Madam President, this is one of the most important bills in many decades because this bill will determine whether or not 8,400- plus companies go into bankruptcy, with a loss of jobs, pensions, and opportunities for people all over this…
Madam President, this is one of the most important bills in many decades because this bill will determine whether or not 8,400- plus companies go into bankruptcy, with a loss of jobs, pensions, and opportunities for people all over this country--and all because of an out-of-whack tort system that has been manipulated by some veracious lawyers who should know better but who are too addicted to being able to milk the system for billions and billions of dollars, $20 billion thus far in legal fees and transaction costs.
Opponents of this bill continue to assert that the fund is nothing more than a bailout of corporate America because it is not big enough. There is one word for that: baloney. This charge, which the personal injury lawyers keep repeating in television and print ads, completely baffles me. Let me explain why.
Currently, estimates of what the existing tort system will pay to plaintiffs in the future range from $61 billion to $92 billion. That is currently. This is what the independent actuaries say is the amount of money the victims will actually receive under the current system.
Let me just point to this chart: the asbestos victims' compensation in billions of dollars. Under the tort system--the current out-of-whack tort system--you have three colors on the chart: dark blue, kind of light blue, and yellow. The light blue illustrates the fees we pay to the defense lawyers in these cases. The dark blue happens to consist of the fees we pay to the trial lawyers--in other words, the plaintiffs' lawyer.
Between them, as you can see on that Tillinghast account, shown at the top, you have $69 billion. How much goes to the victims? It is $61 billion--if it is there, if these companies do not go bankrupt. Take the Milliman one, shown down below: $61 billion to the personal injury lawyers, $42 billion to the defense lawyers. That is $103 billion. Only $92 billion goes to the victims. That is assuming these 8,400 companies have not gone into bankruptcy. We have already had 70 companies go into bankruptcy.
But look what happens under the FAIR Act. The attorneys would still get a whopping $2.5 billion for what really amounts to rolling-off-a- log type of a lawsuit because it would not take all the efforts they would have to put in to make cases otherwise in court. They would get $2.5 billion. But $111.5 billion would go to the victims. It is pretty hard to say that is not a fair deal or that it is a bailout of corporate America.
Now, our bill, in comparison to the $61 billion to $92 billion of those two actuary accounts that will go to the plaintiffs, gets them $111.5 billion, which is a lot more than either of those estimates were. This goes to the pockets of the injured persons.
So where does the rest of the expected cost of the tort system go? Under the current system, it is going to lawyers. It is going to lawyers' fees and other litigation costs, with personal injury lawyers alone expected to garner $40 billion of these future expenses. In addition, 80 percent or more of claims filed in recent years are from individuals who do not have a medically cognizable injury and are not impaired in their daily routine. Let me put that in lay terms. They do not have any injury that can be shown by the current medical analysis we have in existence today, and it is the best in the history of the world.
Indeed, one scholar estimated that meritless claims--claims without any merit at all--based on questionable ``diagnoses'' for mass screenings have accounted for $28.5 billion in costs already. As a result, the truly ill get even less than the $61 billion to $92 billion estimate that is suggested by these two studies.
Measured against the existing system, with all of its inequities and high transaction costs, the FAIR Act will deliver far more directly to victims. Up to $124 billion will be available to compensate those who are sick from asbestos while still providing medical monitoring for those at risk but not yet impaired--in other words, not yet sick, and who may never get sick. This is a simplified, no-fault, nonadversarial system which will not require forking over 40 percent to 60 percent to any professional.
No matter how you look at it, victims get far more compensation under this bill--and in a far more timely manner--than in the current system. This alone indicates that the fund is big enough.
But let's look at it from another angle. Are the aggregate fund contributions by companies and insurers expected to be less than they are paying in the current system? According to the Congressional Budget Office, the answer is no. CBO estimates that defendants will have about the same expenses in the current system for the next 5 years. This is on page 20 of the CBO's October 2, 2003, cost estimate for this fund. On the same page, CBO estimates, for the bill as reported from committee, that insurers would actually pay more to the fund in this same period than they would under the current system.
Keep in mind, the current system is gouging billions of dollars for nonsick claimants. Look, this fund, No. 1, calls for about as much money as companies are paying now; No. 2, shifts this money to the truly sick; and No. 3, reduces the transaction costs so more funds are available to compensate injured parties. In other words, we help those who deserve to be helped, where under the current system there are a lot of people sopping up the funds that are there who are not even sick, who have not suffered from sickness, and may never suffer from sickness.
This is a bailout? Give me a break. The chief benefit contributors get out of this deal is one thing, and that is predictability. They know what their payments will be from year to year, and that is it.
I was told if I was able to get $108 billion a number of Democrats would gladly sponsor and support this bill. I had indications from the union movement: But, boy, if you got $108 billion on the table, we will be there. They did not think we could get it done. But we did.
Now, despite all of these things I have been talking about, we have heard the argument that the money is not enough since S. 1125 was first introduced in May of 2003 when industry agreed to a $94 billion fund. Before introducing S. 1125, I had heard from the other side of the aisle that $94 billion was not sufficient but that $108 billion might be enough, as I have just said. I worked hard to get the business community to commit to this funding, and, in the end, the Judiciary Committee added a provision that would simply require $14 billion in additional funds in order to reach this goal. The funds, however, were not guaranteed in the committee-reported bill, as are those under S. 2290.
During the committee process, this $14 billion was added to the substantial contributions required from both defendants and insurers. When S. 1125 was reported out of committee, therefore, it provided for $104 billion in mandatory funding from defendant companies and insurers, plus an estimated $4 billion from bankruptcy trusts. The $108 billion was there.
The committee voted by a 14-3 margin that the claim values which added up to $108 billion--those values--were fair--14 to 3, with a number of Democrats voting with us. Not a single Democrat voted against these claim values. The only ones who did were 3 Republicans, and they thought it was too much.
Now we are hearing that the total just is not high enough. If the values were good enough for every Democrat before, why not now? I just do not get it.
By the way, let's go back just a step or two here. As shown on this chart, we are getting far more money to the sick and needy than the two expert actuarial firms say will go to the sick and needy--far more money. Those who make arguments to the contrary are not being fair.
Later in the committee markup, to ensure the risk of insufficient funding would not fall on claimants, an amendment was offered by Senators Kohl and Feinstein to provide a huge amount of open-ended, contingent funding that could be available to pay claims, up to an additional $31 billion over a nearly 20-year period. The number $31 billion was not in the amendment, nor was the number $45 billion, which some claim it was. The amendment simply called for maintaining the contributions at the same level if such funds were needed to maintain solvency, and this flat line happened to add up to $31 billion, since we had already added $14 billion to the base funding. This meant when the contingent funding was added to the $108 billion of mandatory funding, up to $139 billion could come into the fund and ultimately out to the people.
Democrats and labor unions falsely continue to cite the $153 billion number whenever they can. I challenge any of them to show me that number in S. 1125, the committee-reported bill. Moreover, the $139 billion was not hard money that would be going to claimants. That is a fact. It was not hard
money that would be going to claimants. The fund under S. 2290 would reach this same and substantial level of funding.
