Floor Statements

Mr. President, it is my solemn duty to rise before the Senate to pay tribute to one of the great sons of Utah, SSG Gregson Gourley.

Sergeant Gourley, who grew up in Sandy and Midvale, UT was killed last week with three other members of the 1st Battalion, 327th Infantry Regiment, 101st Airborne Division (Air Assault) near Hawijah, Iraq.

As I sat down to learn more about Sergeant Gourley's life, I was struck by his dedication to service. He first served as a missionary in Pennsylvania for The Church of Jesus Christ of Latter-Day Saints, then spent 16 years as a member of our Armed Forces. His aspiration for the future was to begin a career in law enforcement.

According to what his comrades have said, Sergeant Gourley's service surpassed the motto of his battalion: ``Above the Rest.'' Not surprisingly, he had previously been decorated for meritorious service.

I believe that his grandmother, Adena Gourley, said it best, when reflecting on the sergeant's life:

He was a very gentle person. He has a great desire to be an

outstanding soldier and an outstanding man.

Mrs. Gourley, I can say that, by all accounts, he achieved those goals.

Sergeant Gourley's passing is a further tragedy because he leaves behind a wife, three sons under the age of 10, and a newborn daughter.

To his boys, and especially little Alexa, over the years you will learn more about your father and that he was a remarkable man. But you should always remember that your father was a hero, a man anyone would be proud to call father, and our country will forever owe a debt of great gratitude to him for his unselfish service to our country.

I hope my colleagues will all join me in saluting the bravery of Sergeant Gourley, and in sending our condolences, prayers, and best wishes to his family during their time of sorrow.

Sergeant Rickey E. Jones

Mr. President, I would like to take a moment to recognize one of the greatest foreign athletes to play in my home State of Utah-- Kresmir Cosic.

My dear friend from Yugoslavia fell victim to cancer in 1995, but this Saturday, Brigham Young University will officially retire Kresmir's No. 11 jersey during a ceremony at BYU's final home game this season. It is a fitting tribute to a four-time Olympian and two-time all-American already enshrined in the Basketball Hall of Fame.

Kresmir--or Kresh, as I called him--is a legend at BYU, but he will most likely be remembered for opening the door for foreign athletes in American colleges and the NBA. He truly had a global influence--Drazen Petrovic, Toni Kukoc, Dino Radja, and Vlade Divac are just a few players who owe their success in America to their former coach from Yugoslavia.

When I visited Yugoslavia one time, Kresh heard that I would be in Zagreb and drove up from Zadar so he could introduce me to one of his former players, who was a leader of The Church of Jesus Christ of Latter-day Saints in the area. He arrived in a VW bug, and to see Kresh unwind out of that little car was a humorous experience.

I considered Kresh to be a tremendous friend. When he became the deputy ambassador for his country, he went out of his way to see me, and I was more than pleased to be an advisor and help him. He tirelessly walked the halls on Capitol Hill, trying to dispel misunderstandings about Croatia and Bosnia and the Serbian war waging in his native land.

The last time I saw Kresh was at Johns Hopkins Medical Center. The doctors thought he was in a coma, but when I spoke to him, tears came to his eyes, and a warm look of caring showed he understood my words of consolation.

After his death, when once again I was in his native land, I was pleased to see his wife, the person he loved so much.

Mr. President, I have only mentioned just a few highlights from the life of this great man. I ask unanimous consent to have printed in the Record a touching article from the Deseret Morning News that summarizes why so many of us in Utah are looking forward to finally seeing his jersey hang from the Marriott Center's rafters this weekend.

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

I yield myself time from the time of the Senator from Pennsylvania.

Mr. President, every couple of years, this august chamber is given a chance to make good on its billing as the greatest deliberative body in the world, to set aside the predictable partisanship that today passes for deliberation and, instead, work together to solve a real problem besetting our Nation.

We face such a moment today. Later this afternoon, each of us will have a choice. Either we will vote to address a litigation crisis that has made a mockery of our judicial system--and demonstrate that we, as a body, can still function when absolutely necessary--or we will use a clever, parliamentary maneuver to avoid having to face a problem that is too inconvenient and confounding to fix without political cost.

We have been here before, and we have failed miserably. Why? Because, unfortunately, the most effective legislative solution is also the most politically impracticable. To solve the asbestos crisis, conservatives are being asked to turn a deaf ear to many of our traditional supporters and endorse the very kind of Federal structure against which we battle daily--a cumbersome, unwieldy program that seems to teeter on the brink of obsolescence before it even begins.

And liberals are being asked to say enough is enough to one of their most important and influential constituencies and to set aside the one governmental institution over which they feel they can still exert some control--the courts. It is a legislative formula that seems designed for failure.

And then there is the greed. Oh, yes, the greed. For years, Members from both sides have waxed eloquent condemning the pecuniary gluttony of one side or the other but, in truth, there is so much greed among so many that it has obliterated any chance for an accurate debate of the realities we should be confronting.

What are those realities? Let us be honest. By this time, we all understand that asbestos litigation has swallowed companies whole, driving them into bankruptcy, wiping out jobs, careers, pensions, health care, and hope. All of us know that those who mined asbestos and used it to manufacture products are long gone, demolished in the first wave of lawsuits. All of us appreciate that today, far too many businesses are being targeted more because of their perceived wealth than their presumed culpability.

All of us realize that under the current system, tens of thousands of Americans who are the most sick, the most deserving, have no place to seek compensation. Veterans exposed by their government and hard working men and women left sick by their now bankrupt employers have become the jetsam of this litigation--cast aside by the new potentates of asbestos--a small, infamous gaggle of personal injury lawyers who have manipulated victims, companies, and the courts to divert billions and billions of dollars to their own pockets. Amazingly, not even such a massive transfer of wealth from so many to so few is enough. Even as we speak today, their lobbyists stand literally feet away, pandering advice, counsel, and contributions to those who will prevent their despicable avarice from being stopped.

But the greed can not be laid just at the feet of some lawyers. There are also companies who have grown weary of paying, not just the wrong people, but paying for their real and technical complicity. There are corporations who want to be free of mistakes they made during the merger and acquisition madness of the late 1990's. And there are businesses that believe they can game the current system, relying upon insurance and the inherent lethargy of litigation to delay paying what they owe.

Then there are insurance companies, some of which fear having to make good on the policies they sold. Even after nearly a decade of debate on this issue, no one is certain exactly who is responsible, especially with the tangled web of insurance and reinsurance and domestic insurance and foreign reinsurance.

Of course, all of us know there is also an unacknowledged giant in the room. For nearly half a century, the Federal Government of the United States was one of the biggest consumers and promoters of asbestos. Today, people are dying from mesothelioma, not because of corporate misdeed but because they worked in the boiler room of a naval ship or in a military shipyard or in the furnace room of an Army base. The Government required asbestos to be used in buildings and workplaces, in factories, homes, and schools. Yet today, as we discuss how best to solve the asbestos epidemic, the Government's own responsibility is not to be mentioned.

Finally, all of us know the current tragedy will not abate on its own. Over the last 6 years, we have proven conclusively, beyond any shadow of doubt, that while we have stood frozen, incapable of any, even the slightest remedial act, the avarice of asbestos has become an industry unto itself.

These are the realities we face today. What are our options? Some on my side of the aisle have suggested the adoption of a medical criteria bill, legislation that would make changes in the applicable litigation rules in State courts. I understand their motivation, but they have to appreciate that it falls short with respect to the most compelling players in this tragic tale--veterans and employees of bankrupt companies who have no place to seek relief. It does nothing to address the manipulation of liability and responsibility which has become commonplace at the State court level. Such a solution was inadequate 4 years ago, it is inadequate today, and it will still be inadequate 2 years from now.

Then again, at least it represents an attempt to solve this crisis. For the past decade, there has been a thundering silence from too many on the other side of the aisle. They are quick to criticize what has been suggested, but not once in more than a decade have they proposed their own solution. Not once have they come up with one idea that might possibly help solve this crisis, for a very good reason: their top hard-money contributors happen to be the people who bring these suits.

This year, they have raised the canard of lost days in court. They are like people who, when they find a man dying of thirst in the desert, give him an empty glass. Now, if by some miracle you find water, they proclaim, you can quench your thirst with the dignity and decorum you deserve. As the man slowly dies from dehydration, they marvel at their own benevolence.

They know that a day in court is meaningless to a veteran who cannot sue his government or an employee who cannot sue a bankrupt company. They know a day in court is worthless to those who currently are being paid only pennies for every dollar of their settlements. For nearly a decade, their objections have been endless and their solutions nonexistent.

So, Mr. President, we arrive today at a critical juncture. We have rejected the suggestion of a medical criteria bill. Our choice is simple: We can act or we can hide. We can vote to keep working on the Specter-Leahy legislation, or we can vote for the budget point of order and stop the legislation dead in its tracks. It is a clever tactic, using the mantle of fiscal responsibility as an excuse not to legislate. Of course, leaving the asbestos crisis unresolved is the ultimate act of fiscal irresponsibility. And, since the Specter-Leahy bill does not require 1 cent of Federal money--this budget point of order is a sham. And we all know it.

Or we can hide behind a cloture vote, knowing that without cloture, the bill will be pulled from the floor and the status quo--the ridiculous and irresponsible status quo--will be preserved. In today's world of relentless stalemate and partisanship, it is a vote easy to explain and justify. But each of us also knows these measures are nothing more than procedural subterfuges--some parliamentary arcanum designed to confuse the public about what is really happening. The Senate has failed the country on this issue before. The time really has come to act.

