A bill for the relief of Robert J. Bancroft, of Newport Washington, to permit the payment of backpay for overtime incurred in missions flown with the Drug Enforcement Agency.

Mr. President, I hope to restate the unanimous consent request which was agreed to accurately. It is my understanding that at 4:45 we will have a vote on the motion to table the pending amendment by Senator Cornyn of Texas, and that the time be equally divided between now and then, which would be 60 minutes, 30 minutes to each side; that I am controlling the 30 minutes in opposition to the motion to table. I will yield from that amount 15 minutes to Senator Cornyn to speak during the same period. He can use that time, even if I don't have to give him the floor at the moment.

We have to understand what we are considering. I am sure people who are watching this debate wonder why we take so much time going into quorum calls and talking among ourselves trying to come to some agreement about what we are going to do. That is the way the Senate operates. We operate by unanimous consent. Everyone has to agree. Think about that--100 different Senators coming to an agreement. However, we have managed, at least to the point of bringing this to a vote.

The vote is important because the bill before the Senate right now is a bill about asbestos. Everyone knows asbestos is a lethal substance which, if inhaled, can kill you. It can cause your lungs to stop functioning, you can start to suffocate, and you can develop something like lung cancer called mesothelioma and die. People all across America, since we started using asbestos in products, have been exposed to it. Some are fortunate and they do not get sick. Others, with very minor exposure inhaling these asbestos fibers, have set off little timebombs in their lungs, and they never know when they will detonate. Victims can go for 10, 20, 30, 40 years after exposure and nothing happens; then something terrible happens. How do they know it is asbestos that causes it? Some of these conditions are only related to asbestos. Mesothelioma is one of them.

People who have been exposed to asbestos over the years have gone to court and said: The companies that exposed me to products that harmed me should be held accountable. Some courts and some juries have said, yes, they should pay; others have said, no, they should not pay. But what is the nature of our system of justice? You go to a court for your day in court, you tell them how you were injured, and you let a judge or jury of your neighbors and peers decide your fate. It happens every day across America in thousands and thousands of courtrooms.

Now comes this bill, Senate bill 852, which wants to change the way people across America will be able to recover for their injuries from asbestos. The first thing it does is to eliminate your option to go to court. As an American, you could be injured from exposure to some toxic chemical and go to court, have your day in court, and let the court decide. But if you have been exposed to this substance, to asbestos, if this law is passed, you will no longer be able to go to court.

What happens to you? This bill creates a brand new approach-- replacing the courtrooms of America with a trust fund created by this bill, administered by an agency which does not exist at this moment, which will handle hundreds of thousands of people who have been exposed to asbestos.

Some Members come to the floor skeptical that we can change a judicial system in America and eliminate access to court to hundreds of thousands of people and get it right. If we do not get it right, the losers are not going to be embarrassed Senators; the losers are going to be victims across America, people whose lives have been changed and in some cases ended because of asbestos.

I don't know of a single person in America who said: Listen, I know asbestos will kill me; let me take a whiff of it. Not one. Virtually all the victims and families I have run into were unsuspecting people-- workers on the job; a mechanic putting in an asbestos brake lining; somebody trying to put in a heating duct in a home and using an asbestos substance; asbestos shingles on your roof; asbestos tile on the floor--grinding it, cutting it, powder flying in every direction. Who knew? Who had any idea what was going on? So these victims, innocent victims, are the ones who will be affected by this bill.

It is a large bill, a bill of 393 pages. It should be because it is changing the basic system of justice in America. But this morning, this bill has become a dead letter. We are no longer considering that bill. We have a new bill. We were handed this bill this morning. It is 392 pages. It includes some 40 significant changes to the bill we had on our desks when we came to work this morning. We knew it was coming, we knew there would be a change, but these changes are significant.

Many Members believe that before we start enacting laws that are going to impact millions of victims across America, before we close down the courtrooms of America and say to people, what you used to assume was your right as an American citizen is no longer your right, we ought to be careful and we ought to take the time to get it right.

Some of the things that have been filed with this bill reflect the fact that even those preparing it really do not have it quite clear in their minds how it is going to work.

One of the amendments filed this morning, amendment 2747 by the chairman of the Judiciary Committee--I am

certain this was inadvertent--inadvertently included the following on lines 7 through 9:

(Note: I recognize that this may not be the most adequate

indicator of insurance matching liabilities--however, it is a

political reality that must be addressed.)

Does that sound like a sentence out of a law? I am sure it is not. It is a sentence from a staffer who, in preparing this language, notified someone that they were not sure what they were writing would achieve the goal they want to achieve. That happens all the time. I expect my staff to be candid with me when they are preparing a law. But it tells something. By inadvertently including this staff note with this amendment, it is clear that the people writing this bill are not sure what is in it. They are not sure what the impact will be.

What is driving this debate? Why are we so hellbent on passing this legislation at this moment? There are many good reasons, and there are many real reasons. One of the real reasons is that for many of the major corporations in America, this bill is a windfall.

This morning, Senator Bennett, a Republican from Utah, brought a chart to the Chamber and showed 10 of the major corporations in America, corporations that could be taken to court today because people were exposed to their products and have asbestos disease. He calculated how much they would pay into this trust fund under this bill against what they have said they would have to pay if they went to court. Those 10 corporations will save, with this bill, $20 billion. Do you think they want to see this bill passed? Why, of course they do. They have an economic interest in it. But the obvious question is: If they do not pay the $20 billion to victims, who will? Other companies?

Senator Bennett brought to the Senate another chart of companies that have never been sued for asbestos, never been held liable. Those companies will end up paying into this fund even though they never, ever have been sued successfully.

There is a basic unfairness here. There is a transfer of wealth in this bill from some of the largest corporations in America and a burden to smaller companies, not to mention that at the heart of this issue are hundreds of thousands, perhaps millions, of asbestos victims.

Now comes Senator Cornyn of Texas. He says: Consider another approach. Consider an approach that will look to what the States are currently doing to deal with this. Are there ways to change asbestos lawsuits so that victims get more, so that people are treated fairly, so that those who are trying to rip off the system on either side are not advantaged? And he turns to State laws. There have been several State laws, including Texas, Florida, and Ohio.

He says in his amendment: Let's establish medical criteria so that if you want to go to court, we know you are truly sick. Perhaps you cannot go shopping around for the friendliest court in your State or the Nation. He goes through a variety of different scenarios. All of them are worthy of debate.

The good thing about Senator Cornyn's amendment is it is based on the fundamental American right to have your day in court. Senator Cornyn is trying to achieve a procedural change in the courts of America which will not extinguish a basic American right to have your day in court.

I believe he filed the amendment early this afternoon, maybe late this morning. I am not certain. And now the other side is saying: That is it, we do not want to talk about that amendment anymore, let's get rid of it. They want to table that amendment.

As it is currently written, I could not support the amendment by the Senator from Texas, but I will stand with him to keep this amendment on the floor so we can try to find a bipartisan solution which does not have such great damage to our judicial system and to the people who rely on it. There will have to be significant changes in the Cornyn amendment before I would support it. But he has said to me that he is willing to sit down on a bipartisan basis in good faith to work out those differences, and he tells me there is significant support on the Republican side of the aisle for that effort.

Wouldn't that be the best outcome--an outcome that is bipartisan, one which tries to work out differences between both sides, keeping in mind the innocent victims, tries to make this system a little fairer, not basically abandoning our judicial system, which this new bill, new version of the bill we have been handed, would do? That is a sensible approach.

I am going to support the efforts of Senator Cornyn at this moment to resist a motion to table, with the understanding that before I will make any commitment to vote on his final amendment, we will have to sit down and try to work out our differences. It is not too much to ask.

Do you know how long this program is supposed to affect America? For 50 years. Is it worth a few hours, maybe even a day, to get it right? I believe it is.

I yield the floor.

I announce that the Senator from Colorado (Mr. Salazar) is absent due to family illness.

Reserving the right to object.

Mr. President, I am glad we have finally come to this portion of the argument because it reinforces a lot of things that have been said on this Senate floor over the last several days. It really comes down to a very basic question, the question as to whether this bill has been carefully crafted, whether it contains enough money in the trust fund to compensate the hundreds of thousands of asbestos victims who will have to count on it.

I have raised this issue repeatedly as to the $140 billion figure. There are reliable estimates of the actual cost over a 50-year period of time that almost double the amount of this trust fund, some even higher.

Senator Kent Conrad on our side of the aisle is well respected as the ranking member of the Senate Budget Committee. His background as the head of taxes in his State of North Dakota, his own personal education and experience give him extraordinary credibility when it comes to issues of cost and issues involving accounting. He has made a convincing case to our caucus and to those who are listening on both sides of the aisle that the $140 billion that is part of this trust fund is not nearly adequate to the task.

Of course, if it isn't, what choices do we have? Senator Specter suggested on the floor the other day that if $140 billion wasn't enough to pay the victims, then we will pay the victims less. Today when I asked him a similar question, he said there are other options. You can say to these victims, if you have taken away their lawsuit that they worked on for a year or two, they have to stop their case in court. Then put them into this new trust fund system, and then the trust fund system fails them at some later date and doesn't pay them all they are entitled to, you can say to these victims: You can go back and start over in court now.

That is cold comfort to a family that is doing its best to take care of medical bills and lost wages and burial expenses for someone they love.

They have made a point over and over that under no circumstances will the Federal Government step in and make up the difference. I guess that verbal assurance is good, but we know there is always that possibility at some later date if this program doesn't work, if it fails, that someone will say we can't go back to the companies and ask them to put more money in the trust fund; we can't turn the victims loose; the right, compassionate thing to do is for the Federal taxpayers to step in.

It is not a farfetched argument, and it is one we have to consider as a possibility.

Now a Republican Senator steps forward, Senator Ensign of Nevada, raising a valid point of order, a point which goes to the heart of the funding of this bill and how it will pay out any benefits that might accrue in the future.

I would like to note some of the points that have been made during the course of this debate that I think are worthy of repetition and, for those following the debate for the first time, worthy of note.

The Congressional Budget Office has warned us of the significant likelihood that this asbestos trust fund will fail.

In a letter to the chairman, who spoke just before me, they wrote:

The proposed trust fund might or might not have adequate

resources to pay all valid claims. There is a significant

likelihood that the fund's revenues would fall short of the

amount needed to pay valid claims, debt service, and

administrative costs.

So we are saying to hundreds of thousands of victims and their families: Trust us, we have created a trust fund, and with that trust fund, we will take care of your needs in the future. There is enough money, the proponents of this legislation say, but the Congressional Budget Office, looking at the victims, their injuries, and the compensation promised in this bill, came to a different conclusion. They concluded:

There is a significant likelihood that the fund's revenues

would fall short of the amount needed to pay valid claims. .

