Floor Statements

Mr. President, I ask unanimous consent that Jessica Segall from the Office of Senator Chris Dodd be granted floor privileges during the Senate consideration of the Class Action Fairness Act of 2004.

Before the distinguished majority leader leaves the Senate floor, I wanted to alert him and the two managers of the bill that after morning business, we have a number of Democratic Senators, both for and against the legislation, who wish to make opening statements on the bill. I have six Senators who have contacted me, and the time they will consume will probably take us until at least the noon hour on just opening statements on the bill. I have not heard from anyone else, but I wanted the managers to know that. I have heard--I am not sure this is the case--that the managers are going to first look to a Republican to offer an amendment, and then how we normally do things is to go back and forth. There is certainly no rule that that needs to be the case, but we do, after morning business, have a number of Senators who wish to make statements on this bill. Under what we have done in the past, that certainly is appropriate. No one has taken an inordinate amount of time.

Mr. President, when the distinguished Presiding Officer makes a statement as to our going into morning business, I would ask unanimous consent that Senator Lincoln be recognized on the Democratic side for 15 minutes and Senator Harkin for 10 minutes.

Will the Senator yield for a question?

Would the Senator succinctly state what harm was done, or could have been done, as a result of divulging the name of this woman?

And these people, I interrupt the Senator through the Chair, did not know--her friends, neighbors, people around America--she was a spy; is that right?

And the people supplying her information certainly did not want the world to know the information they were giving to this woman was information being given to a CIA operative; is that true?

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 President, I ask unanimous consent that order for the quorum call be rescinded.

Mr. President, I ask that the time under the quorum call be charged against Senator Lincoln to whom I, through the Chair, yielded 15 minutes. I ask that the time be charged against her.

I suggest the absence of a quorum.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I have been told that Senator Lincoln is unable to be here. I yield her remaining time to the Senator from Illinois, Mr. Durbin.

Will the Senator from Illinois yield for a question?

I say through the Chair to my distinguished friend from Illinois, also the two constitutional issues, gay marriage and flag burning, no matter how strong someone may feel about each of those, would the Senator acknowledge they have no chance whatsoever of passing, so we are not only taking up issues that may be secondary to the vast majority of the American people, but also they have no chance of passing? All they are doing is bringing these up to try to satisfy a small number of people in this country to divert attention from the real pocketbook

issues the American people deal with every day. Would the Senator acknowledge that?

Mr. President, if the Democratic time has expired, the Chair has not properly advised the minority. I yielded 25 minutes this morning to Senators Lincoln and Senator Harkin, leaving 5 minutes. So where has the 5 minutes gone?

I am sorry. I should never step off the floor.

No problem. I should never step off the floor.

I ask unanimous consent that each side have an additional 5 minutes.

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

Mr. President, how much time, if any, remains in morning business?

Mr. President, if my distinguished friend, the chairman of the Judiciary Committee, would yield that back on behalf of the Republicans, we could get to the bill.

Reserving the right to object.

Mr. President, my distinguished friend, the senior Senator from Kentucky, who is my counterpart, indicated that on May 20 or 21--I indicated at that time publicly that we could finish the Defense authorization bill in 10 more days. He didn't go on to say that is what we did. That really is not quite true. We took 11 days. So my statement was 1 day off. Of course, it was interrupted by President Reagan's funeral and a few other things. When we came here and we told the majority they could finish the Defense authorization bill in 10 days, we were 1 day off. So no one should make a big deal out of the fact that the time was more than 10 days because, unfortunately, President Reagan died.

I want the record to be spread with the fact that I am a trial lawyer. I am a proud trial lawyer. I graduated from law school, and I went back to Nevada and tried lots of cases. I have had over 100 jury trials. I have tried murder cases, and I have tried robbery cases. There was a period of about 4 years of my life where I defended insurance companies. I have tried cases as a plaintiff's attorney in slip-and-fall cases. I have tried automobile accident cases where some people were injured severely and some were killed. I have done liability litigation. I did an antitrust case, and I didn't know enough about it. Shell oil company drowned me with depositions all over the country. I settled for a fraction of what it was worth. That was the last antitrust case I took. But I took one in San Francisco with cocounsel who knew what he was doing in my first antitrust case.

