Restoring the Everglades, an American Legacy Act of 2004

Madam President, this is one of the most important bills in many decades because this bill will determine whether or not 8,400- plus companies go into bankruptcy, with a loss of jobs, pensions, and opportunities for people all over this country--and all because of an out-of-whack tort system that has been manipulated by some veracious lawyers who should know better but who are too addicted to being able to milk the system for billions and billions of dollars, $20 billion thus far in legal fees and transaction costs.

Opponents of this bill continue to assert that the fund is nothing more than a bailout of corporate America because it is not big enough. There is one word for that: baloney. This charge, which the personal injury lawyers keep repeating in television and print ads, completely baffles me. Let me explain why.

Currently, estimates of what the existing tort system will pay to plaintiffs in the future range from $61 billion to $92 billion. That is currently. This is what the independent actuaries say is the amount of money the victims will actually receive under the current system.

Let me just point to this chart: the asbestos victims' compensation in billions of dollars. Under the tort system--the current out-of-whack tort system--you have three colors on the chart: dark blue, kind of light blue, and yellow. The light blue illustrates the fees we pay to the defense lawyers in these cases. The dark blue happens to consist of the fees we pay to the trial lawyers--in other words, the plaintiffs' lawyer.

Between them, as you can see on that Tillinghast account, shown at the top, you have $69 billion. How much goes to the victims? It is $61 billion--if it is there, if these companies do not go bankrupt. Take the Milliman one, shown down below: $61 billion to the personal injury lawyers, $42 billion to the defense lawyers. That is $103 billion. Only $92 billion goes to the victims. That is assuming these 8,400 companies have not gone into bankruptcy. We have already had 70 companies go into bankruptcy.

But look what happens under the FAIR Act. The attorneys would still get a whopping $2.5 billion for what really amounts to rolling-off-a- log type of a lawsuit because it would not take all the efforts they would have to put in to make cases otherwise in court. They would get $2.5 billion. But $111.5 billion would go to the victims. It is pretty hard to say that is not a fair deal or that it is a bailout of corporate America.

Now, our bill, in comparison to the $61 billion to $92 billion of those two actuary accounts that will go to the plaintiffs, gets them $111.5 billion, which is a lot more than either of those estimates were. This goes to the pockets of the injured persons.

So where does the rest of the expected cost of the tort system go? Under the current system, it is going to lawyers. It is going to lawyers' fees and other litigation costs, with personal injury lawyers alone expected to garner $40 billion of these future expenses. In addition, 80 percent or more of claims filed in recent years are from individuals who do not have a medically cognizable injury and are not impaired in their daily routine. Let me put that in lay terms. They do not have any injury that can be shown by the current medical analysis we have in existence today, and it is the best in the history of the world.

Indeed, one scholar estimated that meritless claims--claims without any merit at all--based on questionable ``diagnoses'' for mass screenings have accounted for $28.5 billion in costs already. As a result, the truly ill get even less than the $61 billion to $92 billion estimate that is suggested by these two studies.

Measured against the existing system, with all of its inequities and high transaction costs, the FAIR Act will deliver far more directly to victims. Up to $124 billion will be available to compensate those who are sick from asbestos while still providing medical monitoring for those at risk but not yet impaired--in other words, not yet sick, and who may never get sick. This is a simplified, no-fault, nonadversarial system which will not require forking over 40 percent to 60 percent to any professional.

No matter how you look at it, victims get far more compensation under this bill--and in a far more timely manner--than in the current system. This alone indicates that the fund is big enough.

But let's look at it from another angle. Are the aggregate fund contributions by companies and insurers expected to be less than they are paying in the current system? According to the Congressional Budget Office, the answer is no. CBO estimates that defendants will have about the same expenses in the current system for the next 5 years. This is on page 20 of the CBO's October 2, 2003, cost estimate for this fund. On the same page, CBO estimates, for the bill as reported from committee, that insurers would actually pay more to the fund in this same period than they would under the current system.

Keep in mind, the current system is gouging billions of dollars for nonsick claimants. Look, this fund, No. 1, calls for about as much money as companies are paying now; No. 2, shifts this money to the truly sick; and No. 3, reduces the transaction costs so more funds are available to compensate injured parties. In other words, we help those who deserve to be helped, where under the current system there are a lot of people sopping up the funds that are there who are not even sick, who have not suffered from sickness, and may never suffer from sickness.

This is a bailout? Give me a break. The chief benefit contributors get out of this deal is one thing, and that is predictability. They know what their payments will be from year to year, and that is it.

I was told if I was able to get $108 billion a number of Democrats would gladly sponsor and support this bill. I had indications from the union movement: But, boy, if you got $108 billion on the table, we will be there. They did not think we could get it done. But we did.

Now, despite all of these things I have been talking about, we have heard the argument that the money is not enough since S. 1125 was first introduced in May of 2003 when industry agreed to a $94 billion fund. Before introducing S. 1125, I had heard from the other side of the aisle that $94 billion was not sufficient but that $108 billion might be enough, as I have just said. I worked hard to get the business community to commit to this funding, and, in the end, the Judiciary Committee added a provision that would simply require $14 billion in additional funds in order to reach this goal. The funds, however, were not guaranteed in the committee-reported bill, as are those under S. 2290.

During the committee process, this $14 billion was added to the substantial contributions required from both defendants and insurers. When S. 1125 was reported out of committee, therefore, it provided for $104 billion in mandatory funding from defendant companies and insurers, plus an estimated $4 billion from bankruptcy trusts. The $108 billion was there.

The committee voted by a 14-3 margin that the claim values which added up to $108 billion--those values--were fair--14 to 3, with a number of Democrats voting with us. Not a single Democrat voted against these claim values. The only ones who did were 3 Republicans, and they thought it was too much.

Now we are hearing that the total just is not high enough. If the values were good enough for every Democrat before, why not now? I just do not get it.

By the way, let's go back just a step or two here. As shown on this chart, we are getting far more money to the sick and needy than the two expert actuarial firms say will go to the sick and needy--far more money. Those who make arguments to the contrary are not being fair.

Later in the committee markup, to ensure the risk of insufficient funding would not fall on claimants, an amendment was offered by Senators Kohl and Feinstein to provide a huge amount of open-ended, contingent funding that could be available to pay claims, up to an additional $31 billion over a nearly 20-year period. The number $31 billion was not in the amendment, nor was the number $45 billion, which some claim it was. The amendment simply called for maintaining the contributions at the same level if such funds were needed to maintain solvency, and this flat line happened to add up to $31 billion, since we had already added $14 billion to the base funding. This meant when the contingent funding was added to the $108 billion of mandatory funding, up to $139 billion could come into the fund and ultimately out to the people.

Democrats and labor unions falsely continue to cite the $153 billion number whenever they can. I challenge any of them to show me that number in S. 1125, the committee-reported bill. Moreover, the $139 billion was not hard money that would be going to claimants. That is a fact. It was not hard

money that would be going to claimants. The fund under S. 2290 would reach this same and substantial level of funding.

Further rendering this $139 billion obsolete is the fact a sunset provision was added later in the markup. This provided an ultimate safeguard, in the eyes of those who filed it, for fund solvency. Still further, we added in S. 2290 a measure which renders the contingent funding amendment from the markup totally unnecessary--the ability for the fund to borrow against 7 years of future revenue. With this provision, the Feinstein-Kohl contingent funding measure is no longer needed. Thus the whole premise for arguing more money is needed because the committee bill had more money is literally destroyed. The Feinstein-Kohl amendment created what amounts to a rhetorical problem on the total value of claims for some Democrats and some labor unions. But it is only that, a rhetorical problem.

Claims values adding to $108 billion were good enough for almost all the Democrats at the markup, and there is no reason the current $114 billion now should be inadequate.

Finally, I will give another indication of why those who now argue $114 billion is not enough are being unfair, if not somewhat disingenuous. Back on April 24, 2003, the AFL-CIO asked an investment banking firm to run a financial model with certain claims values. How much did this model, which they shared with Republicans during negotiations, add up to? Believe it or not, under the base case, it added to $121 billion. You heard that correctly, $121 billion. We offer a fund with a base of $114 billion in guaranteed money with a $10 billion contingency, 7 times the borrowing authority, and a sunset back to the tort system, and there is no deal yet?

I said earlier, I don't get it. But I suspect the reason we are seeing retrenchment and revisionism is that--and there is simply no delicate way to say this so I will be blunt--when personal injury lawyers put the screws on Democrats and labor unions, they are trying to stop this good bill at all costs. It is pretty apparent if you look at the flagrantly misleading ads they put on television, all paid for by the victims, by the way, through these exorbitant fees and transaction costs.

I will tell you one thing, they don't want to kill the golden goose that asbestos litigation is for them. They are only too happy to collect the golden eggs, even though the people who are truly sick, truly injured, will not get the money in many cases. In the end imposing financial obligations on the business community that are much more than they would have to pay under the broken litigation system to compensate victims would only risk bankrupting even more businesses and losing more jobs and pensions. Already, as I have mentioned, more than 70 companies have gone bankrupt due to asbestos litigation, and as many as 60,000 American jobs have been lost. It is estimated if this keeps going and we don't do what we should do here on this floor, there could be as many as a half million jobs lost. I believe that is a low, conservative figure.

If most of these companies go into bankruptcy, I can't begin to tell you what a detriment it will be to our country, let alone the sick and needy who really deserve the moneys.

Rather than rely on their own numbers or provide a reasonable alternative, opponents of the bill falsely contend S. 1125 had provided $153 billion and, therefore, S. 2290 does not provide enough funding. Of course, litigating these cases in Federal court may be a big risk to some personal injury lawyers who have successfully manipulated some outlier State courts to create a system of jackpot justice.

In reality, the Feinstein-Kohl amendment in committee, which introduced the open-ended contingency funding, was designed to ensure the fund established under the act did not become another Manville trust, placing the risk of insufficient funding on future victims and leaving them with only pennies on the dollar. That is a risk which victims will not face under S. 2290.

If, despite paying significantly more money than the current tort system, the fund is unable at any point to pay full value; that is, 100 percent on eligible claims, then the fund will sunset and the tort system will reopen in Federal courts to compensate for future victims. There will be no risk to the victims.

We can't forget this bill is about the victims, not overinflated estimates of a broken tort system that diverts much-needed resources to unimpaired claimants and reduces awards significantly to pay attorney's fees and other transaction costs that do not directly benefit claimants. By any objective standard, this fund is more than adequately funded.

Although we are being met with obstacles in getting to the substance of the legislation, I am heartened by something. There has been significant bipartisan support for passage of a legislative solution to the asbestos litigation crisis throughout the session. In fact, calls for Senate action have been occurring for several years.

For example, when the esteemed ranking member was chairman of the Judiciary Committee, my good friend Senator Leahy stated:

. . . Congress can provide a secure, fair and efficient means

of compensating victims. I believe it is in the national

interest to encourage fair and expeditious settlement between

companies and asbestos victims.

Those were Senator Leahy's remarks in the September 25, 2002, U.S. Senate Judiciary Committee hearing on asbestos litigation.

Senator Leahy echoed his sentiments last year during a hearing I chaired, when he said:

These bankruptcies create a lose-lose situation. Asbestos

victims deserving fair compensation do not receive it and

bankrupt companies cannot create new jobs nor invest in our

economy . . . If we work in good faith toward a bipartisan

asbestos solution, we can meet the challenge created by

[asbestos] litigation. I agree with the Supreme Court's

conclusion that the number of claims defies ``customary

judicial administration and calls for national legislation.''

That was Senator Leahy's statement on March 5, 2003 in the committee hearing which was entitled, ``It is time for Congress to act.''

Other Members have made clear they share his opinions. For example, last May, nearly a year ago, Senator Dodd made the following observation:

[W]e are working very hard to come up with a compromise

proposal on the asbestos issue. And we've taken major steps

in that direction, working with organized labor, with the

insurance industry, with the insured, and many others who

have a stakeholding in the outcome of this particular avenue.

It's a critically important effort.

That statement was made on May 3, 2003. The distinguished Senator from Connecticut, Senator Dodd, reinforced those statements later when he noted on March 4, 2004, when referring to the asbestos problem:

This is a matter that does cry out for a solution.

As work progressed on bipartisan legislation establishing a privately funded national trust fund, support for the concept grew. In a July 2003 letter to Senators Frist and Daschle, Senators Dorgan, Breaux, Nelson, Baucus, Kohl, Miller, Lincoln, Levin, Stabenow, and Carper stated:

The asbestos litigation crisis is real and urgently

requires a legislative solution. . . . An administrative

trust fund is the right approach and represents a good

foundation for a solid legislative solution. . . . A

legislative solution to the asbestos crisis is a crucial

goal. . . . We believe that the groundwork has been laid by

the Committee leadership to provide a real solution to this

ongoing problem.

That was a July 11, 2003, letter to Senators Frist and Daschle.

In fact, when the legislation was originally introduced, Senator Nelson stated:

This will protect victims, save jobs, and force companies

to pay their fair share. This is a good start to solving a

big problem.

That was a press release on May 23, 2003. I have appreciated Senator Nelson's support over the last year. I don't know whether they can pull him back on this cloture vote on Thursday. But if they do, it would show this is becoming a political exercise to the detriment of these workers, to the detriment of these unions, to the detriment of the insurance companies, and to the detriment of these companies.

As last year progressed and fears grew that the legislative effort might fall victim to election year politics, calls for action intensified. For example, Senator Dorgan wrote the following in another letter to Senators Frist and Daschle:

We must complete asbestos reform before this session. I

think it would be a serious

mistake--for victims, for the economy, and for the Senate--if

we adjourned without enacting asbestos legislation.

Certainly, a compromise must meet the needs of all the

stakeholders. . . . We must seize this opportunity to solve a

major public policy challenge for our Nation.

That was written on October 29, 2003, in a letter to Senators Frist and Daschle. Yet, as you know, we were unable to get this up and get it passed last year. I agree with the Senator; it needed to be passed last year. To allow us to go past this year would be almost criminal.

His opinions were echoed by Senator Baucus, who wrote:

After all the hard work that has been put into this bill

over the past several years, particularly this year, it would

be a shame to let it go to waste. It would also have serious

implications for the economy and for victims if we let this

historic opportunity pass us by. . . . From what I

understand, we are very close. . . . I urge you both to do

everything in your power to bring both sides together for a

swift resolution of this longstanding debate.

That was before we have gone way beyond last year's bill, and we have given well over 50 amendments to Democrats to achieve this bill.

That was a November 5, 2003 letter.

On the same day, Senator Levin also sent a letter to Senators Frist and Daschle expressing his own concerns about the importance of the Senate taking action:

I would like to again stress the importance of addressing

the issue of asbestos reform before we adjourn this session

of Congress. . . . [T]he Senate is in jeopardy of missing a

historic opportunity to pass asbestos legislation with strong

bipartisan support. It is obvious to anyone . . . that the

system is broken and needs to be repaired.

That letter was dated November 5, 2003.

These were all written during the last year's session of Congress.

