Will the Senator from Utah yield for 1 minute? I commend the Senator from California for her statement and comments. She has been deeply involved in this effort, as have many of us over the last number of months, if not years. She has made…
Will the Senator from Utah yield for 1 minute?
I commend the Senator from California for her statement and comments. She has been deeply involved in this effort, as have many of us over the last number of months, if not years. She has made a very comprehensive set of suggestions, to which I think our colleagues want to pay serious attention. I know my colleague from Utah will. He is a fairminded individual who cares deeply about this legislation as well. But I commend her for her comments.
At an appropriate time, I say to the distinguished chairman of the committee, I will ask unanimous consent that following the remarks of the Senator I may have some time, too. I don't know what the order is, but is such a request appropriate, Mr. President?
I ask unanimous consent at the conclusion of the remarks by the chairman of the Judiciary Committee, the Senator from Utah, that the Senator from Connecticut be recognized for 30 minutes.
Mr. President, let me begin by, first of all, commending my colleagues on the Judiciary Committee. I am not a member of this distinguished committee. I had the good fortune of serving on the Judiciary Committee in the other body years ago, in the House of Representatives. I have great respect for my colleagues who serve on the Senate Judiciary Committee in either body because they deal with some of the most contentious issues before the American public.
It is not easy to be the chairman of that committee, regardless of which party is in the majority in the Senate. I have the utmost respect for my friend from Utah. He and I have spent many years serving in this body together. There have been countless pieces of legislation that we have worked on together that are the law of the land today. I have great admiration for him.
He is a legislator. I say that because there seems to be a shrinking number of legislators around here regardless of party affiliation. He is a legislator. That means someone who is willing to sit down and work out issues. I wish to begin by thanking and commending him for his efforts on this difficult subject matter, asbestos. This is an area in which I have had a longstanding interest, as many of my colleagues know, going back a number of years. This issue is of critical importance to my State of Conneticut, because it is the home of numerous small and large manufacturers, as well as several major insurance companies. They have a strong interest in the outcome of a resolution of this very perplexing problem of asbestos litigation and related issues.
I have a strong interest in trying to come up with a solution for, first and
foremost, victims of asbestos exposure. It is estimated that more than 27 million people who have been exposed to asbestos over the years.
Regrettably, we know there are many who will die prematurely because of their exposure to this product. In fact, last year alone, 10,000 people in this country died as a result of their exposure to asbestos. The numbers are truly staggering. We know there are over 600,000 past and pending cases involving over 6,000 businesses, that have been cited as defendants in these cases. And we know there are going to be literally millions of people who are going to suffer.
So we must attempt to provide a better answer than the present system which has clogged up our courts, which has denied too many victims-- seriously impaired victims--of the kind of compensation they deserve. I have had a longstanding interest in trying to come up with a solution. We have gotten very close to such a solution.
Let me begin by reporting on the progress that has been made. There is a tendency to only discuss the areas where there is still disagreement, and I think that only tells part of the story. People such as Senator Hatch and Senator Leahy, have worked tirelessly on this issue. The majority leader, Senator Frist, and the minority leader, Senator Daschle and their staffs have also spent a great deal of time on this legislation. Senator Daschle has always kept his door open, and repeatedly tried to see if we could proceed with a meaningful negotiation process. Such a process must occur in order to bring the various parties together around a resolution of this issue.
There are many others who have been critically involved in this issue. We heard from Senator Feinstein earlier and other members of the Judiciary Committee. Senator Nelson from Nebraska has also worked hard on this issue. Senator Carper has also worked on this issue. There are many others who care about this issue and have spent a great deal of time on it. Senator Specter has been performing an invaluable service in trying to work out the administrative structure of the proposed compensation fund. I am sure I am leaving some of my colleagues out, and I apologize for that, knowing, as I do, that almost every State, without exception, is affected by this lingering question. When there are over 600,000 total cases, every State and Senator is affected.
Seventy companies have already declared bankruptcy on this issue alone because of the judgments that have come in against them.
As a result of those 70 bankruptcies, over 70,000 jobs have been lost from these companies. This is a major economic problem, as well as a major health issue that needs and demands resolution.