. .

As Senator Specter said on the floor the other day, one of the options, then, is to pay the victims less.

One of the reasons we need to take a look at this trust fund shortfall is when we look at the elements that are behind it, the claims and administrative expenses are likely to exceed contributions to the asbestos trust fund. The upfront claims will far exceed contributions.

Understand, people who are told they have to leave the courthouse and can no longer pursue a claim in court will have to turn to this trust fund. There is no place else to go. They will come in large numbers, but the amount that is being contributed to the fund by businesses is not going to match the demand. At the outset, claims will far exceed contributions, so the trust fund will have to borrow substantial amounts of money.

How much? The trust fund is supposed to be $140 billion. There are estimates that the interest and administrative costs may reach $52 billion, more than a third.

Small adjustments in amount and timing of assumptions quickly bankrupt the trust fund. If you guess wrong how many people are sick and how often they will file their claims and in what numbers, the estimates of the solvency of the trust fund could fail. It is unrealistic to assume that the trust fund will ever terminate.

The reasons for likely trust fund shortfalls: The Congressional Budget Office didn't count dormant claims that may surface once this trust fund is created, exceptional medical claims, or claims of family members of workers exposed to asbestos.

CBO's estimate of the number of future cancer claims is likely to be too low, according to consulting firms that have taken a look at their formulation.

The CBO's estimate of the percent of nonmalignant claims that will receive a cash award is likely to be very conservative.

Take a look at this chart. This chart tells the story. The red part of the graph is trouble. The red part of the graph reflects the liability, the amount that should be paid out that cannot be covered by the revenues coming into the trust fund.

So we make a promise to people. We say to them: Give up your claim in court, come to this trust fund and trust us. Yet when we project the needs of these victims against the revenues coming into the trust fund, we see a dramatic shortfall.

The fund stops paying claims in 2009. Claims filed in 2009 and all later years will not be paid. Too many claims, not enough revenue into the fund.

Let me indicate what this shortfall can mean. Mr. President, $150 billion--remember, this trust fund is funded at $140 billion--to fall short $150 billion is a substantial miscalculation. In present value terms, it means we would have to put $50 billion into the fund today to cover the $150 billion shortfall over the 30-year life of collections and 50-year life of disbursements under this trust fund. So this is a significant shortfall.

Keep in mind that we are saying to people: You cannot continue to go to court to be compensated; you have to turn to a trust fund with a hole in the pocket.

Let me tell you how badly others have miscalculated the number of asbestos cases that can be filed.

I remember Johns Manville, a big company, based in Colorado. They were one of the first firms hit because they sold a lot of asbestos products. When they went bankrupt, they tried to create a separate fund to pay off all the victims of Johns Manville products, their workers, and others. They set aside money, and in order to set aside a proper amount they had to speculate and give some calculation about how many people would be making claims for asbestos injuries.

The original range of claims went from 50,000 to 200,000. That is what they said they would ultimately have to cover. The claims received through the summer of last year were almost 700,000. They had estimated a high of 200,000. Almost 700,000.

The recent estimate of the total number that could be paid is 2.1 million. So how can those who have written this bill say with any degree of reasonable certainty that we know how many people were exposed to asbestos at some point in their lives and will later come and make a claim? Because for many people, they will live a long time with asbestos fibers in their lungs, ticking timebombs that could go off 10, 20, 30, 40 or 50 years after exposure. There could be anyone on the Senate floor today harboring in their lungs asbestos fibers. Those fibers may or may not cause a problem. We just don't know because for years no one paid close attention.

Many people were told it is safe. Expose yourself to asbestos, it can't be a problem. Some were misled. Some operated out of ignorance. But the fact remains. Johns Manville, in calculating its liability for its own trust fund, blew it. Instead of 200,000, it was 2.1 million.

(Mr. COBURN assumed the Chair.)

This is not the only case of miscalculation. For coal miners, we created a program called black lung. I know it pretty well because I have met a lot of coal miners suffering from it in my home State of Illinois. Exposure to coal dust, inhalation of coal dust causes lung problems, so we tried to set up a separate fund for these miners to take care of it. We estimated it was going to cost us about $3 billion to compensate all these coal miners. Our actual black lung payments through 2004 are $41 billion.

So if some of us come to this floor skeptical of this trust fund, skeptical of this $140 billion, and wonder if we can say to victims in good conscience, we are going to stop your going into court and force you into a trust fund which will pay you, when we know full well how many times we failed in estimating how much these trust funds need to have banked away, I think that really goes to the heart of this whole issue.

Also, a critical element here is why we are on this bill today. People who are following this Senate debate maybe tune in to watch C- SPAN, follow the debate in other places, and some will say to them: What is the Senate talking about today? They may report: Well, it is about asbestos.

Sure, it is an important issue. But my guess is most families across America would probably step back and say: I sure wish they would talk about the cost of health insurance for families, businesses, and individuals or maybe the cost of this heating bill I have in my hand, where the cost of heating this home has doubled since last year or maybe they ought to talk once in a while about this Medicare prescription Part D Program which has become a mess for seniors across America. Why aren't they talking about pension security when our neighbors next door worked a lifetime at that plant, and then the plant went into bankruptcy and dumped the pension, and now this man and his wife, who thought they had done everything right in life, don't have retiree benefits and don't have health benefits? Why aren't they talking about those things?

No, the Senate is engaged in a debate on the asbestos bill which I have characterized as a clash of the special interest titans--huge companies on both sides, for and against asbestos; insurance companies for and against this bill; trial lawyers opposing the bill; others supporting the bill; labor unions by and large opposing the bill with two or three exceptions. Why are we on this bill today? Because what drives this debate is what is at stake. What is at stake is not just recovery for hundreds of thousands of asbestos victims but a lot of money.

Earlier today, a Republican Senator, Mr. Bennett of Utah, came to the Chamber with two charts which I thought really told the story. I don't have those charts, but I have summaries here. What Senator Bennett pointed out is that for about 10 of the largest companies affected by this bill, this bill is a windfall. It is a windfall in this respect: They estimated how much each of these companies would have been required to pay out to asbestos victims if they went through the regular court process, and then they estimated how much the same companies would pay into the trust fund we are talking about today. And the difference is startling. For these 10 companies, the difference is $20 billion. In other words, if they paid the claims of victims in court, they would have paid $20 billion more than the amount they paid into the trust fund.

One of the companies which has been publicized recently is U.S. Gypsum. The reason people talk about it is they recently did a public filing, and here is what they said. They said: If we are held liable in court for all the asbestos claims we think could be filed against us, we believe we would pay out something in the range of $4 billion. But if this bill passes, we will be required to pay into the trust fund $797 million.

What a dramatic difference. So for this company, the passage of this bill is worth more than $3 billion. That is the reason we are here.

We are here because so many of these corporations know that if this bill passes, their exposure to liability is reduced dramatically. The obvious question is, If they don't pay the $20 billion to victims, who will make up the difference? And that is the point made by Senator Bennett earlier in the day. He gave the names of eight or nine other companies, much smaller, some of which have paid small amounts to asbestos victims in court cases in settlements, some which have paid none. In each case, these companies had to step up and pay substantial amounts of money, ranging from $75 million to $578 million.

So here is one of the largest companies, U.S. Gypsum, with the largest exposure--$4 billion--paying about $800 million into the fund.

And then you take a look at a company named Foster Wheeler, a pretty well-known company. They will pay out $80 million in their experience in asbestos over the next 10 years. That is their estimate, I should say, $80 million. And they are asked to pay $578 million into the fund? Where is the fairness in that, that these companies with little or no exposure have to pay so much money while companies with so much exposure pay dramatically less? That is the fundamental unfairness in what we are discussing in the Senate here this evening.

I might also add, many of us are struggling to try to absorb this bill because this morning, as we had expected, the chairman filed a new version of the bill. We had been debating this for months, maybe years, and this morning comes a new version which, according to the chairman, makes 47 significant changes in the first bill we were handed.

Think about that for a moment. When you consider how many lives and how many families are dependent on our doing the right thing in the passage of this legislation, we are rushing to pass a trust fund that will take these families and individuals out of the courthouse into a trust fund.

The Presiding Officer is a medical doctor from the State of Oklahoma. We may not see eye to eye on a lot of things, but I listened as he speculated on what the exposure might be on this trust fund. He has made some statements as to whether something should be covered or should not be covered. But what he said, at least in the course of the Judiciary Committee hearing, is that there is some real uncertainty about how many people will be filing claims and what those claims will be worth.

That is what troubles me. I think there is more we can do to make this system more fair. First don't abandon America's court system. Don't abandon our system of justice. Don't conclude that 200 years of a court system in America is not proof positive that it is a valuable part of our American heritage and a valuable part of America's life. Start with our court system.

If there are abuses, and I will concede there are abuses, let's deal with them. I will tell you point blank, based on my legal education of long ago, if you want to recover for injury in court, you must have injuries or damages. Simple exposure to asbestos, which could include all of us, is not enough. You have to show some injuries or damages before you recover. That is why, in our State of Illinois, we set up what we call the pleural registry, and that says if you have been exposed but you are not sick, no symptoms, come in and sign up. If you don't contract an illness or something that is fatal, then you will have escaped any problem related to asbestos. If you do, you can come through the court system and you will

not be held back by any statute of limitations.

Some have argued about where lawsuits should be brought. That is a valid issue. We should debate it. Some have argued about what attorney's fees should be. That is a valid issue. But there have been some misstatements on the floor about attorney's fees, and I wish to clarify them. Some have said on the floor that 58 percent of all the money generated in these asbestos verdicts and settlements goes to lawyers. Technically, that is true, but look more closely: 31 percent is legal fees claimed by the victims' attorneys; 28 percent or 27 percent is from defense attorneys.

I practiced law for a number of years, and it was not uncommon for a person of modest means to come in my office and say: I have been injured, I need to file a lawsuit. And you would say to them: I know you can't put up thousands of dollars to pay for all the time I have to put in as a lawyer to get ready to go to court, argue the case, do everything lawyers do, so I will take it on a contingent fee basis. If you win, I win. If you lose, I lose.

For many people, that is the only way they can come to a courtroom. They can't put up $10,000, $20,000, $30,000 to pay for a team of lawyers to prepare a case. They just don't have it. So contingent fee cases are all across America.

