T. Gorton

Mr. GORTON

Mr. GORTON. Mr. President, I suggest the absence of a quorum.

Mr. GORTON

Mr. GORTON. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

Mr. GORTON. Mr. President, I want to thank and congratulate my friend from Utah not only on his support, but on his eloquence and on his understanding of the values involved in this debate and for his eloquent statement of the case for this bill. I believe that we will have several other opening statements during the course of the afternoon. And my friend and colleague, the primary cosponsor of the bill, the Senator from West Virginia, will be here momentarily. I believe the Senator from Kentucky [Mr. McConnell] wishes to speak. I will make only one brief comment with respect to the position stated by my friend, the Senator from South Carolina, and that has to do with the alleged inconsistency of believing that it is appropriate to delegate some responsibilities on which Congress has done a poor job to the States, while to a certain extent providing for uniform rules with respect to product liability. If the position of the Senator from South Carolina is that it is appropriate to delegate those other responsibilities and inappropriate to federalize these and that had been the position of those who wrote the Constitution of the United States, I suppose we would still be operating under the Articles of Confederation. But, Mr. President, those who did write our Constitution expressly gave to Congress control over interstate commerce. That is an express line, an express section in the Constitution of the United States. It is up to the Congress to determine the degree to which interstate commerce is so implicated in a particular business or profession as to not only authorize but perhaps to require legislation at this level. And it is very difficult, Mr. President, to think of a single field in which interstate commerce is so important as it is in our national economy. It really does not matter in the American system whether or not goods are manufactured in South Carolina and sold in the State of Washington or in the State of Minnesota, or manufactured in the State of Minnesota or Washington and sold in South Carolina. Almost every significant manufacturer sells its goods in every State in the country. As a consequence, the burden of a legal system which encourages litigation in which results are likely to be dramatically different in one State than in another--a fact, incidentally, known to most trial lawyers who see, obviously, the most favorable forums for their litigation--calls for a degree of uniformity. The desire that American industry be more competitive, the desire that American industry spend freely on research, the desire that American industry develop products as a result of that research, the desire for the kind of competition which causes lower prices to consumers is obviously in the national interest. When it has been demonstrated so dramatically that the present system discourages research and development, it causes many manufacturers that abandon particular fields, sometimes totally and sometimes leaving them to monopolies or quasimonopolies. When consumer prices in certain areas are so adversely affected, it is appropriate that we seriously consider whether or not we cannot consistently, with justice, provide for a more uniform system than we have at the present time. Does this bill entirely nationalize it? No, of course not. It would be inappropriate to do so. Does it make it more uniform? Yes, Mr. President, it does. That has no more relevance to whether or not we should continue to maintain a nationalized welfare system or perhaps a myth that it has been a failure and that we need State experimentation. There is no relevance between the two. Each should be judged on its own merits. This should be judged on its own merits. And to say that there are somehow or another seventh amendment of the Constitution implications, again, Mr. President, seems to me to be an equally bizarre argument. Every jury is subject to the law. Every jury is instructed as to what the law is. Juries are instructed on the degree of the burden of proof and the like, and juries determine facts. Nothing, not one line, not one phrase of this bill, deprives any jury of the right to determine matters of fact which come before it. It sets up a framework--we believe a just and balanced framework--for one relatively small but vitally important field of litigation, perhaps the single field of litigation in which interstate commerce is most implicated. It does that, and it does that in a way which does not deny justice or full compensation for any injury subject by reason of the negligence of a manufacturer, Mr. President. There are no caps in this bill on compensation, on compensatory damages of any kind. But it does make somewhat more predictable the course of litigation, somewhat lowers the cost of litigation. And, Mr. President, I suspect that no actual victim is likely to suffer at all. But I am convinced that the transaction costs for lawyers and expert witnesses and the like, which now eat up way more than half of all of the money that goes into the product liability system, that those transactional costs will be significantly lessened by the passage of this bill. Mr. HOLLINGS addressed the Chair.