I have never done a class action lawsuit. But there are attorneys who specialize in class action lawsuits. Are these people who specialize in these lawsuits a bunch of bums who are cheating the system and doing illegal things?

As my friend from Utah has said, it may not be fraud, but it is close to it--or words to that effect.

Lets talk about a few issues that I know of which were class action lawsuits. A lot of us have had the experience of receiving a telephone bill when we didn't sign up with AT&T, but they are on our bill. It is called ``slamming.'' They put their product on your bill without your permission. People had to pay these bills. We didn't do anything legislatively to stop it. An attorney filed a class action against AT&T saying don't do that. Why? Because people were being charged $8 to $10 a month for a product they didn't ask for. This was stopped as a result of a class action lawsuit. They were enjoined from doing it and had to pay the people they cheated with actual dollars.

One of the great movies I watched--because it was true--was called ``Erin Brockovich.'' Erin Brockovich--just to recount what she did, for lack of a better word--was a paralegal but not one who was really trained to be a good paralegal. But she was trained and wanted to go help people. She went around and dug up information like one of the sleuths you hear about in a good mystery novel, or watch on television--a private detective. She went around and did some sleuthing and came out with the fact that the ground water was being contaminated with pollutants from a company. She got a friend, a lawyer of hers, to file a lawsuit, and sure enough they won. They found the ground water was being contaminated.

As a result of this class action lawsuit, Erin Brockovich became a hero. People had been killed as a result of this company, and no one else had to die or become sick.

That was a class action lawsuit. Is there anything wrong with that? I think not.

We all know all about the big tobacco cases. A lot of people do not know about a tobacco company that started advertising a light cigarette, and you smoked as much as you wanted--no problem. That was the advertising. They were lying. They were cheating. It wasn't true. How was that resolved? We didn't stop it here in the National Legislature. It was stopped as a result of a class action that was filed. Sure enough, light cigarettes were gone.

Lots of environmental cases have been decided by class actions. Companies were doing awful things to the environment, and people asked about the detriment being created. They went to the Government, and the Government did nothing. As a last resort, who do you go to? You go to a lawyer.

We have a big class action pending now--Wal-Mart, big, fat Wal-Mart. The initial evidence indicates that they have been discriminating against women from the day they became a company. There is a big class action lawsuit against Wal-Mart. We didn't do anything about it here legislatively. But this class action lawsuit, I have been told, is almost a slam dunk--that Wal-Mart is going to lose that and the women they have discriminated against will be made whole.

Not right now. I will finish my statement. I know my friend is an avid supporter of this legislation. I admire him. We came to Congress together. I am going to finish my statement. I have been waiting 2 days to do this, and I want to finish my question.

I yield for a question.

I don't know. I talked to some attorneys today involved with the case. I did not ask them that.

I ask a question to my friend, certified in State or Federal court?

Mr. President, I appreciate my friend asking the question which, as far as I am concerned, at this stage is meaningless.

Class action is an important part of our legal system. It has done a great deal to help people work their way through the process. The fact that I as a trial lawyer have not taken a class action lawsuit does not mean I didn't like class action litigation. It is a specialty. As with the example I gave dealing with antitrust litigation, you better know what you are doing before you get into the class action litigation.

We all know what took place with tobacco litigation. Attorneys general from all over America joined in that. The State of Nevada has benefited from that class action litigation dealing with tobacco. We have a program a Republican Governor in the State of Nevada initiated that is very popular. It

is called the Millennial Scholarships. If you graduate from a Nevada high school--any place in Nevada; there are 17 counties--with good grades, you get to go to school with your tuition paid for by tobacco.

That is what this is all about. It is about people having the opportunity to go forward with litigation, when normally these people would be totally unprotected. When we do things legislatively, it is rare that people who have been harmed get their money back. That is an effect of class action.

As we speak about attorneys general, I received in my office yesterday a letter from the attorney general of the State of New York. I have never met Eliot Spitzer. I know him by reputation. He is one of America's great attorneys general. The State of New York has been--I don't want to say ``blessed,'' but for lack of a better word, New York has received a great deal from that man who has taken on big companies, to his detriment on many occasions. We have a letter from him sent to Senator Frist and Senator Daschle. The letter is three pages long. I ask unanimous consent it be printed in the Record.