The Specter-Leahy bill before us is by no means without flaws. All of us admit that. All of us understand that the legislation is--like major pieces of legislation at a similar juncture--a work in progress, the inevitable product of a political process that to date has been as dysfunctional as it has been prolonged. Yet even with its shortcomings, the legislation represents the best hope, the most salient chance for an effective legislative solution. And we will not even have a chance to get that far if we do not pass it on the floor of the Senate.

We know this is step one--actually step two in at least a four-act play. The committee passed it out of the committee. If we can succeed in passing it out of the Senate, the House has to pass its bill, and then we have to go to conference, and then the final play will be a vote in both Houses of Congress. In all of those steps, I have seen our chairman and ranking member willing to compromise and resolve problems as they come up, as colleagues have brought them up. They cannot blame the distinguished Senator from Pennsylvania or the distinguished Senator from Vermont in this matter.

I beseech my colleagues, do not let this bill die today. Do not end what could very well be the last chance we have to solve a crisis we all have universally condemned. Let's stop the debilitating games and tactics. For once, let's give to the bill the same energy and creativity that to date have been invested in its downfall and destruction.

There are thousands of veterans throughout our Nation who are watching us today. When the Nation asked for their service, their blood, they gave it willingly, without complaint. They did their part. Now it is time for us to do ours.

There are thousands and thousands of sick working men and women with no place to turn but us. They, too, are watching. They ask for our assistance, not excuses. They have asked for candor, not cold calculation. They ask for compassion, not clever procedural ploys.

If there is any justice, we will be remembered long after we have left elected office, not for the unfulfilled promises we have made or the good intentions we have so readily proclaimed but for the votes like the ones we will soon cast. For, in truth, this vote is about more than asbestos. It may well signal the last chance this body will have to be productive, to break free from our respective orthodoxies and legislate for the public good. Did any of us really seek public office so that in the face of a crisis, we could hide behind a budget point of order or a cloture vote?

The time has come to reveal who we are, who we have become. Can the Senate legislate in an area in which the Supreme Court has said we need legislation--three times? The real frustration with this institution is not a lack of ethics or the unseemly tangle of lobbyists, Members, and campaigns. No. Our real failing is our collective trepidation, our fear of stepping free of the pack to work together to solve real problems without concern for political advantage or personal benefit.

If we cannot find a common will to address something as pernicious as the asbestos litigation crisis, then one has to ask what real purpose this legislature serves. Too often, we find it convenient to act like mice. Today, our country needs lions. Let us not give it mice. Vote against the budget point of order. Vote to invoke cloture. And, for once, let us consider fixing the asbestos crisis with the honesty, candor, and ingenuity the American people deserve.

Mr. President, I compliment the distinguished Senator from Pennsylvania and the ranking member from Vermont. This has been a monumentally difficult bill to bring to the floor. As I say, this is step one in probably a five- or six-act play. We do not have to make it perfect here; we just have to do the best we can. The House then, if we pass this bill, will have to do its work. Then conference committees will have to meet together, and we will have to do the final work on this bill after listening, during all of that time, to complaints, suggestions, good ideas, bad ideas, but at least--at least--we will be doing the people's business, the people's work in helping people who really have no other place to turn.

Above all, we will help our country because we all know what has been going on in asbestos litigation around the country has been horrendously wrong. I would like to see us do what is right today. So I hope we will vote against this budget point of order. And I hope we will vote to invoke cloture, so we can proceed with this bill and hopefully get it into conference. Ultimately, that is where we will continue to work on it and see if we can make it more perfect and resolve some of the conflicts and problems people feel they have with this bill today. I have every confidence in the chairman and ranking member that they will work to do exactly that. They have been doing it every day I have worked with them, and I am very proud of both of them.

Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. President, I share some of my dear colleague's frustrations about how this body runs and I wish we would work better together. I think it would do a lot of good for our country. I would like to see that happen.

I rise today to offer a motion to instruct the conferees to extend the research credit permanently. I understand one of the motions to instruct filed by one of my colleagues on the other side of the aisle says we should extend the research credit.

I wasn't offering it, but I will be happy to move to put it aside when the time comes.

I understand one of the motions to instruct, as I was saying, filed by one of my colleagues on the other side of the aisle, says we should extend the research credit for an additional 2 years. In concept, I certainly agree with this idea. The research credit is vital to America keeping its lead in world innovation. But if we are instructing the conferees as to better tax policy, why should we stop at a 2-year extension? If the research credit is worthy of an extension of an additional 2 years, why is it not worthy of a permanent extension?

Along with the distinguished Senator from Montana, Senator Baucus, I have been for many years an advocate of making the research credit permanent. As the lead Republican sponsor of legislation to provide for a permanent research credit, it seems I have come to the floor nearly every year for the past dozen years to either introduce a bill to make the research credit permanent or to offer an amendment to do the same.

I might add that Senator Baucus, the distinguished Senator from Montana, has been my partner in this matter--or should I say I have been his partner in this body. We have worked together to try and do this, along with a whole raft of other Senators, usually almost 100 percent.

In 2001, the Senate overwhelmingly passed an amendment to the Economic Growth and Tax Relief Reconciliation Act to make the research credit permanent. Unfortunately, the permanent credit was dropped in conference in favor of yet another temporary extension. That amendment in 2001, however, was not the only time the Senate voted for a permanent extension of the credit. It has happened several times. A very large majority of Senators has voted in favor of a permanent tax credit.

My point is that practically every Senator supports the research credit being made permanent. Despite this wide support, permanence has not yet happened. Instead, we keep extending the credit for a year or two at a time.

Why do we do this? The answer is simple. The artificial budget rules under which we operate prevent us from making the credit permanent because the cost of the permanent extension is determined to be far in excess of the cost of an extension for a year or two.

Another reason that we extend the research credit for a year or two, rather than permanently, is that we all

seem to be stuck in the mind-set that perpetual temporary extensions represent de facto permanence. Why worry about making the credit permanent when there is little or no doubt about it getting extended again? Doing so represents poor tax policy, but it seems to be the way Congress likes to handle this problem.

I will never forget the gap that once occurred between the expiration of the tax credit and our ability in the Congress to get it restarted.

Let's be realistic. We all know that the cost of these temporary extensions is no less than the cost of a permanent extension. If we think we are saving revenue to the Treasury by our current practice of extending the credit a year or two at a time, we are only fooling ourselves.

However, by not making the credit permanent, we are driving down the amount companies are willing to spend on innovative research. Even though we all know that the next extension for a year or two is practically a sure thing, the private sector does not see it that way. They do not, and can not, plan for the credit on a long-term basis if we only extend it for a temporary period.

Thus, we continually engage in a kind of self-defeating behavior-- trying to fool ourselves into thinking we are saving taxpayer money by passing these temporary extensions while we tell ourselves it does not matter anyway because we are always going to extend the credit again for a year or two when it comes due. All the while, though, companies are keeping down their R&D spending because of the uncertainty provided by this practice.

Now, we see a Democratic motion to instruct the conferees to insist on another two years of the research credit, but to be paid for by not extending the lower rate on capital gains and dividends, which is in the House bill.

That seems not only extreme, it knocks out a very important set of tax principles that have kept the economy going. I think we ought to have all of these.

Let's face the facts. This motion is nothing more than a weak attempt to embarrass Republicans by forcing us to choose between the research credit and the capital gains and dividends provisions.

However, it does not work for all the reasons I have indicated. The motion presents us with a false choice. Another temporary extension of the research credit in this body, whether for 1 year or for 2 years, is practically a foregone conclusion. Virtually all of us are in favor of it. It is going to happen regardless of this motion to instruct.

My point, and the point of my own motion to instruct, is to ask, if we really believe the research credit is good policy, why not instruct the conferees to push for a permanent credit? It does not cost any more than a series of temporary extensions.

The motion from the other side is not really about the research credit, and everyone knows it. It is about the lower rates for dividends and capital gains.

I continue to hear claims that Republicans are interested only in giving tax breaks to the rich. This mantra is false and insulting. We do not advocate continuing the lower rates on dividends and capital gains because we want to do a favor for the rich.

We believe that people respond to incentives, and that higher net benefits of investment leads to more saving. There is ample evidence for this, and this concept is not controversial among economists--they might argue how sensitive saving is to the returns on saving, but no one disputes that higher returns affects saving.

Higher saving leads to more investment by firms, which increases productivity and with it, wages and economic growth. Every worker benefits from an increase in saving. Nobel Laureates Robert Lucas and Ed Prescott have stated that reducing the tax on investment income is the closest we can come to a free lunch.

Some of my colleagues would have the American people believe that by supporting an extension of the lower tax rate on capital gains and dividends, Republicans are hurting those with lower incomes. I submit that by increasing saving and investment, we are helping lower income people more than we could in any other way.

Besides, if you look at how many people are now invested in the market, either through pensions or otherwise, or through mutual funds or otherwise, a good 50 percent of all taxpayers in America are now in the stock market.

Frankly, they all benefit from having these lower rates that we have been talking about.

Incentives lead to more saving. More saving leads to more investment. More investment leads to higher productivity and higher economic growth. Productivity and economic growth lead to more and better jobs for everyone. It is time for us to stop playing political games and get to work helping Americans realize their highest potential. We can start by appointing the conferees to the tax bill.

That is something that in the past we never had difficulties with, but in the last few years we have.

