[Congressional Record Volume 152, Number 16 (Friday, February 10, 2006)]
[Senate]
[Pages S1047-S1050]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                SCHEDULE

  Mr. FRIST. Mr. President, today, we will have a brief period of 
morning business before we resume consideration of S. 852, the asbestos 
bill. Although Members may come down and make statements relative to 
the bill, there are going to be no rollcall votes today, as I explained 
last night.
  Last night, we vitiated cloture and confirmed a nomination that was 
scheduled for a vote today; and given that action, it is not necessary 
to have that vote this morning.
  We did hope to consider and vote on amendments during today's 
session. However, at this time, there is a motion to waive the budget 
pending, and that will require further debate.
  In addition, we are approaching the final week prior to the 
President's Day recess. We want to use all our time effectively to work 
through the asbestos bill and other remaining business. I talked with 
the Democratic leader about a number of issues that we will address 
over the course of the next 8 or 9 days. There is the tax 
reconciliation bill that has gone to conference. We have 10 hours on 
that. There are the issues surrounding the PATRIOT Act that needs to be 
reauthorized.
  Great progress has been made over the last 24 hours in a bipartisan 
way. At the close of business today, I will outline next week's 
schedule. Senators should plan on a very busy week prior to the recess, 
with voting over the course of next week.


                                Asbestos

  I briefly want to comment on the asbestos bill and where we are today 
and the significance of this underlying bill. We have been on this for 
a week, in terms of debate. I think my colleagues and the American 
people realize how important this bill is and why it is the first major 
piece of legislation we are taking in this current session of Congress 
and have brought it to the floor.
  I want to share briefly what my personal experience is with this 
disease, and it comes from having spent many months in Southampton, 
England, working as a surgeon a couple of decades ago. To me, those 
images apply today, of individuals, patients suffering from cancer from 
asbestos, asbestosis, and the clinical manifestations of the diseases 
related to it, such as mesothelioma. As we all know, based on the 
discussions that have taken place, this asbestos fiber is one that 
causes a reaction that can be a localized reaction in the lungs or a 
systemic reaction, and it is particularly prevalent in workers in 
shipyards; and, of course, Southampton was and has been one of the 
great shipyards in the world. Therefore, you see a lot of this 
mesothelioma.

[[Page S1048]]

  The mesothelioma in those patients starts with a shortness of breath 
that is uncomfortable, but then it gradually builds to this gasping for 
every single breath. And then it turns into the agony of not getting 
enough breath into your lungs. It starts with a little bit of a cough 
associated with that shortness of breath, and that cough eventually 
turns into a hacking cough with blood coming forth, a loss of the 
voice, initially becoming coarse and raspy. The symptoms of the most 
common type of mesothelioma expand to the point that surgery is, in 
many cases, tried. It is a difficult surgery because of the encasement 
of the lung with the reaction to this asbestos fiber. It is malignant 
cancer.

