[Congressional Record Volume 152, Number 13 (Tuesday, February 7, 2006)]
[Senate]
[Pages S744-S766]
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. The Chair, in its capacity as a Senator from 
Missouri, suggests the absence of a quorum. The time will be charged 
equally.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CARPER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CARPER. Mr. President, I yield myself such time as I may consume.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. CARPER. Mr. President, later this afternoon, in fact about 3\1/2\ 
hours, we will gather in the Senate to vote on a motion to proceed to 
take up and begin debate on legislation that is designed--imperfect 
legislation but well intended--to ensure that people who have been 
exposed to asbestos who become sick, whose breathing is impaired from 
that sickness, will have an opportunity to be compensated for their 
impairment. As their impairment worsens, if it does, they would be in a 
position to be compensated further. The legislation also is intended to 
try to ensure that more money that is paid--if you go by defendants and 
insurance companies--ends up in the pockets of those victims and of 
their families.
  The question is, Why are we taking this up now? One of the reasons we 
are taking this up now is because the Supreme Court has been saying, at 
least since 1997, with Justices including, I believe, Justice Ginsburg 
and maybe more recently Justice Souter, that the issue of asbestos 
litigation is one that needs to be resolved by Congress, not by the 
Court. It is appropriate that finally we are taking this on.
  My own experience and involvement with asbestos litigation reform 
goes back to 2001, when I was called upon by an old friend who had 
ended up becoming a CEO of a company I had never heard of called 
Federal-Mogul. Federal-Mogul is a company headquartered in Michigan 
that manufactures, among other things, Champion spark plugs and a lot 
of other products. He had become CEO in 2001 and was in Washington and 
told me about it. I congratulated him and said good luck, and said if I 
can be of service, let me know. He called me back in about 6 months. He 
said: Remember, you said if I could ever be of assistance to let you 
know. We have a problem at Federal-Mogul. And he came back to explain 
what it was all about.
  Apparently, Federal-Mogul acquired a number of years before, long 
before my friend became CEO, a British company that had an exposure to 
asbestos, and because of that exposure, Federal-Mogul was drawn into 
asbestos litigation lawsuits by folks whose health had been damaged, I 
believe, by the British subsidiary that I think was owned and sold by 
Federal-Mogul in a relatively short period of time.
  At the time, I took my friend around to meet with the two Senators 
from Michigan, Senator Levin and Senator Stabenow. They were good 
enough to meet with him. I also took him over to meet with the then-
chairman of the Senate Judiciary Committee, Patrick Leahy of Vermont, 
and asked Chairman Leahy to meet with the CEO from Federal-Mogul. He 
did. The long and short of it is Federal-Mogul went into bankruptcy. 
They have come out of bankruptcy, but a lot of the shareholders who 
owned stock in the company lost a good deal. Folks who had been 
employees, pensioners who had their money in 401(k) plans, lost a fair 
amount of their money if it was invested in company stock. The company 
ended up with fewer employees than it had in the first place.
  Along about the same time I had another visit, this from a trial 
lawyer who represented, and I presume still represents, people who have 
been exposed to asbestos in their work and have developed a fatal 
disease called mesothelioma. This attorney came to say that the system, 
as it existed in either 2001 or 2002, was not working, and the folks he 
represented who were sick and dying, many who die within a year or so, 
were not receiving the help they and their families needed--at least 
not promptly. And a good deal of the moneys paid by defendants ended up 
in the pockets of people such as him, the attorney.
  He said people who are sick and dying ought to get the money they 
need, generously; they should get it now. The folks who have been 
exposed to asbestos but who are not sick and do not have an impairment 
should not get anything now and folks such as I,

[[Page S745]]

maybe, should get a little bit less in terms of the moneys paid by 
defendants to victims.
  That was how I was introduced to this issue. I did not come to the 
Senate to be involved in civil justice reform or particularly asbestos 
litigation reform, but I did come with a number of core values. I think 
we all did. Among the core values I brought was to try to figure out 
what is the right thing to do: Try to treat other people the way I want 
to be treated, try to use a little bit of common sense.
  We have been joined in the Senate by Senator Hatch, who preceded and 
later succeeded Senator Leahy as chairman of the Judiciary Committee. 
He has worked, as has Senator Leahy, and as has the current chairman, 
Senator Specter of the Judiciary Committee, to try to improve the 
legislation that was introduced years ago, maybe even before I came 
here in 2001, initially.
  What was originally introduced was not a static use of legislation. 
It was not the Ten Commandments. It was not carved into stone. It was a 
legislative proposal. Over time, it has been changed and has been 
improved and, frankly, I believe it can be improved further. I will 
talk a little bit about some of the improvements that have been made 
over time to the earlier legislation and some further changes I would 
like to see made and would expect to support those changes.
  Before I do that, let me back up for a moment and say some Members 
worked on class action reform legislation which was enacted and signed 
by the President early last year. Again, Senator Hatch was a leader in 
that effort. I was involved, to some extent, along with some of my 
colleagues, including Senators Dodd, Schumer, and Kohl, among others on 
our side, working with our colleagues on the Republican side.
  The history of class action reform goes back to the 1990s. The idea 
behind class action reform legislation was to try to come up with a 
legislative approach to make sure, when little people are harmed by big 
companies or by small companies--harmed not that they lose their arm, 
leg or eyesight but harmed in a material way--that those little people 
have the opportunity to be made whole but, at the same time, to make 
sure, when the class action lawsuit is filed by a group of people that 
are drawn into a plaintiff class, the defendants have the opportunity 
to be defended or have their case heard in a courtroom or before a 
judge so the defendant, as well as the plaintiff, can be given a fair 
shake.
  That legislation was introduced in the 1990s, reintroduced in 
subsequent Congresses, debated in committee, voted on in committee, and 
reported out of committee. Class action literally came to the floor, I 
think, on at least two occasions where we were unable to get the votes 
for cloture to end debate and to go on to final debate and passage with 
an up-or-down vote on the bill.
  That process, though, where legislation is introduced, maybe over 
several Congresses, is debated within the appropriate committees, voted 
on in those committees, amended in those committees, reported out to 
the Senate, and debated here, amended here, I call that regular order. 
That is what we call regular order.
  When the final compromise was agreed to on class action, including 
the bipartisan group I alluded to a few minutes ago, we struck an 
agreement amongst ourselves, an agreement with the House of 
Representatives that if we would not amend or change that compromise 
that we struck on class action, the House would accept our proposal, 
the House would not change one word. As a result, we, the drafters, if 
you will, of the final compromise on class action reform opposed, for 
the most part, all amendments. I think I supported one offered by 
Senator Feingold. But no amendments were approved. No amendments were 
attached to the bill. The bill passed with a bipartisan majority and 
was sent to the House of Representatives. They adopted it lock, stock, 
and barrel.
  What I want to see happen on asbestos litigation legislation is that 
we proceed with regular order. In fact, we have been proceeding with 
regular order. But there is a difference between asbestos litigation on 
the floor and class action on this Senate floor a year or so ago. Here 
is the difference: There is no agreement amongst the bipartisan group 
that I talked about earlier to pass an unamended bill. As I said a few 
moments ago, this is not a perfect bill, it is an imperfect bill, but 
it is a whole lot better than it was when it started out. In my view, 
it can be made better still.
  I would like to see us soon--we vote today at 6 o'clock on the motion 
to proceed to the bill. My hope is Democrats and Republicans, a 
majority of us, 60 or more, will vote to proceed to the bill, to debate 
the bill, offer amendments, debate those amendments, vote on those 
amendments, and then to see how the bill takes shape during the course 
of the debate in the week or so ahead.
  Let me mention, briefly, some of the improvements that have been made 
in the bill over what was introduced maybe back in the late 1990s or 
the earlier part of this decade.
  First of all, serious questions were raised, and are still raised, 
about the size of the trust fund that will be created. Moneys paid into 
it by defendant companies, roughly $90 billion; by insurers, about $46 
billion; by trust funds and others, $4 billion--adding up to, roughly, 
about $140 billion. That is almost 50 percent more in the trust fund 
than I think was originally anticipated just a few years ago. So I 
would suggest one of the improvements that has been made in this bill 
is just the adequacy of the trust fund.
  There is a second thing that I would suggest has been an improvement 
made in this bill over maybe an earlier version. Now, $140 billion is a 
lot of money, but there is a history of the trust funds set up to help 
asbestos victims, there is a history of them, in some cases, running 
out of money. So what happens if we have a trust fund that is set up 
where everybody who, in the future, wants to file a claim has to go to 
the trust fund for an administrative solution and the fund runs out of 
money? What do we do then?
  What we do then is really take the path suggested by Senator Dianne 
Feinstein of California. In anticipation of just that kind of problem 
down the road, she offered language, which was adopted and made part of 
this bill, which says if the trust fund runs out of money at some point 
down the line and it does not look as if we are going to have enough 
money in the trust fund any time soon to pay victims' claims, then 
those victims can return to the tort system. They can go back into 
court in the State in which they live. They can go back into court in 
the State where they were injured. Or they can go back into the tort 
system in Federal courts.
  Another area where I think improvement has been made deals with folks 
who have been injured, where they have been receiving workers' 
compensation, and now they will, in the coming months or years--if we 
establish this fund--have the opportunity to file a claim with the 
asbestos trust fund. The question was: Well, can a person receive money 
out of the trust fund and also have received previously workers' comp 
or currently receive workers' compensation funds? Or do they have to 
pay that back somehow out of the money they receive from the trust 
fund?
  I think the authors of the bill, wisely, and the committee, wisely, 
said no. If the person is receiving workers' comp from a separate 
source of funds, they can keep that. It does not have to be reclaimed 
or repaid. And the claimant, the victim, can then also receive the 
moneys from the trust fund that we would set up, establish under this 
legislation.

  If you look at the legislation, a fourth improvement deals with 
something called medical monitoring. But if you look at the 
legislation, there are a number of levels of impairment, starting with 
level I, and I think going up to level IX. And there may be some 
various gradations within each of those levels.
  Level I is something called medical monitoring. It has been a matter 
of some contention. Some of the companies, some of the defendants, some 
of the insurance companies were very skittish and reluctant, 
understandably so, given the history of some of the ways people were 
recruited to file some, not all but some, asbestos claims in the past. 
They were concerned the medical monitoring might be an effort to 
recruit all kinds of people to file claims on the trust fund.

[[Page S746]]

  But medical monitoring is included as level I for impairment. And 
level I means a person has been exposed to asbestos--maybe in their 
work or another part of their environment--but they do not have an 
impairment, there is no discernible impairment that we can attribute to 
asbestos. But by establishing medical monitoring, what we say to those 
who have been exposed, who do not have an impairment, at least we 
acknowledge you could have a problem down the road, and we are going to 
provide, every year or two, for the opportunity for someone--a health 
professional who really does know their business--to examine that 
victim and see whether any impairment has developed. If so, they can go 
through other levels and become eligible for sums of money, from 
several tens of thousands of dollars to over $1 million in the worst 
cases.
  A fifth improvement I think has been made deals with what are called 
exigent claims. Those are claims filed traditionally by people who have 
mesothelioma, the disease I talked about earlier, caused by asbestos, 
solely by asbestos exposure. We know mesothelioma victims, folks, are 
going to die, unfortunately, and not a pleasant death, and die fairly 
soon, generally within less than a year.
  For exigent claims like that, or other people who are believed by 
doctors to be in a terminal situation where their lifespan is less than 
a year, those claims, under this improved version of the bill, will be 
treated on an expedited basis. I believe that is an improvement.
  There are other improvements. I mention one: silica claims. There are 
mixed death claims that are not just asbestos. They might be silica. A 
good thing that happened last year during the course of the committee's 
hearings is they brought in medical experts and actually talked to them 
and listened to the medical experts talk about: What do the x rays look 
like for people who have been exposed to asbestos as opposed to those 
who have been exposed to silica?
  We know people can die from both, do die from both. But as it turns 
out, if we establish an asbestos trust fund, and someone has been 
exposed maybe to asbestos but does not have the markings from asbestos, 
and someone has been exposed to silica, and they have the impairment 
that relates to silica, can they come to the trust fund and be made 
whole out of the asbestos trust fund? The answer is no. The silica 
victims are welcome to go back into the tort system, to stay in the 
tort system. Again, there is apparently a real difference in the 
appearance of the x rays of the lungs of people who have been exposed 
to asbestos who have asbestosis and those who have lung disease that 
has been caused by silica.
  Those are some of the improvements that have been made to the bill. I 
want to mention maybe one or two others that I think ought to be made 
and have been drawn to my attention, and I suspect to most of our 
colleagues' attention as well.
  One deals with the startup provisions and the steps we need to take 
to help ensure the trust fund is set up and running quickly and 
efficiently. We are on a tight time period, a tight timeframe. There is 
a whole lot of work that is going to be done that we have not done, at 
least not with asbestos. It is going to be a real challenge to the 
Department of Labor getting the right people to run this operation and 
assembling the money quickly and putting in place a system that is user 
friendly and will actually provide relief to a lot of victims.
  I believe there are some further steps we will debate on the floor 
and, hopefully, be able to adopt.
  Some folks from the insurance industry have shared with me, and I am 
sure shared with others, the concern they have about potential leakage 
issues, as people file claims in the tort system for alleging 
impairment of breathing from exposure to asbestos. And the question is, 
At what point do we say to the victim, to the plaintiff, you have to go 
into the trust fund or you may continue through the tort system? There 
are concerns raised by the insurance industry that we, frankly, have 
not done the kind of job that needs to be done with respect to what 
they call leakage in the system. That is one we want to revisit and 
consider.
  I am not an attorney. We all know people who are. I have a concern, 
and I know it is a concern shared by others, that if we cap it at 5 
percent, the amount of money that can go to an attorney, in some cases 
that is adequate. This is a system that is not designed to, frankly, 
need a whole lot of assistance. And, hopefully, some people will be 
able to go through this system and apply for money from the trust fund 
and receive their claim, their payment without the assistance of an 
attorney or anybody else.
  But in some cases you are going to have an attorney who has worked 
for not just months but maybe a couple of years to help prepare a case 
to be heard in a court, only to find that before they could actually 
bring the case to a judge and jury and have a verdict, they are cut off 
because of the establishment of this trust fund. In that case, where 
you may have had attorneys work for months or a couple years, to say 
that person can only receive a 5-percent payment out of the payment 
from the fund, I think, is just unfair.
  Again, it goes back to one of my core values I talked about earlier: 
treat other people the way we want to be treated. If I were the 
attorney and I had actually done work for a couple of years, I would 
want to be paid more than 5 percent of, say, a million dollars for the 
work I had done. Attorneys today, not uncommonly, get 25, 30, 35, 40 
percent in attorney's fees for the work they do in conjunction with 
these victims. I am not suggesting we have those kinds of payments to 
attorneys, but I would suggest maybe the better part of valor is to say 
that the attorneys could receive 5 percent, and in cases where they 
have done work give the administrator of the fund the discretion to 
provide something in addition, something on top of, above the 5-percent 
cap--at the discretion of the administrator. And maybe we want to cap 
it at 20 percent or something like that. But I would suggest that is a 
fair thing to do and a just thing to do, particularly where an attorney 
has done a great deal of work.
  Let me close by saying this. I came here, like I think all my 
colleagues, because I wanted to get things done. I want to right wrongs 
and try to help people as best we can. Sometimes it is best for people 
who are hurt to take those grievances to the courts, and to address, 
through the judicial system, the wrongs they believe they have 
incurred. The highest Court in our land, the Supreme Court, has said on 
several occasions in the last decade, we have a problem with asbestos 
litigation that needs the attention of the Congress and the President 
and we should try to improve on a situation that is flawed.
  I am an old Navy guy and spent a number of years of my life as a 
naval officer, and not as much time on ships. I spent a little time on 
ships. I know a lot of folks served in the military--and a lot of them 
were in the Navy who served on ships--who were exposed to asbestos, had 
their breathing impaired, and, in a number of cases, died.
  They are not in a position to go into court and sue the Federal 
Government to be made whole. They can get some help through the VA 
system, and they have, but they are not in a position to receive the 
kind of payments and recovery of damages that others have been able to 
in the courts because private sector employers have been sued as 
defendants by victims, and those victims cannot sue the Federal 
Government. Under this legislation, a veteran from any part of the 
armed services who is precluded from receiving much in the way of 
damages will now have the opportunity to go into the same trust fund 
and apply for the same dollar payments that any other person who has 
been injured could apply for. As a veteran, that is especially 
noteworthy. It goes a long way to explaining why so many veterans 
groups strongly support this legislation.
  Again, what is our goal? Our goal is to try to make sure that when 
people have been exposed to asbestos for an extended period of time, 
when their health has been damaged, that they have an opportunity to 
receive some compensation for that harm, to try to do so in a way that 
is prompt and where the amounts of money they can receive actually vary 
from fairly modest, when the impairment is slight, to rather 
substantial when the impairment is substantial or maybe life 
threatening. We want to do this in a way where we put more money in the 
pockets of victims and their families