A week later, Senator Stabenow gave the following advice to Senators Frist and Daschle in a letter:

I believe that we have an historic opportunity right now to

pass asbestos reform legislation with strong bipartisan

support. . . . The current system has a devastating impact on

victims and their families, who have to continue to wait

while the judicial system wades through their claims, and on

companies, many who have had to file for bankruptcy because

of asbestos lawsuits. I urge you both to continue to work on

a bipartisan solution to this national problem.

That was in a November 13, 2003, letter.

Senator Leahy made the following statement on the floor a few days later:

. . . [W]e have come to a complete accord on the idea that

the fairest, most efficient way to provide compensation for

asbestos victims is through the creation of a national fund

that will apply agreed-upon medical criteria in evaluating

patients' injuries . . . an effective and efficient means to

end the asbestos litigation crisis within reach, and we must

grasp it.

That was a floor statement made on November 22 of last year. Unfortunately, time ran out before consensus could be reached.

At the urging of members on both sides of the aisle, Senator Frist announced in December his intention to accommodate Democratic requests for more time, and he announced he would delay floor consideration until this spring. This year, as negotiations continued in various settings, a call for action has continued. For example, on March 4, Senator Dodd noted the crisis in asbestos litigation is ``a matter that does cry out for a solution.'' That was on March 4 in the Congressional Record.

A few days later, Senator Reid acknowledged ``we have to do something about asbestos litigation.'' That was in the March 9 Congressional Record.

It would be impossible to argue there is an absence of bipartisan interest in fixing the asbestos litigation crisis. Nothing has changed since the Democratic leadership council made the following observation in 2002:

This is one issue where the fight is not simply a part of

the age-old struggle between companies seeking to avoid

financial responsibilities for misdeeds and trial attorneys

seeking to punish them while rewarding their clients and

themselves. We agree with Supreme Court Justice Ruth Bader

Ginsburg, who argued in an earlier case that the goal should

be to provide secure, fair, and efficient means of

compensating victims of asbestos exposure. We concur with the

view of the AFL-CIO that the current system is unfair and

unpredictable. Senate Judiciary Committee Chairman Pat

Leahy's decision to hold a fair and balanced hearing on the

asbestos litigation crisis should signal the beginning of a

bipartisan effort to create certainty in the system and get

help to victims without spurring new waves of bankruptcies.

That was in the New Democratic Daily on September 18, 2002, a year and a half ago.

These are some of the Democratic calls for reforms on this chart. I have on this particular chart quotes by Senators Dorgan, Breaux, Nelson, Baucus, Kohl, Miller, Lincoln, Levin, Stabenow, and Carper. In a letter, they said:

The asbestos litigation crisis is real and urgently

requires a legislative solution.

On March 4, Senator Dodd said:

This is a matter that does cry out for a solution.

Senator Dorgan wrote on October 29 a letter to the leaders:

We must complete asbestos reform before this session.

Senator Stabenow wrote on November 13:

I believe that we have an historic opportunity right now to

pass asbestos reform legislation with strong bipartisan

support.

Senator Leahy, on November 22, 2003, said:

An effective and efficient means to end the asbestos

litigation crisis is within reach, and we must grasp it.

Some of the statements I have quoted from my Democratic colleagues are listed on that chart. When viewing just a segment of these quotes, I think it is clear the need for reform is universally understood. The issues that must be addressed are clear. The time has come to act. We have worked our guts out to try to accommodate our friends on the other side. All we hear is: more money, more money, more money. It is as though these 8,400 companies have an unlimited supply of money to be given. In many cases, those companies are dramatically mistreated by this whole system. In many cases, they should never have had to pay a dime. I will cite one of the larger insurance companies in this country. They never, ever insured for asbestos or asbestosis, or any problem or malady that comes from asbestos; they never had anything to do with asbestos, other than they had their medical team do a medical analysis and concluded mesothelioma probably comes from exposure to asbestos. That was a service to society, not anything that should cause liability. Because of that, this company has been joined in over 60,000 cases, every one of which they can win and should win. The last one they tried, they did win, but it cost them $2 million for attorneys' fees alone.

That is money that could have gone to the victims, and just to get some finality to this situation, just to solve this problem, that company is willing to pay out what amounts to millions of dollars that they do not owe just to get this over with. There is a raft of companies that are in the lawsuits that fit that category.

Where is the justice on the other side? I admit, you want to fight for your constituencies--the personal injury lawyers and the unions-- but you also have constituencies, my friends on the other side, in these businesses that are going to go bankrupt and insurance companies that also are going to go bankrupt and the economy that is going to be tremendously hurt by this situation if we do not resolve this problem. We have a whopping amount of money to resolve these problems.

The issues that must be addressed are clear. The time has come to act. The asbestos litigation crisis is a national nightmare, and the failure of Congress to fix it would be a legislative disgrace.

I would like to show some charts with other calls for reform from labor unions and the media. Let me go into some of those.

Organized labor calls for reform. This is a statement of Jonathan Hiatt, general counsel with the AFL-CIO. This was made before the Judiciary Committee on January 25, 2002:

Uncertainty for workers and their families is growing as

they lose health insurance and see their companies file for

bankruptcy protection.

Mr. Hiatt is a very bright and noble attorney in many respects, and I have a lot of respect for him. What has the AFL-CIO done? We reached $108 billion which I had indications they would accept, but now we are as high as $124 billion. Where are they?

Take AFL-CIO Principles on Asbestos Compensation which was stated on August 7, 2002:

[U]nder current law and legal processes, many asbestos

victims are not being treated fairly.

In other words, the system is broken. Here we have a chance of changing the system. This is the art of the doable. And where are the trade unions? They are the ones that are losing the jobs. They are the ones that are primarily losing health care benefits. They are the ones that are losing their pensions from these companies that are going bankrupt. Where are they? Why aren't they demanding that our friends on the other side do something about this, other than scream for more money all the time. Stones can only give so much blood, and, of course, there is a certain irony in that statement.

Let's take the United Steelworkers of America, local 12773:

We really believe this needs to be resolved now.

Or take the Paper, Allied-Industrial Chemical, Energy Workers International Union, local 2-0891:

. . . we might not have another chance for some time.

They might not have jobs in the future because of this dragging of the feet we are getting from the other side on this matter.

Or take the United Steelworkers of America, local 7110:

It is too important to let pass by.

These sum it up. Let's take media calls for reform just so people understand.

The Pittsburgh Post-Gazette, September 25, 2003:

There is an elephant to be moved, and this is the best

chance in years. The time for Congress to act is now.

The Detroit News, April 4, 2004:

The bill makes economic sense for companies and would

ensure significant payments to employees who develop serious

illness. It's a humane solution and ought to be adopted.

That is the Detroit News, a heavily industrialized city. They understand this. Why the slowdown?

Take the Chicago Times, on June 16, 2004:

It is ludicrous to keep litigating for the benefit of the

litigators, when what is needed is a claims system for the

benefit of the victims.

That is what this bill does. It is a claims system for the benefit of the victims.

There is a whopping amount of money that will go to the victims, not to attorneys, although the attorneys still will get $2.5 billion of it, which is a lot of money.

Take the Washington Times on September 24, 2003:

. . . current legislation to control asbestos-related

lawsuits is one of the best ways Congress can protect jobs.

The current legislation.

Or take the Capital Times & Wisconsin State Journal on May 13, 2003:

An asbestos trust fund is a good idea. It should become

law.

Fund Could End Asbestos Legal Battles.

That is what this bill can do. Why don't we have more help from the other side?

None of these papers, with the possible exception of Washington Times, one would call moderate to conservative. Most are more liberal papers.

The Chicago Times, June 16, 2003:

The proposal . . . would get compensation to genuine

victims and get hundreds of thousands of cases out of the

regular court system.

That is one of the points I have not emphasized up to now. As a former trial lawyer, I have to tell you, our courts are clogged with all kinds of frivolous suits, all kinds of frivolous cases. I am not talking about these cases necessarily, but all kinds of them. Then you add these hundreds of thousands of cases, and one can see why justice is not being obtained, especially for those who are sick and needy.

I notice that my colleague from Washington is in the Chamber. I thank her and her staff for their good-faith efforts in working with us to reach consensus on an appropriate asbestos ban. I am pleased that we, including Senators Feinstein and Kohl, were able to reach bipartisan consensus on this very important issue. It is important.

Madam President, I ask unanimous consent that immediately following the remarks of the distinguished Senator from Washington, the distinguished Senator from Ohio, Mr. Voinovich, be recognized to give his remarks.

I yield the floor.

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, I ask unanimous consent that immediately following the distinguished Senator from Connecticut, I be permitted to speak.

Mr. President, I have been interested in this discussion. It has nothing to do with asbestos, but nevertheless an important discussion. I have to say I have taken great interest in the education processes myself. The other side just thinks there is money growing on trees. Frankly, there is never enough money to satisfy them.

All of us wish we could do better. I wish every school district in the country would teach music because it softens kids' lives. When I was a young kid, I was born on the wrong side of the tracks. I was a tough little kid. My mother made me learn the piano for 6 months and then made me play the violin, and that made me even tougher, carrying that violin to school. I have to say that softened me and gave me a soft side to what some people think is a fairly tough guy. So I commend my colleagues for wanting to do more. But having Democrats call for more and more spending is a little bit like a glutton who has eaten everything on the table and now wants more.

There is no end of the spending that they would do, even if we do have a $1.2 trillion deficit. This President has all he can handle. There is no question about it. I commiserate with him. I also look at the outrageous costs of some aspects of higher education brought into discussion here, what a gravy train it is for some people in many universities, and how tuition has gone up so much to pay for the gravy train. It reminds me of the trial lawyers we have been talking about with respect to asbestos reform.

Mr. President, I wish to respond to some criticism some friends across the aisle have made regarding my comments about personal injury lawyers. In particular, I have been criticized for repeating in public on the floor of the Senate what many people are saying in private--that there is a political tie between many of these trial lawyers and many of my friends across the aisle. I don't think it is news that, as a rule, you will find that, all things being equal, most trial lawyers will likely support with their voices, and especially their wallets, the Democratic Presidential nominee and other Democrats across the aisle. They are the largest single hard money donors to the Democrats-- the liberal Democrats. It is hard to find any conservative Democrats, other than one I know of over there.

If I offended anybody by repeating in public a widely known dynamic, I guess I should apologize. I also recognize that I am unlikely to be the American Trial Lawyers' man of the year awardee. I am a member of that organization. I know a lot of great trial lawyers who are honest, decent, and do what is right in serving the American people. They know that when they are right, I am on their side. But in this case they are not right--the few who are abusing the laws.

Seriously, if in this debate I have sometimes come down too hard on personal injury lawyers, I have done so because I am concerned that what stands in the way of a much needed asbestos bill is the handful of overzealous, greedy personal injury lawyers--just a handful of lawyers in this country. I don't intend to malign personal injury lawyers as a class. I believe personal injury attorneys can serve and, in many cases, have served a vital function for many injured plaintiffs.

While I don't always see eye to eye with the personal injury bar, when I think they are right, I don't hesitate to say it and they know it. I had plenty of them thanking me for saying so when they were right during the discussion over the tobacco legislation in 1998. I was impressed with Richard Scruggs, or Dickie Scruggs, in the Castano group of trial lawyers. I think many trial attorneys played a constructive role in reaching a historic compromise with the tobacco industry. I helped them, and they know it. They were right and I backed them. Some in Congress held out for so much money that it was impossible to pass Federal tobacco legislation. The theme of some in Congress holding out for too much money is applicable to the asbestos debate.

In any event, the work that a gifted group of trial lawyers did with Mississippi Attorney General Mike Moore deserves a lot of credit. I supported their efforts publicly and even provided my support for reasonable compensation for those attorneys. I am not afraid to speak up for trial attorneys when I think they are right. I irritated people on my side who felt they should not get the compensation that I think they more than earned.

Frankly, as a former medical malpractice defense lawyer, I liked nothing more than to go up against the best plaintiffs' attorneys for the pure challenge of competing against the most skilled adversary. As a plaintiffs' lawyer, I liked nothing more than having gone up against the best defense lawyers in the country, having the thrill to be able to compete with them. In many cases, I would win against them.

We all have to recognize that the work of personal injury attorneys on asbestos litigation has dated back 30 or more years. Without the hard work of these lawyers, it is unlikely the U.S. would have come so far in responding to the dangers of asbestos. It is the success of the trial attorneys that put us in the position of recommending legislation that calls for a private trust fund to compensate asbestos victims without the need for each one to establish causation.

In short, personal injury lawyers have won the case, and they won it long ago. What this legislation is trying to do is sort out who pays and how much, and do so in a fashion that minimizes the transaction costs so that more of the money goes to the injured persons and less of the money gets swallowed up in litigation, and the courts can get unclogged, and so that other fairly brought litigation can be heard.

In compensating asbestos victims, we must be mindful not to corrupt more and more firms, which results in more and more job losses, and more and more loss of health care, and losing more and more value in retirement stock portfolios, and more and more loss of pensions. That is what we are trying to do here.

All I hear is whining from the other side. We have heard a lot of talk about how much the bill costs and how much it will pay out to victims. We heard talk about who pays, and how much, and whether they are paying enough.

If we ever get on the bill, we will hear more talk about these important issues, as we should. I have no problem with that. But they are filibustering even the motion to proceed. My gosh, when are the American people going to understand what is going on? They have filibustered virtually everything that has come up this year. It is going to take a supermajority to pass the simplist of bills the way they have been carrying on. It boggles my mind. But that is what is at stake in tomorrow's cloture vote.

Will we vote for cloture so we can talk about the issues on the bill itself? I hope we will proceed to the bill. But it shows the politics that are being played. For my friends on the other side to come on the floor and say this bill doesn't do enough, after we have given and given and given in to their suggestions time after time, or to say it is not procedurally proper or not written right, after 15 months of dedicated, hard effort--I have to say by a few Democrats, and by many on our side--it goes beyond the pale.

It is true that I have irritated some personal injury lawyers in some of my remarks. The ones I am talking about deserve irritation. I don't believe they are honest. I believe they are exploiting a system and taking moneys that should go to people who are sick. What

I am about to say may further irritate them and some of those across the aisle.

I have some important questions to raise with respect to attorneys' fees. Frankly, the issue of attorneys' fees is a key issue because it is critical in determining how much of the funds will actually end up in the pockets of the injured people. As I have said, today about 60 percent of the funds wither away to lawyers on both sides of these cases. You can expect that about one-third of any recovery will go to the plaintiffs' attorneys. In a no-fault, nonadversarial compensation system, there should be no place for the routine attorneys' fee level of one-third of the recovery.

Accordingly, in our bill, we employ the same fee schedule used by the Radiation Exposure Compensation Act, or RECA. In the RECA law--a bill I wrote and passed through this body a number of times--the lawyers' cut is 2 percent of the recovery in noncontested cases, and 10 percent for complicated cases. These cases are like rolling off a log if this is passed. Lawyers do not deserve 60 percent in defendant and plaintiff attorneys' fees, in addition to the transaction clause. The fee schedule results in the lion's share going to the injured persons and their families. This is the way it should be in the radiation exposure cases involving downwinders of nuclear tests, and this is the way it should be for asbestos victims. This is what is in our bill. It is a long settled way of solving these problems and a reasonable way that pays the attorneys what they should be paid--actually more, in many instances--but it stops the gravy train that is ripping off the sick and needy who have suffered from asbestos.