Mr. GORTON. Mr. President, I understand the distinguished Senator from Utah is here to speak on this bill and I want to allow him to do so. I simply have a mechanical motion to make at this point. Mr. President, I ask unanimous consent that the other sponsors of S. 565 be added as cosponsors to my substitute amendment: Mr. Rockefeller, Mr. McConnell, Mr. Lieberman, Mr. Dodd, Mr. Pressler, Mr. Hatch, Mr. Exon, Mr. Inhofe, Mrs. Hutchison, and Mr. Chafee, and also added as cosponsors of the substitute amendment Mr. Hatfield, Mr. Lugar, and Mr. Frist.

Mr. GORTON. Mr. President, what I have sent to the desk to be treated as the matter before the Senate is the text of S. 565 as it was passed by the Senate Commerce Committee just over 2 weeks ago. H.R. 956 is, of course, the text of the bill which was passed by the House of Representatives. I hope that we will debate the bill and the report that was passed by the Commerce Committee and will use that as our text. It is for that reason that I have offered this substitute. Mr. President, the debate over product liability legislation, which begins here this afternoon, is both important and controversial. It has both of those qualities because it deals with two elements of our life as Americans that are vitally important to everyone. The first of those qualities is the openness of our courts for the redress of grievances to individuals or to groups of individuals by other individuals, groups of individuals, or corporations doing business in the United States. That is a value and a set of rights cherished, of course, by all Americans. desire of the American people for a growing and a prosperous society, for the development and marketing of new goods and services, and for the creation of economic opportunity to our young people, indeed beyond our young people, to all Americans. At its base, of course, the economic prosperity and viability of our country. So, we here in the two Houses of the Congress of the United States are constantly faced with the necessity, in a dynamic economy and a dynamic society, of balancing these goals with other goals in our society. And it is the restoration of that balance, a balance often distorted to one side of the equation, which is the goal both of H.R. 956, a bill on the subject that has already passed the U.S. House of Representatives, and S. 565, which now is before this body. This is far from the first occasion on which we have debated product liability, either on a broad scale or a narrow scale, in the U.S. Senate. At least since 1982, bills on this subject have been before the Commerce Committee of this body and frequently before the Senate itself. Already in the course of this debate, however, at its outset, we have gone farther down the road toward reform than in any Congress since the early 1980's. On some occasions, bills have been recommended by the Commerce Committee but never taken up on this floor. On at least two occasions, including the last Congress, bills have been reported favorably by the Commerce Committee. The following motions to proceed to the debate, however, were debated and in fact debated successfully, under the guise of a quasi-filibuster, and cloture was not attained on the motion to proceed. So never have we been in a position to debate the merits of product liability reform itself or, indeed, to offer amendments to those bills which have been reported by the Senate Commerce Committee. In the last Congress, my friend and colleague from West Virginia, Senator Rockefeller, and I had a bill not dissimilar from this reported from the Commerce Committee by a not dissimilar vote and debated here on the floor for the better part of a week. Before, on two occasions, cloture on the motion to proceed was defeated in spite of having received a substantial majority of the votes of the Members of the Senate. So I know I speak both for the primary sponsor of the bill, the Senator from West Virginia, as well as for myself, in expressing our gratification at the fact that, for the first time in the career of either one of us, we are literally discussing a bill on this subject, and of this importance. The last Congress, however, did succeed in passing a bill which ultimately became law on one narrow element of product liability. The last Congress created a 1-year statute of repose with respect to product liability actions concerning small private aircraft. And I submit that Members of this body should carefully consider the debate on that proposal, which also