Floor Statements

Mr. President, I listened to the comments of my dear friend, the distinguished Senator from South Dakota. I share his grief and his concerns over how many of our young people have sacrificed their lives for all of us. There is no question about it; these are heroes to all of us. As the son of parents who lost their only other son in the Second World War, I know a family's grief over such a devastating loss. We know what it is like to have a son missing in action and, whose remains were found 2 years later. Our family had to go through all of the pain, difficulty, grieving, and remorse. But all of that didn't take away the fact that my brother, Jesse Moreland Hatch, was a great hero like so many others who died in all of our wars, but in World War II in this particular case, and the 50,000-plus young men and women who died in Vietnam.

These young people are doing the Lord's work. They deposed a tyrant that killed hundreds of thousands of his own people and threatened the whole Middle East, and, by his association with terrorists at war with us, threatened us. Our heroes are fighting to bring stability to the Middle East, and they have put pressure on all of the tyrannies of the Middle East. They have taken a stand against tyranny, against terrorists, and for the prospect of decent societies throughout that region.

I have seen letter after letter of people who have served in Iraq who have made it very clear that the work they are doing is work for all of us, and we ought to be proud. They are helping people to find themselves in decent and safe societies. They are helping people down the road to freedom. They are helping people who have never understood what it is like to have a free market economy. They are helping people for the first time in their lives to have some sort of hope that they might be free--and free from brutality, terrorism, vindictive treatment, murder, and death.

Our young men and women understand that what they are doing is very important; and it is important for everybody in America to stand with them. It is important for everybody in America to realize that we pay extraordinary costs, borne by the families who lost their loved ones in order to stand up for freedom.

In this particular case, I think it is pretty hard to make a case that we shouldn't be there. It is pretty hard to make a case that we shouldn't have deposed Saddam Hussein. It is pretty hard to make a case that we shouldn't be trying to bring some sort of representative form of government to Iraq and, therefore, the whole Middle East. It is pretty hard to oppose the fact that our young men and women are serving with distinction for a good cause. It is pretty hard to make some of the ridiculous arguments that have been made by those who are opposed to U.S. involvement anywhere.

I want to pay tribute to these young men and women who are serving over there, and also to the civilians who are serving over there. They may be getting paid for their jobs, but it is a dangerous place--at least some areas are very dangerous--to be. But what they are doing is critical to our security. I think they deserve the applause of all of us and the support of all of us.

I hope all of our colleagues will always continue to support not only our troops over there but also our President who has all that any President really needs to handle.

Mr. President, I ask unanimous consent that I be permitted to speak for as long as I need.

Mr. President, I rise in support of S. 2290, the bipartisan Fairness in Asbestos Injury Resolution Act, appropriately called the FAIR Act. Let me talk about the problems for a minute. I think I am stating the obvious, but it bears repeating.

Our country is faced with an asbestos litigation crisis of unparalleled magnitude. Something is terribly wrong when asbestos victims who suffer from debilitating injuries recover mere pennies on the dollar while people who are not sick and never have been sick a day in their lives from asbestos recover millions. Something is terribly wrong when scores of companies, many which never produced a shred of asbestos fiber, are forced into bankruptcy triggering lost jobs and depleting pensions for those who lost their jobs. Something is terribly wrong when the only real winners in the current system are the handful of personal injury lawyers who walk to the bank with billions of dollars in fees.

Members may have heard the statistics before, but I will say them again so that everyone knows the scope of the problem facing this country. According to the Rand Institute for Civil Justice, more than 730,000 people have filed claims, with a sharp increase in filing

in the last 10 years. More than one million claims are expected to be filed in the near future. The Rand study states the reason for this dramatic rise in claims is that through the 1980s, claims were filed only by the manifestly ill. Beginning in the 1990s, about two-thirds of the existing claims were and still are filed by people who are unimpaired, who are not sick. Listeners, you heard correctly. Astonishingly, the great majority of asbestos lawsuits are brought by those who are not even sick.

This has led to an unacceptable division of resources to the wrong people. Nonmalignant claimants take over 60 percent of the compensation, leaving mesothelioma victims with only 20 percent. Worse yet, many mesothelioma victims are not able to recover any money at all because the companies they would have sued are insolvent.

The fact is, unscrupulous personal injury lawyers are abusing the system and getting a windfall in fees. They know the companies, even ones with the most remote connections to asbestos, are fearful of runaway verdicts. They exploit the uncertainty these tangential companies face in the current system by overwhelming them with huge numbers of unimpaired claims in order to force massive settlements. I might add that many of these companies have never had anything to do with asbestos, but they are stuck defending themselves at a tremendous, humongous cost because of what is going on. The result is the personal injury lawyers--and it is a small percentage of the American Trial Lawyers Association, a very small percentage of these personal injury lawyers--are reaping huge portions for themselves: over $20 billion so far in attorney's fees alone in asbestos litigation thus far.

One actuarial firm estimates that personal injury lawyers are expected to siphon more than $60 billion out of asbestos litigation before it is over. It is no wonder that the personal injury lawyers are fighting tooth and nail to keep the golden goose alive. These fees detract from the moneys that should go to those who are truly sick, especially the mesothelioma victims. Their tactics are not just about buying private planes and sport teams and huge mansions while the personal injury lawyers are busy making themselves into millionaires, multimillionaires, in some cases billionaires; they are depriving the truly sick of available resources.

Let me tell Members about a pipefitter from Illinois. I learned his story from his daughter who lives in the State of Washington. A World War II Navy veteran, he joined the pipefitters union in Chicago and worked at several locations in the Midwest, including sites in Illinois, Indiana, Michigan, and Wisconsin. It was during this period that he was repeatedly exposed to asbestos. Eighteen years ago, at the age of 61, he learned he had mesothelioma. Understanding the medical quagmire he faced and the consequences for his family, he quickly filed suit against those he believed were responsible for his exposure. Sadly, just months later, as with all mesothelioma victims of this virulent form of cancer, he died.

His case was lumped together with others, many of whom were not as sick as he, and some of whom were not sick at all. For years, nothing happened. It simply gathered dust on the docket. Eventually, it was transferred from Illinois to Pennsylvania. It has now been 17 years since his case was filed. Think about that. He never got to have his day in court. His widow is still waiting, 17 years later.

What would happen in his case if S. 2290 is enacted? First, because he had mesothelioma, his estate would be paid $1 million. It would be paid on an expedited basis. Second, his claim would have been evaluated and processed in a matter of months, not decades. Third, he would not be forced to give up half of the awards--moneys desperately needed for medical bills, treatment, and all of the economic and personal losses that afflicted his family--to his lawyers.

What is wrong with the asbestos litigation system? This Navy veteran with mesothelioma got zero out of this tort system. Out of the FAIR Act, he would get $1 million. He would not even need an attorney to get it. He would not have to pay 50 percent to attorneys. That is the way it should work.

Let me mention the case of Rick Napier who suffers from asbestosis. He has trouble breathing. He cannot even walk without great difficulty because of the disease. He no longer has the lung capacity he needs for physical labor, let alone normal, everyday activities. Rick Napier worked for W.R. Grace for 3\1/2\ years until he was laid off. He was a skip operator. He ran small cars that carried ore up and down the hills of Libby, MT. He has lived in Libby for 55 years and knows, as do his neighbors, that asbestos is everywhere in the area. It is in the gardens and yards of places at work, homes, playgrounds. It is everywhere.

Four years ago, Rick was diagnosed with asbestosis. He filed a lawsuit but was told, despite his illness, there was really nothing that could be done. W.R. Grace has gone bankrupt. There is no one left to sue, no one left to compensate him for his illness. The current tort system has failed Rick Napier. Unless we pass this legislation for a national, privately funded trust for compensation based on illness and not on the solvency of the defendant company, we continue to fail Rick Napier and many others like him. Without it, we leave Rick Napier and the rest of the victims in Libby, MT, with no resource, no relief, and no hope.

What is wrong with asbestos litigation? Compensation for victims like Rick Napier under the current tort system is not always available if the company he could sue to receive some compensation is bankrupt. Under the FAIR Act, he would get compensation even though he is no longer with us. It is high time we put victims first.

I would be remiss not to mention the staggering toll the asbestos litigation problem has also inflicted on our economy. As the number of claims continues to rise, at least 70 companies to date have already been forced into bankruptcy. Meanwhile, the number of companies pulled into the web of this abusive litigation is on the rise, many of which have little, if any, culpability. These business bankruptcies translate directly into lost jobs, lost pensions, and weaker financial markets. It is a detriment to our country.

According to a letter from the nonpartisan Academy of Actuaries:

. . . bankruptcies of corporate asbestos defendants have

affected 47 states, resulting in the loss of 52,000-60,000

jobs, with each displaced worker losing $25,000-$50,000 in

wages and 25% of their 401(k).

I ask unanimous consent this letter from the American Academy of Actuaries be printed in the Record.

American Academy of Actuaries,

Washington, DC, March 24, 2004.

Re asbestos.

Senator Bill Frist,

Marjority Leader, U.S. Senate,

Washington, DC.

Dear Senator Frist: The Mass Torts Subcommittee of the

American Academy of Actuaries published a monograph,

``Overview of Asbestos Issues and Trends'' in December 2001.

The Academy monograph is currently being updated. Meanwhile,

as S. 1125 nears debate on the Senate floor, I am pleased to

provide this letter, which provides a brief summary of some

of the key points regarding asbestos litigation.

The asbestos problem, initially recognized decades ago, is

not going away.

Exposure to asbestos has been linked to malignant diseases

including mesothelioma, lung and other cancers, as well as

nonmalignant conditions such as asbestosis and pleural

injuries.

Asbestos use was widespread in the United States for

decades, and although exposure levels have declined

significantly since OSHA requirements were implemented,

asbestos use is still legal in the United States today.

The number of claimants filing lawsuits annually has

increased dramatically in recent years and shows no signs of

a return to prior levels experienced during the 1990s. Most

of the increase in claim filings relate to individuals who

are not functionally impaired.

Approximately 730,000 claims were filed through 2002 and

estimates of the ultimate number of claimants range from 1

million to 3 million.

Many believe that some current claimants are not being

compensated fairly or promptly. Additionally, there are

widespread concerns that funds will not be available to

compensate future claimants.

The size of recent awards made to settle claims has also

increased. In turn, contributions paid by individual

corporate defendants and their insurers/reinsurers have

increased. Additionally, demands against solvent defendants

have reflected upward pressure to cover amounts that are no

longer funded by defendants that have sought protection from

asbestos litigation through Chapter 11 bankruptcy petitions.

At least 70 companies have sought bankruptcy protection due

to asbestos litigation

to date. Further, recent bankruptcy filings (i.e., pre-

packaged petitions) have exacerbated inequities in the

asbestos litigation system.

The number of corporations named as defendants in the

litigation has grown dramatically. Asbestos claimants

typically name 60 to 70 defendants in each lawsuit. While

approximately 300 companies were sued in the 1980s, RAND

estimates that approximately 8,400 companies had been sued as

of 2002. The potential culpability of this expanded list of

defendants is significantly different from the initial group

of companies that mined or manufactured asbestos products,

knew of it dangers, and failed to protect and/or warn their

workers.

Direct costs are significant--estimates of ultimate costs

relating to U.S. exposure to asbestos range from $200 billion

to $265 billion. More than half of the costs relate to

plaintiff and defense attorney fees.

Indirect costs are also large: Bankruptcies of corporate

asbestos defendants have affected 47 states, resulting in the

loss of 52,000-60,000 jobs, with each displaced worker losing

$25,000-$50,000 in wages and 25% of the value of their

401(k); For every 10 jobs lost in an asbestos-related

bankruptcy, an additional 8 jobs are lost in the surrounding

community; and Failure to enact legislative reform could

reduce economic growth by $2.4 billion per year and cost

30,770 jobs annually.

The U.S. Supreme Court has twice overturned efforts to

resolve the litigation through class action settlements

(Georgine and Fibreboard) and has called upon Congress to

address the situation.

Various reform measures have been enacted or are being

considered at the state level, such as: Imposing medical

criteria to bring a claim; Creating inactive docket systems

to preserve the rights of individuals who are not currently

impaired; and Addressing consolidation, joint and several

liability, and venue issues.

However, it is difficult to implement meaningful changes on

a state-by-state basis, and as long as some states are

perceived as plaintiff friendly jurisdictions and claims

remain portable, forum shopping will be a problem.

Several asbestos-related bills were introduced in the 108th

Congress, and the issue of federal reform to the asbestos

litigation crisis deserves careful attention. Thank you very

much for your consideration of the information presented

herein. Please do not hesitate to contact Greg Vass, the

Academy's Senior Casualty Policy Analyst, at (202) 223-8196

if you have any questions or would like additional details.

Sincerely,

Jennifer L. Biggs, FCAS, MAAA,

Chairperson, Mass Torts Subcommittee.

The Rand Institute estimates this litigation eventually will result in 430,000 lost jobs. These are pretty good jobs. In fact, very good jobs. It is because of the very serious problems that I stand here today to express my steadfast support for the legislation we are on the verge of considering, if our friends on the other side will allow us to consider.

We will make a motion to proceed, and hopefully they will not block a motion to proceed because we ought to debate, we ought to look at amendments, we ought to do what has to be done. We ought to perfect this bill if we can. It is about as perfect as I think we can get it under the process so far. It is a darn good bill and would certainly do a lot of good for people.

I turn for a moment to the comparison of the current tort system and the FAIR Act. This is why we should pass the FAIR Act. Under the current tort system, even the Supreme Court Justices have described it as jackpot justice; under the FAIR Act we have certainty.

Under the tort system, we have a litigation lottery really, in real terms. Under the FAIR Act, it is a no-fault system. You do not even need attorneys to recover. Under the tort system, you have ``magic'' jurisdictions; in other words, jurisdictions where you can go where the judges are corrupt and the juries do not care how much they award the people who don't deserve it. In other words, there are special jurisdictions in this country where that happens.

Under the FAIR Act, you have a system of fairness. Under the tort system, we are pushing companies into bankruptcy. Mr. President, 8,400 companies have been sued, with over 300,000 claims, as I have mentioned. Many of those companies are going to have to go into bankruptcy if we do not solve this problem, which even the Supreme Court has asked us to do. Under the FAIR Act, these companies would remain solvent.