Further rendering this $139 billion obsolete is the fact a sunset provision was added later in the markup. This provided an ultimate safeguard, in the eyes of those who filed it, for fund solvency. Still further, we added in S. 2290 a measure which renders the contingent funding amendment from the markup totally unnecessary--the ability for the fund to borrow against 7 years of future revenue. With this provision, the Feinstein-Kohl contingent funding measure is no longer needed. Thus the whole premise for arguing more money is needed because the committee bill had more money is literally destroyed. The Feinstein-Kohl amendment created what amounts to a rhetorical problem on the total value of claims for some Democrats and some labor unions. But it is only that, a rhetorical problem.
Claims values adding to $108 billion were good enough for almost all the Democrats at the markup, and there is no reason the current $114 billion now should be inadequate.
Finally, I will give another indication of why those who now argue $114 billion is not enough are being unfair, if not somewhat disingenuous. Back on April 24, 2003, the AFL-CIO asked an investment banking firm to run a financial model with certain claims values. How much did this model, which they shared with Republicans during negotiations, add up to? Believe it or not, under the base case, it added to $121 billion. You heard that correctly, $121 billion. We offer a fund with a base of $114 billion in guaranteed money with a $10 billion contingency, 7 times the borrowing authority, and a sunset back to the tort system, and there is no deal yet?
I said earlier, I don't get it. But I suspect the reason we are seeing retrenchment and revisionism is that--and there is simply no delicate way to say this so I will be blunt--when personal injury lawyers put the screws on Democrats and labor unions, they are trying to stop this good bill at all costs. It is pretty apparent if you look at the flagrantly misleading ads they put on television, all paid for by the victims, by the way, through these exorbitant fees and transaction costs.
I will tell you one thing, they don't want to kill the golden goose that asbestos litigation is for them. They are only too happy to collect the golden eggs, even though the people who are truly sick, truly injured, will not get the money in many cases. In the end imposing financial obligations on the business community that are much more than they would have to pay under the broken litigation system to compensate victims would only risk bankrupting even more businesses and losing more jobs and pensions. Already, as I have mentioned, more than 70 companies have gone bankrupt due to asbestos litigation, and as many as 60,000 American jobs have been lost. It is estimated if this keeps going and we don't do what we should do here on this floor, there could be as many as a half million jobs lost. I believe that is a low, conservative figure.
If most of these companies go into bankruptcy, I can't begin to tell you what a detriment it will be to our country, let alone the sick and needy who really deserve the moneys.
Rather than rely on their own numbers or provide a reasonable alternative, opponents of the bill falsely contend S. 1125 had provided $153 billion and, therefore, S. 2290 does not provide enough funding. Of course, litigating these cases in Federal court may be a big risk to some personal injury lawyers who have successfully manipulated some outlier State courts to create a system of jackpot justice.
In reality, the Feinstein-Kohl amendment in committee, which introduced the open-ended contingency funding, was designed to ensure the fund established under the act did not become another Manville trust, placing the risk of insufficient funding on future victims and leaving them with only pennies on the dollar. That is a risk which victims will not face under S. 2290.
If, despite paying significantly more money than the current tort system, the fund is unable at any point to pay full value; that is, 100 percent on eligible claims, then the fund will sunset and the tort system will reopen in Federal courts to compensate for future victims. There will be no risk to the victims.
We can't forget this bill is about the victims, not overinflated estimates of a broken tort system that diverts much-needed resources to unimpaired claimants and reduces awards significantly to pay attorney's fees and other transaction costs that do not directly benefit claimants. By any objective standard, this fund is more than adequately funded.
Although we are being met with obstacles in getting to the substance of the legislation, I am heartened by something. There has been significant bipartisan support for passage of a legislative solution to the asbestos litigation crisis throughout the session. In fact, calls for Senate action have been occurring for several years.
For example, when the esteemed ranking member was chairman of the Judiciary Committee, my good friend Senator Leahy stated:
. . . Congress can provide a secure, fair and efficient means
of compensating victims. I believe it is in the national
interest to encourage fair and expeditious settlement between
companies and asbestos victims.
Those were Senator Leahy's remarks in the September 25, 2002, U.S. Senate Judiciary Committee hearing on asbestos litigation.
Senator Leahy echoed his sentiments last year during a hearing I chaired, when he said:
These bankruptcies create a lose-lose situation. Asbestos
victims deserving fair compensation do not receive it and
bankrupt companies cannot create new jobs nor invest in our
economy . . . If we work in good faith toward a bipartisan
asbestos solution, we can meet the challenge created by
[asbestos] litigation. I agree with the Supreme Court's
conclusion that the number of claims defies ``customary
judicial administration and calls for national legislation.''
That was Senator Leahy's statement on March 5, 2003 in the committee hearing which was entitled, ``It is time for Congress to act.''
Other Members have made clear they share his opinions. For example, last May, nearly a year ago, Senator Dodd made the following observation:
[W]e are working very hard to come up with a compromise
proposal on the asbestos issue. And we've taken major steps
in that direction, working with organized labor, with the
insurance industry, with the insured, and many others who
have a stakeholding in the outcome of this particular avenue.
It's a critically important effort.
That statement was made on May 3, 2003. The distinguished Senator from Connecticut, Senator Dodd, reinforced those statements later when he noted on March 4, 2004, when referring to the asbestos problem:
This is a matter that does cry out for a solution.
As work progressed on bipartisan legislation establishing a privately funded national trust fund, support for the concept grew. In a July 2003 letter to Senators Frist and Daschle, Senators Dorgan, Breaux, Nelson, Baucus, Kohl, Miller, Lincoln, Levin, Stabenow, and Carper stated:
The asbestos litigation crisis is real and urgently
requires a legislative solution. . . . An administrative
trust fund is the right approach and represents a good
foundation for a solid legislative solution. . . . A
legislative solution to the asbestos crisis is a crucial
goal. . . . We believe that the groundwork has been laid by
the Committee leadership to provide a real solution to this
ongoing problem.
That was a July 11, 2003, letter to Senators Frist and Daschle.
In fact, when the legislation was originally introduced, Senator Nelson stated:
This will protect victims, save jobs, and force companies
to pay their fair share. This is a good start to solving a
big problem.
That was a press release on May 23, 2003. I have appreciated Senator Nelson's support over the last year. I don't know whether they can pull him back on this cloture vote on Thursday. But if they do, it would show this is becoming a political exercise to the detriment of these workers, to the detriment of these unions, to the detriment of the insurance companies, and to the detriment of these companies.
As last year progressed and fears grew that the legislative effort might fall victim to election year politics, calls for action intensified. For example, Senator Dorgan wrote the following in another letter to Senators Frist and Daschle:
We must complete asbestos reform before this session. I
think it would be a serious
mistake--for victims, for the economy, and for the Senate--if
we adjourned without enacting asbestos legislation.
Certainly, a compromise must meet the needs of all the
stakeholders. . . . We must seize this opportunity to solve a
major public policy challenge for our Nation.
That was written on October 29, 2003, in a letter to Senators Frist and Daschle. Yet, as you know, we were unable to get this up and get it passed last year. I agree with the Senator; it needed to be passed last year. To allow us to go past this year would be almost criminal.
His opinions were echoed by Senator Baucus, who wrote:
After all the hard work that has been put into this bill
over the past several years, particularly this year, it would
be a shame to let it go to waste. It would also have serious
implications for the economy and for victims if we let this
historic opportunity pass us by. . . . From what I
understand, we are very close. . . . I urge you both to do
everything in your power to bring both sides together for a
swift resolution of this longstanding debate.
