[Congressional Record Volume 152, Number 12 (Monday, February 6, 2006)]
[Senate]
[Pages S706-S718]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2005--MOTION TO PROCEED--
                               Continued

  The PRESIDING OFFICER. Under the previous order, the motion to 
proceed to S. 852 is now pending.
  The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, I take strong offense to the statements 
made by the Senator from Nevada. His accusation that lobbyists are 
buying their way into the Senate is an outrageous violation of rule 
XIX, which provides that no Senator in debate shall directly or 
indirectly, by any form of words, impute to another Senator or to other 
Senators any conduct or motive unworthy or unbecoming a Senator.
  To say that this bill, which Senator Leahy and I have led for the 
better part of the last 3 years, is the result of lobbyists ``buying 
their way into the Senate'' is slanderous. That is a violation of rule 
XIX. It may be that the Senator from Nevada is used to slander, is used 
to libel, because that is what he did recently to 33 Senators. 
Regrettably, nobody has challenged him under rule XIX.
  Rule XIX relates to what is done on the floor of the Senate, but in 
this day and age of debates outside the Senate, of debates on 
television and radio and in the newspaper, 33 Senators were victimized 
by the Senator from Nevada, who then scribbled out a form apology 
letter which was meaningless in the context of what was done. And to 
talk about lobbyists buying their way onto the Senate floor is an 
outrageous distortion of what has happened on this bill.
  The fact is, over the course of the last 2\1/2\ years, there have 
been 36 meetings held in my office, attended by people who have an 
interest in this legislation or their representatives. The AFL-CIO was 
there. Trial lawyers were there. Representatives of the manufacturers 
and representatives of the insurers and anybody else who wanted to come 
in were welcome. I didn't see the Senator from Nevada there once.
  He has talked about the bill in a rambling, disconnected way, which 
proves

[[Page S707]]

only one thing, and that is that he doesn't know anything, really, 
about the bill. He talks about how the Congressional Budget Office has 
issued a report saying that it would cost between $120 and $135 
billion. Under certain contingencies, it might go to $150 billion--
unlikely. The figure really established was $132 billion.
  He talked about the Bates White report which includes people without 
any exposure. He wasn't in attendance at the hearing we had during 
which the CBO came in and filed a supplemental report on the adequacy 
of the $140 billion. That figure is not a concoction of Arlen Specter; 
that figure was negotiated by Senator Daschle and by Senator Frist 
because they concluded that figure was the accurate figure to take care 
of these claims.
  When the Senator from Nevada talks about all of the other subjects 
which could be taken up, he suddenly became interested in LIHEAP, 
importuning Senators from cold States that LIHEAP should be taken up 
instead of the asbestos bill. And when he talks about wind power and 
the debt and every subject virtually under the sun--no real interest in 
LIHEAP until it is a diversion from the asbestos bill. I have been 
around here a while, a little longer than the Senator from Nevada, and 
I never saw so many red herrings at one time. It could fill an entire 
aquarium.
  What he is seeking to do is to obstruct. He has had a lot of practice 
at that. If he is successful in obstructing this bill from going 
forward, it will be a great travesty for the American people, for 
asbestos victims who are now not able to collect because their 
companies are bankrupt.
  Not a word on what the Senator from Nevada had to say about 77 
companies which have gone into bankruptcy. He talks about people with 
mesothelioma, fakes showing some concern while they and their 
dependents are going penniless because there is nobody to pay their 
claims. He says one size fits all. The great problem is, the Senator 
from Nevada doesn't know anything about the bill.
  There has been a very carefully structured schedule of payments. When 
he says the veterans are against it, he is wrong. When he says labor is 
against it, we have a long list of labor unions. Senator Leahy and I 
sat down with the leaders of the AFL-CIO and are working out the few 
remaining objections they have to the bill. When he talks about the 
managers' package, that is acceptance of amendments. We went through 
exhaustive and extensive hearings.
  In regards to the 36 meetings which have been held in my office, we 
brought in a distinguished senior Federal judge, Edward R. Becker, who 
had been the chief judge of the Third Circuit, who accepted my request 
to mediate. Our meetings started in his chambers in August of 2003, 
right after the bill was reported out of the Judiciary Committee during 
the 108th Congress. And we have had, as I said, 36 meetings. I don't 
think Judge Becker can tell you how many meetings he has held 
individually because he can't count that high. I certainly can't tell 
you how many meetings I have had. But I have talked to individual 
Senators repeatedly, probably some 60 or 70 in this body, and when they 
hear what the bill is about, they are interested.
  The one Senator whom I talked to who had absolutely no interest in 
the bill was the Senator from Nevada. All he wants to do is to block 
the bill. When he says this bill is not ready, this bill has been 
subjected to more analysis and more investigation and more 
consideration than any legislation I have seen in my 25 years here, and 
I think it is fair to say more analysis and more consideration than any 
piece of legislation that has been considered in the history of the 
U.S. Senate. Let me put it a different way: I challenge the Senator 
from Nevada or anybody else to cite a piece of legislation which has 
had more analysis and more consideration.
  This bill is more than ready to come to the floor. The difficulty was 
that when we reported it out last May 26, the business of the Senate 
was stacked sky high.
  And try as he might, the distinguished majority leader, Senator 
Frist, could not find time to bring it up. He put it on the agenda as 
the first legislative consideration of the 109th Congress in the second 
session. That is why we are here.
  The arguments--the rambling statements made by the Senator from 
Nevada--I should not call them arguments. They don't rise to the level 
of being arguments. He talks about transparency. We know the individual 
companies in these various groups. We had to subpoena them to get them, 
but we have subpoenaed them. We do have the records.
  When he talks about the lobbyists writing the bill, what an 
outrageous statement to make in the context of what Judge Becker and I 
and Senator Leahy and others have done on this bill. To accuse us of 
being the pawns of the lobbyists is beyond slander, beyond insult. It 
is beyond outrage that those words should come from the mouth of the 
leader of the Democrats in this body.
  When he talks about silicosis, the rights to sue for silicosis are 
maintained. It is a very rare situation where someone has both 
silicosis and an asbestos-related problem. But when you go to court and 
you make a claim under our tort system, you have to prove, in any case, 
whether you claim it is silica, or whatever the cause is, that there is 
not some other cause that is the causative factor of the ailment in 
question. We had a hearing on silicosis. I am sorry to hear about the 
family of the Senator from Nevada who suffered from silicosis. We had a 
very involved hearing on the matter. Do you know who wasn't there? The 
Senator from Nevada--just as he was AWOL every other time when serious 
issues were under consideration.
  Mr. President, I would like to stay here longer this afternoon. I 
will put the full text of a statement in the Record, which is an 
extensive analysis of this bill. Our phenomenal staff has been at work 
on this matter for months, led by two very fine lawyers, Seema Singh 
and Harold Kim, and by many on the Judiciary Committee. This statement 
I recommend to my colleagues to read if they want to understand the 
bill.
  I would not spend too much time reading the Congressional Record on 
what the Senator from Nevada has had to say because there is no 
substance to anything he has had to say. When the charges are made here 
about the lobbyists buying their way into the Senate, Senator Leahy is 
on the floor and he is the cosponsor of the bill. Senator Kohl and 
Senator Feinstein voted the bill out of committee. I had heard this 
ridiculous talk about this being a product of K Street. Well, this 
Senator is not a product of K Street; neither is Senator Leahy, neither 
is Senator Feinstein. As far as Senator Kohl is concerned, he could buy 
and sell K Street himself without any sweat. So to talk about us being 
in the pocket of the lobbyists, I have not been treated like that since 
I came to the Senate. In fact, I have never been treated like that. I 
resent it. I call it a violation of rule XIX.
  I hope the Senator from Nevada will abandon these tactics. There is 
enough objection and controversy and dissent in this body that we don't 
need personal attacks. I have to excuse myself, Mr. President, 
because----
  Mr. REID. Mr. President----
  Mr. SPECTER. Mr. President, I have the floor.
  Mr. REID. I thought you were finished.
  Mr. SPECTER. Again you thought wrong. You are in the habit of 
thinking wrong. I am in mid-sentence, but I am not surprised to be 
interrupted.
  We have other business we are taking care of. I have to soon excuse 
myself to go to the Judiciary Committee hearing, where we are taking up 
the question of electronic surveillance, where we have been in session 
listening to the Attorney General since 9:30 this morning.
  When the Judiciary Committee had taken up this bill, we took it up 
under very difficult circumstances. We started last year with the 
immediate job of confirming the Attorney General. The Senate went into 
session on the 109th Congress on a Tuesday, and we had the Attorney 
General in on Thursday and confirmed him in short order. Then we moved 
through the bankruptcy bill and the class action bill. Then we tackled 
the very tough problem of the filibusters, which had delayed the 
confirmation of circuit judges. We worked through that problem.

[[Page S708]]