Under the current tort system, we have decades of delays, as I have mentioned. Under the FAIR Act, we would have expedited payments in a number of months.

It is hard to imagine that anyone cannot see the benefits of the FAIR Act over the current system. I understand why the personal injury lawyers who are handling these asbestos cases do not want this to happen. Of course, they are going to make upwards of $60 billion, right out of the pockets of the people who deserve those moneys, where we give them to the people who are injured.

Let me talk about the particulars of what the bill does. S. 2290 would provide fair and timely compensation to asbestos victims and certainty to American workers, retirees, shareholders, and, of course, our whole U.S. economy. Hardly anything would do more for our economy than the FAIR Act right now. It would establish a privately funded, no- fault, national asbestos victims compensation fund to replace the broken tort system and ensure that individuals who are truly sick receive compensation quickly, fairly, and efficiently.

The legislation retains the bipartisan agreement on medical criteria that was approved by a unanimous vote in the Judiciary Committee. These criteria form the basis of a no-fault victims compensation fund that will stop the flow of resources to the unimpaired and ensure that the truly ill will be paid quickly and fairly. S. 2290 also contains improvements made to its predecessor, S. 1125, that have been developed over the last several months during extensive negotiations by the stakeholders.

S. 2290 includes a number of new provisions that ensure the fund will be set up, processing and paying claims quickly. First, it places the office within the Department of Labor in order to utilize its existing infrastructure and experienced personnel to facilitate a faster startup. In order to allow the office to begin accepting and processing claims in short order, the legislation requires the enactment of interim regulations and procedures within 90 days after the date of enactment, including the expedited processing of exigent claims.

To avoid potential delays associated with the appointment process, the legislation grants interim authority to an existing Assistant Secretary of the Department of Labor until the new Administrator is appointed. To ensure that adequate initial funding will be available to meet demand, the bill provides for up-front funding from fund participants, as well as increased borrowing authority. These new provisions address concerns that claimants must have speedy access to the fund while halting the admittedly broken tort system that continues to divert scarce resources away from the sick to the unimpaired.

S. 2290 also includes revised funding provisions. It establishes a fund that can pay $114 billion in claims, with an additional $10 billion in contingent funding available from defendant companies--these 8,400 companies. Money required to go to the fund from defendants and insurers is assured over a period of 27 years.

Defendant participants, for example, guarantee their funding obligations through a grant of authority to the Administrator to impose a surcharge in any year where moneys received fall short of the annual requirements. In addition, S. 2290 provides up to $300 million annually in hardship and inequity adjustments that may be granted by the Administrator among defendant participants. Money from insurers is front-loaded for the early years of the fund where the most stress on the system is anticipated.

Enforcement provisions have been strengthened to help the Administrator go after recalcitrant participants. Additional safeguards to insure the funding have also been added, such as establishing a priority for payment obligations to the fund in State insurance receivership proceedings.

Based on the funding now available under S. 2290, increased compensation will go to claimants. Claims values have been increased in several disease categories over the levels approved by the Judiciary Committee in an overwhelmingly bipartisan vote. We have even gone beyond those claims values. Furthermore, S. 2290 now provides reimbursement for out-of-pocket costs of physical examinations by claimants' physicians, as well as costs for x rays and pulmonary function testing for level I claimants.

Let me talk about the bill.

Unfortunately, some Members on the other side of the aisle want to block us

from proceeding to the bill--even proceeding to the bill. Even on a motion to proceed, we have heard there may be a filibuster. Well, I am not surprised by these obstructive tactics. We have been getting used to them over the last 3\1/2\ years. I find it truly regrettable, given the tremendous importance of this legislation to our country.

I find this type of obstruction particularly troubling because without the FAIR Act more and more Americans are certain to lose their jobs. Anyone who is serious about preserving jobs should be actively helping us move forward to the consideration of this bill. I have heard a lot of mouthing off by Presidential contenders in this matter, that jobs are the most important issue. Where are they when it comes to voting for jobs that this bill would provide and for the preservation of jobs that this bill would provide?

Anyone who is serious about preserving jobs should be actively helping us on this bill. They should not be standing in its way. But the 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 hard-working Americans who want to keep their jobs and pensions.

I might mention that a lot of trial lawyers are very unnerved by this. They see the injustices going on here and they themselves decry it. It is a small percentage of the American Trial Lawyers Association who are doing this. Many other top-notch trial lawyers are very concerned.

Now, to legitimize the obstructive tactics of these lawyers and the other opponents, opponents of this bill argue the legislation is completely different from the one we reported from the committee last year. This argument particularly lacks merit because the bill retains the core features of the legislation that was introduced as S. 1125 and subsequently marked up in the Judiciary Committee.

Again, we have taken steps to ensure the solvency of the fund. As I mentioned, we replaced some contingent funding by calling for more up- front funding, extended borrowing authority and guarantees for funding, among other added funding safeguards--all of which are additional strengths to the bill that we passed out of the committee.

The fact is, this bill we are about to bring up continues to create a fair and efficient alternative compensation system to resolve the claims for injury caused by asbestos exposure. The fund is still capitalized through private contributions from defendants and insurers, and compensates victims under the very same medical criteria that we reached on a bipartisan basis last year. The bill still brings uniformity and rationality to a broken system so that resources are more effectively directed towards those who are truly sick.

Indeed, this bill still preserves no less than 53 compromise measures demanded by Democrats last year when this bill moved through committee--53 changes we made in the bill that we thought was pretty good to begin with, all to accommodate our friends on the other side. In fact, it adds many more provisions requested by Democrats and labor unions. And while this bill contains certain modifications from earlier versions, the modifications represent dramatic improvements to controversial measures that all interested parties had ample opportunity to discuss and work out after S. 1125 was reported from the Judiciary Committee.

While the Judiciary Committee reported S. 1125 favorably from the committee on a near party-line vote, the markup produced some measures that required retooling. These measures jeopardized any meaningful chances of getting the bill passed into law. If not for the tireless efforts of our distinguished majority leader and Senator Specter, this bill would have achieved what its opponents have yearned for all along--a dead bill.

But through the stewardship of Senator Specter and Chief Judge Emeritus of the Third Circuit, Edward R. Becker, we were able to provide a forum through which the major stakeholders provided invaluable expertise and solutions with respect to the remaining controversial issues left on the legislation, such as fund reversion, startup, and administrative process.

This group, which included representatives from labor unions and industry, among others, met dozens of times in the last 8 months. Our staff was there throughout working with them. This process proved to be not only insightful but also very helpful in resolving many of the key differences in this legislation. Through the leadership of Senator Frist, we were able to get the insurers and the defendants to agree on an even more equitable funding allocation and, among other things, provide for more flexible borrowing authority and front-loaded funding to address the anticipated flood of claims that would come through the fund during its early years, something we would have liked to have done before but which we have done now.

Opponents of this bill have also justified their obstructive tactics by passing misinformation about this bill. First, some Members on the other side of the aisle have stated repeatedly that bill does not provide enough money. I find these statements to be misleading and a stark contrast to several studies of future asbestos-related costs under the current system. For example, one study shows the highest reasonable estimate of prospective costs, the Milliman study, would result in approximately $92 billion for victims after attorney's fees and expenses.

In yet another study, commissioned by Tillinghast-Towers & Perrin, future amounts to compensate victims are estimated at $61 billion after attorney's fees and expenses.

As you can see from this chart, Asbestos Victims Compensation, this is in billions. Under the current tort system, the dark blue, $41 billion--let's take the Tillinghast figure, the top circle on that side--will go to trial lawyers for fees. Twenty-eight billion will go to defendant lawyers for defending these cases. Better than half the money is going to go to lawyers. Those are the Tillinghast estimates, which I believe are quite accurate. Only $61 billion will go to potential future plaintiff compensation or to those who are really sick and some who aren't sick.

Let's take the bottom, the Milliman study, $61 billion will go to the attorneys, the personal injury lawyers; $42 billion would go to the defense lawyers, defending these companies and insurance companies, although there are very few insurance companies involved; $92 billion would go to the victims.

Under the FAIR Act, only $2.5 billion would go to the trial lawyers, and the full $111.5 billion would go to the victims. I don't see how anybody could argue against that. I might add, on top of that would be another $10 billion in contingencies, if the $111.5 billion or the total of the $114 billion does not solve the problem.

These other two say it would solve the problem, that lesser amounts-- and these are estimates by top-flight actuarial firms--that it would solve the problem with lesser amounts than what we are willing to put in the trust fund. Under the FAIR Act it is estimated claimants will receive 95 percent or more of the total funds under the no-fault nonadversarial system this bill amounts to. This means the FAIR Act fund, which would be able to pay more than $120 billion in awards, will allow claimants to take home well over $100 billion. This is more total money than they are projected to receive under the current tort system.

But it is not just more money in the pockets of victims. It is faster and more compensation as well. The difference is, the personal injury lawyers won't get as much money out of it, but there is still $2.5 billion there for them for cases that are like rolling off a log. We anticipate the claimants will not have to endure years of discovery battles between the defense and plaintiffs' lawyers and endless litigation before they get paid. As I have shown in one case, 17 years old; others are up to 20 years old and still no compensation for the victims who have died long since and the families have suffered all those years.

Currently, whether some victims get paid depends on the solvency of the business. But under the FAIR Act, these victims will no longer have to go without payment. These are the ones where their companies were insolvent.

It is time to end the current system of jackpot justice where only some win and many lose. The some who win in many cases don't deserve to win because these personal injury lawyers go into renegade areas where they know the judges are either corrupt or totally in their pocket and they know there

are runaway juries. That is how everybody loses except for those who are not sick or getting these huge multimillion dollar awards out of these unfair jurisdictions.

Opponents of this bill have also argued there are inadequate safeguards to insure the solvency of the fund. My response to this is very simple: Baloney. This fund, which is funded at the highest reasonable claim rate scenario, is equipped with many mechanisms to ensure the pay-in and payout requirements are met. Once again, this includes more flexible borrowing authority against future contributions, front-loaded contributions from insurers, and contingency funding of $10 billion additional to the $114 billion. To be absolutely certain, this bill also includes guaranteed surcharge and orphan-share reserve accounts which set aside money to grow and pay for unexpected shortfalls and empowers the Attorney General to enforce contribution obligations. On top of all these safeguards, if the fund still becomes insolvent, claims would revert back to the tort system, a provision Democrats insisted be part of the bill as the ultimate protection. It is not going to be needed, but it is in the bill, trying to accommodate, once more, demands on the other side.

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 to explain why anybody would object to this bill. The unions that continue to oppose the bill risk throwing away the last best chance to compensate fairly those who are truly sick and provide some protection to those whose jobs and pensions are at risk because of the asbestos litigation crisis, because their pensions are going to be lost as more companies go into bankruptcy, forced into it by the phony system we currently are undergoing.

Quite frankly, the only entity that stands to lose under this bill is the handful--and it is a handful--of personal injury lawyers who have guzzled more than $20 billion of the costs incurred on this issue as of the last year--$20 billion. No wonder they want this gravy train to keep going. If the improved FAIR Act is passed, they will not be able to leverage unimpaired claims anymore to squeeze a projected $41 billion more for themselves from remotely connected companies by refusing a broken system. I am talking about the personal injuries lawyers. Defense lawyers who have to defend these cases are going to pull a huge amount of money out, too, as these cases go on for 20 years or more. I am all in support of compensating attorneys for the value of their work--no question about that--but when the lawyers get rich while diverting the valuable resources away from sick victims, something is wrong with the system.

You don't need me to tell you this. The Supreme Court thinks that is the case. Think tanks and other nonpartisan commentators have been saying that for years.

We have a serious problem on our hands that demands this body's full attention. I applaud our distinguished majority leader for his work in helping us this far and in bringing this bill to the floor because the time to act is now.

We have studied the asbestos problem at length for decades. We have held numerous hearings, considered various legislative proposals, and we even underwent several marathon markups in the Judiciary Committee last June. Over the past year, we met with our Democratic counterparts to assuage their concerns about the bill.

We have provided a meaningful 8-month mediation forum through which the major stakeholders could bridge different recommendations on issues critical to the bill. We provided one of the finest Federal judges in the country to preside over the negotiation. Judge Becker has done an excellent job. To the extent we were able to reach consensus on issues, the appropriate language is embodied in the bill before us. To the extent there are issues that remain unresolved, we ought to openly debate them on the floor of the Senate.

The time has come to stop talking about doing something and to 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, with a real potential for loss of jobs. Every day that passes is a day we deny consideration of a comprehensive solution to one of the most plaguing civil justice issues of our time.

Mr. President, I have heard that some on the other side have said the one reason they really don't want to go ahead with the bill is not because they doubt its efficacy, or that it is right, or that they doubt the words I have been saying today; the real reason behind it, some have said, is that the personal injury lawyers are expected to put up at least $50 million or more for their Presidential candidate. It is not hard to figure out where they are going to get the money. It is going to be right out of the hides of these asbestos victims, many of whom have died. I hope that is not the case. I hope that is just a set of rumors, but it is coming up all too frequently.

Is that why we cannot even proceed to the bill? I have been here a long time and very few motions to proceed have been filibustered, except for a delay of a day or 2, and even then we have had very few. We have always been able to proceed to the bill.

I suspect the reason they are going to filibuster the motion to proceed is because it is a little more difficult to figure out by the general public that you are not on the bill yet, so a motion to proceed is just a procedural gimmick or gibberish. No, it is serious stuff. If we cannot proceed to the bill, we cannot get to the bill. Why would folks on the other side not want to get to the bill and try to improve it if they have improvements they would like to put up for a vote? We can vote on them. I am sure they will win on some of their improvements--if they are improvements--or even some things they want that are not improvements but might be deleterious to this bill.

Let's go to the bill and not continue this feckless filibustering of everything in the Senate, making a supermajority vote the absolute premise for everything they are doing. This is an important bill. We have worked as hard as we can with everybody concerned with it, from the trial lawyers, the personal injury lawyers, to the unions, businesses, insurance companies, to the victims. We have worked our tails off. There are some unions that support this bill. They realize their people will lose jobs and they will never get as much money. They realize the attorneys are taking too much out of this process. They realize it takes years and years to get just compensation--if that--to the women and children who are left behind from the mesothelioma victims. Most of those victims are already dead. Most of them work for companies that have already gone bankrupt. Their pensions are gone, their jobs are gone. Think about it.