That was before we have gone way beyond last year's bill, and we have given well over 50 amendments to Democrats to achieve this bill.
That was a November 5, 2003 letter.
On the same day, Senator Levin also sent a letter to Senators Frist and Daschle expressing his own concerns about the importance of the Senate taking action:
I would like to again stress the importance of addressing
the issue of asbestos reform before we adjourn this session
of Congress. . . . [T]he Senate is in jeopardy of missing a
historic opportunity to pass asbestos legislation with strong
bipartisan support. It is obvious to anyone . . . that the
system is broken and needs to be repaired.
That letter was dated November 5, 2003.
These were all written during the last year's session of Congress.
A week later, Senator Stabenow gave the following advice to Senators Frist and Daschle in a letter:
I believe that we have an historic opportunity right now to
pass asbestos reform legislation with strong bipartisan
support. . . . The current system has a devastating impact on
victims and their families, who have to continue to wait
while the judicial system wades through their claims, and on
companies, many who have had to file for bankruptcy because
of asbestos lawsuits. I urge you both to continue to work on
a bipartisan solution to this national problem.
That was in a November 13, 2003, letter.
Senator Leahy made the following statement on the floor a few days later:
. . . [W]e have come to a complete accord on the idea that
the fairest, most efficient way to provide compensation for
asbestos victims is through the creation of a national fund
that will apply agreed-upon medical criteria in evaluating
patients' injuries . . . an effective and efficient means to
end the asbestos litigation crisis within reach, and we must
grasp it.
That was a floor statement made on November 22 of last year. Unfortunately, time ran out before consensus could be reached.
At the urging of members on both sides of the aisle, Senator Frist announced in December his intention to accommodate Democratic requests for more time, and he announced he would delay floor consideration until this spring. This year, as negotiations continued in various settings, a call for action has continued. For example, on March 4, Senator Dodd noted the crisis in asbestos litigation is ``a matter that does cry out for a solution.'' That was on March 4 in the Congressional Record.
A few days later, Senator Reid acknowledged ``we have to do something about asbestos litigation.'' That was in the March 9 Congressional Record.
It would be impossible to argue there is an absence of bipartisan interest in fixing the asbestos litigation crisis. Nothing has changed since the Democratic leadership council made the following observation in 2002:
This is one issue where the fight is not simply a part of
the age-old struggle between companies seeking to avoid
financial responsibilities for misdeeds and trial attorneys
seeking to punish them while rewarding their clients and
themselves. We agree with Supreme Court Justice Ruth Bader
Ginsburg, who argued in an earlier case that the goal should
be to provide secure, fair, and efficient means of
compensating victims of asbestos exposure. We concur with the
view of the AFL-CIO that the current system is unfair and
unpredictable. Senate Judiciary Committee Chairman Pat
Leahy's decision to hold a fair and balanced hearing on the
asbestos litigation crisis should signal the beginning of a
bipartisan effort to create certainty in the system and get
help to victims without spurring new waves of bankruptcies.
That was in the New Democratic Daily on September 18, 2002, a year and a half ago.
These are some of the Democratic calls for reforms on this chart. I have on this particular chart quotes by Senators Dorgan, Breaux, Nelson, Baucus, Kohl, Miller, Lincoln, Levin, Stabenow, and Carper. In a letter, they said:
The asbestos litigation crisis is real and urgently
requires a legislative solution.
On March 4, Senator Dodd said:
This is a matter that does cry out for a solution.
Senator Dorgan wrote on October 29 a letter to the leaders:
We must complete asbestos reform before this session.
Senator Stabenow wrote on November 13:
I believe that we have an historic opportunity right now to
pass asbestos reform legislation with strong bipartisan
support.
Senator Leahy, on November 22, 2003, said:
An effective and efficient means to end the asbestos
litigation crisis is within reach, and we must grasp it.
Some of the statements I have quoted from my Democratic colleagues are listed on that chart. When viewing just a segment of these quotes, I think it is clear the need for reform is universally understood. The issues that must be addressed are clear. The time has come to act. We have worked our guts out to try to accommodate our friends on the other side. All we hear is: more money, more money, more money. It is as though these 8,400 companies have an unlimited supply of money to be given. In many cases, those companies are dramatically mistreated by this whole system. In many cases, they should never have had to pay a dime. I will cite one of the larger insurance companies in this country. They never, ever insured for asbestos or asbestosis, or any problem or malady that comes from asbestos; they never had anything to do with asbestos, other than they had their medical team do a medical analysis and concluded mesothelioma probably comes from exposure to asbestos. That was a service to society, not anything that should cause liability. Because of that, this company has been joined in over 60,000 cases, every one of which they can win and should win. The last one they tried, they did win, but it cost them $2 million for attorneys' fees alone.
That is money that could have gone to the victims, and just to get some finality to this situation, just to solve this problem, that company is willing to pay out what amounts to millions of dollars that they do not owe just to get this over with. There is a raft of companies that are in the lawsuits that fit that category.
Where is the justice on the other side? I admit, you want to fight for your constituencies--the personal injury lawyers and the unions-- but you also have constituencies, my friends on the other side, in these businesses that are going to go bankrupt and insurance companies that also are going to go bankrupt and the economy that is going to be tremendously hurt by this situation if we do not resolve this problem. We have a whopping amount of money to resolve these problems.
The issues that must be addressed are clear. The time has come to act. The asbestos litigation crisis is a national nightmare, and the failure of Congress to fix it would be a legislative disgrace.
I would like to show some charts with other calls for reform from labor unions and the media. Let me go into some of those.
Organized labor calls for reform. This is a statement of Jonathan Hiatt, general counsel with the AFL-CIO. This was made before the Judiciary Committee on January 25, 2002:
Uncertainty for workers and their families is growing as
they lose health insurance and see their companies file for
bankruptcy protection.
Mr. Hiatt is a very bright and noble attorney in many respects, and I have a lot of respect for him. What has the AFL-CIO done? We reached $108 billion which I had indications they would accept, but now we are as high as $124 billion. Where are they?
Take AFL-CIO Principles on Asbestos Compensation which was stated on August 7, 2002:
[U]nder current law and legal processes, many asbestos
victims are not being treated fairly.
In other words, the system is broken. Here we have a chance of changing the system. This is the art of the doable. And where are the trade unions? They are the ones that are losing the jobs. They are the ones that are primarily losing health care benefits. They are the ones that are losing their pensions from these companies that are going bankrupt. Where are they? Why aren't they demanding that our friends on the other side do something about this, other than scream for more money all the time. Stones can only give so much blood, and, of course, there is a certain irony in that statement.
Let's take the United Steelworkers of America, local 12773:
We really believe this needs to be resolved now.
Or take the Paper, Allied-Industrial Chemical, Energy Workers International Union, local 2-0891:
. . . we might not have another chance for some time.
They might not have jobs in the future because of this dragging of the feet we are getting from the other side on this matter.
Or take the United Steelworkers of America, local 7110:
It is too important to let pass by.
These sum it up. Let's take media calls for reform just so people understand.
The Pittsburgh Post-Gazette, September 25, 2003:
There is an elephant to be moved, and this is the best
chance in years. The time for Congress to act is now.
