introduced? Have we even seen it? Of course
not. The only choice left was to bring a bill to the floor and hope
enough Members of the minority thought the issue was of sufficient
importance, as they have repeatedly said, to allow the Senate to
consider this bill.
To help facilitate discussion, I introduced, with Senator Frist and
Senator Miller from the other side of the aisle, S. 2290, a second
version of the bill which incorporated many significant changes that
have been made since the legislation was first introduced and first
reported from the committee.
That is the legislation before us today. It contains the bipartisan
agreement on medical criteria. It contains the agreement reached by the
stakeholders on the revised administrative structure and numerous other
changes adopted during the Specter negotiations that have all been to
try to get the Democrats to move on this bill. It contains the handful
of changes agreed to by both sides since the bill was reported out of
committee. It also contains higher claims values passed by an
overwhelming bipartisan vote of committee and incorporates yet another
monumental change and another fundamental concession to address the
complaints by the minority.
We have included provisions in the bill to make clear that the risk
of insolvency will not be borne by the asbestos victims; it will fall
on the defendant companies and their carriers. If there are
insufficient moneys, the fund will terminate and parties will return to
the tort system--to Federal courts. There is no point in sending it
back to the State jurisdictions that created the asbestos crisis in the
first place.
Here we are today. The time has come to act. The day of decision has
arrived. Unfortunately, to no one's surprise, the caution choir is on
its feet again, or somewhat on its feet, I guess I should say: They
need more time; the issues are too complex; the bill is too long; they
weren't consulted the right way; they were being rushed; they are being
jammed.
I was told by many at the beginning of last year that when I embarked
on this legislation the Democrats would simply run out the clock. They
will never let us vote on a bill that could deprive them of their huge
cash cow.
First, Democrats would push into the election year, they said. Then
they would filibuster a motion to proceed. That is exactly what has
happened so far in their zeal to make sure that their hard money donors
get their way at least this year--an election year. It is not too late
to change that.
Let me just say that the caution chorus is sounding like a broken
record that needs to be shut off. It has been 333 days since S. 1125
was introduced.
A hundred years ago, it took Christopher Columbus only 222 days to
discover the new world and return to Spain--one of the most remarkable
discoveries in the history of the world. It took Neil Armstrong only 8
days to travel to the Moon and back. Our forefathers were able to write
the U.S. Constitution in only 4 months. But somehow there hasn't been
enough time for the minority to help write this bill although they have
had a lot of say and have had a lot of concession. We have tried to do
everything to bring them to the table and get things done. Here we find
ourselves in a filibuster on the motion to proceed.
This caution chorus of cowardly lions reminds me of what is going on.
Of course, there was one big difference. In those historical examples,
the players actually wanted to finish. They actually wanted to discover
an America. They actually wanted to go to the Moon.
Over these 333 days, we have had numerous congressional recesses and
holidays. Just look at this. Over 333 days, and we are now under a
filibuster. That comes from the Spanish word ``filibustero,'' meaning
pirating or hijacking. It is just one more obstruction. We have had
nothing but obstruction since George Bush has become President of the
United States--over and over. There have been very few bills passed,
and the ones that have passed have had to overcome the obstructionism.
My goodness. There are some Democrats who have been willing to overcome
obstruction, but on this one, it has not been brought to conclusion.
We have had one entire summer, the fall, winter, and we are quickly
working our way through spring. How much more time is needed to sit
down and get this matter resolved? The time has come for the minority
to stand up and be counted.
If they are genuinely troubled by our proposal and all the agreements
we have reached with them, they have an obligation--indeed a
responsibility--to offer their own solution. The challenge is on them.
Introduce a bill. Make sure it strikes the same balance demanded of us.
Make sure it is fair in the way we have tried to make it fair. Make
sure it provides adequate moneys for asbestos
[[Page S4217]]
victims. Make sure it provides compensation quickly, efficiently, and
fairly. Make sure it does not reward the unimpaired, those who aren't
sick. Make sure it is not hijacked and turned into a smokers'
compensation fund. Make sure it does not bankrupt more companies and
throw hundreds of thousands of Americans out of work and out of their
health plans, their pensions, or wipe out their lives financially.