In our medical criteria, we have provided hundreds of thousands of dollars for central categories of people who will never get mesothelioma, many of whom are not sick, many of whom have cancer but were ardent smokers most of their lives, where 99-to-1 their cancer came from smoking and not from exposure to asbestos. But in this bill, we give them the benefit of the doubt. Not only do those union members lose out on these moneys that will be very easy to obtain once they meet certain minimum medical criteria that everybody agreed to-- Democrats and Republicans--but they will do it without huge attorney fees, and they will do it without knowing that their injuries came from asbestos exposure, when they probably did come from the excessive smoking they did all their lives. But we have given them the benefit of the doubt. They will do it without losing their pensions, their jobs. Their families will be better off.

To some of my colleagues on the other side, there is never going to be enough money, no matter what you do. But there are limits to what these companies can pay without going into bankruptcy. Like I said, 70 have already gone into bankruptcy and there will be many more if they don't resolve these problems. This bill will resolve them. It does it in a reasonable, decent, honorable way, and still provides $2.5 billion for lawyer fees. That is a lot of money for a no-fault system, even though those who have been raking in the billions of dollars--the very few

lawyers--are giving other trial lawyers a bad image and are ripping off the system.

Having said that, there are trial lawyers in this country who deserve our respect, who are honest, who do not buy off judges, who do not abuse the system, who do not forum shop into these jurisdictions that you know are going to violate the basic strictures of society, giving huge verdicts to those who don't even deserve anything. These trial lawyers are people who basically help keep society straight. Many of them were people who basically sued the companies that were most responsible for these problems.

But now we are coming down to a lot of personal injury lawyers who really should be ashamed of themselves. You have seen the ads in the newspapers and so forth. They are as trumped up as anything I have ever seen, and they are even on television. Nobody should exploit the suffering of others, including ourselves. We are trying to do our very best to make sure everybody who truly suffered gets just compensation under the circumstances. That is what this bill will do. We have worked hard to get it here and it is time that we pass it.

I hope my colleagues on the other side don't filibuster the motion to proceed. That should not be done on something this important.

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

Madam President, I ask unanimous consent that Kevin

O'Scannlain, Harold Kim, Rene Augustine, Bruce Artim, Ryan Triplette, and Jay Greissing be granted the privilege of the floor for the duration of the debate on S. 2290.

Mr. President, I am grateful for the distinguished majority leader's remarks and for the tremendous work he has done in helping to bring this bill to the floor at this time, without which I don't think we would be this far. I have to say this is one of the most important bills in our country at this time. I am very grateful to him, and grateful to all of those who worked on this bill.

I rise today, along with the distinguished majority leader, to introduce S. 2290, the Fairness in Asbestos Injury Resolution Act--the FAIR Act--of 2004. This is a substitute bill that Senators Frist, DeWine, Voinovich, Miller, Allen, Chambliss, Hagel, Domenici, and I have spent a great deal of time developing. I particularly want to commend Senator Specter and Judge Becker of the Third Circuit Court of Appeals for their efforts in bringing interested parties together to discuss the further development of this legislation. We are pleased to include many agreements from that mediation process in this bill.

Let me start by noting that the United States Supreme Court has sadly but appropriately characterized the asbestos litigation system in our country as ``an elephantine mass.'' The Wall Street Journal aptly called it ``a job-eating asbestos blob.''

Without question, we face a crisis of epidemic proportions.

First, our asbestos system is inequitable. In our lottery-like system, juries award enormous damages to a special few, many of whom are not impaired at all and have never suffered a day of sickness. In other words, our system makes millionaires out of people who are not sick and who may never become sick. Meanwhile, people who are truly sick from asbestos receive little or nothing.

Let me illustrate this point. In a recent Mississippi case, six plaintiffs who were not sick--not one day of sickness--were awarded a total of $150 million. The plaintiffs did not claim to have ever missed a day of work because of asbestos injury. They did not claim any medical expenses related to asbestos, and they did not have asbestos- related physical impairment. Meanwhile, truly sick asbestos victims under the Johns-Manville bankruptcy trust receive a mere 5 cents on the dollar. A jackpot justice system like the one we have is unfair, and it is unjust. That is happening all over because about 10 percent of the plaintiffs bar, the personal injury lawyers, I think to the irritation of the 90 percent, are forum shopping these bills in jurisdictions where they can get big verdicts for bad cases. Frankly, what is happening today on asbestos compensation should not take place in this great country of America.

In addition to the gross inequities with respect to who gets compensated, the system is so overwhelmed by claims that truly sick people can wait years and die before even getting their day in court.

The fact is, our courts are simply unable to handle the volume of asbestos litigation. Unless Congress acts to end the delays and the distortions caused by these voracious personal injury lawyers--as I say, only about 10 percent, maybe less than that, of the personal injury bar--our system will remain broken.

Another unacceptable feature of our current system is that most of the money that should be going to compensate the truly injured, guess where it goes? It goes into the pockets of the lawyers. One actuarial firm estimates personal injury lawyers bringing these cases will siphon more than $60 billion out of asbestos litigation before it is over, and that is a conservative estimate.

As unfair as the system is today, the future is even more grim. Excessive damage awards, along with the transaction costs associated with the lawsuits, deplete the financial resources of the defendant companies and send more and more of them into bankruptcy. Many of these businesses are union businesses. These union workers lose their jobs because we have not resolved this problem. As legal and financial resources are exhausted by those who are not sick, those who truly are afflicted with asbestos-caused diseases are less and less likely to be compensated.

According to the Rand Institute for Civil Justice, a very prestigious institute, ``about two thirds of the claims are now filed by the unimpaired, while in the past they were filed only by the manifestly ill.''

Our asbestos system does not only burden unfairness on the truly sick; it is also devastating to our economy. According to Rand, the number of claims continues to rise, with over 600,000 claims already filed. Typically, claimants filed against dozens of defendants; more than 8,500 companies have been named as defendants in asbestos litigation. With only a handful of the original asbestos manufacturing companies, the ones that are really liable, remaining today, new industries are being targeted for lawsuits.

For instance, it has been reported that the big three automakers ``are defending approximately 15,000 cases based on claims alleging injury due to exposure to asbestos in brakes and clutches.''

Even nonmanufacturers, businesses that just supply asbestos, are now facing claims. These include plumbing, heating, and automotive supply stores. As funds from asbestos companies continue to dry up, we can expect the enterprising personal injury bar to continue to target companies that have

tangential relations to the claims and little or no real culpability.

One company is one of the large insurance companies that has never insured for asbestos, never had anything to do with asbestos. Basically it has never had a claim for asbestos up until recently, but they have been dragged into 60,000 cases because they were one of the early medical teams that came to the conclusion that mesothelioma comes from asbestos exposure. They did medical evaluations that concluded and helped to make the cases for those who truly are suffering, people who now are getting five cents on a dollar. They have been dragged into 60,000 cases that they should not have been dragged into. They will win every one of those cases, no question about it. That last case they tried--and they did win it, by the way--cost $2 million just in defense fees alone. Times that by 60,000 and you get an idea of the nightmare that insurance company is going through all because of voracious--I think in some cases, dishonest, small percentage of the personal injury bar--personal injury lawyers who are bringing these cases.

Now, as funds from the asbestos companies continue to dry up, we can expect the enterprising personal injury bar to continue to target companies that have tangential relations to the claims but little or no real culpability or liability. Rest assured, without congressional action, the problem will not go away. Last year, a record 100,000 asbestos claims were filed. At least 70 companies have already gone into bankruptcy due to asbestos liability. By the way, many of those companies were union companies. Many union members lost their jobs.

Does anyone wonder why manufacturing may be going down in America? Blame those who are always on the side of the personal injury lawyers, just to mention one corruption of the law.

Of course, each bankruptcy does bring with it lost jobs, lost pensions, and weaker financial markets. The nonpartisan American Academy of Actuaries reports ``bankruptcies in corporate asbestos defendants have affected 47 states resulting in the loss of 52,000 to 60,000 jobs. With each displaced worker losing 25,000 to 50,000 in wage and 25 percent of their 401(k).'' In other words, their pensions.

Rand estimates this litigation will eventually result in a staggering 430,000 lost jobs. Where are our colleagues on the other side when it comes to jobs? Here is a way of saving 430,000 manufacturing jobs and most of them will vote against this bill. Why? I will get into that in a few minutes.

The Supreme Court repeatedly called upon Congress to take action, but years have slipped by and we have not resolved the problem. Unless we act now, three things are certain. One, there won't be enough money to compensate people who are truly sick from asbestos exposure; two, hundreds of thousands of working Americans are going to lose their jobs and their pensions as these businesses go bankrupt; and three, personal injury lawyers will continue to get richer and richer.

I am not against them getting rich when they bring honest cases. I am not against them doing well when they earn the money. But this is like rolling off the log the way the current tort system is so broken and out of whack.

We need a comprehensive solution that is fair and we need it now. That is why we are introducing the Fairness Asbestos Injury Resolution Act of 2004, called the FAIR Act, the Hatch-Frist-Miller Act. I am pleased we have been able to make changes in this bill from the bill we reported out of the Judiciary Committee. This bill will address the concerns that have been raised. This legislation offers a fair and efficient solution. The bill provides a clear net monetary gain for legitimate victims with faster and more certain compensation. In addition, the legislation is important to our economy by providing certainty to American businesses, retirement savings, and it will preserve jobs, as well.

The Americans injured by asbestos have waited long enough for a fair system of fair compensation. Many of them would not have to wait any longer once this bill passes.

Nor can American workers afford to wait around while they lose their jobs and their pensions and while they die from mesothelioma and other asbestos-related diseases. The only people who can afford to wait are those who profit from the sick and from the hard-working Americans.

S. 1125, the Fairness and Asbestos Injury Act, the FAIR Act, as reported out of the Senate Judiciary Committee, represented an unprecedented advance on a workable solution to the complex and difficult issues that have stalled previous attempts at similar legislation. Landmark agreements were reached on asbestos injury compensation cases such as medical criteria, and over 50 consensus- building changes were adopted overall. Nonetheless, a number of issues were left open for further discussion and additional concerns were raised that were not satisfactorily addressed by the committee. We did our best but we needed to make some of these changes, so we have.

Since the bill was recorded out of committee, various State courts and members of both parties have continued working.

The Hatch-Frist-Miller substitute bill being introduced reflects agreements on some of these difficult issues reached during these negotiations and attempts to address a number of concerns that have been raised but have not yet been subject to widespread agreement. In particular, the Hatch-Frist-Miller bill raises claims values. It streamlines the administrative system to be up and running quickly. It increases liquidity and upfront funding for faster compensation of claims, and if a fund runs out of money, that risk will be on the defendants and the insurers, not on the claimants.

These are some of the highlights of the numerous changes made to make a fairer system for claimants. I fully expect that passing this legislation is going to be an uphill battle due to the strong grip of the powerful personal injury bar. Personal injury lawyers, by the way, have already been well compensated with respect to asbestos litigation having already taken an estimated $20 billion for themselves so far in legal fees.

I have faith in the fairness and common sense of Americans. I believe they can see through the self-interest of personal injury lawyers who want to maintain a system that unduly benefits them. Americans will understand that without reform true victims of asbestos exposure, as well as businesses, employees and pensioners will pay the price.

I look forward to debating and further refining this important bill when we return from the April recess. This bill, as most bills, is not perfect. No piece of legislation is without some imperfection in the eyes of someone or some special interest. But if there is ever a case for not letting the perfect become the enemy of the good--and the very good, at that--it is this asbestos bill.

I am aware some will argue strongly this bill is too big, it is too costly. I am also aware some will argue this bill is too small and does not go far enough. But the truth is, if either of these perspectives fail, we will be left with the undesirable status quo. Unless we adopt something very close to what we are proposing, the victims of asbestos and those being asked to provide a fair level of compensation will continue to suffer--probably without anybody benefiting except the personal injury bar, and then a very small percentage of them.

When we take up this bill in the next few weeks, let us strive to achieve a proper balance between the interests of those afflicted and those individuals and firms who are called upon to provide the compensation for this important program.

Some say--I think somewhat cynically--many of our colleagues on the other side are not going to vote for this bill because no amount of money is going to make them satisfied because two of their major constituencies are against the bill, and have been, so far, against any bill. Some have said they are afraid the personal injury bar will not put up at least $50 million for John Kerry in this election if they vote for this bill. Others are saying without that money, they might not be able to elect John Kerry President. I think that is a pretty cynical approach, of course. But if it is true, or there is any truth to it, then it is pretty pathetic that they would let these hundreds of thousands of people go down the drain without just compensation, which we have in this bill, because of politics.

By the way, the other reason is because the AFL-CIO has not signed onto this bill. That is not quite true. There are a few unions that are for this bill. They know it is important. They know they are going to lose jobs, they are going to lose pensions, they are going to lose opportunities if these companies keep going bankrupt. About 70,000 jobs, it is estimated now, have been lost.

These are two very large constituencies of the Democratic Party. I cannot blame Democrats for at least considering that they are concerned about this bill. But I think the union leaders know this is an important bill, and they know it is a good bill. Frankly, they do not want to have to make that decision during an election year.

Well, I do not care whether it is an election year or nonelection year; we cannot wait any longer. If we do not pass this bill and do the best we can do for these workers and for these companies, and for all concerned, in the way we have, these companies are going to have to come up with this whopping amount of money in this bill. They are the ones who are going to have to do it.

I saw yesterday in the Wall Street Journal they thought the Government was going to have to come up with lots of money. Well, some actually make a pretty good argument the Government should. We have made it very clear the Government is not going to. This is not going to be part of our deficit burden we have in this country. Let some make their effective arguments the Government knew asbestos was harmful, yet imposed it by regulation in our ships and in so many other ways. Be that as it may, we are not imposing this on Government. These companies are going to have to come up with this money. It has been a monumental effort by those of us who have fought this through to bring together enough money to be able--according to those who analyze the economics of this, those who are honest and decent in analyzing it--to pay the claims we have under the medical criteria in this bill. And the medical criteria happen to be fair as well.

Let me close. First of all, I hope that is not the reason why our colleagues vote against this bill. Unfortunately, I believe that probably is the reason--those two reasons. There may be others as well, but they are not justified after all the hard work that has been done by both Democrats and Republicans in bringing the bill this far.