  Then in the midst of all that, we had a series of hearings on a wide 
variety of issues: Miller, the New York Times reporter who was kept, 
and the business about identity theft. We worked through hearings on 
the tough immigration problem. Then we took up the issue of the 
confirmation of Chief Justice Roberts, where the staff of the committee 
worked through the month of August; then we took up the question of the 
confirmation of Justice Alito. We worked through the months of December 
and January. While people were globe trotting around the world, we were 
at work on those matters. And through it all, we have produced a bill 
that is solid. It is a bill which is designed to compensate thousands 
of victims of asbestos.
  One thing the Senator from Nevada was right about: Mesothelioma is a 
killer. But the thing he is wrong about is that his position will allow 
these people to be killed without compensation, because their companies 
have gone bankrupt, some 77 of them. We have moved to this trust fund 
after decades and decades of work. I first saw this issue when Senator 
Gary Hart brought Johns Manville into my office in the early 1980s, 
1982 or 1983, and this asbestos problem has defied solution, just 
defied solution--until Senator Hatch came up with the concept of this 
trust fund. Then the trust fund was increased in size from about $90 
billion to $140 billion.
  I didn't hear the Senator from Nevada object when the former 
Democratic leader, Senator Daschle, agreed with Senator Frist that $140 
billion was the accurate figure. I didn't hear him object at all. The 
only time I hear him object is when there is some chance--and it is an 
uphill fight; I am prepared to concede that, but I am used to them. I 
am used to uphill fights. I might even say I enjoy them. But this is 
the first time this issue has come to the floor of the Senate. It has 
been languishing for decades, and I talked to no one who denies the 
basic fact that there is a problem that ought to be addressed. I think 
even the Senator from Nevada, with his vitriol and slander, implicitly 
concedes it is a major problem that ought to be addressed.
  Now, a motion to proceed takes up the issue as to whether you ought 
to consider the bill. If the Senator from Nevada has valid amendments, 
I would like to see them. If he has a better bill, I would like to see 
that. I would vote for anybody's bill that is better than this one 
because we have to address the issue. When he talks about the Budget 
Committee, there are some technical problems here because the money 
goes through the Department of Labor, so it is a Federal expenditure, 
but it is not Government money; it is money contributed by the insurers 
and the manufacturers. There is no impact on the budget.
  This bill is ironclad to eliminate any possibility of Federal 
funding. But if you want to use obstructionist tactics and filibuster--
the Senator from Nevada is good at that--if you want to use 60 votes to 
try to kill it on a motion to proceed, so be it. I know what the rules 
are here. But there is no reason not to proceed, and there is every 
reason to proceed. If you want to use the 60-vote technicality to 
sustain a budget point of order, you can do that, too. But there is no 
adverse impact on the Federal budget.
  I regret I cannot stay and engage in this colloquy. I do have to get 
back to the Judiciary Committee.
  I ask unanimous consent that the text of my full statement be printed 
in the Record.
  Mr. President, again, this is S. 852, the Fairness in Asbestos Injury 
Resolution Act of 2005, FAIR Act, the successor to S. 1125 and S. 2290, 
the FAIR Acts of 2003 and 2004. My colleagues, Senator Frist, Senator 
Hatch and Senator Leahy, deserve enormous credit for the drafting of 
these acts and for the development of this legislation. There is a will 
in the Senate to enact legislation to end the ongoing rash of 
bankruptcies; to prevent the diversion of resources from those who are 
truly sick; to preserve jobs and pensions; and to solve the worst 
litigation crisis in the history of the American judicial system. The 
Senate plainly wants a more rational asbestos claims system, and I 
believe that this legislation offers a realistic prospect of 
accomplishing that result.
  This legislation provides substantial assurances of acceptable 
compensation to asbestos victims and substantial assurances to 
manufacturers and insurers to resolve, with finality, asbestos claims. 
Over the past three decades, a solution to the asbestos crisis has 
eluded Congress and the courts. Some 77 companies have gone bankrupt, 
thousands of individuals who have been exposed to asbestos have deadly 
diseases--mesothelioma and other such ailments--and are not being 
compensated or because of the unfairness of the current system, see 
little of the awards they do win. A May 10, 2005, report released by 
the RAND Institute for Civil Justice estimates that nonmalignants make 
up about 90 percent of the litigation and most are unimpaired. 
According to RAND, the number of claims continues to rise, with over 
730,000 claims filed already and some 200,000 pending. The number of 
asbestos defendants also has risen sharply, from about 300 in the 
1980s, to more than 8,400 today and most are users of the product, not 
its manufacturers. These companies represent 85 percent of the U.S. 
economy and nearly every U.S. industry; including automakers, ship 
builders, textile mills, retailers, insurers, electric utilities and 
virtually any company involved in manufacturing or construction in the 
last 30 years.
  Asbestos leaves many victims in its wake. First and foremost, the 
sick and their families have suffered and do not receive fair 
compensation in the tort system. Asbestos victims filing claims receive 
an average of 42 cents for every $1 spent on asbestos litigation. 
Today, 31 cents of every $1 have gone to defense costs, and 27 cents 
have gone to plaintiffs' attorneys and other related costs.
  The flawed asbestos litigation system not only hurts the sick and 
their chances of receiving fair compensation but also claims other 
victims. These include employees, retirees and shareholders of affected 
companies whose jobs, savings and retirement plans are jeopardized by 
the tide of asbestos cases. With asbestos litigation affecting so many 
companies, this also impacts the overall economy, including jobs, 
pensions, stock prices, tax revenues and insurance costs. According to 
a 2002 study by Nobel laureate Joseph Stiglitz, asbestos bankruptcies 
have cost nearly 60,000 workers their jobs and $200 million in lost 
wages. Employees' retirement funds have shrunken by 25 percent.
  In July 2003, the Judiciary Committee voted out S. 1125, a bill with 
numerous problems, largely along party lines, 10 yeas, 8 nays, 1 pass, 
in an effort to move the legislation. S. 1125 created the basic 
structure of the legislation, and made huge strides in working out the 
medical criteria. However, the bill foundered on other issues. In 
August, at my request, Judge Edward R. Becker, a Federal judge for 34 
years, convened in his chambers in Philadelphia the so-called 
stakeholders; namely, manufacturers, labor, AFL-CIO, insurers and trial 
lawyers--to determine if some common ground could be found. Until the 
preceding May, Judge Becker had been the Chief Judge of the Third 
Circuit Court of Appeals and wrote the opinion in the asbestos class 
action suit that was affirmed by the U.S. Supreme Court.

  From September 2003 through January 2005, there were some 36 
stakeholder meetings held in my conference room, with Judge Becker as a 
pro-bono mediator, usually attended by 25 to 40 representatives with 
sometimes over 75 people present. I have also met 61 times since 
January 2005 with various officials from the administration, members of 
the Senate Judiciary Committee and their staffs, the Senate leadership 
and other Senators all in an effort to move this bill forward. Judge 
Becker and I have sought an equitable bill which took into account, to 
the maximum extent possible, the concerns of the stakeholders and to 
get their input on drafting of the bill. After analysis and 
deliberation, we found we could accommodate many of the competing 
interests.
  This process commenced with the blessing of then-Chairman Hatch and 
Ranking Member Leahy of the Judiciary Committee. This extended process 
allowed the stakeholders an extraordinary ``hearing'' process and 
really amounted to the longest ``mark-up'' in Senate history although 
not in the customary framework. We have had the

[[Page S709]]

cooperation of many Senators. Senators Hatch and Leahy have had 
representatives at all the meetings. The majority leader, Senator 
Hatch, and Senator Leahy have addressed this ``working group'' at our 
meetings. Senator Hatch's and Senator Leahy's representatives have been 
active participants at every meeting, as well as the members of the 
staffs of Senators Baucus, Biden, Brownback, Burns, Carper, Chafee, 
Chambliss, Coburn, Cornyn, Craig, DeWine, Dodd, Durbin, Feingold, 
Feinstein, Graham, Grassley, Hagel, Kennedy, Kohl, Kyl, Landrieu, 
Levin, Lincoln, Murray, Ben Nelson, Pryor, Schumer, Sessions, Snowe, 
Stabenow, and Voinovich.
  In 1997, the Supreme Court commented for the first time on the 
growing asbestos problem by stating, in the context of holding that 
asbestos litigation was not susceptible to class action treatment:

       The most objectionable aspects of this asbestos litigation 
     can be briefly summarized: dockets in both federal and state 
     courts continue to grow; long delays are routine; trials are 
     too long; the same issues are litigated over and over; 
     transaction costs exceed the victims' recovery by nearly two 
     to one; exhaustion of assets threatens and distorts the 
     process; and future claimants may lose altogether. . . .

  In the ensuing years with asbestos litigation increasingly choking 
the courts, the Supreme Court has repeatedly called upon Congress to 
act through national legislation:
  In one case, the Court observed ``the elephantine mass of asbestos 
cases . . . defies customary judicial administration and calls for 
national legislation.''
  A concurrence in the same decision found that the asbestos crisis 
``cries out for a legislative solution.''
  As recently as 2003, the Supreme Court reminded us that it had 
``recognized the danger that no compensation will be available for 
those with severe injuries caused by asbestos . . . It is only a matter 
of time before inability to pay for real illness comes to pass.''
  Even though he dissented from the majority holding in that 2003 case, 
Justice Breyer observed: ``Members of this Court have indicated 
that Congress should enact legislation to help resolve the asbestos 
problem. Congress has not responded.''

  The FAIR Act of 2005 is a response to the Supreme Court's many calls 
for national legislation to fix a broken asbestos litigation system. It 
is the product of these extensive negotiations among the key 
stakeholders. Throughout this process, the stakeholders reached 
important compromises that are now embodied in S. 852. The Judiciary 
Committee also spent a month marking up the bill last May during which 
time the committee accepted 75 amendments from both Republican and 
Democratic members. After extensive deliberation, the committee 
reported the bill favorably on May 26, 2005 on a strong bipartisan vote 
of 13-5.
  The concept of a trust fund is an outstanding idea. Senator Hatch 
deserves great credit for moving the legislation in the direction of a 
trust fund with a schedule of payments analogous to workers' 
compensation so the cases would not have to go through the litigation 
process. Under this proposal, the Federal Government would establish a 
national trust fund privately financed by asbestos defendant companies 
and insurers. No taxpayer money would be involved. Asbestos victims 
would simply submit their claims to the fund. Claimants would be fairly 
compensated if they meet medical criteria for asbestos induced 
illnesses and show past asbestos exposure. The trust fund would 
guarantee compensation for impaired victims.
  Through a series of meetings with Judge Becker, we have wrestled with 
and have been able to solve a number of very complex issues. The size 
of the trust fund was always a principal issue of dispute, starting at 
$108 billion. The manufacturers/insurers raised their offer to $140 
billion. In October 2004, Majority Leader Frist and then-Democratic 
Leader Daschle agreed to $140 billion. When Senator Frist and Senator 
Daschle, in an adversarial context, agreed to the adequacy of the $140 
billion figure, it is difficult to exceed it even though the AFL-CIO 
did not contemporaneously agree.
  It is not possible to say definitely what figure would be adequate 
because it depends on the uncertainty of how many claims will be filed. 
There is support for the adequacy of the $140 billion figure from 
reputable projections, including the Congressional Budget Office cost 
estimate.
  Since this bill was discharged from this committee in May, new 
reports analyzing the bill have been published--such as the CBO report 
and the Bates White report. In late August 2005, the non-partisan 
Congressional Budget Office issued its analysis of the bill. In its 
report, the CBO predicted that asbestos claims and award values could 
fall anywhere between $120 to $150 billion, and as a middle of the road 
assessment, concluded that the fund would likely payout $132 billion 
over the life of the fund. It was reassuring to see CBO project $132 
billion as adequate to pay the claims in a contest where there are so 
many variables that do not lend themselves to precise projections or 
predictions. Even in the range of that uncertainty, the CBO has 
estimated that claims could be as low as $120 billion and no higher 
than $150 billion so that our legislation with $140 billion is 
reasonable and realistically calculated to cover the claims, especially 
in the context with the provisions for review of medical criteria and 
award values to reduce expenditures or increase contributions in the 
trust fund.

  In September 2005, the analysis by the Bates White firm concluded the 
proposed fund would face claims of between $301 billion and $561 
billion, projecting that claimants with lung and other cancers, would 
inundate the fund. A hearing on this issue was held by the Judiciary 
Committee on November 17, 2005. During the hearing we heard testimony 
on both sides of the issue. The Bates White study proved to be fatally 
flawed for reasons detailed at that hearing. Thus, in December 2005, 
CBO confirmed its original cost estimate, reaffirming that $140 billion 
would be sufficient to cover claims filed for compensation under the 
trust fund.
  The real safety valve, if the fund is unable to pay claims, is for 
the injured to have the ability to go back to court if the system is 
not operational and able to pay exigent health claims within 9 months 
after enactment, and all other valid claims within 24 months of 
enactment. Upon reversion to the tort system, the bill provides that 
claimants may file suits either in Federal Court or State Court in the 
State in which the plaintiff resides or State courts where the asbestos 
exposure took place. Forum shopping has been eliminated.
  The claimants object to any hiatus between access to the courts and 
an operating system; but the reality is that court delays are 
customarily longer than the delay structured in this system. The 
defendants and insurers object saying it is too short a time frame, but 
they have the power to expedite the process by promptly paying their 
assessments. Leaders of the Manville Trust and the RAND Institute study 
provide a solid factual basis that the volume of claims can be 
efficiently administered by the fund administrator using a technique 
developed by the Manville Trust and other similar claims facilities 
that have processed asbestos claims for many years. The Manville Trust 
has processed as many as 150,000 claims per year. The number of exigent 
claims anticipated in the first 9 months of the fund is vastly smaller 
and even the total number of claims anticipated in the first 24 months 
is significantly less that which the Manville Trust has handled in a 
comparable period. Additionally, the bill provides the administrator 
with the option to contract out the exigent claims to a claims facility 
for expedited processing under the standards of the fund on a voluntary 
basis. The short time frame will prod the system to become operative at 
an early date. The bill sends the claims back to the fund as soon as it 
is certified operational with a credit for any payment of the scheduled 
amount.
  Similarly, the defendants seek a commitment that the legislation will 
bar return to the courts for at least 7\1/2\ years. It is hard to see 
how the substantial fund would be expended in a lesser period. Here 
again, the legislation gives the defendant substantial assurances that 
the system will last at least 7\1/2\ years. If it collapses, the 
claimants should not bear the burden, but should reclaim their 
constitutional right to a jury trial. However, sunset

[[Page S710]]

cannot take place before there is an extensive and rigorous ``program 
review.'' This would give the administrator an opportunity to refashion 
the program to compensate for any major shortcomings.
  The claimants sought $60 billion in startup contributions within 5 
years and the defendants countered with a maximum of $40 billion. The 
fund's borrowing power should enable it to borrow at least the balance 
of $20 billion because of the defendants continuing substantial 
financial commitments. Here again, the bill meets the standard of 
substantial assurances that $60 billion will be in hand within the 
first 5 years.