Mr. President, this letter Eliot Spitzer wrote, joined by the attorneys general of California, Illinois, Maine, Maryland, Massachusetts, Minnesota, Montana, New Mexico, New York, Oklahoma, Vermont, and West Virginia, says the legislation now before this body right here today, now before the Senate, is inaptly named Class Action Fairness Act.

I will begin by reading excerpts from a letter the Senate Republican and Democratic leader recently received from Attorney General Spitzer. The letter was sent by Spitzer, as I have said, in opposition to this legislation. Joining in the letter are the attorneys general I mentioned from other States.

There are a number of Members of this body who have been attorneys general in the past. The one that comes to my mind is Senator Bingaman. Senator Bingaman is representative of the people who become attorneys general. He went to undergraduate school at Harvard College, he graduated from Stanford Law School, two of the finest educational institutions in the world, and

he was an attorney general. He understands, as well as any, that special weight should be given to the authors of the letter. It is an attorney general's job to prosecute violations of the law.

These attorneys general begin by stating:

We strongly recommend that this legislation not be enacted

in its present form.

The letter goes on to explain that under the bill:

. . . almost all class actions brought by private

individuals in State court based on state law claims would be

forced into federal court . . . and many of these cases may

not be able to continue as class actions.

I say to the distinguished chairman of the Judiciary Committee, the example he used with the State of South Dakota, 100 plaintiffs and $5 million, there is not a class action case that you would not have at least 100 plaintiffs and at least $5 million in damages. That is pretty easy to do. As Senator Daschle said, that case would likely not occur in South Dakota.

The reason attorneys general say almost all class actions brought by private individuals in State court based on State claims would be forced into Federal court, and many of these cases may not be able to continue as class actions, the reason this is important, the letter explains:

All attorneys general aggressively prosecute violations of

our states' laws through public enforcement actions filed in

state courts. Particularly in these times of state fiscal

constraints, class action provides an important ``private

Attorney General'' supplement to our efforts to obtain

redress for violations of state consumer protection, civil

rights, labor, public health, and environmental laws.

That is, class actions help ensure that violations of these important laws do not go without punishment. The threat of such enforcement helps ensure compliance with these laws.

The authors of this letter note that some reform may be appropriate, an argument I do not disagree with. They find that:

However, S. 2062 fundamentally alters the basic principles

of federalism, and if enacted would result in far greater

harm than good.

Joining in their opposition to this bill are the AARP, AFL-CIO, Consumer Federation of America, Consumers Union, Leadership Council and Civil Rights, NAACP, and Public Citizen, to name a few.

The attorneys general letter also spells out the particular problems which arise from this legislation's broad expansion of Federal court jurisdiction.

This transfer of jurisdiction in cases raising questions of

state law will inappropriately usurp the primary role of

state courts in developing their own laws and will impair

their ability to establish consistent interpretation of those

laws.

They go on to say:

There is no compelling need for sweeping change in our

long-established system for adjudicating state law issues.

Most importantly, the attorneys general note that:

. . . by transferring most state court actions to an

already overburdened federal court system, this bill will

delay (if not deny) justice to substantial numbers of injured

citizens.

This is the case, they note, because the class actions this bill will stop are important ``mechanisms for adjudicating the claims of low-wage workers and victims of discrimination, and there is no apparent need to place limitations on these types of actions.''

They conclude their letter by reminding this body, the Senate:

Equal access to the American system of justice is a

foundation of democracy. S. 2062 would effect a sweeping

reordering of our nation's system of justice. It will

disenfranchise individual citizens, while retaining redress

for harm and thereby impede efforts against corporate

wrongdoing.

In recent months, events here and abroad should remind us of the importance of this last remark and the consequences. Our justice system is fundamental to sustaining our democratic values as a nation. This bill takes too broad a strike at the heart of the system and undermines these very values.

I know the majority leader has a very difficult job. He has to balance what we do and what we do not do. I don't in any way denigrate the difficulty of his job. But I also remind my distinguished friend, the Senator from Tennessee, the Senate is going to be ongoing long after he leaves this body and long after I leave this body. We have had approximately 1,750 Senators who have served in this body. During those periods of time, there have been some who have done things that delayed pieces of legislation. We have done things over the years that have made this body appear not to be as coordinated, as efficacious as the House. That is right. That is the way we are. The Senate is that way. We will continue to be that way.