Let me close by thanking the majority leader, Senator Frist, for the work he has done, and especially thank Senator Specter for his Herculean efforts in bringing the bill to its present form, and Judge Becker, for whom I have the utmost of respect and affection. I urge my colleagues to support this fair solution to a broken system that has languished far too long.

Mr. President, I yield the floor.

Mr. President, what is the parliamentary situation? Are we back on the motion to proceed?

Mr. President, today I rise to speak in support of S. 2207, the Pregnancy and Trauma Care Access Protection Act of 2004.

This bill helps to remedy the exploding medical liability and litigation crisis in our country, which is preventing patients from receiving high-quality health care--or, in some cases, any care at all--because doctors are being driven out of practice. In fact, this crisis hits us on two fronts, preventing many Americans from getting the vital health care they need, and raising the overall costs of health care for nearly all Americans.

As you will recall, this legislation is not our first attempt to relieve this crisis in access to care. Most recently, we debated S. 2061, which failed to receive the 60 votes necessary to invoke cloture in February, and we debated S. 11 prior to that. We can ill afford to ignore the many Americans whose doctors are retiring early or restricting their practices because of rising malpractice costs.

This health care crisis is jeopardizing access to health care in my home State of Utah and around the country.

The medical liability crisis is also inhibiting efforts to improve patient safety and stifling medical innovation. Excessive litigation is adding billions of dollars in increased costs. The Congressional Budget Office estimates that total savings to Medicare, Medicaid and the Federal Employees Health Benefit Program would be $15 billion in direct health care costs by passing medical liability reform. A Department of Health and Human Services report estimates that we could save $70 billion to $126 billion in defensive medicine costs. And they are really on the conservative side. I said 20 years ago, as a former medical liability defense lawyer defending doctors, health care providers, nurses, and so forth, knowing that most of those suits were frivolous to begin with, that there was at least $300 billion in unnecessary defensive medicine. Now we all want defensive medicine. We want doctors to do everything they can to help. But I am talking about unnecessary defensive medicine, unnecessary tests, unnecessary costs, unnecessary x-rays, unnecessary MRIs, unnecessary CAT scans, unnecessary cardiovascular tests, unnecessary respiratory tests and other types of tests that are not needed but are insisted upon by doctors because they want to have in their history every possible protection.

Even the American Medical Association admits there are at least $65 billion in unnecessary defensive medicine costs. When you get the AMA to admit that, you know it probably is a lot higher. In fact, it is costing every American, because we will not do anything about getting these frivolous suits under control. It is wrecking our health care profession in this country.

The liability crisis is also reducing access to high-quality health care. The 2004 survey by Medical Group Management Association of almost 13,000 physicians found that 15.6 percent of responding groups reported that their physicians plan to retire, relocate or restrict their services over the next three years.

These numbers have been consistent in large studies done in New York, California, Colorado and my home state of Utah.

However, the equally troubling statistics are that only two percent of cases with actual negligent injuries result in claims and less than one-fifth--17 percent--of claims filed actually involve a negligent injury. In other words, the deserving injured are going uncompensated, while a great deal of litigants with spurious claims tie up our court system and cost all of us unnecessary billions of dollars.

This situation has been likened to a traffic cop who regularly gives out more tickets to drivers who go through green lights than to those who run red lights. That is clearly no way to ensure traffic safety, and we should not accept such an inefficient and inequitable method of ensuring patient safety.

These numbers are a searing indictment of the current medical liability system. I believe we can do better for the American people and the Pregnancy and Trauma Care Access Protection Act is an important step along that path. We must do better.

Today's proposed legislation addresses two areas in dire need of relief: trauma care and obstetrical care.

Many physician groups are no longer able to be oncall for hospital emergency departments. As medical care to trauma victims, especially children, is by its nature high risk, many doctors can no longer afford to treat pediatric trauma patients. The problem is also acute for women who need obstetrical and gynecological care because OB/GYN is among the top three specialties with the highest professional liability insurance premiums. This has led to many doctors leaving their practice and to a shortage of doctors in many States, including my own home State of Utah. For example, Utah physician Dr. Catherine Wheeler would have to deliver more than 60 babies each year just to pay for her medical liability insurance, which is over $70,000. Although she works 80 hours per week, after she pays her malpractice premiums and other costs, she takes home money for only 2\1/2\ months of the year.

Utah Medical Association data show that medical liability insurance premiums continue to increase rapidly, creating pressure on doctors to restrict service in Utah. In 2002, there was a 30-percent rise. Last year, premiums rose 20 percent. This year, they are projected to increase 15 percent in Utah.

Studies by both the Utah Medical Association and the Utah Chapter of the American College of Obstetricians and Gynecologists, ACOG, underscore the problem in my State.

Utah Medical Association data show that over half of the family practitioners in Utah have already given up obstetrical services or have never practiced obstetrics even though they were trained to do so. Of the remaining practitioners who still deliver babies, nearly one- third say they plan to stop providing OB services within the next decade--most within 5 years. A Utah ACOG survey found that 15 of the 106 members polled had already stopped practicing obstetrics, and 21 of the remaining 91 plan to stop within 5 years. These changes in practice, such as retiring, relocating, or dropping obstetrics because of the medical liability reform crisis, leaves almost 1,500 pregnant women in Utah without OB/GYN care.

The medical liability crisis, while affecting all medical specialties and practices, hits OB/GYN practices especially hard. Astonishingly, over three-fourths--76.5 percent--of obstetrician/gynecologists report being sued at least once in their individual careers. Indeed, over one- fourth of OB/GYN doctors will be sued for care given during their residency. These numbers have discouraged Americans finishing medical school from choosing this vital specialty.

Currently, one-third of OB-GYN residency slots are filled by foreign medical graduates, compared to only 14

percent one decade ago. OB/GYN doctors are particularly vulnerable to unjustified lawsuits because of the tendency to blame the doctor for brain-injured infants, although research has proven that physician error is responsible for less than 4 percent of all neurologically impaired babies.

Jury awards have been escalating at an alarming rate. Data from Jury Verdict Research show that the average liability award increased 176 percent from 1994 to 2001. The average jury award is $3.9 million. Over half of all awards are $1 million or more. This crisis is threatening Americans' confidence in our health care system to take care of their medical needs. Over three-fourths of Americans fear that skyrocketing medical liability costs could limit their access to care, and indeed that is already happening. AMA, the American Medical Association, data show that 19 States--19 States--have serious patient access problems, and 25 more, including my own home State of Utah, are nearing crisis.

An August 2003 GAO report concluded that actions taken by health providers as a result of skyrocketing malpractice premiums have contributed to health care access problems. These problems include reduced access to hospital-based services for deliveries, especially in rural areas.

In addition, the report indicated that States that have enacted tort reform laws with caps on noneconomic damages have slower growth rates in medical malpractice premiums and claims payments. From 2001 to 2002, the average premiums for medical malpractice insurance increased about 10 percent in States with caps on noneconomic damages. In comparison, States with more limited reforms experienced an increase of 29 percent in medical malpractice premiums each year.

Medical liability litigation directly and dramatically increases health care costs for all Americans. In addition, skyrocketing medical litigation costs indirectly increase health care costs by changing the way doctors practice medicine.

``Defensive medicine'' is defined as medical care that is primarily or solely motivated by fear of malpractice claims and not by the patient's medical condition. According to a survey of 1,800 doctors published in the journal entitled Medical Economics, more than three- fourths of doctors felt they must practice defensive medicine. A 1998 study of defensive medicine by Dr. Mark McClellan, using national health expenditure data, found that medical liability reform had the potential to reduce defensive medicine expenses by $69 billion to $124 billion in the year 2001. You can imagine what that number is today.

I remember, as a medical malpractice defense lawyer, I would tell doctors: You are just pigeons in a shooting gallery. The fact is, physicians have to have a history of treatments they have provided to their patients so they can prove that they did everything possible to prevent any real problems with their respective patients. Consequently, doctors have had to do that over the years because of the skyrocketing medical liability claims being made, a good 90 percent of which are, for the most part, spurious and frivolous.

The financial toll of defensive medicine is great, and especially significant for reform purposes, as it does not produce any positive health benefits. Not only does defensive medicine increase health care costs, it also puts Americans at avoidable risk. Nearly every test and every treatment has possible side effects; thus, every unnecessary test, procedure, and treatment potentially puts a patient in harm's way. Seventy-six percent of physicians are concerned that malpractice litigation has hurt their ability to provide quality care to patients.

What can we do to address this crisis? The answer is, plenty; and there are excellent examples of what works. Last March, HHS released a report describing how reasonable reforms in some States have reduced health care costs and improved access to quality health care. More specifically, over the last 2 years, in States with limits of $250,000 to $350,000 on noneconomic damages, premiums have increased at an average of just 18 percent compared to 45 percent in States without such limits.

California enacted the Medical Injury Compensation Reform Act, also known as MICRA, more than a quarter century ago. MICRA slowed the rate of increase in medical liability premiums dramatically without affecting negatively the quality of health care received by California State residents. As a result, doctors are not leaving California.

Furthermore, between 1976 and the year 2000, premiums increased by 167 percent in California, while they increased three times as much-- 505 percent--in the rest of the country. Now, both percentage increases are high, but 505 percent is extremely high in comparison to a very litigious State like California. Consequently, Californians were saved billions of dollars in health care costs and Federal taxpayers were saved billion of dollars in the Medicare and Medicaid Programs because of the California restraint on medical malpractice claims, especially those that are not proper claims.

No one in this body, perhaps with the exception of our colleague from Tennessee, Dr. Bill Frist, our majority leader, is more keenly aware of the defects in this system than I am. I used to try these cases, and I can say from a practical standpoint that a lot of lawyers bring cases that really are frivolous, because the cost of defending these cases can be in the hundreds of thousands of dollars.

Many insurance companies will pay off those defense costs to get rid of the case rather than take the chance a runaway jury will cost them even more. That is what is happening. It is happening in hundreds, perhaps thousands, of cases throughout the country. Most of these cases should have never been filed, however, there are a small number of cases that are very serious and it is appropriate for our judicial system to take care of them.

Before coming to Congress, I litigated several medical liability cases. I have seen heart-wrenching cases in which mistakes were made, where there was negligence. But more often, I have seen heart-wrenching cases in which mistakes were not made. Doctors were forced to spend valuable time and resources defending themselves against these frivolous lawsuits.

A recent Institute of Medicine report, ``To Err is Human,'' concluded that:

The majority of medical errors do not result from

individual recklessness or the actions of a particular group.

This is not a bad apple problem. More commonly, errors are

caused by faulty systems, processes, and conditions that lead

people to make mistakes or fail to prevent them.

We need reform to improve the health care system and processes that allow errors to occur and to identify better when real medical liability has occurred. The reform I envision would address litigation abuses in order to provide swift and appropriate compensation for malpractice victims, redress for serious problems, and ensure medical liability costs do not prevent patients from accessing the care they really need. So we need to move ahead with legislation to improve patient safety and reduce medical errors, and we need to urgently address the medical liability crisis so more women are not denied access to quality medical care because it has become too expensive for their OB/GYN doctors to continue their practice, and so we do not jeopardize trauma patients' access to urgently needed medical attention.

The Pregnancy and Trauma Care Access Protection Act of 2004 will allow us to begin ensuring that women, babies, and trauma patients get the medical care they need and deserve.

Without tort reform, juries are awarding astounding and unreasonable sums for pain and suffering. A sizable portion of those awards goes to the attorney rather than the patient. It is often estimated as high as 50 percent. The result is doctors cannot get insurance and patients cannot get the care they need.

All Americans deserve the access to care, the cost savings, and the legal protections States like California provide their residents. Today's bill will allow us to begin to address this crisis in our health care system. It will give trauma patients and women and their babies access to their doctors, and it will enable doctors to provide high quality, cost-effective medical care.

America's medical liability system is broken. It is not ensuring patient safety, and it is causing shortages of vital health care throughout the country. Congressional action to pass medical

liability reform legislation is imperative. I strongly support this legislation and I urge my colleagues to support cloture and end this filibuster that will now be the third time effective changes in these laws is being attempted. Our pregnant women deserve better. They deserve the best quality care the medical system can provide. Our trauma victims deserve better. We are finding all over the country trauma centers are either starting to shut down or severely cutting back because they can no longer afford to fight these frivolous cases. They can't function in a health care system that doesn't work. That is a tragedy, especially for those who suffer from trauma-related injuries.

I hope our colleagues will vote for cloture on this bill. I hope we can proceed and pass medical liability reform which is long overdue. I strongly support S. 2207 and urge my colleagues to do what is in the best interest of patients and health care providers throughout the country.

I yield the floor.

Mr. President, I rise today to introduce a bill that would direct the Secretary of the Interior to convey a parcel of property to Beaver County, UT. This bill would allow Beaver County in Southwestern Utah to obtain and maintain, without restrictions, the former Minersville State Park. In sum, this bill is necessary to allow County officials to sell a small portion of this land--which has essentially been under their control for over 40 years--in order to offset funding needed to maintain the remainder of the park.

Some history might be beneficial at this point. In 1961, Beaver County obtained a lease for 207 acres of land from the Bureau of Land Management (BLM) to develop a recreational locale under the Recreation and Public Purposes Act. In 1963, Beaver County turned over the acreage to the State for the development of a park. Over the course of nearly 40 years, the State of Utah spent about one million dollars to develop campsites, a boat ramp, a dock, and other camping amenities to turn this area into the Minersville Reservoir State Park. In 2002, in an endeavor to reduce operating costs, Utah State Parks transferred control of the area back over to Beaver County. As County officials stated during negotiations, in order for Beaver County to afford management of the day to day operations of the would-be county park, they would need to sell some of the property to private investors. However, it was not until after park management responsibility was transferred to the county that the BLM pointed out that the state had not yet acquired the property through the Recreation and Public Purposes Act process. The plan for Beaver County to sell some of the land to pay for park operation, however, is not allowed under the Recreation and Public Purposes Act lease, which only allows the property to be developed for recreation or other purposes. The only way for Beaver County to undertake responsibility for park is to remove the current Federal restrictions on the property.