The good news is this: There are about five or six major issues involved in the question of whether we can establish a bona fide trust that would allow for fair and equitable compensation to those who have been determined to suffer from diseases related to exposure of asbestos. The five or six major issues are the following:
One, can we establish medical criteria which would make it possible to determine who has been exposed and to what extent have they been adversely affected as a result of that exposure. I thought that issue would never get resolved. This has not been an easy task. Can you imagine trying to bring doctors together with organized labor, manufacturers, and insurance companies, all sitting down and agreeing on what the medical criteria for this legislation should be? I am pleased to announce that months ago we were actually able to reach an agreement on the medical criteria. Amazingly, the issue of medical criteria has been resolved.
The second issue is whether we could create an administrative system to process and review claims. This is also not an easy undertaking. Thanks to Senator Arlen Specter of Pennsylvania and thanks to his constituent, Judge Becker, and, by the way, the involvement of a number of our Senate colleagues under the auspices of Senator Specter's leadership--we have reached an agreement in this area we think is going to work.
Creating an administrative system is a major accomplishment. Many people thought we would never be able to resolve this issue. On two of the major five or six issues, we have already achieved results. But it took weeks to work out the details behind these agreements.
An asbestos compensation trust fund idea is complex. It is very complex. When we envision a trust fund that might have to last for 30 years or more, that must deal with thousands and thousands of cases of people who have been exposed to asbestos, it is a serious undertaking. Every comma, every period, every semicolon can and does mean something. So we have to be very careful in how we draft this legislation.
We have hundreds of manufacturers who have been, and continue to be affected by what we are doing. There are major insurance companies that clearly must be involved and will contribute to a trust fund, as the manufacturers will be. Organized labor, representing the hundreds of thousands of victims, must ensure that a trust fund is going to have adequate funding, and that monetary awards are fair and efficiently provided.
We have seen the consequences of the current system. In fact, in the Johns-Manville trust resolution, the trust that was established under the name of that particular company, is a example of the problems with the current system. They believed that the amount of money initially placed put into that trust was going to more than adequately provide for the victims who have been exposed under the Manville situation. As it turns out today, the Manville trust is only paying about 5 percent of the compensation victims should be receiving.
It went very wrong, not because the people who put it together planned it that way, but nevertheless that is what happened. No one I know of wants that to happen here, but it makes my point that this is a complex issue. And that getting this right is very important. We must be sure that this solution is going to work well. So it takes a little time--and in my opinion, it is time well spent.
I do not know why at this very hour we have this legislation before us. It is not ripe yet. It has not matured enough yet. There are still huge issues outstanding.
Obviously, one of the major open issues is the overall dollar amounts. I know it sounds like a lot of money--and there is a lot of money at stake here. But when we start talking about 25 or 30 years of a trust fund's existence, the difference is somewhere around $115 billion and $155 billion, give or take a billion here and there. As Senator Everett Dirksen said: A billion here and a billion there and pretty soon you are talking about real money. This is real money. We are not talking about hundreds of billions of dollars difference. We are talking $20 to $30 billion or so over 30 years, spread among a large number a defendant companies and insurers who face greater losses and greater uncertainty under the current system.
It seems to me if we get actuaries together, and agree at the universe of potential claimants, and provide them fair compensation, we should be able to come up with a neutral number to satisfy the needs of expected claimants.
We have changed approaches from where we started at the outset of this debate. We initially tried to create a bill that was ``evergreen,'' that is, that it would be the complete solution to this problem for as far as the eye could see in the future. However, we began to realize the difficulties of creating a fund that lasts forever. Several factors caused us significant uncertainty. For example, we still import asbestos in this country. There is still asbestos being used, or at least people are being exposed to it even though we now know the problems that result from exposure. So the idea that we are going to have a final number in perpetuity, I think, was abandoned by all sides.
We have contended that this number is somewhere between $115 billion and $155 billion. If that does not end up being right at the end of the day, then we ought to resort back to the present tort system to solve the problem.
I just heard my colleague from Utah say his bill includes that provision. With all due respect, I must disagree with my friend from Utah because the provision in the bill being offered by the Senator from Utah and the Senator from Tennessee, the majority leader, has a 7- year gap between when the trust fund may run out of money and
when the tort system could be used by a victim.