We are not a House of Representatives that has absolute dominance with the party that rules. The party that is in power in the House is like the British Parliament. The distinguished Presiding Officer served in the House of Representatives for a time, as did I.

That Rules Committee is an aggravation. They determine on every piece of legislation how long the debate will be, if they are going to allow amendments, and how long you can debate those amendments.

But the chairman of the Rules Committee and the members of the Rules Committee are chosen by the Speaker of the House of Representatives, and they do what he wants done. I accept that system. That is the way the House works. It is a large body of 435 people. They can work more quickly than we can. If they did not have the Rules Committee, they would not get anything done.

The Founding Fathers, in their wisdom, set up this system of the legislature where you have one body such as the House of Representatives that is in touch with the people every minute of their 2-year existence, and they can rush things through that body now as they did 200 years ago.

The Founding Fathers wanted, as we have been told numerous times, a saucer that would cool the coffee. That is what we are. And no matter how inconvenient the Senate is to that party in power--and we have been in power on occasion--no matter how the Senate rules slow us down, cause us problems, we have to be the Senate.

I respectfully suggest to the majority leader he is making a big mistake here in not allowing the Senate to be the Senate. We have only a few days left--32 days left--and some of those days are Mondays and Fridays, and we do not get a lot done around here anymore on Mondays and Fridays. Thirty-two days.

We have a lot to do, and I recognize that. That is why the Senator from Idaho and the Senator from Massachusetts have every right in the world to offer this nonrelevant, nongermane amendment because, as the Senator from Idaho said, we have a season coming, farm season. Crops are growing now. Crops are going to have to be taken from the ground in a few weeks.

This legislation is so important, during the Fourth of July Members of Congress were working on this amendment, and I received calls at my home in Searchlight, NV, of legislators interested in this legislation, seeing if there was something I could do to help them move it along. I said: We have a piece of legislation coming up. The debate on your amendment is not going to take very long. This is an appropriate vehicle to do it.

That is what the Senate is all about. We should not fill the tree. What this means is for the legislation now before this body, no one else can offer an amendment. They cannot offer a relevant amendment. They cannot offer a nonrelevant amendment. They can do nothing because it has been filled up. We on this side are not going to allow that.

I know the distinguished senior Senator from Connecticut likes this legislation. I am sure it is not perfect. I know he has worked on it for years. But I have every confidence--he being a more senior legislator in the Senate than I am--I have no doubt that he does not like what took place here in a parliamentary fashion today. He believes in the Senate. He believes the Senate should work as the Senate and that we should not bring a piece of legislation here--no matter how important the majority feels it is, you cannot bring a piece of legislation before this body and say: This is more important than other things and we are not going to allow any amendments on it. That is wrong, absolutely wrong.

I know my friend from Connecticut. I do not know of anyone in the Senate who is a better orator than the Senator from Connecticut. There is no one in the Senate who can better express himself than the Senator from Connecticut. But I say that even someone

who is a proud sponsor of this legislation cannot go along with what the majority leader is trying to do. I have talked to him. I know the Senator from Connecticut. We cannot allow this to happen. We may have some disagreements on this legislation, as I have outlined how I feel about it. I do not think it is necessary. I think it is improper. I think we need to do some things to improve class action, but this isn't it.

But the majority has shot themselves in the foot. This is foolishness. We have wasted all day. We could have a couple, three amendments already debated.

So I say to my friend, the manager of this bill, I am no neophyte here. Cloture is going to be filed today and we will have a vote on cloture on Friday morning, and we will have to see how the cards stack up Friday morning. But if I were a betting man--and I do not bet on anything--I would say cloture will not be invoked on this legislation Friday morning.

Madam President, my good friends have been waiting all morning to speak. I wonder if the Senator from Utah would allow a unanimous consent agreement that they could speak next in order, the two Senators from Massachusetts and Connecticut.

I do not know how long they would speak.

It is my understanding the Senator from Massachusetts needs about 15 minutes and the Senator from Connecticut about 30 minutes; is that right?

Madam President, I ask unanimous consent that the Senator from Massachusetts be recognized for 15 minutes, followed by the Senator from Connecticut for up to 30 minutes.