  A key issue for the claimant has been that of workers' compensation 
subrogation. This issue is important because the value of an award to 
the claimant depends on whether the claimant may have to pay a 
substantial amount of it to others. While the precise picture is 
different from State to State, in general, workers' compensation laws 
give employers, and their insurance carriers, subrogation rights 
against third-party tortfeasors and a lien on the injured employee's 
recovery from a third-part tortfeasor. This is a big issue because 
workers' compensation covers the employees' medical costs.
  We closely examined and considered including a proposal that would 
have called for a so-called workers' compensation ``holiday.'' Such a 
proposal would have provided for a ``holiday'' from worker's 
compensation payments during the period of receipt of payments from 
trust fund except to the extent that the compensation would exceed 
them, with a waiver of past and future subrogation. However, as each 
State has different workers' compensation laws, we concluded that such 
a proposal could go beyond the practice in a number of States, leaving 
some claimants with a significantly reduced award.
  Furthermore, claimants assert, with a substantial basis that the 
award values in the bill were designed with the understanding that 
there would be no liens or rights of subrogation against the claimants 
based on workers' compensation awards and health insurance payments.
  Therefore, after substantial analysis, we have determined that to be 
fair to victims, claimants should be allowed to retain both their fund 
awards and workers' compensation payments. It is important that the 
bill must extinguish any liens or rights of subrogation that other 
parties might assert against the claimants based on workers' 
compensation awards and health insurance payments.
  Another key issue for the claimants has been the legislation's 
treatment of asbestos disease claims under the Federal Employers' 
Liability Act, FELA, the workers' compensation system for rail workers. 
Earlier versions of the bill would have preempted FELA claims for 
asbestos-related diseases, limiting victim's recovery to compensation 
under a national asbestos trust fund. Rail labor asserts that such an 
approach is unfair to rail workers, since for all other workers, the 
bill maintains workers' compensation rights. Alternative approaches to 
dealing with the FELA issue have been proposed, including providing for 
a supplemental payment, in addition to awards under the bill, to 
provide compensation to rail workers for work-related asbestos 
diseases. The AFL-CIO's affiliates which represent workers in the rail 
industry have been engaged in discussions with industry on this issue, 
and a fair resolution has been reached. The bill provides for a 
principled compromise that would allow for a special adjustment for 
railroad workers so that the compensation award would be structured in 
a manner that would allow for corollary benefits--similar benefits for 
workers under FELA and workers compensation. It also clarifies that 
this legislation intends to deal solely with asbestos claims and does 
not in any manner impact FELA.
  In these marathon discussions, plus four committee hearings on the 
issue in 2005, we understand the deep concerns expressed by the 
stakeholder representatives on more concessions for their clients. On 
the state of the 20-year record, this choice is not between this bill 
and one which would give their clients more concessions. The choice is 
between this bill and the continuation of the present chaotic system 
which leaves uncompensated thousands of victims suffering from deadly 
diseases and litigation driving more companies into bankruptcy.
  We considered at length the manufacturers/insurers objections to 
medical screening, but concluded such a provision was necessary as an 
offset to the reduced role of claimant's attorney. With the previous 
potential of a substantial contingent fee, claimants' attorneys 
identified those damaged by exposure to asbestos. Absent that 
motivation, with the attorneys' fees capped at 5 percent, it is 
reasonable to have routine examinations for people who would not be 
expected to go for such checkups on their own; so as a matter of basic 
fairness, such screening is provided. By establishing a program with 
rigorous standards, as we have done in this bill, unmeritorious claims 
can be avoided with the fair determination of those entitled to 
compensation under the statutory standard.
  The legislation has closely examined the issues of so-called 
``leakage'' in the fund and has provided that all asbestos claims 
pending on the date of enactment, except for non-consolidated cases 
actually on trial, and except cases subject to a verdict or final order 
or final judgment, will be brought into the asbestos trust fund. 
Furthermore, only written settlement agreements, executed prior to date 
of enactment, between a defendant and a specifically identifiable 
plaintiff will be preserved outside of the fund; the settlement 
agreement must contain an express obligation by the settling defendant 
to make a future monetary payment to the individual plaintiff, but 
gives the plaintiff 30 days to fulfill all conditions of the settlement 
agreement.
  We have also included in the legislation language designed to ensure 
prompt judicial review of a variety of regulatory actions and to ensure 
that any constitutional uncertainties with regard to the legislation 
are resolved as quickly as possible. Specifically, it provides that any 
action challenging the constitutionality of any provision of the act 
must be brought in the United States District Court for the District of 
Columbia. The bill also authorizes direct appeal to the Supreme Court 
on an expedited basis. An action under this section is to be filed 
within 60 days after the date of enactment or 60 days after the final 
action of the administrator or the commission giving rise to the 
action, whichever is later. The District Court and Supreme Court are 
required to expedite to the greatest possible extent the disposition of 
the action and appeal.
  Claimants also expressed the need for assurances on the manufacturers 
payment into the fund. Therefore, S. 852 requires enhanced 
``transparency'' of the payments by the defendants and insurers into 
the fund. The proposal provides that 20 days after the end of such 60-
day period, the administrator shall publish in the Federal Register a 
list of such submissions, including the name of such persons or 
ultimate parents and the likely tier to which such persons or 
affiliated groups may be assigned. After publication of such list, any 
person may submit to the administrator information on the identity of 
any other person that may have obligations under the fund. In addition, 
there are enhanced notice and disclosure requirements included in the 
legislation. It also provides that within 60 days after the date of 
enactment, any person who, acting in good faith, has knowledge that 
such person or such person's affiliated group would result in placement 
in the top tiers, shall submit to the administrator either the name of 
such person or such person's ultimate parent; and the likely tier to 
which such person or affiliated group may be assigned under this act.

  As I have mentioned previously, this legislation deals with a number 
of very complex issues, one of them being that of ``mixed-dust.'' We 
held a hearing in the Judiciary Committee on this issue on February 2, 
2005. The manufacturers fear that many asbestos claims will be 
``repackaged'' as silica claims in the tort system. Evidence adduced at 
the hearing reflects that this has been happening in a number of 
jurisdictions. If a claim is due to asbestos exposure at all, the 
program should be the exclusive means of compensation. The stakeholders 
agree that this is an asbestos bill, designed to dispose of all 
asbestos claims but that workers with

[[Page S711]]

genuine silica exposure disease ought to be able to pursue their claims 
in the tort system. The problem is that with those claims where the 
point of demarcation is unclear. Silica/asbestos defendants are worried 
that they will find themselves in court with the burden of proving that 
the plaintiffs injury is due to asbestos rather than silica. S. 852 
makes clear that pure silica claims are not preempted, but claims 
involving asbestos disease are preempted. A claimant must provide 
rigorous medical evidence establishing by a preponderance of evidence 
that their functional impairment was caused by exposure to silica, and 
asbestos exposure was not a significant contributing factor. Although 
this does impose the burden on the claimant, this is no different than 
the burden the plaintiff or any party advancing a position has in 
producing medical evidence in any case that the physician will state 
that a disease was caused by some condition or exposure or that it was 
not caused by some condition or exposure. In addition, the testimony 
given at the February hearing on the issue established that asbestos 
and silica are easily distinguishable on x ray and that asbestos and 
silica rarely are found in the same patient.
  Another very complicated issue I have addressed in my legislation, at 
the request of the claimants, is that of providing for award 
adjustments for exceptional mesothelioma cases based on age and the 
number of dependents of the claimant. For example, a mesothelioma 
victim who is 40 years old with two children will be able to get an 
upwards adjustment in his award amount as compared to a 80 years 
mesothelioma victim with no dependents. The impact of such adjustments 
to the fund will remain revenue-neutral.
  There has been a strong concern that this bill should not become a 
``smokers'' bill rather than an asbestos bill--that thousands of 
smokers will claim to be in the level VII compensation tier in order to 
get money even if asbestos had nothing to do with their disease. After 
long discussions with the various sides, it has been decided to remove 
level VII cases from the fund, cases which had the potential to bring 
down the entire fund.
  There has also been a concern with the legitimacy of the level VI 
compensation tier. We requested that the Institute of Medicine, IOM, 
commence a study to assess the medical evidence so as to determine 
whether colorectal, laryngeal, esophageal, pharyngeal or stomach cancer 
can be caused by asbestos exposure. The IOM will conclude its study of 
level VI causation by April 2006. With a 270-day stay on exigent cases 
and 2-year stay of all other cases, this has the practical impact of 
the IOM study results being conclusive on inclusion or exclusion of 
level VI prior to any claim being filed.