[[Page S747]]

and in a way that acknowledges the work that is done by attorneys when 
they have done a considerable amount of work in preparing for a case 
that then ends up in the trust fund.
  Is this bill perfect as it comes to us today? We have been joined on 
the floor by the chairman of the committee. I thank him and those with 
whom he serves, certainly Senator Leahy. I also want to say a word 
about Judge Becker, former chief judge of the Third Circuit, who has 
worked very hard as a mediator to try to help us get to a better place 
with this legislation. I have met a lot of people in my life, but here 
is a man who suffers from very serious health problems himself. He has 
non-Hodgkins lymphoma and is in his early seventies. He travels from 
Philadelphia on the train, pays for his own way. When he spends a night 
here, he stays in a hotel and pays his own way. He pays for his own 
meals. He does all this work because he believes it is the right thing 
do to--and it is.
  For all who have been working on this for a lot longer than I have to 
get us to this point in time, we need to vote at 6 o'clock to proceed 
to the bill, debate it, change the parts we think need to be changed, 
and go forth from there.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Coleman). The Senator from Utah.
  Mr. HATCH. I thank my colleague for his remarks on this bill, for his 
comments on Senators Specter and Leahy, and for his willingness to 
invoke cloture this afternoon. We need to proceed to this bill and 
debate it in on the Senate floor. It is that important.
  Before proceeding with my remarks, I would like to reserve 15 minutes 
for my colleague from Ohio, Senator DeWine.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, I rise to speak in favor of S. 862, the 
bipartisan Fairness in Asbestos Injury Resolution Act. More 
specifically, I rise in favor of debating S. 852. It is a bill worth 
our time.
  The crisis of asbestos exposure impacts not only the lives of sick 
and dying workers and retirees, but also the lives of workers in every 
corner of the American economy. The litigation that these workplace 
injuries spawned now threatens to deprive the workers who need 
compensation for their injuries of their due rewards, while crushing 
businesses large and small in every State.
  I find it surprising that there are those in those body who do not 
wish to address our Nation's asbestos crisis. They do not even want to 
have this debate. So they are filibustering even a motion to proceed to 
the bill. It is funny how things change. This summer, when some of the 
Members of this body were filibustering judicial nominations, we were 
told that the filibuster was a privilege central to the Senate's 
deliberative character. The right to speak and debate had to be 
preserved. But through this filibuster, they do not seek to promote 
debate. They are seeking to prevent it. For the life of me, I do not 
fully understand this type of reasoning.
  The public health calamity caused by occupational exposure to 
asbestos is something that we should be debating. It is precisely the 
type of situation that cries out for comprehensive bipartisan 
legislation. For what it is worth, it is precisely the type of well-
documented crisis that I would expect my colleagues to want to talk 
about. Instead this filibuster shows that they would rather close their 
eyes to this crisis.
  The consequences of asbestos exposure are tragic and well-documented. 
It has devastated the families of hard-working American men and women. 
And it is not an equal opportunity hazard. It frequently targets 
veterans. It targets those who took their lunch to work, who gave a 
full day's work for a full day's pay, and who came home with dirt under 
their fingernails.
  Each and every year 10,000 individuals will die from mesothelioma, a 
cancer closely linked to asbestos exposure. Ten thousand moms and dads 
and grandparents. Think about it. And because of the asbestos fibers 
they would bring home from work, sometimes even the spouses and 
children of these workers become sick. Thousands and thousands more 
will be afflicted with debilitating lung conditions that make it hard 
to breathe, sapping the joy from what should be a person's golden 
years.
  This is a public health crisis of the highest magnitude. And this 
public health crisis is made more pressing by a related litigation 
crisis. Nobody in this body believes, especially those of us who 
support this bill, that individuals who become sick as a result of 
asbestos exposure should be denied compensation. Let me be clear about 
this. They are owed compensation. Here is the problem: Who is supposed 
to pay? Most of the companies that originally produced this stuff have 
long since gone out of business or have been put out of business. They 
now exist in bankruptcy merely to pay out claims to the extent that 
they can, which amounts to a very small number of pennies on a dollar.
  What are the victims actually getting from their settlement? Pennies 
on the dollar. The actual damage done by exposure to these fibers might 
be worth hundreds of thousands of dollars, but most people will never 
see that money, money that could go to pay medical bills or take care 
of loved ones, because the companies do not have the money to pay the 
number of claims.
  Of course, this has not proven to be an obstacle to the innovative 
trial bar. These attorneys are going after corporations, not 
surprisingly ones with very deep pockets that have inherited their 
asbestos liabilities by acquiring companies that once produced or used 
asbestos. I remember one company in particular that acquired another 
company for $10 million. They have paid well over $100 million out in 
asbestos-related claims because of that acquisition.
  So not content with a public health crisis, a group of committed 
attorneys have set out to bankrupt some of our Nation's greatest 
companies, creating an economic crisis as well. And many of them have 
only had some collateral relationship with asbestos.
  Playing fast and loose with the actual exposure of their clients, 
there has been an explosion of litigation in recent years. As a result, 
at least 73 companies have had to declare bankruptcy due to their 
asbestos-related liabilities.
  Do those who have actually been harmed by asbestos benefit by this 
litigation? No. They wind up in years of litigation only to find that 
they get a mere 42 cents out of every dollar. By the time the attorneys 
take their fees and add on transaction costs, the poor person who has 
been injured gets only 42 cents out of every dollar recovered.
  The status quo does not do justice to those injured by asbestos 
exposure. I am a conservative. I do not believe the Federal Government 
should attempt to fix every social or economic problem faced by the 
country. However, there are certain crises, because of their size, 
because of the number of persons impacted, and because of their 
detrimental impact on the American economy, that call out for national 
legislation. This is just such a bill.

  Asbestos exposure has cause a far-reaching public health disaster of 
the highest order, one that is now compounded by an unprecedented 
litigation crisis. I am hardly alone in thinking this. The Supreme 
Court of the United States has called on Congress on three separate 
occasions to address this particular problem. In 1999, the Justices 
told the Nation that ``the elephantine mass of asbestos cases . . . 
defies customary judicial adminstration and calls for national 
legislation.'' So we answered the call.
  We are hardly springing this bill on the Senate. We have been 
debating a solution to the asbestos crisis since the 107th Congress. 
This is the 109th Congress. When I was chairman of the Judiciary 
Committee, we held hearing after hearing. We had weeks of markups. We 
did our best to achieve some sort of compromise. Yet when it came time 
to debate this bill on the floor, it was filibustered. The Senate was 
prevented from giving its final up-or-down vote. That was April of 
2004.
  Then we heard the bill was not ready for prime time. We were rushing 
the issue, jamming the opposition. We have not considered the issues 
carefully enough, they said. If only we had more time.
  Not it is almost 2 years later. The chairman of the Judiciary 
Committee, my colleague from Pennsylvania, Senator Specter, has again 
held hearing after hearing. Again, we have had week after week of 
markups. He and his staff

[[Page S748]]

have been tireless and fair in their negotiations. Judge Becker, a 
federal judge on the Third Circuit Court of Appeals, has worked to 
craft a solution.
  Over the last 3 years, there have been 36 meetings hosted by the 
chairman where any group, including labor unions, trial lawyers, and 
any other interested parties, was welcome. And those efforts have borne 
fruit. Most notably my colleague from Vermont, ranking member of the 
committee, came to support this bill. We work a good deal on 
intellectual property issues together, but this bill is a different 
animal. This is a bill that impacts the rights of workers and the 
rights of the sick. On those types of issues, there is, unfortunately, 
not enough bipartisanship around here.
  The fact that the distinguished Senator from Vermont, Mr. Leahy, is a 
cosponsor of this bill is very important. It is a testament to both the 
scope of the problem it addresses and the depth of good faith 
compromises that have been made along the way.
  There are many criticisms made about this bill. Some have suggested 
that even debating it demonstrates the triumph of corruption. I wonder 
what their colleagues from Vermont, California, and Montana think about 
that? All this time they thought they were working to make this a 
better bill. As it turns out, they were just tools of the special 
interests. Give me a break.
  I will tell you who the special interests are in this debate. They 
are the law firms that specialize in much of the bogus asbestos 
litigation that is driving this crisis. They are the lawyers who file 
suits for people who are not sick, just hoping that some company will 
decide to settle rather than go to court. They are the lawyers who 
promise the truly sick a jackpot but give them instead years of 
litigation and then take for themselves fully 60 percent of any 
settlement. I would call it ``jackpot justice.'' But for the workers 
impacted by asbestos exposure, there is no jackpot, and this sure is 
not justice.
  These lawyers have gotten rich litigating these cases.
  They do not like the prospect for reform. Why not? Because it is 
going to turn off the golden spigot. It will create an easy, no-fault, 
and quick administrative process that will enable those made sick by 
asbestos to obtain compensation without the middle man.
  In other words, if this bill becomes law, these lawyers are going to 
have to find some other industry to bilk. The other side of this debate 
should take a good, long look in the mirror before going down the road 
of accusing the bill's supporters of promoting special interest 
legislation.
  In addition, it is beyond ridiculous to suggest, as we heard 
yesterday from opponents, that this bill is being rushed. That is 
absolutely ridiculous. How is it that a bill that was debated on the 
floor nearly 2 years ago, reported favorably out of the Judiciary 
Committee twice--on a bipartisan basis this time--and was subject to 
countless amendments is somehow not even ready for debate today?
  We have been at this for years. This bill addresses a recognized 
public health tragedy. Yet it is not even worthy of debate on the 
Senate floor?
  For those not steeped in Senate procedure, it is worth noting what is 
being suggested by this objection to the motion to proceed.
  When a bill is filibustered after hours and even days of debate in 
order to prevent a vote on final passage, the message sent is that 
there has not been enough debate. The issues are so difficult and 
complex that more debate is required before this body could responsibly 
move to final passage.
  Filibusters are not always justified, but they are sometimes 
understandable. When you filibuster a motion to proceed, you are saying 
this bill is not even worthy of a debate on the floor. This is an 
insult. I know this is not a perfect bill. Few bills are. The FAIR Act, 
however, is most certainly a bill worthy of debate.
  We have a limited number of days in any given year to do the people's 
business. We only take up bills on the floor when there is a pressing 
public need. And in the opinion of not only the majority leader but the 
Republican caucus and even some Democrats, this is a bill worthy of our 
attention and time. Frankly, it is ludicrous to suggest otherwise.
  Nineteen members of the Senate have cosponsored this legislation. It 
is supported by the chairman and ranking member of the Judiciary 
Committee. It has bipartisan support. I do not think there is a person 
in this body who doubts the severity of the problems it is designed to 
address. So something must be done. This bill is a sound and reasonable 
attempt to do something to help these sick workers get the compensation 
they deserve.
  The asbestos trust fund created through this legislation deserves a 
debate. I urge my colleagues to vote for cloture on the motion to 
proceed and to give this bill the attention it is owed.
  Mr. President, this is an important bill. I pay tribute to Senators 
Specter and Leahy for the work they have done in committee and in 
bringing this bill to the floor. They deserve accolades from everybody 
in this body.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. DeWINE. Mr. President, I come to the Chamber this afternoon to 
support the asbestos reform bill, S. 852. This bill is simply about 
helping victims. It is about doing the right thing for extremely sick 
individuals. It is about doing the right thing for very sick people by 
compensating them quickly and fairly.
  As we know, this bill addresses the asbestos litigation crisis by 
removing most cases from the court system and paying claims from a 
national trust fund, using money contributed by company defendants and 
insurance companies.
  Let me say up front that removing cases from our court system is not 
something we should ever do lightly. Our civil justice system usually 
works well. Our State and Federal courts are a vital part of our system 
of government. That is where cases should normally be. Our court 
system, as a rule, ensures a level of fairness and justice for our 
citizens that is second to none, and I don't like removing cases from 
that system.
  But our justice system is not perfect. Unfortunately, we all know 
that our justice system, in this case, has failed to deal with the 
asbestos crisis. The system is not adequately protecting the rights of 
victims, nor is it adequately protecting the rights of defendants. In 
fact, the system has been overwhelmed by asbestos litigation.
  The numbers tell the story. The sheer volume of claims is staggering. 
More than 750,000 individuals have made claims for asbestos exposure, 
and approximately 300,000 of those claims are still pending. The most 
recent Rand study estimates that anywhere between 2.5 million and 3.3 
million individuals could make claims in the future.
  Part of the problem is the unusual nature of the illnesses caused by 
exposure to asbestos. Specifically, there is a long latency period 
between exposure to asbestos and the actual illness or impairment. In 
other words, people can be exposed to asbestos for long periods of time 
but usually don't show symptoms of illness for 25 or 30 years. Not 
everybody exposed to asbestos gets sick, but our tort system requires a 
potential victim to file a claim for injury within a year or two of 
discovering the potential harm. So a vast majority of people who are 
filing claims are not actually sick at that time, and many may not ever 
get sick, but to protect their legal rights, they file suit.
  This enormous volume of lawsuits--again, many from people who are not 
ill at that time--crowds court dockets, slows the decisionmaking on 
claims from those who are sick, and imposes huge costs on defendants. 
As more and more defendants are pushed toward bankruptcy, actual 
payments to victims are diminished.
  Perversely, the process creates a greater incentive to sue 
immediately because someone who has been exposed to asbestos--even if 
he or she has no symptoms--may decide to sue now or take the risk that 
nobody will be left to pay a claim down the road. This increases the 
problem, and the cycle of excessive litigation and decreasing payments 
to victims continues.
  As a result, justice is not being served. Many victims wind up with 
no one to sue and receive pennies on the dollar for their claims from 
asbestos bankruptcy trusts. That is not right. That is not just. That 
is not fair to

[[Page S749]]

these victims. We have to do something about that. On the other 
extreme, a few victims receive huge awards or settlements that are, 
frankly, sometimes out of proportion to their injuries.
  The bottom line is that very few people are compensated fairly, and 
more and more victims face a risk of never being compensated at all for 
asbestos-related illnesses. It is our responsibility in the Senate to 
deal with this crisis. We simply must not wait any longer to act. We 
must take steps to help the victims of asbestos exposure, and the bill 
we have in front of us today does just that.
  There is another critical problem we have to address with regard to 
asbestos, and that is the issue of jobs. Not only is the current mass 
of litigation hurting victims, but it is also causing tremendous 
problems for the business community and, subsequently, of course, for 
the creation and retention of jobs, which hurts workers. As more and 
more businesses are drawn into this endless cycle of litigation, more 
and more money is being spent on legal fees. These costs, and the 
uncertainty that engulfs these businesses, make it harder to invest in 
improving their companies and creating new jobs. In fact, asbestos 
liability is actually bankrupting many potential defendants. It has 
gotten to the point where claims are now being brought against 
businesses that have a very remote connection with the manufacture of 
asbestos. So the impact of asbestos claims today is simply 
overwhelming--not just to some of our Nation's largest companies but to 
our small businesses as well.
  This is not just some abstract or academic problem. When businesses 
are harmed, workers are harmed, too. Tens of thousands of workers--real 
people employed by these businesses--are today being affected. Many 
employees and their families--people who never had any exposure to 
asbestos at all--are feeling the effects in lost wages, lost jobs, and 
diminished pensions.
  The impact in my home State of Ohio is particularly severe. Ohio is 
one of the top States in which asbestos litigants choose to file their 
suits. In fact, literally thousands of companies have been named as 
defendants in Ohio courts. Out of the more than 8,000 firms that have 
been named as defendants nationwide, over 7,000 of these businesses 
have been named in cases filed in Ohio. Of the almost 80 companies that 
have filed bankruptcy because of asbestos-related liability, more than 
20 of those companies are headquartered or have significant facilities 
in the State of Ohio.
  Let me be clear: I believe companies should be held accountable for 
their conduct. That is a basic principle of American jurisprudence. But 
most of the companies that manufacture asbestos are today now bankrupt. 
The legal system already has decided their liability, and they are 
paying their liability through asbestos trusts.
  I am concerned, however, about the many companies that now find 
themselves held responsible for the actions of other companies. These 
companies have little to do with asbestos production or use, but they 
employ thousands of people who contribute to our economy and to our tax 
base. No one, including the victims of asbestos, is helped when these 
companies are punished.
  I believe it is clear, bluntly, that we have a legal disaster--yes, a 
disaster--on our hands. The court system is clogged with claims by 
people who are not ill and may never get ill, and victims who are ill 
must wait a long time for sometimes very little compensation. Employers 
are at risk even when they have had little to do with asbestos, and 
their current employees and retired workers as well are paying the 
price.
  Anyone who looks at this honestly has to conclude that the current 
system does not work for anyone involved. In fact, the Supreme Court on 
three separate occasions has called for a national solution, has called 
on Congress to take a look at this issue.
  We have to do something about this crisis. We need to protect the 
rights of victims, and we need to provide business--the group of 
businesses which will provide compensation to those victims--with some 
way to predict how much this crisis will cost so they can plan for it 
and figure out a way to stay in business while they pay for it. The 
FAIR Act--this bill--provides that needed protection to victims and 
provides that needed predictability to businesses so they can continue 
to provide for their employees and retirees.
  We know, of course, that no bill is perfect. This bill is not 
perfect. Many people believe it must be amended. As a matter of fact, I 
have heard from a number of Ohio companies that they are not happy 
about some of the provisions in this bill. Not surprisingly, some think 
the bill goes too far and some think it doesn't go far enough. We have 
spent a great deal of time discussing and modifying this bill over the 
years. I believe it has improved the process. During this whole 
process, I think we have simply improved it as a result of the work 
that has been conducted in the Judiciary Committee.
  As we debate this bill in the Senate, I plan to work with Chairman 
Specter and many others to make some additional refinements to the 
bill. It truly is a work in progress. But the bottom line is that we 
must move forward and we must move forward now. The status quo is 
simply not acceptable. It is not fair to the victims, and it is not 
fair to the companies.
  We all know this bill is not perfect and, in fact, this issue is so 
complicated that no bill could ever be perfect. But the bill we have 
before us is far better than the current situation. We must move 
forward.
  I would like to conclude my remarks with a story that illustrates why 
we need to vote for this legislation. A fellow Ohioan came to my office 
recently and explained that he is very ill from asbestos exposure. He 
has retained a lawyer and has a trial date scheduled. He was worried 
that this bill would remove his ability to sue without giving him 
enough compensation to take care of his family and provide for their 
future and not give him the compensation he deserves.
  After discussing the details of his case and explaining how the FAIR 
Act would apply to him, it was clear that the bill, if enacted, would 
likely provide him with more money much more quickly than he likely 
will get if he pursues his claim in court, although, of course, 
litigation is notoriously difficult to predict. Even though this Ohioan 
still has a difficult road to walk in dealing with his illness, he is 
now reassured that this bill, if it becomes law, will provide his 
family with hope for the future and provide him with some just 
compensation.
  Nothing can ever be fair. Nothing can ever provide a victim with what 
would be considered just, but I think he was assured and felt better 
after my staff was able to discuss this bill with him, and the details 
of it.
  As I have said, this bill is not perfect, but it will help the 
victims of this asbestos crisis. It will help the real people most at 
risk, and it will help save countless jobs. That is why I am supporting 
it. It simply is the right thing to do.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I rise to speak on the asbestos bill 
and to indicate my support for the cloture motion which will be voted 
on at 6 o'clock this afternoon.
  For over 15 years now, believe it or not, the U.S. Supreme Court has 
repeatedly urged Congress to create a solution to this asbestos crisis. 
In 1997, in a case called Amchen Products v. Windsor, Justice Ginsburg 
wrote this:

       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.