I send this motion to instruct conferees to the desk and ask for its immediate consideration.

Mr. President, I understand that will be placed in the proper order and to be considered in the next few days.

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.

Mr. President, I rise today to speak in favor of S. 852, the bipartisan Fairness in Asbestos Injury Resolution Act of 2005. I commend the majority leader and Chairman Specter and Senator Leahy for seizing the bull by the horns and proceeding with this vitally important litigation. And it is bipartisan legislation.

Make no mistake about this--this bill is not perfect. There are some things in the act that I wish were different, but that is the nature of the legislative process. It is about compromise and negotiation.

In a moment, I will speak to specific aspects of this bill. But before I do, I would like to take a moment to respond to some of the allegations that my colleagues made on the floor yesterday.

Some of them spoke of corruption. They spoke of undue influence wielded by lobbyists. And they spoke of fairness.

The truth is, this legislation is badly needed. Personal injury lawyers--some personal injury lawyers--are profiting at the expense of asbestos victims and manufacturers alike.

This bill is about fairness, justice, and certainty. It has become a bill that has tried to do away with fraud because this situation is fraught with fraud--fraud on American businesses, fraud on American consumers, and, more importantly, fraud on asbestos victims.

Let me tell you what this bill does. This bill provides real compensation to real victims with real injuries. This bill stops a rampaging personal injury trial bar. This bill fixes a broken legal system that benefits personal injury lawyers at the expense of asbestos victims. And this bill provides certainty to everyone involved.

Some of my colleagues on the other side have called S. 852 special interest legislation. If helping sick people and preventing fraud constitutes special interest action, then maybe they could get away with that charge. But I am very proud--and I think anybody who supports this bill would be proud--to support legislation that assists those special interests.

I ask my colleagues: Do you know who opposes this bill? It is the personal injury lawyers involved. They are a small cadre of the total number of American Trial Lawyers Association members. These trial lawyers have fought this legislation the same way the old gunslingers fought the law in the Wild West. Some of my colleagues have spoken of bragging lobbyists. The only people I have ever heard bragging about the scams that are going on are some of these personal injury lawyers.

Do you know when I heard them bragging? Last Congress, when we failed to invoke cloture on this bill's predecessor. It was not lobbyists or manufacturers or asbestos victims who were having some celebratory steak and champagne dinners in 2004; it was the personal injury lawyers. Why would they celebrate? They were celebrating because they successfully preserved their 40-percent payout on massive class action lawsuits and the exorbitant transaction costs that raise the amounts taken from victims to almost 60 percent, with only about 40 percent given to the victims. They were celebrating because their meal ticket was not taken away from them. Not this time.

Before I continue, I wish to point out not all personal injury lawyers are bad, certainly not all trial lawyers. I was a trial lawyer in my younger days. I know most of them are good people with good intentions. However, as they say, it only takes one bad apple to spoil the whole bushel.

We face an asbestos litigation crisis of unparalleled magnitude. Real asbestos victims with horrific injuries are receiving pennies on the dollar, while people who are not sick, or at least their lawyers, are receiving millions of dollars. American companies, businesses both large and small, many of which never produced or used asbestos fibers, are being forced into bankruptcy by fraudulent lawsuits. These bankruptcies hurt all Americans. Pensions are destroyed, jobs are lost, and all because our current legal system is vulnerable to unscrupulous trial lawyers. We have had the Supreme Court ask the Congress three times to weigh in on this and stop this mess from continuing. That is what we are trying to do with this bill.

According to the RAND Institute for Civil Justice, the asbestos crisis has been called the worst occupational health disaster in U.S. history. The personal injury bar has compounded that disaster by filing countless meritless claims that deprive the truly injured of their just and deserved compensation. The RAND Institute has found that approximately 730,000 people have filed asbestos claims through 2002. Despite the fact that asbestos claims should decrease each year due to OSHA and, to some extent, EPA actions in the 1970s and 1980s which severely curtailed national asbestos exposure, we have seen a significant increase in the number of claims, particularly nonmalignant claims, during the last 15 years. It is a gravy train for some of these lawyers. That does not dismiss the fact that there are people who are hurt by this, many of whom are not going to get a dime because a large number of their companies are bankrupt.

The large number of claims--expected to burgeon to the million-plus mark in the not-so-distant future--has resulted in 77 bankruptcies, the loss of some 60,000 jobs, or workers' privileges, and the depletion of countless pension programs. Moreover, due to the nature and number of these claims, compensation for the truly ill is often arbitrary and inequitable. According to the RAND Institute study, only 42 cents of every dollar spent on asbestos litigation actually goes to the asbestos victims; 31 cents goes to defense costs, and 27 cents goes to plaintiffs' attorneys. The situation becomes all the more deplorable when one factors in the ghastly specter of fraud. One study has shown that 41 percent of audited claims of alleged asbestosis or pleural disease were found to have either no disease or a less severe disease than alleged by the personal injury experts. That is simply unacceptable. We are trying to solve that problem.

At present there are more than 300,000 asbestos-related claims pending before this Nation's courts. Company after company has plunged into bankruptcy with disastrous results. Some victims have gone without compensation and many have nowhere to turn. Thousands have lost their jobs. The only winners in most cases are the personal injury lawyers. Asbestos trial lawyers have pulled in over $20 billion in attorney's fees. One actuarial firm estimates that personal injury lawyers are expected to filch another $40 billion before they run out of victims. I don't have any problem with lawyers getting contingent fees for legitimate cases. I don't have any problem with that. But the fact is, many of these cases are not legitimate. It is time to make a choice. That choice is between private jets for trial lawyers and meaningful compensation for asbestos victims.

Before I move on to the operational aspects of this legislation, I wish to take a moment to talk about the victims of asbestos exposure. Unfortunately, veterans comprise a large percentage of this group. I wish to make a plea on their behalf. This may be the last chance to help the men and women who served this country with such distinction and who, as a result of that service, were exposed to asbestos fibers. Time is rapidly running out for this group and many, if not most, of the companies they could turn to are now bankrupt, mainly because of these lawsuits. Even if they are not bankrupt, lawsuits take so much time and the verdicts are so uncertain that many will be cheated out of their just compensation. Even if some of these fine men and women manage to obtain a verdict against a company with sufficient assets to make good on the obligation, about 58 percent of the award would be consumed not by the victim but by trial lawyers. That is plain wrong.

Let me tell you how this bill works. S. 852 will compensate legitimate asbestos victims in a timely fashion on a no-fault basis. They are not going to have to go to court to prove their case. Claimants must demonstrate they meet certain medical criteria--and those criteria were agreed on in a bipartisan agreement--but once that threshold showing has been made, thereby assuring that only the truly sick are compensated, the claimants will receive timely compensation based upon the nature of the injury.

Some of my colleagues asserted that all claimants under this bill obtain a one-size-fits-all settlement if they meet the medical criteria requirements. As Chairman Specter has pointed out, that is plain wrong. There are nine tiers and corresponding awards under this bill, and it allows for further compensation if the condition worsens, meaning if a claimant had a level 2 injury that later developed into a level 8 injury or more serious injury, that individual can obtain compensation up to the level 8 or more serious tier. That makes sense to me.

It is worth pointing out that in addition to providing a no-fault and timely compensation system, the FAIR Act provides certainty to asbestos victims by taking away the whims of juries and the avarice of some of these personal injury lawyers. Under this bill, if you are sick, you will be compensated. Furthermore, this bill promotes economic stability and preserves jobs by taking the uncertain burden of direct and residual asbestos liability away from manufacturers, insurers, and others, and levying a measurable, known, and beneficial sum that will help those truly in need. In other words, they will have to pay, but it will be done on a reasonable, decent basis, so that those who are suffering will get paid in the end, where many of them will not under the current system.

For the victims, it provides meaningful compensation in a relatively short order. It is no-fault compensation for them. For the manufacturers and other defendant entities, it removes the parasitic personal injury bar from the picture and assures that asbestos dollars reach asbestos victims.

Finally, this bill contains an asbestos ban that will help lower asbestos exposure beyond what OSHA has achieved.

I was surprised to hear some opponents of this bill say S. 852 is not ready, that any action on this measure would be premature. Frankly, I am somewhat shocked by this. I will not go into the full history of the bill. In fact, I will limit my discussion of its development to the 107th Congress and beyond. But I must note that efforts in this area predate my efforts and the efforts of then-Chairman Leahy in the 107th Congress.

Now with tremendous effort, Chairman Specter and Ranking Member Leahy have worked this through in a way that has greatly improved what we were trying to do back then. The Judiciary Committee has held at least a half dozen hearings on asbestos issues, and we have held several exhaustive markups over the years. In addition, I note that Chief Judge Emeritus of the Third Circuit, Edward R. Becker, and now-Chairman Specter held at least 36 meetings with stakeholders to reach the compromise before us. This was a monumental effort by Senator Specter and Former Chief Judge Edward R. Becker. I just saw Chief Judge Becker over in the Dirksen Building. I know the sacrifices he has made to try and help us on this matter. And to have this bill called special interest legislation, when we have had people such as Judge Becker work out these details by meeting with all concerned, including the trial lawyers, including businesses and individuals and groups and so forth, I don't know when anybody has made such an effort as both Chairman Specter and Judge Becker.