Today, Beaver County faces financial constraints in operating this park that threaten its continued use. Due to the prevailing restrictions in the Recreation and Public Purposes Act lease, initiated more than 40 years ago, the good people of southern Utah and visitors to the area will not be able to access and enjoy this county park. The campsites would be littered and unkept. The boat ramp and the boat docks would have to be closed. The park would become a destitute recreation area, because there would be no one to administer park maintenance and upkeep. The only public access to Minersville Reservoir, which features a converted blue ribbon trout fishery, would go to waste because of the Federal government's current Recreation and Public Purposes Act lease restriction.

I don't believe that letting management of the park revert to the BLM is a viable option either. The intensive, day to day management this small park requires can be best accomplished to local officials. If Beaver County acquires the property, it will continue to make this park an excellent recreational refuge, a superb fishery, and a great place to visit. Beaver County will be able to provide a clean and safe park enjoyed by all who visit. That is why I am introducing this legislation this legislation that would convey the Minersville Park land to Beaver County.

I thank the Senate for the opportunity to address this issue today, and I urge my colleagues to support this legislation.

Mr. President, I rise today to introduce a bill that would direct the Secretary of the Interior to convey a parcel of property to Beaver County, UT. This bill would allow Beaver County in Southwestern Utah to obtain and maintain, without restrictions, the former Minersville State Park. In sum, this bill is necessary to allow County officials to sell a small portion of this land--which has essentially been under their control for over 40 years--in order to offset funding needed to maintain the remainder of the park.

Some history might be beneficial at this point. In 1961, Beaver County obtained a lease for 207 acres of land from the Bureau of Land Management (BLM) to develop a recreational locale under the Recreation and Public Purposes Act. In 1963, Beaver County turned over the acreage to the State for the development of a park. Over the course of nearly 40 years, the State of Utah spent about one million dollars to develop campsites, a boat ramp, a dock, and other camping amenities to turn this area into the Minersville Reservoir State Park. In 2002, in an endeavor to reduce operating costs, Utah State Parks transferred control of the area back over to Beaver County. As County officials stated during negotiations, in order for Beaver County to afford management of the day to day operations of the would-be county park, they would need to sell some of the property to private investors. However, it was not until after park management responsibility was transferred to the county that the BLM pointed out that the state had not yet acquired the property through the Recreation and Public Purposes Act process. The plan for Beaver County to sell some of the land to pay for park operation, however, is not allowed under the Recreation and Public Purposes Act lease, which only allows the property to be developed for recreation or other purposes. The only way for Beaver County to undertake responsibility for park is to remove the current Federal restrictions on the property.

Today, Beaver County faces financial constraints in operating this park that threaten its continued use. Due to the prevailing restrictions in the Recreation and Public Purposes Act lease, initiated more than 40 years ago, the good people of southern Utah and visitors to the area will not be able to access and enjoy this county park. The campsites would be littered and unkept. The boat ramp and the boat docks would have to be closed. The park would become a destitute recreation area, because there would be no one to administer park maintenance and upkeep. The only public access to Minersville Reservoir, which features a converted blue ribbon trout fishery, would go to waste because of the Federal government's current Recreation and Public Purposes Act lease restriction.

I don't believe that letting management of the park revert to the BLM is a viable option either. The intensive, day to day management this small park requires can be best accomplished to local officials. If Beaver County acquires the property, it will continue to make this park an excellent recreational refuge, a superb fishery, and a great place to visit. Beaver County will be able to provide a clean and safe park enjoyed by all who visit. That is why I am introducing this legislation this legislation that would convey the Minersville Park land to Beaver County.

I thank the Senate for the opportunity to address this issue today, and I urge my colleagues to support this legislation.

Mr. President, I rise today to support passage of H.R. 1086, the Standards Development Organization Advancement Act of 2003. This legislation, along with provisions added to it during the Judiciary Committee markup and by the substitute amendment that I have offered along with Senators Leahy, DeWine, and Kohl, provides several important and significant improvements to our antitrust laws.

This legislation incorporates the limited antitrust protection for Standards Development Organizations that Senator Leahy and I introduced as S. 1799, and that Chairman Sensenbrenner introduced in the House as H.R. 1086. Under this provision, the civil liability for Standards Development Organizations or ``SDOs'' will be limited to single, rather than treble, damages for standards-setting activities about which they have informed the Department of Justice and Federal Trade Commission using a newly-created notification procedure.

The bill also increases the maximum criminal penalties for antitrust violations so that they are more in line with other comparable white collar crimes. I will note that this provision of the legislation is substantially the same as the one included in S. 1080, a Leahy-Hatch bill.

This legislation also provides increased incentives for participants in illegal cartels to blow the whistle on their co-conspirators and cooperate with the Justice Department's Antitrust Division in prosecuting the other members of these criminal antitrust conspiracies. This is accomplished by allowing the Justice Department, in appropriate circumstances, to limit a cooperating company's civil liability to actual, rather than treble, damages in return for the company's cooperation in both the resulting criminal case as well as any subsequent civil suit based on the same conduct.

Finally, this substitute would amend the Tunney Act to end the problem of courts simply ``rubber-stamping'' antitrust settlements reached with the Justice Department. In my view, this amendment essentially codifies existing case law, while reemphasizing the original congressional intent that lead to passage of the Tunney Act. When this provision was added to H.R. 1086 in the Senate Judiciary Committee, I noted that, although I supported it in principal, I thought that continued modifications of the actual language might be necessary to respond to concerns that had been raised. I am pleased to be able to state that, largely through the efforts of Senator Kohl and his staff, a compromise on this language was reached that is supported--or at least not strongly objected to--by the parties involved.

With that introduction, I will briefly discuss the four principal sections of the legislation.

The section Protection of Standards Development Organizations, which comes from S. 1799, a bill that Senator Leahy and I introduced as a Senate companion to H.R. 1086, is designed to extend limited antitrust protection to Standards Development Organizations, or ``SDOs''.

In the United States, most technical standards are developed and promulgated by private, not-for-profit organizations called SDOs. Numerous concerns have been raised that the threat of treble damages deters SDOs from their pro-competitive standard-setting activities. This legislation addresses those concerns by providing a notification process whereby SDOs may inform DOJ and the FTC regarding their intended standards-development activities. If the authorities do not object to the proposed activities but the SDO is subsequently sued by a private plaintiff, the SDO's civil liability is limited

to single rather than treble damages. Importantly, this legislation does not in any way immunize industry participants who cooperate in the development of standards from antitrust liability for using the standards-setting process for anti-competitive purposes.

I thank Senator Leahy and Chairman Sensenbrenner and their staffs for their vigilant efforts toward passage of the Standards Development Organization Advancement Act of 2003.

The legislation also amends the antitrust laws to provide corporations and their executives with increased incentives to come forward and cooperate with the Department of Justice in prosecuting criminal antitrust cartels. It does so by enhancing the effectiveness of the already-successful Corporate Leniency Policy issued by the Justice Department's Antitrust Division.

In general, the leniency policy provides that a corporation and its executives will not be criminally charged if the company is not the ringleader of the conspiracy and it is the first of the conspirators to approach the division and fully cooperate with the division's criminal investigation. The program serves to destabilize cartels, and it causes the members of the cartel to turn against one another in a race to the Government. Cooperation obtained through the leniency program has led to the detection and prosecution of massive international cartels that cost businesses and consumers billions of dollars and has led to the largest fines in the Antitrust Division's history.

Though this important program has been successful, a major disincentive to self reporting still exists, the threat of exposure to a possible treble damage lawsuit by the victims of the conspiracy. Under current law, the successful leniency applicant is not criminally charged, but it still faces treble damage actions with joint and several liability. In other words, before voluntarily disclosing its criminal conduct, a potential amnesty applicant must weigh the potential ruinous consequences of subjecting itself to liability for three times the damages that the entire conspiracy caused.

This provision addresses this disincentive to self-reporting. Specifically, it amends the antitrust laws to modify the damage recovery from a corporation and its executives to actual damages. In other words, the total liability of a successful leniency applicant would be limited to single damages without joint and several liability. Thus, the applicant would only be liable for the actual damages attributable to its own conduct, rather than being liable for three times the damages caused by the entire unlawful conspiracy.

Importantly, this limitation on damages is only available to corporations and their executives if they provide adequate and timely cooperation to both the Government investigators as well as any subsequent private plaintiffs bringing a civil suit based on the covered criminal conduct. I should also note that, because all other conspirator firms would remain jointly and severably liable for three times the total damages caused by the conspiracy, the victims' potential total recovery would not be reduced by the amendments Congress is considering. And again, the legislation requires the amnesty applicant to provide full cooperation to the victims as they prepare and pursue their civil lawsuit.

With this change, more companies will disclose antitrust crimes, which will have several benefits. First, I expect that the total compensation to victims of antitrust conspiracies will be increased because of the requirement that amnesty applicants cooperate. Second, the increased self-reporting incentive will serve to further de- stabilize and deter the formation of criminal antitrust conspiracies. In turn, these changes will lead to more open and competitive markets.

The enhanced criminal penalties provision, which was originally part of S. 1080, which I introduced with Senator Leahy, improves current law by increasing the maximum prison sentences and fines for criminal violations of antitrust law. This change puts the maximum prison sentences for antitrust violations more in line with other white collar crimes. By increasing these criminal penalties, we are recognizing the profoundly harmful impact that antitrust violations have on consumers and the economy.

This legislation also amends the Tunney Act to end what some have seen as courts simply ``rubber-stamping'' antitrust settlements reached with the Justice Department without providing meaningful review. As I have stated, while I agree with the principle behind this proposal, I had significant concerns with the specific language that was reported out of the Judiciary Committee. After several months of discussions, I am happy to say that the current language appears to have answered most, if not all, of the principal concerns that were raised regarding the amendments to the Tunney Act.

In conclusion, I would like to thank Senators Leahy, Kohl, and DeWine and their staffs for their efforts on this bill. In particular, I would like to thank Susan Davies of Senator Leahy's staff, Jeff Miller and Seth Bloom of Senator Kohl's staff, and Pete Levitas and Bill Jones of Senator DeWine's staff. I also appreciate the expert and energetic efforts of my own antitrust counsel, Dave Jones. And finally, I thank Makan Delrahim, my former chief counsel, for all of his ``technical assistance.''

I urge my colleagues to support this bill.

Mr. President, I rise today in support of H.R. 4, the Personal Responsibility and Individual Development for Everyone Act, called the PRIDE Act.

Throughout our Nation's history, we have seen wonderful examples of individuals, with a little drive and ambition, seizing one of the abundant opportunities this great Nation has to offer, and move, literally, from nothing in their pockets to a lifetime of incredible success.

That being said, up until 1996, this notion of America being ``the land of opportunity'' was nearly unknown to millions of welfare recipients who were bogged down by the stifling, cash assistance welfare system our Nation had embraced for over 100 years.

With the enactment of the Temporary Assistance for Needy Families legislation--we call it TANF--in 1996, that all changed. We offered individuals who had previously been shut out of the American dream the opportunity to eliminate poverty and move their families toward the empowering goal of self-sufficiency.

Welfare reform has been one of the most successful social policy reforms in U.S. history. We have seen millions of people focus their energies and efforts on their responsibilities and acquiring an attitude of providing for themselves. They have learned it by daily practice.

Nearly 3 million families have been lifted out of poverty. Employment by mothers most at risk to go on welfare has risen by 40 percent since 1995. Each of us in this body is encouraged to see the profound, positive effects TANF has had on the lives of those who require temporary assistance.

Caseloads are down 58 percent, and assistance recipients are working more than ever before. Thus, these hard-working people are leading themselves back to self-sufficiency.

As the Department of Health and Human Services has reported, welfare caseload reductions are primarily a result of implementing the welfare reforms contained in the original TANF legislation--and not merely due to the robust economy of the late 1990s.

I think we also need to recognize that the States themselves have held the key to the success of these programs by taking advantage of the flexibility built into the original TANF legislation.

Many States throughout the Nation have offered welfare plans and created specific, effective programs that are working well with their constituencies. The States' work has been well documented, as many States have reported caseload declines of over 70 percent since 1996.

TANF funds transferred by the States and used for childcare funding have also been an enormously positive development, and States are matching Federal spending in the area of childcare.

This is creating a good foundation where working parents can go back to work knowing that their children are being well cared for. I need only look to my home State of Utah to see the successes of the 1996 TANF law.

Since August of 1996, TANF rolls have decreased over 45 percent, while the quality and professional attention given to recipients has been steadily going up.

Utah has been a pioneer State in the development of personal, value- added attention and planning for those who are receiving assistance. Universal engagement of every assistance recipient is a necessity, and I applaud my home State of Utah for leading the way in this area. I also thank Chairman Grassley for putting the provision in the bill.

My home State has also pioneered work in the promotion of marriage and family formation. Under then-Governor Michael Leavitt, Utah was the first State in the Nation to form a commission on marriage, which was charged with the overreaching goal of strengthening marriages in Utah. I am pleased to see this bill includes $200 million in matching grants for States to provide marriage promotion and responsible fatherhood programs.

The marriage unit is the most fundamental in society. If the bond of marriage weakens, so does our society, including the rising generation. It is widely recognized that a healthy, loving marriage between a man and a woman not only provides great personal happiness, it also creates the safest place for children to thrive and benefit from the full emotional, moral, and educational benefits that two married parents can provide.

I also commend President Bush for his commitment and efforts to strengthen healthy marriages.

Let me turn to another important component of the bill, the family self-sufficiency plan. Under current law, States are under no obligation to understand and assess the circumstances of each recipient receiving assistance. However, under the universal engagement provisions of this bill, it will be incumbent upon each State to meet with each recipient and create a plan, using all the support tools available to the State, to help the recipient achieve self-sufficiency.

This is a very important measure because it seeks to give each and every recipient a roadmap toward independence and success--a light at the end of the tunnel. It also signals to States that all TANF families deserve a chance to become self-sufficient and no one can be left to fall through the cracks in the system.

In Utah, I have seen that many of these parents, hard-working people, young and old, end up finding great self satisfaction in giving their gift of skill at work, at giving themselves to a task at hand so thoroughly that they have a meaningful relationship with their work. I think we will all agree that sometimes it is not easy to dive into your work with enthusiasm, but sometimes it is necessary and appropriate.