  This is exactly what we are trying to do in this effort. It is true 
it is not easy to do. It is true it has taken many years of hearings in 
the Judiciary Committee, and it is true efforts to draft this 
legislation have been ongoing for many years, but I would like to take 
this opportunity to commend the chairman and ranking member of our 
committee, Senator Specter and Senator Leahy, for their tireless 
efforts to develop a true bipartisan compromise, and I know it hasn't 
been easy.
  Before discussing the specifics of this legislation, I think it is 
important to remember what has brought us here and why so many of us 
have spent hundreds of hours working through the complex issues in 
trying to develop a

[[Page S750]]

no-fault administrative solution. As has been stated, the pivotal 
question before this body is, Will a victim be better off in a trust 
fund, or will they be better off in the tort system? I believe that 
overall a victim will be better off in this trust fund.
  Up to this point, more than 70 American companies have filed for 
bankruptcy caused by asbestos liability. This has cost the American 
economy up to 60,000 jobs. Each displaced worker from a bankrupt 
company will lose on average an estimated $25,000 to $50,000 in wages 
over his or her career because of periods of unemployment and the 
likelihood of having to take a new job paying a lower salary.
  This impact is not limited to workers who lose their jobs. For the 
workers who are able to keep their jobs at these companies, they can 
expect an average 25-percent reduction in the value of their pensions. 
And for every 10 jobs lost to an asbestos bankruptcy, a community will 
lose 8 additional jobs.
  At least four companies headquartered in my home State of California 
have been bankrupted from asbestos lawsuits. Additionally, 41 companies 
with current or former operations in California have been sued or are 
currently facing lawsuits. They include: Allwood Door Company; Ashland; 
Atlas Corporation; Bechtel; Bethlehem Steel; California Portland Cement 
Company; Celotex; Dow Chemical; Exxon Mobil; Federal Mogul; Flintkote; 
Gencorp; Georgia Pacific; Goodrich Aerospace; Hill Brothers Chemical 
Company; Honeywell; Jacuzzi Brands; JM A/C Pipe Corporation; Kaiser 
Cement; Kelly Moore Paint; Metalclad Insulation; National Gypsum; 
National Steel and Shipbuilding Company; Norton and Sons of California; 
Occidental Petroleum; Owens-Illinois California Container; Owens 
Corning Fiberglas; Pacific Gas and Electric; Pittsburgh Corning; Plant 
Insulation Company; Polyone; Raymark Industries; Reinhold Industries; 
RPM; The Scotts Company; Southern California Edison Company; Todd 
Shipyards; Tyler Pipe Industries; Walter Industries; Unocal; U.S. 
Gypsum; and Viacom.
  One of those companies, Celotex, had three plants and two regional 
sales offices in California. In 1987, Celotex employed 325 people 
there, with a payroll of $7 million. They were forced into bankruptcy 
and today they operate in the United Kingdom. This is one impact of 
what has been happening.
  According to a study done by the RAND Institute for Civil Justice, in 
1980, 300 companies were being sued for asbestos claims. This grew so 
much that by 2002, 8,400 companies had been named as defendants.
  RAND also concluded that litigation has spread beyond the asbestos 
and building products industries to the point that companies now being 
sued cover 75 out of 83 different types of industries in the United 
States. And, just through 2002, $70 billion had been paid out to 
730,000 personal injury claims.
  So again, the question is whether a victim is better off in a no-
fault trust where they automatically recover if they meet the criteria 
or in the tort system with high transaction costs that often eat up 50 
to 60 percent of a judgment.
  It is true that bankruptcies have tragic consequences, not just for 
the businesses, but also for their employees who lose their jobs, lose 
their savings, and for the victims whose settlements are frequently 
reduced even more by bankruptcy trusts until they are receiving pennies 
on the dollar.
  I think the most startling and most egregious example of the asbestos 
tragedy is what occurred in Libby, MT. Candidly, this is what put it on 
my radar screen big time. This small community has been devastated 
because of the callous and potentially criminal actions of one company, 
W.R. Grace.
  The asbestos found in Libby, MT, tremolite asbestos, has demonstrated 
an unusually high level of toxicity, as compared with chrysotile 
asbestos. Diseases contracted from tremolite asbestos are unique and 
they are highly progressive, which means they move quickly. So far 192 
residents from this small community have died and 1,400 are suffering 
from asbestos-related diseases.
  In addition, W.R. Grace not only sent its workers into the earth to 
mine asbestos without proper protection, it also pumped asbestos out of 
its factory and into the community of Libby. W.R. Grace provided 
asbestos materials to high schools and parks. It even put out piles for 
children to play in. For decades, there was an unprecedented 24-hour-
per-day contamination of this community.
  Based on this and other actions, a Federal grand jury in February of 
last year indicted W.R. Grace on multiple criminal counts. The 
indictment charges that W.R. Grace was aware of several studies that 
demonstrated the dangers of asbestos exposure and concealed this 
information from the people of Libby and from the Environmental 
Protection Agency. The prosecutor is quoted in the press as saying W.R. 
Grace's treatment of workers and residents is ``a human and 
environmental tragedy.''
  Sadly, while the situation in Libby is extraordinarily unique and our 
legislation recognizes this, the harm caused by asbestos is far 
reaching.
  In California, we have had shipments of asbestos from Libby in 35 
locations. Our shipyards became hotspots for asbestos-related diseases 
because the shipping industry used asbestos to insulate boilers, steam 
pipes, hot water pipes, and incinerators. In fact, according to the 
data compiled from the National Center for Health Statistics, between 
1979 and 2002, 4,618 Californians died because of asbestos-related 
diseases.

  Statistics do not adequately tell the full story of this tragedy. The 
day after Father's Day in 2003, Alan Reinstein of Redondo Beach, CA, 
first learned about the devastating effect asbestos can have. After 
months of ineffective and inaccurate testing to diagnose his health 
problems that Mr. Reinstein was experiencing in his lungs, doctors 
finally determined that he was suffering from mesothelioma. 
Mesothelioma is a debilitating and aggressive form of cancer that has 
been directly linked to asbestos exposure.
  After learning the correct diagnosis, Mr. Reinstein had to have major 
surgery to remove his left lung, his diaphragm, and the lining around 
his heart. The surgery to save his life was so extensive it nearly 
killed him. He and his wife Linda today face his continued health 
problems from mesothelioma. As a matter of fact, he is a very rare case 
and the only person I know of who has survived for more than 1 year 
with mesothelioma.
  Billy Speicher from Ontario, CA, spoke of his experience with 
mesothelioma before the Judiciary Committee around this time last year. 
He discussed how he was exposed to asbestos while serving as an 
aircraft mechanic for the Marine Corps in the late 1950s and again as a 
pipefitter from 1965 to 1999. He stated that in his jobs:

       Asbestos was everywhere. It was all over me and all over 
     everyone who worked near me . . . At first the doctors I was 
     seeing for two years kept telling me I had asthma--even 
     though I had CAT scans that showed my lungs were scarred. But 
     finally the fluid built up so much in my lungs they realized 
     I had mesothelioma.
       Now I'm living with a lot of pain--and I can barely get my 
     breath. [I] can't hardly sleep at night either. You know that 
     mesothelioma is a death sentence.

  These stories illustrate the personal tragedies asbestos has caused. 
Unfortunately, these two men are not alone. So the question is what to 
do, and many people think: Just leave it up to the tort system. I 
looked at that. But then you also hear cases of people who receive 
pennies on their judgment, and the question arises, Is it not possible 
to protect victims and not bankrupt companies and have a no-fault 
system whereby medical people can make the judgments and people can be 
paid a fair sum? That is what this legislation is all about.
  Compromises have been made. What I have tried to do, on the Judiciary 
Committee, is ensure that there are strong provisions in place to 
protect individuals who were struck with terminal asbestos-related 
diseases.
  There are some important provisions that I would like to highlight. 
The bill we are now considering contains higher awards values for 
victims than the version that was before the Senate in the 108th 
Congress. A broader definition of asbestos has been included to address 
the potential threat of naturally occurring asbestos that has been 
discovered in California and other parts of the country.
  During the startup period, the bill incorporates a process so 
mesothelioma victims and other terminally ill victims will have their 
claims resolved

[[Page S751]]

and paid within 9 months or else they will be allowed to take their 
case to court. So either they get prompt payment or they can go to 
court. I have insisted on that. Thanks to Senator Specter and Senator 
Leahy, that is in the bill.
  The committee also adopted an amendment that provides accelerated 
payments for terminally ill victims so they can get their awards 
quickly, once the fund becomes operational. The bill protects cases 
that have a verdict, final judgment, or final order issued by a trial 
court and cases in trial or those that have an enforceable settlement 
so that victims who have had their claims resolved are not suddenly 
uprooted.
  And this legislation prevents subrogation of awards, ensuring that 
victims' awards cannot be reduced.
  As everybody has said, this bill is not perfect. However, given the 
current state, I think it is an important solution to help provide 
relief to both victims and businesses. My understanding is that the 
chairman will have a managers' package that will further clarify and 
make improvements to the bill as well. I urge my colleagues to look 
carefully at that managers' package because many improvements have in 
fact been made.
  During this huge undertaking, there have been many concerns raised 
and criticisms levied against the bill. At every step, Senators Specter 
and Leahy have attempted to address any flaws or ambiguities. This has 
not been a ``take it or leave it'' piece of legislation. I know of no 
chairman or ranking member who have been more receptive to looking at 
changes and evaluating them.
  Several concerns have been expressed regarding how quickly money will 
come into the fund and whether the trust fund will be able to process 
the immediate flood of claims that are currently pending in court. The 
so-called upfront funding has been increased throughout the process, so 
now the fund will have $42 billion in the first 5 years to pay claims. 
In addition, the committee adopted an amendment to speed up the initial 
contributions by insurers, defendant companies, and bankruptcy trusts 
so that the administrator can pay claims quickly.
  The bill also provides the administrator of the trust fund with 
borrowing authority, so if the upfront funding of $42 billion proves to 
be inadequate, he or she may borrow funds to cover any shortfall.
  Next, the bill includes a streamlined process to settle claims of 
terminally ill individuals immediately upon enactment of the 
legislation. This provision ensures that terminally ill 
individuals will have their claims processed quickly, and it should 
resolve some of the most pressing claims before the trust is up and 
running so there would not be an overwhelming flood of claims filed 
with the trust on day one.

  Finally, Senator Specter included language in the statute of 
limitations to give individuals sufficient time to file their claims--5 
years--so there will not be a need to rush to the fund for fear of 
being cut off.
  Another concern that has been expressed, and I want to address it, is 
that the legislation will harm small businesses by requiring payments 
to the fund that are well beyond the means of these small businesses. 
Under this bill, small businesses, as defined under section 3 of the 
Small Business Act, are explicitly exempt from having to contribute to 
the fund.
  Let me repeat that. Under this bill, small businesses, as defined 
under section 3 of the Small Business Act, are explicitly exempt from 
having to contribute to the fund. At the same time, these companies 
will receive the protections provided under the legislation. They don't 
have to contribute, and they will receive the protections provided 
under the legislation--meaning they cannot be sued.
  For example, manufacturing companies that have fewer than 500 
employees will qualify as a small business. Some categories of 
manufacturing, including chemical manufacturing, will qualify if they 
have fewer than 750 employees.
  It is also important to remember that companies are only required to 
pay if they have already expended money on asbestos claims. They only 
pay if they have already expended money on asbestos claims. Smaller 
companies that had not incurred asbestos liability-related costs of $1 
million or more before December 31, 2002, are exempt from having to 
contribute to the fund.
  In addition, for those companies which are not exempt from having to 
contribute to the fund, the bill tiers companies by size and amount of 
liability. The current tort system provides no protections for small 
businesses and allows any company of any size, no matter how small, to 
be sued into bankruptcy.
  Another argument made against the bill is that there is inadequate 
funding to cover all future asbestos claims. Trying to project how many 
individuals will make claims is clearly an inexact science--if you can 
each call it a ``science.'' Even the Manville Trust, an almost 20-year-
old trust that was created after the bankruptcy filing of the Johns-
Manville Corporation, has had to alter its projections time and time 
again. Since we do not know how many people have been exposed to 
asbestos and, of those, who will develop a disease, we must rely on 
protections based on sound calculations and real-world experiences of 
other trust funds. The size of the fund is based on the strongest 
statistical data and economic models available. A leading actuary with 
Tillinghast-Towers Perrin testified before the committee on June 4, 
2003, that ``$108 billion appears to be more than adequate,'' while 
RAND Corporation estimates the remaining future cost of asbestos-
related loss and expense at $130 billion.
  By using a no-fault administrative system, the fund will 
significantly reduce the substantial transaction costs of the current 
tort system, costs that most experts agree consume more than half of 
the total amount being expended. Of the $130 billion of future 
asbestos-related costs, it is estimated--and listen to this carefully--
it is estimated that approximately $28 billion, or 21.5 percent, is 
attributable to defendant costs and approximately $41 billion, or 40 
percent, will go to plaintiffs' attorneys. So there you have 61.5 
percent going to lawyers.
  I understand how lawyers feel, but 61.5 percent of the total amount 
going to lawyers means that amount of money is not going to victims. 
Because of these transaction costs, if we continue in the current 
system, less than 40 percent of the $130 billion estimate of future 
asbestos-related loss and expense--less than 40 percent will be paid to 
asbestos victims.
  This legislation provides for $140 billion to come into the fund over 
30 years without the transaction costs of the legal system, allowing 
for more money to go to victims. The bill, as amended, obligates 
defendant and insurer participants to contribute $136 billion to the 
fund, and at least $4 billion more would be contributed from confirmed 
bankruptcy and other asbestos compensation trust funds.
  As an added protection against the risk of insufficient funding, the 
legislation gives the administrator of the fund the authority to borrow 
from commercial and government lending institutions.
  Finally, if the projections are wrong and the amount of money 
available proves to be insufficient in the long run, victims will be 
allowed to return to the courts.
  With this safety net, carefully thought out and eagerly debated, this 
legislation ensures that no one is left without an avenue for recourse.
  Another argument opponents of the bill make is that victims will be 
forced to wait years before they receive compensation.
  While California has a system to provide expedited trials when a 
victim is terminally ill, victims in most States across the country are 
forced to wait years before they can have their cases brought before a 
judge or a jury. And often, even after the case is heard and decided, 
or a settlement is reached, payments can still be stretched out for 
several months or even years.
  Due to the long delays in other States, I have fought throughout this 
process to ensure that the fund follows California's example and 
resolves claims of terminal individuals as quickly as possible.
  An amendment was adopted in committee that ensures once the trust 
fund becomes operational, individuals who have mesothelioma are paid in 
one lump sum within 30 days after their claims are approved, or within 
6 months after their claims are filed, whichever is shorter.

[[Page S752]]

  Let me repeat that because that is important.
  Mesothelioma victims are paid in one lump sum within 30 days after 
their claims are approved, or within 6 months after their claims are 
filed, whichever is shorter. What we are trying to do is prevent the 
delay in payment to someone who is terminally ill.
  Other terminally ill claimants, individuals who have been diagnosed 
with less than a year to live, must be paid within 6 months after their 
claims are approved, or 1 year after their claims are filed, whichever 
is shorter.
  During the committee consideration of the bill, we also adopted an 
amendment to speed up payments to terminally ill individuals while the 
administrator is attempting to get the fund up and running. This 
amendment provides for a process whereby terminally ill victims can 
receive a settlement directly from the administrator or claims facility 
even before the fund is operational. So the first people to be served 
before the fund is operational are terminally ill victims.
  If, for whatever reason, the administrator or claims facility is 
unable to process or pay these claims during the startup period, the 
companies or the insurers will be required to make a settlement offer 
directly to the individual.
  We cover that possibility as well.
  If the offer is rejected because it is less than the individual would 
have received under the fund--in other words, the company makes an 
offer but it is a low offer--the companies have 20 days to make a new 
offer or else they are penalized.
  Under these settlement agreements, claims are to be paid to 
mesothelioma victims, with 50 percent of the claim to be paid within 30 
days after the settlement is accepted, and the other 50 percent within 
6 months after the settlement is accepted.
  Other terminal victims are to be paid 50 percent of the claim to be 
paid within 6 months after settlement is accepted, and 50 percent 
within 1 year after settlement is accepted.
  If after 9 months, as I said, the terminally ill individual has still 
not had their claim processed or fully paid, then they may return to 
the court.
  This has been hard fought for, and this is the fail-safe in this 
legislation. I think it is fair to say that the companies would like to 
avoid this. I don't know if Senator Specter would agree with that, but 
I found that to be true. And, therefore, this ability to go back into 
court if you are terminally ill and you are not paid right away is an 
added protection that you will get paid.
  Finally, I want to address the argument that this bill creates a new 
entitlement program and will cost the people millions of dollars. This 
is simply untrue.
  According to the Congressional Research Service, entitlement programs 
are a form of mandatory spending, which ``require the payment of 
benefits to persons . . . if specific criteria established in the 
authorizing law are met,'' and they are not subject to discretionary 
appropriations from Congress. Entitlement payments are legal 
obligations of the Federal Government, and beneficiaries can sue to 
compel full payment.
  That is not the case here. The fund created by this legislation will 
be privately funded. The money collected for the fund comes from 
businesses and insurance companies--not from the U.S. Treasury.
  Although the program will be housed in the Department of Labor, the 
bill ensures that all expenses, including administrative expenses, are 
paid by the moneys collected from businesses and insurers.
  In addition, as an extra protection, it is expressly stated several 
times throughout the bill that nothing in the act shall be construed to 
create any obligation of funding from the United States or to require 
the United States to satisfy any claims if the amounts in the fund are 
inadequate. If anyone doubts that, they can look up section 406(b) of 
the bill.
  Some have argued that the Government's liability is derived from the 
provision that allows borrowing from the Federal financing bank.
  In response to an inquiry from former Senator Don Nickles on a 
previous version of this bill, the GAO stated that ``[t]o ensure that 
the government incurs no liability for repayment of borrowing under the 
act, Congress may wish to explicitly state that repayment of borrowing 
is limited solely to amounts available in the fund.''