If you file a case in Workers' Compensation in Illinois, you may pay, I guess--it has been a few years since I have done it--around 20 percent in attorney's fees. An ordinary case for personal injury might be a third. That is usually what the lawyer's fees are when it is a contingent fee basis. To say that asbestos victims are paying 31 percent in attorney's fees doesn't suggest to me that there is a built- in scandal here; it suggests that is fairly ordinary and routine in the legal practice.

It is interesting to note that for every dollar paid out, the defense--companies that are hiring defense attorneys--is receiving 28 cents on the dollar. That is an indication to me, with 30 cents and 28 cents, the victims' attorneys and the defense attorneys are comparable amounts. But having said that, if there is a discussion about how to make those attorney's fees more fair, I am willing to sit down and work on it.

I also believe we ought to look at the States that have already stepped forward and said: We are not going to abandon our courts, we are not going to abandon our system of justice, we will make changes so it works better--States such as Florida, Texas, Ohio. They give us good guidance. Senator Cornyn of Texas gave us an amendment--and may come back with another version of it soon--which addresses that particular approach. I would feel a lot more confident in making certain that our court system worked a little better than abandoning our court system to set up a trust fund that is not paid for.

I hope my colleagues in the Senate on both sides of the aisle will seriously consider the point of order raised today by my Republican colleague, Senator Ensign of Nevada. It is a valid point of order. It goes to the issue as to whether $140 billion is adequate, whether the payout of this money is consistent with the budget rules of the Senate.

I yield the floor.

Mr. President, I respect my colleague from Texas and those others who believe this amendment will be a preferable way to deal with the asbestos morass we now have. I, however, based on my best judgment, cannot agree. It perhaps will make some businesses happy and some plaintiffs' lawyers happy, but the one group I clearly think will not be as well treated and will not have the same guarantees and protections will be the victims.

We are not here to represent any one group. We are here to look at a litigation problem that has gone wild. It has lost control. It is not operating properly. I think the trust fund concept is the only way to make this thing have any sanity about it.

As I understand it, the medical criteria will help a great deal in making sure that claims by people who are not sick are not maintained in court, that they can be dismissed short of trial. That would be a tremendous benefit. I will not dispute that. It would certainly reduce those kinds of lawsuits.

However, it would have no coherence. It seems to me that two people could file a lawsuit, and one could draw a favorable judge or favorable jury and win

$50 million and the other one, I suppose, could win nothing or $1 million. I do not know that it would represent any predictability for the defendant companies so they could show on their balance sheets precisely what they are going to be looking at in the future as they go forward.

It also would maintain the current litigation method of handling the lawsuits. That, to me, is where we have had the most difficulties because 60 percent of the money that is being paid out is being eaten up by lawyers. So if you have lesser numbers of lawsuits but they are bigger and will be more intensely litigated, the defendant companies have to hire expensive attorneys to defend themselves, and the plaintiffs' attorneys, facing top defense attorneys, will charge their normal high fees, as the case may be, and you end up back where we are, as the RAND Corporation said, with 60 percent--58 percent--of the money being paid out in expenses, which is what I would like to see avoided.

The attractiveness of the legislation that is before us is we take the 60 percent that has been eaten up and we take probably 50 percent of that and allow it to go to the victims. They get it, with certainty, in an equal amount. So if you have mesothelioma, a deadly disease, under this system, you could file your claim, with a doctor's certificate stating you have mesothelioma--a fairly indisputable diagnosis--and you get $1.1 million; half of it within 30 days and I believe the other half within 6 months before you die.

As I noted before, why have we had so many mesothelioma widows here? It is because these lawsuits take years. I am not just saying that. This is a fact. These cases take years, and people die of diseases or become disabled without receiving money.

Under this bill, you will be able to get your money promptly. The proposal, as I understand it, will not necessarily fix that. Maybe the cases could be settled.

Again, I say to my distinguished colleague from Texas, we agree on so much of this. I certainly will say this. His proposal would be far better than the current system.

There is no doubt about that. The current system is absolutely indefensible. It is to the point that it is immoral, and the Congress has no higher responsibility than to make sure our legal system is working effectively. It is not happening that way.

I believe the medical criteria in the base bill before us is not tight enough, that it will still allow a large number of people to maintain lawsuits for diseases they were going to get anyway from other natural causes or misbehavior such as smoking. They were going to get those diseases anyway, and they want the asbestos fund to pay for it. When it is connected to asbestos exposure, and it can be shown scientifically, this bill allows for that. It actually allows for people to draw on the fund who probably shouldn't qualify for it.

I am for tightening up those criteria. I am for eliminating the frivolous, baseless lawsuits where people are not sick, which this Cornyn bill would do. But I do believe it would undermine one of my highest goals in this legislation, and that is that we would be in a position where you make a claim like you would in workers' compensation. You have so much injury, you get so much money, and you get it promptly. And the maximum attorney's fee would be 5 percent.

I don't see how you can limit attorney's fees if you are going to have a long, competitive trial. The victims are going to need top- flight attorneys, and the defendants are going to need top-flight attorneys. The juries are going to be calling these cases. Some of them are going to say big verdicts, and some of them are going to say little verdicts. We will have more inconsistencies, more jackpot justice than I would like to see.

I am reluctantly of the opinion that this would not be the best approach. If this bill gets any worse, I would certainly see that the suggestions of the Senator from Texas would be preferable. If this bill were to flounder and isn't successful, I certainly would agree that his proposal is better than the current law and would support it. Right now, the Specter legislation is preferable.

I yield the floor.

Mr. President, how much time is left?

Mr. President, I will yield the floor when Senator Specter returns. I will say a couple of things. First, under this criteria bill--which has good criteria and some very good provisions in it--veterans are not going to be able to recover. Veterans don't have anybody to sue, and they would be very much disadvantaged. That is why they oppose it.

No. 2, we would still have litigation, and the reason litigation now ceases to be wise is because the defendants are prepared to pay. It is basically not a question so much of how they are responsible--whether anybody is responsible for damages; they are prepared to pay, but they want to know a predictable amount that they are paying, No. 1, and they want to have it paid fairly.

Under this system, if you meet the illness criteria and you are able to proceed with your litigation, one person with asbestosis, who seriously has a disability, maybe is on oxygen--as I have known people to be as a result of breathing asbestos--they might get $100 million, literally. Another person may get zero. So I think we have this aberrational way that a certain limited amount of resources would be utilized to help people who are sick.

We are at a point now where we have created a circumstance that would allow a fairly even workmen's compensation type distribution of it. Secondly, it allows the litigation spasm to continue. Yes, it will take out the bogus claims from people who are not sick and who don't need to be in court. Those claims will be able to be removed. But they will have large numbers of trials of those who actually are injured by asbestos, and the lawyers on both sides have to be compensated. We know today that those compensation arrangements turn out to eat up 58 percent of the cost of what the defendant companies pay out. In other words, many of these companies that are in bankruptcy, and many more on the verge of bankruptcy and could be pushed into bankruptcy, are paying out to victims, but only 42 percent of what they are paying out gets to the victims.

So I was hoping in this legislation--my vision has always been, how can we not fix this system? How hard is it to take this 60 percent, allow the business community some predictability and certainty over 30 years, and get more money to the victims quicker and faster? If, instead of 300,000 pending lawsuits, let's say you have now 150,000 pending lawsuits, that is a lot of lawsuits. That is a lot of lawsuits. And they are pending by the thousands in certain districts in America. People are not going to get trials right away. They are not going to be able to say I want to have my trial today; I have a serious asbestosis; I am on oxygen; I may die soon, or I have mesothelioma, and this is a deadly disease, and the doctors say I only have 9 months to live, and I want to have my case tried. It is not going to happen that way. It is not happening that way now, and it will not under this bill.

Therefore, people are going to die and suffer in poverty for years before they get any payment; whereas, in this bill, we can get the money to the victims promptly and fairly, in an objective way, with plaintiffs similarly injured, similarly situated, getting similar amounts of money--generous amounts

of money. As I noted, a mesothelioma case gets $1.1 million. Half would be paid within 30 days, without any need for an attorney whatsoever. You go in with a medical claim, and if an attorney is involved, the maximum he could get is 5 percent.

My colleague from Texas said we modified the attorney fee rule, and I was at fault for that. Senators Specter and Leahy and others asked we consider the fact that when cases are appealed, they tend to become complex and require quite a bit of lawyer time, and we ought to allow lawyers to have more than that, if the judge approves it. So I thought that was a reasonable request. We have amended it only to that small degree. It is not an opening up of attorneys' fees under this bill.

I am concerned that some of the primary advantages of asbestos reform would not be availed under this amendment. That is why I am reluctantly not able to support it. I hope we can continue with the bill and that other people will bring forth thoughtful amendments, as Senator Cornyn has, and those who joined with him and presented it in a thoughtful way. But as I have stated, I don't believe it is the proper vote.

I yield the floor.

Mr. President, I serve as a member of the Budget Committee, and I am very pleased that Chairman Gregg put in language that allows for this budget point of order. I think it has a potential in many of our entitlement programs to help rein in abusive spending. But this is quite a different matter, I say to my distinguished colleague, Senator Ensign. He is such a terrific asset to this Senate, a great member of the Budget Committee, and is rightly engaged in trying to make sure we don't throw away money. I hope I have been an ally with him in that process.

But this is not Government money. This is money put up by the defendants who are paying out every day in judgments and lawsuits all over America. They have said: We are tired of having 58 percent of the money we pay out not get to the victims. Only 42 percent gets to the victims. We ought to create a system to allow victims to get more money, and we can have a little certainty as to what we pay out. So they agreed to pay into this fund. It is not the Government's money. It simply would be administered by the Department of Labor and, therefore, apparently the experts say it qualifies for this objection.

Let me say what happens if there is a shortage. What happens is the fund fails, the FAIR Act ends, and the plaintiffs get to go back to court, as they are today, and file their lawsuits. And the Government is not on the hook for that money, if there is a shortfall, No. 1.

Senator Ensign correctly guesstimated that more money would come back from foreign company profits into the United States with his tax relief bill than CBO did. Well, I would say this. I can guesstimate this. At one point, I represented plaintiffs. I see that the lead plaintiff lawyer in the history of this litigation has made an estimate on it and he has concluded there is plenty of money in this trust fund. Why is it likely, in my opinion, that there is enough money? People say there is not enough money here and it is going to fail. Why would I conclude that may not be so, that probably the fund may survive?