What is unknown is what our friends believe to be a fair level of compensation for personal injury lawyers in this new no-fault system. I ask today for our colleagues to come to the floor and tell us if they support or oppose our proposed attorneys' fees levels, if they believe our 2 percent for uncontested cases that are like rolling off a log, and 10 percent for those who might have some small contest, and they will still be like rolling off a log compared to litigation in trial. If this provision is not proper, please tell us how they would do it. We have not had the slightest suggestion from them.

If they believe it is still appropriate to retain attorneys' fees of 33 percent to 40 percent or higher, please explain why this is fair or necessary in a no-fault, nonadversarial system that this bill would make into reality. In the spirit of good faith, we agreed to move the program into the labor-friendly Department of Labor. The Secretary of Labor does not favor this. The White House does not favor this. I, frankly, do not favor this. I am afraid that will run the program into the ground because the Labor Department has been controlled by liberal bureaucrats for many years. But we are willing, in the interest of getting this done, in the interest of helping these people, to even do that.

Running a program to compensate workers out of the Department of Labor may be somewhat akin to voluntarily playing the Celtics in the Boston Garden. We made a genuine concession on the administrative process, as our colleagues know. We have repeatedly asked them to recognize it is appropriate for them to act in a spirit of genuine compromise with respect to attorneys' fees.

Let's face it, numbers are flying around in this debate. One way that the difference between our respective proposed level of total claims can be bridged is to reach agreement on the appropriate level of compensation for attorneys' fees. But we cannot even get them to talk about that. Even if we could, we could not talk about it because we are on a filibuster on the motion to even proceed to the bill. Once we go to the bill, we would have a filibuster on that, if we can ever get to that point, but at least we would be able to be on the bill.

We believe the RECA, the Radiation Exposure Compensation Act, exposure level of 2 percent of noncontested cases and 10 percent for contested cases is both fair and reasonable because both cases will be easy for the plaintiffs or those who claim to be sick to get compensation if they are sick.

What do our friends across the aisle think about this? What are they proposing on this important issue? I ask they be specific so we and other interested parties can evaluate their position on this essential question. We have only been negotiating with them for 15 solid months, and we still do not have their suggestions. Yet they are saying: Oh, this is just too premature. That is after many of them said last year we should have gotten this bill done before the end of last year's session.

When is it going to end? When is this kind of phoniness going to end? A great deal of the difference in the compensation levels, in each of our respective levels of total compensation, in our bill it is $114 billion plus a $10 billion set of contingency funds, and in one widely cited Democratic claim values amendment $167 billion can be bridged by factoring in the share that can go to personal injury attorneys.

I do not want to cut them out from reasonable fees, but I do think $60 billion is unreasonable because that money comes out of the hides of the sick people. No wonder attorneys in this country are so looked down upon, especially personal injury lawyers. I happen to know about 90 percent of the ATL people are sick of this and sick of this 10 percent who are running wild taking advantage of the whole system and basically destroying the right of individual sick people to get adequate compensation.

This bill would take care of that problem. If the Democrats are advocating that the customary one-third of the award can go to the lawyers, then we are not that far apart as to how much money should go to injured workers and families. We should work together to see if we can agree on a reasonable level of compensation for these attorneys. I call them the Fred Barrons of this world and other personal injury lawyers who are bringing these suits in selected favored jurisdictions so they can get easier verdicts. I challenge them to come in and tell us what would be a reasonable level of attorneys' fees, and let's quit playing the game.

This is a no-fault, nonadversarial system that does not justify the type of attorneys' fees that have been ripping off the public, especially the sick, the weak, the feeble, and the injured the way the current broken tort system is. I have no doubt that public discussion of this issue may bring great consternation among the ranks of some of my Democratic friends due to their close relationships with many in the trial attorney bar. But if we are ever going to have a meaningful no- fault trust fund asbestos bill, we are not going to be able to guarantee and should not be asked to guarantee the usual one-third to 40 percent of the take going to the plaintiffs' trial lawyers regime. One-third or more going to the lawyers is simply too much, especially in a no-fault, nonadversarial system.

The unions should recognize this, and the public should recognize this, but most of all these lawyers ought to recognize this and quit ripping off the sick and the downtrodden and those who really deserve these moneys.

The silence of my friends across the aisle on this issue, both in private and public talks, is deafening. When we did the RECA bill, I was chairman of the Labor Committee. I fought that bill through for years until we finally were able to get it done. All these people are asking for more money for education, more money for all the social programs, more money for this, more money for that, and they were the ones who were giving us a rough time. Finally, after I was reelected, they then realized we better get on the ball and do something about this. That is how the radiation exposure compensation law, which is now followed by countries all over the world because of what we did, is now law, compensating people, not very much for the suffering they went through, nothing like we are going to compensate from the private sector, no way near what we are going to compensate here.

The silence of my friends on the other side of the aisle, both in private and public talks, is deafening. I heard some of my colleagues, who I respect, come on this floor with a straight face and say this is not the right way to do it, although last year it was. They were talking about this administrative approach is the right way to do it. Why isn't it the right way to do it during a

Presidential election year? I ask the people out there watching and listening, why is it they suddenly think this is not the right way to do it when we put up even more money before, giving in on at least 53 different amendments, have moved this into an administrative process in the Department of Labor that many on our side question? Why is it that they are still balking at this in this Presidential election year?

I think there is only one conclusion most people are drawing, and I hate to see that. I hate to see that. If they do not like this bill, they should offer a substitute amendment. Let's have it out. Maybe they will win. Maybe these 8,400 companies and 16 insurance companies will get clobbered even worse so they can barely survive, and some are still going to go into bankruptcy. They certainly will if some of these people with their outrageous demands get their way. It is time to stop talking generalities and start voting on specific amendments.

I want next to make a few remarks about the process that has been observed to date and why I will be very disappointed if we are not allowed to proceed to the bill tomorrow after the cloture vote. Just think about it; they are filibustering the motion to proceed. They could have easily given in just like that and said, No, let's go to the bill, and we will filibuster the bill. That would be the straight up way of doing it. But to filibuster the motion to proceed means they must be beholden to somebody to pull that kind of a procedural mechanism. That does not happen very often, and it should not be happening here.

Frankly, that we are being forced to vote cloture is disturbing to me and should be disturbing to everyone, although I do recognize if cloture is not invoked, it would be pleasing to these few trial attorneys who are milking this system dry at the expense of those who are sick and afflicted and downtrodden. They will not have to see if their customary one-third or 40 percent of representation in the asbestos claims in the new no-fault system can be justified on the floor of the Senate. That is just matter of fact and people need to know it. That is why I am here on the Senate floor.

I rise today in response, again, to complaints that I have been hearing from some Members on the other side of the aisle about being rushed to consider a national solution to this asbestos mess. As many of my colleagues know, the asbestos litigation crisis is not new to this body. We have been talking about the problem for the better part of a decade, but now that we find ourselves on the verge of considering a proposed solution, I am puzzled to hear that the process has somehow been unfair, that we are not acting as ``proper legislators'' for bringing this bill to the floor under the current circumstances.

I think anybody with brains would find these complaints devoid of any merit whatsoever, especially when viewed against the legislative history of this asbestos bill.

While we have tried to build consensus over the past 15 months, thousands of asbestos victims have gone uncompensated or left with only pennies on the dollars they deserve. Veterans and people like those in Libby, MT, are left with no one to sue. More than 70 companies have gone bankrupt and dozens more will soon follow.

Since we started working on this legislation, 60,000 jobs have been already lost at a cost of more than $2.2 billion in lost wages alone. Let me repeat these numbers so they can sink in. Sixty thousand jobs have been already lost at a cost of more than $2.2 billion in lost wages alone, and sadly another 400,000 jobs will soon be lost. Yet we still talk. There are compelling calls for action. There are empathetic expressions of compassion for victims. There are meetings and letters, promises of solutions to come and proposals to be made, and yet for all of this ocean of good intentions we are all still stuck.

Frankly, much of the current asbestos litigation is all too reminiscent of the mythical Jarndyce case from the Charles Dickens ``Bleak House.'' As my colleagues will recall, this was a case in which most of the estate was swallowed up by lawyers' fees and court costs.

One has to ask how and why we got to this point. In September 2002, when Senator Leahy chaired the Judiciary Committee, he held a hearing on the asbestos litigation crisis. I commend Senator Leahy for his efforts. The hearing was balanced. It was instructive, providing valuable evidence of the dire circumstances for asbestos victims, employees, companies, and insurance carriers. The judicial system and the American economy at this national embarrassment was left intact. That was a year and a half ago.

When I became chairman of the committee 4 months later, I immediately made it clear that I wanted to build on that record, draft a bipartisan legislative solution and pass it. Almost immediately, concerns were raised, warnings were issued: You are moving too fast, some said. The issue is not ripe, others advised. You better get it right, others still warned.

Two months later, on March 5, 2003, I chaired another hearing. Some of the same witnesses from before appeared again and the testimony made it abundantly clear that while the problem had gotten worse, there was bipartisan interest in the idea of creating a national trust fund. We heard solutions from a variety of perspectives--from academia, from business, from the unions, and from trial bar experts. I made clear I would incorporate any constructive proposals offered. I wanted a bill that would work. I wanted it to be a bipartisan bill.

As a result of hearing the magnitude of the asbestos problem, we worked toward drafting a bill that would create a national privately financed no-fault compensation fund for asbestos victims. As word spread about our efforts, warning flags were raised. Some in the minority on the other side of the aisle urged us to move slowly, not to rush; more time was needed; more talk was needed.

We finished drafting the bill and we shared it with others, both in the Senate and among interested shareholders. There was real interest and we were given several good ideas and suggestions. Unfortunately, for the first time the minority's caution chorus took voice: We're being rushed; we're being jammed.

This is the minority's caution chorus of worrisome lions. This is what we have been going through now for 15 solid months: Do not rush us; do not do this; do not do that; we must be cautious.

We were rushing them, we were jamming them; according to them; I was acting unfairly. All this drama was over a bill that I had not even introduced.

I had listened for hours and hours, worked with my colleagues on both sides of the aisle for days, weeks, and months. They asked that I delay introduction. They asked that I delay introduction so they could have more time to study the issue and my proposal, which I did. We had more meetings, more talk. I incorporated several of their ideas into the bill and asked if they would cosponsor it.

Now I am pleased that a few did. I am forever grateful to those on the Democratic side who did. There were two who did--two, after all this work. Fifteen months later, we are down to one. More said that it was not the right time. They were upset with the way I had shared my draft legislation.

On May 22, 2003, Senators Nelson, Miller, DeWine, Voinovich, Allen, Chambliss, Hagel, and I introduced S. 1125, the FAIR Act. The minority's caution chorus sang again. These miserable, cowardly lions sang again. They were being rushed. They were being jammed.

In truth, I introduced the bill 78 days after my hearing, 20 weeks after the beginning of the session, 6 months after the hearing of 2002. This was clearly no sprint.

On June 19, I held the first markup. Again, the minority caution chorus took over again and took voice. The issue was still too complex. The bill was too complicated. We were not doing it right. They were being rushed. They were being jammed. They asked for more time, and they were given it.

Unlike ever before, the committee's markup of the legislation was spread over 3 weeks, 3 solid weeks. We spent 4 separate days--not many bills take 4 days to mark up--considering changes, often working late into the night. We invited experts to sit with us as we worked through complicated medical issues. This was no sprint, no rush to judgment. There was no mad dash.

Interestingly, when there was engagement from the other side, agreements were reached. In fact, the committee was able to resolve what at the time was supposed to be the biggest impediment to reaching a consensus, an issue so fraught with partisan disagreement that it could never be resolved.

In the end, we accommodated scores of concerns raised by the minority and found a common ground on medical criteria that everybody, Democrats and Republicans, agreed to. It was a major victory. This bipartisan accord was achieved and the committee adopted it unanimously. This was one of the most ideologically divided committees in the Senate, some say the toughest committee in the Senate with those who are the most ideologically challenged, I should say, and I cannot disagree with that.

The next impossible hurdle was claims values. Again, I was told there was no way a group so divisive, so argumentative, so plainly disagreeable as the Judiciary Committee could reach an agreement on how much to pay victims. Now, despite the dire predictions, a bipartisan agreement was reached again. The committee adopted the Graham-Feinstein amendment on claims values by the whopping bipartisan vote of 14 to 3. Now I just want to mention to my colleagues on the other side that every one of the Democrats voted for that. Three of our Republicans thought it was too much money and they voted against it, and they may not have been wrong. The only problem is that we are way beyond that money today.

I might add that all of these negative votes were cast by Republicans who thought some values were too high. As my colleagues know, we are more moderate to conservative over here, and I cannot blame them for raising those issues.

On July 10, 2003, despite the constant wailing from the minority's caution chorus again, we reported the bill out of committee by a vote of 10 yeas and 8 nays and 1 abstention. We all knew more work had to be done before the legislation could be brought to the floor. We also knew there would be no bill unless there was a willingness on both sides to pass a solution to move towards the middle.

As summer turned to fall, there were sporadic attempts at additional negotiations involving committee staff, as well as among the leadership. Minor matters were resolved, but there was no evidence on the part of the minority's leadership of any real interest to engage in the kind of meaningful effort needed to finalize a bill. Individual members of the minority were very public about their interest in legislating, but those purportedly tasked with the negotiations did not possess the same zeal.

We have heard, for my whole 28 years, how much more concerned the other side is about people and their problems. Well, it does not take much to figure out their concern here is more about the trial lawyers and the personal injury lawyers who are involved, because they are sure not working hard, in my eyes, or I think anybody else who looks at it objectively, to find a way of helping those who are truly injured and hurt.

Now, while these efforts were making little progress, work was underway on another front beginning in August. Senator Specter began an intriguing, arduous mediation among the major stakeholders. That means the victims, the alleged victims, the trial attorneys, the personal injury lawyers, the insurance companies, the companies that have been sued, and companies that are about to be sued. He took on this job. I give him a lot of credit for it. He convinced Judge Edward Becker, former Chief Judge of the Third Federal Circuit Court of Appeals, to play a lead role as a negotiator, as a mediator, for which Judge Becker is eminently qualified. He and the judge forced the parties to spend dozens and dozens of hours together. We were there, so we do know.

We spent hours and hours, days, weeks, and months, arguing the positions and searching for a common ground. Senator Specter and Judge Becker should be commended for their Herculean efforts to keep the parties talking and, despite the objections of the representatives and the personal injury lawyers, there was progress--slow, incremental, but progress. The unions played a significant role. They were there virtually all the time.

However, we have never been able to satisfy them, even though their workers are the ones who are going to be hurt the most if this bill doesn't pass. They are the ones who are not going to get compensated because the moneys are being sopped up by personal injury lawyers and people who are not sick because these personal injury lawyers are going to jurisdictions that basically are out of whack, that really will not look at these things in a reasonable way and who basically find for whoever brings the case and find in huge amounts for people who are not even sick in many cases.

I compliment Senator Specter and Judge Becker. There has been some slow progress during that period of time.

