Orrin Hatch

Mr. HATCH

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 Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HATCH. Madam President, I ask unanimous consent that immediately following the distinguished Senator from Connecticut, I be permitted to speak.

Mr. HATCH. Mr. President, I have been interested in this discussion. It has nothing to do with asbestos, but nevertheless an important discussion. I have to say I have taken great interest in the education processes myself. The other side just thinks there is money growing on trees. Frankly, there is never enough money to satisfy them. All of us wish we could do better. I wish every school district in the country would teach music because it softens kids' lives. When I was a young kid, I was born on the wrong side of the tracks. I was a tough little kid. My mother made me learn the piano for 6 months and then made me play the violin, and that made me even tougher, carrying that violin to school. I have to say that softened me and gave me a soft side to what some people think is a fairly tough guy. So I commend my colleagues for wanting to do more. But having Democrats call for more and more spending is a little bit like a glutton who has eaten everything on the table and now wants more. There is no end of the spending that they would do, even if we do have a $1.2 trillion deficit. This President has all he can handle. There is no question about it. I commiserate with him. I also look at the outrageous costs of some aspects of higher education brought into discussion here, what a gravy train it is for some people in many universities, and how tuition has gone up so much to pay for the gravy train. It reminds me of the trial lawyers we have been talking about with respect to asbestos reform. Mr. President, I wish to respond to some criticism some friends across the aisle have made regarding my comments about personal injury lawyers. In particular, I have been criticized for repeating in public on the floor of the Senate what many people are saying in private--that there is a political tie between many of these trial lawyers and many of my friends across the aisle. I don't think it is news that, as a rule, you will find that, all things being equal, most trial lawyers will likely support with their voices, and especially their wallets, the Democratic Presidential nominee and other Democrats across the aisle. They are the largest single hard money donors to the Democrats-- the liberal Democrats. It is hard to find any conservative Democrats, other than one I know of over there. If I offended anybody by repeating in public a widely known dynamic, I guess I should apologize. I also recognize that I am unlikely to be the American Trial Lawyers' man of the year awardee. I am a member of that organization. I know a lot of great trial lawyers who are honest, decent, and do what is right in serving the American people. They know that when they are right, I am on their side. But in this case they are not right--the few who are abusing the laws. Seriously, if in this debate I have sometimes come down too hard on personal injury lawyers, I have done so because I am concerned that what stands in the way of a much needed asbestos bill is the handful of overzealous, greedy personal injury lawyers--just a handful of lawyers in this country. I don't intend to malign personal injury lawyers as a class. I believe personal injury attorneys can serve and, in many cases, have served a vital function for many injured plaintiffs. While I don't always see eye to eye with the personal injury bar, when I think they are right, I don't hesitate to say it and they know it. I had plenty of them thanking me for saying so when they were right during the discussion over the tobacco legislation in 1998. I was impressed with Richard Scruggs, or Dickie Scruggs, in the Castano group of trial lawyers. I think many trial attorneys played a constructive role in reaching a historic compromise with the tobacco industry. I helped them, and they know it. They were right and I backed them. Some in Congress held out for so much money that it was impossible to pass Federal tobacco legislation. The theme of some in Congress holding out for too much money is applicable to the asbestos debate. In any event, the work that a gifted group of trial lawyers did with Mississippi Attorney General Mike Moore deserves a lot of credit. I supported their efforts publicly and even provided my support for reasonable compensation for those attorneys. I am not afraid to speak up for trial attorneys when I think they are right. I irritated people on my side who felt they should not get the compensation that I think they more than earned. Frankly, as a former medical malpractice defense lawyer, I liked nothing more than to go up against the best plaintiffs' attorneys for the pure challenge of competing against the most skilled adversary. As a plaintiffs' lawyer, I liked nothing more than having gone up against the best defense lawyers in the country, having the thrill to be able to compete with them. In many cases, I would win against