lasted over the period of several Congresses, the arguments made on either side, and the results of the passage into law of that aircraft statute of repose. It had been the claim of small aircraft manufacturers in the United States that their business had effectively been destroyed by product liability litigation. Several famous manufacturers of small aircraft had literally gone out of business. Others were no longer engaged in the manufacture of such aircraft. And those who stayed in the business had their business very significantly reduced, to the point at which, if my memory serves me correctly, the production of such aircraft in the United States over a 20- or 30-year period had declined by close to 90 percent. The industry, in other words, was almost dead in this country. The opponents of the statute of repose argued, among other things, that litigation had nothing to do with that loss of business. The proponents, including the manufacturers, argued that even this relatively minor relief would result in a substantial recovery of that business. Ultimately, after several Congresses, less than 2 years ago such legislation passed and was signed into law, and already that recovery has begun. Already some of those manufacturers have opened up lines of production, have begun new assembly lines and are back in business. Has litigation against negligence in the manufacture of private aircraft been terminated by that bill? Of course not. All that Congress passed was a simple statute of repose of 18 years. Already, however, we have seen the creation of jobs, the beginning of the renaissance of an industry, and the return of American companies manufacturing in America to a business out of which they had been almost totally driven. Yet, as Members of this body will learn during the course of debate on this legislation, there are many States with no statutes of repose at all. For other products or equipment, we still face the actuality and the possibility of product liability litigation involving equipment and manufactured items manufactured and originally sold in the 19th century, over 100 years ago. So in this case we are attempting, on a broader basis, to restore a balance between the fundamental and undoubted right of people to sue when they have been injured by faulty products and the protection of manufacturers and sellers against unwarranted litigation. We will show how this imbalance has caused perfectly good products had to be withdrawn from the market and caused manufacturers to go out of legitimate and important businesses, businesses important to the people of the United States. In turn, this has discouraged research into many important areas and has discouraged the development of products resulting from that research. So, Mr. President, when Members of this body listen to the kind of doomsday scenarios, threats about the end of justice in our legal system, they may wish to reflect on similar arguments made by many Members of this body less than 2 years ago with respect to the aviation industry, and look at the actual results of such legislation. I believe that there is a carefully balanced proposal equalizing the right to sue with the encouragement of the American economy and a right to be free from frivolous suits and huge legal bills in connection with matters that do not arise out of any degree of negligence, or which are overcompensated. So, Mr. President, I am especially pleased to support the Product Liability Fairness Act of 1995. Legislation carefully crafted to reflect a bipartisan spirit that takes a moderate and sensible approach in reforming the product liability system of United States. What are our goals? Our goals are a system that is fair and efficient; a system that is, to the greatest possible extent, yields predictable results; one that awards damages both proportional to the harm suffered as a result of negligence and in a timely manner, and one which reduces the overwhelmingly wasteful transaction costs associated with the present product liability system. Finally, this is a bill which builds on the genius of those who wrote the Constitution of the United States, those who placed plenary authority in the hands of Congress to regulate interstate commerce. No occupation can be more intimately involved with interstate commerce than the system by which liability is adjudged with respect to the impact of products manufactured, sold and utilized in every one of the 50 States of the United States. (Mr. THOMAS assumed the chair).