During the fall, Senator Frist and I spent considerable time working with those who would be paying for the fund to ensure its solvency. It was imperative that the bill establish a steady and sufficient flow of moneys without allowing the fund itself to perpetuate the same kind of economic disasters caused by the tort system as a whole and by the tort system with regard to this type of case.

By the end of October, these issues had been completed and there was a renewed attempt to begin negotiations with those on the other side of the aisle, but every time an overture was made, the caution chorus was being rolled out: We are being rushed. We are being jammed. Every time it was rolled out by the other side of the aisle.

There was always some reservation; Things were moving too fast; There were other more important issues; They hadn't been asked the right way; They were being rushed; They were being jammed. The reasons changed but the result was always the same--no real negotiations. In fact, to this day we do not have a substitute or an offer by those who are complaining on the other side--to this day. We don't even have a monetary amount other than they have thrown out $170 billion, which everybody knows cannot be the number.

During my tenure in this body, I worked with my colleagues in the minority on a number of issues, on landmark drug legislation, the Hatch-Waxman Act, which gave life to the generic drug industry and saved consumers and our Government tens of billions of dollars since 1984. I worked with minority Members on children's health insurance, on childcare, on tax reform, job training. I have worked with them on issues involving crime, on legal reform, and a whole raft of other issues.

The Members of the minority are excellent legislators and skilled negotiators. They have insightful and creative staffs. I have worked with them when they wanted to pass a bill, and I know what it is like when they want to pass a bill. I have worked with them when they do not, and I know what it is like when they do not. I am telling you this is a time when they just don't seem to want to, because there has been plenty of opportunity to resolve this matter.

It is not hard to tell the difference. When there is a genuine interest in legislating, one of two things happens. A member of the minority leadership comes on at the outset and his or her presence and commitment helps to generate sufficient pressure on both sides to move legislation.

The second way, the minority offers their own version of the bill enabling both sides to sit down and work through the differences and craft a compromise.

Here there was no move by the minority's leadership and there was never, despite repeated and frequent requests, any interest by the minority in introducing their own solution. Instead, they chose to spend their time finding fault with our legislation and complaining about our process.

Another concentrated effort to move the bill was made in November, last year, and not surprisingly the caution chorus came out and began singing its song again: We are being rushed; we are being jammed, even though there were a number of Democrats who stood up and said they had to get this done before the end of this year.

Where are the real Democrats? That is what I would like to know. The pressure continued, however. Interested

stakeholders would not take no for an answer. Hints were made about bringing the bill to the floor, even if it resulted in a filibuster. Suddenly the message changed. Now we were told the minority's leadership wanted to find a resolution, that there was bipartisan interest in passing a solution. It was implied if we would just postpone consideration to early next year, there would be ample time to finish work on this bill.

The majority leader agreed and on November 22, 2003, he announced he would not bring up the asbestos bill prior to the end of the session. Instead, he would give the parties additional time to complete their negotiations. But he made clear his intention of bringing the bill to the floor this year.

His announcement was well received by the other side. I remember. As this year began, it was clear from the outset that, despite the promises of November, little had changed; there were no real breakthroughs. So, in February, the majority leader announced his intention to bring the bill to the floor the third week of April. But yet again the caution chorus rolled out its usual objections: The issue was too complex; the legislation was too complicated; they were being rushed; they were being jammed. Indeed, we even offered to engage in protracted negotiating sessions, but again the Democrats demurred.

In February, my staff sent an e-mail to Democratic staffers proposing a multiday negotiation to seek a resolution of the issue. It contains an offer to meet during all-day sessions, ``during recess weekends, or weekends during session.''

The response from the minority was unambiguous: Don't rush us. Don't rush us.

Senator Specter, to his credit, kept pushing forward and, as a result of his efforts, the stakeholders reached agreement on what was supposed to be another impossible hurdle, the administrative structure, which I mentioned earlier.

The proposal was not to our liking. It would require a fundamental change in our position, allowing the fund to be run out of the Department of Labor, but because organized labor signaled its strong support for this change and because we wanted to reach consensus on other critical issues remaining on the bill, we agreed and we agreed despite the objections from many on our side of the aisle and in spite of the objections from the White House.

The minority, instead of accepting this concession, instead of endorsing this considerable victory for organized labor, made it clear that this significant agreement meant nothing more than a chance to bank an advantage. They offered no alternative. They revealed no new proposal or compromise. In fact, it is reminiscent of the style of negotiation that says: What is mine is mine; what is yours is negotiable.

Nonetheless, additional proposals were made but there was no counteroffer, none of the typical give and take that is the hallmark of serious negotiations in this most important legislative body in the world. It was like trying to play tennis with a curtain. There is never any meaningful discussion of what the payers, the ones who have to pay these bills, most desire and, frankly, they deserve: a fair and predictable payment schedule.

Whatever we do is going to be tough on the payers here. This bill is plenty tough on the payers. Don't think they are not squealing; they are.

It was now obvious even to the most optimistic Member of this Chamber that it would be impossible to bring a consensus bill to the floor, one supported by the leadership of both parties. We are hearing Senator Leahy has at last put together an alternative proposal on this national trust fund. Has it been introduced? Have we even seen it? Of course not. The only choice left was to bring a bill to the floor and hope enough Members of the minority thought the issue was of sufficient importance, as they have repeatedly said, to allow the Senate to consider this bill.

To help facilitate discussion, I introduced, with Senator Frist and Senator Miller from the other side of the aisle, S. 2290, a second version of the bill which incorporated many significant changes that have been made since the legislation was first introduced and first reported from the committee.

That is the legislation before us today. It contains the bipartisan agreement on medical criteria. It contains the agreement reached by the stakeholders on the revised administrative structure and numerous other changes adopted during the Specter negotiations that have all been to try to get the Democrats to move on this bill. It contains the handful of changes agreed to by both sides since the bill was reported out of committee. It also contains higher claims values passed by an overwhelming bipartisan vote of committee and incorporates yet another monumental change and another fundamental concession to address the complaints by the minority.

We have included provisions in the bill to make clear that the risk of insolvency will not be borne by the asbestos victims; it will fall on the defendant companies and their carriers. If there are insufficient moneys, the fund will terminate and parties will return to the tort system--to Federal courts. There is no point in sending it back to the State jurisdictions that created the asbestos crisis in the first place.

Here we are today. The time has come to act. The day of decision has arrived. Unfortunately, to no one's surprise, the caution choir is on its feet again, or somewhat on its feet, I guess I should say: They need more time; the issues are too complex; the bill is too long; they weren't consulted the right way; they were being rushed; they are being jammed.

I was told by many at the beginning of last year that when I embarked on this legislation the Democrats would simply run out the clock. They will never let us vote on a bill that could deprive them of their huge cash cow.

First, Democrats would push into the election year, they said. Then they would filibuster a motion to proceed. That is exactly what has happened so far in their zeal to make sure that their hard money donors get their way at least this year--an election year. It is not too late to change that.

Let me just say that the caution chorus is sounding like a broken record that needs to be shut off. It has been 333 days since S. 1125 was introduced.

A hundred years ago, it took Christopher Columbus only 222 days to discover the new world and return to Spain--one of the most remarkable discoveries in the history of the world. It took Neil Armstrong only 8 days to travel to the Moon and back. Our forefathers were able to write the U.S. Constitution in only 4 months. But somehow there hasn't been enough time for the minority to help write this bill although they have had a lot of say and have had a lot of concession. We have tried to do everything to bring them to the table and get things done. Here we find ourselves in a filibuster on the motion to proceed.

This caution chorus of cowardly lions reminds me of what is going on. Of course, there was one big difference. In those historical examples, the players actually wanted to finish. They actually wanted to discover an America. They actually wanted to go to the Moon.

Over these 333 days, we have had numerous congressional recesses and holidays. Just look at this. Over 333 days, and we are now under a filibuster. That comes from the Spanish word ``filibustero,'' meaning pirating or hijacking. It is just one more obstruction. We have had nothing but obstruction since George Bush has become President of the United States--over and over. There have been very few bills passed, and the ones that have passed have had to overcome the obstructionism. My goodness. There are some Democrats who have been willing to overcome obstruction, but on this one, it has not been brought to conclusion.

We have had one entire summer, the fall, winter, and we are quickly working our way through spring. How much more time is needed to sit down and get this matter resolved? The time has come for the minority to stand up and be counted.

If they are genuinely troubled by our proposal and all the agreements we have reached with them, they have an obligation--indeed a responsibility--to offer their own solution. The challenge is on them. Introduce a bill. Make sure it strikes the same balance demanded of us. Make sure it is fair in the way we have tried to make it fair. Make sure it provides adequate moneys for asbestos

victims. Make sure it provides compensation quickly, efficiently, and fairly. Make sure it does not reward the unimpaired, those who aren't sick. Make sure it is not hijacked and turned into a smokers' compensation fund. Make sure it does not bankrupt more companies and throw hundreds of thousands of Americans out of work and out of their health plans, their pensions, or wipe out their lives financially.

That is what is going to happen. For the life of me, I can't understand why many in the trade union movement aren't jumping on this bill in every way they possibly can because their employees are the ones who are getting hurt. They will never get the money we have in this bill if we don't pass a bill.

Make sure it doesn't stick the Federal Government with a bill at end of the day.

Now you on the other side of the aisle have claimed that the asbestos crisis must be fixed. You have all agreed there is a crisis in our country. You have conceded that the tort system is broken, that we have a historic opportunity to act. The end is within reach, and we must grasp it.

But here we are. I think the time has come to act, to make good on the promises which have been made on the other side of the aisle, to demonstrate the leadership and responsibility our Nation demands when we are asked to do our job to fix a national crisis. It is time to move past our alleged mistakes and complaints about perceived procedural insensitivities.

It is time for the caution choir, which we have been looking at here today, to quit singing ``We are being rushed; We are being jammed.'' It is time for the real interests to take a stand and to do what is right.

It is getting late in the day to appoint another committee and schedule more meetings and talk. It really bothers me that they are filibustering the motion to proceed, which has only been used on rare occasions before the last few years, before the obstructions that have been occurring on a regular basis. People in the past were willing to debate these bills and were willing to try to amend them if they didn't like them, willing to be legislators and not obstructionists, willing to do what is right for the American people.

We have now been on this bill 15 solid months and we still have not seen, other than demands during negotiations, what our friends on the other side must have to resolve this problem, which in many respects is the most dangerous problem hanging over America today, especially for employees, especially for union members, especially for those who want health care and who want their pensions to be saved, especially for 8,400 companies on the one hand, and maybe more if these voracious personal injury lawyers continue to conjoin people who really have had nothing to do with asbestos but have been conjoined in these actions where they are stuck with humongous defense costs and attorneys' fees themselves, so the moneys that would go to the sick and the needy, those who really need it, go down the drain of legal fees, clogging our courts so that other legitimate cases can't be brought.

Again, I will return to that message. Why is it that we are going through this type of chorus charade? Why is it that we haven't had more cooperation? Why is it that we can't get them to come up with what is needed to resolve this morass? Why is it during this election year?

All I can do is ask the question. I think anybody observing knows what the answers are. At least that is what has been alleged to me. That is what has been suggested. I hope it is not true.

I yield the floor.

I thank my colleague for his kind remarks. I appreciate the hard work the Senator and others have put in on this side. There are some on the other side who have worked hard. Particularly, I express my gratitude to Senator Miller, Senator Nelson, and Senator Feinstein. I understand Senators Nelson and Feinstein are probably going to vote against cloture. I don't know. I cannot speak for them. I hope not. They are two who have tried to work with us on this bill.

If that is laid down, I don't know where we will go. I am afraid an awful lot of people will be left high and dry while these trial lawyers, the personal injury lawyers, walk off with $60 billion in fees and costs that could go to people who are sick. I don't begrudge attorneys the fees they earn. We have more than made a case that the system is broken. There are a certain limited number of personal injury lawyers who are taking advantage of the system and doing it in ways that are reprehensible.

Madam President, I ask unanimous consent that during today's session of the Senate Senator Harkin be recognized for up to 15 minutes as in morning business; Senator Byrd for up to 40 minutes as in morning business; and Senator Inhofe for up to 30 minutes as in morning business.

Madam President, I rise today to share my serious concerns with the asbestos liability bill now before the Senate. As my colleagues know, this is not just another bill for me. This is something I spent years learning about, educating my colleagues about, and writing legislation to address.

In fact, my work on asbestos started 3 years ago this very month when I asked the Senate HELP Committee to hold a hearing on asbestos exposure in the workplace.

I started this as a very lonely battle with my good friend, Senator Paul Wellstone. We held press conferences, and it seemed like no one came. Senator Baucus and Senator Cantwell were with us, but it was a very lonely fight.

That is why today it is so great to watch my colleagues, such as Senator Daschle, Senator Reid, Senator Dayton, and Senator Leahy moving this discussion to such a productive level. They have taken the time to listen to the victims, and I think if everyone did, we would have a much more balanced bill in front of us today.

I am pleased that after working all these years with the victims, family members, and doctors, the full Senate is now engaged in a debate about asbestos. I am also pleased that many of the issues I have been fighting for have been included in this legislation. This bill does include a modified ban on asbestos, similar to the original ban that I first introduced 2 years ago. That is an important acknowledgment of what I told the Judiciary Committee did last June:

If Congress is going to prevent any future lawsuits, then

Congress must try to prevent any more asbestos casualties, by

banning the use of asbestos.

So I am pleased by some of the progress in this bill, but I am also deeply disturbed by what this bill will do to people whose lives have been torn apart by asbestos, to future victims, to family members, and to average Americans who are being exposed to deadly asbestos every day without even knowing it. After listening to the victims, hearing their stories, looking them in the eye, there is no way I could vote for this inadequate and unbalanced bill today.

As I have learned about asbestos over the past 3 years, I have been troubled by the duplicity of some of the companies, by the negligence of our own Government, and by the absolute horror that asbestos inflicts on people. Throughout this process, I have also been touched by the commitment and the optimism of victims. Some of them realize it is too late for them, but they want to make sure no other American goes through the horror they have experienced.

After working with them, I know I am not just standing on the Senate floor as a single Senator. I am standing here on behalf of all of the people I have been honored to meet and stand with over the past 3 years.

I am standing here on behalf of people like Brian Harvey, Gayla Benefield, Bret Williams, Ralph Busch, Marv Sather, and George Biekkola.

They were all exposed to asbestos through no fault of their own.

I am standing here on behalf of the family members of asbestos victims, people like Sue Vento, the wife of the late Congressman Bruce Vento of Minnesota; Sue Harvey, and LTC James Zumwalt, the son of Navy hero Elmo Zumwalt.

I am standing here on behalf of doctors who have labored to save their patients against a merciless killer, doctors like Michael Harbut, Alan Whitehouse, and Harvey Pass who not only provided medical care but worked to raise awareness and call for needed research.

I am standing here on behalf of public health leaders like Dr. Richard Lemen, a former Assistant Surgeon General of the United States; Dr. Phil Landrigan, and people like Andrew

Schneider and Barry Castleman who have worked to warn the public about these dangers.

I am standing here on behalf of researchers and advocates, people like Chris Hahn of the Mesothelioma Applied Research Foundation and advocates at the Environmental Working Group.