That is what is going to happen. For the life of me, I can't
understand why many in the trade union movement aren't jumping on this
bill in every way they possibly can because their employees are the
ones who are getting hurt. They will never get the money we have in
this bill if we don't pass a bill.
Make sure it doesn't stick the Federal Government with a bill at end
of the day.
Now you on the other side of the aisle have claimed that the asbestos
crisis must be fixed. You have all agreed there is a crisis in our
country. You have conceded that the tort system is broken, that we have
a historic opportunity to act. The end is within reach, and we must
grasp it.
But here we are. I think the time has come to act, to make good on
the promises which have been made on the other side of the aisle, to
demonstrate the leadership and responsibility our Nation demands when
we are asked to do our job to fix a national crisis. It is time to move
past our alleged mistakes and complaints about perceived procedural
insensitivities.
It is time for the caution choir, which we have been looking at here
today, to quit singing ``We are being rushed; We are being jammed.'' It
is time for the real interests to take a stand and to do what is right.
It is getting late in the day to appoint another committee and
schedule more meetings and talk. It really bothers me that they are
filibustering the motion to proceed, which has only been used on rare
occasions before the last few years, before the obstructions that have
been occurring on a regular basis. People in the past were willing to
debate these bills and were willing to try to amend them if they didn't
like them, willing to be legislators and not obstructionists, willing
to do what is right for the American people.
We have now been on this bill 15 solid months and we still have not
seen, other than demands during negotiations, what our friends on the
other side must have to resolve this problem, which in many respects is
the most dangerous problem hanging over America today, especially for
employees, especially for union members, especially for those who want
health care and who want their pensions to be saved, especially for
8,400 companies on the one hand, and maybe more if these voracious
personal injury lawyers continue to conjoin people who really have had
nothing to do with asbestos but have been conjoined in these actions
where they are stuck with humongous defense costs and attorneys' fees
themselves, so the moneys that would go to the sick and the needy,
those who really need it, go down the drain of legal fees, clogging our
courts so that other legitimate cases can't be brought.
Again, I will return to that message. Why is it that we are going
through this type of chorus charade? Why is it that we haven't had more
cooperation? Why is it that we can't get them to come up with what is
needed to resolve this morass? Why is it during this election year?
All I can do is ask the question. I think anybody observing knows
what the answers are. At least that is what has been alleged to me.
That is what has been suggested. I hope it is not true.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Mr. President, I want to express my appreciation to the
distinguished chairman of the Judiciary Committee. He has served in
this Senate for many years. He is himself a superb lawyer, a
constitutional scholar, and has been through many of these debates.
I remember on one night after 11 o'clock at night when the chairman
met with everybody who had a problem. He urged them to come forward. He
compromised and compromised.
Frankly, sometimes I think maybe the bill has gone too far--really
seriously. We need to talk about that, offer amendments to fix it. We
ought bring the bill to the Senate floor and start to discuss that.
But Senator Hatch has bent over backwards to make sure this
legislation which is critically needed for America passes. It is
critically needed for people who are sick from asbestos and those who
fear they might get sick from it. I thank the chairman for his
leadership. I have not known any effort that I have seen in which a
chairman has gone further to try to win the support of other members in
the committee and the Senators who might be dubious, to get their
support. And the Senator continues to get it.
I thought we had the bill completed. I thought we had everybody
signed up. I yield to the chairman.
Mr. HATCH. I thank my colleague for his kind remarks. I appreciate
the hard work the Senator and others have put in on this side. There
are some on the other side who have worked hard. Particularly, I
express my gratitude to Senator Miller, Senator Nelson, and Senator
Feinstein. I understand Senators Nelson and Feinstein are probably
going to vote against cloture. I don't know. I cannot speak for them. I
hope not. They are two who have tried to work with us on this bill.
If that is laid down, I don't know where we will go. I am afraid an
awful lot of people will be left high and dry while these trial
lawyers, the personal injury lawyers, walk off with $60 billion in fees
and costs that could go to people who are sick. I don't begrudge
attorneys the fees they earn. We have more than made a case that the
system is broken. There are a certain limited number of personal injury
lawyers who are taking advantage of the system and doing it in ways
that are reprehensible.
Mr. SESSIONS. I thank the chairman. I agree with his comments. I
thank him for doing all that humanly could be done to win the support
necessary for this bill.