them. We all have to recognize that the work of personal injury attorneys on asbestos litigation has dated back 30 or more years. Without the hard work of these lawyers, it is unlikely the U.S. would have come so far in responding to the dangers of asbestos. It is the success of the trial attorneys that put us in the position of recommending legislation that calls for a private trust fund to compensate asbestos victims without the need for each one to establish causation. In short, personal injury lawyers have won the case, and they won it long ago. What this legislation is trying to do is sort out who pays and how much, and do so in a fashion that minimizes the transaction costs so that more of the money goes to the injured persons and less of the money gets swallowed up in litigation, and the courts can get unclogged, and so that other fairly brought litigation can be heard. In compensating asbestos victims, we must be mindful not to corrupt more and more firms, which results in more and more job losses, and more and more loss of health care, and losing more and more value in retirement stock portfolios, and more and more loss of pensions. That is what we are trying to do here. All I hear is whining from the other side. We have heard a lot of talk about how much the bill costs and how much it will pay out to victims. We heard talk about who pays, and how much, and whether they are paying enough. If we ever get on the bill, we will hear more talk about these important issues, as we should. I have no problem with that. But they are filibustering even the motion to proceed. My gosh, when are the American people going to understand what is going on? They have filibustered virtually everything that has come up this year. It is going to take a supermajority to pass the simplist of bills the way they have been carrying on. It boggles my mind. But that is what is at stake in tomorrow's cloture vote. Will we vote for cloture so we can talk about the issues on the bill itself? I hope we will proceed to the bill. But it shows the politics that are being played. For my friends on the other side to come on the floor and say this bill doesn't do enough, after we have given and given and given in to their suggestions time after time, or to say it is not procedurally proper or not written right, after 15 months of dedicated, hard effort--I have to say by a few Democrats, and by many on our side--it goes beyond the pale. It is true that I have irritated some personal injury lawyers in some of my remarks. The ones I am talking about deserve irritation. I don't believe they are honest. I believe they are exploiting a system and taking moneys that should go to people who are sick. What I am about to say may further irritate them and some of those across the aisle. I have some important questions to raise with respect to attorneys' fees. Frankly, the issue of attorneys' fees is a key issue because it is critical in determining how much of the funds will actually end up in the pockets of the injured people. As I have said, today about 60 percent of the funds wither away to lawyers on both sides of these cases. You can expect that about one-third of any recovery will go to the plaintiffs' attorneys. In a no-fault, nonadversarial compensation system, there should be no place for the routine attorneys' fee level of one-third of the recovery. Accordingly, in our bill, we employ the same fee schedule used by the Radiation Exposure Compensation Act, or RECA. In the RECA law--a bill I wrote and passed through this body a number of times--the lawyers' cut is 2 percent of the recovery in noncontested cases, and 10 percent for complicated cases. These cases are like rolling off a log if this is passed. Lawyers do not deserve 60 percent in defendant and plaintiff attorneys' fees, in addition to the transaction clause. The fee schedule results in the lion's share going to the injured persons and their families. This is the way it should be in the radiation exposure cases involving downwinders of nuclear tests, and this is the way it should be for asbestos victims. This is what is in our bill. It is a long settled way of solving these problems and a reasonable way that pays the attorneys what they should be paid--actually more, in many instances--but it stops the gravy train that is ripping off the sick and needy who have suffered from asbestos. What is unknown is what our friends believe to be a fair level of compensation for personal injury lawyers in this new no-fault system. I ask today for our colleagues to come to the floor and tell us if they support or oppose our proposed attorneys' fees levels, if they believe our 2 percent for uncontested cases that are like rolling off a log, and 10 percent for those who might have some small contest, and they will still be like rolling off a log compared to litigation in trial. If this provision is not proper, please tell us how they would do it. We have not had the slightest suggestion from them. If they believe it is still appropriate to retain attorneys' fees of 33 percent to 40 percent or higher, please explain why