We are currently on the third asbestos bill since the beginning of the 108th Congress. We have moved from S. 1125, which was the subject of a 4-day markup over 2 months, to S. 2290, to S. 852. Finally, after a 6-day markup, which also spanned 2 full months, the Judiciary Committee reported the current bill with a bipartisan 13-to-5 vote. That doesn't sound like special interest legislation to me. And it isn't.

With that in mind, it is hard to understand how opponents of this bill can claim with a straight face that this bill is not ready for consideration by the full Senate. That is ridiculous. Can it be amended? Surely. That is why we debate. Can we change aspects of it? Surely. That is why we debate. That is why we have this debate on the floor, if we are ever allowed to debate it.

This brings me to some of the outstanding criticisms of this legislation. First, we have heard it hurts small businesses. Since it is unclear to me what the deleterious effects on small business may be, I find it difficult to even spend time trying to refute those types of baseless charges. I would ask my colleagues who hold this belief to expound upon the allegation so we can better understand their concerns. However, before they do so, I ask my colleagues to look at the small business exception contained within S. 852, specifically section 204(b) of this act. Small businesses do not have to contribute to the fund while at the same time they receive its benefits. I have a hard time understanding why this is bad for small businesses. After all, they do get something for nothing.

The next major objection focuses on the removal of pending cases from court. Such action is unfair, they say. Well, I am puzzled by this assertion as well. First, cases that have proceeded to the evidentiary stage of the trial are not touched by this act. Secondly, the underlying premise of this bill focuses on two things: one, the uncertainty of jury trials and the ability of defendants to pay; two, the parasitical impact some of these voracious trial lawyers have on the process. This bill will provide certainty to the process, ensure those who have been injured will receive compensation, and make sure compensation so awarded goes to the victims and not to the trial bar in such dimensions as we have had so far. In fact, the trial bar will be entitled to fees under this bill; they just won't be as high because the proof is a no-fault proof. It is like rolling off a log. I ask my colleagues, how is that unfair?

The next assertion focuses on the amount of the trust fund. It is not enough to say it is not enough. That is what they say. To that I say, the CBO seems to think the amount falls within the estimated range of claims and, further, that this amount was agreed upon by Majority Leader Frist and then-Minority Leader Daschle after extensive negotiation. Overall, it would seem some Members on the other side of the aisle want to prevent us from proceeding to this bill. While I am not surprised by obstructive tactics--we have seen them before; I saw a good deal of them during the last Congress and I know enough to be able to say with confidence that what looks like a duck and quacks like a duck is, in fact, a duck--it is obstruction. Why can't we debate this bill up and down? Why don't we get into it? If we have legitimate objections, I am sure the distinguished chairman and ranking member will consider them. That is why we debate these things. I am nonetheless disturbed by the tactics of some on the other side, given the tremendous importance of this legislation to our country.

As I say, the Supreme Court no less than three times asked us to do this--or at least to find some solution to this massive litigation crisis that is clogging our courts, hurting the country, and costing everybody an arm and a leg, without doing the justice to victims that this bill will do.

It is troubling when we consider that without the FAIR Act, more and more Americans are certain to lose their jobs, and more and more victims of asbestos exposure will go without compensation. This all goes to show that personal injury lawyers are a powerful force, and some on the other side of the aisle are willing to hear the voice of the personal injury bar over the voices of hard-working Americans who want to keep their jobs and pensions. Don't tell me about special interest legislation. We all know what special interest is driving the opponents of this bill.

The fact is that this bill continues to create a fair and efficient alternative compensation system to resolve the claims for injury caused by asbestos exposure. The fund is capitalized through private contributions from defendants and insurers, not the Government, and compensates victims under medical criteria that we reached on a bipartisan basis. I thought once we got the medical criteria, this bill should go forward. We had a lot of people on both sides saying they want to support it. Now we are here, and this is the chance to do it. If you don't like it, file amendments. I am sure the distinguished chairman and ranking member will give consideration to the amendments. The bill brings uniformity and rationality to a broken system so that resources are more effectively directed toward those who are truly sick.

I know the last asbestos bill contained no fewer than 53 compromise measures demanded by the Democrats last year. Moreover, I know this bill contains many more. Chairman Specter and Ranking Minority Member Leahy are still working with the labor unions and others to improve the bill. This bill did not sneak up on anybody. It is not the instrument of a wayward group of influential lobbyists. The bipartisan FAIR Act is the product of years of negotiation and hard work--bipartisan people who are interested in solving problems, not creating them.

Not only does this bill guarantee fair compensation to victims, it guarantees faster and more certain compensation at that. We anticipate that claimants will not have to endure years of discovery battles and endless litigation before they get paid. Currently, whether some victims get paid depends on the solvency of businesses. But under the FAIR Act, these victims will no longer have to go without payment. It is time to end the current system of jackpot justice, where only some win and many lose.

Let me mention one group--the mesothelioma victims. Most of them have no chance at being fairly compensated because they work for companies that are now bankrupt. This bill takes care of them and helps them with their problem. Given that this bill is a clear net monetary gain for legitimate victims and provides payments faster and with more certainty, I am at a loss as to why anybody would object to this bill or object to a full and fair debate and a vote up or down. Quite frankly, the only entities that stands to lose under this bill are a handful of personal injury lawyers who have guzzled more than $20 billion of the costs incurred on this issue as of the end of last year. If the improved FAIR Act is passed, they will not be able to leverage unimpaired claims to squeeze a projected $40 billion more for themselves from remotely connected companies by abusing a broken system.

I support compensating attorneys for the value of their work, no question. Honest lawyers deserve to be paid. But when the lawyers get rich while diverting valuable resources away from sick victims and to people who are not victims, people who don't deserve compensation, which is going on here, something is wrong with the system. But you don't need me to tell you this; the Supreme Court, think tanks, and other nonpartisan commentators have been saying it for years.

We have a serious problem on our hands which demands this body's full attention. I applaud our majority leader, the chairman of the Judiciary Committee, Senator Specter, and his ranking member, Senator Leahy, for bringing this bill to the floor. The time to act is now. I would like to see us go forward in a legitimate, honest way to try to solve these problems. If people on either side have objections to the bill or have a reason to try to change it, they can bring amendments forward, and let's battle it out. The chairman has been very open to accepting good ideas. He has consistently done that throughout this process. I don't think anybody can find fault with our chairman for the way he has operated on this bill and how hard he has worked.

We have studied this asbestos problem at length, for decades. We have held numerous hearings, considered legislative proposals, and even underwent several marathon markups in the Judiciary Committee over the years. To the extent there are issues that remain unresolved, we can openly debate them on the floor of the Senate.

The time has come to stop talking about doing something and take decisive action. Every day that passes is a day we withhold meaningful recovery to truly sick victims. Every day that passes is a day in which hard-working Americans at companies that had little

or nothing to do with asbestos face decreased pensions and an uncertain employment future. Every day that passes is a day that we deny consideration of a comprehensive solution to one of the most plaguing civil justice issues of our time.

This is step one. If we can get a bill out of the Senate, this would move forward so fast. The House would have to come up with its legislation, and we would then go to conference. I have no doubt, having watched the chairman and ranking member, that they would be working in good faith to try to accommodate and please all legitimate points of view on these very profound and difficult issues. I compliment them one more time. These folks deserve that we debate this bill fully, that we have a vote up or down on the bill in the end, and that we go through this process and hopefully continue to improve the legislation so that we can do justice in our society.

I yield the floor.

I thank my colleague for his remarks on this bill, for his comments on Senators Specter and Leahy, and for his willingness to invoke cloture this afternoon. We need to proceed to this bill and debate it in on the Senate floor. It is that important.

Before proceeding with my remarks, I would like to reserve 15 minutes for my colleague from Ohio, Senator DeWine.

Mr. President, I rise to speak in favor of S. 862, the bipartisan Fairness in Asbestos Injury Resolution Act. More specifically, I rise in favor of debating S. 852. It is a bill worth our time.

The crisis of asbestos exposure impacts not only the lives of sick and dying workers and retirees, but also the lives of workers in every corner of the American economy. The litigation that these workplace injuries spawned now threatens to deprive the workers who need compensation for their injuries of their due rewards, while crushing businesses large and small in every State.

I find it surprising that there are those in those body who do not wish to address our Nation's asbestos crisis. They do not even want to have this debate. So they are filibustering even a motion to proceed to the bill. It is funny how things change. This summer, when some of the Members of this body were filibustering judicial nominations, we were told that the filibuster was a privilege central to the Senate's deliberative character. The right to speak and debate had to be preserved. But through this filibuster, they do not seek to promote debate. They are seeking to prevent it. For the life of me, I do not fully understand this type of reasoning.

The public health calamity caused by occupational exposure to asbestos is something that we should be debating. It is precisely the type of situation that cries out for comprehensive bipartisan legislation. For what it is worth, it is precisely the type of well- documented crisis that I would expect my colleagues to want to talk about. Instead this filibuster shows that they would rather close their eyes to this crisis.

The consequences of asbestos exposure are tragic and well-documented. It has devastated the families of hard-working American men and women. And it is not an equal opportunity hazard. It frequently targets veterans. It targets those who took their lunch to work, who gave a full day's work for a full day's pay, and who came home with dirt under their fingernails.

Each and every year 10,000 individuals will die from mesothelioma, a cancer closely linked to asbestos exposure. Ten thousand moms and dads and grandparents. Think about it. And because of the asbestos fibers they would bring home from work, sometimes even the spouses and children of these workers become sick. Thousands and thousands more will be afflicted with debilitating lung conditions that make it hard to breathe, sapping the joy from what should be a person's golden years.