All of these people have stood with me at press conferences and have testified before Senate hearings, calling for us to help the victims and to ban asbestos. We have a real obligation to them.

I am standing on the Senate floor today to make sure the Senate does right by people who have been wronged.

Let me share one of their voices with my colleagues. In July 2001, the HELP Committee held that hearing that I requested on workplace safety and asbestos exposure. One of the witnesses was Mr. George Biekkola of Michigan, a World War II veteran and a community leader who helped bring a hockey rink to the children of his community.

Those of us who were at that hearing 3 years ago will never forget what he said. He broke down several times as he read his statement, but his message was clear. He told us he had spent 30 years working at the Cleveland Cliff Iron Company in Michigan. He operated a hard rock drill and was exposed to asbestos dust. He was forced to retire at the age of 60 because asbestos had scarred his lungs and reduced his lung capacity by one-third. At that hearing, he told us:

I thought I'd be spending my retirement traveling out West

with my wife, hunting deer up in the mountains. But today I

can't.

He said he could not exert himself because his heart was weak and that he had to be careful because a simple case of pneumonia could kill him. He told us:

This isn't how I thought I'd be spending my retirement, but

when I think about the other guys I worked with--I guess I

came out lucky.

He said:

I'm here today to tell you my story so that maybe someone

else working in a mine or a brake shop or a factory won't

lose the things I have lost.

He concluded his statement with these words:

Senators, please make sure that what happened to me won't

happen to anyone else. . . . Workers like me are counting on

you to protect us. Please don't let us down.

I am sad to report that George Biekkola died 2 weeks ago today from asbestosis and mesothelioma. Until the end, he was looking out for other victims. In fact, at his funeral last Saturday his family displayed a photograph of him testifying at that Senate hearing.

George is not with us today, but his words ring as loudly now as they did 3 years ago: Senators, do not let us down.

That is why I have been working on asbestos for the last 3 years and that is why I cannot support this inadequate bill. After all the things that Americans like George Biekkola have been through, after all they have lost, after all their families have lost, after all they have done to protect others, I will not let them down, and that is why I cannot support this bill.

Before I turn to the specifics, I want to put this discussion in context. For decades we have been pumping this poison into Americans, on purpose and by accident. It has wrecked lives, families, and fortunes, and it has been a problem for many businesses. Asbestos is everywhere, and it is killing us. We have to stop putting this killer in products. We have to stop importing products that contain asbestos. We have to figure out a way to make whole everyone who has been affected by this epidemic, and we need to do it in a balanced way that gives certainty and equity to both victims and to companies.

This process has been an education for me because like many Americans I thought asbestos had been banned a very long time ago. In 1989, the EPA did try to ban asbestos, but that effort was overturned in a lawsuit from the asbestos industry. Ten years later, in 1999, reporter Andrew Schneider and the Seattle Post-Intelligencer published articles about a disturbing trend in a small mining town of Libby, MT. Residents there are suffering from extraordinarily high rates of asbestos-related disease. At many plants where vermiculite from Libby was processed and then shipped, waste rock left over from the expansion process was given away for free. I learned that people used this free waste rock in their yards, in their driveways, and in their gardens.

This picture that I have with me today is Justin and Tim Jorgensen. They are climbing on waste rock that was given out by Western Minerals, Inc., in St. Paul, MN, some time in the 1970s. According to W.R. Grace records, this rock they are playing on contained between 2 and 10 percent temuline asbestos. This rock produced airborne asbestos concentrations 135 times higher than OSHA's current standards for workers.

We need to do right by Justin and Tim, and those are the people I think about when I look at this bill.

I learned, in fact, that our country is far behind others. The United States remains the only industrialized country besides Canada that has not yet banned asbestos. More than 30 million pounds of asbestos are still today right now consumed in the United States each year. I learned that asbestos is still found today in over 3,000 common products in the United States, including baby powder, cosmetics, brake pads, pipes, hairdryers, ceiling tiles and vinyl flooring.

It is still legal in 2004 to construct buildings with asbestos cement shingles and to treat them with asbestos roof coatings. It is still legal today to construct new water systems using asbestos cement pipes imported from other countries. It is still legal today for cars and trucks to be made and serviced with asbestos brake pads and linings. Workers in this country are still being exposed to dangerous levels of asbestos. According to OSHA, an estimated 1.3 million employees in construction and general industry face significant asbestos exposure on the job today. Asbestos, in fact, has taken a particularly large toll on the people of my State.

According to a recent report by the Environmental Working Group, King County has the fourth highest number of deaths related to asbestos in the country. Three other counties, Kitsap, Pierce, and Snohomish, all rank in the top 100 for asbestos-related deaths. Overall, Washington State ranks eighth in asbestos-related deaths nationwide. Just last week in Spokane, WA, our State department of health announced that 100 former workers at a vermiculite factory likely inhaled deadly asbestos fibers and should seek advice from their doctors. They also warned that children and spouses who lived with those workers could become ill from particles that were carried home with the loved ones on their clothing, on their hair, and their skin.

Given the known dangers of this mineral, we should all be asking why are we still using it? Why are we still adding it to products on purpose where there are perfectly acceptable substitutes? Americans in every walk of life and in every corner of this country have been exposed, and we have to protect them. That is why I have worked to do a series of things over the past few years.

On June 18 of 2002 I introduced the Ban Asbestos in America Act. I reintroduced that bill again last May as S. 1115.

I do thank all the Senators who have cosponsored my bill: Senators Baucus, Boxer, Cantwell, Daschle, Dayton, Durbin, Feingold, Feinstein, Hollings, Jeffords, Lautenberg, Leahy, and Reid.

I have pushed the EPA to warn homeowners about the dangers of Zonolite insulation, which today is in the attics of as many as 35 million homes, schools, and businesses.

I have urged the EPA to warn brake mechanics about the deadly asbestos dust they are exposed to on the job today.

I have asked OSHA to increase its efforts to enforce existing regulations that attempt to protect automobile brake mechanics.

I have shared my concern with legislators in Canada, the country that is the largest source of America's asbestos imports.

I testified at a hearing on Libby, MT, and I testified before the Judiciary Committee last July.

Asbestos liability is a real problem. It is a problem for victims, and it is a problem for companies. We need a balanced solution.

Unfortunately, the bill that is before us today falls short in six ways. First

of all, it is unfair to victims because the awards are too small, even smaller than many would get if they were allowed a day in court.

Second, it could lock future victims out of getting help because the trust fund is inadequate.

Third, it keeps Americans in the dark about the dangers of asbestos. It does not include the education campaign that we know is needed and that I have been pushing for over the past 3 years.

Fourth, it falls short on research, tracking, and treatment for asbestos diseases.

Fifth, it makes family members jump through too many restrictive hurdles.

And sixth, it allows insurance companies to place liens on the awards family members receive, unfairly reducing the award they deserve, and treating them much differently than other Federal compensation programs.

Let me take a few minutes to discuss each of those in detail. First of all, as I said, the awards are too small. Many people who had their lives torn apart by asbestos will actually do worse under this bill than they would in court. For example, awards for lung cancer victims who have more than 15 years of exposure to asbestos are limited to $25,000 to $75,000, even though most of those victims will die within a year.

Victims with asbestosis who have lost 20 percent to 40 percent of their breathing capacity, many of whom will be disabled for life, will receive only $85,000. That is far less than their lost wages and medical costs. This bill gives them less than they deserve. At the same time, it blocks the courthouse door to victims who have staggering medical bills, lost wages, and other damages. I do not see how Congress can leave asbestos victims worse off than they are today, but that is what this bill will do.

Second, the trust fund is too small to compensate all the victims, but that is just one of the problems with this trust fund. I believe a successful trust fund will provide fair and adequate compensation to all victims and would bring reasonable financial certainty to defendant companies and insurers. To do that, the trust fund must include four things: Fair award values, appropriate medical criteria, adequate funding, and fast processing.

The system for processing claims must allow victims to get prompt payments, without the complications, time, and expense of a traditional lawsuit. Unfortunately, the trust fund in this bill falls far short of what is needed. I have already discussed how the award values are unfair.

In addition, the trust fund is not adequately funded. In fact, the trust fund in this bill has been slashed dramatically from the original Hatch legislation. In the Judiciary Committee's bill the trust fund was $153 billion. But in this bill we are being asked to vote on the trust fund has been slashed by over $40 billion.

Now, the trust fund didn't shrink on its own. It was reduced after closed-door negotiations that included only one side, the defendant companies and the insurance industry. It was not based on the actual needs of victims. Instead, it was based on what the insurers and businesses were willing to pay. This one-sided agreement reduced the funding provided in S. 1125 by more than $40 billion.

Making matters worse, an additional $10 billion in contingent funds does not become available for 24 years. The Senate should not adopt a policy of adjusting award values just to meet an arbitrary and artificial limit reached in a back room with only one side present.

Not only was this figure arrived at in an unfair way, but it is clear it is not enough to meet the needs of current and future asbestos victims.

The Congressional Budget Office has estimated the cost of this bill at $134 billion. This bill provides only $109 billion. So there is a significant shortfall already. But there is very good reason to believe this shortfall will be even larger. Recent claims in the Manville trust show much higher than expected claims for many asbestos diseases. Those claims also show that recent mortality and morbidity data increase the likelihood that the number of asbestos-related diseases and related claims will exceed current estimates.

If this fund becomes insolvent it will leave victims without the help they deserve and without the help they need. Because of that possibility, last year Senators inserted a number of protections during the Judiciary Committee markup. Tragically, very tragically, the bill before us today throws away all of those carefully crafted bipartisan protections.

For example, we had protections for victims in case the trust fund became insolvent. Those protections in the Biden amendment were stripped from this bill.

We had protections that guaranteed that asbestos victims would preserve their legal rights until the trust fund is operational. That is important because if this bill becomes law, it will end up in court and there will be no mechanism for victims and their families to get help while this law is tied up in court. We solved that problem with the Feinstein amendment, but again those protections were stripped from this bill.

So overall this trust fund is inadequate. If we are going to lock the courthouse doors to victims, we have to be 100 percent certain the trust fund will have enough money to cover all of the 600,000 current claims and the thousands more that may be found later. This is especially important because asbestos diseases have a very long latency period, often decades long, making it hard for us to predict today who will need help in the future. If we pass this inadequate trust fund, my constituents and hundreds of thousands of Americans will be left out in the cold with only the fading memories of their loved ones to carry them through this tragic ordeal.

My third concern with this bill is it keeps Americans in the dark about the dangers of asbestos exposure. This bill completely drops the education campaign that was in both of my asbestos bills. One of the reasons why asbestos takes such a deadly toll is because people are unaware that they're being exposed to it.

Ralph Busch, a constituent of mine, exposed himself and his wife to asbestos when he renovated his home. He never knew about the dangers until he happened to read a story in the Seattle Post-Intelligencer. Today, his dream house is abandoned, his credit is ruined, and his health is a constant worry. Ralph Busch didn't do anything wrong. He couldn't have known about the danger of Zonolite insulation. There is no way that Ralph Busch could have known that by buying and renovating an old house he would eventually expose his family to dangerous levels of asbestos.

We must make sure others do know about this public health risk by providing additional resources to educate the American public about the dangers of worksite and home exposures to products that contain asbestos.

We must also provide safety information to homeowners on what they can do to prevent asbestos exposures at home, particularly in the attic and basement.

In addition to homeowners, many workers are exposed to asbestos on the job. Often they are not aware of the danger, and they don't have the protective equipment they need.

I am heartened to hear that EPA, ATSDR and NIOSH are now proactively reaching out to consumers and workers to warn them to stay away from vermiculite attic insulation. But, I am very concerned that the EPA, prodded by a request from the law firm of the former acting agency administrator, is considering revising its ``Guidance for Preventing Asbestos Disease Among Auto Mechanics'' to convey the false impression that brake repair work is no longer a risk.

Clearly, any effort by the EPA to downplay these risks flies in the face of current congressional intent regarding the inherent health problems with exposure to asbestos in the workplace. I sincerely hope that EPA will not bow to the pressure of the industry and in fact strengthen its guidance for brake mechanics.

My fourth concern is that this bill does not do enough for research, tracking and treatment.

I want to thank Senator Hatch for including some modest resources in his latest version of the bill--which should be used to establish mesothelioma research and treatment centers around the country. Yesterday I was pleased to hear Senator Hatch say that he would be willing to explore additional funding for asbestos research and treatment

centers. These centers will be critical as the medical community works to develop new treatments and protocols for the variety of deadly cancers and diseases that exposure to asbestos brings to workers and their families.

Unfortunately, not included in S. 2290 are the resources needed to track the victims of mesothelioma and other asbestos causing cancers, and to conduct additional research about the harmful effects of this deadly material.

These are areas that doctors and other experts have told me time and again we must invest in. I heard from some of those doctors last month at a press conference I held, which Senator Reid and Senator Dayton attended. At the press conference, Dr. Bret Williams of North Carolina said, ``As a doctor, a cancer patient, a husband and father, I am asking my government to take a stand. Fix the problem. Give us hope. Fund a mesothelioma research program. Please invest in a cure.''

A surgeon from Detroit, Dr. Harvey Pass, told us that progress on asbestos diseases requires funding, and he said that funding, ``remains absolutely insufficient to set up the type of collaborative approaches that already exist with lung cancer, breast cancer, prostate cancer, and colon cancer.''

The fourth problem with this bill is its inadequate support for research, tracking and treatment of asbestos diseases.

My fifth concern with this bill is the way it treats family members. Under this bill, family members of victims will be forced to jump through an additional series of hoops, reducing the likelihood they will ever receive an award.

Let us remember that these family members have lost loved ones. In many cases they are vulnerable themselves because they came into contact with asbestos fibers through a family member. Take the case of Susan Lawes. Her father was a pipe fitter and was exposed to asbestos on the job. When he came home from work, asbestos fibers were still on his clothes. He would walk through the door after the end of a long day and give his daughter a hug. Last month, Susan was diagnosed with an asbestos disease. As she told me,'' I am literally dying because I hugged my dad.''

Susan and many people like her are not treated fairly under this bill. The children and the spouses of workers should not have to prove five years of exposure to asbestos from their husbands and fathers as they would under this bill. They also should not be forced to appear before a special Physicians Review Board in order to determine their medical condition and whether they are eligible for a compensatory award.

It is the same for people in Spokane, WA. Spokane is one of the 22 sites that EPA has determined is still contaminated. Why are we forcing these innocent victims of take-home asbestos exposure to jump through extraordinary hoops to determine their eligibility of an award?

My fifth concern is the unfair way this bill treats family members-- making them jump through hurdles that reduce the chance they will ever get the help they need.

Finally, this bill allows insurance companies to reduce any awards that victims actually receive--something that is not found in similar federal plans.

This bill allows insurance companies to place liens on the awards that victims and family members receive.

I find it unconscionable that health insurance companies and other entities can recoup their costs by placing liens on the awards family members receive in compensation for their loss of a father, a husband, a son or a daughter.

These workers were often the only breadwinners in their households, but this bill tells their surviving family members that they can be sued by their health insurance provider for a substantial part of an award--an award that as I've shown may already be inadequate.

