[Congressional Record Volume 156, Number 96 (Thursday, June 24, 2010)]
[Senate]
[Pages S5390-S5391]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             TAX EXTENDERS

  Mr. WHITEHOUSE. Madam President, I wish to say a few words about an 
amendment I had offered to the original tax extenders bill as No. 4324, 
which has also been offered as an amendment to the current package. It 
very much appears that in the crucible of the pressures the bill has 
had to go through in order to get to its present status, this amendment 
will not succeed.
  The chairman of the Finance Committee is on the Senate floor. I thank 
him for his persistent efforts to try to get it into the agreed package 
and for his patience with my even more persistent efforts to try to get 
it into the agreed package.
  It is a bipartisan amendment. I thank the five Republican colleagues 
who cosponsored it. I particularly thank Senator Sessions, who is the 
ranking member on the Judiciary Committee. He was an early, initial 
cosponsor. We introduced it together in the Judiciary Committee. It 
passed out of the committee uneventfully. It was a pleasure to work 
with Senator Sessions. I was delighted he was willing to not only 
support it as a bill on the Senate floor but also to cosponsor it as an 
amendment to this tax extenders package. I extend a particular 
appreciation to him and to his staff for working with us on this 
legislation.
  Let me say briefly what it is about. If you are an American business 
and you are doing business in a different State, in a State in which 
you are incorporated and domiciled, you would ordinarily have to file 
an agent for service of process in that State so that if your conduct 
or product injures somebody in that State, service can be achieved in 
the place of the injury.
  We have a world economy, and we are undoubtedly the world's greatest 
importer of goods. Some of these goods are harmful. Most of them are 
good for Americans, good for the economy, good for our consumers, but 
some are not. The wallboard that came from China filled with sulfur so 
that when it was installed in houses, the sulfur leached, corroded 
piping, made the occupants unhealthy, required a complete stripout and 
rebuild not only of the walls but also of plumbing and other fixtures 
and air-conditioning--that was a disastrous imported product.
  Toys with lead that children could absorb: We all know what damage 
lead will do to developing brains of young children, particularly 
Chinese toys with lead in them. Pharmaceutical products with 
unacceptable chemicals added to them: There have been a lot of products 
that have come in from overseas and have harmed Americans.
  If you are a big, legitimate foreign manufacturer, you probably have 
an office here. If somebody is hurt, it is not too hard for the person 
representing you to find the office and file suit and seek recovery for 
whatever injury was sustained. Many foreign manufacturers even have 
manufacturing facilities in this country. That makes it very easy to 
locate them. But some do not. Some live in a shadowy world where they 
send their products into the United States, get the money out, but when 
their defective product injures an American, trying to find them is 
like trying to grasp a handful of fog. They have disappeared, and they 
hide behind complicated international treaties and foreign laws in 
their home countries, making both service of process, getting the 
papers on the lawsuit to them, and actually getting your hands on them 
legally under our due process--long-arm statutes--is very challenging 
and difficult.
  We heard from people who spent literally tens of thousands of dollars 
trying to have their pleadings translated

[[Page S5391]]

into a foreign language, work their way through all the complex 
ministries in the foreign country, all trying to find a company that, 
in many cases, simply reforms itself in a new corporate form and leaves 
them with nothing at the end of the chase.
  When that happens, it is a very unfortunate result for American 
people, and it is a very unfortunate result for American businesses. 
The unfortunate result for American people is that somebody who was 
injured, whose child was lead-poisoned, for instance, has no one from 
which to seek recovery, and they lose the opportunity we ordinarily 
enjoy as Americans when we are injured by a product to get compensation 
for the injury. It is the family who gets hurt in that circumstance. 
That is one way it is bad.
  The other way it is bad is because commerce is often a chain. When 
the wrongdoing foreign manufacturer disappears, the other folks who are 
still in the chain are still around to be sued. Under our theory of 
joint and several liability, the American company has to pick up the 
liability for the foreign company that absconded after it created the 
injury.
  We had a very good example in our committee of an Alabama contractor 
who had a very good reputation, who built developments and homes. He 
got caught with this Chinese drywall. There was no Chinese drywall 
manufacturer to sue, but both for purposes of protecting his own 
reputation with the people for whom he had built these houses and 
because the liability now fell on him as the joint and several 
liability party, he had to go in and clean it all up. He had to put up 
the people who were living in these houses. He had to rebuild their 
air-conditioning systems and their plumbing systems. He had to strip 
out all the drywall and rebuild it all back. It was an immense expense, 
and it fell on the American company because the Chinese company had 
absconded and was not amenable to service and, consequently, to our 
laws.
  The very simple premise of this bill is, if you are a foreign 
manufacturer that exports goods into the United States of America, with 
your export has to come an agent for service of process. You have to 
file agent of service for process. When that Chinese drywall, when that 
defective pharmaceutical, when that lead-poisoned toy hits an American 
consumer, hits an American home, hits an American family, they can go 
to that agent for service of process and find the wrongdoer, and they 
are amenable to justice in our courts.
  It is from a competitiveness point of view wrong that foreign 
manufacturers should be able to underprice American companies because 
they know they can dodge liability, dodge the consequences for their 
actions, and have an American company have to charge more, knowing they 
have to bear that liability.
  Setting aside the whole public safety and consumer protection piece, 
it is a systemic disadvantage to American industry to not fill this 
loophole and make our workers' international competitors hit the same 
bar that American companies have to hit in terms of being available for 
suit when their products create an injury.
  Obviously, the tax extenders legislation has not proven to be the 
vehicle for this legislation. My contention for my colleagues is that 
because this is a bipartisan bill, because Senator Sessions and I 
worked so hard on it, because all of the initial concerns that were 
raised by the U.S. Chamber of Commerce have been cleared and it is now 
good to go with the Chamber of Commerce--which I know has a significant 
voice in the views of my colleagues on the other side of the aisle--and 
because this is a simple mechanism that will treat foreign companies no 
differently than American companies are treated and put them on a level 
playing field and protect American jobs, as well as consumers, I look 
forward to continuing to pursue this legislation and look for further 
opportunities and further vehicles to find a way to remedy what is now 
an unjust situation for American consumers, an anticompetitive and 
unfair situation for American businesses, and a tilted situation 
against America's interests for the American economy.
  I thank again the distinguished chairman of the Finance Committee who 
I know is supportive of our efforts. As I said at the outset, the 
intensity of the crucible of the negotiations that finally appears to 
be moving this tax extenders bill forward in an unfortunately 
diminished way, but in the best way we have been able to do it, did not 
permit this particular amendment to proceed. But it was not for his 
lack of effort.
  I appreciate his courtesy with my persistent lobbying and his 
support.
  I yield the floor.

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