That is why it is so important that the work requirements are increased in this bill. The core work requirement is increased from 20 hours per week to 24 hours per week. Total hours required for a State to receive full credit increases from 30 hours per week to 34 hours per week for single-parent families. These are sensible, reasonable requirements.

Two-parent families will be required to work 39 hours per week, or 55 hours per week if they receive subsidized childcare. States will receive partial credit if individuals work 20 hours per

week, and extra credit if they work more than 34 hours per week. Current law provides full credit only at 30 hours.

Again, these changes in the current law will help us make real progress.

It seems obvious that the more a person sets goals and takes responsibility for the career they want, the more they will be able to decide if a particular job fits into the scheme of their life. The harder they work--that is, the more hours they work--the more they understand why they are working at a particular job and how their hard work will benefit their individual families.

I believe the most important new provision in this bill is the establishment of a meaningful State participation rate. For years now, States have had no reason to actively recruit adults into industrious work and work-related activities. Under this bill, States would be required to have 70 percent of their caseload involved in approved work activities by the year 2008. This would require States to significantly ramp up their efforts to engage a much greater number of families in activities that count toward the work participation rate.

Right now, the majority of adults receiving assistance are reporting zero hours of activity. It is time we recognize that with an effective participation rate, and by the elimination of the caseload reduction credit in the 1996 welfare law, we will encourage people to commit to careers, to goals, to real recovery.

Another striking result I would like to note has been the effect of welfare reform on African-American children. For the 25 years before welfare reform, before the TANF bill in 1996, the percentage of African-American children living in poverty remained virtually unchanged. But since welfare reform, the poverty rate among those children has dropped from 41.5 percent in 1995 to 32.1 percent in 2002--still way too high, but it has been a definite, dramatic drop, and TANF deserves most of the credit for that situation. About 1 million African-American children--roughly the entire population of Dallas, Detroit, or San Diego--are no longer in poverty because of welfare reform.

There is still much to be done. Currently, 58 percent of those on welfare are not working or training to work, and 2 million families remain completely dependent on welfare for their survival. The full potential of this legislation has not been realized because of lax enforcement and efforts to undermine the principles and goals of reform. Let's look at this.

Among poor families with children, one-quarter to one-third do not work at all. The rest work sometimes, but not full time or year-round.

Only a fourth of poor families have full-time employment, and by that I mean 40 hours a week throughout the year. Because of this low rate, many remain poor.

Overall, among all poor families with children, most adults work only 16 hours a week whether the economy is good or bad. If all poor families with children had just one full-time adult employed year-round 40 hours a week, America's child poverty rate would drop dramatically. Many poor families would immediately be lifted out of poverty.

Last September, with my support, the Finance Committee reported this bill to reauthorize TANF and other programs for the next 5 years and to strengthen welfare reform further. This would greatly increase work requirements for working families so that 70 percent are participating in work or job preparation activities by fiscal year 2008.

All recipients should work full time either in a job or in programs designed to help them achieve independence. A 4-week cushion is included for vacation and sick leave, simulating a typical work schedule in the United States. And the plan makes special accommodations for parents with infants and individuals who need substance abuse treatment, rehabilitation, or special training.

One area of concern for me, and the citizens of Utah, is the difficulty many recipients will have in meeting the work requirement when they are unable to defeat an addictive drug habit or suffer from a devastating disability. I suspect many of those individuals who remain on welfare are those with drug dependencies or other ailments that are difficult to treat.

Under the current bill, only 3 months of rehabilitation services may be counted as an acceptable activity. In the Finance Committee, I offered an amendment that was adopted that extends this credit an additional 3 months as long as the State deems it necessary and the recipient is engaged in increasing amounts of work or job-readiness activity. I hope my colleagues agree with me that this is the right way to help these individuals get free of dependency and find meaningful employment.

Another amendment of mine that was included in the committee bill established a pre-sanction review. Families in Utah who are in need of services, such as substance abuse treatment, must receive the assistance they need to overcome barriers to employment. This is why I believe States must conduct a pre-sanction review before taking action against parents who are considered noncompliant. It does not seem fair that a parent is subjected to sanctions and case closures because of their State's limited substance abuse treatment capacity. If substance abuse treatment services are not available to the parent, States should refrain from sanctions or case closures.

The review established by my amendment requires States to review a recipient's self-sufficiency plan and consult with the recipient before enforcing any sanctions or taking away the recipient's cash assistance or welfare services. This provision is necessary to give recipients with significant barriers to work, such as a disability or a drug dependency, a real chance to meet the State's requirements prior to having their assistance taken away.

Another important area I would like to discuss is childcare. We all now agree that childcare is an essential part of encouraging people to work. I am pleased to see that this bill includes an additional $1 billion in funding for childcare. Even so, I think we need to go a step further. And I compliment, in particular, the distinguished Senator from Maine, Ms. Snowe, and the distinguished Senator from Connecticut, Mr. Dodd, with whom years ago I worked to pass the first childcare bill in history. He has kept at it and kept on it, and I personally respect and appreciate it. Of course, I am a cosponsor of this amendment as well. There are countless examples of how our country benefits from programs that allow hard-working parents to stay employed, and we need to support the efforts of working families by finding ways to help with childcare assistance. Parents need to know they have access to quality childcare.

I would like to make it clear that with the current budget situation, I am not advocating for large increases in Federal discretionary spending. I am very concerned about the fact that the Federal Government is running a deficit and that our Federal debt is accumulating. High deficits and a mountain of Federal debt represent real obligations that hurt our economic security, both now and in the future, and hurt every person we are trying to help here.

That being said, I recognize the very real and pressing need for improved childcare services. The 1990 childcare law Senator Dodd and I helped get passed was one of our most important initiatives, and certainly I think each of us claims and feels it was each of our important initiatives. I was pleased to join Senator Dodd in that effort.

It is clear to me after much study that the funding contained in the finance bill is simply not adequate. I am supportive of increasing that funding even more, provided they are accompanied by responsible offsets to hold down the costs and, in this case, this amendment will.

We should recognize that many assistance recipients across our country will struggle to meet the requirement for increased work hours if they are not able to find and use quality childcare services. While we are trying to get people to work, we ought to try to help their children in the process. Funding for childcare should go hand in hand with an increase in the work requirement. I and others--Senator Snowe in particular--have fought very hard for that in the Finance Committee. We cannot expect these mothers and fathers to feel comfortable

leaving children alone or in the care of someone who is not competent in order to meet a higher work requirement standard.

A question we often ask ourselves is, ``Is this a perfect bill?'' I would have to say my answer to that question would be ``no.'' But I am sure there are many on both sides who would like to change it one way or the other. Most people have to admit this represents a compromise of many competing interests. If I had written the bill, I surely would have done some things differently. But I think Senator Grassley and Senator Baucus have done a terrific job on this bill under the circumstances. These types of bills are always hard fought. This is a good one with sensible, reasonable compromises.

In closing, I want to again personally recognize the substantial work of Chairman Grassley, the Democratic leader on the committee, Senator Baucus, and the Senate leadership for bringing this very important bill to the floor.

Over the last 2 years, it has been my pleasure to work with many of my esteemed colleagues on the Finance Committee from both parties to create an effective welfare reauthorization bill. I also thank Becky Shipp, who now serves on the Finance Committee, for her tireless work over the past 18 months and prior to that to help craft a welfare bill that will improve the lives of many Americans.

My own staff, headed by Jace Johnson and Jenny George, has done a terrific job.

These people did superior work for me and the people of Utah for almost 10 years and I was very fortunate to have Becky and now Jace, as members of my staff.

In closing, let there be no misunderstanding as to what this bill does. It strengthens and improves the current welfare laws and gives poor families a realistic chance at achieving self-fulfillment.

The most generous behavior Americans could choose is taking responsibility for ourselves, our thoughts, our actions, and our needs. The most beneficial act we in Congress can perform is to allow those less fortunate to succeed and to help them meet their responsibilities for themselves, their families, and their communities. I urge my colleagues to support this legislation because I am confident this bill, when passed, will benefit the entire country.

Mr. President, I ask unanimous consent that the final 4 minutes prior to the 12:15 p.m. vote be equally divided between Senators Dodd and Snowe, with Senator Dodd in control of the first 2 minutes and Senator Snowe in control of the final 2 minutes.

Will the Senator yield?

I thank my colleague for his kind remarks and mention that bill would never have occurred without the strength and character he demonstrated, helping to bring it forth. It was a tough time. We had to battle many forces. But in the end, this childcare bill has done an awful lot of good for people in this country. I want to express my respect for my colleague and thank him for yielding.

Mr. President, I rise today in support of this amendment to increase the amount of mandatory childcare funding available to States.

Many of us understand that child care is an essential part of encouraging people to work. I have long believed that parents who are concerned about their children's well-being cannot be effective, dependable employees. Unfortunately, the data are clear; the need for affordable child care in this country is rapidly increasing and the Federal funds available to help poor families have deteriorated significantly due to flat funding and inflation. Without dramatic funding increases, over 600,000 poor parents will face tough decisions about what to do with their children while they are working to keep the family out of poverty. I am concerned about this statistic.

I sincerely believe it is the right thing to do to require families receiving Federal assistance to work more hours to ensure they can become self-sufficient. That is one of the many reasons I am supportive of this bill, H.R. 4. However, requiring more hours of work from poor parents inevitably leads to an even greater demand in childcare funding because parents must be out of the home for longer periods of time. In many respects this is a healthy development for the family. But the $1 billion increase in childcare funding provided by this bill is simply not adequate to meet this increased work requirement; therefore, I think we need to go a step further. That is why I support this important amendment to increase child care funding by $6 billion over the next 5 years.

I would like to make it clear that I certainly understand the budget shortfalls this country is facing. While I believe much good can be done by increasing child care funding, I would not be supportive of this amendment if it were not 100 percent deficit neutral. I am pleased to see this amendment is offset by increases in customs user fees and does not add to the budget shortfalls we are currently experiencing. High deficits and the mountain of Federal debt represent real obligations that hurt our economic security, both now and in the future. Therefore, as long as we have a viable offset for childcare funding increases, I am supportive.

With that understanding, I encourage my Senate colleagues to support this amendment and provide these necessary childcare funds to families.

Mr. President, I rise today to introduce the Summer Operations and Services or ``SOS'' Relief and Reform Act, S. 2258.

Across our Nation, there are businesses, many of which are small, which look forward to the summer time each year as an opportunity to conduct their seasonal operations. From Utah to Alaska to New England and down to the Southern States, innkeepers, swimming pool operators, and fishermen rely on the income generated during the summer months to feed their families, employ their neighbors, and contribute to their local economies. Individually, these businesses may not be big operations, but collectively, they are an integral part of the American economy.

Because of the nature of our country's labor market, and perhaps because of the unattractiveness of seasonal versus permanent work, these operations have traditionally relied upon the H-2B visa program to bring needed workers from abroad. For those who may not understand the purpose for this program, let me explain it. An employer is only allowed to request an H-2B worker when no American worker is available for the same job. An employer is not allowed to pay lower wages to these foreign visa holders. Throughout our immigration history, the H- 2B program has remained noncontroversial.

This year, perhaps as a sign of our economy's increasing vitality, the H-2B annual cap of 66,000 visas has already been reached. Meanwhile, small businesses across the country warn that if Congress does not make some sort of accommodation, they stand to suffer immeasurable losses. Failing to act would not only be detrimental to these small businessowners, many of whom simply cannot afford to lose an entire year's worth of profit, but would hurt the Americans whose jobs also depend on the stability of these businesses. The negative impact upon the hospitality and tourism sectors would be severe as well. In other words, unless we act quickly and give these seasonal operations the resources they need, we are facing a very bleak summer for many hard-working Americans and entrepreneurs.

That said, as much as I want to do all that I can to save this summer of seasonal work, I also want to make sure that in our haste, we do not establish unsound policy and set a bad precedent for the future. Many immigration reformists oppose increasing numbers in any immigration program. I oppose simply raising the numbers indiscriminately. Instead, what we need is a program that is tied to the realities of our economy and our job market. The reform I propose in ``SOS'' will bring us closer to this ultimate goal.

Specifically, S. 2258 does not raise the visa cap number. Instead, it exempts those who were admitted on an H-2B visa during the past 2 fiscal years from the cap for the remainder of this year. This is a good reform approach for several reasons: First, the number of actual workers admitted will be dictated by the strength of the economy, and not by a random number that resulted from political compromise. Second, it gives preferential treatment to those who have used the program before, and who have complied with the law and returned to their home countries at the end of the season. Third and finally, it would allow the Secretary of Homeland Security to delegate to the Secretary of Labor the specific as well as inherent authority to investigate fraudulent immigration and employment practices. No immigration reform can be complete without addressing that issue. Of course, this bill does not represent all of the reforms that are needed, but is it a step in the right direction, while providing immediate relief for our seasonal businesses.

I thank Chairman Chambliss of the Judiciary Committee's Immigration Subcommittee for his valuable input and for being our lead cosponsor on this bill. I also want to thank the administration for its contribution and expertise in reforming the H-2B visa program in an administratively feasible manner. Finally, I would be remiss if I did not recognize the contribution made by the other original cosponsors, Senators Allen, Gregg, Collins, Murkowski, Warner, and Thomas.

Let me conclude by emphasizing that without our immediate attention to this pressing problem, local economies will face substantial losses. Let us work together to prioritize the health of America's seasonal businesses, and safeguard the livelihood of all the people who depend on them. I ask my colleagues for their bipartisan cooperation in the timely passage of this bill.

Mr. President, I rise today to introduce the Summer Operations and Services or ``SOS'' Relief and Reform Act, S. 2258.

Across our Nation, there are businesses, many of which are small, which look forward to the summer time each year as an opportunity to conduct their seasonal operations. From Utah to Alaska to New England and down to the Southern States, innkeepers, swimming pool operators, and fishermen rely on the income generated during the summer months to feed their families, employ their neighbors, and contribute to their local economies. Individually, these businesses may not be big operations, but collectively, they are an integral part of the American economy.

Because of the nature of our country's labor market, and perhaps because of the unattractiveness of seasonal versus permanent work, these operations have traditionally relied upon the H-2B visa program to bring needed workers from abroad. For those who may not understand the purpose for this program, let me explain it. An employer is only allowed to request an H-2B worker when no American worker is available for the same job. An employer is not allowed to pay lower wages to these foreign visa holders. Throughout our immigration history, the H- 2B program has remained noncontroversial.