The Detroit News, April 4, 2004:
The bill makes economic sense for companies and would
ensure significant payments to employees who develop serious
illness. It's a humane solution and ought to be adopted.
That is the Detroit News, a heavily industrialized city. They understand this. Why the slowdown?
Take the Chicago Times, on June 16, 2004:
It is ludicrous to keep litigating for the benefit of the
litigators, when what is needed is a claims system for the
benefit of the victims.
That is what this bill does. It is a claims system for the benefit of the victims.
There is a whopping amount of money that will go to the victims, not to attorneys, although the attorneys still will get $2.5 billion of it, which is a lot of money.
Take the Washington Times on September 24, 2003:
. . . current legislation to control asbestos-related
lawsuits is one of the best ways Congress can protect jobs.
The current legislation.
Or take the Capital Times & Wisconsin State Journal on May 13, 2003:
An asbestos trust fund is a good idea. It should become
law.
Fund Could End Asbestos Legal Battles.
That is what this bill can do. Why don't we have more help from the other side?
None of these papers, with the possible exception of Washington Times, one would call moderate to conservative. Most are more liberal papers.
The Chicago Times, June 16, 2003:
The proposal . . . would get compensation to genuine
victims and get hundreds of thousands of cases out of the
regular court system.
That is one of the points I have not emphasized up to now. As a former trial lawyer, I have to tell you, our courts are clogged with all kinds of frivolous suits, all kinds of frivolous cases. I am not talking about these cases necessarily, but all kinds of them. Then you add these hundreds of thousands of cases, and one can see why justice is not being obtained, especially for those who are sick and needy.
I notice that my colleague from Washington is in the Chamber. I thank her and her staff for their good-faith efforts in working with us to reach consensus on an appropriate asbestos ban. I am pleased that we, including Senators Feinstein and Kohl, were able to reach bipartisan consensus on this very important issue. It is important.
Madam President, I ask unanimous consent that immediately following the remarks of the distinguished Senator from Washington, the distinguished Senator from Ohio, Mr. Voinovich, be recognized to give his remarks.
I yield the floor.
Madam President, I ask unanimous consent that the order for the quorum call be rescinded.
Madam President, I ask unanimous consent that immediately following the distinguished Senator from Connecticut, I be permitted to speak.
Mr. President, I have been interested in this discussion. It has nothing to do with asbestos, but nevertheless an important discussion. I have to say I have taken great interest in the education processes myself. The other side just thinks there is money growing on trees. Frankly, there is never enough money to satisfy them.
All of us wish we could do better. I wish every school district in the country would teach music because it softens kids' lives. When I was a young kid, I was born on the wrong side of the tracks. I was a tough little kid. My mother made me learn the piano for 6 months and then made me play the violin, and that made me even tougher, carrying that violin to school. I have to say that softened me and gave me a soft side to what some people think is a fairly tough guy. So I commend my colleagues for wanting to do more. But having Democrats call for more and more spending is a little bit like a glutton who has eaten everything on the table and now wants more.
There is no end of the spending that they would do, even if we do have a $1.2 trillion deficit. This President has all he can handle. There is no question about it. I commiserate with him. I also look at the outrageous costs of some aspects of higher education brought into discussion here, what a gravy train it is for some people in many universities, and how tuition has gone up so much to pay for the gravy train. It reminds me of the trial lawyers we have been talking about with respect to asbestos reform.
Mr. President, I wish to respond to some criticism some friends across the aisle have made regarding my comments about personal injury lawyers. In particular, I have been criticized for repeating in public on the floor of the Senate what many people are saying in private--that there is a political tie between many of these trial lawyers and many of my friends across the aisle. I don't think it is news that, as a rule, you will find that, all things being equal, most trial lawyers will likely support with their voices, and especially their wallets, the Democratic Presidential nominee and other Democrats across the aisle. They are the largest single hard money donors to the Democrats-- the liberal Democrats. It is hard to find any conservative Democrats, other than one I know of over there.
If I offended anybody by repeating in public a widely known dynamic, I guess I should apologize. I also recognize that I am unlikely to be the American Trial Lawyers' man of the year awardee. I am a member of that organization. I know a lot of great trial lawyers who are honest, decent, and do what is right in serving the American people. They know that when they are right, I am on their side. But in this case they are not right--the few who are abusing the laws.
Seriously, if in this debate I have sometimes come down too hard on personal injury lawyers, I have done so because I am concerned that what stands in the way of a much needed asbestos bill is the handful of overzealous, greedy personal injury lawyers--just a handful of lawyers in this country. I don't intend to malign personal injury lawyers as a class. I believe personal injury attorneys can serve and, in many cases, have served a vital function for many injured plaintiffs.
While I don't always see eye to eye with the personal injury bar, when I think they are right, I don't hesitate to say it and they know it. I had plenty of them thanking me for saying so when they were right during the discussion over the tobacco legislation in 1998. I was impressed with Richard Scruggs, or Dickie Scruggs, in the Castano group of trial lawyers. I think many trial attorneys played a constructive role in reaching a historic compromise with the tobacco industry. I helped them, and they know it. They were right and I backed them. Some in Congress held out for so much money that it was impossible to pass Federal tobacco legislation. The theme of some in Congress holding out for too much money is applicable to the asbestos debate.
In any event, the work that a gifted group of trial lawyers did with Mississippi Attorney General Mike Moore deserves a lot of credit. I supported their efforts publicly and even provided my support for reasonable compensation for those attorneys. I am not afraid to speak up for trial attorneys when I think they are right. I irritated people on my side who felt they should not get the compensation that I think they more than earned.
Frankly, as a former medical malpractice defense lawyer, I liked nothing more than to go up against the best plaintiffs' attorneys for the pure challenge of competing against the most skilled adversary. As a plaintiffs' lawyer, I liked nothing more than having gone up against the best defense lawyers in the country, having the thrill to be able to compete with them. In many cases, I would win against them.
We all have to recognize that the work of personal injury attorneys on asbestos litigation has dated back 30 or more years. Without the hard work of these lawyers, it is unlikely the U.S. would have come so far in responding to the dangers of asbestos. It is the success of the trial attorneys that put us in the position of recommending legislation that calls for a private trust fund to compensate asbestos victims without the need for each one to establish causation.
In short, personal injury lawyers have won the case, and they won it long ago. What this legislation is trying to do is sort out who pays and how much, and do so in a fashion that minimizes the transaction costs so that more of the money goes to the injured persons and less of the money gets swallowed up in litigation, and the courts can get unclogged, and so that other fairly brought litigation can be heard.
In compensating asbestos victims, we must be mindful not to corrupt more and more firms, which results in more and more job losses, and more and more loss of health care, and losing more and more value in retirement stock portfolios, and more and more loss of pensions. That is what we are trying to do here.
All I hear is whining from the other side. We have heard a lot of talk about how much the bill costs and how much it will pay out to victims. We heard talk about who pays, and how much, and whether they are paying enough.
If we ever get on the bill, we will hear more talk about these important issues, as we should. I have no problem with that. But they are filibustering even the motion to proceed. My gosh, when are the American people going to understand what is going on? They have filibustered virtually everything that has come up this year. It is going to take a supermajority to pass the simplist of bills the way they have been carrying on. It boggles my mind. But that is what is at stake in tomorrow's cloture vote.