  I say that because the reality is there are many patients, victims of 
exposure to asbestos, who are not being fully compensated by the system 
we have, the system that is outdated, that is inefficient and unfair. 
Everybody agrees with that.
  If there is one thing we have been able to accomplish over the last 
week, it is that it is an unfair process that results in a lot of waste 
and inefficiency--the fact that patients themselves, the victims--out 
of the dollars that should be directed to them--only get 42 cents of 
the dollar that is put on the table to compensate them, and that is 
simply unfair. Our discussions and debate over the last week have 
pointed to the fact that 58 cents of the dollar that should be going to 
the victims is being spread through a system that is inefficient and 
goes, in large part, to the pockets of trial lawyers--not all trial 
lawyers, but the few who are taking advantage of this system.
  That is why it is so important for us to address this FAIR Act, which 
we call it, to debate it and not use procedural moves to kill it. 
Because once we kill this bill or it is moved off the table, we are not 
going to be able to come back to it, from a realistic standpoint. This 
year is so short that we have to address it now or never. That is why 
we have to be very careful, in terms of having procedural moves that 
are made and people hiding behind those procedural moves and not 
addressing the real substance of the bill. The bill itself has strong 
bipartisan support. We talk about all of the partisanship that 
characterizes so much of this body in Washington, DC, and in Congress. 
This bill is not partisan. It is not a Republican or Democratic bill. 
It has strong bipartisan support.
  I have to applaud the leadership of Chairman Specter and Senator 
Leahy on this bill, taking it through the Judiciary Committee. I want 
to also point out that people say we have only had 1 day on amendments. 
We were ready to bring the bill up on Friday. We have had it Monday, 
Tuesday, Wednesday, Thursday, and now it is Friday. We have had some 
slow walking on the bill. We had to file a cloture motion to proceed to 
the bill. It shows the reluctance by some people to say it is a problem 
and that it is one that we need to address and fix. But that cloture 
vote was successful. That postponement was overridden by the will of 
this body.
  About midweek, the other side reversed course and decided to let us 
debate this bill, and that debate has begun in earnest. We have had a 
great debate, with a much better understanding among our colleagues and 
among the American people as to how big this problem is. The fact that 
the victims, the patients whom physicians are treating, are not being 
treated fairly by this system, that must be fixed. We have those trial 
lawyers who are reaping the benefits of this broken system, taking 
advantage of the system, taking advantage of the funds that are to be 
used as compensation for those victims or potential victims.
  The FAIR Act is a trust fund approach, which is a comprehensive 
approach. We had good debate yesterday with Senator Cornyn's amendment, 
in terms of a medical criteria bill. The one item that came out in that 
discussion is that the trust fund approach in the FAIR Act is the 
comprehensive approach. Senator Cornyn proposed that we resolve the 
real problem with a medical criteria proposal, which many of us support 
in terms of concept, but you have to look at who is left out. The 
unimpaired claimants are left out of that system. The trust fund 
addresses those people who may be unimpaired but who are victims and 
will be victims, from a medical standpoint, in the future.
  The bill we talked about yesterday--there is a sort of incompleteness 
of that bill, but reflecting on the more comprehensive approach of the 
underlying bill and the fact that it did not address the fact that 40 
percent of the awards are going to the victim and 60 percent is going 
to the system. Wealthy trial lawyers are the real beneficiaries here, 
which is not addressed in the smaller bills that may be brought forth 
or the smaller amendments brought to the floor.
  It was mentioned yesterday that the medical criteria bill itself 
leaves out veterans. Again, that is addressed in the underlying FAIR 
Act, which is on the floor. Under the medical criteria bill, they could 
not sue the Government for their injuries--the veterans of service who 
are fighting wars all over the globe--because of sovereign immunity. I 
was also worried about those victims who worked at companies that are 
now bankrupt. Again, the medical criteria bill does nothing to ensure 
that attorneys are prevented from taking from those victims that share 
of compensation that should be going to the victims.
  I know there are a lot of businesses, today and yesterday, that are 
lobbying Senators on both sides of the aisle because they are concerned 
that the underlying bill will hurt them in some way. I know some of 
them argue that the medical criteria approach is the better solution 
because it is less complicated than the trust fund. I respect that 
position. It is a position that we and the leadership and the leaders 
on this bill, the sponsors, are addressing. We will make sure that we 
do all we can to ensure that no company is hurt, no company goes 
bankrupt because of the trust fund approach.
  Senator Kyl's amendment, which is yet to be debated and fully 
considered, addresses that very important aspect, to make sure 
companies are not unduly hurt by the trust fund approach.
  I firmly believe we should do what is in the interests of the Nation 
right now, not just what is in the interests of one company or another, 
and that is addressed in the FAIR Act--again, open for debate and open 
for amendment. That is our responsibility, to tackle these big issues.
  The underlying bill is not perfect. It needs to remain on the floor. 
It needs to remain on the floor for discussion and debate. It is a 
comprehensive approach that I strongly support, that the administration 
strongly supports, and that much of the leadership in the House, in my 
conversations with them, strongly supports.
  If we do not pass this bill, those victims whom I opened with, the 
people who are being hurt by the cancer, who are struggling for those 
last breaths, who do need that operation, are simply not being treated 
fairly and will not be treated fairly in the future.
  Meaningful solutions to these tough and challenging problems are what 
we are debating. Again, I commend the chairman of the Judiciary 
Committee for his tremendous work on this important issue.
  Mr. SPECTER. Will the majority leader yield for a very brief 
discussion on this point?
  Mr. FRIST. Absolutely.
  Mr. SPECTER. Mr. President, I thank the leader very much for the 
comments he just made. I would like to pick up on just a couple of 
them.
  What is generally misunderstood, notwithstanding how many times we 
have said it, is that there is no Federal money in this bill. The bill 
is ironclad that the Federal Government will have no obligation at all, 
and even though it has been said repeatedly, talking to Senators in the 
well of the floor yesterday, it has not really sunk in. I can 
understand why it has not sunk in--because the bill is so complicated--
but it is worth repeating. There is no Federal money in the bill.
  The objection which is raised is that some future Congress may want 
to add money to the bill from the Federal Treasury. But that is not a 
valid consideration for this Congress. We are doing the best job we can 
here in the year 2006. But if some future Congress 20 years from now or 
30 years from now or 15 years from now makes another decision, we have 
to respect that. We are not so smart to handle the current problems, 
let alone anticipate what is going to happen a decade or more from