Madam President, before I leave the floor, I express my appreciation to the Senator from Utah. I know he would like to respond to what I said and he will want to respond to what the Senator from Massachusetts says, but I appreciate his courtesy here, as usual.

Will the distinguished Senator yield for a question?

I thank the Chair.

Mr. President, I want the Senator to comment on this statement. Here is a good-faith effort to move a bill--I do not like the bill. OK, I do not like the

bill, but we have a few Democrats who like it, so we decided not to stand in the way of this legislation.

I have a letter from Jerry Jasinowski who is the president of the National Association of Manufacturers. Here is what he said yesterday, and I want my friend, the distinguished Senator from Wisconsin, who supports this legislation and others to hear what this plan has been. This is not something that came up this morning.

He writes on this card to one of the Members:

I urge you to vote in favor of cloture.

There was never any intention of this being a fair deal out here; will the Senator agree with that?

Will my friend yield for a question?

I want the record to reflect that I know how deeply the Senator from Delaware feels about this issue. There are not many issues where the Senator from Delaware and I disagree. This is one of them. I know how strongly he feels. Also, I know how strongly the Senator from Delaware feels about other issues. For example, even though the Senator from Delaware feels extremely strong about this bill, when there came a time a few weeks ago when the majority leader made a tentative decision to move off the very important Defense authorization bill, I called my friend from Delaware and I said: Don't you agree that we should finish the Defense bill before we move to class action? Without any hesitation, the Senator, being a veteran himself, who has hundreds of hours in an airplane for our country, said yes.

As a result of that, Senator Daschle and I gave the Senator from Delaware our word that we would do everything we could, as soon as the Defense bill was completed, to move to this bill. In fact, we made a unanimous consent agreement that the minute we finished the Defense bill we would move to the class action bill.

I am disappointed, but not that the bill is not going to go anywhere because I don't like the bill; I am disappointed in the way the bill was disposed of. This is like having a football game and the football field is only 90 yards long. It is not fair to either side. I want the record to be spread with the fact that the Senator from Delaware has been fair in all his dealings in the Senate. The example I just made was the Defense authorization bill. That was a prelude to the question. I am terribly disappointed because it appears to me that this has been in the minds of the majority for some time, at least in the minds of the majority yesterday, July 6. We have a card that was sent to one Senator from the National Association of Manufacturers, dated yesterday, July 6. Today is July 7.

Dear Senator: On behalf of the 14,000 member companies in

the National Association of Manufacturers, including more

than 10,000 small and medium-size manufacturers, I urge you

to vote in favor of cloture on this bill.

This was planned yesterday. So I am disappointed because we are playing on a football field that is not quite long enough. That is too bad, not for the end result that I see, but I believe, as the Senator from Connecticut so well described, in this institution. Having served in the Congress of the United States for 22 years, as I have, I believe in the institutional integrity of these bodies. When you see something such as this, it means there is not a fair hand being dealt. He is someone who believes strongly in legislation.

Frankly, I think people have taken advantage of the Senator from Delaware. He is a very hard person to take advantage of because he has a lot of experience in government. This has not been fair. It is not good for this body and it is not good for individual Senators.

I thank the Senator for yielding. I was supposed to ask you a question, but I didn't do that. I hope the Senator understands. I wanted to make sure he was on the floor.

If the distinguished leader would allow me to say a few words, and it will be a few words, as I said earlier today the role of the majority leader is extremely difficult. While I disagree with the action taken of filing the motion for cloture, I understand that. But after having said that, there have been many speeches given today. We have heard enough on this issue and we should move forward.

Mr. President, will the Senator yield?

It is my understanding that on the matter we are about to consider there are 6 hours under the order before the Senate; is that right?

We are starting at approximately 10 after. We will have a little more than 2 hours before the lunch break, and we will come back at 2:15. So if all 6 hours were used, what time would we vote tonight?

OK. So if we are going to do what the majority leader suggests, someone would have to yield back some time for us to be able to vote at 5:30. That is doable. I appreciate that.

Mr. President, how much time remains on the minority side?

We have Senator Schumer and Senator Durbin here to speak. We can divide that time between the two of them, so 7\1/2\ to each Senator, with Senator Schumer first.