First, those who are putting money into it think it is enough. They would not subject themselves to this if they didn't think it would work. Second, CBO estimates it, and why would they estimate something in this nature? The reason is, somewhere in the 1970s--probably early 1970s--people became sensitized to the dangers of asbestos. They learned about it and crackdowns were undertaken to limit exposure. By the time 1980 got here, very strict rules were imposed--and that was 26 years ago--on how to handle asbestos, and exposure today is nil compared to what it was in the 1940s and 1950s, when people were unknowingly placed in positions where their health was destroyed as a result of massive exposure to asbestos fibers.

So it is obvious we have very little asbestos in our society today. If you even see somebody take asbestos out of a building today, they have masks on. All of this stuff is required by OSHA so that not one fiber will touch them. I think the likelihood is that we are going to see a continued decline in the asbestos claims and, as a result, I think it is possible--although I am certainly not an expert--that CBO, plaintiff lawyer Dicky Scruggs, and others are correct to conclude there is enough money in the fund to make it go.

There are a few things we need to do, however. We need to tighten up several of the medical criteria issues in this legislation so it will be sure to be successful. If we allow people to come into the fund because at one time or another they were exposed to some asbestos and they may contract some cancer or some other disease, and they can then claim they are, therefore, owed payment from the asbestos fund, we will never have enough money. The criteria we have today are far better than exist in the courts of America, but I think there needs to be some further tightening up, so that people who are sick from asbestos get paid and paid generously, but people who contract other diseases are not unjustly enriched by being paid out of a fund that is designated for people who have contracted disabilities and diseases as a result of asbestos. That is what is fair and just. That is what the fund should do. I hope we will be successful in reaching that.

I say again that I respect this point of order and I respect Senator Ensign for raising it. I point out this is indeed technical in the sense that the monies in this fund are not Federal Government money, and that if the fund runs out of money, the Government doesn't put in extra funds. It goes back into the litigation system and the plaintiffs continue their lawsuits in that fashion. Therefore, I think it would be wise under these circumstances to waive the Budget Act.

I thank the Chair and yield the floor.

Mr. President, I think the first time I heard the figure 31 to 27 was by Senator Durbin. It didn't surprise me, really. The asbestos defendant companies are hiring some of the best lawyers in America, and they charge them big fees. It is part of what they cost. If it is 31 percent for the defendants' attorneys and 27 percent for the plaintiffs' attorneys, I am not really surprised. I had no idea precisely how it would come out, but I am not surprised at that.

What I would say to my colleagues here in the Senate, however, is that it is not disputed that 58 percent of the money paid out by the defendants is going to lawyers and not to the victims. It goes to the plaintiff, and the plaintiff has to pay almost half of the judgment to his lawyer, so he or she doesn't get to keep all the money. He has to pay this big lawyer fee. Plus the corporation is being sued and has 31 percent of what he is paying out going to his own lawyers. So who is winning here? This is really indisputable. Who is winning here? The legal system is grinding up people and companies in an extraordinary way which just has to be ended. We have to work our way through this.

It is so great to have a Presiding Officer, a medical doctor, try to help us deal with some of the medical criteria.

There still remains a great weakness in this bill in a number of things.

My colleagues present the most contradictory arguments. One time they are in here saying we have to have it in the Department of Labor, or we have to pay more and more and more, and then they come in and make the argument that these funds traditionally get out of control.

When Senator Coburn and Senator Cornyn propose an amendment that tightens the medical criteria a little bit, they object and vote against them.

This would be sort of amusing if it wasn't such a serious thing.

Some of my colleagues have been saying that the fund is clearly going to fail because we underestimate the number of claims. Claims are not the real problem. This bill is going to help with the claims. I don't know how many claims this bill will reduce--not quite as much as the Cornyn bill did because it was better criteria, in my view; more realistic, according to medical data and science.

But under this bill, I would guess that 40 percent to 50 percent of the current claims are not legitimate.

It prohibits and bars claims when a person is not sick. The latest estimates are that half the claims being filed today are by people who are not sick.

If you have asbestos exposure and you can see some scarring in a person's lungs, the chance of that person getting sick are enhanced. And under this legislation they don't get paid right then. But if they are monitored medically, and if they become sick, they will get compensation.

That is the best way to handle that, for sure.

If you get sick, you simply walk in with your doctor and with a report that says what the degree of illness is, another doctor will probably check that, and if it is verified, they will write you a check. You do not have to give a third, a fourth, or 40 percent to a plaintiffs' lawyer, and a defendant corporation isn't having to hire lawyers to defend against the lawsuit.

My colleague, Senator Durbin, is so eloquent and is a skilled lawyer. He made an argument that I suppose people listening probably took a bit of an interest in and wondered about. He declared that the 10 companies with the most exposure would pay substantially less under this trust fund than under a court process--$20 billion less.

Let me say two things about that.

It is not a question of how much they pay out, it is how much gets to the victims, people who are sick. That is the most important question. How do we get more money to people who are sick without having to have the whole business collapse?

Second, he did not point out the fact about these tier I companies. These are the companies that are in bankruptcy. They are in bankruptcy already as a result of this litigation. There is only so much a company can carry. If you kill off the company, what do you do then? How can anybody be paid?

You can't destroy the companies totally and take them out of business if you expect them to continue to pay, for 25 years, people who become sick.

That is why they already have protections in bankruptcy, and they are paying through the bankruptcy court less than they would be otherwise. To keep these companies in the game, keep them alive, we give them a certain amount they have to pay depending on how big the companies are. And some are big and can pay a sizable amount--and they will pay a substantial amount of money, but they won't be going bankrupt.

A lot of people do not understand this. If the company that is responsible for exposing you to asbestos no longer exists, whom do you sue? If there are two people who have been exposed to asbestos, both of them have serious lung damage and it reduces their capacity to function, let us say both of them are entitled to a $200,000 judgment. One of them wants to sue a company that is gone, no longer exists, the company that is responsible, you would say: Well, they will be able to recover somewhere. No. If the company no longer exists that exposed him, that

person won't collect $200,000; he won't collect a dime. But the other one happens to have been exposed by a company that is still in existence and has money, or insurance, they can collect the full $200,000.

That is happening today.

To make it crystal clear, I will ask you about an automobile accident. Have you ever heard of people who have been run into, have an automobile accident as a result of a drunk driver who is uninsured and somebody is injured, they say, I am going to sue them and I am going to get a $1 million verdict. You know what the lawyer says? Does the defendant have any money? Well, no. Does he have any insurance? No. What does he have? He has a rental, that is the only car he had, it is a piece of junk, and it is not worth anything. The lawyer says: If you get a $50 million verdict, you will not collect one dime. It is not worth the trouble to go to court over.

This happens in America. It is the way the law is.

But this trust fund says whether the company that exposed them and injured them is in existence or is not, they will be able to recover too out of a uniform trust fund. And companies that are bankrupt will be able to pay at a level that allows them to stay in business and continue to pay into the trust fund.

Seventy-seven companies are already bankrupt. They say: Well, we are going to make more companies pay. We are going to make more companies pay than are supposed to pay--somehow make them pay more than they are supposed to pay. But let me say this to my colleagues or anyone who may be listening. Now there are 8,400 companies being sued, being dragged in, and many of them have the most tenuous exposure.

I remember very vividly a man coming into my office. He bought a company that at one time sold asbestos and had not sold asbestos for many years before he bought it. He buys it and makes it a part of his company. The next thing he knows, all of them are beginning to go at that little company as a defendant which he bought, and he is liable for it. Money is being sucked out of his whole, big company and going into this fund.

These companies realize that. They may not be the main target today, but the clever and sophisticated and determined plaintiff lawyers have demonstrated a capacity to add on companies and make them liable more than they were before. Many companies are willingly prepared to pay into this fund so they won't be sued for the rest of their existence; so when they go to a stockholders' meeting and write a prospectus which shows what their liabilities are, they can say exactly what their asbestos liability is rather than being required to list 5,000 asbestos cases filed against them.

Somebody may say: How much is that going to cost? Well, we don't know. Well, could it be $1 million each? Well, we do not know. We don't think so. I may not want to invest in your company. I may not want to buy stock in your company. I have to have some more certainty about how much you are going to pay.

That is one of reasons we are trying to pass this trust fund, so the defendant companies can say to their stockholders and would-be investors and those who would contract with them what their future financial prospects are.

Isn't that a good public policy thing to try to do?

Veterans, if we don't pass this bill, you are not going to be able to recover. Most of them have nobody to sue. You can't sue the Federal Government for this. A lot of other people already have found that the people they are entitled to sue by law either have no money or no longer exist.

I will say this: I think the legislation is headed in the right direction. I believe that Senator Coburn is correct. We need to watch this criteria. If we get that wrong, it can take this bill down. A doctor knows that thousands of Americans every day who are not exposed to asbestos get colorectal cancer or get throat cancer or get prostate cancer.

If somehow anybody who had any exposure to asbestos is not going to be able to come into the fund and demand that the fund pay them for cancer which they may have been genetically predisposed to, whether or not they have been exposed to asbestos, we have done something that is dangerous and the fund may not be able to survive.

The Congressional Budget Office says this fund, as rewritten, will survive. But I believe it could be tightened up to make it better. I believe that the fund has a chance to be viable throughout its entire life and fulfill its promise because we have done a better job in recent years in dealing with exposure to asbestos.

There has been a sea of change in what has happened. In earlier days, the companies did not warn the people who would be using their product about how dangerous it was. Even after they knew it was dangerous, they didn't warn them. Now everybody is warned. For 30 years, maybe 35 years, there has been exceedingly great care utilized when asbestos is about. You see people with masks on and all of that.

I think it is logical to assume that we will continue to see a decline in the claims and also this bill will take out the unjustified claims. Claims of people who have not been given any disability or sickness, even though they have been exposed and they get sick, they will be paid. If they don't get sick, they won't be paid.

That will reduce a lot of the claims. It will come down to people with legitimate illness. If a person comes in with that most grievous disease, mesothelioma, which is generally a fatal disease, this would entitle them to claim $1.1 million dollars, be able to have half of it paid in 30 days and the other half in 6 months.

Today, they do not know what they will get, and most of the claimants are deceased before money is recovered.

I suggest the absence of a quorum.

Mr. President, I thank the Senator from Montana for those comments and for his leadership in structuring the bill now on the floor, S. 852. He has accurately described the very serious situation in Libby, MT, where many people have been exposed to asbestos in a dreadful situation, a situation where the W.R. Grace Company sent this deadly substance into the atmosphere knowing its dangers.

The bill which has been structured would compensate the people there. The Senator from Montana accurately and forcefully articulates the reasons why the pending amendment for medical criteria is totally insufficient. It simply does not cover people such as those in Libby, MT. It does not cover the thousands of people who worked for companies which were bankrupted--77 of them. It does not cover the veterans of America who are suffering from exposure to asbestos. It does not cover the real core of the issue and the problem at hand.