This year, perhaps as a sign of our economy's increasing vitality, the H-2B annual cap of 66,000 visas has already been reached. Meanwhile, small businesses across the country warn that if Congress does not make some sort of accommodation, they stand to suffer immeasurable losses. Failing to act would not only be detrimental to these small businessowners, many of whom simply cannot afford to lose an entire year's worth of profit, but would hurt the Americans whose jobs also depend on the stability of these businesses. The negative impact upon the hospitality and tourism sectors would be severe as well. In other words, unless we act quickly and give these seasonal operations the resources they need, we are facing a very bleak summer for many hard-working Americans and entrepreneurs.

That said, as much as I want to do all that I can to save this summer of seasonal work, I also want to make sure that in our haste, we do not establish unsound policy and set a bad precedent for the future. Many immigration reformists oppose increasing numbers in any immigration program. I oppose simply raising the numbers indiscriminately. Instead, what we need is a program that is tied to the realities of our economy and our job market. The reform I propose in ``SOS'' will bring us closer to this ultimate goal.

Specifically, S. 2258 does not raise the visa cap number. Instead, it exempts those who were admitted on an H-2B visa during the past 2 fiscal years from the cap for the remainder of this year. This is a good reform approach for several reasons: First, the number of actual workers admitted will be dictated by the strength of the economy, and not by a random number that resulted from political compromise. Second, it gives preferential treatment to those who have used the program before, and who have complied with the law and returned to their home countries at the end of the season. Third and finally, it would allow the Secretary of Homeland Security to delegate to the Secretary of Labor the specific as well as inherent authority to investigate fraudulent immigration and employment practices. No immigration reform can be complete without addressing that issue. Of course, this bill does not represent all of the reforms that are needed, but is it a step in the right direction, while providing immediate relief for our seasonal businesses.

I thank Chairman Chambliss of the Judiciary Committee's Immigration Subcommittee for his valuable input and for being our lead cosponsor on this bill. I also want to thank the administration for its contribution and expertise in reforming the H-2B visa program in an administratively feasible manner. Finally, I would be remiss if I did not recognize the contribution made by the other original cosponsors, Senators Allen, Gregg, Collins, Murkowski, Warner, and Thomas.

Let me conclude by emphasizing that without our immediate attention to this pressing problem, local economies will face substantial losses. Let us work together to prioritize the health of America's seasonal businesses, and safeguard the livelihood of all the people who depend on them. I ask my colleagues for their bipartisan cooperation in the timely passage of this bill.

Madam President, I appreciate my colleague from California permitting me to go before her.

I rise today to urge my colleagues to vote in favor of the Unborn Victims of Violence Act. The importance of this issue has been made tragically clear by the grisly murders of Laci Peterson and her unborn son Conner. I met with her mother again yesterday and was very impressed with her and how she is handling this situation.

This bill will ensure Federal law appropriately protects unborn children from assault and murder. It has passed the House of Representatives by a strong bipartisan vote of 254 to 163. I believe the Senate should give similar overwhelming approval.

Before I begin the substance of my remarks, I commend Senators DeWine and Lindsey Graham for their longstanding and essential leadership on this most important issue and for drafting the legislation that is before us today. This issue has already been addressed in many States across the country. In fact, in my home State of Utah, if a criminal assaults or kills a woman who is pregnant and thereby causes death or injury to the unborn child, the criminal faces the possibility of being prosecuted for having taken or injured that unborn life. Twenty-eight additional States have similar laws on the books. Sixteen of those States recognize the unborn child as a victim throughout the entire period of prenatal development. This is only proper and, it seems to me, only just.

However, there is a gap in the law under existing Federal criminal statutes. Current Federal law provides for no additional criminal penalty when a criminal assaults or kills a woman who is pregnant and thereby causes death or injury to that unborn child. It is time Congress eliminates this unjustified gap in the law.

This bill bridges this existing gap, and it does so in a way that protects the rights of the States. It creates a separate Federal offense to kill or injure an unborn child during the commission of certain already defined Federal crimes committed against the unborn child's mother.

Importantly, because this bill only applies to Federal crimes, it does not usurp jurisdiction over State law. If someone commits a crime that violates State law, but does not violate any Federal law, then State law will prevail, regardless of whether that State has laws that protect unborn victims of violence.

I cannot imagine why anyone would oppose this bill.

Some have mistakenly characterized this bill as anti-abortion. It is not, and I am not saying that because I am pro-life.

Let me take this opportunity to clarify a remark I made on May 7 of last year. I am quoted as saying the bill undermines abortion rights, but that this effect is irrelevant. The point I was trying to make, and I guess I did not make it well and it has been quoted out of context many times, is there is no conflict between the bill language and Roe v. Wade. Some are prepared to bring the abortion issue into anything, any time, for any reason, even when it does not fit, such as in this case.

I do not believe this bill in any way undermines abortion rights. It certainly does not.

The bill explicitly says the Federal Government cannot prosecute a pregnant woman for having an abortion. In fact, the bill goes even further. The bill does not permit prosecution against any woman with respect to her unborn child regardless of whether the mother acted legally or illegally. If a woman chooses not to have her baby, the bill says she can have an abortion without Federal prosecution. That is how far the authors of this bill have gone. But importantly, for those women who have chosen to keep their baby, this bill says no coldblooded murderer can take that choice away from her by killing her baby and going unpunished.

Those who oppose this bill are, in effect, saying the murderer, not the mother, has the choice to take the baby away from his or her mother

against the mother's will and against the individual's will. Since the murderer will not be punished for this terrible offense, it exonerates his or her actions. That is simply not right.

I understand my dear friend Senator Feinstein says this bill somehow threatens stem cell research. It does no such thing. I have been a supporter of embryonic stem cell research, and everyone in this body knows it and I guess most scientists throughout the world know that. I have been proud to stand shoulder to shoulder with Senator Feinstein, Senator Specter, Senator Kennedy, and Senator Harkin on stem cell research. I believe we are right on that issue. But this bill in no way impedes stem cell research. This bill is about stopping and punishing heinous crimes.

Why would I support Laci and Conner's law if it jeopardized that research? The words ``stem cell research'' are nowhere in the bill. This is a criminal law, not an abortion law.

As I have said on many occasions, it is my view life begins in a mother's womb. What this bill does is penalize those who act to viciously end that life in the womb or any life in the womb.

Senator Feinstein, the distinguished Senator from California, suggested this bill somehow may result in assigning legal status to the term ``embryo.'' But I cannot find the term ``embryo'' anywhere in the bill. Nor for that matter can I find the term ``embryo'' in the amendment put forth by the distinguished Senator from California, Mrs. Feinstein.

In short, this bill does not affect abortion, embryos, or, for that matter, stem cell research. There is no legislative intent here to prosecute researchers working on stem cell research--none whatsoever.

I have the utmost respect for my dear friend from California, and she knows that. We have worked together on many issues during her 12 years on the Judiciary Committee. I admire her and appreciate working with her on so many of these issues. I admire her judicious way in fighting for the issues in which she believes, even when we disagree. If her bill truly considered the same crime, I would give strong consideration to supporting it. But it does not. It tries to do it, but it does not.

The phrase ``interrupt a pregnancy'' is overly vague and will probably be struck down by the courts on that ground. Because of this vagueness, the courts may well interpret the Feinstein amendment as providing no additional penalty for a crime committed against a fetus.

Some will try to claim this weakens domestic violence laws by averting attention to the unborn. That is simply not true. I am a strong supporter of domestic violence laws and, along with Senator Biden, was the main writer of those bills. I believe domestic violence is an evil plague that needs to be stopped.

My commitment to this issue has been longstanding. As many of my colleagues are aware, I was an original cosponsor of the Violence Against Women Act over a decade ago, and I have tirelessly fought in countless venues to protect the rights of women. This bill furthers that cause.

For many years, I have worked hard on the issue of domestic violence and violence against women, and when I stand here today before the entire Senate and offer my support for a bill, I certainly make sure that bill does not diminish in any way our capacity to curb domestic violence and protect women.

The bill before us strengthens the rights of women and provides those who fight against domestic violence with another tool in their arsenal to go after abusers. This bill focuses attention on both a pregnant woman and her child. Before the Government could prosecute someone for hurting the unborn child, it would first need to prove the pregnant woman was hurt. In other words, the Government needs to prove 1 of 68 enumerated predicate Federal crimes against the mother before it could obtain a conviction under this provision of this bill.

Moreover, this provision empowers abused women because it gives the Government a greater arsenal of prosecutorial tools to put the abusive spouse behind bars for a longer period of time. Many today will talk about the Peterson case. Suffice it to say that the public reaction to that case underscores the widespread support for the changes that we are making with H.R. 1997.

A news poll taken last April consisting of an almost even split of pro-life and pro-choice individuals indicated that 84 percent--let me repeat that, 84 percent--believed that Scott Peterson, who is currently on trial for the murder of his wife, should be charged with two counts of homicide for murdering his wife and unborn son.

California law permits criminals to be charged with murder for killing an unborn child when that child has developed past the embryonic stage. The tragic murder of an innocent unborn child is so shocking and so disturbing that regardless of any stance on abortion, the vast majority of all Americans strongly believe an unborn life taken in murder should result in murder charges brought against the perpetrator.

It is only fair and just to ask for our Federal judicial system to incorporate this strong desire of the vast majority of the American people on this issue.

I urge my colleagues to vote for H.R. 1997. I urge my colleagues to vote against amendments to H.R. 1997. Do it for Laci and Conner Peterson and for thousands of others in similar situations who have been abused. Do it for all women who have chosen to have their baby and are having that choice taken away from them by a cold-blooded murderer. Most of all, do it because it is the right thing to do.

I yield the floor.

Mr. President, I couldn't agree more with the comments the distinguished Senator from Ohio just made. This is a very important piece of legislation. It should not be killed on by this last-minute, 158-page amendment, which has not had a single hearing.

I have long been a supporter of ensuring that our Nation's laws extend all the protections available to women who are victimized by domestic and other violence.

Along with Senator Biden, I have taken the lead in addressing this issue through national legislation with the passage of Violence Against Women Act.

I commend Senator Biden for the work he has done on that. But it took a bipartisan effort to get that through. Of course, I worked very hard side by side with him to get that bill passed, and have stood up for it ever since.

Because of the passage of the Violence Against Women Act, the Department of Justice is now authorized to coordinate with Federal and State governments, as well as international governments, on matters concerning violence against women.

In fact, the Bush administration will allocate almost $400 million this year alone for these worthy programs.

I note with a sense of pride that a former adviser to my Woman's Advisory Council from Utah is now the director of the Office on Violence Against Women in the Department of Justice. She is doing a terrific job.

Violent crimes against women continue to be among the most under- reported. Even so, the statistics that are reported do not convey the feeling of fear and vulnerability millions of women across this country must face in our streets and all too often in their own homes.

To address this problem, effective intervention in the area of domestic violence requires coordinated efforts by police, prosecutors, counselors, and courts. It demands a major commitment by Government at all levels, Federal, State, and local. I am proud to help in coordinating the response to this important issue and have been very proud to have done so in the past. I intend to continue addressing these concerns in the future.

I say all of this to set the backdrop for why I urge my colleagues to vote against the Murray amendment.

Let me say at the outset I appreciate my colleague, Senator Murray, for attempting to advance the discussion on this issue. As someone who has been working on this matter my whole political career--and even before I officially began my political career--I know how difficult it is to craft effective legislation which truly makes a difference in this area of the law. It takes countless hours of hearings, meetings with interested and affected constituents, as well as committee markups to ensure what is ultimately passed is well formulated and well vetted so you accomplish the goals you set for yourself without causing unintended consequences.

This is a complex area of law. I am sorry to say, however, this amendment has not been adequately scrutinized. In fact, I am told no committee has examined this proposal, leaving it with far too many troubling provisions.

This is not a simple amendment. It is 158 pages long. Let me take a moment to point out just a few of the more troubling provisions contained within the Murray amendment. I am only talking about a few of them. There are plenty more.

In this Congress we have taken on a number of civil justice reforms. From class action to medical malpractice reform to asbestos reform, which I am hopeful we will consider in the next week or so, we have substantively addressed many of the more troubling aspects of civil lawsuit abuse. This amendment, however, takes us exactly in the wrong direction after all of that work.

For instance, section 112 allows plaintiffs to recover liquidated damages in addition to other damages under this amendment. This is a technical area of the law. But it is a very important area. What this amendment does makes absolutely no sense. It doesn't have a chance in the world of going through the whole Congress, but will in essence destroy this very worthy and important bill.

Liquidated damage provisions are appropriate when the actual damages are too difficult to ascertain. Accordingly, in lieu of actual damages, parties agree upon a reasonable estimate of liquidated damages. Thus, liquidated damages are used as a substitute for actual damages and not as a supplement to them. Courts simply do not enforce liquidated damages that are merely intended to serve as a penalty.

In this litigation-prone country we have right now, this would go completely awry, and it would undermine, it seems to me, what we are trying to do to prevent violence against women in the end.

What it seems the Murray amendment is trying to do is codify a set formula for determining punitive damages by automatically doubling the amount for compensatory damages with the possibility of a reduction if good faith is shown. But if that is the intent, the bill is not drafted properly to carry out that intent.

This glaring error is just one example of what occurs when a bill does not undergo the scrutiny required to pass sound legislation.

It took us years to pass the Violence Against Women Act--not because we were stupid and not because we didn't want to do it faster, but because we had to listen to experts and make the appropriate changes that have made it the great law it is today.

What will happen if this amendment is adopted? First of all, this amendment isn't going to go anywhere, anyway. But if it is adopted, it will destroy this bill. Basically it will undermine what all of us--a vast majority in this body--are trying to do.

The one reason we created the committee system, of course, is to correct and vet legislation rather than wasting valuable floor debate time.

An additional provision found in the Murray amendment pertaining to class action--section 112(g)--appears to fly in the face of the efforts of a vast majority of Senators. It makes no effort to take into consideration issues that trouble the majority of Senators. This amendment codifies in the United States Code a right to bring class actions.