[[Page S1049]]

now. So when people raise the issue about more expenditures, they are 
not doing it because of this bill; they are doing it because of what 
some future bill may provide.
  There is another consideration which the leader and I were just 
discussing which is worth commenting about on the floor so others may 
hear it, and that is that out of respect for the committee system, this 
bill ought not to fall on a budget point of order. The Judiciary 
Committee has spent years--really working on it for decades but 
intensively for the past 3 years--and we passed it out 13 to 5, all 10 
Republicans for it, albeit with some reservations, and 3 Democrats--
Senator Leahy, Senator Feinstein and Senator Kohl. It is bipartisan.
  People are surprised to hear that on the point of order, it is the 
Budget Committee which makes the determination and not the 
Parliamentarian. When I tell my colleagues that, they are surprised. 
But as I conferred with the Parliamentarian yesterday, he confirmed the 
fact that the practice here is not to have the Parliamentarian rule but 
to have the Budget Committee rule and really to have the chairman make 
the decision.
  After working intensively on this issue for the 25 years I have been 
here, and intensely for the past 3 years, it seems to me as a matter of 
basic equity that we ought not to have this bill pulled from the floor 
by a single vote when we are in the midst of adding amendments which 
may cure all of the problems people see. Senator Cornyn, for example, 
who proposed the medical criteria bill yesterday, has told me that he 
does not favor upholding the point of order, that he thinks the bill 
ought to go forward. Senator Cornyn has said he may have as many as 
four more amendments. Senator Kyl has an amendment on the floor now 
which will protect the smaller companies. Senator Coburn may have an 
amendment on tightening up the medical criteria.
  When we have worked for 3 years intently, why not let this bill stand 
for 3 more days next week to see if we can work out the problems?
  I submit to all of my colleagues, and especially my colleagues on the 
Budget Committee, this is not where it ought to be decided by a 
supermajority. This body had very intensive debate on when a filibuster 
ought to be allowed, and we came to the conclusion that it should be 
extraordinary circumstances. I think the analogy right on all fours, as 
we say in the law--on all fours. To defeat this bill by a 
supermajority, there ought to be some extraordinary circumstance, which 
there is not. This may be too strong a word, but, frankly, this is how 
I feel about it: I believe it is insulting to the Judiciary Committee 
to have these years of work at risk by a single vote because of what 
another committee says, when we have gone through this bill A to Z and 
we are still open for business to make changes.
  It is worth note, the editorial support which I think is a bit 
removed.

  We have already had the New York Times speak very forcefully.
  The Washington Post says, in part, ``legislation that serves the 
public interest'' in coming out for the bill.
  The Washington Times, which is noted for its more conservative view, 
endorses the bill today, saying, ``this bill should pass.''
  One of the issues which the Washington Times raises is the key one 
raised by the Budget Committee as to what is going to happen in the 
future; that is, as they say:

     and how can one minimize the chances of some future Congress 
     putting taxpayers on the hook for likely overruns?