Will we vote for cloture so we can talk about the issues on the bill itself? I hope we will proceed to the bill. But it shows the politics that are being played. For my friends on the other side to come on the floor and say this bill doesn't do enough, after we have given and given and given in to their suggestions time after time, or to say it is not procedurally proper or not written right, after 15 months of dedicated, hard effort--I have to say by a few Democrats, and by many on our side--it goes beyond the pale.
It is true that I have irritated some personal injury lawyers in some of my remarks. The ones I am talking about deserve irritation. I don't believe they are honest. I believe they are exploiting a system and taking moneys that should go to people who are sick. What
I am about to say may further irritate them and some of those across the aisle.
I have some important questions to raise with respect to attorneys' fees. Frankly, the issue of attorneys' fees is a key issue because it is critical in determining how much of the funds will actually end up in the pockets of the injured people. As I have said, today about 60 percent of the funds wither away to lawyers on both sides of these cases. You can expect that about one-third of any recovery will go to the plaintiffs' attorneys. In a no-fault, nonadversarial compensation system, there should be no place for the routine attorneys' fee level of one-third of the recovery.
Accordingly, in our bill, we employ the same fee schedule used by the Radiation Exposure Compensation Act, or RECA. In the RECA law--a bill I wrote and passed through this body a number of times--the lawyers' cut is 2 percent of the recovery in noncontested cases, and 10 percent for complicated cases. These cases are like rolling off a log if this is passed. Lawyers do not deserve 60 percent in defendant and plaintiff attorneys' fees, in addition to the transaction clause. The fee schedule results in the lion's share going to the injured persons and their families. This is the way it should be in the radiation exposure cases involving downwinders of nuclear tests, and this is the way it should be for asbestos victims. This is what is in our bill. It is a long settled way of solving these problems and a reasonable way that pays the attorneys what they should be paid--actually more, in many instances--but it stops the gravy train that is ripping off the sick and needy who have suffered from asbestos.
What is unknown is what our friends believe to be a fair level of compensation for personal injury lawyers in this new no-fault system. I ask today for our colleagues to come to the floor and tell us if they support or oppose our proposed attorneys' fees levels, if they believe our 2 percent for uncontested cases that are like rolling off a log, and 10 percent for those who might have some small contest, and they will still be like rolling off a log compared to litigation in trial. If this provision is not proper, please tell us how they would do it. We have not had the slightest suggestion from them.
If they believe it is still appropriate to retain attorneys' fees of 33 percent to 40 percent or higher, please explain why this is fair or necessary in a no-fault, nonadversarial system that this bill would make into reality. In the spirit of good faith, we agreed to move the program into the labor-friendly Department of Labor. The Secretary of Labor does not favor this. The White House does not favor this. I, frankly, do not favor this. I am afraid that will run the program into the ground because the Labor Department has been controlled by liberal bureaucrats for many years. But we are willing, in the interest of getting this done, in the interest of helping these people, to even do that.
Running a program to compensate workers out of the Department of Labor may be somewhat akin to voluntarily playing the Celtics in the Boston Garden. We made a genuine concession on the administrative process, as our colleagues know. We have repeatedly asked them to recognize it is appropriate for them to act in a spirit of genuine compromise with respect to attorneys' fees.
Let's face it, numbers are flying around in this debate. One way that the difference between our respective proposed level of total claims can be bridged is to reach agreement on the appropriate level of compensation for attorneys' fees. But we cannot even get them to talk about that. Even if we could, we could not talk about it because we are on a filibuster on the motion to even proceed to the bill. Once we go to the bill, we would have a filibuster on that, if we can ever get to that point, but at least we would be able to be on the bill.
We believe the RECA, the Radiation Exposure Compensation Act, exposure level of 2 percent of noncontested cases and 10 percent for contested cases is both fair and reasonable because both cases will be easy for the plaintiffs or those who claim to be sick to get compensation if they are sick.
What do our friends across the aisle think about this? What are they proposing on this important issue? I ask they be specific so we and other interested parties can evaluate their position on this essential question. We have only been negotiating with them for 15 solid months, and we still do not have their suggestions. Yet they are saying: Oh, this is just too premature. That is after many of them said last year we should have gotten this bill done before the end of last year's session.
When is it going to end? When is this kind of phoniness going to end? A great deal of the difference in the compensation levels, in each of our respective levels of total compensation, in our bill it is $114 billion plus a $10 billion set of contingency funds, and in one widely cited Democratic claim values amendment $167 billion can be bridged by factoring in the share that can go to personal injury attorneys.
I do not want to cut them out from reasonable fees, but I do think $60 billion is unreasonable because that money comes out of the hides of the sick people. No wonder attorneys in this country are so looked down upon, especially personal injury lawyers. I happen to know about 90 percent of the ATL people are sick of this and sick of this 10 percent who are running wild taking advantage of the whole system and basically destroying the right of individual sick people to get adequate compensation.
This bill would take care of that problem. If the Democrats are advocating that the customary one-third of the award can go to the lawyers, then we are not that far apart as to how much money should go to injured workers and families. We should work together to see if we can agree on a reasonable level of compensation for these attorneys. I call them the Fred Barrons of this world and other personal injury lawyers who are bringing these suits in selected favored jurisdictions so they can get easier verdicts. I challenge them to come in and tell us what would be a reasonable level of attorneys' fees, and let's quit playing the game.
This is a no-fault, nonadversarial system that does not justify the type of attorneys' fees that have been ripping off the public, especially the sick, the weak, the feeble, and the injured the way the current broken tort system is. I have no doubt that public discussion of this issue may bring great consternation among the ranks of some of my Democratic friends due to their close relationships with many in the trial attorney bar. But if we are ever going to have a meaningful no- fault trust fund asbestos bill, we are not going to be able to guarantee and should not be asked to guarantee the usual one-third to 40 percent of the take going to the plaintiffs' trial lawyers regime. One-third or more going to the lawyers is simply too much, especially in a no-fault, nonadversarial system.
The unions should recognize this, and the public should recognize this, but most of all these lawyers ought to recognize this and quit ripping off the sick and the downtrodden and those who really deserve these moneys.
The silence of my friends across the aisle on this issue, both in private and public talks, is deafening. When we did the RECA bill, I was chairman of the Labor Committee. I fought that bill through for years until we finally were able to get it done. All these people are asking for more money for education, more money for all the social programs, more money for this, more money for that, and they were the ones who were giving us a rough time. Finally, after I was reelected, they then realized we better get on the ball and do something about this. That is how the radiation exposure compensation law, which is now followed by countries all over the world because of what we did, is now law, compensating people, not very much for the suffering they went through, nothing like we are going to compensate from the private sector, no way near what we are going to compensate here.
The silence of my friends on the other side of the aisle, both in private and public talks, is deafening. I heard some of my colleagues, who I respect, come on this floor with a straight face and say this is not the right way to do it, although last year it was. They were talking about this administrative approach is the right way to do it. Why isn't it the right way to do it during a
Presidential election year? I ask the people out there watching and listening, why is it they suddenly think this is not the right way to do it when we put up even more money before, giving in on at least 53 different amendments, have moved this into an administrative process in the Department of Labor that many on our side question? Why is it that they are still balking at this in this Presidential election year?