Mr. GORTON. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. GORTON

Mr. GORTON. I suggest the absence of a quorum.

Mr. GORTON

Mr. GORTON. Mr. President, I now ask for the second reading.

Mr. GORTON. Mr. President, I inquire of the Chair if H.R. 483 has arrived from the House of Representatives.

Mr. GORTON. I ask for its first reading.

Mr. GORTON

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

Mr. GORTON

Mr. GORTON. Mr. President, I move the Senate go into executive session.

Mr. GORTON

Mr. GORTON. I ask unanimous consent that the Senate immediately proceed to the consideration of Executive Calendar No. 105.

Mr. GORTON

Mr. GORTON. Mr. President, I wish briefly to add my reflections on the accomplishments of this Congress and especially of our colleagues in the House of Representatives during this first 100 days of that historic Congress. The new leadership of the House of Representatives made certain commitments, ambitious commitments to the people of the United States in the course of last year's campaign covering a number of vitally important subjects to the people of the United States. Those commitments were repeated after the election was over. Those commitments have been kept to the letter by our colleagues in the House. I believe that this remarkable record of achievement has created a distinct resonance on the part of the American people whose opinion of Congress, extremely low as recently as 6 months ago, has at least begun to recover. Perhaps more significant in the long run will be the content of the 100 days' promises, dramatic changes in the way in which Congress does its business, a very real attack on the problem of violent crime in our society, a major step families, and for the creation of jobs, toward our national security, and toward legal reform, Mr. President. As each of us knows in this body, on the other hand, no one can safely make 100-day promises. The right of unlimited debate, vital to the liberties of the people of the United States, causes more careful consideration frequently of particular items and often frustration on the part of Members of the Senate and of the country itself. Nevertheless, at least three items in the contract for America have passed this body as well as the House. The announcement I just made on behalf of the majority leader indicates that a portion of the legal reform agenda will be the first item to be discussed by the Senate upon its return, and I would hazard the estimate that before this year is over every one of the items on the Contract With America will have been discussed and voted on in the Senate. We can no more promise than the Speaker of the House can that all will be passed. Each and every one of these items requires at least a degree of bipartisan support in the Senate given the rules of this body. But it is clear that this Congress as a whole has acted more decisively and has created a greater change in course and direction for the country than any Congress literally in decades. Finally, Mr. President, I would be remiss if I did not express my personal pride in the new Members of the House of Represenatives from my own State. My own State has provided more new Members from my party, more freshmen Members than any other State in the United States of America, five men and one woman of great distinction in their previous careers, enthusiastically dedicated to the goals of the contract on which they ran, and major participants, even though they are freshmen Members, in the wonderful successes which the House of Representatives has shown. I am proud to be a part of that delegation and express my great gratitude to them for all they have accomplished in as yet short but highly distinguished congressional careers. Mr. President, I yield the floor

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent that the Senate Judiciary Committee be discharged from further consideration of Senate Joint Resolution 32, the joint resolution by Senators Hatch and Biden, and further that the Senate proceed to its immediate consideration; that the joint resolution and preamble be agreed to, the motion to reconsider be laid upon the table; that any statements relating to the joint resolution be printed at the appropriate place in the Record.

Mr. GORTON

Mr. GORTON. Mr. President, when the Senate completes its business today, I ask unanimous consent that it stand in adjournment, and on Monday April 24, 1995, at 12 noon, following the prayer, the Journal of proceedings be deemed approved to date, no resolutions come over under the rule, the call of the calendar be waived, the morning hour be deemed to have expired, and the time for the two leaders be reserved for their use later in the day; that there then be a period of morning business until 1 p.m., with Senators permitted to speak for up to 5 minutes each.

Mr. GORTON

Mr. GORTON. I ask unanimous consent that the Record remain open until 2 p.m. today for the introduction of bills and statements.

Mr. GORTON

Mr. GORTON. Mr. President, if there is no further business to come before the Senate, I now ask unanimous consent that following my own remarks, the Senate stand in adjournment under the provisions of House Concurrent Resolution 58.

Mr. GORTON

Mr. GORTON. Mr. President, at the hour of 1 p.m., it will be the intention of the majority leader to proceed to the consideration of H.R. 956, the product liability bill. For the further information of all Senators, the Senate will begin the product liability bill at that point but no votes will occur before 3 p.m. on Monday.

Mr. GORTON

Mr. GORTON. I ask unanimous consent that the nomination be confirmed, the motion to reconsider be laid upon the table, and that any statements relating to the nomination appear at the appropriate place in the Record, the President be immediately notified of the Senate's action, and that the Senate return to legislative session.

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. GORTON. Mr. President, I thank you. I thank the Senator from New York. I suggest the absence of a quorum.

Mr. GORTON. Mr. President, I move to reconsider the vote by which the amendment was agreed to.

Mr. GORTON. Mr. President, this is an amendment in behalf of the senior Senator from Alaska, [Mr. Stevens], and it has to do with legislative language relating to environmental impact statements. It is one that has been OK'd by both sides on the Energy Committee, as it does include authorizing legislation.

Mr. GORTON

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