  OK, we are still working on it. But the Washington Times faces up 
squarely to that consideration as to what a future Congress may do.
  I have found that, while talking to Senators individually and they 
begin to understand it, there is a good response. I have visited 
individually with many Senators on both sides of the aisle, and I 
intend to continue to do so when we have the time to do so. But it is 
my hope that my colleagues will look closely at respect for the 
committee system and what the Judiciary Committee has done here and 
will at least give this bill a few more days and will not superimpose a 
supermajority on legislation which ought to be decided, as our 
customary Democratic procedures are, by a democratic vote.
  I thank the distinguished leader of our party for all of his hard 
work on this, bringing it to the floor, and his steadfast support, and 
notify all of our Republican colleagues that the leader and Senator 
McConnell and Senator Sessions and Senator DeWine and maybe others and 
I will be talking individually, and I put my Democratic colleagues on 
notice, too, that I am about to call them up for a private meeting.
  I ask unanimous consent that the editorials I referenced from today's 
Washington Post and Washington Times be included in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From washingtonpost.com, Feb. 10, 2006]

                          Forward on Asbestos

       In a triumph of good sense and bipartisan cooperation, the 
     Senate voted on Tuesday to go forward with a bill that would 
     fix the broken asbestos litigation system. Hundreds of 
     thousands of asbestos injury claims have already landed in 
     the courts, contributing to the bankruptcy of more than 70 
     companies. Without reform, this process will drag on, 
     triggering the bankruptcy of yet more firms, many of which 
     have only tenuous asbestos connections, because the main 
     firms responsible have already gone under. Meanwhile, many 
     who are ill from asbestos-related diseases won't be able to 
     get timely compensation or, in some cases, any compensation. 
     Unless the bill passes, Navy veterans, for example, will go 
     uncompensated for diseases caused by asbestos on ships. 
     Veterans are not allowed to sue the government, and many of 
     the shipbuilders are long since bankrupt.
       The bill will be debated and amended, and it may face a 
     second attempted filibuster before it gets a vote. Some 
     amendment may be reasonable at the margins, but the bill's 
     central idea--to replace litigation with a $140 billion 
     compensation fund to be financed by defendant companies and 
     their insurers--must be preserved. Democrats complain that 
     the fund won't have enough money to compensate asbestos 
     victims; Republicans complain that the fund will have too 
     much money, the raising of which will constitute a burden on 
     small and medium-size firms. The fact that the bill is being 
     attacked from both directions suggests that its authors, 
     Sens. Arlen Specter (R-Pa.) and Patrick J. Leahy (D-Vt.), 
     have balanced competing interests in a reasonable manner.
       Unfortunately, the bill's critics are not always so 
     reasonable. Sen. Harry M. Reid of Nevada, the Democratic 
     minority leader, has complained, ``One would have to search 
     long and hard to find a bill in my opinion as bad as this.'' 
     He has even described the legislation as the work of 
     lobbyists hired by corporations to limit asbestos exposure. 
     But the truth is that the bill's main opponents are trial 
     lawyers, who profit mightily from asbestos lawsuits and who 
     constitute a powerful lobby in their own right. Mr. Specter 
     and Mr. Leahy are in fact model resisters of special 
     interests who have spent more than two years crafting 
     legislation that serves the public interest. For Mr. Reid to 
     demean this effort in order to fire off campaign sound bites 
     is reprehensible.
                                  ____


               [From the Washington Times, Feb. 10, 2006]

                          The Asbestos Debate

       There are three questions the Senate should focus on as it 
     considers the Fairness in Asbestos Injury Resolution Act: 
     Will the proposed $140 billion asbestos trust fund actually 
     cost $140 billion, or will its fine print eventually require 
     it to pay out much more? Can the medical criteria be 
     tightened to ensure that only people who have genuinely 
     suffered harm from asbestos are compensated? And how can one 
     minimize the chances of some future Congress putting 
     taxpayers on the hook for likely overruns?
       This bill should pass; Senators Arlen Specter, Pennsylvania 
     Republican, and Patrick Leahy, Vermont Democrat, are due 
     accolades for getting this far on a longstanding problem that 
     has befuddled everyone for decades. Many asbestos victims 
     have suffered or died of mesothelioma or other illnesses 
     while the courts and Washington struggled with a resolution. 
     The victims and their families deserve to be made whole.
       One good sign is the 98-1 Senate vote Tuesday to move 
     forward, indicating broad agreement that the FAIR Act is 
     acceptable as a starting point for the full Senate's debate. 
     The other is trepidation from Senate Minority Leader Harry 
     Reid: After making noises about a filibuster, Mr. Reid said 
     the bill benefited ``a few large companies'' while supposedly 
     leaving the little guy in the lurch. Really? Why, then, do 
     insurance giants AllState and AIG oppose the bill? Why are 
     many plaintiffs anxious to see it pass? In reality the big 
     guys speak through Mr. Reid--in this case, unscrupulous 
     lawyers who stand to profit greatly from keeping asbestos 
     cases in the courts. Under the FAIR Act, fees for lawyers top 
     out at five percent of the award--far less than they get in 
     court.
       Of course, there are good reasons to worry about the 
     ``little guy''--just not the ones Mr. Reid suggests. If 
     previous federal ``trust fund'' schemes are any indication, 
     this fund could bleed billions of dollars only a few years 
     from now and demand either a federal bailout or a return to 
     the courts. The first is bad for the average taxpayer; the 
     other is