I think there is only one conclusion most people are drawing, and I hate to see that. I hate to see that. If they do not like this bill, they should offer a substitute amendment. Let's have it out. Maybe they will win. Maybe these 8,400 companies and 16 insurance companies will get clobbered even worse so they can barely survive, and some are still going to go into bankruptcy. They certainly will if some of these people with their outrageous demands get their way. It is time to stop talking generalities and start voting on specific amendments.
I want next to make a few remarks about the process that has been observed to date and why I will be very disappointed if we are not allowed to proceed to the bill tomorrow after the cloture vote. Just think about it; they are filibustering the motion to proceed. They could have easily given in just like that and said, No, let's go to the bill, and we will filibuster the bill. That would be the straight up way of doing it. But to filibuster the motion to proceed means they must be beholden to somebody to pull that kind of a procedural mechanism. That does not happen very often, and it should not be happening here.
Frankly, that we are being forced to vote cloture is disturbing to me and should be disturbing to everyone, although I do recognize if cloture is not invoked, it would be pleasing to these few trial attorneys who are milking this system dry at the expense of those who are sick and afflicted and downtrodden. They will not have to see if their customary one-third or 40 percent of representation in the asbestos claims in the new no-fault system can be justified on the floor of the Senate. That is just matter of fact and people need to know it. That is why I am here on the Senate floor.
I rise today in response, again, to complaints that I have been hearing from some Members on the other side of the aisle about being rushed to consider a national solution to this asbestos mess. As many of my colleagues know, the asbestos litigation crisis is not new to this body. We have been talking about the problem for the better part of a decade, but now that we find ourselves on the verge of considering a proposed solution, I am puzzled to hear that the process has somehow been unfair, that we are not acting as ``proper legislators'' for bringing this bill to the floor under the current circumstances.
I think anybody with brains would find these complaints devoid of any merit whatsoever, especially when viewed against the legislative history of this asbestos bill.
While we have tried to build consensus over the past 15 months, thousands of asbestos victims have gone uncompensated or left with only pennies on the dollars they deserve. Veterans and people like those in Libby, MT, are left with no one to sue. More than 70 companies have gone bankrupt and dozens more will soon follow.
Since we started working on this legislation, 60,000 jobs have been already lost at a cost of more than $2.2 billion in lost wages alone. Let me repeat these numbers so they can sink in. Sixty thousand jobs have been already lost at a cost of more than $2.2 billion in lost wages alone, and sadly another 400,000 jobs will soon be lost. Yet we still talk. There are compelling calls for action. There are empathetic expressions of compassion for victims. There are meetings and letters, promises of solutions to come and proposals to be made, and yet for all of this ocean of good intentions we are all still stuck.
Frankly, much of the current asbestos litigation is all too reminiscent of the mythical Jarndyce case from the Charles Dickens ``Bleak House.'' As my colleagues will recall, this was a case in which most of the estate was swallowed up by lawyers' fees and court costs.
One has to ask how and why we got to this point. In September 2002, when Senator Leahy chaired the Judiciary Committee, he held a hearing on the asbestos litigation crisis. I commend Senator Leahy for his efforts. The hearing was balanced. It was instructive, providing valuable evidence of the dire circumstances for asbestos victims, employees, companies, and insurance carriers. The judicial system and the American economy at this national embarrassment was left intact. That was a year and a half ago.
When I became chairman of the committee 4 months later, I immediately made it clear that I wanted to build on that record, draft a bipartisan legislative solution and pass it. Almost immediately, concerns were raised, warnings were issued: You are moving too fast, some said. The issue is not ripe, others advised. You better get it right, others still warned.
Two months later, on March 5, 2003, I chaired another hearing. Some of the same witnesses from before appeared again and the testimony made it abundantly clear that while the problem had gotten worse, there was bipartisan interest in the idea of creating a national trust fund. We heard solutions from a variety of perspectives--from academia, from business, from the unions, and from trial bar experts. I made clear I would incorporate any constructive proposals offered. I wanted a bill that would work. I wanted it to be a bipartisan bill.
As a result of hearing the magnitude of the asbestos problem, we worked toward drafting a bill that would create a national privately financed no-fault compensation fund for asbestos victims. As word spread about our efforts, warning flags were raised. Some in the minority on the other side of the aisle urged us to move slowly, not to rush; more time was needed; more talk was needed.
We finished drafting the bill and we shared it with others, both in the Senate and among interested shareholders. There was real interest and we were given several good ideas and suggestions. Unfortunately, for the first time the minority's caution chorus took voice: We're being rushed; we're being jammed.
This is the minority's caution chorus of worrisome lions. This is what we have been going through now for 15 solid months: Do not rush us; do not do this; do not do that; we must be cautious.
We were rushing them, we were jamming them; according to them; I was acting unfairly. All this drama was over a bill that I had not even introduced.
I had listened for hours and hours, worked with my colleagues on both sides of the aisle for days, weeks, and months. They asked that I delay introduction. They asked that I delay introduction so they could have more time to study the issue and my proposal, which I did. We had more meetings, more talk. I incorporated several of their ideas into the bill and asked if they would cosponsor it.
Now I am pleased that a few did. I am forever grateful to those on the Democratic side who did. There were two who did--two, after all this work. Fifteen months later, we are down to one. More said that it was not the right time. They were upset with the way I had shared my draft legislation.
On May 22, 2003, Senators Nelson, Miller, DeWine, Voinovich, Allen, Chambliss, Hagel, and I introduced S. 1125, the FAIR Act. The minority's caution chorus sang again. These miserable, cowardly lions sang again. They were being rushed. They were being jammed.
In truth, I introduced the bill 78 days after my hearing, 20 weeks after the beginning of the session, 6 months after the hearing of 2002. This was clearly no sprint.
On June 19, I held the first markup. Again, the minority caution chorus took over again and took voice. The issue was still too complex. The bill was too complicated. We were not doing it right. They were being rushed. They were being jammed. They asked for more time, and they were given it.
Unlike ever before, the committee's markup of the legislation was spread over 3 weeks, 3 solid weeks. We spent 4 separate days--not many bills take 4 days to mark up--considering changes, often working late into the night. We invited experts to sit with us as we worked through complicated medical issues. This was no sprint, no rush to judgment. There was no mad dash.
Interestingly, when there was engagement from the other side, agreements were reached. In fact, the committee was able to resolve what at the time was supposed to be the biggest impediment to reaching a consensus, an issue so fraught with partisan disagreement that it could never be resolved.
In the end, we accommodated scores of concerns raised by the minority and found a common ground on medical criteria that everybody, Democrats and Republicans, agreed to. It was a major victory. This bipartisan accord was achieved and the committee adopted it unanimously. This was one of the most ideologically divided committees in the Senate, some say the toughest committee in the Senate with those who are the most ideologically challenged, I should say, and I cannot disagree with that.
The next impossible hurdle was claims values. Again, I was told there was no way a group so divisive, so argumentative, so plainly disagreeable as the Judiciary Committee could reach an agreement on how much to pay victims. Now, despite the dire predictions, a bipartisan agreement was reached again. The committee adopted the Graham-Feinstein amendment on claims values by the whopping bipartisan vote of 14 to 3. Now I just want to mention to my colleagues on the other side that every one of the Democrats voted for that. Three of our Republicans thought it was too much money and they voted against it, and they may not have been wrong. The only problem is that we are way beyond that money today.