  Therefore, the bill retains the level VI tier pending the IOM study 
conclusions but continues to provide extensive safeguards to the fund 
against those individuals with these diseases making claims against the 
Asbestos Trust Fund. Any level VI claim must be based on findings by a 
board-certified pathologist accompanied by evidence of a bilateral 
asbestos-related nonmalignant disease; evidence of 15 or more weighted 
years of substantial occupations exposure to asbestos; and supporting 
medical documentation establishing asbestos exposure as a contributing 
factor in causing the cancer in question. The claim must also be 
referred to a physicians panel for a determination that it is more 
probable than not that asbestos exposure was a substantial contributing 
factor in causing the other cancer in question. Further, the bill 
mandates that the physicians panel review the claimants smoking history 
as opposed to ``claimant may request.''
  The FAIR Act is a complicated bill, but one that is both integrated 
and comprehensive and reflective of a remarkable will to enact 
legislation. If this bill is rejected, I do not see the agenda of this 
Senate Judiciary Committee revisiting the issue. I cannot conceive of a 
more strenuous effort being directed to this subject that has been done 
over the past 2\1/2\ years. This is the last best chance.
  I remain confident that during debate on the Senate floor, we can 
forge and enact a bill that is fair to the claimants and to business 
and that will put an end once and for all to this nightmare chapter in 
American legal, economic and social history. If we can summon the 
legislative will in a bipartisan spirit, it can be done. Anything less 
would preserve the injustices of a system that even the highest Court 
of this country has called upon the Congress to fix.
  The PRESIDING OFFICER. The Democratic leader is recognized.
  Mr. REID. Mr. President, I want to make sure the record reflects that 
I have the highest regard for Pat Leahy and Arlen Specter. If I in any 
way embarrassed them or hurt their feelings, I am sorry I did that. 
Certainly, it was nothing I said that indicated they did anything that 
was unbecoming regarding this legislation. That is how I feel. But that 
doesn't take away from the fact that I think it is outrageous that 
these 13 companies spent $144.5 million lobbying this legislation. I 
will not get away from that.
  We need lobby reform in this country. We need to start on that right 
now. I want to make sure the record reflects this also. The week before 
last, my communications center put out a piece of mail I didn't see. It 
went out--and that is not much of an excuse, but it is true. The minute 
I learned about it, I wrote a letter. It was as close as anything I 
could do from my heart. What I did in not reading that letter before it 
went out from my office is wrong. I take full blame for that. But 
anything in that letter--I mean, to show you, Mr. President, there was 
a derogatory statement about my friend from Nevada, Senator Ensign. As 
everyone knows here, I would never say anything negative about him. We 
may disagree on legislation, but I would never say anything in a 
negative way about him. He was one of the 33 mentioned in that letter. 
So I apologized to him and to all 32 others. I meant that. It was wrong 
what I did, but I have said that.
  I am sorry my friend from Pennsylvania raised that. I did the best I 
could in resolving that as an issue, putting that to each of those 
Senators, saying I am sorry. I received phone calls from a number of 
Senators and I have had personal meetings with them. They accepted my 
apology.
  Also, we should not do things on a personal basis here, and I didn't 
do that. I complained bitterly about this legislation. I cannot stand 
this legislation, and contrary to what my friend from Pennsylvania 
says, I pretty well understand it. Maybe I don't understand it as well 
as he does, but I understand it. Everything I said about this 
legislation in my remarks is meant by me. I meant every word I said.
  For the Senator to disparage me because I didn't attend the Judiciary 
Committee hearing, I am not a member of the committee. If I spent my 
time, or the Presiding Officer did, going to committees we don't belong 
on, it would make for a very difficult scene around here.
  I disagree with my friend, the Senator from Vermont, Senator Leahy, 
on this legislation. I think it is misguided legislation. But he did it 
and I have talked to him personally about how I think it is bad. He 
told me where he thinks it is good. We disagree. I asked the assistant 
Democratic leader, Senator Durbin, to be the floor manager on this 
because he and I and the vast majority of the Democrats oppose this 
legislation.
  I am sorry the Senator from Pennsylvania thought my remarks were 
rambling and disconnected. I guess it is up to the people who watch 
this--not my friend from Pennsylvania--to determine whether it is 
rambling and disconnected. If the Senator thinks I was in some way 
disparaging him, I certainly didn't mean it. I am disparaging this 
legislation. I think it is bad legislation, and I think the people it 
hurts more than anybody else are the victims.
  The distinguished Senator from Pennsylvania said I have no interest 
in this legislation. Why would I be here if I have no interest in the 
legislation? I have an interest. It is different than his. He says I 
fake concern about this. I am sorry he feels that way. I am concerned 
about this legislation.
  For the reasons I have enumerated in my opening statement, I think 
this is a bad piece of legislation that is not good for the American 
people.
  The bankrupt companies--of course, I am concerned these companies 
went bankrupt. For example, U.S. Gypsum is

[[Page S712]]

out of bankruptcy. It has made a settlement. It has settled with all 
the claimants for under $1 billion. But it is interesting. They have 
said, coming out of bankruptcy and their settlement, if this 
legislation passes, they will have to contribute $3 billion to this 
fund. I would rather U.S. Gypsum contributed money to any trust fund 
than all these many companies I talked about, three of whom have been 
in business for many years and have said they are going to go into 
bankruptcy.
  I believe, as far as saying some unions favor this legislation, there 
are a few--very few, such as the United Auto Workers. I have a letter, 
which I ask unanimous consent be printed in the Record, from the AFL-
CIO. They oppose this legislation.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         American Federation of Labor and Congress of Industrial 
           Organizations,
                                 Washington, DC, February 2, 2006.
       Dear Senator: I am writing to outline the AFL-CIO's 
     concerns about the Fairness in Asbestos Injury Resolution Act 
     of 2005 (S. 852), legislation that will have a direct impact 
     on millions of workers exposed to asbestos.
       On May 24, 2005 we wrote to Senators to express our view 
     that S. 852 contained important deficiencies that would deny 
     fair and timely compensation to tens of thousands of asbestos 
     victims. With the bill headed to the floor, perhaps as early 
     as next week, I am writing to restate these objections with 
     the hope that they will be addressed before the Senate 
     completes action on the bill. Though several AFL-CIO 
     affiliates have recently expressed support for the bill, a 
     majority continue to feel that unless these issues are 
     satisfactorily resolved, the asbestos trust fund will fall 
     short of its promise to fairly compensate the victims of this 
     devastating disease.
       First, we remain deeply dismayed about the bill's start-up 
     provisions, where the interests of defendants who are 
     responsible for the disease crisis have become paramount and 
     the needs of victims have become a secondary consideration. 
     Addressing the so-called ``leakage'' to the tort system has 
     become more important than ensuring just compensation for 
     those who are sick.
       As currently amended, S. 852 places the burdens and risks 
     of the fund's start-up squarely on the shoulders of those who 
     are sick. If S. 852 becomes law, by any realistic estimate it 
     will take more than a year--and very possibly several years--
     to put in place the procedures, and retain and train the 
     personnel necessary to properly administer not only the new 
     claims procedure, but also the complex mechanism established 
     under the bill for assessing and collecting contributions 
     from defendants and insurers. As recent experience has amply 
     demonstrated, the infrastructure necessary to properly 
     operate a major new program of this magnitude simply cannot 
     be created overnight. Under S. 852, however, the ability of 
     asbestos victims to obtain compensation through the current 
     system is cut off immediately upon enactment. Not only are 
     provisions eliminating access to the courts for asbestos 
     victims effective as soon as the bill becomes law, the bill 
     also provides for immediate shutdown of the so-called 
     ``524(g)'' bankruptcy trusts established by companies like 
     Halliburton and Johns Manville to pay asbestos claims--trusts 
     that are currently providing compensation to tens of 
     thousands of asbestos victims per year, using funds 
     specifically set aside in bankruptcy proceedings expressly 
     for the purpose of paying asbestos claims.
       The bill attempts to provide a mechanism through which 
     terminally ill claimants will be able to obtain payments 
     during the period before the new fund is fully operational, 
     but all other claimants, no matter how serious their illness 
     or disability, can be left without a remedy for an indefinite 
     period of time. If the fund is still not operational after 24 
     months, the bill ostensibly gives those claimants the right 
     to pursue their claims in court. But that right is in fact 
     illusory, since if and when the fund does become operational 
     the right to proceed in court will again be extinguished, 
     making it impractical for claimants to pursue that option. 
     And because the bankruptcy trusts are eliminated as of 
     enactment, that remedy will remain unavailable. Thus, the 
     practical effect of the bill will be to leave non-exigent 
     claimants with nowhere to go to obtain compensation for their 
     illness until such time as the fund is able to process their 
     claims, no matter how long that takes. Using CBO estimates, 
     by 2008 the number of sick claimants in this situation could 
     number more than 110,000.
       In our view, it is unfair to leave victims with serious 
     illnesses without any remedy in this manner. The uncertainty 
     associated with the start-up of the fund should be borne by 
     those responsible for the asbestos disease crisis--the 
     defendant companies--not asbestos disease victims. At a 
     minimum, the bill should permit the asbestos bankruptcy 
     trusts to remain in place to pay all impaired claimants who 
     qualify under those trusts, until the national trust fund is 
     fully operational.
       Second, S. 852 unfairly restricts the legal rights of 
     victims with silica disease. It establishes medical criteria 
     for lawsuits by individuals who have both asbestos-related 
     disease and silica-related disease, which will bar many of 
     them from seeking compensation for their silica-related 
     injury. The only recourse for victims of both diseases will 
     be to seek compensation for their asbestos disease from the 
     asbestos fund--which in most cases will be limited to $25,000 
     for Level II ``mixed disease.'' This legislation should not 
     be a tort reform bill for silica disease. All victims with 
     silica-related disease, including those who also have 
     asbestos disease, should have the right to seek redress in 
     the courts for their silica injury, with any damages limited 
     to the injury attributable to their silica exposure.
       Third, the sunset provisions of the bill are also 
     problematic and unclear. While the bill provides for a return 
     to the tort system in the event the trust fund has 
     insufficient funds, as drafted the bill does not provide for 
     an orderly process for anticipating and working to correct 
     identified problems before reaching the point where the fund 
     would be forced to shut down. In addition, in the event of 
     reversion, some claimants would be barred from returning to 
     court due to problems with provisions on post-sunset statute 
     of limitations and language limiting the legal venue where 
     claims may be brought. A provision added at mark-up that 
     relieves insurers of their guaranteed funding obligation 
     creates another major problem. This provision undermines the 
     funding formula, borrowing authority, and sunset 
     determination and may leave the fund with a shortfall it 
     cannot make up.
       Fourth, the bill completely cancels legal and otherwise 
     binding settlements unless (a) they are signed by the 
     individual plaintiff and the ``settling defendant'' before 
     the enactment date and
       (b) within 30 days after enactment, all parties complete 
     all required performance, except making payments. Because 
     nothing requires the ``settling defendant'' to sign the 
     agreement or to complete performance, this permits defendants 
     to void their commitments. These settlements are legal 
     commitments by defendants to provide compensation, in 
     exchange for which plaintiffs have given up their legal 
     rights. There is no justification for enabling defendants to 
     abrogate those agreements, cancel payments to victims, many 
     of whom have been waiting for years, and require the 
     claimants to go back to square one and start a whole new 
     process in the fund.
       Fifth, we remain deeply concerned about the bill's overly 
     broad definition of an asbestos claim. S. 852 is intended to 
     provide an alternative remedy for personal injury claims 
     related to asbestos, and preempts these claims from being 
     pursued in the tort system. But rather than limit the bill's 
     application to such claims, the bill defines asbestos claim 
     very broadly, to include virtually any civil action that is 
     directly or indirectly related to the health effects of 
     exposure to asbestos, and then includes a list of the 
     specific types of claims that are excluded. This overly broad 
     definition of asbestos claim will have the unintended effect 
     of preempting many civil actions related to asbestos that 
     have nothing to do with personal injury claims. The 
     definition of asbestos claim should be clear and limited to 
     personal injury claims, which is the only type of claim for 
     which the Fund will be providing compensation.
       Sixth, while we support limits on attorneys fees, we 
     believe that the hard 5 percent cap for all claims may not be 
     sufficient for claimants with complex cases to obtain 
     adequate legal representation, and that a different type of 
     cap/fee limitation is needed for the Level I claims that do 
     not have a monetary award. The AFL-CIO believes that the fee 
     limitation should be applied to claims involving monetary 
     awards and that the Administrator should be given the 
     discretion to increase the attorneys' fee limit if experience 
     shows that it is impeding the ability of claimants to secure 
     compensation under the Act.
       In addition to these long-standing issues, in the past 
     several months new important information about potential 
     claims and costs has become available from the Manville Trust 
     and others that suggests that future mesothelioma cases, as 
     well as the number of pending claims, maybe significantly 
     higher than previously estimated. The Congressional Budget 
     Office should conduct a full review of this new information 
     so the Senate can have the most up-to-date cost analysis as 
     it considers this legislation.
       Throughout the legislative process, our goal has been to 
     arrive at a bill that provides fair and timely compensation 
     to victims through an efficient and workable process. We 
     acknowledge that important improvements to S. 852 have been 
     made, but more needs to be done before the bill can fulfill 
     its promise to provide fair and timely compensation to the 
     victims of asbestos disease.
           Sincerely,
                                                  John J. Sweeney,
                                                        President.