  That is what Senator Specter did.
  The bill expressly provides that ``[r]epayment of moneys borrowed by 
the administrator . . . is limited solely to amounts available in the 
[Fund].''
  It also states that ``Nothing in this Act shall be construed to 
create any obligation of funding from the United States Government, 
including any borrowing authorized . . . ''
  With these explicit statements throughout the bill, it is abundantly 
clear that this legislation would not be a burden on the U.S. Treasury.
  In conclusion, from the beginning it has been clear that creating a 
national asbestos trust fund is an extraordinarily complex undertaking. 
This has been a compromise effort and there are numerous issues where 
competing interest groups have come together, such as the creation of a 
no-fault administrative system, the equitable allocation of 
contributions, the establishment of reasonable medical standards, the 
resolution of pending claims and settlements, fair compensation values, 
and transparency of the system to both victim and corporate 
stakeholders alike. That is very important.
  However, I must say it often seemed that with every solution and 
compromise, more concerns and problems would arise. In the end, there 
are some provisions I think all sides would like to change, but 
compared to the shortfalls in the current system, this is a strong 
solution and a good compromise.
  I hope Members will vote to close off debate and that we will be able 
to pass this important piece of legislation.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I thank the distinguished Senator from 
California for the comments which she has made. They are thoughtful, 
they are profound, they go to the heart of the question, and they 
illustrate the need for legislation. I thank her even more for the 
great contribution she has made to the bill as it has moved through the 
committee process. She has devised some of the key sections of the 
bill, starting with the handling of exigent claims to see to it that 
people with mesothelioma and other deadly diseases are handled at a 
very early stage in the proceeding.
  We have worked together countless hours in her office, in my office, 
with many other Senators in the committee process, and she has done a 
great job in committee generally on many items, including the one 
identifying victims whose identities are stolen, legislation we are 
trying to bring to the floor now. But I think the speech she just made 
was a fine hour, perhaps her finest hour, in identifying their very 
serious problems.
  Mrs. FEINSTEIN. I thank the Senator very much.
  Mr. SPECTER. Mr. President, the crux of what Senator Feinstein has 
had to say is proof positive that we ought to proceed. There is no 
doubting the problem. The only issue is whether we ought to take up the 
bill and work on it. Anybody who votes against taking up this bill will 
be casting, in my opinion--it is a tough word, a tough term--an 
unconscionable vote, considering how many thousands of people have 
suffered from deadly diseases and how many companies have gone 
bankrupt--at least to proceed to take it up. I haven't seen any Senator 
who has addressed the issue on the floor who hasn't at least faced up 
to the fact that we have a problem that ought to be addressed. 
Occasionally, we do consider the merits of a pending motion. The merit 
of a motion to proceed is whether there is a problem which ought to be 
taken up. If somebody has a better bill, let them come to it.
  I am going to speak very briefly because our distinguished colleague 
from Alabama, Senator Sessions, is on the floor. He, too, has been a 
major contributor.
  First, I wish to thank Senator Carper for his speech in support of 
the motion to proceed earlier. I think there is Democratic support. 
Senator Leahy, of course, is a cosponsor, Senator Kohl is a cosponsor, 
Senator Feinstein has spoken, Senator Carper has spoken, and others 
have stated their intention to move to take up and consider the

[[Page S753]]

bill. Senator Hatch's comments were very important. He is the author of 
the trust fund concept, and chaired the Judiciary Committee before term 
limits called for a shift in chairmanship. He did a great job. Senator 
DeWine has spoken in a very important way.
  I want to put into the Record a couple of newspaper articles which I 
think are very germane.
  Senator Reid and I had a conversation about the bill yesterday, with 
Senator Reid making the accusation that lobbyists paved the way for 
this bill to come to the floor. On the floor, in his presence, I 
challenged him as violating rule XIX which bars a Senator from making 
derogatory comments about another Senator.
  This morning, in the Hill publication there was the disclosure of a 
fascinating document which the Hill obtained from a coalition opposing 
the bill. This document, which is published at some length in the Hill, 
points out that nearly 20 corporations paid a total of about $3 million 
to defeat the asbestos legislation.
  The document obtained says this bill's ``defeat could bring an end to 
the trust fund as a viable political option for addressing the asbestos 
litigation crisis. Therefore, coalition activities leading up to that 
vote should be commensurate with the opportunity presented to us to 
defeat the trust fund once and for all.''
  This coalition document then specifies how they are laying out $2.78 
million for defeating the bill, allocating $1.34 million for coalition 
operations and $1.44 million for advertising.
  Then there is a specification as to the companies that are trying to 
defeat the bill, such as American International Group, Allstate, 
American Re, a reinsurance provider, the Chubb Corporation, Hartford 
Insurance, Liberty Mutual, Nationwide Insurance, and Zurich Financial. 
Each has received bills, according to this document, for $134,250. 
ExxonMobil paid $73,000 to the coalition.
  I shall not read any further, but I ask unanimous consent that it be 
printed in the Record at the conclusion of my comments.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit No. 1.)
  Mr. SPECTER. Mr. President, I also think it is relevant to note an 
editorial in the New York Times today which is solidly in support of 
this bill. The Times editorial refers to the efforts of Senator Leahy, 
the distinguished ranking member and principal cosponsor with me, and 
says:

       That makes it a 21st century rarity; a thoughtful, 
     bipartisan compromise on a vexing national problem. It would 
     create a trust fund to pay awards to those who are already 
     sick, using detailed medical criteria to determine 
     eligibility and awards. Under this no-fault system, akin to 
     workers' compensation, those exposed to asbestos at work but 
     not ill would be entitled to free medical screening every 
     three years.

  And the Times editorial goes on to point out:

       Lobbyists for the trial lawyers, at various companies, 
     insurers and union interests that feel aggrieved by some 
     aspect of the complex package are trying to round up 
     lawmakers to block the bill. A key test is to come today, 
     when the majority leader, Bill Frist, has scheduled a vote to 
     allow the Senate to begin formal consideration of the bill. 
     Mr. Reid is trying to derail the measure even before the 
     debate begins in earnest, and Democrats who want to see 
     asbestos victims treated fairly should not support him.
       There are other dangers ahead, including the possibility of 
     a ``poison pill'' amendment that would expand to other 
     communities a special provision that would make residents of 
     Libby, Mont., a town uniquely affected by asbestos 
     contamination, eligible for a guaranteed level of 
     compensation without a need to show occupational exposure. 
     Another worry is that some Republicans will try to amend 
     provisions or medical criteria in ways that would be unfair 
     to victims.

  The New York Times editorial concludes, saying:

       No one can be sure that $140 billion will cover all current 
     and future claims. But the bill would give victims the option 
     of going to court should the trust fund run out. It would be 
     a vast improvement over the present method of dealing with 
     the claims of asbestos victims, which is to clog the courts 
     and bankrupt companies while depriving many victims a measure 
     of justice.

  I ask unanimous consent that the full text of this editorial be 
printed at the conclusion of my comments.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. SPECTER. Mr. President, in order to make other documents 
available, I ask unanimous consent that a series of letters be printed 
in the Record. I think it important that these be available in the 
Record for Senators and their staffs and for the public to see the kind 
of support this bill has.
  Yesterday, Senator Reid and I had a few words about a number of 
groups who are for the bill and who are against the bill. This letter 
is from many veterans groups urging Senator Reid not to filibuster the 
bill. They say:

       We urge you not to stand in the way of full Senate 
     consideration of this vital legislation.

  And the number of veterans groups is enormously impressive, including 
the Veterans of Foreign Wars, the Paralyzed Veterans of America, The 
Retired Enlisted Association, the Blinded American Veterans Foundation, 
the Jewish War Veterans of the USA, and quite a number of veterans 
organizations which will appear in the Record.
  I also have printed letters of support from the NFIB and a letter 
signed by manufacturers, labor groups, small business, and 25 
additional veterans groups.
  I ask that these documents be printed in the Record so colleagues can 
see the kind of support this bill has. By doing this, they get into the 
Congressional Record, and the people note the support.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 3.)
  Mr. SPECTER. My distinguished colleague from Alabama has been 
waiting. In advance, I thank Senator Sessions for his outstanding work 
on this committee generally but especially on this bill.

                             Exhibit No. 1

                     [From the Hill, Feb. 7, 2006]

                        Aiming at Asbestos Bill

                         (By Alexander Bolton)

       Nearly 20 corporations have paid a total of about $3 
     million to defeat the asbestos trust-fund bill, which Senate 
     Majority Leader Bill Frist (R-Tenn.) has designated his first 
     priority in 2006, according to a coalition planning document 
     obtained by The Hill.
       The Senate will consider the bill, which establishes a $140 
     billion trust fund to compensate the victims of asbestos 
     exposure, over the next two weeks, leading up to the 
     Presidents Day recess. Strategists leading the opposition 
     view the debate as an opportunity to defeat the creation of 
     such a trust fund permanently.
       ``Majority Leader Frist's agreement with Chairman [Arlen] 
     Specter [R-Pa.] to put S. 852 on the Senate floor for a vote, 
     in the face of opposition from the Judiciary Committee 
     conservatives and Budget Committee leadership, has increased 
     the stakes of that vote beyond its important role in the 
     legislative process,'' Kieran Mahoney, a strategist with 
     Mercury Public Affairs, wrote in a private memo to the 
     Coalition for Asbestos Reform. The firm Fleishman-Hillard is 
     also coordinating the lobbying effort.
       ``This has become a do-or-die opposition for the advocates 
     of the Trust Fund, and its defeat could bring an end to the 
     Trust Fund as a viable political option for addressing the 
     asbestos litigation crisis,'' Mahoney wrote. ``Therefore 
     coalition activities leading up to that vote should be 
     commensurate with the opportunity presented to us--to defeat 
     the Trust Fund once and for all.''
       The memo was contained in a 22-page internal planning 
     document detailing the Coalition for Asbestos Reform's 
     strategy. The bill is sponsored by Specter and cosponsored by 
     Sen. Pat Leahy (Vt.), the ranking Democrat on the Judiciary 
     Committee. The document, crafted at the end of last year, is 
     available on The Hill's website, http://img.thehill.com/img/
news/020706/asbestos.pdf 
       It lays out a $2.78 million budget for defeating the bill, 
     allocating $1.34 million for coalition operations and $1.44 
     million for advertising.
       Fleishman-Hillard and Mercury Public Affairs are charging 
     $510,000 in fees and $80,000 in expenses for their work over 
     the first four months of the year, according to the document.
       In his memo, Mahoney writes that the advertising campaign 
     will be built around "creating political will inside three 
     audiences--moderate/conservative Democrat Senators who are 
     deemed persuadable, conservative Democrat Senators who are 
     deemed persuadable, conservative Republican senators whose 
     current opposition needs to be turned into a ``no'' vote, and 
     DC opinion leaders who collectively make up 
     conventional wisdom.
       Opinion leaders are being targeted by advertising through 
     national cable networks, D.C. broadcast stations and Capitol 
     Hill print outlets.
       Senators are being targeted through TV and print ads in 
     select markets in key states.
       The business groups are leaving the persuasion of liberal-
     leaning senators to trial lawyers and unions.
       ``Separately, the Coalition needs to ensure that the trial 
     bar and related advocacy

[[Page S754]]

     groups are preparing a similar strategy that targets liberal 
     Democratic Senators,'' the Mercury Public Affairs memorandum 
     stated.
       The campaign appears to have gained traction, as Senate 
     Minority Leader Harry Reid (Nev.) has vowed to filibuster it 
     and conservative Republicans on the Judiciary Committee such 
     as Sens. John Cornyn (R-Texas) and Tom Coburn (R-Okla.) have 
     voiced concerns over the bill.
       It passed out of the Judiciary Committee with the support 
     of all Republican members and Sens. Leahy, Dianne Feinstein 
     (D-Calif.) and Herb Kohl (D-Wis.).
       Manufacturing and insurance companies have long sought a 
     trust fund to pay asbestos-related medical claims and to 
     avoid costly lawsuits. Partisan wrangling over the best way 
     to pay asbestos-related claims and to settle a blizzard of 
     ongoing and potential lawsuits that has dragged on for years.
       The bipartisan proposal has garnered opposition from groups 
     of labor unions, trial attorneys, midsize manufacturing 
     companies and insurance companies. Unions have pushed for 
     more money in the trust fund and trial attorneys oppose the 
     concept because it curbs litigation. Midsize companies have 
     balked at how much they must pay into the fund, and insurance 
     companies are worried about their liability if it runs out of 
     money.
       But a significant portion of the business community 
     supports Specter and Leahy's efforts.
       ``There are numerous supporters of the trust fund,'' said 
     Matt Webb, vice president of the U.S. Chamber of Commerce's 
     Institute for Legal Reform, which has not taken a position on 
     the bill.
       ``It's impossible to say how many are in each camp, it 
     depends on each individual company's financial situation and 
     legal situation.''
       The coalition's document includes a list of member 
     companies and how much they've been asked to contribute to 
     the opposition effort.
       Donors such as American International Group; Allstate; 
     American Re, a reinsurance provider; Chubb Corp.; Hartford 
     Insurance; Liberty Mutual; Nationwide Insurance; and Zurich 
     Financial have each received bills for $134,250 to pay for 
     operating and advertising costs, according to the document.
       Oglebay Norton, an industrial-minerals company, and Okonite 
     Co., an electrical-wire manufacturer, have received bills for 
     $55,000. Bills for varying amounts have been sent to other 
     member companies.
       Exxon Mobil paid $73,000 to the coalition but is not a 
     member, said Thomas O'Brien, chairman of the coalition, who 
     will receive $100,000 for his work over January, February, 
     March and April, according to the document
       O'Brien declined in a phone interview to discuss what other 
     companies have joined the coalition or if the billing records 
     accurately represent the contributions of coalition members 
     to date.
       ``Things change every day,'' he said during the interview 
     in which Bill Fay of Fleishman-Hillard also participated. 
     ``That was a planning document. As Bill said, that document 
     was not for public dissemination, I wouldn't comment on it.''
       O'Brien and Fay said that the time for Congress to act was 
     several years ago but that states such as Texas have now 
     taken steps to deal with the slew of medical claims. They 
     said that the Senate bill would wreck those efforts.
                                  ____


                               Exhibit 2

                [From the New York Times, Feb. 7, 2006]

                      Justice for Asbestos Victims

       Just last week, the Democrats' Senate leader, Harry Reid of 
     Nevada, failed to muster the gumption to try to stop the 
     nomination of a right-wing ideologue to a lifetime seat on 
     the Supreme Court. So it's shocking to hear Mr. Reid 
     threatening now to block a bipartisan bill that would finally 
     bring justice and compensation to victims of asbestos-related 
     diseases. We can't imagine what Mr. Reid is trying to 
     achieve, other than showing fealty to the trial lawyers who 
     have been so generous to his party.
       The Senate should approve the bill, which would replace the 
     current morass of asbestos litigation with a $140 billion 
     fund to pay the claims of victims of asbestos exposure. The 
     fund would be financed by makers of asbestos, a carcinogenic 
     material, and manufacturers that used it, and their insurers.
       It is the product of an assiduous effort by Senator Arlen 
     Specter, the Republican who is chairman of the Judiciary 
     Committee, and Senator Patrick Leahy, the committee's senior 
     Democrat. That makes it a 21st-century rarity: a thoughtful 
     bipartisan compromise on a vexing national problem. It would 
     create a fund to pay awards to those who are already sick, 
     using detailed medical criteria to determine eligibility and 
     the awards. Under this no-fault system, akin to workers' 
     compensation, those exposed to asbestos at work but not ill 
     would be entitled to free medical screening every three 
     years.
       Lobbyists for trial lawyers, and various companies, 
     insurers and union interests that feel aggrieved by some 
     aspect of the complex package, are trying to round up 
     lawmakers to block the bill. A key test is to come today, 
     when the majority leader, Bill Frist, has scheduled a vote to 
     allow the Senate to begin formal consideration of the bill. 
     Mr. Reid is trying to derail the measure even before the 
     debate begins in earnest, and Democrats who want to see 
     asbestos victims treated fairly should not support him.
       There are other dangers ahead, including the possibility of 
     a ``poison pill'' amendment that would expand to other 
     communities a special provision that would make residents of 
     Libby, Mont., a town uniquely affected by asbestos 
     contamination, eligible for a guaranteed level of 
     compensation without a need to show occupational exposure. 
     Another worry is that some Republicans will try to amend the 
     payment provisions or medical criteria in ways that would be 
     unfair to victims.
       No one can be sure that $140 billion would cover all 
     current and future claims. But the bill would give victims 
     the option of going to court should the trust fund run out. 
     It would be a vast improvement over the present method of 
     dealing with the claims of asbestos victims, which is to clog 
     the courts and bankrupt companies while still depriving many 
     victims a measure of justice.
                                  ____


                               Exhibit 3

                                                 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 labeled 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 unable 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.
       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.
       The 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.
                                  ____

                                               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

[[Page S755]]

     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.
                                  ____