I have talked to Senator Cornyn about scheduling a vote. We would like to have a vote reasonably soon. A vote is always a salutary method of getting Senators to the floor to move the bill along in other respects. Senator Cornyn wanted to have some time for discussion and argument. And a few minutes after 2, I said I would try to accommodate him on what he wanted to do in that respect. But I hoped we could have a vote no later than 3 o'clock. That is still my hope, and to get there, I am going to be brief.

I see Senator Leahy on the floor, and I yield to him.

Mr. President, we have been trying to set a vote here on the amendment offered by Senator Cornyn since about 2, 2:15. I had hoped to vote at 3, and then I had hoped to vote at 3:30. The Senator from Illinois advised me a few moments ago that his preference would be to vote at 4:15. We are willing to accommodate that preference unless there is some inclination to vote sooner than 4:15.

Therefore, I ask unanimous consent that we set the vote on the Cornyn amendment for 4:15, with the time equally divided between now and then.

I withdraw my request. I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be dispensed with.

Mr. President, after lots of discussion, as usual around here, I ask unanimous consent that at 4:45 I be recognized for a motion to table Cornyn amendment No. 2748, and that the time between now and then be equally divided between the two managers or their designees.

I agree.

Mr. President, the way the sides are aligned here, we need a scorecard to figure out who will give Senator Cornyn time. I think the manager in favor of Senator Cornyn's amendment would give him time, and that turns out to be Senator Durbin.

Mr. President, when the Senator from Texas says the status quo is a scandal, he is right. But the medical criteria bill is a ``scandal lite.'' It is a light scandal. You hear about Coke and Coke Lite. Well, this bill is a scandal in its own right, not quite as big a scandal but a scandal nonetheless.

The only change which this medical criteria bill makes that is an improvement over the present system is that it does not allow collection by people who have been exposed but who are not yet sick. But this medical criteria bill does not go to the heart of the problem; that is, the thousands of people suffering deadly and serious injuries who have no one to sue.

This bill is directed to protect the veterans of America who have been exposed to asbestos in a variety of contexts, sometimes during work at shipyards, sometimes during work at other governmental facilities, but they have no one to sue. This bill is directed to provide compensation to employees of some 77 companies which have gone bankrupt, where they have no one to sue because the company is in default and the company is bankrupt.

This bill, similarly, does not answer the grave problem of the economy of the United States, with companies continuing to go bankrupt because litigation continues. You still have the costs of going to court--the costs of filing papers, the costs of depositions, discovery, interrogatories, taking the case to trial.

And then you continue to have the lawyers taking the lion's share of the compensation. The fact is that only 42 cents of every dollar spent on asbestos litigation goes to the victims. The fact is, surprisingly, more money goes to defense costs--31 cents of every dollar--and 27 cents of every dollar goes to plaintiffs' attorneys. That is a statistic compiled by the reliable RAND Corporation.

So the medical criteria bill does nothing at all to deal with the real problems with regard to asbestos litigation but is designed, pure and simple, to defeat the trust fund concept which is on the floor.

When the Senator from Illinois and the Senator from Nevada argue strenuously against the trust fund proposal, they do not want this bill. It is window dressing and a red herring to cite the companies which are going to save money because the thrust of the bill is to make an equitable allocation, which we think we do here. There has never been any real attack on that, except this wild talk about secrecy, which is unfounded. And you continue to have the problem of companies going bankrupt and people not being able to collect because there is no one from whom to collect.

When the Senator from Illinois and the Senator from Texas complain about the new bill, there again, it is something they know better. They have the original bill. We had managers' amendments totaling some 47. And as a tactical matter, the Senator from Illinois and the Senator from Nevada said they would put us through every one of these amendments individually. The procedural way to deal with it was to put them all in another bill called the substitute bill. But they know what is involved. They know what bill is involved. And the substance is before them. So you have one charade after another.

And you have a system which is scandalous. Nobody who has addressed this problem disagrees with the nature of the problem. Scandal is a good characterization for it. Scandal is an equally good characterization for the medical criteria bill.

I yield the floor.

Mr. President, how much time remains?

For the opponents of the amendment?

Mr. President, as we wind down on this debate, I want to emphasize to my colleagues the importance of this vote because this amendment, essentially, after looking at it in some detail, is a poison pill. If this amendment is not defeated, the whole thrust of the compensation program for victims of asbestos who cannot now collect one penny will be defeated. The whole thrust of this trust fund was to compensate victims whose employers had gone bankrupt, compensate veterans who have served the country, who have no one to sue, and to stop the rush of bankruptcies, now totaling some 77, resulting in a loss to the economy estimated at some $300 billion.

This proposal for a medical criteria bill doesn't even rise to the level of being palliative. It doesn't do anything except defer the claims of people who have been exposed until they become ill. It doesn't do anything about the rash of bankruptcies. It doesn't do anything about the people who suffer from mesothelioma, which is a deadly ailment, where they have no one to sue. So when the sponsor of the bill characterizes the current system as scandalous, that approbation could apply equally well.

This is one of the many votes on the floor of the Senate where the outcome is uncertain. There is a curious alliance here, with some on one side of the aisle and some on the other side of the aisle. Trial lawyers may be for this amendment if it can be modified because they see the medical criteria bill as a way of continuing to bring cases to court, and to continue with the current structure. I don't criticize the trial lawyers. I don't criticize anybody. I don't criticize the trial lawyers for exercising whatever rights the current system allows. But it is up to the Congress of the United States to make the determination as to what is the appropriate public policy. That is a congressional decision to make.

I am delighted to.

If the Senator will yield for a question, to pinpoint what the Senator said about labor's support. The AFL-CIO, which represents labor, the working men and women of America, has been a party to the discussion for 2\1/2\ years, at some 36 meetings, which Judge Becker and I have presided over. When they heard about this medical criteria bill, they were alarmed at the impact it would have on the working men and women and the veterans, their constituency, and they put out an all-points to those people as to what was going on.

I wonder if the Senator from Vermont would care to amplify, as the senior Democrat and principal cosponsor of the Leahy-Specter bill, as to what labor is doing in this area.

If the Senator will yield further, as to what happened in today's maneuvering and negotiations on the floor, where we have had initially the trial lawyers being against this amendment. If people were wondering what all the maneuvering and negotiation was about, why we could not have an up-or-down vote, but a tabling motion, that is because the trial lawyers think that the amendment offered by Senator Cornyn may be better for them, but they want to change it around so that if this motion to table is not defeated, they will have time to rework it to their satisfaction.

That is the way the system works, and if that happens--this is now Thursday afternoon at 16 minutes to 5--there will be frantic negotiations between now and Tuesday, when we come back to work on this bill--or perhaps Monday afternoon--to come to an alliance. I won't call it an unholy alliance, but it will be an alliance in very curious ways, where people who oppose the bill do so out of the mistaken notion that it is going to cost the Government money. This bill is ironclad not to cost the Government money. People on my side of the aisle who are opposed to it don't want to have the Government undertake an obligation, and I agree with that. This bill accomplishes that, with no governmental obligations. Now the issue is whether sufficient trial lawyers on your side of the aisle may come to a majority.

Mr. President, I move to table the Cornyn amendment and ask for the yeas and nays.

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

Mr. President, I ask unanimous consent that the pending amendments be set aside so the Senator from Arizona, Mr. Kyl, may be recognized to lay down an amendment.

Mr. President, as the Senator from Nevada has said, there has been no understanding. It is agreeable with me to have an understanding as to that effect in the future. I have already talked to Senator Kyl, who is poised to offer this amendment. I am glad to enter into such an understanding. There is not one at the present time. I would like to proceed with Senator Kyl and alternate.

I yield the floor for the purposes of letting the Senator from Nevada be recognized.

Mr. President, I thank the Senator from Arizona for offering this amendment.

This is a good amendment. There has been a great deal of concern that smaller businesses--although we are talking about businesses which are substantial, but they are smaller than many in the field--should not pay more than they can afford to pay. This amendment achieves that result.

I add that Senator Kyl has been an outstanding member of the committee for many years, and in the past year and a half since I have become chairman, he has been a stalwart and has worked tirelessly on this bill. I don't know how many meetings he and I and others, including the presiding Senator, Mr. Cornyn, have had. This has been a matter very much on the Senator's mind and many others who have suggested many other provisions. It is a very good amendment. I thank and compliment the Senator.

I move to waive the point of order under the applicable provisions of the rules and statutes.

Mr. President, the essence of this issue is that the point of order should not be sustained because there is no Federal money involved. All of the money involved comes from private sources. This is a make-or-break issue for this bill.

The Federal budget is not involved in this bill. To repeat, which I don't like to do, but for emphasis, the Federal budget is not involved in this bill. The money comes from private sources. It goes through the Department of Labor as a conduit. Technically, there is a Federal expenditure, but it is not the Federal Government's money. Now, the only issue which has been raised is that at some point in the future, the Federal Government might seek to bail out this trust fund. The bill is emphatic in a number of places that the Federal Government has no obligation to pay out any money. If the trust fund runs short, there are provisions to meet that situation. It is a complicated provision, but the administrator makes an analysis, and if he sees the necessity to make some modifications in the trust fund, he can take it to a committee and the committee can then make a recommendation to Congress. The Congress has to act.

The real safety valve is the one provided by the Biden amendment in July of 2003 that if the fund runs out of money, claimants can go back to court. So the claimants are no worse off going back to court if the trust fund runs out of money than they are now. But in the interim, thousands of people who suffer from deadly diseases--mesothelioma and exposure to asbestos--will be paid where they cannot be paid now because their companies are bankrupt or they are veterans and there is no one to sue.

The consideration that some future Congress, decades down the road, in the year 2030, might have a different view is up to the Congress in that year. We cannot bind them as to what they are going to do, nor should we try to bind them. But what we do here does not implicate or involve the Federal Treasury. To say that there may be a temptation in the future for some Congress to spend Federal funds is not something we should do. It is not within our purview. It is not within our responsibility. In fact, we ought to keep our hands off the future Congresses. We should not presume that we know enough in the year 2006 to tell the Congress in the year 2026 what to do. They will be elected. They may well be a lot smarter than this Congress. Perhaps it is hard not to be. But it is up to them at that time.

This is a convenient maneuver to defeat the bill by requiring 60 votes. That is like the motion to proceed, the filibuster, to try to structure a vote for 60 votes, to try to find enough people who do not like the bill; only takes 41 who do not like the bill to defeat the bill on this kind of a maneuver, whereas it takes 51 to defeat this bill otherwise.