I announce that the Senator from North Carolina (Mr. Edwards) and the Senator from Massachusetts (Mr. Kerry) are necessarily absent.

Mr. President, today I rise to remember Sue Powers, a woman who devoted her last years to honoring the memory of cold-war veterans, and the widow of famed U-2 pilot Gary Powers.

When the United States salutes its war heroes, those who fought the cold war are often overlooked. Sue Powers, who died last month in Las Vegas, worked tirelessly to change that, and to preserve this important chapter of our history.

Mrs. Powers served as a volunteer at the Atomic Testing Museum in Las Vegas, and was a founding member of the Cold War Museum.

``She was as much of a cold-war warrior as her husband and believed in him and what he did through the events in the Soviet Union'' said Troy Wade, chairman of the Nevada Test Site Historical Foundation.

Mrs. Powers, born Claudia Edwards, grew up in Warrenton, VA., and Washington, DC. After graduating from Anacostia High School, she went to work for the Central Intellegence Agency as a psychometrist.

In 1962 she met Francis Gary Powers, a famed U-2 pilot. Two years earlier in 1960, Powers had been shot down and taken as a prisoner of war while flying his U-2 spy plane over the Soviet Union.

Gary and Sue met just after Gary's return from Russia. He literally bumped into her when he walked around a corner near their offices. According to their son Gary Jr., there was spilled coffee, which led to a cup of coffee, which led to dinner, which led to romance and marriage.

Sue left the CIA and the couple was married in 1963. After their marriage they moved to Sun Valley, CA, where Gary worked as a pilot first for Lockheed then for KNBC television. They worked together to preserve the memories of those people who sacrificed their lives during the cold war. Sue was left to carry on their cold-war crusade alone after Gary died in a helicopter crash in 1977 while piloting for KNBC.

After her husband's death Mrs. Powers moved to Los Angeles and eventually to Las Vegas. She devoted the rest of her life to preserving the legacy of her husband and other heroes of the cold war. She was honorary chairwoman of the Silent Heroes of the Cold War National Memorial Committee.

As a citizen of Nevada, Mrs. Powers worked especially hard to preserve Nevada cold war history. Her husband was trained at Area 51, a military facility in Nevada, and Mrs. Powers was well aware of the many other contributions that Nevadans made during the cold war.

Many Government personnel were trained at Area 51, Nellis Air Force Base, or the Naval Air Station in Fallon. Nevada was also crucial to the cold-war effort because it was home to intercontinental ballistic missiles, fight training centers, nuclear weapons test sites, and strategic tactical resources.

Mrs. Powers appreciated the importance of these contributions and was diligent in her efforts to ensure that the Silver State's role in the cold war was not forgotten.

Sue never swayed in her loyalty to cold-war veterans or her determination to ensure their sacrifices were not forgotten. For this, she herself is a hero. It is only fitting that she will be buried on July 13 in Arlington National Cemetery, along with her beloved husband.

The question was asked six or seven times last night as we were leaving. Tuesday, when we come back, the leader has indicated there will be a vote sometime after 2:30. Those from the West are wondering if that might be closer to 5 o'clock. Has the leader made a decision on that?

On our side, the Democratic leader has indicated he will hold the regular caucus on Tuesday. Do you plan to do the same thing?

Madam President, it is my understanding the two leaders do not expect a recorded vote on that.

Mr. President, through the Chair to the distinguished chairman of the committee, we have come so far in the last 12 hours. It would not have happened but for the Senator from Alaska and his advocacy, which is unparalleled. His advocacy is in a category all its own. The working relationship that the Senator has with Senator Inouye, of course, is legend. We look forward to doing what the Democratic leader said and finish this bill today.

I announce that the Senator from Massachusetts (Mr. Kerry) is necessarily absent.

Mr. President, I ask the chairman's request be modified: Or whatever the two managers agree on? Because there may be something.

I announce that the Senator from Massachusetts (Mr. Kerry) is necessarily absent.

I announce that the Senator from Massachusetts (Mr. Kerry) is necessarily absent.

We are going to do that one next.

Reserving the right to object.

Will the distinguished Senator from Kentucky modify his request to allow for a 10-minute vote rather than the normal 15 minutes?

I announce that the Senator from Massachusetts (Mr. Kerry) is necessarily absent.