                                                 January 26, 2006.
     Hon. Bill Frist,
     Majority Leader, U.S. Senate, Capitol Building, Washington, 
         DC.
     Hon. Harry Reid,
     Minority Leader, U.S. Senate, Capitol Building, Washington, 
         DC.
       Dear Majority Leader Frist and Minority Leader Reid: We, 
     the undersigned, urge you to bring the Fairness in Asbestos 
     Injury Resolution Act of 2005 (the FAIR Act--S. 852) to the 
     floor of the United States Senate for debate and 
     consideration. Although we all come from a variety of 
     perspectives, we agree it is time for Congress to enact 
     meaningful asbestos reform through establishment of a well-
     constructed federal trust fund.
       Our country faces an asbestos litigation crisis with claims 
     rising exponentially and the backlog of cases ever 
     increasing. To date, 74 companies have gone bankrupt due to 
     asbestos litigation with 60,000 jobs lost and the cost to the 
     U.S. economy estimated at $343 billion. The continuing costs 
     and uncertainties of the current situation are harmful not 
     only to the asbestos victims with legitimate claims, but also 
     to employees, retirees, shareholders, customers of defendant 
     companies and insurers and to U.S. consumers.
       The FAIR Act will go a long way toward solving many of the 
     injustices of the current system. First, and most 
     importantly, a well-constructed trust fund will provide sick 
     victims of asbestos exposure with the fast, certain, and fair 
     compensation they deserve. Such a trust fund will provide 
     compensation to many sick veterans who are barred from 
     seeking compensation through the courts. Additionally, the 
     legislation includes significant protections for small 
     businesses.
       Indeed, our nation's governors working through the National 
     Governors Association called for federal legislative action 
     on the asbestos crisis in a resolution adopted at their 
     annual meeting in July, 2005. S. 852 is a bipartisan 
     compromise approved overwhelmingly by the Senate Judiciary 
     Committee by a 13 to 5 vote. We believe that the time is now 
     for the Senate's consideration of this important legislation 
     that will lead to the meaningful reform our country needs and 
     deserves.
       Please move forward on S. 852. It is a solution to the 
     asbestos litigation crisis that will ensure fair and timely 
     compensation for victims and certainty and finality for 
     businesses, workers, and the US. economy. All Americans stand 
     to benefit from the resolution of the asbestos crisis.
           Sincerely,
       A&I Parts Center.
       Air Force Sergeant Association.
       Alabama Voters Against Lawsuit Abuse.
       Albina Fuel.
       Alma Chamber, NE.
       American Architectural Manufacturers Association.
       American Boiler Manufacturers Association.
       American Ex-Prisoners of War.
       American Small Business Association.
       AMVETS, Albuquerque, NM, Post 7.
       AMVETS, Post 15, Los Ojos, NM.
       The Asbestos Alliance.
       Asbestos Study Group.
       AMT--The Association for Manufacturing Technology.
       Arizona Association of Industries.
       Associated Industries of Florida.
       Associated Industries of Kentucky.
       Associated Industries of Massachusetts.
       Associated Industries of Missouri.
       Associated Oregon Industries.
       Association of Builders and Contractors, NM Chapter.
       Association of Builders and Contractors, LA.
       Association of Washington Business.
       Austin Gene Rater.
       Automotive Parts and Service Association, TX.
       Banner Healthcare.
       Beatrice Chamber.
       Blinded American Veterans Foundation.
       Blinded Veterans Association.
       Brave Services.
       W.T. Butcher & Associates.
       California Manufacturers & Technology Association.
       Capital Home Realty.
       CBS Corporation.
       Center for Individual Freedom.
       Century Insurance.
       Cheyenne County Chamber, NE.
       Council for Citizens Against Government Waste.
       Crane Co.
       Crown Cork and Seal.
       CS Property Brokerage.
       Delta Mechanical.
       The Dow Chemical Company.
       H.E. Everson Company.
       Fleet Reserve Association.
       FMC Corporation.
       Freemont Area Chamber, NE.
       Ford Motor Company.
       S.A. Foster Lumber.
       G-I Holdings, Inc.
       Gage County Economic Development, Inc., NE.
       The Gasoline & Automotive Service Dealers of America, Inc.
       General Electric Company.
       General Motors Corporation.
       Georgia Industry Association.
       Grand Island Area Economic Development Corporation.
       Great American Insurance Company.
       Greater North Dakota Chamber of Commerce.
       Hanna Prime, Inc.
       Hedahls, Inc.
       Honeywell International Inc.
       Hurley Auto Parts.
       Illinois Manufacturers Association.
       Indiana Manufacturers Association.
       Industrial Fasteners Institute.
       International Association of Heat & Frost Insulators & 
     Asbestos Workers.
       International Association of Plastics Distributors.
       International Union of Painters and Allied Trades.
       International Union, United Automobile, Aerospace & 
     Agricultural Implement Workers of America-UAW.
       Irex Corporation.
       Jewish War Veterans of the USA.
       The Kansas Chamber of Commerce.
       Kent Bork Consulting.
       Lane McFerrin Partners.
       Lansing Regional Chamber of Commerce, MI.
       Les Schwab Tire Centers.
       Linen King.
       Louisiana Association of Business & Industry.
       Louisiana Pulp and Paper Association.
       Lumber Dealers Association of Connecticut.
       MacDonald Direct Marketing, Inc.
       McDermott International.
       Marine Corps League.
       Marketing and Promotion, Inc.
       MetLife, Inc.
       Michael Jordan Realty.
       Michaels Menagerie.
       Michigan Manufacturers Association.
       Michigan Tooling Association.
       Military Officers Association of America.
       Military Order of the Purple Heart.
       Motor Parts Distributors of Modesto, CA.
       Nabholz Appraisal.
       National Alliance of Wholesaler-Distributors.
       National Association of Black Veterans.
       National Association of State Directors of Veterans 
     Affairs.
       National Association of Uniformed Services.
       National Black Chamber of Commerce.
       Nebraska Chamber of Commerce & Industry.
       Nebraska Lumber Dealers Association.
       Nevada Manufacturers Association.
       New Jersey Business & Industry Association.
       Non-Commissioned Officers Association.
       North Dakota National Federation of Independent Business.
       Northern Colorado Legislative Alliance.
       Ogallala/Keith Chamber, NE.
       Ohio Manufacturers' Association.
       Oregonians for Jobs and Power.
       Owens-Illinois, Inc.
       Pfizer Inc.
       Paralyzed Veterans of America.
       Paralyzed Veterans of America, Mid-America Chapter.
       Pearl Harbor Survivors Association.
       Pennsylvania Manufacturers' Association.
       People Dynamics, Inc.
       The Plumbers Association, AR.
       Plumbing-Heating-Cooling Contractors Association of 
     Nebraska.
       Pneumo Abex LLC.
       Preferred Utilities.
       Realty Executives.
       Red Drum Investments.
       RPM International.
       The Retired Enlisted Association.
       RetireSafe.
       River Country Economic Development, NE.
       Sack Lumber.
       Saint-Gobain Corporation.
       Santa Fe Chamber of Commerce, NM.
       Saulsbury Industries.
       The Seniors Coalition.
       Shreveport Rubber and Gasket.
       Small Business & Entrepreneurship Council.
       South Carolina Chamber of Commerce.
       State Chamber of Oklahoma.
       Steel Manufacturers Association.
       Sterling Heights Area Chamber of Commerce, MI.

[[Page S756]]

       Tennessee Chamber of Commerce.
       Textile Care Allied Trades Association.
       USG Corporation.
       U.S. Submarine Veterans, Inc.
       U.S. Submarine Veterans Inc., RI Base.
       U.S. Submarine Veterans WWII, Thames River Chapter.
       U.S. Submarine Veterans WWII, Central CT Chapter.
       U.S. Submarine Veterans, Inc., Groton Base.
       Utah Manufacturers Association.
       Veterans of Foreign Wars of the United States.
       Veterans of the Vietnam War, Inc.
       Wahoo Chamber, NE.
       Waterloo Lending.
       Whalen's Furniture.
       Women Construction Owners & Executives, USA.
       Women Entrepreneurs, Inc.
       Women Impacting Public Policy.
       Women in Military Service for America Memorial Foundation, 
     Inc.
       Wunderworks.

  Mr. SESSIONS. Mr. President, I appreciate very much the leadership of 
the chairman. We have been working on this idea for quite a few years. 
I believe more strongly than ever that it is time to fix this broken 
system. I will talk about that more.
  If the chairman does not mind, our colleague, Senator Ben Nelson from 
Nebraska, wanted 2 minutes.
  I yield the floor, and I ask unanimous consent I be recognized after 
Senator Nelson.
  The PRESIDING OFFICER (Mr. Martinez). Without objection, it is so 
ordered.
  (The remarks of Mr. Nelson are printed in today's Record under 
``Morning Business.'')
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, the asbestos litigation in America today 
is out of control. We have been working on fixing it for years. In a 
previous life, I represented two plaintiffs, people who were injured 
from asbestos, seriously injured, and adversely affected in their 
health. I was embarrassed by how long it took, and by how many fees and 
costs came out of those cases. I have been embarrassed over the years 
to see this spasm in our legal system continue daily, not dispensing 
justice in a fair and legitimate way.
  We know from a Rand study and from our own experience that 58 percent 
of the money paid out by these defendants does not go to the people who 
are sick; it goes to lawyers. Somebody made an interesting point--I 
believe it was Senator Durbin--that actually a slightly higher 
percentage of money goes to defense lawyers than to the plaintiffs' 
lawyers. Regardless which side receives the money, over half of it is 
going to lawyers.
  If you are sued for $50 million and your corporation hires the best 
legal team possible and spends all this money, and there are court 
costs and depositions and fees for experts, it eats you up. When the 
judgments come out, often after years of work, very little money goes 
to the victim. It is not right. It is the worst performance by the 
legal system, in my view--other than discrimination based on race in 
our past--since the founding of the Republic. This cannot be justified, 
although it is happening this very day in courts all over America.
  Over 700,000 individuals have filed asbestos claims, and as many as 
300,000 of those claims are pending today. The number of asbestos 
defendants started out at 300. These defendants were the people who 
made the asbestos, who shipped it out, who at some point became aware 
that asbestos was damaging to their health--they put no warnings on 
it--and just sent it out. Those people were the original asbestos 
defendants. The original plaintiffs were directly harmed by their 
actions. For example, my client was in a submarine, sawing asbestos 
with an electric saw in that confined space, breathing untold amounts 
of asbestos. By his early fifties, he was on oxygen. That is reality. 
That happened.
  Today, we have people who worked in a repair shop who claim somehow 
the brakes had asbestos in them and are now responsible for a disease 
they may have. And it may not be true. The damage is much less in many 
of these instances than it was for my client and others like him. Yet 
under the current system, these shaky claims get compensated. We need 
to sift through this mess and create a system that will work.
  Mr. President, $70 billion has been spent today to resolve asbestos-
related claims. Of course, less than half of that $70 billion got to 
the victims. Companies are settling claims filed by people who are not 
sick because they cannot afford to litigate. It is just that simple. 
People who are not sick now are getting money as almost a nuisance or 
extortion payment because the lawyers are filing so many of these 
cases. It has been driving companies into bankruptcy at an alarming 
rate.
  There were 19 asbestos bankruptcies filed in the 1980s. Seventeen 
were filed in the 1990s. Between 2000 and mid-2004, there were an 
astonishing 36 asbestos-related bankruptcy filings, amounting to more 
filings in the first half of this decade than in the prior two decades 
combined.
  We hear a lot of people saying: I would rather sue and go through the 
court system than have this national fund. But there may not be a 
defendant to sue at this rate because 77 companies have gone bankrupt. 
With those bankruptcies, American workers have lost 60,000 jobs, 
costing up to $200 million in lost wages.
  The money, as I indicated, is not getting to the victims. Some 
beneficiaries of the Manville asbestos trust fund received as little as 
5 cents on the dollar for their claims. If there is a $1 million 
verdict and you get 5 cents on the dollar, how fair is that?
  In my hometown of Mobile, AL, the Mobile Register, which has done a 
considerable, superb investigative effort into some of the abuses in 
this system which are prominent along the gulf coast because we have a 
lot of asbestos exposure in the shipyard industry, said:

       The biggest beneficiaries of the asbestos-related lawsuits 
     tend not to be people with health problems, but the lawyers 
     and the for-profit lung testing companies they hire.

  There has been a tremendous scandal over that. One courageous Federal 
judge has blown the whistle on it and perhaps broken that system up. 
But it is just one more example of the many abuses in the current 
system.
  Now, the U.S. Supreme Court has seen this matter from the perspective 
of the legal system. They are looking down at the 300,000 claims that 
are pending all over America. They are seeing that things are not going 
as they should. So in 1991, the Judicial Conference Committee--this is 
the judges' committee that represents all the Federal judges in 
America, appointed by the Chief Justice of the United States--said the 
asbestos situation had ``reached critical dimensions.'' Then they went 
on to say that the courts were ``ill-equipped'' to address these mass 
claims in any effective manner. This statement was significant because 
the Judicial Conference Committee does not write us very often about 
things like this.
  In AmChem Products v. Windsor, in 1997, Justice Ginsburg, writing for 
the Supreme Court--I will note parenthetically that Justice Ginsburg, 
who was an ACLU lawyer, one of the more activist members of the Court, 
and certainly not a shill for the business industry--said this:

       The argument is sensibly made that a nationwide 
     administrative claims processing regime would provide the 
     most secure, fair, and efficient means of compensating 
     victims of asbestos exposure. Congress, however, has not 
     adopted such a solution.

  The Supreme Court has in essence issued what is a challenge, a plea 
to us, really.
  In Ortiz v. Fibreboard Corp., Justice Souter, on the Supreme Court, 
said this:

       The elephantine mass of asbestos cases . . . defies 
     customary judicial administration and calls for national 
     legislation. . . .

  S. 852 is a response to the Supreme Court's concerns. The bill 
establishes a $140 billion trust fund, privately funded, for the 
purpose of directing compensation to the individuals suffering 
identifiable injuries as they result from asbestos exposure. Instead of 
waiting years for their claims to go through the tort system, the trust 
fund will allow legitimate asbestos victims to be compensated faster 
and on a no-fault basis, meaning that the claimants no longer have to 
go into court and have a trial to prove that their injuries are the 
result of negligence or fault on another party; they just make a claim 
and get paid based on the severity of injury. They do not have to prove 
causation or negligence.
  For asbestos victims who are the most ill, like those with 
mesothelioma, the bill provides for an expedited

[[Page S757]]

claims process and payment system. It is really expedited. Fifty 
percent of the $1.1 million a person with meso will be entitled to 
receive will be paid within 30 days, and the rest in 6 months.
  Now, we have seen in the paper, we have heard here on the floor, and 
we have heard from people who have come to the Hill, like widows of 
persons who have died from mesothelioma, just how long it takes to get 
compensation under the tort system. Meso is a deadly disease that is, 
indeed, connected to asbestos. Of that I think there is little dispute. 
That is why this legislation says that if you have mesothelioma and you 
have been exposed to asbestos, you walk in with a doctor and they will 
pay you $1.1 million, and you do not even need a lawyer. You get all of 
your compensation, and you do not have 60 percent of the money taken 
out for fees and costs, and the money will be paid promptly. Isn't that 
the way the system should work?
  But we have had these widows and other victims coming here, telling 
us how long it takes to get their money. I began to think about it a 
little bit--I know Senator Specter has had the opportunity to deal with 
this issue, too--and how sad it is to see people who have been widowed 
as a result of asbestos. Let me say this. Widows are coming here asking 
for payment as the result of the death of a loved one because they have 
not yet gotten their money. Why haven't they been paid? Because it 
takes years in the current system to bring the case to judgment, and 
then there is only partial judgment. Some defendants settle, some do 
not settle, and the cases go on. And the people with fatal diseases 
such as mesothelioma die before the case is ever concluded. I am 
telling you that is the way it works in the real world. That will end 
with this process.
  We have the ability to create in this Senate a legal scheme for 
handling these cases that will end a system where the real victims get 
pennies on the dollar and individuals with no real injuries clog up the 
system or get windfalls. It will end a system where lawyers are the big 
winners, often walking away with more than half the proceeds.
  The FAIR Act will provide greater certainty to victims, defendant 
companies, and insurers. Under the fund, victims will be paid on a set 
schedule, according to their proven illness. Defendant companies and 
insurers will contribute a set amount of money to the fund on a 
predetermined timetable, allowing them to move forward and plan for 
their financial future. The money will go to victims, not to overhead 
and attorneys.
  The Democratic leader has said this is some sort of corrupt process, 
and those who want to fix this system are somehow coming here with less 
than clean hands, that their judgment is clouded by K Street or money. 
I would ask the Democratic leader to defend this system, if you will. 
Come here and justify what is going on in the courts of America.
  Dickey Scruggs, who lives not too far from my hometown of Mobile, AL, 
was the architect of the asbestos litigation. He started the cases, and 
he established the legal principles that led to all of these suits 
around the country. He came with Senator Specter the other day and said 
it is time to bring it to an end, that this is not a legitimate legal 
process anymore. It is not working effectively. It is an embarrassment 
to us all.
  It is an embarrassment to me that Congress cannot fix a system where 
billions of dollars are being paid out, billions of dollars--$70 
billion already, and 60 percent of it does not go to the victims. What 
kind of legal system is that?
  Now, we have a lot of businesses that are opposing the legislation. I 
would suspect their views are that they have gotten a calculator out 
and they have had their accountants and lawyers get together, and they 
have calculated that they may not pay as much under the current system 
as under this bill, so they do not want the bill to pass.

  We have plaintiffs' lawyers who are out there making millions of 
dollars every day on this system. And there are defense lawyers also 
making millions of dollars on this system. They object to the 
legislation because they have a special interest in it.
  But we are Senators. We represent the public interest. We have a duty 
and an obligation to defend this American legal system, and to make 
sure the legal system has integrity. We are entitled and have a 
responsibility to superintend it. When we see things in the system that 
are plainly wrong, it is our responsibility to fix them. That is what 
we are setting about to do with this bill. It is not easy. I do not 
deny that.
  We will continue to listen to the legitimate complaints of those who 
feel somehow this system will not be fair to them, and continue to make 
adjustments.
  Senator Specter, Senator Leahy, and others have--we have all promised 
to do that, to try to, in good faith, work in that way. But, again, our 
responsibility is not to plaintiffs' lawyers, who poured millions of 
dollars in campaign contributions to one side or another in these 
races, or businesses that pour out large contributions. What is that? 
Our responsibility is to integrity and to propriety and to justice. 
Justice is not being done in these cases. Dickey Scruggs himself says 
it should end. He supports this legislation. Does anybody say he does 
not care about victims? He has represented thousands of them, tens of 
thousands of them.
  I am glad to work with Chairman Specter and the others in support of 
this bill. I believe his work on it comes from the highest motives, the 
purest motives. We can disagree on the tactics, but it is offensive to 
me that we have Senators on this floor suggesting that an effort to end 
this abusive and unjust system is somehow, in itself, a corrupt act. 
That is not true.
  Senator Specter and Judge Becker of the Third Circuit Court of 
Appeals, a senior judge and capable person, have had meetings all over 
this country, listening to everybody who has an interest in this 
matter. Senator Specter has spent hours in these meetings--days, weeks, 
months, even. Senator Hatch, as chairman of the Judiciary Committee 
before Senator Specter, has also worked tirelessly to accommodate 
concerns.
  For years we have been working on this legislation. It is an open 
process. The bill is out there. If it needs to be improved, I support 
that and will listen to that effort. But I do not think we need to drop 
the ball now. We are moving forward toward the goal line. We have an 
opportunity to provide relief to victims in a way that cannot help but 
be helpful to them, but they may not know that.
  I am getting calls from victims, and they are saying things with 
written messages their trial lawyers have given them to say. It breaks 
my heart. To think, I used to be representing victims, so I know a 
little bit about this matter. I am sympathetic to them. They do not 
know. They have no idea this system is going to provide more money for 
victims, quicker and faster, with less cost than the current system. 
They are hearing it only from one side--their lawyer's.
  So it is up to us to do the right thing and not play politics, not 
lose our nerve at this point in history.
  I am glad to see Senator Specter here. If he would allow me, I wish 
to take a couple minutes at this point to say a few words on the 
passing of Coretta Scott King.
  I say to Chairman Specter, if you wish to comment, I did want to have 
a few minutes to express my thoughts on the funeral today of Coretta 
Scott King.
  Mr. SPECTER. Mr. President, if the Senator from Alabama will yield to 
me for a very brief comment about his presentation before moving on, I 
wish to thank him for those comments. I think he has accurately 
described the serious problem caused by asbestos in this country in 
terms of injuring workers, injuring people who are exposed to asbestos 
who are not workers but from materials carried home, the tremendous 
impact on the economy, the bankruptcies.
  He has addressed in a very forceful way the spurious, unmeritorious 
allegation about lobbyists having bought their way on to the floor with 
this bill. I appreciated all of his speech, but I especially 
appreciated the passion there.
  I ask unanimous consent that the printed Record reflect the passion. 
The printer is going to have to figure out some way to reflect the 
passion.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Is that unanimous consent request granted, Mr. 
President?