The administration is for it. If this bill goes 50-50, the Vice President votes for it. The President issued a statement of support on S. 852. There are caveats in it. He said there are concerns. I don't know of any Member of this Senate who does not have some concerns about this bill. But that is what the debate is for. That is what we are here to consider. We will not be able to consider this if this point of order is sustained.

I yield to the real expert on budgets, a man who was chairman of the Committee on the Budget for 73 years.

I thought he chaired it his entire life. Senator Domenici was the chairman of the Committee on the Budget the day I was sworn in. I have great respect for Senator Gregg, chairman of the Committee on the Budget today, but I yield to the chairman of the Committee on the Budget emeritus.

Will the Senator from North Dakota yield for a question.

Mr. President, I have noted the chart. If you could put the chart back up, please.

The last one. The one the Senator from North Dakota is talking about, the one that has the letter going to Senator Arlen Specter. I received that letter. You may be surprised to know that I read that letter.

Senators receive lots of letters; relatively few are read.

My question to the Senator from North Dakota is, isn't it true that the two sentences which you left off following the chart you have read:

There is some likelihood that the fund's revenue would be

sufficient to meet those needs.

Isn't it true that that is the next sentence in the letter?

If the Senator will yield for another question.

Isn't it true that following the sentence I just read, which was ``there is some likelihood that the fund's revenues would be sufficient to meet those needs,'' the next sentence reads:

The final outcome cannot be predicted with great certainty.

Isn't that pretty much standard CBO, where they are making projections, and the thrust of what CBO has said and the Senator from North Dakota has cited is that you don't know ``with great certainty''? And isn't it true that in any projection of this sort you cannot have ``great certainty,'' that you don't even have that on proof for the death penalty in a first-degree murder case where it is only proof beyond a reasonable doubt? Isn't it true that CBO in the letter which they sent to me, dated August 25, made a projection that the cost would be between $120 and $150 billion, and the final line on page 8 was $132 billion which is well within the $140 billion figure?

Will the Senator yield for another question?

As the Senator from North Dakota outlines the situation, CBO is incompetent, grossly incompetent. When the Senator from North Dakota shows different conclusions which his staff has reached, why wouldn't it be sensible to disband the Congressional Budget Office and just rely on his staff?

Mr. President, I am somewhat querulous at the representation of the reluctance of the Senator from North Dakota to take the position which he has articulated. It is certainly obvious that he wasn't prepared to take the position, certainly obvious that this point of order, which was articulated this afternoon, has taken him by surprise. As I look at his elaborate charts, I think he has been anticipating this moment for some time, which doesn't necessarily impugn his comment that this is with reluctance, but it looks to me as if it is with calculation.

I am not unaware of the obvious facts of life--that colleagues of the Senator from North Dakota on the Democratic side of the aisle are not too fond of this bill. I am not unaware of that. I won't go into the reasons behind it, but it happens to be a fact.

Senator Conrad is experienced and articulate. He has been chairman of the Budget Committee and ranking member for a long time and a distinguished Senator, after having been elected in 1986. I have served with him in this body for 20 years now. But when he talks about the Tillinghast study and when he projects what his own staff has done, he is undercutting the Congressional Budget Office which puts this $140 billion well within the ballpark. I put these letters in the Record--I have already done that today--where there is the comprehensive analysis of the Congressional Budget Office, in a letter to me, dated August 25, 2005, and a letter dated December 19, 2005. The long and short of the Congressional Budget Office analysis is that you are dealing in a range of $120 to $150 billion, and the point they struck on is 132, which is $8 billion under the 140.

When the Senator from North Dakota talks about dormant claims, he doesn't know how many dormant claims there are. Nobody does. You can't sit here in the year 2006 and speculate about how many other claims there are that he has articulated. We are not going to vote on this issue tonight. There aren't enough Senators in the Chamber to vote tonight. We are going to have a battle royal of charts by the time we revisit this issue a few days from now. We are going to have fancier charts than the Senator from North Dakota has. This whole bill may turn on who has the fanciest charts. We have some pretty good chart makers ourselves.

When the Senator from North Dakota says it will be terrible if, after companies have paid money into this trust fund, the trust fund becomes exhausted and they are asked to pay more money going back to court-- well, the companies who committed to pay $140 billion understand that. Don't feel sorry for them. They know what they are getting into.

The reality is this: As Mr. Thomas Donahue, head of the U.S. Chamber of Commerce, has estimated, they are dealing with a $500 billion issue here, which can be accommodated with $140 billion because you cut out transaction costs, because when claimants only get 42 cents on the dollar, $140 billion may be enough, when it may cost as much as $500 billion otherwise. The economy has already suffered to the extent of $300 billion. So don't feel sorry for the companies. If the trust is terminated because we believe Senator Biden was right when he offered his amendment, which I supported in committee, that the claimant should not bear the risk if the fund was insufficient, that claimants ought to have the right to go back to court, that is the real safety valve if we are wrong.

But I don't think we are wrong, because we are going to have some fancy charts in a few days that will show the decline of asbestos claims. Senator Sessions is usually erudite, but he is especially erudite on that subject, as to how the claims have gone down and how the projections show that we will realistically being paying out less, certainly well within $140 billion.

I know Senator Ensign and Senator Sessions want to speak, so I will reserve some of my time.

Mr. President, I thank the distinguished Senator from Alabama for his comments, and I thank him for his extensive work on the committee, especially on this bill and especially for being on the floor so much this week and making such very strong arguments.

Our general counsel said to me in the corridor a few hours ago: Jeff Sessions has been around all the time. He is doing the work, and he used a four-letter word, a blank of a good job. I thank Senator Sessions for his work.

I wish to make a few comments in closing. We probably lost a few people who watch C-SPAN2, in any event. We certainly lost the Senators.

When the Senator from Nevada, Mr. Ensign, made a comment about unpredictability, there is one thing which is not unpredictable, and that is the suffering of the mesothelioma victims and the other victims from asbestos exposure. We talk a lot about mesothelioma--abbreviated to meso but that is a fatal disease which is caused by exposure to asbestos, and there are many gradations.

When we talk about unpredictability, we also ought to talk about predictability, about the tens of thousands of asbestos victims who are not being compensated today because their companies are bankrupt. There are tens of thousands of veterans who are not being compensated because they have no one to sue, even though they contracted illnesses from asbestos in the service of their country. We know of the 77 companies that have gone bankrupt, and more are on the way. We do know that predictability.

When the Senator from Nevada, Mr. Ensign, talks about estimates which are inexact, that is true. You can fault the Congressional Budget Office, but they do the best they can. We do know of the exact estimates, exact reality of the people who are suffering.

I believe the conclusion is that we have a duty to do something about that. When private companies are willing to put up $140 billion to compensate those victims of asbestos to save future bankruptcies, to save and eliminate and cure pain and suffering, we ought to take that.

We are not infallible. If we are wrong and we do not have enough money, they understand the consequence of going back to court. But I think it all points to the conclusion that we ought to pass this bill. We ought to consider a number of problems that we have in the floor debate and improve this bill. Then when we have come to the end of the rainbow on improving this bill as much as we can, we have to make a judgment: Is this bill, albeit not perfect, albeit not satisfying everybody's interests, better than the current chaotic system?

It has to be an enormously terrible bill to be worse than what we have today. That we know with certainty.

When you don't meet the Congressional Budget Office test of ``great certainty,'' that is all of life. Again, I analogize the standard for a death penalty in a criminal first-degree murder case is proof beyond a reasonable doubt, and in a civil case is more probable than not. And in our legislative judgment, we have done the most we can do in good faith to craft legislation

to meet a pressing problem, on which everyone agrees--the Senator who is advancing this point of order starts off conceding the terrible problems of asbestos and the pain and suffering to the victims and the terrible blight on the economy.

We will be debating this some more in the days ahead. I urge my colleagues to consider this issue very carefully because this is an issue which will kill the bill if this point of order is not defeated.

I yield the floor.

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

Mr. President, I rise in support of S. 852, the bipartisan Fairness in Asbestos Injury Resolution Act of 2005. Over the last several days, several of the opponents of this legislation have made serious, misleading claims, and I would like to take a moment to respond.

Opponents of this bill have claimed that it amounts to a bailout of big business generally, and asbestos manufacturers specifically. Guess what. They are, as usual, almost right. Webster's Dictionary defines ``bailout'' as a rescue from financial distress. It is true that we are trying to save 90 percent of this country's industry from financial distress. It is also true that we are trying to rescue literally hundreds of thousands of asbestos victims from the plague of uncertainty that advances from the efforts of asbestos attorneys and the cruelty of asbestos bankruptcies. So using the word ``bailout'' is not a complete mischaracterization of what this bill does.

This bill saves an overburdened legal system. We have been asked by no less than the Supreme Court of the United States of America three times to do something about this mess. If we don't do something about this mess, we are going to have a severe economic crises in this country, driven by this approach that is literally bankrupting some very innocent companies.

This bill saves asbestos victims from unfair and untimely compensation. This bill saves ordinary Americans from the tremendous strain on our national economy. And this bill saves veterans who have nowhere else to turn. I ask my colleagues if they know that once vibrant companies, now bankrupt due to asbestos liability, employed over 200,000 workers--200,000. The asbestos crisis affects over 85 percent of the U.S. economy. Over $200 million in lost wages--$200 million--gone. Almost no one has been spared. Mr. President, 75 out of 83 industrial sectors in this country are affected.

Has not this body been working for several years now to save domestic jobs and help our industries? Not a single Senator questions the fact that this Nation faces an immediate crisis. Not a single Senator disputes the fact that our legal system cannot handle the thousands upon thousands of asbestos claims. And, hopefully, not a single Senator questions that we must do something, and do it now, and this is the only vehicle we have.

Too much time has passed, too many people have died, too many people have lost their jobs, too many people have gone uncompensated, and too many asbestos lawyers have private jets and luxurious yachts as a result.

Some colleagues claim this bill lets defendant companies off the hook. I believe the distinguished senior Senator from Massachusetts said yesterday that S. 852 would shift more of the financial burden onto the backs of injured workers. I share my colleague's concern for injured workers. I disagree with his assessment of how this bill works.

The FAIR Act does not add to the burden on injured workers; it lessens it. This bill will ensure that asbestos victims are compensated over a 3- to 4-year period. Individuals with exigent claims will receive their compensation within 1 year.

Moreover, asbestos victims under this bill will receive the entire award themselves instead of giving enormous percentages to attorneys in transaction costs. Of course, claimants may elect to utilize an attorney, in which case attorney's fees are capped at 5 percent, rather than 40 percent. That is a far cry from some of the exorbitant attorney's fees that are being charged today.