Now, that is hardly reassuring to the victims and their families that the system that presently is in place which provides them some financial relief will be taken off of the table in the event that the trust fund becomes insolvent.
Let me quickly point out as well, that these numbers of 115 or 155-- if one takes the high end or the low end, are hardly unreasonable. The Rand Corporation, which is hardly an organization that identifies ideologically with the left or right or Democrats or Republicans, has estimated that the cost of the current problem is somewhere around $300 billion. So at the outset we are talking about a trust of only $155 billion.
While we disagree over actual dollar amounts at this point, I believe that people of good will, sitting down, can come to an honest compromise that would satisfy all parties involved in this debate.
Another open issue is the value of the claims themselves. If we are able to reach agreement on the medical criteria and able to reach agreement on an administrative system, it seems to me, again, that good people who care about this should be able to resolve this issue and provide fair compensation to victims of asbestos.
Another outstanding issue that needs resolution is what to do with pending claims. There are some claims that have been adjudicated. Some are completely adjudicated, others are only in the discovery process. I do not want to get too technical legally, but I think most people would understand there are some cases that are already mature in the judicial system. Determining at what point in the judicial process, should cases be abrogated and claimants directed into the trust fund is a difficult question. When is the judicial process allowed to be completed where those claims exist? I do not have an answer for that one today, but, again, I think people of good will who care about this issue and realize what a huge problem this is could come to some thoughtful, reasonable compromise on how to deal with pending claims.
That is not the complete universe of all the problems, but those are the major ones. Two of them we have solved. Three or four of them deserve additional time and effort to resolve. Certainly the intent of the amendments adopted in Committee by Senators Feinstein and Biden that addresses pending claims and returning back to the tort system in the event of insolvency are ideas that should be reconsidered and adapted. There may be others ideas that are also helpful.
The point is there are people making suggestions to resolve these questions. I do not understand why this body is being asked to make a definitive decision on this bill that none of us have seen because it was introduced only 2 or 3 days before the last senatorial recess. We are being asked to accept voting on cloture on this matter on Wednesday or Thursday of this week. I might point out that last November or early December we reached an agreement, a compromise, on how to proceed to the class action issue. I happened to be one of those involved in that negotiation. Why do we not bring up that bill? That bill is ripe and ready to go, not that many of my colleagues would support it. But for those of us who are willing to support a class action reform bill, we reached an agreement on that 4 or 5 months ago, and yet that bill is not being brought up. Why not? That bill is ready to go. This bill is not ready to go.
Why are we taking 3 days in a very abbreviated session of the Senate, when we do not have much time remaining, some 30 days, to bring up a matter where there is so much disagreement that could be resolved if we would spend the time doing it as Senator Specter has done, as Senator Daschle has done, and as Senator Leahy has done? I know Senator Hatch and his staff have also worked tirelessly on this topic.
Legislating on a matter like this is hard work. It is labor intensive. Any one of my colleagues, Republican or Democrat, who has been in the Senate for any length of time will say that on major legislation, particularly legislation that is precedent setting such as this is, people are required to roll up their sleeves and put in a tremendous amount of hours to resolve these matters. In my view, it cannot be done thoughtfully or carefully by engaging in open-ended floor debate with amendments flying around that no one really knows the implications of, some of which are passed 51 to 49, others defeated 51 to 49. When we are dealing with something as serious as this, where literally thousands and thousands of lives depend upon receiving adequate compensation, we know we are dealing with a very complex problem.
I urge that a cloture motion not be filed. I know one has not yet been filed, and my strong appeal to the majority leader would be please do not file this cloture motion. There is still time. This is only April. I presume we are going to be here until sometime in early October. Give us the chance, insist upon people meeting and trying to resolve these issues. It may come down that a few of these matters are not resolvable through negotiation, and the only way to resolve them is by having some floor votes on them. I accept that may be the final determination. But we ought not to jump to that when there still is an opportunity to resolve some of these outstanding questions.