I might add that all of these negative votes were cast by Republicans who thought some values were too high. As my colleagues know, we are more moderate to conservative over here, and I cannot blame them for raising those issues.
On July 10, 2003, despite the constant wailing from the minority's caution chorus again, we reported the bill out of committee by a vote of 10 yeas and 8 nays and 1 abstention. We all knew more work had to be done before the legislation could be brought to the floor. We also knew there would be no bill unless there was a willingness on both sides to pass a solution to move towards the middle.
As summer turned to fall, there were sporadic attempts at additional negotiations involving committee staff, as well as among the leadership. Minor matters were resolved, but there was no evidence on the part of the minority's leadership of any real interest to engage in the kind of meaningful effort needed to finalize a bill. Individual members of the minority were very public about their interest in legislating, but those purportedly tasked with the negotiations did not possess the same zeal.
We have heard, for my whole 28 years, how much more concerned the other side is about people and their problems. Well, it does not take much to figure out their concern here is more about the trial lawyers and the personal injury lawyers who are involved, because they are sure not working hard, in my eyes, or I think anybody else who looks at it objectively, to find a way of helping those who are truly injured and hurt.
Now, while these efforts were making little progress, work was underway on another front beginning in August. Senator Specter began an intriguing, arduous mediation among the major stakeholders. That means the victims, the alleged victims, the trial attorneys, the personal injury lawyers, the insurance companies, the companies that have been sued, and companies that are about to be sued. He took on this job. I give him a lot of credit for it. He convinced Judge Edward Becker, former Chief Judge of the Third Federal Circuit Court of Appeals, to play a lead role as a negotiator, as a mediator, for which Judge Becker is eminently qualified. He and the judge forced the parties to spend dozens and dozens of hours together. We were there, so we do know.
We spent hours and hours, days, weeks, and months, arguing the positions and searching for a common ground. Senator Specter and Judge Becker should be commended for their Herculean efforts to keep the parties talking and, despite the objections of the representatives and the personal injury lawyers, there was progress--slow, incremental, but progress. The unions played a significant role. They were there virtually all the time.
However, we have never been able to satisfy them, even though their workers are the ones who are going to be hurt the most if this bill doesn't pass. They are the ones who are not going to get compensated because the moneys are being sopped up by personal injury lawyers and people who are not sick because these personal injury lawyers are going to jurisdictions that basically are out of whack, that really will not look at these things in a reasonable way and who basically find for whoever brings the case and find in huge amounts for people who are not even sick in many cases.
I compliment Senator Specter and Judge Becker. There has been some slow progress during that period of time.
During the fall, Senator Frist and I spent considerable time working with those who would be paying for the fund to ensure its solvency. It was imperative that the bill establish a steady and sufficient flow of moneys without allowing the fund itself to perpetuate the same kind of economic disasters caused by the tort system as a whole and by the tort system with regard to this type of case.
By the end of October, these issues had been completed and there was a renewed attempt to begin negotiations with those on the other side of the aisle, but every time an overture was made, the caution chorus was being rolled out: We are being rushed. We are being jammed. Every time it was rolled out by the other side of the aisle.
There was always some reservation; Things were moving too fast; There were other more important issues; They hadn't been asked the right way; They were being rushed; They were being jammed. The reasons changed but the result was always the same--no real negotiations. In fact, to this day we do not have a substitute or an offer by those who are complaining on the other side--to this day. We don't even have a monetary amount other than they have thrown out $170 billion, which everybody knows cannot be the number.
During my tenure in this body, I worked with my colleagues in the minority on a number of issues, on landmark drug legislation, the Hatch-Waxman Act, which gave life to the generic drug industry and saved consumers and our Government tens of billions of dollars since 1984. I worked with minority Members on children's health insurance, on childcare, on tax reform, job training. I have worked with them on issues involving crime, on legal reform, and a whole raft of other issues.
The Members of the minority are excellent legislators and skilled negotiators. They have insightful and creative staffs. I have worked with them when they wanted to pass a bill, and I know what it is like when they want to pass a bill. I have worked with them when they do not, and I know what it is like when they do not. I am telling you this is a time when they just don't seem to want to, because there has been plenty of opportunity to resolve this matter.
It is not hard to tell the difference. When there is a genuine interest in legislating, one of two things happens. A member of the minority leadership comes on at the outset and his or her presence and commitment helps to generate sufficient pressure on both sides to move legislation.
The second way, the minority offers their own version of the bill enabling both sides to sit down and work through the differences and craft a compromise.
Here there was no move by the minority's leadership and there was never, despite repeated and frequent requests, any interest by the minority in introducing their own solution. Instead, they chose to spend their time finding fault with our legislation and complaining about our process.
Another concentrated effort to move the bill was made in November, last year, and not surprisingly the caution chorus came out and began singing its song again: We are being rushed; we are being jammed, even though there were a number of Democrats who stood up and said they had to get this done before the end of this year.
Where are the real Democrats? That is what I would like to know. The pressure continued, however. Interested
stakeholders would not take no for an answer. Hints were made about bringing the bill to the floor, even if it resulted in a filibuster. Suddenly the message changed. Now we were told the minority's leadership wanted to find a resolution, that there was bipartisan interest in passing a solution. It was implied if we would just postpone consideration to early next year, there would be ample time to finish work on this bill.
The majority leader agreed and on November 22, 2003, he announced he would not bring up the asbestos bill prior to the end of the session. Instead, he would give the parties additional time to complete their negotiations. But he made clear his intention of bringing the bill to the floor this year.
His announcement was well received by the other side. I remember. As this year began, it was clear from the outset that, despite the promises of November, little had changed; there were no real breakthroughs. So, in February, the majority leader announced his intention to bring the bill to the floor the third week of April. But yet again the caution chorus rolled out its usual objections: The issue was too complex; the legislation was too complicated; they were being rushed; they were being jammed. Indeed, we even offered to engage in protracted negotiating sessions, but again the Democrats demurred.
In February, my staff sent an e-mail to Democratic staffers proposing a multiday negotiation to seek a resolution of the issue. It contains an offer to meet during all-day sessions, ``during recess weekends, or weekends during session.''
The response from the minority was unambiguous: Don't rush us. Don't rush us.
Senator Specter, to his credit, kept pushing forward and, as a result of his efforts, the stakeholders reached agreement on what was supposed to be another impossible hurdle, the administrative structure, which I mentioned earlier.
The proposal was not to our liking. It would require a fundamental change in our position, allowing the fund to be run out of the Department of Labor, but because organized labor signaled its strong support for this change and because we wanted to reach consensus on other critical issues remaining on the bill, we agreed and we agreed despite the objections from many on our side of the aisle and in spite of the objections from the White House.
The minority, instead of accepting this concession, instead of endorsing this considerable victory for organized labor, made it clear that this significant agreement meant nothing more than a chance to bank an advantage. They offered no alternative. They revealed no new proposal or compromise. In fact, it is reminiscent of the style of negotiation that says: What is mine is mine; what is yours is negotiable.
Nonetheless, additional proposals were made but there was no counteroffer, none of the typical give and take that is the hallmark of serious negotiations in this most important legislative body in the world. It was like trying to play tennis with a curtain. There is never any meaningful discussion of what the payers, the ones who have to pay these bills, most desire and, frankly, they deserve: a fair and predictable payment schedule.