  Mr. REID. Mr. President, the final point I would like to say, through 
the Chair to the senior Senator from Pennsylvania, is I didn't mention 
LIHEAP in my statement. I didn't mention it at all, although it is 
something we need to take up, but for reasons I was discussing with 
Senator Frist, I decided not to do that.
  The other issues I meant to bring up but I didn't mention LIHEAP. 
That

[[Page S713]]

didn't come from my mouth. LIHEAP is something we are obligated to do 
and do it as soon as we can. There has been a commitment made by the 
majority leader and me to a Senator from the majority that we would do 
something about that. But I didn't mention LIHEAP.
  I know the Senator spent a lot of time on this. One of his friends, a 
classmate--I don't know what the relationship is, but it goes back many 
decades--Judge Becker, they spent a lot of time on this. I know this 
legislation means a lot to the Senator from Pennsylvania.
  But just because this legislation means a lot to him doesn't mean I 
have to support it.
  As much as I think of the Senator from Pennsylvania, which is a lot--
I have had admiration for him and told him on many occasions. I am one 
of the few people who read his book, and I enjoyed reading his book. If 
I hurt the Senator's feelings--maybe that is the wrong word--I 
apologize.
  Certainly, the Senator from Vermont and I know each other very well. 
I would never, ever intentionally do anything to embarrass or hurt his 
feelings. I say, through the Chair to my friend from Vermont, I don't 
like this legislation. It is bad, and I am going to do everything I can 
to stop this bill from going through. If I can't do it, then I am a big 
guy, and I understand a lot of times you don't win around here. But 
that doesn't take away my obligation of doing the very best I can to 
talk about this legislation. I am going to continue doing that. I don't 
like this legislation for the reasons set forth.
  A final thing I would like to say is that I have given these 
estimates as to what is wrong with the bill from a dollar perspective. 
There are parts that I have read. I think I am right, and I think time 
will prove, without question, that $140 billion is wrong, no matter if 
Senator Frist or Senator Daschle, or whoever, agreed to this amount. 
Where the number came from, I don't know, but it certainly is not 
enough. Looking back a couple years ago when Senator Daschle was 
involved in this issue, maybe he at that time thought it was the right 
amount. I have disagreed, and I disagree now.
  Again, so the record is clear, I don't mean to violate rule XIX, but 
I am going to continue pushing for reform. When legislation such as 
this requires 13 companies to spend $144.5 million on lobbying 
activities, that is too much.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, very briefly, my feelings are not hurt. 
My feelings are an irrelevancy. If they were relevant, they still have 
not been hurt. My concern is for the feelings of the people who have 
been victimized by asbestos and have no one from which to collect.
  I don't make any point about having done a lot of work on this bill. 
I don't do piecework around here. I do work on a lot of bills. I do not 
personalize it at all. My thrust is strictly on the merits, on a way to 
fairly compensate victims, on a way to stop more companies from going 
into bankruptcy, on a way to stop the hemorrhaging of job losses, and a 
way to stimulate the economy. I make the submission of this bill 
strictly on the merits.
  I compliment Senator Leahy on what he has done on this bill, as well 
as his staff, in coming together and structuring the bill, again, in 
meeting after meeting and in discussion after discussion. What we asked 
our colleagues to do is to take a look at the merits. Don't be 
concerned about the work that we put into it, don't be concerned about 
our feelings; be concerned about the problem and about our suggested 
solution and about our openness to make changes. If anybody has 
amendments, we will consider them. If somebody has a better bill, we 
will consider that.
  I yield the floor.
  The PRESIDING OFFICER. The Senator in Vermont.
  Mr. LEAHY. Mr. President, both the distinguished senior Senator from 
Pennsylvania and I have been tied up much of today in a matter 
involving wiretapping of Americans and other issues. We will be going 
back to that. I know the Senator from Pennsylvania is returning to the 
committee.
  I am going to ask unanimous consent that the Senator from Illinois be 
able to have the floor for up to 30 minutes following me.
  Before I make that request, if I may have the attention of the 
Senator from Pennsylvania or the Senator from Tennessee, I am going to 
make the request that the Senator from Illinois, Mr. Durbin--we are all 
at the same hearing--that the Senator from Illinois, Mr. Durbin, who 
has a position different to that of mine and the Senator from 
Pennsylvania, that he be recognized for up to 30 minutes once I 
complete my comments, unless, of course, either of the leaders object.
  The PRESIDING OFFICER (Mr. Burr). Is there objection?
  Mr. FRIST. Reserving the right to object.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, I have a statement to make following the 
remarks of Senator Leahy.
  Mr. LEAHY. Mr. President, I ask unanimous consent then that after the 
distinguished Republican leader, the distinguished Senator from 
Illinois be recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, there has been some question about--and I 
think I am fortunate--comments suggesting motivation of veterans who 
support this legislation. A lot of veterans support this legislation. A 
lot of veterans have been badly damaged by exposure to asbestos, and 
they have no way of seeking compensation except in this legislation.
  A lot of labor unions feel the same way. These are not the so-called 
K Street lobbyists, these are not special interests; these are people 
who care about those they represent, the veterans they represent, the 
workers they represent.
  I ask unanimous consent that these letters of recommendations be 
printed in the Record, and I will name them:
  A letter from the Military Order of the Purple Heart, another signed 
by the Air Force Sergeant Association, American Ex-Prisoners of War, 
Blinded American Veterans Foundation, Blinded Veterans Association, 
Fleet Reserve Association, Jewish War Veterans of the USA, Marine Corps 
League--my son is a former marine--Military Officers Association of 
America, National Association of Black Veterans, Noncommissioned 
Officers Association, National Association of Uniformed Services, 
National Association of State Directors of Veterans Affairs, Paralyzed 
Veterans of America, Pearl Harbor Survivors Association, Retired 
Enlisted Association, Veterans of the Vietnam War, Inc., Veterans of 
Foreign Wars of the United States, Women in Military Service for 
America, Memorial Foundation, Inc., the U.S. Submarine Veterans, Inc., 
Lockwood Internet Base, U.S. Submarine Veterans of World War II, U.S. 
Submarine Veterans Base Rhode Island, U.S. Submarine Veterans World War 
II Thames River Chapter, U.S. Submarine Veterans World War II Central 
Connecticut Chapter, the UAW, the Heat & Frost Insulators & Asbestos 
Workers International, the International Union of Painters and Allied 
Trades, the Governors of Alaska, Arkansas, Michigan, Mississippi, 
Missouri, Montana, Ohio, Utah, and Vermont, and the National Federation 
of Independent Business, NFIB. Those are among some of those.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                            International Union of


                                   Painters and Allied Trades,

                                  Washington, DC, August 17, 2005.
     Re: S. 852, the ``Fairness in Asbestos Injury Resolution Act 
         of 2005 (FAIR Act)''

     Hon. Arlen Specter,
     U.S. Senate,
     Washington, DC
     Hon. Patrick Leahy,
     U.S. Senate,
     Washington, DC
       Dear Senators Specter and Leahy: I write you today in 
     regard to S. 852, the ``Fairness in Asbestos Injury 
     Resolution Act of 2005 (FAlR Act)''. On behalf of 140,000 
     families represented by the International Union of Painters 
     and Allied Trades, IUPAT, I would like to express our strong 
     support for S. 852 in its current form and your continued 
     efforts toward a bipartisan bill that will ensure true, just 
     and fair compensation to current and future victims of 
     asbestos exposure.
       We appreciate all efforts to incorporate a number of key 
     provisions and safeguards that have been advocated on behalf 
     of workers who have been harmed by exposure to asbestos and 
     who have been adversely affecred by a current asbestos 
     compensation system that is slow, costly, unfair and 
     arbitrary. However, the IUPAT remains concerned

[[Page S714]]

     about potentially hostile amendments that may be offered on 
     the Senate or House floor that would effectively undermine 
     key provisions of the bill dealing with funding, medical 
     criteria, awards, and other issues. We will continue to urge 
     you, along with other Senate and House members, to reject any 
     such amendments. Should any amendments be adopted that would 
     undercut the progress made on this complex issue the IUPAT 
     will have no other choice but to withdraw our support for the 
     bill.
       We feel the trust fund model is the best solution for 
     addressing the asbestos comopensation crisis workers and 
     business currently face. After years of numerous stakeholder 
     meetings, we are confident that our members' and all affected 
     workers' interests are best protected by key provisions in 
     your legislation as presently drafted. Of particular interest 
     to us are provisions contained within your legislation that 
     ensures fair compensation to asbestos victims with 
     mesothelioma, lung cancer, or those victims who have 
     impairment from asbesotosis or asbestos exposure that 
     includes objective medical evidence or markers of asbestos 
     exposure that includes CT scan review; no delay for victims' 
     access to the tort system in state or federal court if the 
     trust fund becomes insolvent; protection for victims from 
     insurance subrogation; a ban of asbestos in the United 
     States; a medical screening program for high risk workers; 
     and enforcement provisions to prevent needless exposure to 
     asbestos by uninformed and unsuspecting workers.
       It is our hope that the International Union of Painters and 
     Allied Trades' support for S. 852, along with other labor 
     organizations, businesses, employer associations, and 
     victims' groups, will allow this bipartisan bill to receive 
     strong backing in the Senate on final passage and will 
     therefore assure that the Senate passed bill with the 
     aforementioned key provisions is accepted and passed by the 
     House of Representatives.
       Thank you for your continued efforts in dealing with this 
     important issue.
           Sincerely and fraternally,
                                                James A. Williams,
     General President.
                                  ____