I had a brief period of time in which I filed plaintiffs' lawsuits
for individuals who had asbestos injuries. These individuals were sick;
asbestos is a debilitating disease. They had been heavily exposed to
asbestos. One individual worked in a submarine, where the air inside
was thick with asbestos fibers. He was severely debilitated as a result
of that. I believe people who are injured ought to be compensated.
It was discovered that manufacturers of asbestos knew at some point
before they told people who were working on it that it was dangerous.
And they should have told them it was dangerous and their health was at
risk and they did not do so. That is the fundamental cause of the
litigation.
I filed my asbestos litigation in the 1970s. I eventually turned it
over to a group of lawyers who were experts in this matter. They took
the case. I was not able to do it. They did a lot of work. They had to
break down barriers, win the liability questions, and prove knowledge
on the part of the companies. They overcame legal objections such as
whose asbestos did you breathe.
Most plaintiffs' lawyers today involved in litigation are not proud
of what has happened with asbestos. The companies have been tagged. The
companies are stuck. They admit they did wrong. They are willing to
compensate, as they are able to compensate. There is only so much
money. We are talking about billions of dollars, maybe $54 billion
already paid out.
I was there as a lawyer and earned part of a fee out of the
litigation. I didn't know how it would come out or what the statute of
limitation was. Maybe my claim has expired. But things have changed.
The companies are willing to pay. Some victims are sick and need
compensation. They need it now. They do not need to have a big chunk of
what they are entitled to paid to lawyers or to experts or testing
companies. They need to be paid. It is a blight on the legal system.
I see the distinguished assistant Democratic leader. He is a superior
lawyer, and would do an admirable job in court, no doubt. But, these
cases are not going to trial. It is a process. These cases are filed
and settled, and sometimes victims are paid. Certain defendants do not
have money, so they cannot pay. Sixty asbestos companies are in
bankruptcy today because they cannot pay or cannot fully pay all the
claims. Thousands of new claims are being filed on a regular basis.
[[Page S4218]]
The new trend is that people not sick are filing. They may have been
exposed to asbestos, and there may be some showing of asbestos in the
pleura or their lungs, but it has not had a debilitating effect or not
caused cancer or anything like that, and they are filing by the tens of
thousands, saying they might get sick. But they are not sick yet.
What do you do? It is perfectly appropriate that this Congress act.
We do it with workmens' compensation. A person is injured on the job,
they get compensation under certain circumstances. It is a lot easier
to get it, but it is limited and you do not have to pay so much
expenses and it works pretty well. That is all by regulation. We do not
leave everything totally to juries, judges, and lawyers to settle.
I believe in the principle of the Congress stepping in, when
necessary. The fundamental reason I believe, is that, in my view, in
the history of the most magnificent legal system we have, the Anglo-
American heritage of law, we have ever had a system that has been as
abused. Sixty percent of the money paid out by the defendant companies,
over half of it, 60 percent according to testimony we had a number of
years ago in the Judiciary Committee, does not get to the people who
are sick. It does not get to any plaintiff. It is eaten up by court
costs, lawyer fees, expert witnesses, and testing companies. That is
not right.
It is not right when the defendants themselves admit they are wrong
and are willing to pay. In fact, they do pay and they agreed to pay and
they have trusts that are supposed to pay, but the trusts are getting
drained of money. Companies are going into bankruptcy and fewer and
fewer victims are getting paid.
If we care about the rule of law, if we care about decency,
fundamental fairness, if we respect law, if we love the law, we should
not allow a situation to continue where the defendant companies are
willing to pay, and the plaintiffs, some of them desperately need
payment, but the plaintiff only ends up getting 40 percent of what is
paid out. The defendant companies have to hire lawyers, too, whole law
firms. They file papers and disclosures and depositions and expert
witnesses. This is just chewing up money, money, money, money.
Now, if somebody has mesothelioma, a cancer that causes death, they
ought to be paid. They do not need 60 percent of what they are entitled
to, to go to some lawyer, some defense lawyer or some expert witness or
court cost. And they ought not to die before they get it.
Under this bill, if you file a claim and you have mesothelioma--which
is tied directly to asbestos--it is caused very few times other than by
asbestos, and you can demonstrate exposure to asbestos and
mesothelioma, you get $1 million. That is what the latest figure is.