This is a public health crisis of the highest magnitude. And this public health crisis is made more pressing by a related litigation crisis. Nobody in this body believes, especially those of us who support this bill, that individuals who become sick as a result of asbestos exposure should be denied compensation. Let me be clear about this. They are owed compensation. Here is the problem: Who is supposed to pay? Most of the companies that originally produced this stuff have long since gone out of business or have been put out of business. They now exist in bankruptcy merely to pay out claims to the extent that they can, which amounts to a very small number of pennies on a dollar.

What are the victims actually getting from their settlement? Pennies on the dollar. The actual damage done by exposure to these fibers might be worth hundreds of thousands of dollars, but most people will never see that money, money that could go to pay medical bills or take care of loved ones, because the companies do not have the money to pay the number of claims.

Of course, this has not proven to be an obstacle to the innovative trial bar. These attorneys are going after corporations, not surprisingly ones with very deep pockets that have inherited their asbestos liabilities by acquiring companies that once produced or used asbestos. I remember one company in particular that acquired another company for $10 million. They have paid well over $100 million out in asbestos-related claims because of that acquisition.

So not content with a public health crisis, a group of committed attorneys have set out to bankrupt some of our Nation's greatest companies, creating an economic crisis as well. And many of them have only had some collateral relationship with asbestos.

Playing fast and loose with the actual exposure of their clients, there has been an explosion of litigation in recent years. As a result, at least 73 companies have had to declare bankruptcy due to their asbestos-related liabilities.

Do those who have actually been harmed by asbestos benefit by this litigation? No. They wind up in years of litigation only to find that they get a mere 42 cents out of every dollar. By the time the attorneys take their fees and add on transaction costs, the poor person who has been injured gets only 42 cents out of every dollar recovered.

The status quo does not do justice to those injured by asbestos exposure. I am a conservative. I do not believe the Federal Government should attempt to fix every social or economic problem faced by the country. However, there are certain crises, because of their size, because of the number of persons impacted, and because of their detrimental impact on the American economy, that call out for national legislation. This is just such a bill.

Asbestos exposure has cause a far-reaching public health disaster of the highest order, one that is now compounded by an unprecedented litigation crisis. I am hardly alone in thinking this. The Supreme Court of the United States has called on Congress on three separate occasions to address this particular problem. In 1999, the Justices told the Nation that ``the elephantine mass of asbestos cases . . . defies customary judicial adminstration and calls for national legislation.'' So we answered the call.

We are hardly springing this bill on the Senate. We have been debating a solution to the asbestos crisis since the 107th Congress. This is the 109th Congress. When I was chairman of the Judiciary Committee, we held hearing after hearing. We had weeks of markups. We did our best to achieve some sort of compromise. Yet when it came time to debate this bill on the floor, it was filibustered. The Senate was prevented from giving its final up-or-down vote. That was April of 2004.

Then we heard the bill was not ready for prime time. We were rushing the issue, jamming the opposition. We have not considered the issues carefully enough, they said. If only we had more time.

Not it is almost 2 years later. The chairman of the Judiciary Committee, my colleague from Pennsylvania, Senator Specter, has again held hearing after hearing. Again, we have had week after week of markups. He and his staff

have been tireless and fair in their negotiations. Judge Becker, a federal judge on the Third Circuit Court of Appeals, has worked to craft a solution.

Over the last 3 years, there have been 36 meetings hosted by the chairman where any group, including labor unions, trial lawyers, and any other interested parties, was welcome. And those efforts have borne fruit. Most notably my colleague from Vermont, ranking member of the committee, came to support this bill. We work a good deal on intellectual property issues together, but this bill is a different animal. This is a bill that impacts the rights of workers and the rights of the sick. On those types of issues, there is, unfortunately, not enough bipartisanship around here.

The fact that the distinguished Senator from Vermont, Mr. Leahy, is a cosponsor of this bill is very important. It is a testament to both the scope of the problem it addresses and the depth of good faith compromises that have been made along the way.

There are many criticisms made about this bill. Some have suggested that even debating it demonstrates the triumph of corruption. I wonder what their colleagues from Vermont, California, and Montana think about that? All this time they thought they were working to make this a better bill. As it turns out, they were just tools of the special interests. Give me a break.

I will tell you who the special interests are in this debate. They are the law firms that specialize in much of the bogus asbestos litigation that is driving this crisis. They are the lawyers who file suits for people who are not sick, just hoping that some company will decide to settle rather than go to court. They are the lawyers who promise the truly sick a jackpot but give them instead years of litigation and then take for themselves fully 60 percent of any settlement. I would call it ``jackpot justice.'' But for the workers impacted by asbestos exposure, there is no jackpot, and this sure is not justice.

These lawyers have gotten rich litigating these cases.

They do not like the prospect for reform. Why not? Because it is going to turn off the golden spigot. It will create an easy, no-fault, and quick administrative process that will enable those made sick by asbestos to obtain compensation without the middle man.

In other words, if this bill becomes law, these lawyers are going to have to find some other industry to bilk. The other side of this debate should take a good, long look in the mirror before going down the road of accusing the bill's supporters of promoting special interest legislation.

In addition, it is beyond ridiculous to suggest, as we heard yesterday from opponents, that this bill is being rushed. That is absolutely ridiculous. How is it that a bill that was debated on the floor nearly 2 years ago, reported favorably out of the Judiciary Committee twice--on a bipartisan basis this time--and was subject to countless amendments is somehow not even ready for debate today?

We have been at this for years. This bill addresses a recognized public health tragedy. Yet it is not even worthy of debate on the Senate floor?

For those not steeped in Senate procedure, it is worth noting what is being suggested by this objection to the motion to proceed.

When a bill is filibustered after hours and even days of debate in order to prevent a vote on final passage, the message sent is that there has not been enough debate. The issues are so difficult and complex that more debate is required before this body could responsibly move to final passage.

Filibusters are not always justified, but they are sometimes understandable. When you filibuster a motion to proceed, you are saying this bill is not even worthy of a debate on the floor. This is an insult. I know this is not a perfect bill. Few bills are. The FAIR Act, however, is most certainly a bill worthy of debate.

We have a limited number of days in any given year to do the people's business. We only take up bills on the floor when there is a pressing public need. And in the opinion of not only the majority leader but the Republican caucus and even some Democrats, this is a bill worthy of our attention and time. Frankly, it is ludicrous to suggest otherwise.

Nineteen members of the Senate have cosponsored this legislation. It is supported by the chairman and ranking member of the Judiciary Committee. It has bipartisan support. I do not think there is a person in this body who doubts the severity of the problems it is designed to address. So something must be done. This bill is a sound and reasonable attempt to do something to help these sick workers get the compensation they deserve.

The asbestos trust fund created through this legislation deserves a debate. I urge my colleagues to vote for cloture on the motion to proceed and to give this bill the attention it is owed.

Mr. President, this is an important bill. I pay tribute to Senators Specter and Leahy for the work they have done in committee and in bringing this bill to the floor. They deserve accolades from everybody in this body.

I yield the floor.

Mr. President, I compliment my distinguished friend, the Senator from Virginia, for the remarks he just finished with regard to President Reagan and Mrs. Reagan. It is very fitting and appropriate the distinguished Senator speak here today because he reminds me a lot of Ronald Reagan--in the philosophy he has, the guts he has, the ability to move people in so many other ways. I have to say, I believe I was one of the few, maybe the only person Ronald Reagan ever preprimary endorsed. It was a great thrill for me.

In 1980, I went to multiple States as one of his two major surrogates who spoke for him all over the country. I will never forget the Reagan campaign team did not want him to go to the first--what they call cattle show--in New Hampshire. So they asked me to

go in his place and appear with the other seven or eight Presidential candidates. My date for that evening was none other than Nancy Reagan. She was so beautiful--she was such a beautiful person. It was such an honor to be able to speak for the President, for the then Governor Reagan. He meant so much to me and I am grateful that the distinguished Senator from Virginia has spoken for all of us on this subject. I hope and pray Mrs. Reagan has everything that will make life worthwhile, even though Ronald Reagan is now gone.

We love both of them. We revere the memories we have of both of them. Of course, we look forward to continuing to meet with Mrs. Reagan as time goes on.

Mr. President, last week the President of the United States came to us with an ambitious domestic policy agenda for the next year. There were many noble goals outlined in that speech. But in my opinion, one of the most important and most necessary is his proposal to expand health savings accounts, or HSAs.

There is not a single person in this institution who fails to recognize the ever-growing problem of health care expenses for ordinary Americans. For at least a decade now, this debate has been front and center in American politics. The American people are fed up and are telling us they want solutions to this crisis.

In the last 30 years we have seen true revolutions in the way consumers do business in this country. Informed American consumers are increasingly involved in a direct way in making decisions on issues that affect their lives and that of their families. As an individual:

It is easier to invest today.

And it is easier to bank today.

There is more choice in education. And there are more opportunities in the workplace.

But almost uniquely in the American economy, our health care system is becoming more expensive and more difficult for individuals to make personal choices regarding their care. Because of the current structure of insurance plans, most consumers do not have the information they need with regard to the cost or the quality of health care that they receive. Information is readily available to make a value-driven decision on purchasing a television or a cell phone, but when it comes to health care, the consumer has little basis on which to make a rational quality and cost-based decision. What separates our increasingly complex and expensive health care system from other sectors of our economy that have become more user-friendly in the last 30 years is a lack of adequate information and a lack of direct consumer decision making.