                                                  October 7, 2005.
     Hon. Bill Frist,
     Majority Leader, U.S. Senate, Washington, DC.
     Hon. Harry Reid,
     Minority Leader, U.S. Senate, Washington, DC.
       Dear Majority Leader Frist and Minority Leader Reid: On 
     July 18, the National Governors' Association approved a 
     revised policy on Asbestos Litigation Reform. This policy 
     calls for legislative action to address this continuing 
     problem affecting states in a variety of ways.
       America faces a crisis from asbestos litigation that 
     continues to take its toll on the sick, their families, and 
     our economy. Today there are hundreds of thousands of 
     asbestos claims in the courts with tens of thousands of new 
     claims filed each year. This is a unique legal situation that 
     requires congressional action to alleviate this logjam of 
     cases.
       In addition to those who have become sick from asbestos 
     exposure, the impact of the claims also hurts employees, 
     retirees, shareholders, and customers of defendant companies, 
     whose jobs and savings are jeopardized or lost. Our national 
     economy also is hurt in the areas of jobs, pensions, stock 
     prices, tax revenues, and insurance costs. We believe that 
     this is truly a national crisis. Without a solution, more 
     companies will be forced into bankruptcy, delaying and 
     reducing resources available to pay those who are now sick or 
     may become sick in the future.
       We believe that it is time for Congress to respond to the 
     Supreme Court's repeated calls for a legislation solution to 
     this crisis. Congressional enactment of legislation is 
     imperative to ensure that those ill from exposure to 
     asbestos-containing products and their facilities are fairly 
     compensated and that defendant companies are financially 
     secure so that they can pay present and future claims.
       We understand S. 852, the ``Fairness in Asbestos Injury 
     Resolution Act of 2005,'' was voted out of the Judiciary 
     Committee with a bipartisan 13-5 majority and is ready for 
     action on the Senate floor. We urge you to schedule debate on 
     this critical legislation as soon as possible.
           Sincerely,
         Governor Frank H. Murkowski, Alaska; Governor Mike 
           Huckabee, Arkansas; Governor Jennifer M. Granholm, 
           Michigan; Governor Haley Barbour, Mississippi; Governor 
           Matt Blunt, Missouri; Governor Brian Schweitzer, 
           Montana; Governor Bob Taft, Ohio; Governor Jon Huntsman 
           Jr., Utah; Governor Jim Douglas, Vermont.
                                  ____

                                               National Federation


                                      of Independent Business,

                                  Washington, DC, February 6, 2006
     Hon. Arlen Specter,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Specter: On behalf of the 600,000 members of 
     the National Federation of Independent Business, I am writing 
     to express our support for S. 852, ``The Fairness in Asbestos 
     Injury Resolution (FAIR) Act of 2005.'' The FAIR Act will 
     help protect innocent small-business owners from the asbestos 
     litigation crisis that now threatens their business.
       Asbestos lawsuits against small businesses are on the rise. 
     After years of suing large corporations for multi-million 
     dollar damage awards, ``traditional'' asbestos manufacturers 
     and defendants are mostly bankrupt. As a result, asbestos 
     litigation now targets companies far removed from any 
     potential wrongdoing, including small businesses. This 
     relatively untapped pool of defendants is an attractive 
     target for trial lawyers since small-business owners and 
     their insurers can be forced to pay millions of dollars in 
     damages. Horrifying for a small-business owner is the 
     prospect that they can be hauled into court without having 
     any relationship to asbestos or the plaintiff. Many small 
     businesses are forced to settle because they don't have the 
     money or time to be away from their businesses. Not only do 
     they face the stigma of having to settle, and the loss of 
     time and money, but they will likely also experience higher 
     insurance rates.
       By creating an alternative compensation system to resolve 
     asbestos claims, S. 852 will fix a badly broken system that 
     is not working and, in the process, compensate victims 
     faster. In addition to lawsuit relief, the legislation 
     relieves small businesses with either low or no asbestos 
     liability from having to pay into the compensation fund. No 
     business that meets the Small Business Administration 
     description of a small business can be required to pay a 
     penny into the fund. Nor will any small business that has 
     carried less than $1 million in asbestos expenditures before 
     December 31, 2002 have to pay into the fund.
       This legislation will help prevent small businesses from 
     having to spend the time and money to defend themselves in 
     asbestos lawsuits. It takes a significant step towards fixing 
     part of our litigation crisis that hurts business, big and 
     small, and ultimately keeps the victim from receiving 
     compensation.
       Thank you for your support of small business.
           Sincerely,

                                                   Dan Danner,

                                         Executive Vice President,
     Public Policy and Political.
                                  ____

                                             Military Order of the


                                                 Purple Heart,

                               Springfield, VA, December 13, 2005.
     Hon. Patrick Leahy,
     U.S. Senate,
     Washington, DC.
       Dear Senator Leahy: On behalf of The Military Order of the 
     Purple Heart (MOPH), I ask you to join our organization and 
     roughly a dozen other national veteran service organizations 
     and support passage of S. 852, the Fairness in Asbestos 
     Injury Resolution (FAIR) Act.
       Years after serving in the military, many veterans are now 
     discovering they suffer from terrible diseases related to the 
     asbestos they were exposed to during their time in the U.S. 
     military. The government used asbestos materials in a number 
     of facilities and crafts, affecting the health of the men and 
     women serving before and after the Second World War.
       The FAIR Act offers sick veterans a way to receive the 
     compensation they deserve. Right now, it is difficult for 
     veterans to turn to the courts for help with their asbestos-
     related medical costs. Veterans are barred by law from suing 
     their employer (the federal government) for compensation. But 
     by taking asbestos claims out of the court system, the FAIR 
     Act will ensure veterans will have a speedy and just avenue 
     for receiving compensation.
       Senator Bill Frist, with bipartisan support; recently 
     asserted that he will make the FAIR Act a top priority for 
     the Senate in January. He clearly understands that the FAIR 
     Act is the only viable solution for sick veterans. Passage of 
     this bill would provide immediate and ample aid to veterans 
     as well as other victims of asbestos exposure.
       Please vote yes on the FAIR Act and help relieve the 
     suffering and financial burden of our veterans.
           Respectfully,
                                                 James D. Randles,
     National Commander.
                                  ____

                                                 January 31, 2006.
     Hon. Harry Reid,
     Democratic Leader, U.S. Senate,
     Washington, DC.
       Dear Senator Reid: Veterans across the country who are 
     afflicted with asbestos-related diseases would at last get 
     compensation and relief under the Fairness in Asbestos Injury 
     Resolution (FAIR) Act. But according to a number recent media 
     reports, you have labelled the FAIR Act as a bill that caters 
     to special interests and have informed Majority Leader Frist 
     in writing that you will oppose this critical legislation. In 
     all frankness, your words and actions are extremely 
     disappointing to veterans across this nation--surely you do 
     not consider sick veterans to be a ``special interest''?
       The FAIR Act will provide proper compensation to sick men 
     and women who volunteered to fight for our country--
     compensation they simply can't get under the current system. 
     The military used asbestos throughout its facilities, bases, 
     and ships during and after World War II, and countless 
     veterans were exposed to this deadly material. But because 
     the U.S. government has asserted sovereign immunity, these 
     sick veterans are unble to seek compensation from the 
     government through the courts.
       The FAIR Act's victims' trust fund would open a door for 
     veterans that has been closed for years.

[[Page S715]]

       We are disappointed that you are trying to keep that door 
     closed and stop veterans from receiving the compensation they 
     deserve. Sick veterans--and indeed, all victims--deserve 
     better than political gamesmanship on this critical issue. We 
     urge you not to stand in the way of full Senate consideration 
     of this vital legislation.
       The FAIR Act is more than overdue. The Senate has been 
     debating these reforms for years. Sick victims, including 
     sick veterans, shouldn't be forced to wait for help any 
     longer.
           Sincerely,
       Air Force Sergeant Association.
       American Ex-Prisoners of War
       Blinded American Veterans Foundation.
       Blinded Veterans Association.
       Fleet Reserve Association.
       Jewish War Veterans of the USA.
       Marine Corps League.
       Military Officers Association of America.
       Military Order of the Purple Heart.
       National Association of Black Veterans.
       Non Commissioned Officers Association.
       National Association of Uniformed Services.
       National Association of State Directors of Veterans Affairs
       Paralyzed Veterans of America.
       Pearl Harbor Survivors Association.
       Tbe Retired Enlisted Association.
       Veterans of the Vietnam War, Inc.
       Veterans of Foreign Wars of the US.
       Women in Military Service for America.
       Memorial Foundation, Inc.
       U.S. Submarine Veterans, Inc.
       U.S. Submarine Veteran, Inc Lockwood Internet Base.
       U.S. Submarine Veterans of World War II.
       U.S. Submarine Veterans Base Rhode Island.
       U.S. Submarine Veterans World War II Thames River Chapter.
       U.S. Submarine Veterans World War II Central Connecticut 
     Chapter.
                                  ____

         International Union, United Automobile, Aerospace & 
           Agricultural Implement Workers of America--UAW,
                                 Washington, DC, February 3, 2006.
       Dear Senator: Next week the Senate is scheduled to take up 
     the Fairness in Asbestos Injury Resolution (FAIR) Act of 2005 
     (S. 852), sponsored by Senators Specter and Leahy. The UAW 
     strongly supports this legislation. We urge you to support 
     this critically important legislation, and to support cloture 
     both on the motion to proceed and on the bill itself.
       The UAW supports S. 852 because we are firmly convinced it 
     would be far superior to the current tort system in 
     compensating the victims of asbestos-related diseases. Under 
     the existing tort system, many victims receive little or no 
     compensation because those responsible for the asbestos 
     exposure are bankrupt, immune from liability or can't be 
     identified. Even when victims do receive some award, the 
     litigation takes far too long, and the amounts are highly 
     unpredictable. Far too much money is wasted on attorney fees 
     and other litigation costs, or dispersed to individuals who 
     are not impaired.
       The Specter-Leahy bill would solve these problems by 
     establishing a $140 billion federal trust fund to compensate 
     the victims of asbestos-related diseases through a stream-
     lined, no-fault administrative system. This system will 
     provide much speedier compensation to victims according to a 
     predictable schedule of payments for specified disease levels 
     that focuses compensation on those who have the most serious 
     impairments. It will also guarantee that victims can receive 
     adequate compensation, regardless of whether those 
     responsible for the asbestos exposure are bankrupt or 
     otherwise immune from liability.
       The UAW strongly supports the provision in the Specter-
     Leahy bill that does not permit any subrogation against 
     worker compensation or health care payments received by 
     asbestos victims. We believe this provision is essential to 
     ensure that victims receive adequate compensation, and do not 
     have their awards largely offset by other payments. We 
     strongly urge you to oppose any amendment that would 
     undermine victims' compensation by allowing subrogation.
       The UAW also urges you to reject any other amendments that 
     would reduce or restrict eligibility for compensation for the 
     victims of asbestos-related diseases. This includes any 
     amendments that would strike medical monitoring or eliminate 
     Level VI awards. 
       The UAW supports the provisions in S. 852 that require 
     broad sections of the business and insurance industries to 
     make contributions to finance the $140 billion federal trust 
     fund. We believe this broad-based, predictable financing 
     mechanism is vastly preferable to the current tort system, 
     which has already driven many companies into bankruptcy, and 
     is threatening the economic health of other companies that 
     used products containing asbestos, including the major auto 
     manufacturers. Continuation of the existing tort system will 
     inevitably lead to more bankruptcies, resulting in more lost 
     jobs and wage and benefit cut backs for workers and retirees. 
     However, to ensure that the financing mechanism in S. 852 
     remains equitable and workable, the UAW believes it is 
     essential that the Senate reject any amendments that would 
     severely narrow or cap the financing base and jeopardize the 
     guarantee that $140 billion will be made available to 
     compensate asbestos victims.
       The UAW recognizes that a number of specific concerns have 
     been raised by other labor organizations about various 
     provisions in S. 852. We are continuing to work for 
     improvements in the legislation, and are hopeful that 
     Senators Specter and Leahy will largely address these 
     concerns in a manager's amendment.
       However, the UAW does not agree with those who have taken 
     exception to the 5 percent cap on attorney fees for monetary 
     claimants. This cap ensures that asbestos victims will be 
     adequately compensated, and not see their awards severely 
     reduced by exorbitant attorney fees. This cap will not impede 
     the ability of claimants to get adequate legal 
     representation. Because S. 852 establishes a non-adversarial, 
     no-fault administrative system, the difficulties and costs 
     involved in bringing asbestos claims will be greatly reduced. 
     Indeed, much of the work can be done by paralegals. We also 
     believe that labor unions and other groups can help provide 
     free or lower cost representation for asbestos victims by 
     hiring staff attorneys and other professionals to process the 
     claims under the no-fault administrative system. Through such 
     mechanisms, asbestos victims can receive competent 
     representation with little or no attorney fees being deducted 
     from their awards.
       Finally, the UAW recognizes that questions have been raised 
     about the projections for asbestos claims and the solvency of 
     the trust fund. We would note that most stakeholders agreed 
     to $140 billion in financing early last year. Although all of 
     the projections are subject to some element of uncertainty, 
     the UAW believes that the $140 billion in financing is 
     sufficient to enable the trust fund to compensate asbestos 
     victims for a lengthy period of time. It is also important to 
     remember that S. 852 provides for reversion of asbestos 
     claims to the tort system in the event the federal trust fund 
     should ever have insufficient funds to pay all claims. While 
     we hope these reversion provisions will never be triggered, 
     they do provide assurance that victims will always have some 
     recourse for seeking compensation.
       It is easy for critics to point out shortcomings in S. 852. 
     The UAW submits, however, that it is abundantly clear the 
     asbestos compensation system established by the Specter-Leahy 
     bill would be far preferable to the existing tort system. It 
     would do a much better job of providing prompt, equitable 
     compensation to asbestos victims. And it would finance this 
     compensation through a rationale system that does not lead to 
     bankruptcies that threaten the jobs, wages and benefits of 
     thousands of workers. 
       For all of these reasons, the UAW strongly supports the 
     FAIR Act, S. 852. We urge you to vote for this legislation, 
     and to support efforts to invoke cloture on the motion to 
     proceed and on the bill itself.
       Thank you for considering our views on this vital issue.
           Sincerely,
                                                     Alan Reuther,
     Legislative Director.
                                  ____