What is especially disturbing is other federal compensation programs do not allow this type of action, but for some reason, asbestos victims are being given fewer protections. For example, the awards provided to victims in federal compensation programs like the Radiation Exposure Compensation Act, the Energy Employees Occupational Illness Compensation Program Act and the Ricky Ray Hemophiliac Relief Fund Act are not subject to liens by workers compensation insurers. I don't know why the authors want to treat asbestos victims differently, but I do know that it is not fair, and it's one of the reasons why I can't support this bill.

In the end, this bill falls far short of what victims deserve. The awards are too small. The trust fund is inadequate. It fails to educate Americans about the dangers of asbestos. It falls short on research, tracking and treatment for asbestos diseases. It puts unfair burdens on family members, and it allows insurance companies to reduce a victim's award.

I have been fighting on this for years, and it makes no sense that we could squander this moment with a bill that is so inadequate. George and Gayla and Ralph and Marv and Bret and Brian deserve so much better, and I will continue to fight for them.

Regardless of what happens with this bill, the one thing we must do is ban asbestos, and I assure my colleagues that I will keep fighting for that. I do want to pass a law. We need a real solution. I don't want companies going bankrupt. I don't want victims going without the help they need. I still think we can do it, and I will continue to fight for a balanced and fair bill that will do right by victims across the country. We have an obligation to them and their families. I have been fighting for them for the last 3 years. No matter what happens this week, I am not going to stop now.

I yield the floor.

I ask unanimous consent the order for the quorum call be rescinded.

Mr. President, all of us believe that the current system for compensating asbestos victims is not working well and that legislation creating a fairer, more effective process is needed. However, this bill, S. 2290, is not that legislation. In its current form, it does not create a system which will fairly and reliably compensate seriously ill victims of asbestos exposure.

This is not a balanced approach to the asbestos problem which comes from negotiations between business and labor. The bill reads as if it was dictated by the defendants solely for the benefit of the defendants. In fact, there have been no serious negotiations for months on the central issues fair levels of compensation for seriously ill workers, and adequate funding for the asbestos trust to make sure that injured workers actually receive what they are promised.

The only issue on which any progress has been made is the administrative structure of the compensation program. Senator Specter deserves great credit for convening a series of discussions on this topic involving both labor and business. However, as long as the compensation values are unreasonably low and the amount of money in the

trust is grossly inadequate, improving the way in which that money is distributed to individual victims cannot make an otherwise bad bill acceptable.

Since the Judiciary Committee voted out a bill in July, the process has moved backward, not forward. While I had serious objections to the committee-passed bill, the Frist bill is much worse. It reduces the funding level of the asbestos trust by more than $40 billion dollars-- $153 billion in the committee bill versus $109 billion in the Frist bill. They stripped out the major improvements we made in committee the two Feinstein amendments and the Biden amendment. They made a mockery of the committee process.

The bill before us does not reflect what is necessary to compensate the enormous number of workers who suffer from asbestos-induced disease, it reflects only what the companies who made them sick are willing to pay.

The Republican sponsors of this bill are insisting on compensation levels which are far below what these seriously ill workers deserve, and less than what they are receiving, on average, under current law. These are people whose health has been destroyed and, in many cases, whose lives have been substantially shortened, by asbestos induced disease. Shortchanging them would be extraordinarily cruel.

There is also no adequate guarantee in the legislation that sufficient funds will be available to fully pay all injured workers who are eligible to collect, even at the low levels of compensation in the bill. For injured workers and their families, this proposal is clearly worse than the current system.

The real crisis which confronts us is not an asbestos litigation crisis, it is an asbestos-induced disease crisis. Asbestos is the most lethal substance ever widely used in the workplace. Between 1940 and 1980, there were 27.5 million workers in this country who were exposed to asbestos on the job, and nearly 19 million of them had high levels of exposure over long periods of time. That exposure changed many of their lives. Each year, more than 10,000 of them die from lung cancer and other diseases caused by asbestos. Each year, hundreds of thousands of them suffer from lung conditions which make breathing so difficult that they cannot engage in the routine activities of daily life. Even more have become unemployable due to their medical condition. And, because of the long latency period of these diseases, all of them live with fear of a premature death due to asbestos-induced disease. These are the real victims. They deserve to be the first and foremost focus of our concern.

All too often, the tragedy these workers and their families are enduring becomes lost in a complex debate about the economic impact of asbestos litigation. We cannot allow that to happen. The litigation did not create these costs. Exposure to asbestos created them. They are the costs of medical care, the lost wages of incapacitated workers, and the cost of providing for the families of workers who died years before their time. Those costs are real. No legislative proposal can make them disappear. All legislation can do is shift those costs from one party to another.

Any proposal which would have the effect of shifting more of the financial burden onto the backs of injured workers is unacceptable to me, and I would hope that it would be unacceptable to every one of us. The key test of any legislative proposal on asbestos claims is whether, by reducing transaction costs, it will put more money into the pockets of seriously injured workers and their families than they are receiving under the current system. That should be our goal.

I believe that a properly designed trust fund to compensate workers suffering with asbestos-induced disease can move us toward that goal. To do so, it must use inclusive medical criteria which cover all workers who have sustained real injuries, it must provide fair levels of compensation for all workers who have been injured, and it must guarantee that all injured workers who qualify will receive full compensation on a timely basis. At best, this legislation satisfies only one of these three criteria.

Any proposal which would merely create one new large underfunded trust in place of the many smaller underfunded bankruptcy trusts which exist today is unacceptable. Injured workers need certainty even more than businesses and insurers.

One basic test of fairness is how a compensation system treats the most seriously injured victims. S. 2290 fails this test miserably. Those who meet the medical criteria for the most serious illnesses would still not be fairly compensated.

Mesothelioma is a horrible disease which is usually fatal. There is no question that it is caused by asbestos exposure. In the current system, mesothelioma victims often receive multi-million dollar settlements. This bill will limit them to much less.

The gravest injustice done by the bill is to lung cancer victims. We all understand how devastating lung cancer can be. The issue with lung cancer is causation. If a worker had substantial asbestos exposure and was a non-smoker, his primary lung cancer was almost certainly caused by asbestos. Yet the bill would pay these victims as little as $225,000. In many instances, that will not even cover their medical expenses. They are currently receiving much higher judgments in the courts, and fairness requires far more compensation for their life threatening diseases than this bill offers.

If the worker smoked--and unfortunately most of these workers did-- the combination of tobacco and asbestos exposure dramatically increases the likelihood of contracting lung cancer.

Workers who smoke and have been exposed to asbestos are over four times more likely to get lung cancer than smokers with no asbestos exposure. Asbestos is clearly a major contributor to their lung cancers. Yet, this bill would give them next to nothing. Under the terms of this bill, they would receive between $25,000 to $75,000. That is outrageous. These victims, who must have at least 15 weighted years of asbestos exposure, deserve much more--they deserve a level of compensation that reflects the reality of their conditions and their families' needs.

Even when the worker's lungs show specific evidence of asbestos disease, raising the probability that the asbestos exposure significantly contributed to the lung cancer to a virtual certainty, the legislation would pay them as little as $150,000. That is incredibly low. These lung cancer victims have literally had their lives shattered by asbestos. They must be fairly compensated in any legitimate national trust proposal. They are not in the Frist proposal.

To make matters even worse, the legislation would actually allow workers' compensation and health insurance companies to seek reimbursement out of the meager amounts these seriously ill workers receive from the asbestos trust. Thus, the worker and his family may literally end up with nothing despite his undeniable injuries. At the very least, the bill should protect the compensation paid to a worker by the trust from subrogation claims.

Proponents of this bill argue that in the tort system too much money is going to victims who are not really impaired and not enough is going to those who are truly sick. But their self-proclaimed concern for the truly sick certainly is not reflected in this bill. Lung cancer victims are ``truly sick'' by anyone's definition. In fact, a large percentage of them will have their lives cut short by this disease. Yet even in these cases, the most compelling cases, S. 2290 provides grossly inadequate compensation. I am deeply troubled by the way this legislation treats even the sickest of the sick.

Not only does this bill not provide adequate levels of compensation, but it does not even contain sufficient funding to pay the compensation levels contained in the bill. According to a CBO analysis, it is underfunded by over $25 billion dollars. CBO's cost estimate is $140 billion.

Furthermore, there is no guarantee that this bill will raise even the $109 billion which the sponsors say is necessary. The bill establishes contribution tiers for defendant corporations of various sizes and asbestos histories. However, the Senate has no hard information about the number of companies which will fall in each tier. Thus, the aggregate amount which will be raised to fund the asbestos trust is highly speculative. Under the proposed funding plan--some corporations--such as Halliburton and WR Grace--can escape accountability for their wrong-doing by paying only a small percentage of

the amounts they are currently responsible to pay. As long as companies such as Halliburton and Grace are permitted to pay billions of dollars less than their fair share, it will be extremely difficult--if not impossible--to fund the trust at a level sufficient to fairly compensate those who have been poisoned by asbestos.

Similarly, the manner of determining the amount that individual insurers and reinsurers will contribute to the trust is also questionable. It appears to unfairly benefit some companies at the expense of others. The way it has been structured, it may actually create unintended legal obstacles to the expeditious payment of billions of dollars into the trust by reinsurers with the largest asbestos exposure.

These funding concerns seriously jeopardize the financial viability of the trust and its capacity to compensate injured workers in the manner promised. In fact, there is no guarantee that the dollars will be there to fully pay all eligible victims what the legislation promises they will receive.

If the asbestos trust does become insolvent, workers will have to wait years before they can return to the tort system. Under the Biden amendment adopted by the Judiciary Committee, if the trust was unable to fully pay claims in a timely manner, injured workers would immediately regain their right to seek compensation in the courts.

Unfortunately, that right--so essential to fundamental fairness--has been removed in the Frist bill. Victims will have to wait as long as 7 years after the trust becomes insolvent before they can take their claim to court. Many of them will be dead by then. And, if they do return to court, the workers will not have the same rights that they do today. Under the Frist bill, seriously ill workers can find themselves in an intolerable legal limbo through no fault of their own. All of us should find that unacceptable.

The danger that the asbestos trust, as structured in this legislation, will be unable to meet its financial obligations to the victims is very real. There is a serious risk of a substantial shortfall in the early years, when nearly 300,000 pending cases will be transferred to the newly created national trust for payment. The trust may not have the resources to pay those claims in a timely manner. Payments to critically ill people may be delayed for years, and the trust itself may become insolvent.

The best way to reduce the enormous financial burden on the trust in the early years would be to leave many of those pending cases in the tort system, especially cases which were close to resolution. That would be fair to the parties in those cases and it would greatly improve the financial viability of the trust. Unfortunately, the Frist bill would do just the opposite. It fails to respect stare decisis even in cases where substantial judicial determinations have already been made. In many cases, it would actually abrogate jury verdicts and existing settlements, requiring the injured workers to start from scratch. That is terribly unfair. It will also greatly increase the burden on the asbestos trust.

Unfortunately, there is so much wrong with this legislation that I could literally discuss the shortfalls for hours. However, that would serve no purpose. Clearly, the issues are too complex and too interrelated to fix in a few days on the Senate floor. For that reason, the Senate should reject the motion to proceed to S. 2209 and send the parties back to the drawing board. The only way to produce an acceptable bill is to seriously address the legitimate concerns of injured workers as well as the concerns of the corporate defendants.

The Frist bill clearly fails that test. It is not a bill which reduces the high transaction costs in the current system, and thus puts more money in the pockets of injured workers while reducing the costs to businesses and their insurers. That would be a real solution.

It is a bill which merely shifts more of the financial burden of asbestos-induced disease to the injured workers by unfairly and arbitrarily limiting the liability of defendants. Sick workers would receive lower levels of compensation than they receive on average in the current system, and payment of even those lower levels of compensation would not be guaranteed. That is no solution at all.

I suggest the absence of a quorum.

Would the Senator be good enough to yield?

The Senator has appropriately pointed out the explosion of increased costs of tuition for the sons and daughters of middle- income families. This is basically a middle America working-class family issue. As the Senator has pointed out so well and so eloquently, it is at the heart of the hopes and dreams of every family in this country.

I am sure the Senator would agree with me, when we talk about education, we are not only talking about a better educated society; we are talking about individuals who are going to be the stewards of our democratic institutions and also the individuals who are going to be able to lead this country in terms of the international global economy and beyond that; individuals who are going to be able to be in the Armed Forces of this country.

The Senator is mentioning the increases in tuition. The Senator pointed out the costs to families: in many families, the children cannot go to college. And if they are able to go, they experience increased debt.

I understand the Advisory Committee on Student Financial Assistance has said as a result of the increase in tuition, there are almost 200,000 young individuals, young men and women, sons of working class families in this country, who effectively have been priced out of the opportunity to continue in higher education. And reports point out the enormous increase in indebtedness of even those who are going to schools. We know that over the last 10 years, indebtedness has actually almost doubled. The average debt families have when they graduate is some $17,000.

I am wondering if the Senator remembers that it was a few weeks ago the Senate passed a $2.4 trillion budget. We had an opportunity to provide a helping hand to students in this country who come from working families, by increasing the Pell grants for the young people in this country. It was the judgment and the decision of this body and the Republican administration, the Bush administration, to effectively say no, we will not increase the Pell grants, in spite of the fact--I know the Senator remembers this--that this President, when he ran for the Presidency of the United States, said in the final days of the campaign in the State of New Hampshire, that he was committed to increasing the Pell grants to $5,100. He said, in the State of New Hampshire on August thirtieth, in the year 2000: Pell grants significantly affect the ability of a child to stay in college or to stay in school. The future of a child eligible for a Pell grant will be affected by the size of the Pell grant. I am going to ask Congress to bolster first year aid from $3,300 to $5,100.

Does the Senator from Connecticut remember when we had an opportunity to do something about helping middle-class families in this country, to provide some help and assistance to them, to ease the burden of the increase in tuition, whether there was any effort from the Republican side to increase the Pell grants to provide this important help and assistance to these qualified young students who are seeking to continue their education?

Does the Senator agree with me that at one time we, as a nation, made a commitment to every child in this country that if they were qualified to get into any institution of higher learning based upon their academic standing, a series of grants and loans would be available to them so they would be able to go to the school, the college to which they were admitted?

We saw over the period of time going back to the 1970s, going back to the time this whole program, the Pell grants and the Stafford loans were established, a balance between grants and loans so young people of talent could go to the schools and universities to which they were admitted.

Now if I could direct the attention of the Senator from Connecticut, what we have seen is a complete abdication of that commitment in the fact of the declining purchasing power of the Pell grants, and in the reduction of the Work-Study Program. Fundamentally we are saying to the young people, and particularly to their parents: You are on your own. Go on out there and borrow, and pay a good deal for that additional $5 billion you will borrow. And

there is just going to be paying the interest and indebtedness for those young people in the years ahead.

Would the Senator be good enough to indicate whether he agrees with me, that the whole pattern in the recent years under Republican leadership has been to reduce the purchasing power, the value of the Pell grant, and to require the students to borrow a good deal more, which has meant an increase in indebtedness to these students? And would he not agree with me, when you visit schools and colleges and you meet with these young people around recess time or lunchtime, they are talking about their loans rather than talking about their books?