I think that health savings accounts provide an incredible opportunity for real progress toward health care reform.

Health savings accounts were established in the Medicare Modernization Act of 2003. These accounts allow Americans to save tax- free dollars to pay for their everyday health care expenses on their own terms. At the same time, these accounts are coupled with high- deductible comprehensive insurance policies to cover larger medical bills and also provide specific coverage for preventive care.

This makes sense. HSAs allow individuals to save tax free for everyday medical expenses, while preserving insurance for major health care needs. With HSAs, individuals have unprecedented choice in their health care and are still protected from the high costs of serious illness. The result is predictable. Insurance becomes less expensive if it is used only for major medical expenses, and consumers make value- based choices in their routine medical care.

And, as we all know, the high cost of health insurance is the real problem that we face in providing health care coverage to all Americans. The current low-deductible plans so common in the workplace are increasingly costly for businesses and result in lower wages for workers and reduced employment. More and more small businesses are opting not to offer a health care insurance benefit at all. For the unemployed and/or the uninsured, health insurance premiums are far too expensive.

Health savings accounts are proving themselves to be one important part of the solution to our health care crisis. Americans certainly think so. Since January 2004, over 3 million Americans have enrolled in HSAs.

As innovative and popular as HSAs are proving to be, however, they are far from perfect. By improving and expanding them, health savings accounts could be even more effective in helping us reach our objectives.

I believe we need to create more incentives for employers to offer these plans and for individuals to enroll in them. Incentives can be designed to assure adequate coverage and enrollment of those with chronic illnesses.

The President has made it clear that we need to make these plans fairer and available to a larger number of Americans. Individuals that purchase HSAs on their own should have the same tax advantages as those with employer-sponsored insurance. To achieve this, premiums for HSA- compatible insurance policies should be deductible from income taxes and an income tax credit provided to offset payroll taxes paid on premiums for HSA policies. All taxes on out of pocket spending through HSAs should be eliminated. HSA insurance policies should be portable between employers and across State lines. To allow for better individual healthcare decisions, information on price and quality of healthcare must be transparent and readily available. Acceleration of the implementation of an integrated health information technology system will be critical to these efforts. The President's budget outlines several proposals designed to improve HSAs and to make them more attractive to employers and employees. The employer community also has developed a set of proposals designed to improve HSAs. The Senate should give serious consideration to all good ideas to make health savings accounts work better.

These are important goals.

Health savings accounts are a good thing for our citizens, and they are a good thing for the economy.

HSAs will make health insurance less expensive in the long run, which is the best thing we can do to tackle the problem of the uninsured in this country.

They will make the health care sector of our economy more user- friendly and more efficient.

They will give workers more choice and more flexibility in their choice of plans and in deciding where they want to work.

In short, they would help to bring our health care system into the new economy.

In 1980, most people in this country had rabbit ears on their televisions and a choice of three channels.

Today, we have the internet. We have cell phones. We have ATMs on every block.

Yet, in some ways, our system of employer-provided health care is a dinosaur. It dates back to a policy decision made to assist employers during World War II and it is not aging well. There are too many Americans without employer-provided health insurance, and those with it are routinely frustrated with the level of customer service.

The Bush administration estimates that under current law, the number of Americans with HSAs will grow to 14 million by 2010. By improving the program, however, we could see this number go as high as 21 million.

As a member of the Finance Committee, I am deeply interested in working with my colleagues to help improve HSAs in the coming months and years. The President's proposal represents a unique opportunity to make health care in this country more equitable, more affordable, and more cost-effective.

I urge my colleagues on both sides of the aisle to join me in these efforts.

I believe we would all be better off if we would do so.

Mr. President, I ask unanimous consent that when the Senate completes its business today, it adjourn until 9:45 a.m. on Tuesday, February 7. I further ask that following the prayer and the pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved, and the Senate proceed to a period of morning business for up to 60 minutes, with the first 30 minutes under the control of the Democratic leader or his designee and the second 30 minutes under the control of the majority leader or his designee, and that the Senate then resume consideration of the motion to proceed to S. 852, the asbestos bill.

I further ask that the Senate stand in recess from 12:30 until 2:15 p.m. to accommodate the weekly party luncheon.

Mr. President, tomorrow the Senate will continue to debate the motion to proceed to S. 852, the asbestos bill. A few minutes ago we filed cloture on the motion to proceed, and that vote will occur at 6 p.m. tomorrow. There will be no rollcall votes until 6 p.m. tomorrow to accommodate those Senators traveling to Georgia for the funeral service of Coretta Scott King.

Mr. President, if there is no further business to come before the Senate, I ask unanimous consent that the Senate stand in adjournment under the previous order.

Mr. President, I rise to express my support for the tax reconciliation bill being debated today. I have listened to the comments of my colleagues on both sides of the aisle with much interest. Because we have heard a great deal about the wisdom or folly of extending the lower tax rate on dividends and capital gains, I would like to take this opportunity to offer a few words in defense of the extension.

It is interesting to me that so many of my colleagues have juxtaposed the capital gains and dividends provision against the provision to relieve temporarily the individual alternative minimum tax. Listening to some of my colleagues, it seems they believe that we either must include the alternative minimum tax fix or extend the capital gains and dividends provision, but not both. My strong belief is that we can--and must--do both.

The reduced rate of tax on dividends and capital gains has been attacked repeatedly as being a costly sop to the rich and not much else, with little recognition given to its beneficial impact on the economy. The simple fact is that the data and basic economics tell us the cost of the lower tax rates on dividends and capital gains has been minor, and the benefits immense.

There is ample evidence that clearly shows the lower tax rates on capital income have stimulated saving. Alicia Munnell, an economist at Boston College and a former official in the Clinton Treasury Department, finds that working age households saved significantly more in 2003, the year the tax reductions on capital gains and dividends passed the Congress, than they did in 2002. Incidentally, Munnell's work also shows that the recently announced savings rate of zero is misleading--she reports that working families, and by that I mean families with breadwinners who have yet to reach retirement age, are indeed putting

money aside. However, looking at our broad, economy-wide measure of net saving, the dissaving done by retired households obscures this fact.

There are other benefits from a lower tax rate on investment income besides increased saving. With lower tax rates, capital becomes more fluid, making it easier for it to flow to projects with higher rates of return. Families lock in much less capital for fear of the taxman. The Government gets a lower percentage of each sale of stock, but it gets more opportunities to tax the money.

And, Uncle Sam is getting more cracks at it. The amount of capital gains realized in 2005 was twice that in 2002. The stock market's value has not doubled since then, and we are not twice as wealthy as we were then--people are just responding to incentives and they are holding their assets for a bit less time. There is nothing necessarily wrong with that. If capital is used more wisely, this ultimately benefits not just the investors but also the workers, who see their productivity increase. When productivity goes up, wages must follow.

The amount of revenue collected from taxes on capital gains and dividends has increased significantly since the reduction in tax rates passed. In 2005, capital gains tax revenues amounted to $80 billion, 60 percent higher than in 2002.

Now, I am not about to claim that this or any other tax cut ``pays for itself,'' but the revenue lost from the lower rates on capital gains and dividends is relatively minor precisely because of the increased economic activity the lower taxes generate. The jump in revenues collected from the two taxes is manifest proof of this.

The beneficiaries of lower taxes on investment income are not just those who own stocks and bonds either, and I would like to point out that it is not just the rich who have investments. I hear from retired Utahns who are living modestly on a Social Security check, a small pension, and their savings. They might not have a lot of money invested, and their dividends are not going to buy them a new car or luxury condominium, but every little bit helps, they tell me.

In reality, everyone benefits from lower taxes on dividends and capital gains--even those with little or no savings. The primary reason for lower tax rates on investment income is that it stimulates the economy. This is not a radical idea by any means--Nobel Prize-winning economists Robert Lucas and Ed Prescott have argued vehemently in favor of this. The logic is simple: Low taxes on the income we receive from our savings means we will save more. That ends up making more capital available for firms to invest in new plant and equipment, increasing productivity as well as wages.

The strong economic conditions of the 1990s are owed to a number of factors, but the most important factor was undoubtedly the resumption of high productivity growth in the middle of the decade. It was in the latter years of the expansion, when unemployment dropped below 5 percent, that we finally saw the elusive gains in income of low-skilled workers. I believe that the low tax rate on capital gains and dividends is an essential ingredient in creating more new jobs and maintaining healthy economic growth.

Some of my colleagues may say they agree that the benefits of lower rates are real and ought to be continued, but they do not see the need to renew a provision that does not expire until 2008. The simple answer is that we need to create some degree of certainty and stability for investors. Investors in 2006 care about what the tax rate on a long- term investment is going to be in 3 years. If they believe that Congress will allow tax rates on dividends and capital gains to increase to their previously higher rates, they will be less inclined to make those investments. That money will go instead to less productive, shorter term investments or will simply not be saved at all. The end result is that we'll have less capital available and lower economic growth.

We must acknowledge that the budget deficit is a problem--it is obvious we need to get our economic house in order soon. The baby boom generation is starting to retire and making our budget mess a lot worse. However, increasing the taxes on dividends and capital gains is not the answer to our budget morass, either in the short or the long run. We need every single bit of economic growth we can get for the next decade to help fund our obligations, and allowing the tax rates on dividends and capital gains to go back up would be a tax increase that would reduce growth.