[[Page S758]]

  The PRESIDING OFFICER. I took it as such, and I granted it.
  Mr. SPECTER. Good. But it was a terrific speech, I say to Senator 
Sessions, and I thank you for it and thank you for your leadership on 
this bill generally and for your strenuous, hard work and leadership on 
the Judiciary Committee.
  Mr. SESSIONS. Thank you, I say to Senator Specter. You put your heart 
and soul into this effort. Nobody should think the effort you have gone 
forward with, and that Senator Hatch and Senator Leahy and Judge Becker 
and others have gone forward with, is for any other purpose than trying 
to make this system better. We absolutely can improve the system. It is 
within our grasp to do so. If we cannot pass legislation that takes the 
58 percent of compensation that is currently not getting to the victims 
and allow those victims to have larger amounts of money, it is our 
fault. We are pretty incompetent.


                           Coretta Scott King

  Mr. SESSIONS. Mr. President, I want to take a moment to express some 
thoughts about the death of Coretta Scott King. She grew up in Perry 
County, AL. Her father ran a country store as did mine.
  Mrs. King, in so many ways, epitomized the good background that she 
had and where she was raised. She carried those values forward 
throughout her life. She graduated from Lincoln High School in Marion, 
AL. It was an all-Black high school that educated the offspring of 
former slaves from 1867 and 1970. The late Jean Childs Young, wife of 
former Atlanta Mayor Andrew Young, was another distinguished Lincoln 
graduate.
  After high school, where she was valedictorian of the Class of 1945, 
Mrs. King accepted a scholarship to Antioch College in Ohio, where she 
studied the violin, singing, and piano. After graduating from Antioch, 
she accepted a scholarship to attend the New England Conservatory of 
Music in Boston, where she met her future husband Martin, who was also 
a student in Boston.
  They got married in 1953 and the very next year, they were at Dexter 
Avenue Baptist Church, within sight of the State Capitol of the State 
of Alabama. It was at this time that she and Dr. King came to know Rosa 
Parks, whose refusal to give up her seat on a Montgomery bus led to the 
civil rights movement. Rosa Parks was arrested and the Montgomery bus 
boycott ensued, sparking a movement to ensure that all citizens were 
treated equally under the law.
  Dr. and Mrs. King and Rosa Parks truly changed a system that could 
not be defended. It was a system that treated people, because of the 
color of their skin, as second-class citizens and not equal. It was not 
a defensible system morally or legally.
  Judge Frank Johnson got the bus boycott case, and he ruled that the 
equal protection clause of the U.S. Constitution said people should be 
treated equally. Requiring someone to go to the back of the bus, 
despite a State statute to the contrary, did not represent equality. It 
was unconstitutional. The Supreme Court agreed, and that gave a real 
boost to the civil rights movement.
  During her 78 years, Mrs. King represented the kind of character and 
integrity and commitment to right living that should inspire us all. 
And she has given her best full measure. She has seen the toils and 
snares of life. She moved through them through her full and complete 
time on this Earth. She has run the race and is fully entitled to the 
rewards of that successful race.
  It is my honor and privilege to express, on behalf of the people of 
Alabama, my sympathy to the King family, to wish them well and to say 
to them how our State, our Nation, and, indeed, the world is better off 
for the courage they displayed.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I associate myself with the eloquent 
remarks of the Senator from Alabama with respect to Coretta Scott King. 
I appreciate the opportunity to listen.


                          Warrantless Wiretaps

  Mr. FEINGOLD. Last week the President of the United States gave his 
State of the Union Address, where he spoke of America's leadership in 
the world and called on all of us to ``lead this world toward 
freedom.'' Again and again, he invoked the principle of freedom and how 
it can transform nations and empower people around the world.
  Almost in the same breath, the President openly acknowledged that he 
has ordered the Government to spy on Americans on American soil without 
the warrants required by law. The President issued a call to spread 
freedom throughout the world, and then he admitted he has deprived 
Americans of one of their most basic freedoms under the fourth 
amendment--to be free from unjustified Government intrusion.
  The President was blunt. He said he had authorized the NSA's domestic 
spying program, and he made a number of misleading arguments to defend 
himself. His words got rousing applause from Republicans and I think 
even from some Democrats.
  The President was blunt so I will be blunt. This program is breaking 
the law, and this President is breaking the law. Not only that, he is 
misleading the American people in his efforts to justify this program.
  How is that worthy of applause? Since when do we celebrate our 
Commander in Chief violating our most basic freedoms and misleading the 
American people in the process? When did we start to stand up and cheer 
for breaking the law? In that moment at the State of the Union, I felt 
ashamed.
  Congress has lost its way if we don't hold this President accountable 
for his actions. The President, of course, suggested that anyone who 
criticizes his illegal wiretapping program doesn't understand the 
threat we face. But we do. Every single one of us is committed to 
stopping the terrorists who threaten us and threaten our families. 
Defeating the terrorists is our top national priority. And we all agree 
that we need to wiretap them to do it. We all agree on that. In fact, 
it would be irresponsible not to wiretap terrorists. But we have yet to 
see any reason at all why we have to trample the laws of the United 
States to do it.

  The President's decision that he can break the law says far more 
about his attitude toward the rule of law than it does about the laws 
themselves. This goes way beyond party and way beyond politics. What 
the President has done is to break faith with the American people.
  In the State of the Union, he also said that we must always be clear 
in our principles ``to get support from our friends and allies that we 
need to fight terrorism.''
  So let's be clear about a basic American principle: When someone 
breaks the law, when someone misleads the public in an attempt to 
justify their actions, they need to be held accountable. The President 
of the United States has broken the law. The President of the United 
States is trying to mislead the American people, and he needs to be 
held accountable.
  Unfortunately, the President refuses to provide any real details 
about this domestic spying program. Not even the full Intelligence 
Committees know the details, and they were specifically set up to 
review classified information and oversee the intelligence activities 
of our Government. Instead, the President says, basically: Trust me.
  Unfortunately, this is not the first time we have heard this. In the 
lead up to the Iraq war, the administration went on the offensive to 
get the American public, the Congress, and the international community 
to believe its theory that Saddam Hussein was developing weapons of 
mass destruction and even that he had close ties to al-Qaida and was 
somehow involved in 9/11. The President painted a dire and inaccurate 
picture of Saddam Hussein's capability and intent, and we invaded Iraq 
on that basis. To make matters worse, the administration misled the 
country about what it would take to stabilize and reconstruct Iraq 
after the conflict. We were led to believe that this was going to be a 
short endeavor and that our troops would be home soon.
  We all recall the President's ``mission accomplished'' banner on the 
aircraft carrier on May 1, 2003. In fact, the mission was not even 
close to being complete. More than 2,100 total deaths have occurred 
after the President declared an end to major combat operations in May 
of 2003, and over 16,600 American troops have been wounded in Iraq. The 
President misled the American people and grossly miscalculated the true 
challenge of stabilizing and rebuilding Iraq.

[[Page S759]]

  In December, we found out that the President has authorized wiretaps 
of Americans without court orders required by law. He says he is only 
wiretapping people with links to terrorists. But how do we know? How do 
we know? We don't. The President is unwilling to let a neutral judge 
make sure that that is the case. He will not submit this program to an 
independent branch of Government to make sure he is not violating the 
rights of law-abiding Americans.
  I don't want to hear again that this administration has somehow shown 
that it can be trusted. It hasn't. That is exactly why the law requires 
a judge to review these wiretaps. It is up to the Congress to hold the 
President to account. We held a hearing on the domestic spying program 
in the Judiciary Committee yesterday, where Attorney General Gonzalez 
was a witness. We expect there will be other hearings. That is a start. 
But it will take more than hearings to get the job done. We know that, 
in part, because the President's Attorney General has already shown a 
willingness to mislead Congress.
  At the hearing yesterday, I reminded the Attorney General about his 
testimony during his confirmation hearings in January 2005, when I 
asked him whether the President had the power to authorize warrantless 
wiretaps in violation of criminal law. We didn't know it then, but the 
President had authorized the NSA program 3 years before, when the 
Attorney General was the White House counsel. At his confirmation 
hearing, the Attorney General first tried to dismiss my question as 
``hypothetical.'' He then testified that ``it is not the policy or the 
agenda of the President to authorize actions that would be in 
contravention of our criminal statutes.''
  Wiretapping American citizens on American soil without the required 
warrant is in direct contravention of our criminal statutes. The 
Attorney General knew that, and he knew about the NSA program when he 
sought the Senate's approval for his nomination to be Attorney General. 
He wanted the Senate and the American people to think that the 
President had not acted on the extreme legal theory that the President 
has the power, as Commander in Chief, to disobey the criminal laws of 
this country. But he had.
  The Attorney General had some explaining to do, and he didn't do it 
yesterday. Instead, he parsed words, argued that what he said was 
truthful because he didn't believe that the President's actions 
violated the law.
  The Attorney General knew what I was asking. He knew he was 
misleading the committee in his response. If he had been 
straightforward, he would have told the committee that in his opinion, 
the President has the authority to authorize warrantless wiretaps. My 
question wasn't about whether such illegal wiretapping was going on. 
Similar to almost everybody else in Congress, I didn't know about the 
program then. It was a question about how the nominee to be the 
Attorney General of the United States viewed the law. This nominee 
wanted to be confirmed. So he let a misleading statement about one of 
the central issues of his confirmation, his view of Executive power, 
stay on the record until the New York Times revealed the program.
  The rest of the Attorney General's performance at yesterday's hearing 
certainly did not give me any comfort either. He continued to push the 
administration's weak legal arguments, continued to insinuate that 
anyone who questions this program doesn't want to fight terrorism, and 
he refused to answer basic questions about what powers this 
administration is claiming.
  We still need a lot of answers from this administration. Let's put 
aside the Attorney General for now. The burden is not just on him to 
come clean. The President himself has some explaining to do. The 
President's defense of his actions is deeply cynical, deeply 
misleading, and deeply troubling. To find out that the President of the 
United States has violated the basic rights of the American people is 
chilling. And then to see him publicly embrace his actions and to see 
so many Members of Congress cheer him on is appalling.
  The President has broken the law. He has made it clear that he will 
continue to do so. But the President is not a king, and the Congress is 
not a king's court. Our job is not to stand up and cheer when the 
President breaks the law. Our job is to stand up and demand 
accountability, stand up and check the power of an out-of-control 
executive branch.
  That is one of the reasons the Framers put us here--to ensure balance 
between the branches of Government, not to act as a professional 
cheering section. We need answers, because no one--not the President, 
not the Attorney General, and not any of their defenders in this body 
have been able to explain why it is necessary to break the law to 
defend against terrorism. I think that is because they cannot explain 
it.
  Instead, this administration reacts to anybody who questions this 
illegal program by saying that those of us who demand the truth and 
stand up for our rights and freedoms have a pre-9/11 view of the world. 
In fact, the President has a pre-1776 view of the world. That is the 
problem. Our Founders lived in dangerous times, and they risked 
everything for freedom. Patrick Henry said, ``Give me liberty or give 
me death.'' The President's pre-1776 mentality is hurting America. It 
is fracturing the foundation on which our country has stood for 230 
years.
  The President cannot just bypass two branches of Government and obey 
only those laws he wants to obey, deciding unilaterally which freedoms 
still apply in the war against terrorism. That is unacceptable and 
needs to be stopped immediately.
  Let's examine some of the President's attempts to defend his actions. 
His arguments have changed over time because none of them hold up even 
under casual scrutiny. So he cannot rely on one single explanation. As 
each argument crumbles beneath him, he moves on to a new one, until 
that is, too, debunked, and on and on he goes.
  In the State of the Union, the President referred to Presidents in 
American history who cited executive authority to order warrantless 
surveillance. But of course those past Presidents, as Wilson and 
Roosevelt, were acting before the Supreme Court decided in 1967 that 
our communications are protected by the fourth amendment, and before 
Congress decided in 1978 that the executive branch can no longer 
unilaterally decide which Americans to wiretap. The Attorney General 
yesterday was unable to give me one example of a President who, since 
1978 when FISA was passed, has authorized warrantless wiretaps outside 
of FISA.
  So that argument is baseless, and it's deeply troubling that the 
President of the United States would so obviously mislead the Congress 
and American public. That hardly honors the Founders' idea that the 
President should address the Congress on the state of our union.
  The Foreign Intelligence Surveillance Act was passed in 1978 to 
create a secret court, made up of judges who develop national security 
expertise, to issue warrants for surveillance of terrorists and spies. 
These are the judges from whom the Bush administration has obtained 
thousands of warrants since 9/11. The administration has almost never 
had a warrant request rejected by those judges. They have used the FISA 
Court thousands of times, but at the same time they assert that FISA is 
an ``old law'' or ``out of date'' and they can't comply with it. 
Clearly, they can and do comply with it except when they don't. Then 
they just arbitrarily decide to go around these judges, around the law.
  The administration has said that it ignored FISA because it takes too 
long to get a warrant under that law. But we know that in an emergency, 
where the Attorney General believes that surveillance must begin before 
a court order can be obtained, FISA permits the wiretap to be executed 
immediately as long as the Government goes to the court within 72 
hours. The Attorney General has complained that the emergency provision 
does not give him enough flexibility, he has complained that getting a 
FISA application together or getting the necessary approvals takes too 
long. But the problems he has cited are bureaucratic barriers that the 
executive branch put in place and could easily remove if it wanted.
  FISA also permits the Attorney General to authorize unlimited 
warrantless electronic surveillance in the United States during the 15 
days following a declaration of war, to allow time to consider any 
amendments to FISA required by a wartime emergency. That

[[Page S760]]

is the time period that Congress specified. Yet the President thinks 
that he can do this indefinitely.
  In the state of the union, the President also argued that Federal 
courts had approved the use of Presidential authority that he was 
invoking. But that turned out to be misleading as well. When I asked 
the Attorney General about this, he could point me to no court--not the 
Supreme Court or any other court--that has considered whether, after 
FISA was enacted, the President nonetheless had the authority to bypass 
it and authorize warrantless wiretaps. Not one court. The 
administration's effort to find support for what it has done in 
snippets of other court decisions would be laughable if this issue were 
not so serious.
  The President knows that FISA makes it a crime to wiretap Americans 
in the United States without a warrant or a court order. Why else would 
he have assured the public, over and over again, that he was getting 
warrants before engaging in domestic surveillance?
  Here's what the President said on April 20, 2004:

       Now, by the way, any time you hear the United States 
     Government talking about wiretap, it requires--a wiretap 
     requires a court order. Nothing has changed, by the way. When 
     we're talking about chasing down terrorists, we're talking 
     about getting a court order before we do so.

  And again, on July 14, 2004: ``The Government can't move on wiretaps 
or roving wiretaps without getting a court order.''
  The President was understandably eager in these speeches to make it 
clear that under his administration, law enforcement was using the FISA 
Court to obtain warrants before wiretapping. That is understandable, 
since wiretapping Americans on American soil without a warrant is 
against the law.
  And listen to what the President said on June 9, 2005:

       Law enforcement officers need a Federal judge's permission 
     to wiretap a foreign terrorist's phone, a Federal judge's 
     permission to track his calls, or a Federal judge's 
     permission to search his property. Officers must meet strict 
     standards to use any of these tools. And these standards are 
     fully consistent with the Constitution of the U.S.

  Now that the public knows about the domestic spying program, he has 
had to change course. He has looked around for arguments to cloak his 
actions. And all of them are completely threadbare.
  The President has argued that Congress gave him authority to wiretap 
Americans on U.S. soil without a warrant when it passed the 
authorization for use of military force after September 11, 2001. Mr. 
President, that is ridiculous. Members of Congress did not think this 
resolution gave the President blanket authority to order these 
warrantless wiretaps. We all know that. Anyone in this body who would 
tell you otherwise either wasn't here at the time or isn't telling the 
truth. We authorized the President to use military force in 
Afghanistan, a necessary and justified response to September 11. We did 
not authorize him to wiretap American citizens on American soil without 
going through the process that was set up nearly three decades ago 
precisely to facilitate the domestic surveillance of terrorists--with 
the approval of a judge. That is why both Republicans and Democrats 
have questioned this theory that somehow the Afghanistan resolution 
permitted this sort of thing.

  This particular claim is further undermined by congressional approval 
of the PATRIOT Act just a few weeks after we passed the authorization 
for the use of military force. The PATRIOT Act made it easier for law 
enforcement to conduct surveillance on suspected terrorists and spies, 
while maintaining FISA's baseline requirement of judicial approval for 
wiretaps of Americans in the U.S. It is ridiculous to think that 
Congress would have negotiated and enacted all the changes to FISA in 
the PATRIOT Act if it thought it had just authorized the President to 
ignore FISA in the AUMF.
  In addition, in the intelligence authorization bill passed in 
December 2001, we extended the emergency authority in FISA, at the 
administration's request, from 24 to 72 hours. Why do that if the 
President has the power to ignore FISA? That makes no sense at all.
  The President has also said that his inherent executive power gives 
him the power to approve this program. But here the President is acting 
in direct violation of a criminal statute. That means his power is, as 
Justice Jackson said in the steel seizure cases half a century ago, 
``at its lowest ebb.'' A recent letter from a group of law professors 
and former executive branch officials points out that ``every time the 
Supreme Court has confronted a statute limiting the Commander-in-
Chief's authority, it has upheld the statute.'' The Senate reports 
issued when FISA was enacted confirm the understanding that FISA 
overrode any pre-existing inherent authority of the President. As the 
1978 Senate Judiciary Committee report stated, FISA ``recognizes no 
inherent power of the president in this area.'' And ``Congress has 
declared that this statute, not any claimed presidential power, 
controls.'' Contrary to what the President told the country in the 
State of the Union, no court has ever approved warrantless surveillance 
in violation of FISA.
  The President's claims of inherent executive authority, and his 
assertions that the courts have approved this type of activity, are 
baseless.
  The President has argued that periodic internal executive branch 
review provides an adequate check on the program. He has even 
characterized this periodic review as a safeguard for civil liberties. 
But we don't know what this check involves. And we do know that 
Congress explicitly rejected this idea of unilateral executive 
decisionmaking in this area when it passed FISA.
  Finally, the President has tried to claim that informing a handful of 
congressional leaders, the so-called Gang of Eight, somehow excuses 
breaking the law. Of course, several of these Members said they weren't 
given the full story. And all of them were prohibited from discussing 
what they were told. So the fact that they were informed under these 
extraordinary circumstances does not constitute congressional 
oversight, and it most certainly does not constitute congressional 
approval of the program. Indeed, it doesn't even comply with the 
National Security Act, which requires the entire memberships of the 
House and Senate Intelligence Committee to be ``fully and currently 
informed of the intelligence activities of the United States.''
  In addition, we now know that some of these Members expressed concern 
about the program. The administration ignored their protests. Just last 
week, one of the eight Members of Congress who has been briefed about 
the program, Congresswoman Jane Harman, ranking member of the House 
Intelligence Committee, said she sees no reason why the administration 
cannot accomplish its goals within the law as currently written.
  None of the President's arguments explains or excuses his conduct or 
the NSA's domestic spying program. Not one. It is hard to believe that 
the President has the audacity to claim that they do. It is a strategy 
that really hinges on the credibility of the office of the Presidency 
itself. If you just insist that you didn't break the law, you haven't 
broken the law. It reminds me of what Richard Nixon said after he had 
left office: ``Well, when the President does it that means that it is 
not illegal.'' But that is not how our constitutional democracy works. 
Making those kinds of arguments is damaging the credibility of the 
Presidency.
  And what's particularly disturbing is how many Members of Congress 
have responded. They stood up and cheered. They stood up and cheered.
  Justice Louis Brandeis once wrote:

       Experience should teach us to be most on our guard to 
     protect liberty when the Government's purposes are 
     beneficent. Men born to freedom are naturally alert to repel 
     invasion of their liberty by evil-minded rulers. The greatest 
     dangers to liberty lurk in insidious encroachment by men of 
     zeal, well-meaning but without understanding.

