Fairness in Asbestos Injury Resolution Act of 2005--Resumed

FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2005--Resumed

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Mr. DURBIN. Mr. President, the issue before the Senate today could not have more importance for hundreds of thousands of American peoples. Unbeknownst to many, in their workplace environment, in their homes, places they have visited during the course of their lives, innocent people have been exposed to asbestos fibers. The fibers are inhaled into the lungs and sit like tiny detonation devices that someday may explode. If they do, they could cause asbestosis which reduces the efficiency of the lungs or, even worse, mesothelioma, a fatal condition similar to lung cancer which claims the life of the innocent victim.

As I have said repeatedly, I don't know of a single worker or person afflicted with this disease who willingly put themselves in this circumstance. But for many thousands of people, they find themselves infected and dying.

Conversely, we know that many companies that made products with asbestos over the years knew for decades that it was a dangerous substance, a substance which was shortening the lives of their employees and a danger to their customers. They said nothing. As a result, when these little detonation devices or timebombs went off in the lungs of Americans, thousands and hundreds of thousands and millions of Americans, it created a wave of lawsuits against the companies that made products containing asbestos.

That has been going on for decades. Those who estimated the number of afflicted victims have been way off. The Johns Manville trust fund said there would be 200,000 victims. It turned out there were 2.1 million. So it has been a test of our legal system to give fair compensation to the people who have been hurt. Many people have gone through the system and received compensation.

Of course, there have been some who have abused the system on both sides. There have been some filing lawsuits for people who were not sick. There have been businesses, which were clearly liable, that did everything they could to avoid paying victims. Those things happen in courts of justice across America every single day.

Now comes the bill before the Senate, this so-called Fairness in Asbestos Injury Resolution Act, which says that we should basically deny to hundreds of thousands of Americans their day in court, their due process, their chance to stand before a judge and jury to have their fate decided, their chance to say that we believe the person on the other side of this lawsuit is responsible for the illness and death in our families. This bill is designed to close down that opportunity, to shut the courthouse doors and to replace them.

As I said before, it is quite a bold undertaking to replace the court system in America with something new. That something is this trust fund. And in a few moments, we will have a vote on in this Senate. The vote is critically important. It is a budget point of order. It goes to the heart of this trust fund and as to whether we can trust that $140 billion in the trust fund will do the job. It asks the most basic question: Are we, in fact, not creating a private-funded trust fund but, rather, an obligation of the American Government, the Government, to pay in years to come for these victims? Are we replacing a court system, where the businesses which have some exposure, some liability, pay up in court, with a system where the taxpayers take care of the victims?

If you believe that the companies that are most liable are paying into this trust fund the amounts they otherwise would pay in court--we know that is not true. Three weeks ago, U.S. Gypsum, a major company, announced if they were to pay off all the asbestos claims against their company they would be paying out somewhere in the range of $4 billion. However, under this bill, U.S. Gypsum will pay into the trust fund somewhere in the range of $800 million, maybe $900 million at the most. So for this company, this is a windfall. They will escape some $3.1 billion in exposure and liability and others will step in to pay the difference. Companies will step in to make up the difference and ultimately, it is my belief, when the trust fund fails, as it is likely to fail, then it will fall on the shoulders of the American taxpayers to make up the difference.

If this bill passes, you can expect the stock of many of these companies that are on the line for asbestos claims to go up dramatically, declare dividends, pay more to their CEOs, make sure that their profits are larger and shared by more. But when it comes to the stock of the American people, it will go down because we will be accepting responsibility not for just this generation but generations to come.

The budget point of order before the Senate raises this fundamental question. It is one that, on its face, few would argue with; that ultimately, the American taxpayers are going to be holding the bill, making up for these corporations which will be off the hook.

This afternoon, Senator Conrad, the ranking member on the Committee on Budget, received a letter from the Congressional Budget Office, signed by Donald Marron, the Acting Director. The letter clarifies a letter that has been talked about in the Senate a lot. I will not read the entirety of the letter but it says, to clarify an earlier letter:

As CBO has noted in previous assessments of asbestos legislation, there is an enormous amount of uncertainty about the potential costs under the proposed amendment. Operating the Asbestos Injury Claims Resolution Fund would be an entirely new government task, and CBO and other analysts have little basis for judging how the fund's administrator would implement the legislation. No one can be certain, because of the limited data that are available, as to how many claimants there would be and how much would have to be paid to them. The revenues under the amendment would be, at most, $140 billion, but could be significantly less.

He goes on to say:

CBO concluded, in its February 13 letters to Senators Gregg and Specter, that the proposed amendment would be ``deficit-neutral over the life of the fund.'' That conclusion is based on the fact that the sunset provisions of the legislation would limit spending for claims compensation, debt service, and administrative costs to an amount no greater than the budgetary resources that would be available to the fund from assessments on liable firms, assets of existing bankruptcy trust funds, any interest earnings. Thus, if valid claims and other costs of the funds were to exceed its resources, the administrator would not have the authority to spend amounts in excess of those resources.

Senator Specter admitted it. He came to the Senate last week and was asked: What happens if this fund runs out of money? What if our guess that it is going to cost $150 billion is wrong? He gave an honest answer: We will just cut the compensation to victims and give them less money.