         International Association of Heat & Frost Insulators & 
           Asbestos Workers,
                                     Lanham, MD, February 6, 2006.
       Dear Senator, We strongly support the courageous and bi-
     partisan work of Senator Arlen Specter (R.) and Senator 
     Patrick Leahy (D.), co-sponsors of the Fairness in Asbestos 
     Injury Resolution (FAIR) Act of 2005 (S. 852) which comes to 
     the Senate Floor this week.
       We support the Bill as presently drafted. We ask that you 
     support the Bill as well.
       Our U.S. Supreme Court has held that federal legislation is 
     necessary to solve the asbestos compensation crisis--and we 
     agree. Currently, only 42 cents of every dollar spent in this 
     broken system goes to victims, their widows and kids.
       I recently wrote our membership across the country to 
     advise them of our support for this Bi1l, and to urge them to 
     contact you in support of S. 852. I advised our membership 
     that this Bill is not perfect. But nothing ever is when 
     problems of this magnitude are addressed.
       We believe S. 852 offers the best hope of providing fair 
     and equitable compensation on a national basis for those who 
     have suffered, or will suffer from the devastating effects of 
     asbestos exposure in decades to come.
       We urge you to reject amendments of special interest groups 
     on either side of the issue that would change the core 
     provisions of the Bill.
       Such amendments can only be hostile to the interests of 
     fundamental fairness and equity. We have promised our 
     membership that we would fight vigorously to oppose any 
     change that would make this Bill unfair or inequitable.
           Very truly yours,
                                                  James A. Grogan,
     General President.
                                  ____

         International Association of Heat & Frost Insulators & 
           Asbestos Workers,
                                     Lanham, MD, January 31, 2006.
       Dear Brothers and Sisters: The Fairness in Asbestos Injury 
     Resolution Act of 2005 (Asbestos Bill S. 852) is scheduled to 
     be brought to the floor of the United States Senate in early 
     February of this year.
       Bi-Partisan Co-Sponsors of S. 852: Senator Arlen Specter 
     (R.) and Senator Patrick Leahy (D.): Nobody has worked harder 
     than Senate Judiciary Chairman Arlen Specter (R.) of 
     Pennsylvania and Ranking Minority

[[Page S716]]

     Member Senator Patrick Leahy (D.) of Vermont in trying to get 
     a fair and equitable and bi-partisan Bill that helps those 
     who have suffered the devastating effects of exposure to 
     asbestos. These two courageous Senators have worked 
     tirelessly during the last three years--to craft changes to 
     the Bill after listening to reasonable suggestions from 
     Labor, Business and Insurance negotiators.
       Special interest groups on both sides of the issue have 
     tried to derail their good work. But Senators Specter and 
     Leahy have stood tall in search of an equitable legislative 
     solution.
       This office has actively participated in the negotiating 
     process of this Bill over the last three years: Your 
     International has been actively involved in extended and 
     complicated negotiations to bring about this legislative 
     solution. Our U.S. Supreme Court has held that legislation is 
     necessary to solve the asbestos compensation crisis--and we 
     agree.
       Let us begin by stating that this Bill is not perfect. 
     Nothing ever is. For the last 10-20 years the current 
     asbestos compensation system has produced inequitable and 
     unfair results. Tens of billions of dollars have gone to 
     people who are not sick. This is wrong. The current system is 
     broken, notwithstanding what special interest groups may 
     claim. We believe this Bill offers the best hope of providing 
     equitable compensation while expediting the compensation and 
     review process on a national basis, regardless of where you 
     live, or who your attorney might be.
       Over 300,000 pending or current asbestos claims cry out for 
     a fair legislative solution from Congress: Currently it is 
     estimated that there are more than 300,000 pending asbestos-
     related claims. In a recent study by RAND, it was determined 
     that only $0.42 (42 cents) of every dollar spent on 
     litigation is awarded to the actual victims, their widows and 
     kids. A majority of the funds is paid to transaction costs, 
     including lawyers' fees for corporations and claimants.
       $140,000,000,000 ($140 Billion) trust fund for victims of 
     asbestos induced mesothelioma, lung cancer aud asbestosis 
     under a no-fault system with set awards based on severity of 
     disease: This Bill would establish a $140 billion Trust Fund 
     to compensate victims who are truly sick from asbestos 
     exposure under a no-fault compensation system administered by 
     the Department of Labor. Objective medical criteria that will 
     rule in asbestos induced disease, and will rule out disease 
     not caused by asbestos exposure has been negotiated and 
     approved by us and medical experts we have retained. This 
     legislation will offer the following expedited settlements: 
       Mesothehoma: $1,100,000 per case: Lung Cancer with 
     Asbestosis, $600,000-975,000 per case, Lung Cancer with 
     Asbestos Pleural Markers, $300,000-725,000 per case, 
     Disabling Asbestosis (not cancerous), $850,000 per case, 
     Asbestosis with Some Impairment, $100,000-400,000 per case.
       Attorneys' fees have been limited to 5 percent under the 
     legislation. It is to be expected that lawyers who have 
     received tens of millions of dollars in asbestos fees might 
     voice some objection to the Bill. Insurance companies who 
     will have to pay hundreds of millions of dollars into the 
     Trust are likewise objecting to this courageous attempt by 
     Senators Specter and Leahy to solve the asbestos compensation 
     crisis.
       The Pipefitters, Painters and United Auto Workers have 
     joined with us: The leadership of the Plumbers and 
     Pipefitters (the UA), the Painters (IUPAT) and the United 
     Auto Workers (UAW), have joined with us in supporting this 
     Asbestos Bill, S. 852. We believe the leadership of other 
     trade unions will come to join us in the weeks ahead in 
     support of this Bill.
       Funding: We are aware of those who, in good faith, question 
     whether $140,000,000,000 ($140 Billion) will be sufficient to 
     fund the Trust to compensate all American victims of asbestos 
     induced cancer and asbestosis.We share their good faith 
     concern.
       But there have been too many bankruptcies as a result of 
     the current asbestos litigation crisis. If funding mandated 
     under the Bill proves insufficient, the Bill provides that 
     individuals may return to the court system and pursue a 
     lawsuit in their State or Federal Court before a jury of 
     their peers. This was a hard fought and fair compromise.
       Let me close by saying that this International Union 
     remains deeply committed to supporting a meaningful, 
     comprehensive solution to our national asbestos litigation 
     crisis. Be assured if we become aware of changes or 
     amendments to this Bill that will be to the detriment of 
     workers and their families, we will fight them, and will not 
     hesitate to change our position if needed.
       We urge you to contact your Senators to gain their full 
     support for this legislation. Attached is a complete listing 
     of Senators and their contact information for your 
     convenience.
           Fraternally yours,
     James A. Grogan,
                                                General President.
     Terry Lynch,
                                               Political Director.
     James P. McCourt,
                                      General Secretary-Treasurer.

  Mr. LEAHY. Mr. President, I am pleased to join Senator Specter, who 
is chairman of the Judiciary Committee, Senator Feinstein, and others 
in urging my colleagues to move to this bipartisan bill.
  Speaking of asbestos-related diseases, it is time for us to solve 
this dire situation. Victims have been waiting long enough for a 
comprehensive national solution. We have looked at this. The Senator 
from Nevada spoke of those who have suffered from silicosis. If we are 
going to talk about families, my grandfather, Patrick J. Leahy, a 
stonecutter in Barre, VT, died of silicosis of the lungs long before I 
was born. I never got to know my grandfather. My other grandfather, 
Pietro Zambon, immigrated to this country from Italy. He died of the 
same disease. We are not neglectful in that. We are well aware of it. 
We have designed this bill in such a way that those victims are not 
shut out.
  This legislation is a product of years of difficult, conscientious 
negotiation. Built on what was done last Congress under former Chairman 
Orrin Hatch, we have crafted a fair and efficient plan that is going to 
ensure adequate compensation of thousands of victims of exposure, but 
it also gives due consideration to the businesses that should and will 
provide that compensation.
  Asbestos has wreaked havoc on the lives of many, but it has also 
overwhelmed our Nation's court systems as it tries to compensate them.
  We can talk about who gives and who doesn't. The fact of the matter 
is, the victims are the ones we should be most concerned about, and 
many of the victims--thousands of the victims in this country will get 
nothing unless this bill passes.
  Senator Specter rightly calls this one of the most complex issues we 
have ever tackled. Look around the Chamber of the Senate. Of those who 
are here, I have been here the longest. Actually, only six Members of 
the current Senate have been here longer than I. I have not seen in 
that 31 years anything more complex.
  Does that mean this is the bill I would have written? No. And it is 
not the bill Senator Specter would have written. It is a bill, though, 
that had to bring enough people together to pass. It should not 
surprise anyone to hear the interested groups, including labor, some of 
the businesses contributing to the trust fund, and their insurers, and 
the trial bar are each less than pleased with one part or the other. 
But that is the essence of legislative compromise, something I have 
learned in three decades.
  We have kept the ultimate goal of fair compensation to the victims as 
the lodestar of our efforts. We have all had to make compromises on a 
variety of subsidiary issues to get this far, but we have achieved a 
significant and needed step toward a more efficient and more equitable 
method to compensate these victims. Right now, the fact is that only 42 
cents out of every dollar spent on the burgeoning dockets of litigation 
in this area actually goes to the victims. That is a national disgrace. 
We can and must do better for all involved in this crisis. America can 
do better.