I have spoken to organized labor, John Sweeney, and his representatives. They want a bill. It is their membership, many of them, who suffer from the exposure to asbestos. It is their membership that is losing jobs in companies that are declaring bankruptcy. They want a bill, but they want to make sure when they have a bill that the resources will be there to provide adequate compensation.
By and large, the insurance industry, with some exceptions, wants a bill because they realize that the current system is flawed and could cause untold economic hardships on some of these companies. It could cause some of them to collapse, and I am not exaggerating when I say that. They are very interested in getting a bill. I know the overwhelming majority of manufacturers, those that were either involved in the production or use of asbestos over the years, in most cases before anyone knew of the great harms caused by this product, they want a bill.
This is one of those unique situations where all of the parties, all of them, and including, I might add, many of the trial lawyers involved in this area, understand some different resolution of this issue is needed other than the present tort system. Obviously, that is not the view of everyone who is a trial lawyer, but many of them have already spoken out on this issue.
So we have a unique political environment where the major participants are anxious to get a bill. I rarely find that. Normally one finds people highly divided where labor or business is at complete opposite ends of the spectrum on a matter that is before us. Here, nearly all stakeholders want a bill. Instead of sitting down and keeping people at the table and working it out, we are prematurely bringing up something causing this bill likely to fail, and fall before we have an opportunity to resolve the differences. As I said a moment ago, why not bring up class action? Why not bring that up? That is ready to go. Where is the business community that has said to me over and over again: Why don't we get a class action bill here? We have been ready since November and December. Here it is April and nothing has happened on class action. Yet you bring up and consume 3 days of time on the floor of the Senate with a bill that everyone knows, if you invoke cloture or file a cloture motion on the motion to proceed, it is going to fail. And it should fail. It should fail. I say that with deep regret.
I have committed the time of staff members and my own time over the last number of years on this issue. I think to come this close to resolving a major issue affecting the lives of hundreds of thousands of people and their families and attempt to address it in a premature fashion is a huge mistake.
So my appeal to my colleagues is: Sit back and work this out. It is hard, but it can be done. And, if we get near the end of the session and we have not been able to resolve everything, either wait until we get back in January or bring it up and leave a smaller number of issues out on the floor to be resolved
by votes on the floor and healthy debate. But don't jam this now, particularly when we know the outcome, taking up the valuable time of this body on the floor where the time can be better used to take up issues where there has been agreement, at least agreement by a significant majority of us to move forward on the legislation. That has been done now on class action.
Why doesn't the majority leader come over and move to proceed to that bill so we can vote on it? We have been ready for that now, as I said, since 3 or 4 or 5 months ago. There has been no action at all. No action. Why not? Why is that bill not on the floor right now, being debated and discussed?
Of course we have seen the same thing with medical malpractice. There is no effort to negotiate it out. There is a proposal on the Democratic side. It is different from what the majority has proposed, but not that different. You could bring those two sides together and resolve the issue. Doctors deserve better than they are getting. They are being told the Democrats are stopping everything. Why is it the majority refuses to even sit down and try to work out the differences?
I stand ready. My staff does. Again, I am not a member of the committee. Obviously, Senator Hatch and Senator Leahy, as I mentioned earlier, have done a tremendous amount of work on this and deserve a great deal of credit for trying their best at this.
The leader on this side, politically, is Senator Daschle. I have been with him on numerous occasions when we met with the manufacturers, met with the insurance industry. As Senator Daschle has said over and over again, his door has been open to do whatever it takes to try to get a bill done. I know from personal knowledge he has offered on numerous occasions to meet with the majority leader and others to try to figure these things out.
I mentioned Senator Specter already. Senator Biden, obviously, Senator Feinstein, and a number of others have been involved in this, trying to get this done. My hope is that the majority leader will not wait until Thursday. Listen to us over here. We can get this done. It could be a proud moment of this Senate's session, to have actually come up with an answer to a major problem in this country. We are getting very close to resolving it. It will take a little more work, in my view, over the next coming weeks, but it could be done.
My plea this afternoon would be that filing a cloture motion on the motion to proceed would be withheld, that we bring up other matters that are ripe and ready to go forward, and send the people back to work on this bill and let's see if we cannot draft a piece of legislation of which America can be proud.
Mr. President, I suggest the absence of a quorum.