I think that is right. That is the only place to turn because the alternative is to turn back to the U.S. Treasury. That is what this budget point of order is all about.

Members of Congress in the Senate and House who are mindful of the budget deficit we face together understand that we are not only plunging into the darkness with this trust fund, into something that has never been tested or tried at this magnitude but, more importantly, we are putting at risk the lives and fortunes of families across America, innocent victims of asbestos exposure, who simply want justice so that before their loved one dies, before the suffering continues from asbestos exposure, that, in fact, they will have a chance for fair compensation. With this trust fund they will not. Their lawsuit will stop the minute this bill is signed into law, if it reaches that point. Their day in court is over. They will wait to see if this trust fund, as promised, will make them whole.

I reserve the remainder of my time. I see the Senator from Delaware. How much time is remaining on our side?

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Mr. DURBIN. Mr. President, I thank the Senator from Delaware.

I wish to add, we brought up this whole issue of this secret list last week, and Senator Specter came to the floor and he said he believes for a variety of reasons he cannot tell us, cannot disclose to the public, the contributors, the businesses that will contribute to this fund and how much they are going to be asked to give. So we are dealing with an amount, $140 billion, that many people question. Serious groups have analyzed it and said it is not nearly enough. And when it comes to the contributions from businesses to create the fund, we are dealing with a secret list.

This may be the first time in the history of the Senate we have spoken on the floor openly about how things are determined. Apparently this one company that has been mentioned on the floor created a list of businesses and decided how much, under the criteria, they would be paying in.

Mr. SPECTER. Will the Senator from Illinois yield for a question?

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Mr. SPECTER. When you refer to the so-called secret list, as I pointed out to you on several occasions over the past several days, isn't it true you have seen the list?

Mr. DURBIN. No, I have not. And I thank the Senator for raising that point.

Mr. SPECTER. Isn't it true the list has been made available to you to see?

Mr. DURBIN. I would say to the Senator the same thing I said last week when we engaged in this conversation: For some reason, the Senator--whom I respect very much, and I have said this publicly, and it is not to be construed otherwise--has decided this list is confidential. So the list is made accessible to staff members and Members of the Senate to view but not to take notes or copies. Now, that is fact.

Mr. SPECTER. Mr. President, will the Senator yield----

Mr. DURBIN. And when I asked the Senator from Pennsylvania if he would make this list part of the RECORD, so we could see it right here in the Congressional Record, published for America to see, he said he would take it under advisement. He came back the next day and said for a variety of reasons, he could not do it. The fact remains----

Mr. SPECTER. Will the Senator yield for a question?

Mr. DURBIN. Not until I complete my thought. The fact remains that this list is secret to the public. If this is a public forum, if we are considering legislation that will impact the public, why, then, is the most fundamental question about who will pay into this trust fund being kept confidential and secret?

It strikes me as straining credulity that this process is so open and transparent that we cannot tell the businesses of America how much they have to pay in or the victims of America how much they can expect to receive into this trust fund for their own payments. That is a fact. And because staff members or Senators can go to the hearing room and look through the report--not make a note, not make a copy--does not create a lot of confidence.

Mr. President, I reserve the remainder of my time.

The PRESIDING OFFICER. Who yields time?

Mr. SPECTER. Mr. President, will the Senator from Illinois at this point yield for a question?

Mr. DURBIN. Mr. President, how much time do I have remaining?

The PRESIDING OFFICER. Five and one-half minutes.

Mr. DURBIN. I believe the Senator from New Jersey is coming to the floor and asked to speak. With only 5 1/2 minutes remaining, I reserve the remainder of my time.

Mr. SPECTER. Will the Senator yield for 30 seconds?

Mr. DURBIN. To show the Senator from Pennsylvania how much I respect him, yes.

Mr. SPECTER. Would the Senator from Illinois be willing to accept, in open court, the list?

Mr. DURBIN. If I am allowed to put it in the RECORD.

Mr. SPECTER. The Senator from Illinois would be bound by the denomination on the list, which is law and Senate rules. It is not something ARLEN SPECTER has made up. But this is a list which you can have in your hand. It is not a secret list, but there are rules of confidentiality established by law and by Senate rule.

Mr. DURBIN. I would say to the Senator----

Mr. SPECTER. And if the Senator from Illinois declines, that is fine with me.

Mr. DURBIN. I would say to the Senator from Pennsylvania, I think he has constructed a situation here that isn't fair to this process. To think that we would be dealing with the lives and fortunes of so many hundreds of thousands of families, and that we are saying we cannot share with them the most fundamental information about how this trust fund is created, I think we could do better, we should do better in the Senate.

Mr. SPECTER. Would the Senator from Illinois accept my characterization of his position as ridiculous?

Mr. DURBIN. No. I would accept my characterization as challenging the Senator from Pennsylvania to accept the obvious. If this list has been created by some private company and cannot be shared with the people of America in the midst of the debate on this important bill, there is a serious flaw in this legislation, a flaw that cannot be overcome, even with the good feelings I have for the chairman of this committee.

I reserve the remainder of my time.

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