I wholeheartedly believe attorneys should be compensated for their efforts, but I also believe that such compensation should be reasonable. Under the FAIR Act, defendant companies are not let off the hook. Defendant companies, along with insurers and reinsurers, do not get a free ride under S. 852--unless one thinks a combined $136 billion obligation constitutes a free ride. Defendant companies are responsible for payments up to $90 billion over the life of the fund. Insurer participants are responsible for payments up to $46 billion. That is not pocket change. Indeed, as some of my colleagues have pointed out, there are companies and insurers who oppose this bill because of this obligation.

I ask my colleagues: Why would some of these companies oppose this legislation if it amounted to a free ride? This brings me to my next subject.

Some of my colleagues have alleged that taxpayers will be footing the bill for the FAIR Act--$140 billion, they claim. That would be a truly frightening allegation if it were true. Fortunately for us, if you read this bill, it is not true. The FAIR Act is entirely funded by private means. American taxpayers do not pay one dime. Although an argument could be made that during the war our Government used asbestos in shipbuilding and so many other ways. And I am just talking about the war. You can extrapolate way beyond that. But we haven't asked the Federal Government to pay anything. This bill does not require any payments by the Federal Government--not one nickel, not one penny.

The truth is, as I mentioned before, private entities provide the funds for this bill--$140 billion--and none of it comes from the coffers of the United States of America. Defendant companies pay $90 billion, participant insurers pay $46 billion, and the remaining $4 billion? Bankruptcy trusts: At present, there is somewhere in the range of $4 billion to $7 billion that sits in bankruptcy trust. This bill would consolidate those moneys and fold them into the trust it creates.

It is true that some of those trusts do not relish this idea. I don't blame them. I do not like living in the shadow of this problem either. But the fact is, Congress can and should consolidate the existing bankruptcy trusts as part of the comprehensive solution to a critical national problem.

Let me also say this: If we don't do something about this--and this is just step 1. We have to get the House to do something. I doubt seriously they are going to do this bill. If they don't do this bill, they have to come up with one of their own. When they do, that means we have to go to conference and hopefully work out any of the problems we uncover between now and then.

If we don't do this bill, then I personally believe the economy is going to be very badly damaged and ultimately hurt. I hate to be a doomsayer, but I really believe that is what is going to happen. I think virtually everybody in this body knows we need to do something. This is the vehicle that we have to get through the Senate, and then we are going to have to, hopefully, get the House to come up with a similar vehicle, or at least whatever they think is the best way of doing this. Then we have to go to conference, and people working with goodwill have to try to solve these problems, hopefully using the best things in this bill and the best things in a House bill so we can solve this problem for our country, for our economy, for our workers, and for companies so that in the future they aren't going to go bankrupt.

When I first started working on this, there were only 30 companies in bankruptcy. Today there are almost 80. That is just a few years. It is going to get worse.

As I understand it, the problem is going to get worse because of superficialities and a tort system run amok, and because we are unwilling to stand together and do something about it, and because of special interests. No,

not special interests down at K Street, special interests that are the largest hard-money supporters of our friends on the other side today.

As I understand the situation, there are two primary claims against including the existing bankruptcy trusts in this legislation. The first argument amounts to a finality claim. Some argue that Congress should let sleeping dogs lie. Critics in this camp believe we should not undo what has been done in the bankruptcy court since victims in those circumstances have been compensated to a degree and the channeling injunction that accompanies a 524(g) trust effectively terminates residual liability.

There are problems here. In many instances the sleeping dog here is, in fact, a very sick puppy. It cannot take care of itself. The Manville Trust, for example, pays only pennies on the dollar and it does not address the global problem. In fact, the Supreme Court has, on more than one occasion as I have said, struck down attempted global settlements while simultaneously calling upon Congress to act.

The fact is, the Supreme Court is right. The asbestos problem is a horrific mess and it is time for Congress to intervene. I understand why companies on the receiving end of a channeling injunction would not want to upset the balance they have struck. But they will have the protections of this bill while simultaneously providing much needed funding that will be used to compensate the true victims of the asbestos crisis.

One further point on existing asbestos bankruptcy trusts. For reasons I will explain in a moment, most bankruptcy trusts in this context were established by the plaintiffs' trial bar. The provisions of 11 United States Code 524(g) do not permit a channeling injunction unless 75 percent of the claimants approve of the measure. That means that plaintiffs' attorneys in these cases--and there are about 12 major law firms, that is what it comes down to--have a very big say in how the trust is set up and, more troubling, how they, the asbestos lawyers in these 12 firms, basically are compensated. I can see why the asbestos plaintiffs' bar would not like to see this change. Can you blame them? This is a cow they want to milk. It is high quality milk at that.

The second problem is a little more complicated. Certain asbestos bankruptcy trustees have argued that the inclusion of their assets in the larger trust established under the FAIR Act constitutes an unlawful taking in violation of the fifth amendment to the Constitution. I admit I was surprised when I discovered that my friend Professor Laurence Tribe and I actually agree on a point of constitutional law. But it is true. He was correct to say:

It is a well-settled rule that legislatures may act

rationally to modify or abolish causes of action, impose

assessments, and create new compensation programs without

violating due process or triggering the right to just

compensation under the Takings Clause.

I also agree with Professor Tribe's assessment:

The bankruptcy process, and in particular the confirmation

of a plan of organization, does not provide a debtor or a

resulting trust with ongoing immunity from the operation of

federal law as it might evolve over time.

In a nutshell, there is not a final property interest at issue in this context. I agree with Mr. Carter G. Phillips:

Any property rights arising from the trusts are contractual

in nature and the law is well established that contracts,

however expressed, cannot fetter the constitutional authority

of the Congress.

I do not believe a valid takings claim can exist in a vacuum of property rights.

In the interest of time, I will not bore my colleagues with a more detailed legal explanation on the takings issue, but I wish to submit two letters for the Record, the first dated February 6, 2006, from Professor Laurence H. Tribe, and the second dated February 7, 2006, from Mr. Carter G. Phillips. I ask unanimous consent they be printed in the Record.

I wish to close by taking a brief moment to address the budgetary issues. Earlier I spoke to the private versus public funding issue. Some of my colleagues believe the taxpayer is on the hook for this bill and I wish to help explain how that is not the case. These are serious concerns, but the FAIR Act does not use Federal funds. It is privately funded--lock, stock, and barrel.

Those of you who might be watching at home might be wondering why some people are worrying about the FAIR Act, if it is privately funded, and in the spirit that underlies this bill I will try to explain it. To my knowledge, there is only one way by which the FAIR Act may touch Federal funds and that is through the borrowing mechanism. The administrator created by this act may borrow such funds as are necessary to maintain the liquidity of the fund, but--and this is a big ``but''--the administrator may not borrow amounts which exceed the fund's ability to repay. So the bottom line is that American taxpayers do not pay for this fund. The defendant companies and insurer participants do.

At the end of the day, asbestos victims cannot wait any longer. Veterans cannot wait any longer. The overburdened legal system cannot wait any longer. The only group that does not mind waiting consists mainly of 12 law firms filled with asbestos lawyers who do not mind exploiting a broken system because of the billions of dollars that are in it for them. You can hardly blame them. It is a plum tree waiting to be picked. They are slow walking this bill. I have to implore my colleagues to resist these efforts.

Before I conclude my remarks, I wish to speak briefly to Senator Cornyn's medical criteria amendment. I agree with my colleague from Texas that the FAIR Act is not a perfect bill. I think Senator Specter has made that clear. Others have made it clear. We have done the best we can through the Judiciary Committee. This is the first step in a number of steps that simply have to be taken. I have several concerns of my own about this bill, and I suppose most everybody does. But I have to say, as much as I agree in principle with Senator Cornyn, I am not sure his approach does the trick.

I might add, my colleague from Utah raises the point that there are some companies that will go bankrupt if we pass this bill. That may be the case. I will do everything in my power through the whole process here to make sure that doesn't happen, and I believe Senator Specter is dedicated to doing everything in his power to make sure that doesn't happen. I personally believe Senator Leahy will do everything in his power to make sure that doesn't happen. I believe there are 435 Members of the House who will do everything in their power to make sure that doesn't happen. I believe any conference committee that comes up is going to make sure that doesn't happen. I wouldn't tolerate that, in the end.

But we have to have a vehicle. We have to have a bill. If we do not have a bill, we have nothing. And, we have a future prospect of a number of very fine companies--with the loss of hundreds of thousands of more jobs--going into bankruptcy at a cost to our economy that may be overwhelming after a while--all because of a runaway tort system that basically is out of whack.

In my opinion, the medical criteria approach fails to help too many sick and injured people. It does nothing for the mesothelioma victims. These are the ones who deserve compensation. First and foremost, the reason we basically started this bill, was to help those who are going to die because they have mesothelioma. They are going to die. Once they are diagnosed, it is just a matter of months, and their families are left with nothing. They didn't cause this problem and they are the ones who deserve compensation. Yet they are the ones who, if we do nothing, are left out while others--hundreds of thousands--who are not sick at all are going to get rewards. This is wrong.

In my opinion, as I say, the medical criteria approach fails to help too many sick and injured people. Let me give another illustration. The veterans, for example, have very few places to turn under a medical criteria bill. We just had 10 veterans organizations on Capitol Hill holding a press conference this week--I was there with them--making it clear that of all people who deserve to be compensated, they do. This medical criteria approach does nothing for them. This is the main reason why we switched to the trust fund approach; so we can take care of the truly sick--those who really have difficulties.

But, as I do with every amendment, I am going to give the medical criteria approach a very hard look as we go through this process. In an ideal world we could run with my colleague's idea. But, unfortunately, the realities of the asbestos crisis prevent a medical-criteria-only solution. There may be, down the line, a way of doing a medical criteria bill that will take care of people who truly deserve to be taken care of. This amendment is not that. But I am willing to work with my colleague from Texas and see what we can do to come up with something that will work as well, if not better, than what we have here. But right now this is it.

This is a bill that is well thought out in spite of the difficulties with it. But I submit that any bill this size is going to have some difficulties.

As I say, this is step No. 1 in what always has been a legislative process that does not end here. It starts here. If we do not start it, we don't have a chance of correcting these tremendous ills to our society that could swamp us. So it is very important that we support Senator Specter and Senator Leahy and get this bill out of the Senate. If we don't, I have to say I believe this is probably the last chance to resolve issues that deserve to be resolved, and to do justice instead of continue the injustices that are currently resulting from the current out-of-control asbestos tort system.