When we seek to raise revenue by taxing the accumulation of wealth, we are essentially punishing a virtuous activity, namely saving. We should be doing all we can to encourage families to set aside money, to invest, to patiently prepare for the future. Allowing the low tax rate on dividends and capital gains to expire would do more than reduce productivity and economic growth; it would send a signal that we do not value savings in this country. At this point in time, we can afford neither.

Some of my colleagues believe that low tax rates on dividends and capital gains benefit solely the rich and no one else and feel that they cannot countenance a continuation of the low rates at the expense of programs more targeted to low-income households. I do not fault my colleagues for their concern, but I believe that the lower rates helps everyone in our country. It costs us relatively little in terms of lost tax revenue, since the lower rates have resulted in higher dividends, higher stock prices, and more sales of stock, with more revenue created by each activity. At the same time, every single working family in this country benefits from the higher savings engendered by the lower tax rates via the improved productivity, wages, economic growth, and the number of jobs available. High growth and economic prosperity are not the cure to every problem that ails the country, but it can make any solution much more attainable. Supporting low tax rates on dividends and capital gains is the right thing to do.

Mr. President, I would like to take this chance to say a few words of thanks to Alan Greenspan for his service to our Government and to wish him well as he leaves the Federal Reserve. Alan Greenspan has done a commendable job as Chair of the Fed, and we are, indeed, fortunate to have had him in that position for the past 18 and a half years.

The previous two decades have seen an amazingly large number of crises that have impacted financial markets. The stock market crash of 1987, the Savings and Loan collapse and subsequent bailout in 1990, the Mexican bond crisis of 1994, the Asian financial panic in 1997, Russia's bond default and the subsequent collapse of Long Term Capital Management in 1998, the collapse of the tech bubble in 2000, and the implosion of Enron in 2001.

In recent years, we have witnessed a sharp rise in housing prices, along with a concomitant chorus of financial experts exhorting him to ``do something.'' Besides these various financial crises, the United States has also been the victim of a massive terrorist attack in 2001, which shut down financial markets for over a week, and we were forced to intervene militarily in Kuwait, Afghanistan, and Iraq.

Despite the staggering number of potentially catastrophic events, the United States has had only two short recessions in the past 20 years, a record that is to me simply amazing. Of course, it would be wrong to give the Federal Reserve and Alan Greenspan full credit for the prosperous conditions of the previous quarter century, but it is impossible to conceive of us achieving this level of prosperity without a vigilant and responsible Federal Reserve.

The main contribution of Chairman Greenspan and the Federal Reserve in the past 18\1/2\ years has been the taming of inflation. The effort to control this scourge began with Paul Volker, of course, but the specter of inflation does not die easily. It took Alan Greenspan another 10 or 15 years to finally rid the financial markets of the fear that as the economy expands, so must the rate of inflation. The evidence of high inflation's demise can be seen merely by looking at mortgage rates. The record low interest rates of the past few years has allowed tens of thousands of families in my home State of Utah to afford to buy their own home, something that was beyond the reach of many before.

Chairman Greenspan's success in taming inflation and creating a stable economic climate has paved the way for our next Fed Chairman, Ben Bernanke, to explicitly state that low inflation is his primary goal. Indeed, countries all over the world are following our lead of having an independent central bank dedicated to a stable price system, modeled after the one in the United States. This is no small credit to the ability of Mr. Greenspan and the capable economists employed by the Federal Reserve.

The pressure on the Chair of the Federal Reserve to ``do something'' in response to crises, both real or perceived, can be great. It is to his credit that Chairman Greenspan has been able to resist many of those calls and avoided meddling in situations where the potential economic benefits from such action were slight, but the potential costs heavy. In central banking, inaction is most often the better part of valor.

At this time, I would also like to express my enthusiastic support for the nomination of Ben Bernanke to be the next Chairman of the Federal Reserve's Board of Governors. Mr. Bernanke has

served quite admirably for the past 4 years both as a member of the Board of Governors and for the past 9 months as the head of the President's Council of Economic Advisers. He is a world-renowned scholar on monetary economics and the banking industry, and is one of the preeminent experts on the causes and consequences of the Great Depression.

Before Dr. Bernanke came to Washington, he was a professor of economics at Princeton University, perhaps the top school for economics in the world. He also served as its department chair for a number of years. While living in Princeton, he served on the local school board for a number of years, putting the lie to any notion that he has ever been an ivory tower academic unfamiliar with how the real world operates.

Benjamin Bernanke brings a gifted intellect, a wide variety of relevant experience, and an understanding of the importance of what the Federal Reserve does and the harm that it can bring to an economy. I wholeheartedly encourage my colleagues to join with me in voting for his nomination.

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

Mr. President, the Senate is about to vote on a motion to invoke cloture on the nomination of Samuel Alito to be an Associate Justice of the U.S. Supreme Court. We should not even have to take this step but should be voting instead on whether to consent to Judge Alito's appointment. But since we are being forced to take this unnecessary step, let me explain why I believe the case for both cloture and for confirmation is compelling.

Deliberation and debate are hallmarks of the Senate. Our tradition has been that once a judicial nomination

has reached the Senate floor, we debate and then we vote on confirmation. There is no need to revisit all of the arguments regarding judicial nomination filibusters. Suffice it to say that American history contains but a single example of failing to invoke cloture on and then failing to confirm a Supreme Court nomination. The 1968 nomination of Abe Fortas to be Chief Justice, however, bears no relationship to the current situation.

First, while the Fortas nomination did not have majority support, the Alito nomination clearly does. Judge Alito enjoys majority bipartisan support. I realize his opponents are not happy that Judge Alito will be confirmed; no one likes to lose. But the correct response to failure is to pick yourself up and try another day, not to rig the process to get your way.

Second, opposition to cloture on the Fortas nomination was almost evenly bipartisan, with 23 Republicans and 19 Democrats. As we are about to see, opposition to cloture on the Alito nomination will be entirely partisan. The most important reason why the Fortas cloture vote is no precedent for this one is that there had not yet been full and complete debate on the Fortas nomination when the vote ending debate occurred. Senator Robert Griffin of Michigan stated clearly at the time that not all Senators had had a chance to speak and that the debate was being kept squarely on the many serious issues and concerns raised by the Fortas nomination. Senators were debating, not obstructing, the nomination.

The same cannot be said today. Those raising this last-minute call for a filibuster have had a full and fair opportunity to air their views about this nomination. Let us not forget that debate over a nomination, especially to the Supreme Court, begins as soon as the President announces his intention to nominate. The Judiciary Committee chairman, Senator Specter, accommodated Democrats and waited to hold the hearing on the Alito nomination until January. In fact, the 70 days between announcement and hearing exceeded the average time for all of the current Supreme Court Justices by more than 60 percent. Nonetheless, committee Democrats insisted on delaying the nomination for an extra week.

The nomination has now been on the floor for nearly a week. While the Senator from Massachusetts, Mr. Kennedy, says that Senators need still more time to debate, I recall the long, repeated quorum calls last week when Senators who could have spoken chose not to do so. I agree with the distinguished minority leader who last Thursday said that ``there has been adequate time for people to debate. No one can complain in this matter that there hasn't been sufficient time to talk about Judge Alito, pro or con.''

In fact, the last-ditch call for this filibuster came not from this floor or even from this country. The Senator from Massachusetts, Mr. Kerry, called for this filibuster from Switzerland. There is a difference between not having an opportunity to debate and not winning that debate. Nothing is being short circuited here. This floor has been wide open for debate. No one can even suggest that the debate has not been a full and fair one.

To their credit, some of my Democratic colleagues who oppose the nomination itself have nonetheless said that this 11th-hour filibuster attempt is not in the best interest of the Senate.

The Senator from Illinois, Mr. Obama, said over the weekend that the better course for Democrats is to win elections and persuade on the merits, rather than what he called overreliance on procedural maneuvers such as the filibuster. I agree.

We should not have to take this cloture vote today. It only further politicizes and distorts an already damaged judicial confirmation process. Moving beyond that, it is clear that the case for Judge Alito's confirmation is compelling. Last week I outlined three reasons why Judge Alito should be confirmed. He is highly qualified. He is a man of character and integrity, and he understands and is committed to the properly limited role of the judiciary, judges.

During the debate on this nomination, other Senators have explored these matters as well, including the Senator from Texas, Mr. Cornyn, who preceded me here today. Senator Cornyn is a distinguished member of the Judiciary Committee and a former State supreme court justice. His perspective and insight on judicial matters has been and is extremely valuable.

I wish to explore one specific issue that relates to Judge Alito's judicial philosophy which, unfortunately, has been the subject of a disinformation campaign by Judge Alito's opponents. That issue is Judge Alito's view on the role of precedent or prior judicial decisions in deciding cases. Judges settle legal disputes by applying the law to the facts in the cases that come before them. The law that judges apply to settle legal disputes comes in two basic forms.

There is the written law itself in the form of constitutional provisions, statutes, or regulations. Then there are past decisions in which the courts have addressed the same issue. The Latin phrase for following precedent or prior decisions is ``stare decisis,'' which means ``let the decision stand.'' Mr. President, every judge believes in the doctrine of stare decisis. Every judge believes that prior decisions play an important role in judicial decisionmaking. That includes Judge Alito.

As I will explain, Judge Alito's views on precedent are sound, traditional, and principled. When the Judiciary Committee hearing on this nomination opened, I outlined several rules which should guide the confirmation process. The first was that we should take parts or elements of Judge Alito's record on their own terms, in their own context for what they really are. That certainly applies to Judge Alito's views regarding the issue of precedent.