[[Page S1050]]

     bad for most claimants. As for the first, the nonpartisan 
     National Taxpayers Union opposes the trust fund on the 
     grounds that a bust is likely. It calls the fund ``a fiscal 
     time bomb.'' The second would land claimants back in limbo in 
     courts (to the great pleasure of asbestos lawyers, of course, 
     who clog up the system with questionable cases).
       The precedents show how daunting this month's debate will 
     be. As we've reported previously, only one of the many 
     smaller trust funds created over the years has been able to 
     meet its obligations, according to Francine Rabinovitz, a 
     trust-fund expert at the University of Southern California. 
     Last year she told Sens. Jon Kyl, Arizona Republican, and Tom 
     Coburn, Oklahoma Republican, that ``none of the bankruptcy 
     trusts created prior to 2002 have been able to pay over the 
     life anywhere close to 50 percent of the liquidated value of 
     qualifying claims.'' Claims against the Johns Manville 
     bankruptcy fund--one flawed effort to solve asbestos-injury 
     claims--outstripped resources by a factor of 20.
       That begs some questions. Will this $140 billion fund 
     ``sunset'' in three years like its conservative critics say 
     it will? Even the Congressional Budget Office predicts it 
     will bleed $6.5 billion a year by 2015.
       What about the medical criteria? A group of conservative 
     senators on the Judiciary Committee worried about the fund's 
     solvency cited this among concerns when they sent the bill to 
     the Senate floor last year. Sens. Jon Kyl, Arizona 
     Republican, and Tom Coburn, Oklahoma Republican, said that 
     they were ``deeply concerned that this fund will run out of 
     money and prove unable to pay all qualifying claimants.''
       This debate will play out fully in the Senate over the 
     coming days. In the meantime, it's worth pointing out what 
     the FAIR Act offers that nothing previously has: A light at 
     the end of the tunnel for claimants. Under FAIR, compensation 
     ranges from $25,000 for people who suffer breathing 
     difficulties to as much as $1.1 million for victims of the 
     deadly cancer mesothelioma. It has taken long enough to get 
     this far. The Senate is close to leading the way out.

  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Very briefly in response, this is an important bill that, 
again, is not a partisan bill at all. If you look at the votes today, 
you will see the split is between each caucus. I say that because so 
many bills come to the floor as partisan bills or bills proposed by one 
party, and they see such discussion and procedural moves. It is 
incumbent upon each Senator, looking within themselves and their own 
conscience, to ask the question: Is this a problem that deserves 
fixing?
  I believe, based on the discussions today--that is the good thing 
about this last week--that it is a tragedy in terms of the victims, in 
terms of the jobs lost, in terms of the pensions lost--all due to a 
broken system. It would be a tragedy if we did not address it. We have 
a bipartisan bill which has come out of committee. It is open for 
debate on the floor of this body.
  Just to clarify, we do have pending a budget point of order that 
needs to be discussed. Every Senator must understand what our chairman 
was saying through conversations because we will have a vote early next 
week on this point of order. If the point of order is upheld, then the 
bill itself disappears and we have other legislation onto which we will 
move. That means we will not have fulfilled our obligation, our 
responsibility through having a bipartisan bill come out of the 
Judiciary Committee which is brought to the floor for debate and 
discussion, recognizing a huge problem faces the American people. That 
responsibility would be shoved aside.
  I encourage my colleagues to look at this point of order, what it 
means in terms of procedure, and then answer the question, Is there a 
problem out there? And if the answer is yes, now is the time to fix it.
  I yield the floor.

                          ____________________