  The President's actions are indefensible. Freedom is an enduring 
principle. It is not something to celebrate in one breath, and ignore 
the next. Freedom is at the heart of who we are as a Nation, and as a 
people. We cannot be a beacon of freedom for the world unless we 
protect our own freedoms here at home.
  The President was right about one thing. In his address, he said ``We 
love our freedom, and we will fight to keep it.''
  Yes, Mr. President. We do love our freedom, and we will fight to keep 
it.

[[Page S761]]

We will fight to defeat the terrorists who threaten the safety and 
security of our families and loved ones. And we will fight to protect 
the rights of law-abiding Americans against intrusive Government power.
  As the President said, we must always be clear in our principles. So 
let us be clear. We cherish the great and noble principle of freedom. 
We will fight to keep it, and we will hold this President and anyone 
who violates those freedoms accountable for their actions.
  In a nation built on freedom, the President is not a king, and no one 
is above the law.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. LEVIN. Mr. President, there is a compelling need to reform the 
current asbestos litigation process. This process is not fair to 
workers, including many who have become ill through exposure to 
asbestos. There are people who are not impaired who have received 
compensation, and there are many claimants that have been injured by 
asbestos exposure who have not received compensation. It is not fair to 
businesses for a host of reasons. The status quo is not acceptable.
  I do have several substantive issues with S. 852, The FAIR Act. I 
have spent a great deal of time over the past few months working with 
the sponsors of S. 852, including Senators Specter and Leahy, seeking 
to make changes that would improve the bill from my perspective.
  For instance, I wanted to see more money go to mesothelioma victims 
who have dependents and to ensure that in a budget neutral manner, the 
money didn't come from other terminally ill victims. The sponsors of 
the bill have agreed to support the following language to address my 
concerns:

       The Administrator may increase awards for Level IX 
     claimants who have dependent children so long as this 
     provision is cost neutral. Such increased awards shall be 
     paid for by decreasing awards for claimants other than Level 
     IX, so long as no award levels are decreased more than 10 
     percent.

  Another issue for me was to protect companies that might be required 
to contribute to an asbestos trust fund, and have their insurers 
contribute, but that have no assurance that the company's own claims 
will be satisfied. The sponsors have agreed to an added criteria which 
would allow a company to apply for a decreased payment for their annual 
assessment into the trust to protect again that outcome. That criteria 
would be:

       When measured against the likely cost of past and potential 
     future claims in the absence of the Act.

  A third problem I wanted to see addressed related to companies that 
should not be required to participate in the asbestos trust fund 
because they have disposed of all of their known previous claims. The 
sponsors of the bill have agreed to support the following language to 
address my concern:

       . . . subject to the discretion of the Administrator, [a 
     company may] be exempt from any payment obligation if such 
     defendant participant establishes with the Administrator that 
     it has satisfied all past claims and that there is no 
     reasonable likelihood in the absence of the Act of any future 
     claims for whose costs the defendant participant might be 
     responsible. . . .

  A fourth issue that concerns me is in the area of attorney's fees in 
both (a) past cases that are moved into the trust fund from the tort 
system and (b) new administrative claims in the asbestos trust fund. 
The former situation could be highly unfair and even confiscatory while 
in the case of the latter the fee is so low as to constitute as a 
deterrent to both filing future claims and appeals. The sponsors of the 
bill have agreed to language relative to (b) that reads in part that 
attorneys will be able to ``obtain a reasonable attorney's fee, which 
shall be calculated by multiplying a reasonable hourly rate by the 
number of hours reasonably expended on the individual's claim.'' My 
concern relative to (a) remains unaddressed.
  I have additional concerns about S. 852. I am concerned about the 
current severability provision in the bill. There are many contentious 
issues in S. 852 that many observers expect will be litigated including 
the constitutionality of incorporating existing asbestos trust funds 
into this one. There are also restrictions on tort cases in this bill, 
which if triggered by the fund's nonviability will limit the possible 
venues for filing future asbestos claims. The availability of such 
restrictions may lead companies to resist payments to the fund, thereby 
contributing to its nonviability because they obtain restrictions on 
tort claims in that event. That is not a wise incentive. Therefore, I 
support a nonseverability clause for certain sections of the bill and 
the sponsors have indicated a willingness to consider it.
  There are other issues that have been raised by a number of 
colleagues with this bill. Some of those issues include the 
constitutional issues involved in the of ``taking'' the existing 
asbestos trust funds; the lack of a contribution structure for the $46 
billion of insurance industry contributions; the special consideration 
given in this bill to the residents of one community; the lack of an 
adequate startup provision which would trigger a return to the tort 
system if the trust fund never gets going and the lack of an 
appropriate sunset trigger which would also provide for the fund to 
dissolve if claims go unpaid and allow people to go back to court.
  Based on my discussions with the managers, I will support the motion 
to proceed to S. 852. My future position on the legislation will depend 
on the content of the bill after it is amended.
  Mr. LEAHY. Mr. President, this evening, Senators will finally have 
the opportunity to vote to consider legislation which has been publicly 
debated and considered for several years. It is a bipartisan bill that 
is the product of lengthy and conscientious negotiation. We have held 
dozens of public hearings and committee markups. It has been an 
exemplary process.
  I see the distinguished Senator from Pennsylvania in the Chamber. He 
has arranged--I have lost count of the number of meetings where people 
from across the spectrum, political and otherwise, have had a chance to 
be heard--businesses, victims, labor, industry, everybody. It has been 
a great process. But with every day we delay consideration of this 
bill, victims are dying and more companies are going bankrupt. Both are 
tragedies for the families and victims, as well as for the workers and 
retirees and for the families who built these companies.
  The time has now come to pass this legislation. Victims have been 
waiting long enough for a comprehensive national solution. I hope all 
Senators will support the motion to proceed to this legislation. It has 
earned the support of many organizations that represent the victims of 
serious asbestos exposures.
  Asbestos disease has tragically weighed heavily on one group in 
particular--our Nation's war veterans. These brave veterans are unable 
to receive compensation under our current system, and they have asked 
Members of Congress--both parties--over and over again for help. The 
Military Order of the Purple Heart noted in its last letter of support 
that ``the FAIR Act is the only viable solution for sick veterans.''
  We all speak of our support of veterans, as we should; all Americans 
should. That should not be partisan. But here is one way to help a 
class of veterans who are not going to get any help otherwise.
  More than 30 organizations representing veterans, as I noted on the 
floor yesterday, have supported this piece of legislation. But we have 
also received renewed letters of support from the International 
Association of Heat and Frost Insulators and Asbestos Workers Union, 
the International Union of United Automobile, Aerospace and 
Agricultural Implement Workers, otherwise known as the UAW, and the 
International Union of Painters and Allied Trades. They represent 
literally hundreds of thousands of families who have suffered. They 
support this because, as they say, they are ``firmly convinced it would 
be far superior to the current tort system in compensating the victims 
of asbestos-related diseases.''
  It has not been easy getting to this point. It has taken years and 
years of

[[Page S762]]

work. It is not line for line the bill I would have written; it is not 
line for line the bill the distinguished Senator from Pennsylvania, Mr. 
Specter, would have written. Both of us went in with the idea that we 
would find a bill that would get the broadest support possible but also 
a bill that would help as many victims as possible. I believe this does 
it.
  Think of what is going to happen if you are going to have thousands 
of people who never get help and dozens more companies go bankrupt on 
top of the 70 that have already gone bankrupt.
  Supreme Court Justices as diverse in philosophy as the late Chief 
Justice William Rehnquist and Justice Ruth Bader Ginsburg have pled, 
publicly pled with the Congress to come up with legislation to solve 
this problem. Right now, litigation--many times--helps only those 
litigators, both defense and plaintiff, and very little help to the 
companies or the victims.
  The problems we are addressing are complex. This bill necessarily 
reflects these complexities. Drafting was not easy. The compromises we 
had to make were difficult but necessary to ensure that we created a 
trust fund that would provide adequate compensation to the thousands of 
workers who have suffered and continue to suffer the devastating health 
effects of asbestos.
  The tragic history of asbestos use in our country has to come to an 
end. We Senators first and the other body next have the chance to bring 
this to an end. The President has said he would sign such legislation 
if we can pass it. This is not a Democratic or Republican issue; this 
is an issue for all Americans.
  I join with the President, I join with my Republican colleagues, and 
I join with my Democratic colleagues who have supported this. In fact, 
under a provision authored by Senator Murray of Washington State which 
we have included, which was accepted during the last Congress by the 
Judiciary Committee, this bill will ban the maintenance and 
distribution of asbestos. This whole thing can come to an end so 
victims can get help.
  We have to halt the harm asbestos creates, and we have to ameliorate 
the harm it has already caused. The industrial and insurer participants 
in the trust fund will gain the benefits of financial certainty and 
relief from the stresses of litigation in the tort system, and victims 
will have a quicker and more efficient path to recovery.
  Chairman Specter, Senator Feinstein, Senator Baucus, and my 
colleagues from both sides of the aisle on the Judiciary Committee are 
working hard with me on this bipartisan legislation. Let this go 
forward today. Let us bring this to a halt. Help us bring surety.
  I urge Senators to let us move toward solving this problem by 
considering our bipartisan bill to at long last help solve the asbestos 
problem by providing fair compensation to victims of asbestos exposure.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. SPECTER. Mr. President, I thank the distinguished Senator from 
Vermont, the ranking member on the Judiciary Committee, for his 
comments. I compliment him on his comments and on his work on the 
asbestos bill--on his entire career in the U.S. Senate, 31 years, but 
especially in the past year and 1 month, 13 months, where he and I have 
been ranking member and chairman of the Judiciary Committee, and the 
cooperation which we have had. We have had some disagreements, but very 
few, and when there have been disagreements, they have been on matters 
of policy as opposed to anything to undercut the collegiality of the 
work of the Judiciary Committee. I can think of some votes--there are 
bound to be differences on votes--but I think we have carried the 
committee a long way with class action, bankruptcy, and moving through 
the disagreements and filibuster versus the nuclear option on the 
circuit judges and Chief Justice Roberts and Justice Alito not all 
agreements but in large measure--and then coming to the asbestos bill, 
which has been as tough as any legislation I have ever seen.
  I made a statement yesterday which may have been a little excessively 
sweeping, but the asbestos bill is a complicated bill.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
between 5:40 and 5:50 is reserved for the Democratic leader, and 5:50 
until 6:00 is reserved for the majority.
  Mr. SPECTER. Mr. President, I ask unanimous consent that I have the 
last 10 minutes as the surrogate of the majority leader. I will yield 
and conclude my comments when my time comes.
  Mr. LEAHY. Mr. President, will the distinguished Democratic leader 
allow me 20 seconds to refer to what the distinguished Senator from 
Pennsylvania just said?
  Mr. President, the distinguished Senator from Pennsylvania is my 
friend--a friend from the days when we were prosecutors together. I am 
very touched by what he said. The Judiciary Committee handles some of 
the most difficult issues there are. I enjoy working with him because 
of his own ability and because of that friendship.
  The ACTING PRESIDENT pro tempore. The Democratic leader.
  Mr. REID. Mr. President, will my 10 minutes start running from this 
time?
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. REID. Mr. President, we have a crisis facing the American people, 
a crisis which causes the death of 10,000 people each year. In addition 
to the 10,000 deaths each year, hundreds of thousands of people are 
suffering from lung conditions that are most debilitating.
  The crisis which confronts us is not an asbestos litigation crisis; 
it is an asbestos-induced disease crisis. We are told by experts that 
the problem will get worse, not better. It will peak about 10 years 
from now. Litigation has not caused the deaths, the pain, the 
suffering, the lost wages, the medical bills; asbestos has caused the 
deaths and the suffering.
  I have said on a number of occasions--I say it today--that of course 
I would support a fair and equitable piece of legislation, legislation 
which would favor the victims, not a few very large corporations.
  Senators Leahy and Specter have worked very hard on this legislation 
and on things they do on the Judiciary Committee. I understand that. 
But hard work doesn't always lead to good legislation.
  I have served in Congress 24 years. There may be an occasion when 
Senator Leahy and I have voted opposite one another; I just do not 
remember when that was. We virtually agree on everything we do. So I am 
sorry that on this piece of legislation we must disagree.
  Powerful corporate interests have fought throughout this process to 
escape responsibility--a paradigm shift from what they should pay to 
what they are willing to pay. This is not the American way. The bill 
before us is based on faulty and questionable guesses, not estimates. 
To make it even worse, little relevant information has been made 
public.
  The legislation before the Senate is unfair to the victims, to the 
veterans--they would be much better off without this legislation--to 
the insurance industry, most businesses, the American taxpayer, and, of 
course, our judicial system. I rise again to express my strong 
opposition to the asbestos bill before the Senate. As I have just said, 
it is unfair to victims, veterans, the insurance industry, most 
businesses, and, of course, the American taxpayers.
  I oppose this legislation because it will not buy justice regarding 
asbestos exposure. It deprives victims of their legal rights and gives 
them a trust fund that will not work and will not provide adequate 
compensation. One would have to search long and hard to find a bill, in 
my opinion, as bad as this.

  Asbestos disease kills thousands of Americans every year--10,000 to 
be exact. The cases of disease and death caused by asbestos exposure 
are not abstractions. I have received countless letters from victims of 
asbestos-related diseases and their families. Each shares another story 
of loss and pain.
  All the leading organizations representing asbestos victims oppose 
this bill--the Committee to Protect Mesothelioma Victims, asbestos 
disease

[[Page S763]]

awareness organizations, the Asbestos Victims Organization. The White 
Lung Association wrote a letter February 1 to me and to Senator Frist. 
It said:

       We do not want this proposed government policy forced upon 
     us. We believe the program will fail to treat victims fairly 
     while benefitting the very companies that cause the problem.

  It was for the sake of these victims that today I introduced a Senate 
resolution designating April 1 of this year as National Asbestos 
Awareness Day. Introducing this resolution was one small step in an 
effort to raise awareness of this dangerous substance and the painful 
effects that exposure to asbestos has caused throughout the country.
  It is my hope that designating another National Asbestos Awareness 
Day will serve as a reminder that exposure to asbestos remains a very 
bad problem in this country. Asbestos-induced illnesses continue to 
kill or disable Americans at alarming rates. Our resolve to adequately 
protect the rights of these victims must not falter.
  One thing we should do for asbestos victims is to defeat the flawed 
legislation now before the Senate. Approximately 150,000 individual 
victims of asbestos exposure and their families have petitioned the 
Senate to communicate their opposition to this legislation. I have a 
few of the 150,000 names. We have boxes and boxes of these petitions. 
These petitions say:

       We, the undersigned, hereby petition the United States 
     Senate on behalf of the victims of asbestos poisoning.
       We are the victims of asbestos poisoning and families and 
     friends of the victims who are opposed to Senate bill 852, 
     the ``FAIR ACT.''
       Although the Bill's Senate sponsors intend to help victims, 
     this bill only helps a few large companies at the expense of 
     the victims of asbestos poisoning and most businesses.
       In addition to our opposition, we observe that the bill is 
     also opposed by most insurance companies, numerous 
     businesses, and most labor unions.
       The reasons we oppose S. 852 are as follows:
       (1) The bill does not provide a reliable mechanism for 
     providing compensation quickly to the victims of asbestos 
     poisoning. If anything, the Bill backtracks on protections 
     already promised by the Senate in an earlier version which 
     passed in the Judiciary Committee with substantial bipartisan 
     support.
       (2) If the Trust Fund runs out of money, as predicted by 
     some experts, the Bill does not contain reliable sunset 
     provisions. Victims will be left in limbo.
       (3) In many instances, the compensation for victims is far 
     less than victims' actual damages and far less than we 
     currently receive in the judicial system.
       (4) The Bill allows companies to renege on settlement 
     commitments and settlement trust amounts already promised and 
     set aside for victims and their families.
       (5) The Bill does not have reliable, transparent funding 
     mechanisms. Instead, it sets up a complex system of 
     administrative challenges and court challenges that will 
     allow companies to contest their funding obligations.
       (6) Contrary to prior Senate commitments contained in 
     earlier versions of the Bill, this Bill will stop the current 
     system of compensation before an up and running reliable 
     system is established to take its place.
       (7) This Bill was written to benefit a group of companies 
     who have spent a fortune lobbying for its passage to the 
     detriment of other companies and insurers who have promised 
     to fight the Bill in the courts. This will result in further 
     delays all to the further detriment of all victims of 
     asbestos poisoning.