Madam President, if I may ask the Senator, we have talked about higher education. Does the Senator not agree with me that we have seen cutbacks in support for K- 12 as well? We have seen the failure of funding No Child Left Behind, which has left 4.6 million children behind. So we are leaving the children behind in higher education. We are leaving them in No Child Left Behind.

I would like to ask the Senator from Connecticut as well whether he is not concerned, as I am, about the failure to fund the Head Start Program which reaches out and helps 4-year-olds and 5-year-olds prior to the time they enter kindergarten, to give them skills and help in building confidence so they can gain knowledge and understanding in their early years in school.

Would the Senator not agree with me that what we are talking about is basically failing almost a whole generation? There are 54 million elementary and secondary school students across this country, and then we have the millions of children going on to college. And now we are talking about the millions who are eligible for the Head Start Program, who failed to receive the support they need.

Would the Senator agree with me that money isn't everything, but it is a pretty clear indication of a Nation's priorities? We make choices about what the Nation's priorities are. What we are doing now, with the conclusion of the budget which we passed here, is failing the children in higher education. We have failed children with No Child Left Behind. We are failing the children with the funding of the Head Start Program. What does that say about the commitment of this Nation in terms of the young people? And to their families, hard-working American families, what does that say about our willingness to reach out a helping hand to these families to make sure the education system is going to be the best that it can be?

If the Senator will yield for a final question, I think the Senator from Connecticut has the floor. Before we leave this discussion, I have heard the resolution of the Senator from Connecticut, his determination. I would like to ask him whether he intends to battle with the rest of us in the remaining days of this session to try to provide that kind of help to these working families in these areas of education. Does he not agree with me that this ought to still be a priority, and that even as we are coming into the critical times of the appropriations committees, we will have some opportunity to continue this battle and call Senators to account to find out whether they believe it is the responsibility of this institution to continue to invest in the children of our country and to continue the opportunities of education, and that is the highest priority we have here? Do I hear from the Senator that he will join in that battle and continue to fight for those children?

Mr. President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. President, might I inquire as to how much time I would have to speak on the floor now?

Mr. President, last week the Labor, Health, and Human Services Subcommittee of Appropriations held a hearing in my State of Iowa. I wanted to learn more about the medical and financial ramifications of chronic conditions such as obesity, tobacco use, mental illness, and lack of physical activity. I come away from that hearing and other hearings that we have had in Washington, and others we have had going back probably over a dozen years, even more convinced that we need to refocus our health care system toward wellness and prevention. I am convinced now more than ever that we really do not have a health care system in America. We have a ``sick care system'' in America. I will say more about that in a moment.

At the hearing and at others before that, we heard the familiar litany of grim statistics associated with these chronic conditions. But we also heard from Iowans, students and adults, who are taking matters into their own hands, doing innovative things to promote wellness and healthier living in their communities.

In the United States we spend in excess of $1.5 trillion a year on health care. Fully 75 percent of that total is accounted for by chronic diseases, such as heart disease, cancer, diabetes. What these diseases have in common is, in so many cases, they are preventable. In the United States we fail to make an up-front investment in prevention, so we end up spending hundreds of billions on hospitalization, treatment, and disability.

This is foolish, and clearly is unsustainable. We need a new paradigm in American health care. We need a prevention paradigm. As I said, right now we have a sick care system in the United States. If you get sick, one way or another you get care, either through health insurance or through Medicaid, Medicare, or something like that. Of course we know we have 43 million uninsured who do not have access, even, many times, to our sick care system. But what we need is a genuine health care system, a system focused on wellness and prevention, a system focused on keeping you healthy in the first place.

Consider the cost of major chronic diseases, diseases that in many cases are preventable. The annual costs for cardiovascular disease are about $352 billion; for obesity, $117 billion a year; for diabetes, $132 billion a year; for smoking, more than $75 billion a year; and for untreated mental illness, $79 billion a year. Indeed, major depression is the leading cause of disability in the United States.

If I bought a new car and I drove that car off the lot and I never maintained it, I never checked the oil, I never changed the oil, I never checked the transmission fluid, never got it tuned up, I just drove it, you would think I was crazy, not to mention grossly irresponsible. The commonsense principle with an automobile is: Pay a little now, keep it maintained, or you are going to pay a whole lot later for a new engine.

It is the same with our national health priorities. Right now our system is in a downward spiral. We are not paying a little now so we are paying a whole lot later. If we are serious about bringing down health care costs, we must get people access to preventive care. We must give people the tools they need to stay healthy. We must build incentives throughout the entire society, incentives for prevention and wellness. This will take a sustained commitment from government, schools, communities, employers, health officials, and of course the food industries. But this can have a huge payoff for individuals and families, for employers, for society, and for the economy at large.

One condition in particular is fast becoming our Nation's leading public health threat: being overweight and obesity. Several weeks ago a new study came out that confirms what many of us already know. Obesity, unhealthy diets, and lack of physical activity have made us a nation at risk. The Centers for Disease Control and Prevention did a study that determined that poor diet and lack of physical activity are now the second leading cause of death in the United States, contributing to at least 400,000 deaths annually.

I think this chart shows the startling statistics very clearly. This is from the Centers for Disease Control and Prevention. The actual cause of death in the United States in 1990 from tobacco was 400,000. By the year 2000 the cause of death by tobacco was 435,000. But look at this. Poor diet and physical inactivity, in 1990: 300,000 deaths; by 2000, 400,000 deaths. So while the cause of death from tobacco use had gone up less than 10 percent in 10 years, the cause of death from poor diet, obesity, and physical inactivity went up 33 percent in one decade. It is now the second leading cause of death in the United States.

One of the authors of this study was the Director of the Centers for Disease Control and Prevention, Dr. Julie Gerberding. The media and the American public increasingly recognize this growing crisis. Seemingly every day I open the paper and read about the public health impacts of chronic disease. A recent cover of the Economist magazine hit the nail on the head. If we don't act now and act aggressively, the progress we have made in promoting health and fighting disease, all of the public health gains we have made in the last couple of hundred years, will be totally wiped away.

I thought this illustration from the Economist showed the progress of humankind as we became more and more like modern man--and then here we are, descending into obesity and overweight. That was the cover of the Economist last December entitled ``The Shape of Things to Come.'' Of course, here he is, drinking his supersized soft drink, walking down the road to chronic illness and disease.

In 1990, 1997, and 2002, the Centers for Disease Control and Prevention did a State-by-State obesity prevalence study. I am going to show three charts which are startling in how they depict what is happening just in the last 14 years in the United States. The first chart I will put up is obesity in the United States among adults in 1990. In 1990, the dark shaded areas here are obesity rates between 10 percent and 14 percent. The light blue areas are States where we have less than 10 percent incidence of obesity. For the white States we just didn't have data. But as you can see, in 1990 no State had a prevalence of obesity over 15 percent--not one. All of the States were less than 15 percent or less than 10 percent. That was in 1990.

Now let's take a look at 1997. By 1997, here we have some orange States coming up now which we didn't see in 1990. The orange States mean that the prevalence of obesity is over 15 percent. Now we have these States with a prevalence of obesity over 15 percent. Remember all those blue States that were less than 15 percent? It is now 15 to 20 percent. So all of the dark areas are now over 15 percent. And only a few States here are from 10 percent to 15 percent, but no State has an incidence of less than 10 percent now. That is just in less than 7 years. That is 1997. Keep in mind now we have these three States, and the majority of the States now are between 15 and 20 percent.

Let's take a look at what happened in 2002. Here is the real shocker. Look at all the orange States. These are the States now where the incidence of obesity is 20 percent to 24 percent. Now we have three red States where the incidence is over 25 percent. We have a few States here below 20 percent. Now we have no States less than 15 percent.

If I could have the first chart of 1990, I want to show the comparison. Here we have in 1990 no States with an incidence of obesity of over 15 percent. By 2002, according to the Centers for Disease Control and Prevention, three States are over 25 percent, the vast majority of States are over 20 percent, and the rest of the country over 15 percent. In 1990, we didn't have one State that fit the pattern we see in the United States now. That is what has happened in 14 years. Now we see even some States exceeding 25 percent. We see the trend.

Actually, the story is even worse than this. The data on these charts is based on self-reported weight, which tends to be significantly understated, as you might imagine. As catastrophic as this chart of 2002 appears, it actually understates the extent of the obesity epidemic. If you use reported data rather than self-reported, obesity rates are much higher. In fact, using this scientific approach, we learned that almost two out of every three Americans are either overweight or obese. Think about that. Right now, only one in three Americans is within their weight range for their height.

Obesity takes a terrible toll on a person's health. It can lead to diabetes, heart disease, high blood pressure, cancer, and numerous other chronic diseases. Incredibly, obesity causes more chronic conditions than either smoking or alcoholism.

This is what this chart shows. This is again from the Centers for Disease Control. We have a higher incidence of the number of chronic conditions associated with health behavior. The No. 1 incidence of chronic condition is aging. The older you get, the more liable you are to get a chronic condition. Aging from 30 to 50 has the highest incidence of a chronic disease. Second only to that is obesity, and it is almost the same. Being obese is like aging from 30 to 50. If you are 30 years old and you are obese, you might as well be 50 years old in terms of susceptibility to a chronic disease.

Here is smoking. It is down here quite a ways. Just being overweight is down here. Drinking, past smoker, and obesity. In fact, right now obesity is, as I said, the second largest killer of people in this country.

Thus far, Congress has not been willing to adequately take on the challenge of obesity and the challenge of encouraging healthy choices and lifestyles. It is time for the Senate to lead in a new direction by encouraging wellness and prevention.

To that end, I am currently working with others on several initiatives to create a healthier workplace and a healthier environment for our Senate family. In March, I sent a letter to the Senate Rules Committee to request that signs be placed next to elevator buttons and at the entrances to stairwells and at the base of escalators encouraging people to use the stairs. Just the other day, I heard someone on the elevator say they wanted to use the stairs, but they didn't because they couldn't find them.

The other day I happened to visit Secretary Thompson down at HHS. They have signs right there by the elevators and the doors encouraging people to take a flight of stairs rather than riding the elevator.

I have also been in discussions with the Senate cafeteria on the matter of food labeling. To their credit, they already have food labeling available on their Web site. But I would like to see the Senate cafeteria go the next step by including nutrition information on menus or handouts that customers can pick up when they enter one of the Senate restaurants. If Ruby Tuesday's can do it and put all of the information

on their menus, why can't we in the Senate cafeterias?

I have also developed what I called the ``Harkin Health Challenge'' to promote wellness for my staff here and back in Iowa. This is a comprehensive workplace wellness program that addresses stress management, nutrition, physical, wellness screenings, and, of course, smoking cessation.

Some believe there should be no role for the government in curbing obesity. Some believe this is a matter of personal responsibility. I don't agree. We can take steps to encourage and facilitate healthy lifestyles. We can make sure ordinary Americans have the tools and information they need to make informed healthy choices and be more responsible for their own health.

We are about to pass a highway bill of approximately $300 billion for highways, roads, and bridges. We tried to get an attachment to that bill to promote bike paths along our highways. I saw a figure the other day about how much less young people ride bikes today than they did 15 or 20 years ago. Ask yourselves as you drive down one of our busy thoroughfares or streets: Would you ride a bike down there during rush hour traffic? Of course not. You look to the side and there are no bike paths. There are no walkways for people to have access. We have streets now that do not even have sidewalks by them, let alone a bike path. I think when we invest taxpayers' money to build highways, roads, and bridges, we ought to mandate that, as a part of that, there ought to be an access for bike and/or walking paths next to those streets.

I have already introduced legislation that would require menu labeling in chain restaurants, but I can already hear objections that this will be too expensive. It will be a burden on businesses, for example, to put all of their information on menus. I mentioned that Ruby Tuesday's already announced plans to implement food labeling in its restaurants. Clearly they don't consider this to be too expensive. They made a hardheaded corporate decision that it was both doable and good for business.

I remember the same objections which were raised when Congress first passed the Nutrition Labeling and Education Act to require labeling of retail foods and packaged foods. But lo and behold, years later, the sky has not fallen. To the contrary, consumers like labeling. When they go into the grocery store, they pick up boxes, cans, and packages and they read the nutrition labeling. They rely on those labels to help them make informed healthy choices.

Consumers say they want nutrition information available when they make menu selections at restaurants. Yet, while they have access to excellent nutrition information at supermarkets when they go to buy packaged foods, when they go to a restaurant, consumers have to resort to guessing and estimating.

What about our special responsibility to the children? The food industry spends more than $12 billion a year bombarding our kids with advertisements through television, movies, magazines, and the Internet. I don't have to tell you that they are not advertising broccoli and apples and orange juice. The majority of these ads are for candy and fast food--foods that are higher in sugar, salt, fat, and calories.

Today, specialty marketing firms have made a science out of influencing children to buy a particular candy or to go to a particular fast-food restaurant. Yes, parents have a responsibility to shield their kids from harmful influences of all kinds. But what about corporate responsibility? What about corporate ethics? What about our Government's responsibility to make sure our children have a healthy environment?

Children, especially those under 8 years of age, don't always have the ability to distinguish fact from fiction. The number of TV ads that kids see over the course of their childhood has doubled from 20,000 to 40,000; meanwhile, the percentage of children who are overweight or obese has also doubled. The percentage of overweight or obese teens has, in fact, tripled. The United States right now has a higher percentage of overweight teens than any other industrialized country.

We also need to take steps to reduce the junk food that our children are getting at schools. The GAO found that 43 percent of elementary schools, 74 percent of middle schools, and 98 percent of high schools have vending machines, school snack bars, or other food sources outside of the school lunch and school breakfast programs. We know that when kids have access to vending machines and snack bars and a la carte lines at school, bad things happen. Kids' consumption of milk, fruits, and vegetables goes down, and their intake of sodas and fried foods skyrockets. This is one more area where Congress has a responsibility to intervene to protect our children.

I had this brought home to me the other day when it was pointed out that a 20-ounce size soft drink--Coke, Pepsi, all the soft drinks--has the equivalent of 15 teaspoons of sugar. I ask: As a parent, would you send your kid to school during the day and say, Here are 15 teaspoons of sugar, please eat this. No parent would want to do that. Yet when that kid goes to school and buys a 20-ounce soft drink, that is exactly what they are getting. And they will probably have two of them during the day. That is 30 teaspoons of sugar in 1 day.

Go home, take 15 teaspoons of sugar, put it in a cup and see if you would like to eat that. Or do 30 teaspoons, the equivalent of what a lot of kids are drinking today. No wonder obesity among teenagers has tripled. No wonder our teenagers in this country are more obese than teenagers in any other industrialized country in the world.

We have a responsibility; parents have a responsibility; schools have a responsibility. But it is Congress that funds the school lunch and school breakfast programs and the nutrition programs. This year we will reauthorize the nutrition program, school lunches and school breakfasts. We will reauthorize that this year.

What will we do as Senators and Congressmen to help promote healthier eating and healthier lifestyle choices among our kids in school? Do we have a responsibility? You bet we do. I hope we will step up to that responsibility when the nutrition reauthorization bill comes through the committee to the Senate.