Whatever we do is going to be tough on the payers here. This bill is plenty tough on the payers. Don't think they are not squealing; they are.
It was now obvious even to the most optimistic Member of this Chamber that it would be impossible to bring a consensus bill to the floor, one supported by the leadership of both parties. We are hearing Senator Leahy has at last put together an alternative proposal on this national trust fund. Has it been introduced? Have we even seen it? Of course not. The only choice left was to bring a bill to the floor and hope enough Members of the minority thought the issue was of sufficient importance, as they have repeatedly said, to allow the Senate to consider this bill.
To help facilitate discussion, I introduced, with Senator Frist and Senator Miller from the other side of the aisle, S. 2290, a second version of the bill which incorporated many significant changes that have been made since the legislation was first introduced and first reported from the committee.
That is the legislation before us today. It contains the bipartisan agreement on medical criteria. It contains the agreement reached by the stakeholders on the revised administrative structure and numerous other changes adopted during the Specter negotiations that have all been to try to get the Democrats to move on this bill. It contains the handful of changes agreed to by both sides since the bill was reported out of committee. It also contains higher claims values passed by an overwhelming bipartisan vote of committee and incorporates yet another monumental change and another fundamental concession to address the complaints by the minority.
We have included provisions in the bill to make clear that the risk of insolvency will not be borne by the asbestos victims; it will fall on the defendant companies and their carriers. If there are insufficient moneys, the fund will terminate and parties will return to the tort system--to Federal courts. There is no point in sending it back to the State jurisdictions that created the asbestos crisis in the first place.
Here we are today. The time has come to act. The day of decision has arrived. Unfortunately, to no one's surprise, the caution choir is on its feet again, or somewhat on its feet, I guess I should say: They need more time; the issues are too complex; the bill is too long; they weren't consulted the right way; they were being rushed; they are being jammed.
I was told by many at the beginning of last year that when I embarked on this legislation the Democrats would simply run out the clock. They will never let us vote on a bill that could deprive them of their huge cash cow.
First, Democrats would push into the election year, they said. Then they would filibuster a motion to proceed. That is exactly what has happened so far in their zeal to make sure that their hard money donors get their way at least this year--an election year. It is not too late to change that.
Let me just say that the caution chorus is sounding like a broken record that needs to be shut off. It has been 333 days since S. 1125 was introduced.
A hundred years ago, it took Christopher Columbus only 222 days to discover the new world and return to Spain--one of the most remarkable discoveries in the history of the world. It took Neil Armstrong only 8 days to travel to the Moon and back. Our forefathers were able to write the U.S. Constitution in only 4 months. But somehow there hasn't been enough time for the minority to help write this bill although they have had a lot of say and have had a lot of concession. We have tried to do everything to bring them to the table and get things done. Here we find ourselves in a filibuster on the motion to proceed.
This caution chorus of cowardly lions reminds me of what is going on. Of course, there was one big difference. In those historical examples, the players actually wanted to finish. They actually wanted to discover an America. They actually wanted to go to the Moon.
Over these 333 days, we have had numerous congressional recesses and holidays. Just look at this. Over 333 days, and we are now under a filibuster. That comes from the Spanish word ``filibustero,'' meaning pirating or hijacking. It is just one more obstruction. We have had nothing but obstruction since George Bush has become President of the United States--over and over. There have been very few bills passed, and the ones that have passed have had to overcome the obstructionism. My goodness. There are some Democrats who have been willing to overcome obstruction, but on this one, it has not been brought to conclusion.
We have had one entire summer, the fall, winter, and we are quickly working our way through spring. How much more time is needed to sit down and get this matter resolved? The time has come for the minority to stand up and be counted.
If they are genuinely troubled by our proposal and all the agreements we have reached with them, they have an obligation--indeed a responsibility--to offer their own solution. The challenge is on them. Introduce a bill. Make sure it strikes the same balance demanded of us. Make sure it is fair in the way we have tried to make it fair. Make sure it provides adequate moneys for asbestos
victims. Make sure it provides compensation quickly, efficiently, and fairly. Make sure it does not reward the unimpaired, those who aren't sick. Make sure it is not hijacked and turned into a smokers' compensation fund. Make sure it does not bankrupt more companies and throw hundreds of thousands of Americans out of work and out of their health plans, their pensions, or wipe out their lives financially.
That is what is going to happen. For the life of me, I can't understand why many in the trade union movement aren't jumping on this bill in every way they possibly can because their employees are the ones who are getting hurt. They will never get the money we have in this bill if we don't pass a bill.
Make sure it doesn't stick the Federal Government with a bill at end of the day.
Now you on the other side of the aisle have claimed that the asbestos crisis must be fixed. You have all agreed there is a crisis in our country. You have conceded that the tort system is broken, that we have a historic opportunity to act. The end is within reach, and we must grasp it.
But here we are. I think the time has come to act, to make good on the promises which have been made on the other side of the aisle, to demonstrate the leadership and responsibility our Nation demands when we are asked to do our job to fix a national crisis. It is time to move past our alleged mistakes and complaints about perceived procedural insensitivities.
It is time for the caution choir, which we have been looking at here today, to quit singing ``We are being rushed; We are being jammed.'' It is time for the real interests to take a stand and to do what is right.
It is getting late in the day to appoint another committee and schedule more meetings and talk. It really bothers me that they are filibustering the motion to proceed, which has only been used on rare occasions before the last few years, before the obstructions that have been occurring on a regular basis. People in the past were willing to debate these bills and were willing to try to amend them if they didn't like them, willing to be legislators and not obstructionists, willing to do what is right for the American people.
We have now been on this bill 15 solid months and we still have not seen, other than demands during negotiations, what our friends on the other side must have to resolve this problem, which in many respects is the most dangerous problem hanging over America today, especially for employees, especially for union members, especially for those who want health care and who want their pensions to be saved, especially for 8,400 companies on the one hand, and maybe more if these voracious personal injury lawyers continue to conjoin people who really have had nothing to do with asbestos but have been conjoined in these actions where they are stuck with humongous defense costs and attorneys' fees themselves, so the moneys that would go to the sick and the needy, those who really need it, go down the drain of legal fees, clogging our courts so that other legitimate cases can't be brought.
Again, I will return to that message. Why is it that we are going through this type of chorus charade? Why is it that we haven't had more cooperation? Why is it that we can't get them to come up with what is needed to resolve this morass? Why is it during this election year?
All I can do is ask the question. I think anybody observing knows what the answers are. At least that is what has been alleged to me. That is what has been suggested. I hope it is not true.
I yield the floor.
I thank my colleague for his kind remarks. I appreciate the hard work the Senator and others have put in on this side. There are some on the other side who have worked hard. Particularly, I express my gratitude to Senator Miller, Senator Nelson, and Senator Feinstein. I understand Senators Nelson and Feinstein are probably going to vote against cloture. I don't know. I cannot speak for them. I hope not. They are two who have tried to work with us on this bill.
If that is laid down, I don't know where we will go. I am afraid an awful lot of people will be left high and dry while these trial lawyers, the personal injury lawyers, walk off with $60 billion in fees and costs that could go to people who are sick. I don't begrudge attorneys the fees they earn. We have more than made a case that the system is broken. There are a certain limited number of personal injury lawyers who are taking advantage of the system and doing it in ways that are reprehensible.