  Mr. President, there are 150,000 signatures with their names and 
addresses. I will not ask it be made part of the record, of course.
  I will use leader time now. I mentioned yesterday on the Senate floor 
that there were some businesses that were not being treated fairly. I 
mentioned them by name, and I will run over a couple of them again: 
Foster Wheeler Company, an international engineering and construction 
company with 4,000 U.S. employees, has stated in recent SEC filings the 
company does not expect to fund any asbestos-related costs from the 
company's cash flow. Yet as a Tier II defendant participant would be 
required to pay at least $19.5 million per annum into the trust fund. 
This requirement, along with the separation of the company from its 
insurance assets, jeopardizes its long-term financial viability.
  The A.W. Chesterton Company, founded in 1884, would also file 
bankruptcy. They have 2,000 employees.
  Hopeman Brothers, in Waynesboro, VA, is still privately owned by the 
Hopeman family. It has finished the interiors and outfitted ships since 
it first worked in Sun Shipyard in Chester, PA, in 1916. Hopeman bought 
significant liability insurance, much of which remains unused today. 
Stripping Hopeman of its insurance coverage and then imposing a cash-
pay obligation will drive the company into bankruptcy.
  Okonite Company, founded in 1876, is the only company in America that 
makes wire. They will be forced to file bankruptcy if this bill passes.
  These are only four of hundreds and hundreds of companies that will 
be forced into bankruptcy.
  Each one of the 150,000 signatories on these petitions are a real 
concern. Each one of the 10,000 Americans who will die from asbestos 
exposure this year have tragic stories. Each will leave behind a family 
which will never be whole again. Each one is counting on us in the 
Senate to preserve their right to obtain compensation for the harm 
caused to them and their families by asbestos exposure, just as these 
companies want fairness.
  Opposition to the FAIR Act is not limited to individual victims. Many 
workers have been exposed to asbestos, as I outlined yesterday, and 
their unions have been fighting to ensure fair treatment for them. 
Virtually every major union has concluded that this bill does not meet 
the needs of their workers: The AFL-CIO, the Change to Win Federation, 
Steelworkers, International Brotherhood of Boilermakers, Laborers 
International, and on and on.
  Beyond unions, most small- and medium-sized businesses oppose this 
bill, as do the vast majority of insurance companies. They know it will 
not work.
  This bill deprives victims of their legal rights and replaces the 
tort system with a trust fund that is doomed to failure. Experts who 
have reviewed the bill conclude that the trust fund will be underfunded 
and will quickly become insolvent.
  This morning, the Bates White Research Firm, a prominent, eminent 
consulting firm offering services to Fortune 500 companies and 
government agencies--Dr. Bates developed a computer model of the 
incidence of asbestos-related diseases. Without going into their 
resume, I ask unanimous consent it be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                              Bates White

       Bates White, LLC (Bates White) is a national consulting 
     firm offering services in economics, finance, and business 
     analytics to leading law firms, FORTUNE 500 companies, and 
     government agencies.
       Their Environmental & Product Liability (EPL) practice 
     offers economic consulting, litigation support, class 
     certification, and liability estimation services. The 
     business is based on the use of analytical tools to help 
     clients understand and quantify potential liabilities. They 
     have extensive experience in asbestos and provide expert 
     testimony in both bankruptcy and coverage litigation, as well 
     as expert opinions with regard to insurance valuation, due 
     diligence evaluations, and financial reporting services. 
     Through the course of this work, Bates White has seen claims 
     data from numerous defendants and insurance companies. The 
     knowledge gained across all of those matters has been 
     invaluable in assessing the financial viability of S. 852.
       As part of our work in asbestos-related matters, Bates 
     White has led the development of several highly 
     sophisticated, customized analytical tools that estimate 
     clients' future asbestos liability from personal injury and 
     property damage lawsuits. In the early 1990s, Dr. Charles 
     Bates developed a computer model of the incidence of 
     asbestos-related malignant diseases. Over the years, Bates 
     White has performed ongoing research to improve this model. 
     This state-of-the-art model became the industry standard. 
     More recently, Bates White has pioneered research on the 
     recruitment of non-malignant claimants, and challenged 
     epidemiological-based forecasts of future non-malignant 
     claims.
       In addition to research on asbestos matters, Bates White 
     has analyzed the historical U.S. usage of tobacco from 1920 
     through 2002. This research provides us the smoking history 
     of potential lung cancer patients who could qualify under S. 
     852.

  Mr. REID. They found that the CBO underestimated the number of cancer 
victims who will likely file claims with the fund. Based on this and 
other factors, Bates White concluded that the real cost estimate for 
the trust fund should be double what it now is.
  During floor debate this morning, the distinguished senior Senator 
from Pennsylvania, the chairman of the Judiciary Committee, explained 
what will

[[Page S764]]

happen if the trust fund runs out of money. He said:

       We have within the structure of the bill a vision that the 
     administrator can make a reevaluation going through certain 
     preconditions so if it looks like we will exceed the $140 
     billion we can make modifications in medical standards and 
     criteria and stay within the $140 billion.

  In other words, if the fund runs short, fewer victims are eligible or 
those who are eligible will get less money. So there are real 
consequences to this underfunded trust fund. It will hurt victims. The 
only alternative is that taxpayers will be left to fund the shortfall.
  Even if the trust fund was adequately funded, the claim system 
established by the FAIR Act is fraught with defects that would prevent 
many victims from recovering what they deserve.
  First, startup provisions are unfair. As soon as the bill is enacted, 
the ability of asbestos victims to claim compensation in the court 
system is cut off. There is no better example of this than what happens 
to veterans. Also, the bankruptcy court trust funds that are now 
compensating victims will be shut down, depriving victims of needed 
compensation.
  Second, the bill is unfair to victims with pending or settled court 
cases. Rather than permit asbestos claims to continue in court while 
the fund is being established, the bill imposes an immediate 2-year 
stay of nearly all asbestos cases. The bill's language is so broad that 
a trial about to begin would be stopped and an appellate ruling about 
to be handed down would be barred.
  Third, the sunset process under the legislation leaves too much 
uncertainty. If the fund fails to operate as promised, instead of 
allowing victims to return to court, this legislation allows the 
administrator of the fund to allow or recommend any number of measures 
he feels important to salvage the program. As Senator Specter said this 
morning, this means that fewer victims may recover.
  Fourth, the bill requires some victims to prove that asbestos was a 
``substantial contributing factor'' to their disease, a higher burden 
than victims must meet in court, where it is sufficient to show that 
asbestos exposure was a contributing factor, no matter how substantial 
a factor.
  I want to make sure Senator Specter has time to complete his 
statement, so I ask the time for the vote, which is now set for 6 
o'clock, not begin at that time so Senator Specter is allowed time to 
finish his statement.
  The ACTING PRESIDENT pro tempore. That is the result of the Senator 
using his leader time.
  Mr. REID. I want to make sure the Senator from Pennsylvania 
understood that.
  The whole concept of no-fault trust fund is that it is 
nonadversarial, but the higher burden of proof creates the very likely 
potential for endless litigation and a high number of rejected cases.
  These are a few of the problems that make the FAIR Act--and again, as 
I said yesterday, the FAIR Act? We should be used to these Orwellian 
terms after naming legislation ``Leave No Child Behind,'' ``The Clear 
Skies Initiative,'' ``Healthy Forests,'' ``Budget Deficit Reduction 
Act,'' all of which do the opposite of what they say. It is my opinion, 
to which I am entitled, that the FAIR Act is part of that, again.
  I have always favored improvements in the way asbestos victims were 
compensated. This bill does not accomplish that goal.
  We have heard a lost talk about the managers' amendment to this bill. 
Apparently, the sponsors are telling Senators that we will take care of 
your concerns in the managers' amendment. The problem with this 
approach is that no one except the sponsors can know how the pieces of 
the managers' amendment will fit together. Since the sponsors are 
trying to satisfy Senators with conflicting concerns, there is every 
reason to believe that different elements of the managers' amendment 
will move in different directions.
  For example, one Senator may want to expand eligibility under the 
trust fund for compensating asbestos victims. A different Senator may 
want to limit the amount of money paid into the trust fund. The first 
part of the managers' amendment may expand the number of victims, but 
the second part may limit the amount of money available to all victims. 
Both Senators may have their language included, but the final result 
may be completely unworkable and unsatisfactory.
  This is not the right way to legislate. These amendments should be 
offered individually so that all Senators can evaluate them on their 
individual merits, and after all the amendments are offered and voted 
on, Members can evaluate the total product when they vote on final 
passage. Certainly, Members should not commit their support to the 
final bill until they see how the conflicting pieces to the managers' 
amendment fit together.
  I believe it has been good for the Senate to spend time debating the 
motion to proceed. We focused attention on what some believe are flaws 
in the process leading to the Senate consideration of the bill and the 
flaws of the bill itself. Now we are ready to debate the bill on its 
merits. I welcome that debate.
  I offered to vitiate this vote and begin consideration of amendments 
to the bill on Thursday. This was rejected. I will now support cloture 
and encourage Senators to do the same.
  The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I note the Senator from Nevada has spoken 
for 18 minutes, taking some leader time, and the 10 minutes allocated 
under the unanimous consent. I ask unanimous consent Senator McConnell 
and I may be accorded the same amount of time.
  Mr. REID. No objection.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. REID. That is together, not individually--not 36 minutes?
  Mr. McCONNELL. Right.
  Mr. REID. No problem.
  Mr. SPECTER. Mr. President, when I yielded the floor as 5:40 arrived, 
I was in the middle of commenting about the work which the 
distinguished ranking member, Senator Leahy, and I had done on this 
bill and the spirit of collegiality and the spirit of bipartisanship 
which has characterized the work of the Judiciary Committee the past 13 
months.
  Senator Leahy and I have worked together as ranking member and as 
chairman. This bill represents very substantial work and analysis as to 
how we have gotten there.

  When the Senator from Nevada talks about the debate being useful up 
to the present time, I tabulate three Senators who spoke in opposition 
to the bill. And a good bit of what they have had to say is in error 
factually on the merits.
  This bill has been subjected to more analysis, more discussions--I 
was saying before I yielded the floor when time had arrived for the 
minority leader--than any bill in the history of legislation. I 
acknowledge that as a very grandiose statement because I do not know 
all of the legislative bills that have been considered in the history 
of the legislative process. But I make that assertion based upon what 
has been done, which I detailed yesterday, with Judge Becker, a senior 
Federal judge, and I hosting some 36 meetings, attended by 20, 30, 40, 
sometimes as many as 60 people, and the numerous meetings which Judge 
Becker has had on a volunteer basis, and the many meetings I have had 
with individual Senators.
  I have talked to many Senators, several dozen Senators, perhaps a 
majority of the Senators, on an individual basis, either visiting in 
their offices or on the Senate floor or in the corridors, in order to 
acquaint Senators with what is going on.
  The assertions which have been made simply are not factual. I am 
pleased to note the Senator from Nevada has stated his intention to 
vote for cloture and that we are going to be going on to debate the 
bill on the merits. Yesterday, the Senator from Nevada was more than 
firm in his opposition to the bill. And I think it fair to say I was at 
least equally firm in what I had to say by way of response. But there 
are the votes present without the vote of the Senator from Nevada to 
invoke cloture and to proceed to a discussion on the merits. When we do 
proceed to a discussion on the merits, we will have a chance to answer 
in detail the misunderstandings which have been articulated in the 
debate so far.
  One Senator who spoke in opposition to the bill talked about secrecy, 
that

[[Page S765]]

nobody knew who was going to pay the money. The language--there was a 
quote--``contained in a secret list known only to the asbestos study 
group. . . .'' ``None of the relevant information has ever been made 
public.'' Well, factually that is just not correct.
  The Judiciary Committee had to issue a subpoena, but we know who is 
paying how much money. That is a matter that can be looked at by 
Senators or by their staffs. But it has been retained on a confidential 
basis because there could be a problem for the companies if these 
factors were disclosed.
  Then another comment made by one of the three Senators who spoke in 
opposition to the bill, that the ``United States Government will be 
making a commitment to compensate hundreds of thousands of seriously 
ill asbestos victims. . . .'' Well, that is factually just not correct.
  This bill is airtight that the Federal Government has no financial 
obligation, and that if there is an effort to impose a budget point of 
order, and it is considered on the merits, that it will not impede the 
movement of this bill forward. The budget point of order will not be 
sustained because there is no Federal money. Technically, it goes 
through the Department of Labor, so it is calculated as a Federal 
expenditure, but there is no Federal money involved.
  The Senator from Nevada has gone through a list of objections he has, 
and as we are now moving to debate--after this evening's vote--the bill 
on the merits, we will have a chance to explore those in detail.
  When the Senator from Nevada talks about Foster Wheeler, 
illustratively, I personally have met with Foster Wheeler on a number 
of occasions, as recently as 10 days ago. And we are still seeing if we 
can accommodate the concerns of Foster Wheeler.
  We have gone a long way to see to it that companies will not be 
adversely affected financially, on exclusion of small business, a 
matter detailed at some length by Senator Feinstein in her comments on 
the floor today, and on a hardship fund of some $300 million a year, 
and by an amendment which we are in the final stages of negotiation to 
limit the amount of money that companies with lesser gross revenues 
will have to pay, all of which is directed----
  The ACTING PRESIDENT pro tempore. The Senate is not in order.
  The Senator from Pennsylvania.
  The Senate will be in order.
  Mr. SPECTER. I am not going to ask for any additional time, Mr. 
President, because of the interruptions and the disorder--all of which 
is directed--to finish my sentence--to the companies which sustained 
financial hardship.
  I made a repeated offer, yesterday and today, in speaking about the 
bill, inviting any Senator who has a constituent who has a problem to 
come talk to us. We will try to work to a solution of the problem. And 
you do not have to have a Senator if you are a constituent. If anybody 
is watching these proceedings on C-SPAN2, come to my office. My staff 
and I, Senator Leahy and his staff, and the Judiciary Committee 
generally, will try to find an accommodation and an answer.
  The Senator from Vermont is back on the floor. I am glad he has come 
back because I wanted to make this comment about the bipartisanship of 
the Judiciary Committee, what we have accomplished, as a sign for what 
this body can do.
  It is an open secret that the rancor and the partisanship and the 
bickering is at an all-time high in the Senate--an all-time high. And 
there is much talk about the good old days when there was comity and 
there was collegiality in the Senate.
  Well, Senator Leahy and I have restored that to the Judiciary 
Committee. And we have produced this bipartisan bill on asbestos 
reform. We do not make any representation that it is a perfect bill or 
that it is a bill which cannot be improved. We are open for business to 
improve and change the bill.
  But that brings me to a New York Times editorial which I think is of 
note as to what Pat Leahy and Arlen Specter have accomplished with our 
committee and what this body can accomplish. This is what the New York 
Times had to say. In a complimentary line, they refer to the assiduous 
effort that Pat Leahy and Arlen Specter made, and then say: That makes 
it a 21st-century rarity: a thoughtful bipartisan compromise on a 
vexing national problem.

  I think it is a sad day for the Senate, a very sad day, when it is a 
21st century rarity that there is a thoughtful, bipartisan compromise 
on a vexing national problem.
  We have a great many vexing national problems. I believe they can be 
solved on a bipartisan effort so it does not become a 21st century 
rarity. I am glad to see that however we have gotten there, that the 
votes were present by mid-afternoon to shut off this filibuster and 
that we can now go forward to debate on the merits so the American 
people can see our analysis of the problems and our proposed solutions 
and our openness to modifications to produce the best possible bill 
because the system which we have at the present time is an anathema and 
a travesty and unworthy of the American judicial system.
  I thank the Chair and yield to my distinguished colleague, the 
assistant majority leader.
  The ACTING PRESIDENT pro tempore. The assistant majority leader.
  Mr. McCONNELL. Mr. President, we are about to have the cloture vote, 
and it is going to take a minute to thank Senator Specter and Senator 
Leahy for this extraordinary compliment from the New York Times. I do 
not think it is an experience the Senator from Kentucky has ever had.
  This cloture vote is going to be approved. We learned about an hour 
ago that the Democratic leader has decided to support the cloture vote, 
and I think that is good. We would prefer to have been on this bill 
last Friday. Senator Specter was here and ready to work, ready to 
process amendments last Friday. But here we are on Tuesday night.
  So let me say I think it is good for the Senate that this cloture is 
going to be invoked. We are ready to get on the bill. I heard the 
Democratic leader offer to begin tomorrow. I think that is a good idea. 
Senator Specter will be here in the hopes that amendments will be 
offered and processed. We are prepared to deal with that tomorrow and 
through the days until we can reach a point of conclusion.
  So, Mr. President, I do not know how much time I have remaining, but 
so that we may move forward and vote, I am prepared to yield back the 
remainder of my time.
  The ACTING PRESIDENT pro tempore. All time is yielded back.
  Under the previous order, the Chair lays before the Senate the 
pending cloture motion, which the clerk will report.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the motion to 
     proceed to Calendar No. 131, S. 852: A bill to create a fair 
     and efficient system to resolve claims of victims for bodily 
     injury caused by asbestos exposure, and for other purposes.
         Bill Frist, Arlen Specter, Jeff Sessions, Pat Roberts, 
           Lamar Alexander, Lisa Murkowski, Johnny Isakson, 
           Richard M. Burr, Wayne Allard, Mitch McConnell, Mike 
           DeWine, George V. Voinovich, Jim Talent, David Vitter, 
           Bob Bennett, Mel Martinez, Ted Stevens.

  The ACTING PRESIDENT pro tempore. By unanimous consent, the mandatory 
quorum call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
motion to proceed to S. 852, the Fairness in Asbestos Injury Resolution 
Act of 2005, shall be brought to a close? The yeas and nays are 
mandatory under the rule. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. The following Senator was necessarily absent: the 
Senator from Oklahoma (Mr. Coburn).
  The PRESIDING OFFICER (Mr. Chambliss). Are there any other Senators 
in the Chamber desiring to vote?
  The yeas and nays resulted--yeas 98, nays 1, as follows:

                      [Rollcall Vote No. 12 Leg.]

                                YEAS--98

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Cantwell
     Carper

[[Page S766]]


     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     Dayton
     DeMint
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inouye
     Isakson
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner
     Wyden

                                NAYS--1

       
     Inhofe
       

                             NOT VOTING--1

       
     Coburn
       

  The PRESIDING OFFICER. On this vote, the yeas are 98, the nays are 1. 
Three-fifths of the Senators duly chosen and sworn having voted in the 
affirmative, the motion is agreed to.
  Mr. LOTT. I move to reconsider the vote, and I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LOTT. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Martinez). Without objection, it is so 
ordered.
  Mr. NELSON of Florida. Mr. President, although I voted to proceed to 
the bill I have strong concerns with this legislation.
  I am concerned that this bill will take away the rights of asbestos 
victims to have their day in court while providing no guarantees that 
they will receive fair and prompt compensation. This bill and its 
payment structure could bankrupt small businesses, with many of them 
shouldering a larger financial burden under the bill then they 
currently do in the court system. Many of these small businesses are 
not the evildoers here, but due to the payment structure of the bill, 
they will find themselves shouldering a large portion of the liability.
  I support the concept of a nonadversarial process to provide 
compensation to victims but a process that is fair to all the parties 
involved. I believe that this bill falls short, and while I voted for 
cloture I intend to vote against final passage of this bill unless 
significant changes are made.

                          ____________________