In the coming months, I will be announcing a package of bills and initiatives focusing on wellness, focusing on preventing chronic diseases. The emphasis will be on nutrition, physical activity, mental health, tobacco cessation. It will stress prevention, consumer awareness, responsible marketing practices, and wellness programs in schools, communities, and the workplace.

We face an obesity epidemic. We face an explosion of largely preventable chronic diseases. We face health care costs and health insurance premiums that are skyrocketing. All of these things are related. We have to meet our responsibilities. We as Senators must set a good example: Walk more, use the stairs more, have information on all of our menus in all of our Senate cafeterias so we know exactly how much trans fats, calories, sodium we are getting with each meal ordered, and also to do what we can in our official capacity to help support wellness and to support healthy lifestyles among our kids in school and at daycare centers. That is where it starts. If we can get the kids and teach them healthier lifestyles, healthier eating choices early on, chances are that is what they will follow when they grow older.

It seems to me the golden rule of holes is this: When you are in a hole and you find it is getting up to your shoulders or up to your head, stop digging. We have dug one whopper of a hole in health care in this country by failing to emphasize prevention and wellness. It is time to stop digging. It is time to focus our attention on healthy lifestyle, prevention, wellness, providing incentives for businesses.

I hear about tax incentives for business to do this, and that we need more tax incentives for businesses to provide wellness and prevention programs at the worksite for people who work in small and large businesses. We need to provide the kind of support for our public schools to provide better choices for our kids, also.

I thank the indulgence of the Chair. I wanted to take this time to talk about this and to alert my fellow Senators that I will be introducing a package of wellness bills and I have been working with the majority leader, a doctor, Senator Frist, on some of

these items, especially about getting signs posted about trying to use the stairs more often, about getting Senators wearing pedometers and doing more walking, for us to set a good example for the rest of the country.

I am hopeful we can also use the nutrition reauthorization bill this year to make some changes in how we approach how kids eat and what they eat at school and what is available to them in terms of vending machines, soft drinks, sugar, salt, that type of thing, and to get them eating healthier at an early age.

I yield the floor and suggest the absence of a quorum.

Madam President, what is the business before the Senate?

Madam President, I want to take a few minutes and talk about an issue off the pending matter, if I may, before the Senate. While it may not be germane to the subject matter before the Senate, the matter I want to talk about is extremely germane to the American public and what they are interested in. That is education. I particularly want to focus for a few minutes on higher education.

We are now coming into the months of April and May when students will be wrapping up their academic year and taking exams. Those who are in their last year will be graduating and going out into the private sector or graduate school.

As we focus on graduation and the termination of an academic year, I think it is important to take stock of the financial availability of most students to access higher education in this country, and what we are doing about it as we conclude this academic year. It is also important to ask what will be available next year to students who are either starting higher education or are continuing their higher education.

What are the economic challenges these individuals and their families face as it relates to affording college? I want to spend a couple of minutes describing what the present situation is as it relates to college cost, how important it is to have access to college, and where we are today in our ability to try to make college more accessible and more affordable.

In the 21st century we must have the best educated and best prepared generation of Americans we have ever produced if we are going to be highly competitive in a global marketplace and have a growing and expanding economy to produce goods and services of increasing value; that is, more technology and more sophistication to offer the 95 percent of the population which lives outside the United States all over this globe.

We have seen tuition and fees at public colleges and universities go up 26 percent over the last 38 months. Since President Bush took office on January 20 of 2001, tuition and fees at public colleges and universities has gone up more than 25 percent--close to 26 percent in 38 months.

Last year alone, on average, tuition at a public university rose 14 percent, and over 10 percent in my own State of Connecticut. The average total cost of attending a public 4-year college is now over $9,000, and for private colleges the average cost is $24,000.

As tuition rates increase, so does the portion of a family's income needed to pay tuition. On average, 29 percent of a family's income goes toward public university tuition and 41 percent goes toward private university tuition. Just think about that: almost 30 percent of a family's income paying a public college tuition and more than 40 percent to go to a private university or college. In comparison, a family's mortgage payment represents 32 percent of annual income. Education is now eating up more of a family budget than a home mortgage--the largest single investment most families ever make is owning their own home.

It is estimated that approximately 200,000 college-ready high school graduates will not pursue higher education this year because they do not have the resources to do it and don't have access to the various programs that may provide them some assistance.

Apart from initial affordability, students also often graduate with huge

amounts of debt. In Connecticut, the average student graduates in 4 years $15,000 in debt. The numbers are rather clear.

We are seeing a tremendous economic burden growing with each and every passing year, for families and individuals who wish to go on and get that absolutely critical higher education they need and we need them to have.

Pell grants are such a great cornerstone of the Federal financial aid system, but they are shrinking in value. Pell grants originally covered 80 percent of the cost of attending a public university. Today, at $4,050, they cover only 30 percent; and at a 4-year private college, 16 percent. Imagine that, from 80 percent down to 34 percent.

The maximum Pell amount remains stagnant at a time when tuition is going up, people are losing jobs and extra income, and when higher education is increasingly the ticket to a better life not only for the students but for us, as well.

Today, the average low-income student has an annual unmet need of almost $4,000 in college expenses, costs not covered by grants, loans, work, or family savings. These are the students that an increase in the Pell grant would most directly help.

What are we doing about this? The President's budget is clearly not in the best interest, at all, of serving this critical need that, by all accounts, we admit is necessary. I don't know of anyone who does not go back to their respective States and talk about the importance of education, the importance particularly of higher education, that people have the ability to earn that degree.

I am sure every one of my colleagues has said exactly the words I am about to share, or something similar: No one ought to be denied a higher education because they lack the financial resources. It goes to the depth of a person's drive, the depth of their character, the depth of their ambition. It ought not be the depth of their parents' or their pockets that determines whether someone can have access to a higher education. I am sure we all feel that way.

I am happy to yield to my colleague.

In response to my colleague, I very clearly remember supporting the senior Senator from Massachusetts and his amendment that would have increased the higher education budget, including, obviously, an increase in the Pell grants to meet exactly what the commitment of the President had been on this subject matter. We were unable to get that.

It is important to point out to people the effects. We have now had a freeze in Pell grants over the last 3 years, despite the President's campaign promise to raise them. I mentioned earlier that a Pell grant now pays about 34 percent of the cost of public higher education. It was at 80 percent when it was originally passed.

Let me also state what shrinking resources and rising costs have done. My colleague from Massachusetts has pointed out that the average student now finishes college in excess of $17,000 debt. As a result of freezing the Pell grant over the last 3 years, and the administration's proposal to raise freshman loan limits, we are now told that student debt could increase nationally by almost $5 billion. If we take student debt, that will now grow as a result of not having Pell grants trying to keep some pace with the increased cost of education, if students have to take out more loans, we will have student debt amount to $5 billion more nationally than presently is the case.

The President's budget also froze funding for work-study programs in addition to Pell grants. We watched, over the last 38 months, tuition costs go up at public universities 26 percent. Costs go up and the President's budget says: No, no, I am not going to give you a nickel more for Pell grants. Freeze work-study. Freeze Pell grants. Not a penny more for higher education despite costs going up and here is $5 billion more debt to shoulder as you leave higher education to go out and try to get a job, get into the workforce, raise a family.

I don't know of anyone who believes that is a sound investment in the 21st century. I thank my colleague for raising those points.

Madam President, the Senator, again, is exactly correct. As I noted earlier, we are talking about families who are middle-income families, who are lower middle-income families who are out there struggling to make ends meet. As I pointed out, the increased cost of a public education, as well as a private education, in 38 months has gone through the ceiling, outpacing the cost of anything else. Inflation has been relatively flat in the last number of months with the economy where it is. But yet in the midst of all that, we have seen a 26- percent increase in the cost of going to a private college or university, and a 14-percent increase to go to a public institution.

So we have seen this tremendous increase in a family's income going toward education and tuition. As I pointed out earlier, 29 percent of a family's income goes to pay for public university tuition; 41 percent goes to pay for private university tuition.

The debt these kids are faced with, their families are faced with, is an additional strain on families who are already paying so much to see to it their kids can get the education they need. And we know so clearly the importance of education. You find yourself almost wondering why you have to say this. I don't know of anyone who believes that for a single second this country's ability to maintain itself in a leadership position economically and politically can be sustained without the proper education. Thomas Jefferson said, 200 years ago this year, in 1804, any nation that ever expects to be ignorant and free expects what never was and what never possibly could be.

If you believe that had validity in 1804, you certainly must believe that in 2004 it has even more validity, not only in terms of embracing and supporting our constitutional principles, but also as to the importance of being able to get the education to produce the goods and services of high value which 5 percent of the world's population, which lives in this country, will be able to market to the 95 percent of the world's population which lives outside this country.

Anyone who believes for a single second that you can deny 200,000 young people, as you will this year--almost a quarter of a million young people--the opportunity to go on to higher education because we cannot come up with a few extra bucks to put into a Pell Grant Program or a Work-Study Program--if you think America benefits from that, then you are deluding yourself. This will be the first generation where the older generation is actually cutting back on its commitments in its attempts to provide access to higher education for people in this country.

I hope in the coming days as we move through the appropriations process and the like, our colleagues will find it possible to break this freezing of the budgets to make it possible for students who are completing this academic year and thinking about next year, or thinking about graduate school, or leaving high school and wanting to go on to college--that the Congress of the United States, the President of the United States, would stand up and say: We are going to do what we can. We are going to meet that promise I made in New Hampshire in the fall of 2000 when I promised I would increase Pell grants to more than $5,000 per child. I am going to meet that promise before this term is over.

My hope is we will achieve that particular result.

I see my colleague from Rhode Island.

Yes.

Madam President, I thank my colleague from Rhode Island. He very appropriately points out he succeeded Claiborne Pell, whom the Senator from Massachusetts and I had the great privilege of serving with. The Senator from Rhode Island knows the wonderful contribution he made to millions of young Americans, Americans of all ages, but particularly young Americans.

I was not aware of what my colleague from Rhode Island told me. I think that is extremely important information. I would hope, as I am sure he does, the conferees and the American public would let conferees and the leadership here in Congress know this shortfall must not be allowed to exist if we are going to have any hope at all of meeting some of the obligations we have.

I might ask my colleague from Rhode Island, give us some indication how that is working now. Does he believe that is going to be the case? And what would be the implications of that?

Madam President, I believe the Senator has the floor.

Madam President, I am responding to a question. Without yielding my right to the floor, I am asking my colleague from Rhode Island to respond to a question.

Again, Madam President, I am very grateful to my colleague from Rhode Island for pointing out matters I had not addressed; that is, these other areas of higher education.

This is an assault on higher education. But more importantly, it is an assault on young people in this country who are going to provide the well-being. I always like to point out this

Nation historically, even during times of our most significant crises, has found a time and a place to support higher education. I have often pointed out one of the first acts of Congress in 1789, as we were still struggling to get on our feet, was the Northwest Ordinance, which set aside lands for education. It was a rather remarkable accomplishment. Think of all the things the first Congress had to deal with. Education was one of the top priorities on their list.

Then right in the middle of the Civil War--imagine the country divided, wondering whether we would survive as a nation--the Congress of the United States passed something called the Morrill Act, which was the land grant colleges. I believe the University of Rhode Island--I know the University of Connecticut got started as a land grant college, and I know colleges all across this country got their start because of the Morrill Act. Congress found the money during the great Civil War to fund higher education.

Even before the end of World War II, before the defeat of nazism and the Japanese empire, the Congress passed the GI Bill. And think, if you will, of the investment made in those years, coming off the war years, and how we have benefitted, when you consider a generation of Americans which was able to get an education and go on, and how we have been paid back a thousandfold by the contributions of a generation of young Americans who fought in World War II, who were able to get an education, and then provide the kind of innovation and creativity and jobs and incomes that has helped us grow to the great Nation we are in terms of economic strength.

So there was the Northwest Ordinance, the Morrill Act, the GI bill, generations that understood the importance of investing in education. Here we are in the 21st century, we have a President that not only doesn't have an idea about how to increase resources for higher education, he wants to cut back on what we have. How do you explain that to the American people when we are trying to increase the opportunities for higher education?

I thank my colleagues.

I would say to my colleague, he has hit the nail on the head in talking about elementary and secondary education, beginning with, obviously, Head Start and preschool efforts. He has cited the numbers, and he is absolutely correct. But more than the numbers, when you start to talk about the dollar amounts, I think you can probably see the eyes of even the most determined listener to glaze over. When I talk about an $8.6 billion shortfall to No Child Left Behind this year alone, shortchanged more than $26 billion since passage, I am disturbed. It is the children and the families themselves that feel the shortfalls. Families lacking the kinds of investments that we know make a difference in their children's educational lives.

We know categorically, after more than a quarter of a century of watching, the benefits of the Head Start Program. It gives them that even start. When they enter kindergarten or the first grade, it puts them on a level playing field with other children who come from slightly more advantaged situations than they may have.

We know that getting Title I money into our school districts has made a huge difference to schools, and certainly we need to be doing far better on special education. But to give some idea of what these shortfalls mean, this year alone over 7,500 school districts are going to see their elementary school funding cut this July. Millions of disadvantaged children will be left behind because of inadequate resources in Title I. More than 1.3 million children won't receive afterschool services because of funding freezes that have occurred. Teacher quality, English language acquisition, impact aid, rural education all have been frozen in this country despite the increasing demands that have occurred.

The President's budget eliminates 38 programs in areas such as arts education, school counseling, small school support, dropout prevention. You don't need to tell the American public about the importance of these things. They make a difference every day. The fact is that we are just decimating these significant efforts, many of which were achieved and were created through bipartisan effort and support.

I am deeply concerned about what is happening to these younger people as they enter the school system, where we want them to have an equal opportunity to learn, where they get uncertified teachers and old textbooks, some that say today maybe one day we will land a man on the moon. We actually have children using textbooks that predate 1969 when we landed a man on the moon. Imagine in 2004, you discover your child has a science book that says that. That happens today. Or that your child walks into a biology class or chemistry class in elementary school and almost 35 percent of them in poor rural districts and poor urban districts do not have a certified teacher who is teaching.

This is the United States of America. If you want us to grow and be stronger, you are going to have to make the investments.

I thank my colleague from Massachusetts for raising these issues about both elementary and secondary education as well as higher education. The American public needs to know this.

Madam President, I commit to my colleague and to others as well. This has been an ongoing effort. It will be a continuing one. Nothing is more important. I have often said, if you can only solve one issue, I would choose this one. I don't think there is any more important problem to solve. Not that others are not important, but if we fail to address the education question effectively, then we leave every other issue in jeopardy, to chance.

That goes to the heart of endorsing and supporting our constitutional principles, our values system, as well as our economic growth.

I am not minimizing other issues. I am often asked, as we all are, what is the single most important issue we have to deal with. Obviously issues of going to war, sending young men and women into harm's way, amending the Constitution, confirming a justice to the Supreme Court are high on that list. I would place education as the No. 1 priority, a substantive issue that ought to be on every one of our lists.

I thank the Senator for taking a few minutes out of today to talk about this. There will be other opportunities to raise these concerns and these questions, and I hope that before this session of Congress ends, we will have a more effective result for the American people.