[Congressional Record (Bound Edition), Volume 152 (2006), Part 1]
[Senate]
[Pages 1254-1256]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          ASBESTOS LEGISLATION

  Mr. REID. Mr. President, it is not often that you see a legislative 
plan with such bipartisan opposition. The asbestos bill before the 
Senate is an example of how you should not proceed on a piece of 
legislation. I have explained throughout the week, as have others, that 
the so-called FAIR Act is not fair. I have explained how this 
legislation will harm victims by trapping them in an administrative 
claims system that is irreparably defective and doomed to fail. It is a 
bill that is not only unfair to victims but to businesses, except for a 
few large corporations. Major industries oppose this, such as the 
insurance industry. It is terribly unfair to the American taxpayer, 
terribly unfair to the veterans.
  The trust fund set up under this bill to pay for victims' claims is 
woefully underfunded. Expert after expert has opined that $140 billion 
will not be sufficient to satisfy expected claims, and it doesn't 
properly account for expected borrowing and administrative costs. 
Adding insult to injury, the mechanics of the trust fund claims system 
unacceptably abridge the rights of victims with unworkable startup and 
sunset provisions.
  It is no surprise that the asbestos bill that has reached the Senate 
floor is in such poor shape when it is the product of such an unusual 
legislative process. Ordinarily, Senate deliberation on a bill is open 
and transparent. But consider all the ways this bill is shrouded in 
mystery.
  First, we still do not know which companies will contribute to the 
asbestos trust fund and how much each company will contribute. Senator 
Durbin asked for a list on the floor yesterday, and in response the 
distinguished manager of the bill, Senator Specter, said: Well, we 
didn't have to subpoena Government agencies. Well, they had to be 
private companies. Whom are they? He would not say. It is not clear 
that the list Chairman Specter obtained by subpoena even lists the 
contribution amounts. We don't know. For a bill such as this, not to 
know? Without this information, the Senate can have no confidence that 
the trust fund will raise $140 billion or, in fact, anything.
  Second, the sponsors have promised a managers' amendment. Mr. 
President, as I said on the floor yesterday, I don't have the 
legislative experience of the distinguished President pro tempore, but 
I have a lot of experience--three decades of legislative experience. 
This is, by far, the worst piece of legislation with which I have ever 
had to deal. But think about this--and I want all Senators, all 
Democrats and all Republicans, to understand what is happening. Anyone 
who has a problem, they can go to Senator Specter and they will stick 
it in the managers' amendment. One of my colleagues had five concerns. 
Within a short period of time, it was all taken care of in the 
managers' amendment.
  Of course, nobody can see the managers' amendment. It is composed of 
over 40 amendments. How could anyone vote for a piece of legislation 
such as that--a managers' amendment with 42 separate amendments? Now, 
these amendments were not put in, in a conference committee. People 
complain about that. But at least in a conference committee, you have 
people working together, sticking things in. Sometimes Democrats 
complain and sometimes Republicans complain--whoever is in the minority 
here: Well, we didn't get enough consultation; you cut us out of the 
process. But at least you had a group of Democrats and Republicans in 
the process. Here, you have one person making a decision as to what is 
going to be in the managers' amendment. There is no way to know what is 
in it. How could anyone say: OK. You have taken care of me, but I don't 
want to see the other 40 amendments--because with this legislation, 
similar to all legislation, you put something in one spot, and you have 
to take something out someplace else.
  Well, another way this bill is shrouded in mystery is, yesterday, we 
received a statement of administration policy on this bill. Ordinarily, 
these documents contain several pages of detailed analyses of pending 
bills. The administration outlines its problems with the bill. This is 
standard procedure. It is a detailed analysis of the bill. Yesterday, 
the statement on this 400-page bill that some say should be $280 
billion, not $140 billion, is 2 paragraphs. One of them is a short 
paragraph:


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       Although the administration has serious concerns about 
     certain provisions of the bill, the administration looks 
     forward to working with Congress in order to strengthen and 
     improve this important legislation before it is presented to 
     the President for his signature.