I have helped lead the fight in this Congress to reform the substantial

abuses that have occurred by some unscrupulous trial lawyers, personal injury lawyers primarily, who have brought unjustified class actions in an attempt to extort settlements from companies across this country. That is right. Extort settlements. In fact, well over 50 of my colleagues--truth be known, over 60 of my colleagues have joined with me to take a stand against these abuses. In light of this clear expression of sentiment, it makes no sense to codify in the United States Code this class action authorization. It flies in the face of everything we are doing around here.

Obviously, there has been no serious effort to address the legitimate concerns of the bipartisan majority of the Senators working on the class action issue, and we have worked on it for years. We are still working on it. We have come a long way. We now have a supermajority of Senators who will support class action reform as it should be supported. But it took years for us to get there. Unlike some 158-page amendment that has not been well thought through but brought up on the floor suddenly. However well intentioned the efforts are, in the end, the result will be to destroy the underlying bill that the vast majority of us would like to pass.

I am sure Senators Grassley, Kohl, Carper, and I will work with the distinguished Senator from Washington in good faith, if she will work with us in good faith with regard to her concerns as exemplified in this 158-page amendment.

Finally, let me point out another provision of the Murray amendment that opens the door to further lawsuit abuse.

In a country that has long been known for its litigation abuse, and we all know this is true, these ill-thought-out litigation matters are running us into bankruptcy--ruining businesses throughout the country, not getting money to those who deserve them, and driving a set of unscrupulous trial lawyers who basically know better but who are more interested in making money than they are in doing what is right.

Section 134 of this 158-page amendment itemizes what can be recovered in a lawsuit brought under this amendment.

In addition to the ordinary recoveries already permitted in the civil justice system, this amendment proposed by the distinguished Senator from Washington would permit a money recovery when the plaintiff suffers ``inconvenience,'' ``loss of enjoyment,'' and other non- pecuniary losses. Recovery for inconvenience? Recovery for loss of enjoyment? My gosh, what does that mean in the law? Anyone who takes the metro during rush hour suffers from inconvenience. And, I might add, loss of enjoyment. This type of language is absurd. It should not even be considered by this right-thinking body.

I am just mentioning a few of the problems. I don't want to take much longer because there is only an hour on each side in this debate. These are just a few of the problems caused by this amendment as it relates to civil justice judiciary issues, important issues that should not be dealt with frivolously.

I have not touched on other problems caused by the amendment such as the increase in taxes on small business that will inevitably follow if it is passed, the wholesale restructuring of state unemployment insurance rules and regulations, as well as the substantial 11th amendment concerns raised by this poorly drafted but well-intentioned amendment.

I understand others will come to the floor to discuss these issues so I don't intend to repeat them now. They are important issues. This is not an itty-bitty amendment. This is a major amendment that literally has not had a day of hearings.

I take a backseat to no one, not anyone, in ensuring that Congress does everything it can to provide protections, support, and resources to combat domestic violence. But this amendment is not well written. Or perhaps I should say, not only is it not well written, it is overwritten in many respects.

Because of the problems replete in the Murray amendment, I cannot vote in favor of it. I recommend Senators on both sides of the aisle vote against this amendment. We will certainly sit down with the distinguished Senator and look at her goals and her aims, try to help her fashion this amendment so that it can pass the Senate in a form that literally makes sense in the law, makes sense in reality, and makes sense in practicality.

I yield the floor.

I yield such time as he needs to the distinguished Senator from Wyoming.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, I rise to join Senator Leahy in sponsoring the Protecting Intellectual Rights Against Theft and Expropriation Act--the ``PIRATE Act''--a measure that will provide the Department of Justice with tools to combat the rampant copyright piracy facilitated by peer-to-peer filesharing software.

Let me underscore at the outset that our bill does not expand the scope of the existing powers of the Department of Justice to prosecute persons who infringe copyrights. Instead, our proposal will assist the Department in exercising existing enforcement powers through a civil enforcement mechanism. After considerable study, we have concluded that this is the most appropriate mechanism.

Peer-to-peer file sharing software has created a dilemma for law- enforcement agencies. Millions of otherwise law-abiding American citizens are using this software to create and redistribute infringing copies of popular music, movies, computer games and software.

Some who copy these works do not fully understand the illegality, or perhaps the serious consequences, of their infringing activities. This group of filesharers should not be the focus of federal law-enforcement efforts. Quite frankly, the distributors of most filesharing software have failed to adequately educate the children and young people who use their software about its legal and illegal uses.

A second group of filesharers consists of those who copy and redistribute copyrighted works even though they do know that doing so violates federal law. In many cases, these are college students or young people who think that they will not get caught. Many of these filesharers are engaging in acts that could now subject them to federal criminal prosecution for copyright piracy.

It is critical that we bring the moral force of the government to bear against those who knowingly violate the federal copyrights enshrined in our Constitution. But many of us remain concerned that using criminal law enforcement remedies to act against these infringers could have an overly-harsh effect, perhaps, for example, putting thousands of otherwise law-abiding teenagers and college students in jail and branding them with the lifelong stigma of a felony criminal conviction.

The bill I join Senator Leahy in sponsoring today will allow the Department of Justice to supplement its existing criminal-enforcement powers through the new civil-enforcement mechanism. As a result, the Department will be able to impose stiff penalties for violating copyrights, but can avoid criminal action when warranted.

In advancing this measure, I must note that I view this civil- enforcement authority as another tool, hopefully a transitional tool at that. In the long run, I believe that we must find better mechanisms to ensure that our most vulnerable citizens--our children--are not being constantly tempted to infringe the copyrights that have made America a world leader in the production of creative works.

Only recently has America faced the specter of widespread copyright- enforcement actions against individual users of copyrighted works. For nearly 200 years, copyright enforcement was rarely directed against the millions of ordinary American citizens who use and enjoy copyrighted works. Instead, creators and distributors of copyrighted content worked together to negotiate the complex licensing agreements and technological protections needed to distribute copyrighted works in ways that accommodated both the expectations of users and the copyrights of artists.

But recently, some unscrupulous corporations may have exploited new technologies and discovered that the narrow scope of civil contributory liability for copyright infringement can be utilized so that ordinary consumers and children become, in effect, ``human shields'' against copyright owners and law enforcement agencies. Unscrupulous corporations could distribute to children and students a ``piracy machine'' designed to tempt them to engage in copyright piracy or pornography distribution.

Unfortuantely, piracy and pornography could then become the cornerstones of a ``business model.'' At first, children and students would be tempted to infringe copyrights or redistribute pornography. Their illicit activities then generate huge advertising revenues for the architects of piracy. Those children and students then become ``human shields'' against enforcement efforts that would disrupt the flow of those revenues. Later, large user-bases and the threat of more piracy would become levers to force American artists to enter licensing agreements in which they pay the architects of piracy to distribute and protect their works on the Internet.

Federal enforcement action is surely warranted if such ``business models''

are driving the increasing ease of piracy on peer-to-peer filesharing networks. Such business models exploit children, cheat artists, and threaten the future development of commerce on the Internet.

Indeed, our government recognizes that its enforcement powers are appropriate when protecting intellectual property and public safety. Recently, in a speech to the United States Chamber of Commerce, Deputy Attorney General James B. Comey, Jr. asserted that the Department of Justice should assist private enforcement of intellectual property rights if any of three criteria are met: (1) the level of piracy becomes particularly egregious; (2) public health and safety are put at risk; or (3) private civil remedies fail to adequately deter illegal conduct.

In the case of peer-to-peer filesharing, all three criteria may be met. The level of piracy on these networks is not merely egregious, it is unprecedented. Public health and safety are also directly threatened by business models that tempt children toward piracy and pornography and then use them as ``human shields'' against law enforcement.

Finally, the recording industry and other affected rights holders have tried--so far largely unsuccessfully--to use civil remedies to halt the operations of those who would profit by turning teenagers and college students into copyright pirates or pornography distributors.

As a result, our creative industries' only remaining option to deter piracy is to bring enough civil enforcement actions against users of filesharing software. Tens of thousands of continuing civil enforcement actions might be needed to generate the necessary deterrence. I doubt that any nongovernmental organization has the resources or moral authority to pursue such a campaign.

If enforcement actions against end-users were really the best or only way to enforce copyrights on the Internet, then civil enforcement authority would be necessary. But there may be other ways to combat this piracy at the root, not at the branch. I thus invite the Department of Justice and other federal law enforcement agencies to work with me, Senator Leahy and other members of the Judiciary Committee to determine how the enforcement powers of the federal government can best be deployed to solve the problems arising from piracy and pornography on peer-to-peer filesharing networks.

I also understand that others may be developing proposals to increase criminal enforcement authority against piracy, and I hope to work with them on such proposals. Today, I stand with Senator Leahy to buttress the enforcement of copyrights by enabling the Department of Justice to proceed with a robust program of civil enforcement.

For the reasons I have just delineated, I urge my colleagues to join us in supporting the Protecting Intellectual Rights Against Theft and Expropriation Act.

Mr. President, I rise to join Senator Leahy in sponsoring the Protecting Intellectual Rights Against Theft and Expropriation Act--the ``PIRATE Act''--a measure that will provide the Department of Justice with tools to combat the rampant copyright piracy facilitated by peer-to-peer filesharing software.

Let me underscore at the outset that our bill does not expand the scope of the existing powers of the Department of Justice to prosecute persons who infringe copyrights. Instead, our proposal will assist the Department in exercising existing enforcement powers through a civil enforcement mechanism. After considerable study, we have concluded that this is the most appropriate mechanism.

Peer-to-peer file sharing software has created a dilemma for law- enforcement agencies. Millions of otherwise law-abiding American citizens are using this software to create and redistribute infringing copies of popular music, movies, computer games and software.

Some who copy these works do not fully understand the illegality, or perhaps the serious consequences, of their infringing activities. This group of filesharers should not be the focus of federal law-enforcement efforts. Quite frankly, the distributors of most filesharing software have failed to adequately educate the children and young people who use their software about its legal and illegal uses.

A second group of filesharers consists of those who copy and redistribute copyrighted works even though they do know that doing so violates federal law. In many cases, these are college students or young people who think that they will not get caught. Many of these filesharers are engaging in acts that could now subject them to federal criminal prosecution for copyright piracy.

It is critical that we bring the moral force of the government to bear against those who knowingly violate the federal copyrights enshrined in our Constitution. But many of us remain concerned that using criminal law enforcement remedies to act against these infringers could have an overly-harsh effect, perhaps, for example, putting thousands of otherwise law-abiding teenagers and college students in jail and branding them with the lifelong stigma of a felony criminal conviction.

The bill I join Senator Leahy in sponsoring today will allow the Department of Justice to supplement its existing criminal-enforcement powers through the new civil-enforcement mechanism. As a result, the Department will be able to impose stiff penalties for violating copyrights, but can avoid criminal action when warranted.

In advancing this measure, I must note that I view this civil- enforcement authority as another tool, hopefully a transitional tool at that. In the long run, I believe that we must find better mechanisms to ensure that our most vulnerable citizens--our children--are not being constantly tempted to infringe the copyrights that have made America a world leader in the production of creative works.

Only recently has America faced the specter of widespread copyright- enforcement actions against individual users of copyrighted works. For nearly 200 years, copyright enforcement was rarely directed against the millions of ordinary American citizens who use and enjoy copyrighted works. Instead, creators and distributors of copyrighted content worked together to negotiate the complex licensing agreements and technological protections needed to distribute copyrighted works in ways that accommodated both the expectations of users and the copyrights of artists.

But recently, some unscrupulous corporations may have exploited new technologies and discovered that the narrow scope of civil contributory liability for copyright infringement can be utilized so that ordinary consumers and children become, in effect, ``human shields'' against copyright owners and law enforcement agencies. Unscrupulous corporations could distribute to children and students a ``piracy machine'' designed to tempt them to engage in copyright piracy or pornography distribution.

Unfortuantely, piracy and pornography could then become the cornerstones of a ``business model.'' At first, children and students would be tempted to infringe copyrights or redistribute pornography. Their illicit activities then generate huge advertising revenues for the architects of piracy. Those children and students then become ``human shields'' against enforcement efforts that would disrupt the flow of those revenues. Later, large user-bases and the threat of more piracy would become levers to force American artists to enter licensing agreements in which they pay the architects of piracy to distribute and protect their works on the Internet.

Federal enforcement action is surely warranted if such ``business models''

are driving the increasing ease of piracy on peer-to-peer filesharing networks. Such business models exploit children, cheat artists, and threaten the future development of commerce on the Internet.

Indeed, our government recognizes that its enforcement powers are appropriate when protecting intellectual property and public safety. Recently, in a speech to the United States Chamber of Commerce, Deputy Attorney General James B. Comey, Jr. asserted that the Department of Justice should assist private enforcement of intellectual property rights if any of three criteria are met: (1) the level of piracy becomes particularly egregious; (2) public health and safety are put at risk; or (3) private civil remedies fail to adequately deter illegal conduct.

In the case of peer-to-peer filesharing, all three criteria may be met. The level of piracy on these networks is not merely egregious, it is unprecedented. Public health and safety are also directly threatened by business models that tempt children toward piracy and pornography and then use them as ``human shields'' against law enforcement.

Finally, the recording industry and other affected rights holders have tried--so far largely unsuccessfully--to use civil remedies to halt the operations of those who would profit by turning teenagers and college students into copyright pirates or pornography distributors.

As a result, our creative industries' only remaining option to deter piracy is to bring enough civil enforcement actions against users of filesharing software. Tens of thousands of continuing civil enforcement actions might be needed to generate the necessary deterrence. I doubt that any nongovernmental organization has the resources or moral authority to pursue such a campaign.

If enforcement actions against end-users were really the best or only way to enforce copyrights on the Internet, then civil enforcement authority would be necessary. But there may be other ways to combat this piracy at the root, not at the branch. I thus invite the Department of Justice and other federal law enforcement agencies to work with me, Senator Leahy and other members of the Judiciary Committee to determine how the enforcement powers of the federal government can best be deployed to solve the problems arising from piracy and pornography on peer-to-peer filesharing networks.

I also understand that others may be developing proposals to increase criminal enforcement authority against piracy, and I hope to work with them on such proposals. Today, I stand with Senator Leahy to buttress the enforcement of copyrights by enabling the Department of Justice to proceed with a robust program of civil enforcement.

For the reasons I have just delineated, I urge my colleagues to join us in supporting the Protecting Intellectual Rights Against Theft and Expropriation Act.