And you do not need a lawyer at all. You get it now. Under the current
system, they file lawsuits, months go by before anything results. The
plaintiff wants $25 million. The defendant wants to pay $500,000.
They go along and along, and all the time the families are suffering,
the plaintiffs are suffering, and maybe even dying. That is not good.
Then, when it is paid, finally, some of the companies do not have the
money. Some insurance companies say they are not liable for this part
of the claim, and it goes on and on and on.
I deeply believe we need to end this spasm. This is not good. It is
not something any lawyer can be proud of. In fact, I think everybody is
embarrassed by it.
Let me read from Justice Ruth Bader Ginsburg of the Supreme Court, a
former member of the ACLU--one of the more liberal Justices. This is
what she wrote in 1997:
The argument is sensibly made that a nationwide
administrative claims processing regime would provide the
most secure, fair and efficient means of compensating victims
of asbestos exposure. Congress, however, has not adopted such
a solution.
In 1997 she wrote that; and we have been battling this ever since.
Every effort has been made.
Now we have proposed a $100 billion fund--not millions--$100 billion,
set aside for payment of these claims. That is apparently not
satisfying everyone. In Ortiz v. Fiberboard Company, in 1999, Justice
Souter--another one of the liberal members of the Supreme Court--said:
The elephantine mass of asbestos cases defies customary
judicial administration and calls for national legislation.
To date, Congress has not responded.
We have people here who are filibustering this bill from even coming
up, saying they are being rushed. This bill and this idea and this
concept of creating a nationwide claims processing regime, as Justice
Ginsburg called it, is overdue by decades. It is wrong what we are
doing. It is being blocked, I can only conclude, by a partisan special
interest effort. The only people who have an interest in continuing
this despicable regime are a few lawyers who are getting absolutely
rich from it--$54 billion, and you have a 40-percent contingency fee.
Senator Hatch said, when this thing is over, lawyers would make $100
billion. And don't think it is a lot of them. It is not a lot of them.
It is not the basic plaintiff bar. These lawyers have 10,000, 20,000,
30,000 cases they are handling. It is not right. It is wrong. The
people who are blocking this need to be ashamed of themselves.
The Supreme Court Justices have called for reform. It is threatening
our economy. They develop schemes now where companies that had even the
most tangential connection to asbestos are getting sued. If you can
just ever tap them. If a company bought a company that dealt in
asbestos, and that company had ceased dealing with asbestos for 10
years, they can be bankrupted because they have become liable for the
company they bought, their actions 10, 15 years before they bought it.
Do you think that is not possible? It is possible. It is happening
right now.
These companies and the insurance companies and the reinsurance
companies have come together and put up $100 billion--$100 billion. All
we need to do is set up an administrative claims processing system
where persons who are sick, who have any disability, really any health
defect can file a claim. Those who are not ready, those who do not have
a claim, who fear they might be sick at some time in the future, can
file their notice and will be given a constant monitoring of their
health. If they do get sick, they can be compensated fully.
So we would be getting money to the people who are sick. We would be
reducing the need for these huge, outrageous legal fees from the
plaintiffs' lawyers. We would be eliminating all the lawyers' fees paid
by the asbestos companies.
There are companies that bought asbestos companies, and people who
sold brake shoes, and anybody who had anything to do with asbestos, who
are being sued. Now there are 8,400 companies being sued. Most of them
never produced asbestos, never knew anything about asbestos, never
dealt with asbestos. So these people are willing to put up $100
billion.
We simply ought to be able to establish a system by which sick people
can be paid, and paid promptly, without these costs. If we do not, who
is going to lose most? The plaintiffs are going to lose. These
companies are going into bankruptcy. It is hurting this economy. It
will continue to hurt America's economy.
I thank the Presiding Officer. I appreciate the opportunity to share
these remarks. I think it is important. I hope the Senate will move
forward.
I yield the floor.
The PRESIDING OFFICER. The assistant Democratic leader.
Mr. REID. Mr. President, it is my understanding the majority leader
is on his way.
I will withhold and ask the distinguished majority leader to do the
close and then allow me to finish my speech.
The PRESIDING OFFICER. The majority leader.
Mr. FRIST. Mr. President, I appreciate the consideration. I will move
through, fairly quickly, some business that finishes up on today and
explains what we will be doing tomorrow.
____________________