  Mr. President, what can we expect? What does this mean? What 
provisions do they not like? How are they going to work with Congress? 
This bill is not ready for Senate floor consideration.
  The letter contains no list of which provisions raise concerns or 
what the concerns are, just an implicit promise that once the bill gets 
to conference, the White House will rewrite it to its satisfaction.
  Finally, also in the mystery shroud, yesterday, we learned that the 
managers intend to evade a valid budget point of order by including 
language in the bill to prohibit more than $5 billion in payments each 
10-year period, even though that would leave the program paying far 
less than $140 billion in claims. One of the complaints everybody has 
is that the trust fund will have their money stolen, in effect, with 
this legislation. The insurance industry, the businesses, and not the 
least of which are the claimants, the victims--they don't have enough 
money with $140 billion. Now they are going to be told that to avoid 
this point of order, they will limit how much money can be paid. If it 
is not enough, limit what the victims get. It is a terrible situation. 
This bill, if it weren't so serious, would be an example of how not to 
handle legislation, with a managers' amendment that contains more than 
40 amendments, and the basis for the legislation is secret. Members of 
the Judiciary Committee--not someone in the Commerce Committee or the 
Appropriations Committee--nobody, not even members of the Judiciary 
Committee, are entitled, according to the manager of the bill, to see 
how they arrived at the $140 billion. He said that on the Senate floor.
  I am not too sure the Judiciary Committee should have jurisdiction of 
this bill. I think maybe it should have been a joint referral to the 
Environment and Public Works Committee. I have not spoken to the 
chairman of that committee, Senator Inhofe. I have been chairman of 
that committee on two separate occasions. I will bet Senator Inhofe 
wonders why his committee hasn't had something to do with this. I have 
had some differences with the Senator from Oklahoma, but I have never, 
ever had a problem with him not telling me or anybody on the committee 
how they arrived at the numbers. We did over $300 billion at one time 
on a highway bill, and there were no secrets as to how the numbers got 
in there. There were computer printouts. Sometimes it took several 
hours for the printouts. But here we don't know where they came up with 
these numbers.
  This is not the way to legislate. It demeans the Senate, demeans the 
legislative process. I recognize that people consider me partisan on a 
lot of occasions, and maybe they have a right to do that. I try not to 
do it, but sometimes things happen. But I want the record to be spread 
that this is not a partisan attack on this legislation. There are 
people who believe this legislation is unfair. I see my friend from 
Alabama, and he can speak for himself, as we all know, but I have 
understood--I have not talked to him personally, but I understand that 
he is concerned about the trust fund amounts that will be set up to pay 
the claims. They are going to be stripped of their money in this 
legislation.
  The whole premise of this bill is flawed. It deprives Senators and 
the public of an opportunity to consider the bill on its merits. The 
Senate should operate in the spirit of transparency and candor, not 
secrecy. The proponents claim there is an absolute asbestos litigation 
crisis in this country and this crisis requires that we act on this 
deeply flawed legislation. There is no asbestos litigation crisis, Mr. 
President.
  We have an asbestos disease crisis. The consumer advocacy 
organization Public Citizen stated:

       There is no logjam of asbestos cases in the courts. 
     [Moreover], [t]he best obtainable statistics . . . do not 
     support the oft-repeated contention that an avalanche of 
     asbestos lawsuits is paralyzing state and federal courts.

  Consider some of these facts. In Federal courts, which account for 20 
percent of asbestos cases, new Federal filings for asbestos liability 
have been on the decline, both in recent years and compared to much 
higher levels at the start of the 1990s. Most recently, new Federal 
filings have declined from 9,111 in 1998 to 1,400, a drop of 84 
percent, according to the U.S. Administrative Office of our courts.
  Asbestos suits as a fraction of all product liability suits have 
fallen considerably, from two-thirds of all cases in 1990 now to 4.2 
percent in 2004. The number of asbestos product liability trials in 
Federal courts is down sharply in recent years, from 271 in 1991 to 
zero in several recent years, according to the U.S. Department of 
Justice Bureau of Justice Statistics.
  In State courts, among tort cases disposed of by trial in 2001, in 
the Nation's 75 largest counties--which together account for about 23 
percent of the population--there were 31 asbestos trials, .4 percent of 
an estimated total of 7,948 cases. Among major categories of State 
cases, asbestos product liability cases going to trial had the shortest 
median period for disposition for 2001, the latest period for which 
data is available. While the disposition time for other cases was 
little changed since 1996, the disposition time for asbestos trials 
fell by 80 percent, from 50 months to 10 months.
  Overall, the rate of growth for new asbestos claims has markedly 
slowed. In the mid-1980s, the number of claims for mesothelioma, other 
cancers, and nonmalignant cases each was growing by 25 percent 
annually, but now the rate of growth is down by 76 percent for 
mesothelioma, down by 96 percent for other cancers, and down by nearly 
half for nonmalignant cases.
  Even the largest number of asbestos claimants in a single year, 
2002--about 95,000--amounts to a little more than one-half of 1 percent 
of new annual State and Federal cases.
  Our system of justice is unique. State courts have seen the problems 
and they have done something about them. I have talked to Republican 
Senators and Democratic Senators. Texas has a system we should take a 
look at here. Illinois has a great system. What they have established 
is what they call a pleural registry. What they do there, if you have 
been around asbestos and you think you might get sick--because some of 
these periods of dormancy can be for years and years--you give your 
name and the statute of limitations is tolled. If nothing happens to 
you, no problem. If 10, 20, 30 years later something comes up, you can 
go into court. It has worked great in Illinois, where a lot of cases 
were being filed. It protects the most serious cases, the mesothelioma 
and asbestosis.
  There is no litigation crisis. These facts contradict any assertion 
there is some type of asbestos litigation crisis overwhelming the 
courts.
  In addition, the pleural registry and the system they have in Texas 
and other States--take, for example, US Gypsum. My brother worked for 
US Gypsum his whole professional life. They had a lot of problems with 
asbestos. Why? Because that is what they manufacture stuff with. With 
US Gypsum, they set up a program and settled all their cases. Right now 
they have settled all their cases for about $900 million. Other 
companies have done the same thing. They have gotten money together: 
``Let's get rid of this litigation.'' So anyone talking about a crisis 
with litigation--the crisis is these big companies are trying to escape 
responsibility.
  I read here on the floor the day before yesterday an example of four 
companies, hundred-year-old companies, that pay nothing in asbestos 
now. But one company, even though they paid not a penny for asbestos 
litigation, under this proposal will pay $19.5 million a year. They 
will go bankrupt and a 100-year-old American company is gone.
  We do not need to pass this defective legislation. We should instead 
pass legislation to help the thousands of victims of asbestos exposure 
and the companies that have contributed to their injuries.

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