Rather than acknowledging what Judge Alito's views actually are, however, some of his opponents have created a caricature of those views, which serves their political purposes but which misleads our fellow citizens about both Judge Alito's record and this very important issue.

Let me start with Judge Alito's own words. No one expresses his view of precedent better than he does. On January 11, 2006, Judge Alito offered this summary of his views:

I have said that stare decisis is a very important legal

doctrine and that there is a general presumption that

decisions of the Court will not be overruled. There needs to

be a special justification for doing so, but it is not an

inexorable command.

This view has several elements.

First, Judge Alito says plainly that stare decisis is a very important legal concept and doctrine. He described why he thinks precedent is so important. One of his points stood out, and I believe it is worth highlighting. Let me just refer to that point. He said:

I think the doctrine of stare decisis is a very important

doctrine . . . [I]t limits the power of the judiciary . . .

it's not an inexorable command, but it is a general

presumption that courts are going to follow prior precedent.

Precedent is an important element of judicial restraint. In contrast to the grandiose picture painted by some on the other side of the aisle, the judiciary doesn't exist to right all wrongs, correct all errors, heal social wounds, and otherwise usher in an age of domestic tranquility. Judges have a specific role to play, but, like legislators and the executive, they must stay in their proper place.

Judge Alito believes that giving precedent an important role in deciding cases limits the power of the judiciary. If his opponents believe instead that judges should have unlimited power and may disregard precedent at will, let them try to persuade the American people.

Let me refer again to Judge Alito's summary of his views on precedent. In addition to stare decisis being an important legal doctrine, Judge Alito also said that there is a general presumption that decisions of the Court will not be overruled. If that presumption did not exist, there would be little point in paying attention to prior decisions at all. In fact, it is that presumption which makes precedent useful in limiting the power of the judiciary.

Judge Alito also said that overruling a prior decision requires a special justification. Some of Judge Alito's opponents suggest that he has taken a careless or reckless attitude toward the precedents of the court on which he now sits. I assume that, by this suggestion, they want people to believe that

Judge Alito would play fast and loose with Supreme Court precedent once he joins the Court. The suggestion is certainly false.

Judge Alito has voted to overrule his own court's precedents only four times in the 15 years on the U.S. Court of Appeals--only four times. In each of those cases, in which all of the judges in the circuit participated, he was in the majority, and in two of them the decision was unanimous. Judge Alito has demonstrated his view that judges should not heedlessly overrule past decisions.

As he explained it, the factors helping judges to handle precedents, including ones to overrule or reaffirm them, include when a past decision has actually been challenged and the Court has decided to retain it. This would, of course, not include cases in which the validity of a prior decision was neither challenged nor decided. It is, after all, another fundamental principle of judicial restraint, which Judge Alito also endorsed, that courts should not decide constitutional questions unless absolutely necessary. That would include deciding whether prior decisions, especially on constitutional issues, should be overruled or reaffirmed.

Obviously, a court does not decide an issue unless it actually addresses and decides it, and a court cannot be said to reaffirm or uphold a prior decision unless it actually addresses or decides that issue.

That said, a court strengthens the presumption that a precedent will be followed when the court actually does reaffirm such a decision. At the same time, Judge Alito has said that adhering to prior decisions is not an inexorable command. Those are not his words. As he pointed out at his hearing, the Supreme Court has repeatedly used that language, holding over and over again that adherence to precedent is not an inexorable command.

This only makes sense. While following prior decisions is a presumption, it is a rebuttable presumption. Here is where Judge Alito's opponents cry foul the loudest and where they expose their real agenda.

Many of Judge Alito's opponents do not really care about legal doctrines; they only care about political agendas. For them, the political ends justify the judicial means, and so-called principles are infinitely flexible so long as the political goal is achieved. They do not care about precedents in general; they only care about certain precedents in particular.

While Judge Alito has presented a thoughtful, principled approach to handling any prior decision, his opponents have but one simple, hard, political rule: get your hands off the precedents we want to keep. Their rule seems to be stare decisis for me but not for thee. Reaffirm decisions we like; overrule ones we oppose. This one-way ratchet is simply a device for getting the courts to do the political heavy lifting and preserving particularly the Supreme Court's role as policymaker in chief.

The real issue for Judge Alito's opponents is not that he rules too often for this group or that group, as if judges are supposed to make the numbers satisfy some political interest group rather than faithfully apply the law. It is not really about theories such as what has been called the unitary executive, which to Judge Alito apparently means nothing more unusual than that the head of the executive branch should be able to control and lead the executive branch. It is not about guilt-by-association tactics--accusations of affiliation with groups wanting to preserve Princeton's all-male tradition made by Senators belonging to all-male clubs.

No, Mr. President, this is about abortion. That is the be-all and end-all issue of those who oppose Judge Alito. I admit there may be an exception or two over there, but I really believe it comes down to that. That is what is driving this, and that is what the outside special interests, the leftwing groups, are using to drive them. The 800-pound precedent in the room is Roe v. Wade. That is the decision Judge Alito's opponents want left alone at all costs.

Many Senators and leftwing interest groups have demanded to know whether Judge Alito, if confirmed, would ever vote to overrule Roe v. Wade. I applaud their creativity in getting as close as possible to directly asking him that question. For most of Judge Alito's opponents, whether Roe v. Wade was correctly decided doesn't matter. Whether it was a legitimate interpretation of the Constitution does not matter. No, abortion advocates take a fluidly flexible approach to precedent, at least until they get the one they want. Then they become the most rigid and doctrinaire defenders of precedent, insisting on keeping what they have. This all seems like a judicial version of ``heads I win, tails you lose.''

Mr. President, I am glad to say that Judge Alito follows principle rather than politics on the bench. Can you imagine if the attitude of his opponents regarding this one precedent, Roe v. Wade, actually prevailed across the board? What if adherence to prior decisions was actually an inexorable command? What if the Supreme Court's interpretation of the Constitution, once on the books, could never be changed? If the doctrine of stare decisis were an inexorable command, decisions such as Dred Scott v. Sanford and Plessy v. Ferguson would still be on the books.

Judge Alito put it:

I don't think anybody would want a rule in the area of

constitutional law that . . . said that a constitutional

decision once handed down can never be overruled.

The judiciary must be guided by principles, not by politics. The Supreme Court has repeatedly said that the role of precedent is actually the weakest in cases involving the Constitution for a very simple reason. When the Supreme Court construes one of our statutes incorrectly, we can correct that error in short order. When the Supreme Court interprets the Constitution incorrectly, correction comes only through the cumbersome constitutional amendment process or the Court's willingness to review its past decisions.

I ask unanimous consent that a list of Supreme Court decisions affirming the principle that precedent is weakest in constitutional cases be printed in the Record.

Mr. President, in some of these cases, the Justice whom Judge Alito would replace, Justice Sandra Day O'Connor, is the one repeating this principle.

Let me return once again to how Judge Alito summarized his own view

of precedent. It is a very important legal doctrine that serves to limit judicial power. There is a general presumption that past decisions will not be overruled, but this is not an inexorable command.

Judge Alito takes a sound, traditional, principled view of the role of precedent in judicial decisionmaking, and I hope my colleagues will consider Judge Alito's view for what it actually is.

In closing, let me say that the debate over this nomination has been going on for about 3 months. It has been long and vigorous, both inside the Senate and across the country. I wish to note some of the opinions outside of this body on the nomination before us.

Some of my colleagues on other side of the aisle are fond of quoting liberal law professor Cass Sunstein's statistical analysis about which sides have won or lost in different categories of cases before Judge Alito. They have often said it is in his dissent that we may find his true judicial philosophy. I wonder whether they will credit Professor Sunstein's conclusions about Judge Alito's dissents, published last November in the Washington Post.

Here is what he said on the contrary:

None of Alito's opinions is reckless or irresponsible or

even especially far-reaching. His disagreement is unfailingly

respectful. His dissents are lawyerly rather than bombastic.

He does not berate his colleagues . . . Nor has Alito

proclaimed an ambitious or controversial theory of

interpretation. He avoids abstractions.

That was November 1, 2005.

Here is the conclusion of New York Newsday, which is titled ``Qualifications'':

Samuel Alito is a modest, decent man and an accomplished

jurist, well within the country's conservative mainstream. On

that basis he should be confirmed. But the Nation will need

him to be a strong guardian of the constitutional rights and

protections that make this country special.

I ask unanimous consent that three other editorials from the Washington Post, Chicago Tribune, and the Newark Star-Ledger be printed in the Record.

Mr. President, I also note that the attorneys general of 20 States, Democrats and Republicans, have signed a letter urging this body to confirm Judge Alito. I am proud that Mark Shurtleff, attorney general of my home State of Utah, is among them. They write:

Judge Alito represents the best of the Federal bench and we

believe he will be an excellent Supreme Court justice.

I agree, and I ask unanimous consent that this letter be printed into the Record.

Mr. President, the votes we take today and tomorrow give us an important opportunity. The Los Angeles Times editorial of January 15, 2006, got it right, saying that trying to derail this nomination by filibuster rather than on the merits is wrong.

I urge my colleagues to preserve this body's tradition by rejecting this desperate filibuster attempt, and then in a vote tomorrow, I urge my colleagues to honor the judiciary's important but limited role in our system of government by confirming this qualified and honorable man to the Supreme Court of the United States of America.

Mr. President, I yield the floor.