  These victims need our help, and they need it now. This is, after 
all, one of the most lethal substances ever to be widely used in the 
workplace. Between 1940, when I was born, and 1980, more than 27.5 
million workers were exposed to asbestos, and nearly 19 million of them 
had high levels of exposure over long periods of time. We know of some 
people who suffer from this illness because they washed the clothes of 
their loved ones who worked in these areas. They have been ravaged.
  The economic harm caused by this, and the resulting bankruptcies, are 
a different kind of tragedy for everybody--for the workers and 
retirees, for shareholders, but also for the families who built these 
companies. In my home State of Vermont, the Rutland Fire and Clay 
Company is among the more than 70 companies that have declared 
bankruptcy due to asbestos liabilities. Do you think those victims are 
going to recover anything without this legislation?
  The late Chief Justice Rehnquist declared the elephantine mass of 
cases cries out for a legislative solution. In additional opinions 
written by Justice Ginsburg, the Supreme Court has repeatedly called on 
Congress to act because ``a nationwide administrative claims processing 
regime would provide the most secure, fair, and efficient means of 
compensating victims.''
  I agree. Our committee chairman agrees. The Judiciary Committee 
members on both sides of the aisle agree, and we hope others in the 
Senate will agree.

[[Page S717]]

  I am worried when I hear veterans being criticized for supporting 
this. They are brave. They are concerned that they have been badly 
injured, and they know this legislation will help them. Why shouldn't 
they support it? These brave veterans know they are not going to get 
any help otherwise.
  Does business support it? The 600,000 members of the National 
Federation of Independent Businesses do, as well as hundreds of larger 
companies which are going to have to contribute.
  Senator Specter has spoken of this, but think what we do in our bill. 
It is a distinct improvement over previous bills. We provide higher 
compensation awards for victims, with $1.1 million awards for victims 
of mesothelioma, $300,000 to $1.1 million to lung cancer victims, 
$200,000 for victims of other cancers caused by asbestos, $100,000 to 
$85,000 for asbestosis, and $25,000 for what we call mixed-disease 
cases, as well as medical monitoring and all the things he spoke of.
  I am going to speak further on this as we go on. I suspect there will 
be more talk on it. But I hope Senators will allow this bill to go 
forward, will allow us to have a vote on it. As the Senator from 
Pennsylvania noted, we have other major things going on. I have been 
involved in that all day. I must admit, though, to the distinguished 
majority leader, if the Chair will permit me to note, I may have other 
things going on. We have other things going on in our family at this 
moment. I hope we are about to enlarge our family at this moment.
  With that, I hope neither of our leaders will mind, but the senior 
Senator from Vermont is going to go home and hopefully sometime in the 
next few hours be together with the latest member of the Jackson and 
Leahy family.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, to my distinguished colleague, I know 
things will go well as a new member of the family is about to enter. It 
is a very special time in all of our lives when that happens.
  I did want to come to the floor to give some perspective to what we 
have really seen play out over the last hour and a half with regard to 
addressing an issue that is important to the American people in ways 
they probably do not fully realize. It is the importance of taking up 
and addressing with full debate and amendment on the floor of this body 
the issue of reforming an asbestos system which is out of control. We 
have victims of cancer, victims of mesothelioma, victims of asbestosis, 
who are not being fairly compensated, who are struggling for that last 
breath before justice and fairness is carried out. That is because of a 
system which is broken, a system which has called out for fixing, not 
just in this Congress or the last Congress or the Congress before that 
but really over the last 15 years.
  There has been some question on the floor today of why leadership has 
elected to bring this bill to the floor as the first major piece of 
legislation that really was not unfinished business before our last 
recess, and the reason is for these victims.
  Yes, this bill is a jobs issue. It was stated earlier that over 
150,000 people have lost their jobs because of this broken system; that 
over 77 companies have gone bankrupt, which means, yes, loss of those 
jobs but also loss of pensions for all the other employees of those 
companies. But I have to say that in part because I have had that 
opportunity to take care of mesothelioma patients as a physician and to 
operate on mesothelioma patients. It is a tough operation because you 
know you cannot cure mesothelioma, you can only treat it and make 
someone's life better. The sad thing is, although those victims deserve 
to be compensated and compensated in a timely way--nobody argues that--
justice is not being realized today.

  It is worth stepping back. We had a wonderful exchange, I believe, 
through the Democratic leader--who is opposed to allowing that bill to 
come to the floor to be fully debated and amended to address this 
significant, critical problem facing people today and one which will 
face them in the future--and the chairman of the Judiciary Committee, 
joined by the ranking member, the Democratic ranking member, who 
believe strongly there is time to address this bill and address it now. 
If we do not address it now--and it is important for our colleagues to 
understand--it will not be addressed in this Congress. This is a fairly 
short period running up to the elections, and we have a lot of work to 
do. It is either now or never.
  I say there is a long history to this. It was 15 years ago that Chief 
Justice Rehnquist at the time first called attention to the asbestos 
litigation crisis. It is a crisis, as I will spell out in a few 
moments. Today, 15 years later, we are on the cusp. After working a 
bill through committee, passing it out of committee in a bipartisan 
way--strongly supported by the Republican chairman of that committee 
and the Democratic ranking member--it is now time to consider it on the 
floor of the U.S. Senate. We are on the cusp of a fair and a just and a 
bipartisan solution.
  Because of partisan election year politics, it may be, from what we 
heard from the Democratic leader, that an effort under the Democratic 
leadership is underway--we are hearing that this bill may be blocked. 
Remember, what we are debating now is just bringing that bill to the 
floor, this motion to proceed. What that does is put off relief. It 
puts off to sometime in the future, if we do not even allow that bill 
to come to the floor, it puts off relief for thousands and thousands of 
those victims who deserve just treatment and fair treatment and 
treatment for their cancer and treatment for their mesothelioma and 
treatment for their asbestosis. And we are not going to do it.
  We are going to bring it to the floor, we are going to debate it, 
open it to amendment, and fix what people do not like in the bill. But 
to think we have Democrats today who want to object to even bringing it 
to the floor--to me, that is wrong. It is something we cannot let 
happen.
  The asbestos crisis is real. Nearly $74 billion has been lost on the 
inefficient and disastrous asbestos litigation system, with the trial 
lawyers, of that $74 billion, pocketing almost $30 billion. That is $74 
billion that should be going to the victims in a timely way, but about 
42 cents out of every dollar doesn't get to the victim, it gets to the 
trial lawyers. It gets to the system itself. And that is what is fixed 
in this bill.
  The costs have already bankrupted 77 companies, destroyed 150,000 
American jobs, and caused workers to lose over $200 million in wages. 
Victims with real injuries are left with no recourse, spending years 
awaiting a trial without getting the justice they deserve.
  As I said, it was 15 years ago that Chief Justice Rehnquist first 
drew attention to the problem. In 1991, he warned that courts are 
``ill-equipped'' to effectively address the asbestos situation which 
has reached--and again I quote, using his words--``critical dimensions 
and is getting worse.''
  The Chief Justice at the time--again, this is 1991--went on to say, 
and I use his words:

       We have . . . a crisis for many Americans. However, the 
     worst is yet to come. . . . it [is] inevitable that, unless 
     Congress acts to formulate a national solution, with the 
     present rate of dissipation of the funds of defendant 
     producers . . . all resources for payment of these claims 
     will be exhausted in a few years. That will leave many 
     thousands of severely damaged Americans with no recourse at 
     all.

  Those are the former Chief Justice's words.
  After that initial report, in three separate opinions the Supreme 
Court called on Congress to address the asbestos litigation crisis. 
Justice Ginsburg specifically called on Congress to create a national 
trust fund. Her words:

       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.

  In 1998, Congressman Hyde was the first Member in Congress to 
introduce a bill with that recommendation.
  Many trust fund bills were subsequently introduced in both Chambers, 
but it was not until Senator Orrin Hatch decided to work on the issue 
that the Senate really began to debate in earnest the merits of a trust 
fund bill. In 2003, then-Chairman Hatch held six hearings on the 
proposal in the Judiciary Committee, and in July of that year, 2003, 
Chairman Hatch passed his trust fund bill out of Judiciary.

[[Page S718]]

  The next year, in 2004, I brought that bill to the floor, fought for 
a vote. Unfortunately, because of partisan and I guess it was election 
year politics at the time, the bill was filibustered by the Democrats. 
It was blocked by the Democrats.
  After that failed cloture vote, 11 sitting Democrats wrote me and 
expressed their desire to keep working on the bill, to keep working on 
an asbestos trust fund to provide necessary relief to victims and 
businesses. As has been mentioned earlier, I worked closely with 
Senator Daschle's office to try to construct a compromise at the 
leadership level. But, again because of partisan, election year 
politics, negotiations stalled.
  Over the course of the following year, Chairman Specter took it upon 
himself to keep that momentum going. We heard a lot of that outlined a 
few moments ago on the floor of the Senate. He held 36 separate 
meetings with stakeholders on the topic--the business community, the 
unions, the trial lawyers, the insurance companies; meeting after 
meeting. He held a total of six hearings on the matter.
  In May of 2005, the Judiciary Committee voted out, in a bipartisan 
way--the vote was 13 to 5--the bipartisan FAIR Act, the bill we are 
considering today.
  They were finally able to hammer out--it was bipartisan, drawing upon 
both sides of the aisle--a fair solution to the crisis.
  In that July letter of 2004 which was written to me by the 11 
Democrats, they summed it up best:

       With each passing day, more and more victims face serious 
     illness and even death, and more and more workers and 
     companies face the threat of bankruptcy.
       While creating a national asbestos trust fund is 
     unquestionably an extraordinarily complex undertaking, too 
     much progress has been made to let this issue go unaddressed 
     in this Congress.

  That was July of 2004. They were right then, and they are right now. 
That is why several months ago I told both sides of the aisle that the 
leadership was going to bring this bill to the floor at this point in 
time. It is time for us to act. If we don't seize this opportunity, it 
is simply not going to happen. The asbestos litigation crisis is 
crippling our economy and it is endangering our fellow citizens who 
suffer from asbestosis, mesothelioma, and cancer.
  It comes back to the victims themselves, with real injuries today, 
who are offered almost no recourse, spending years awaiting a trial 
without getting the justice they deserve. It has been 15 years since 
Chief Justice Rehnquist sounded the alarms. Congress has invested 7 
years working through the trust fund solution. Resolution of the 
asbestos crisis is simply overdue. A vote against cloture to proceed to 
address asbestos reform is a vote against solving this problem.
  As mentioned earlier today, there will be the opportunity to vote at 
6 o'clock tomorrow night on this issue. The timing of that is 
determined by schedules of people. We should have everyone back for 
that vote. That vote is not going to be on passage of the bill; it is 
not going to be on amendments to the bill; it is simply going to be a 
clear-cut vote among our colleagues as to whether we consider it 
important to look at fairness and justice for the victims who today are 
suffering. It is a motion to proceed.
  Months ago, we said we were going to address it. The time has come, 
and if we don't act now, this issue will have to be put on the back 
burner. Thousands of victims will continue to be left without the 
medical treatment they need and the justice they deserve.

                          ____________________