I commend my colleagues for their steadfastness in working on this very difficult, complex set of issues. It is a difficult problem for us. There are very sincere and good people on both sides of this issue. There are very sincere and good people on both sides of this aisle. I have tremendous respect for my colleagues.

On the other hand, for those who are voting against the bill because the trial lawyers are their largest hard-money supporters, I don't think that is a good enough reason. I admit it is a powerful reason, but not if you are interested in the country, not if you are interested in our economy, not if you are interested in the people who have suffered from asbestosis and from all of the derivatives of asbestosis, not if you are interested in helping these mesothelioma victims who deserve help, helping the veterans who did nothing to cause these problems but are left high and dry.

This is an effort by the leadership of the Judiciary Committee, led by Senator Specter and Senator Leahy, to do justice. It is an effort to comply with at least three requests by the U.S. Supreme Court: Congress, please do something about this awful issue because we can't.

They can't legislate from the bench to resolve this issue. Some people think individual States can resolve this issue. That might be so, if you had absolutely honest judges and absolutely nonpartisan judges down the line, and if they were willing to work hard, and if every State would do it. But only a few are going to. Only a few are going to pass laws that possibly will help in this area. It is up to us to get this done.

I hope our colleagues who want to do something right here will realize this is step one. You have to go ahead with it. Good people of good values, well-intentioned people are going to be able, hopefully, in the end to get this so it works; so no company is going to be hurt by it, but the economy as a whole will be helped by it. But above all, people who deserve compensation will receive compensation with a minimum of charges that reduce that compensation, compared to the almost 60 percent attorneys' fees and transaction costs it is costing us today.

I yield the floor.

What is the pending business before the Senate?

I ask the Presiding Officer, is there an amendment pending?

Is one of the amendments the Cornyn substitute?

I thank the Chair.

Mr. President, I strongly oppose the Cornyn amendment to the underlying bill. I want the record to reflect my deep disappointment in those two amendments. I am deeply concerned we are losing sight of what is at stake.

What is that? Making sure that people who are sick, who are likely to become sick from exposure to tremolite asbestos are not denied the ability to fight for their rights against the persons or companies that injured them. That is absolutely the bottom line. If these amendments are agreed to, people in the small county of northwest Montana will not get justice. These people will not get relief. They will not get support. They will not be able to pay for needed health care as they die.

We are talking about hundreds of sick and dying people. This amendment turns our back on them. It will hurt them while they are already down. It will hurt the people of Libby. The people in Libby are proud. They have had more than their share of hard knocks. They just keep going, getting up and

keep trying. They are good, proud people. But they have been injured. They have been deceived. They have been wronged. They have been lied to.

They have tried to put their faith in our Congress and in our legislative process to make things right. They are survivors. I am privileged to know them so well and to represent them.

Let me tell you about the first time I went to Libby. It was January of the year 2000. I traveled to Libby to meet with 25 extremely ill people for the first time. I had been briefed a number of times on what I might expect to hear that night. These kind men and women, some of whom are no longer with us, gathered to share huckleberry pie and coffee in the home of Gayla Benefield.

They opened their hearts. They poured out unimaginable stories of suffering and tragedy on a scale that absolutely stunned me. Entire families--fathers, mothers, uncles, aunts, sons, and daughters--all sick, hundreds are dead--they are all bound together by their exposure to the company mine, exposure to tremolite asbestos mined by W.R. Grace.

This is an isolated community of a few thousand people located as far away from Washington, DC, as you could possibly get, way up in northwest Montana.

I will never forget a man I met that night. He has become my dear friend. His name is Les Skramstad. I mentioned Les yesterday. Let me tell you about our first introduction.

At that meeting in the home of Gayla Benefield, Les watched me closely all evening. He was weary and came up to me after his friends and neighbors finished speaking and said to me:

Senator, a lot of people have come to Libby and told us

they would help, then they leave and we never hear from them

again.

Max, please, as a man like me, as someone's father, too, as

someone's husband, as someone's son, help me. Help us. Help

us make this town safer for Libby's sons and daughters not

even born yet. They should not suffer my fate, too. I was a

miner and I breathed that dust in.

And what happened to me and all the other men and women who

mined wasn't right--but what has happened to the others is a

sin. Every day I carried that deadly dust home on my clothes.

I took it into our house. I contaminated my own wife and each

of our babies with it too. Just like me, they are sick and we

will each die the same way.

I just don't know how to live with the pain of what I have

done to them. If we can make something good come of this

maybe I will stick around to see that, maybe that could help

make this worthwhile.

That is what Les said to me that evening. It riveted me. I told him I would do all that I could, that I would not back down, and I would not give up. I said to myself that evening, if I do anything, I am going to help get justice for the people of Libby, MT.

Les accepted my offer and then pointed his finger at me and said: I'll be watching, Senator.

Les is my inspiration. He is the face of thousands of sick and exposed folks in this tiny Montana community. When I get tired, and I see the difficulties we face to try to get justice for the people of Libby, I think of Les, and I cannot shake what he asked me to do. In all my years as an elected official, this issue of doing what is right for Libby is among the most personally compelling things I have ever been called on to do.

Doing what is right for the community and making something good come of it is my mission in Libby. I thank Les Skramstad every day for handing me my marching orders. My staff and I have worked tirelessly for Libby--not for thanks, not for recognition but because the tragedy is that gripping. There is no other choice. It is a no-brainer. We do all we can. It is such a tragedy for the people of Libby.

The extent of asbestos contamination in Libby, the number of people who are sick and who have died from asbestos exposure is staggering. The people of Libby suffer from a deadly asbestos-caused cancer, mesothelioma, at a rate 100 times greater than the rest of the Nation. Mr. President, 1 in 1,000 residents of Libby suffers from this disease. The national average is 1 out of 1 million. Libby residents suffer from all asbestos-related diseases at a rate of 40 to 60 times the national average.

So how could this happen? Well, a company named W.R. Grace owned and operated a vermiculite mining and milling operation in Libby. It just so happened the vermiculite was contaminated by a deadly form of asbestos called tremolite asbestos. It is much more pernicious than the ordinary chrysotile asbestos. Tremolite asbestos is so bad, it gets into your lungs. It has hooks in it. It stays there and does not ever get out.

Mr. President, 5,000 pounds of tremolite asbestos was blown over the town every day. Every day this dust contaminated the air. Dust settled in the town of Libby, on cars, on homes, in gardens. Think of it. You get up in the morning to go outside, and there is this tremolite asbestos dust on your car. It is on your home. It is everywhere, your garden. It settled on children as they played in the parks. Workers brought the dust home on their clothes and exposed their families. Hundreds have died, hundreds more are sick.

The very worst part about this story is that W.R. Grace knew exactly what it was doing and did not tell anyone. It was making a buck while it was hurting people. It knew that the vermiculite dust was contaminated with deadly tremolite asbestos. Yet it had told workers in the town it was harmless. It was just dust, they said. W.R. Grace not only said it was harmless, then what did it do? To add insult to injury, it bagged this stuff. It put all this tremolite asbestos in bags and then gave bags to residents for their gardens and to the high school for covering for the high school track and for parks and playgrounds.

Well, W.R. Grace filed for bankruptcy. Before they did that, what did they do? They transferred almost all their assets away to other companies so they could not be sued. So people in Libby could not get justice. Through all of this, W.R. Grace has yet to step up and do the right thing for Libby.

So I stepped up. I stood up for the people of Libby. And I am standing up now for Les and his family to do all I can to help him and those other people in Libby.

I worked hard with the Judiciary Committee, especially my colleagues, Senator Specter and Senator Leahy, to tailor a solution that addresses the unique problems in Libby. I am extremely grateful to Senator Specter, the chairman of the committee, and Senator Leahy, the ranking member, for all their work to help protect Libby. I spent a lot of time explaining to them the problems of Libby, and to their credit, they listened and put provisions in the bill, the underlying bill, that address the very unique, special problems of the tragedy in Libby.

The original medical criteria in the bill did not address the specific needs of Libby because disease resulting from exposure to tremolite asbestos progresses differently than disease from exposure to the traditional form of asbestos. Tremolite asbestos, the latency period is a lot longer. You cannot detect it until much later. It is also a pernicious kind of asbestos that causes much more injury and makes it much more difficult to breathe. It is wicked stuff.

So we worked hard, and we included medical criteria that specifically address the unique needs of Libby. My colleagues, I hope, understand-- they must understand; the right thing to do is to understand--this whole community was exposed, not just the mine workers but everyone.

W.R. Grace mined the raw vermiculite in the mines of Libby and then milled that vermiculite to remove up to 96 percent of the tremolite asbestos contained in the vermiculite. That milling process then shot 5,000 pounds of tremolite asbestos into the air each and every day. That asbestos blanketed the town. The asbestos did not discriminate where it fell. It covered the school playground and little league baseball field. And it is now growing in the bark of trees, if you can imagine. It is everywhere.

I am offended some of my colleagues think they know best. I am offended some of my colleagues, who think they know better, have not taken the time to know the issue, to travel to Libby, to understand what is going on there, to open up their minds and their hearts, to try to understand. They have not taken the time to meet the people, to understand there are different types of asbestos or that the disease from exposure to tremolite asbestos progresses very differently and is much more pernicious.

So if you do not support the bill, I ask my colleagues to say so. But do not

hold the people and the community of Libby hostage. Whatever we do, however we deal with the underlying asbestos bill, we cannot hold the people of Libby hostage. Do not ask the innocent people of Libby to do your bidding for you.

And if this amendment passes--the Cornyn amendments--I will have to go back to Libby. I will look into the eyes of that community, and I will tell them that their Nation turned its back on them.

Let me be very clear. I will keep fighting for Libby until they get the help that is desperately needed and long overdue. Until they get the compensation they deserve, I am going to keep fighting. We are going to find a way, eventually, to give these people the justice they deserve.

Thank you, Mr. President.

I see the chairman of the committee on the floor. I thank him for his help and his recognition of the unique differences in Libby, MT. I tell him, I appreciate that.

Mr. President, I do not care who has the floor, but I wish to say I appreciate the comments of the chairman of the committee and, also, how much I appreciate the efforts of the ranking member of the committee, Senator Leahy from Vermont. He has also, as has the chairman of the committee, been very receptive in his understanding of the issue.

I might say, I thank again the Senators. They sent staff to Montana to get a firsthand understanding of what is going on. I thank the chairman. I also again thank the Senator from Vermont for his deep understanding. He has taken the time and effort to learn the problems that face Libby, MT. I again thank both Senators.