this is fair or necessary in a no-fault, nonadversarial system that this bill would make into reality. In the spirit of good faith, we agreed to move the program into the labor-friendly Department of Labor. The Secretary of Labor does not favor this. The White House does not favor this. I, frankly, do not favor this. I am afraid that will run the program into the ground because the Labor Department has been controlled by liberal bureaucrats for many years. But we are willing, in the interest of getting this done, in the interest of helping these people, to even do that. Running a program to compensate workers out of the Department of Labor may be somewhat akin to voluntarily playing the Celtics in the Boston Garden. We made a genuine concession on the administrative process, as our colleagues know. We have repeatedly asked them to recognize it is appropriate for them to act in a spirit of genuine compromise with respect to attorneys' fees. Let's face it, numbers are flying around in this debate. One way that the difference between our respective proposed level of total claims can be bridged is to reach agreement on the appropriate level of compensation for attorneys' fees. But we cannot even get them to talk about that. Even if we could, we could not talk about it because we are on a filibuster on the motion to even proceed to the bill. Once we go to the bill, we would have a filibuster on that, if we can ever get to that point, but at least we would be able to be on the bill. We believe the RECA, the Radiation Exposure Compensation Act, exposure level of 2 percent of noncontested cases and 10 percent for contested cases is both fair and reasonable because both cases will be easy for the plaintiffs or those who claim to be sick to get compensation if they are sick. What do our friends across the aisle think about this? What are they proposing on this important issue? I ask they be specific so we and other interested parties can evaluate their position on this essential question. We have only been negotiating with them for 15 solid months, and we still do not have their suggestions. Yet they are saying: Oh, this is just too premature. That is after many of them said last year we should have gotten this bill done before the end of last year's session. When is it going to end? When is this kind of phoniness going to end? A great deal of the difference in the compensation levels, in each of our respective levels of total compensation, in our bill it is $114 billion plus a $10 billion set of contingency funds, and in one widely cited Democratic claim values amendment $167 billion can be bridged by factoring in the share that can go to personal injury attorneys. I do not want to cut them out from reasonable fees, but I do think $60 billion is unreasonable because that money comes out of the hides of the sick people. No wonder attorneys in this country are so looked down upon, especially personal injury lawyers. I happen to know about 90 percent of the ATL people are sick of this and sick of this 10 percent who are running wild taking advantage of the whole system and basically destroying the right of individual sick people to get adequate compensation. This bill would take care of that problem. If the Democrats are advocating that the customary one-third of the award can go to the lawyers, then we are not that far apart as to how much money should go to injured workers and families. We should work together to see if we can agree on a reasonable level of compensation for these attorneys. I call them the Fred Barrons of this world and other personal injury lawyers who are bringing these suits in selected favored jurisdictions so they can get easier verdicts. I challenge them to come in and tell us what would be a reasonable level of attorneys' fees, and let's quit playing the game. This is a no-fault, nonadversarial system that does not justify the type of attorneys' fees that have been ripping off the public, especially the sick, the weak, the feeble, and the injured the way the current broken tort system is. I have no doubt that public discussion of this issue may bring great consternation among the ranks of some of my Democratic friends due to their close relationships with many in the trial attorney bar. But if we are ever going to have a meaningful no- fault trust fund asbestos bill, we are not going to be able to guarantee and should not be asked to guarantee the usual one-third to 40 percent of the take going to the plaintiffs' trial lawyers regime. One-third or more going to the lawyers is simply too much, especially in a no-fault, nonadversarial system. The unions should recognize this, and the public should recognize this, but most of all these lawyers ought to recognize this and quit ripping off the sick and the downtrodden and those who really deserve these moneys. The silence of my friends across the aisle on this issue, both in private and public talks, is deafening. When we did the RECA bill, I was chairman of the Labor Committee. I fought that bill through for years until we finally were able to get it done. All these people are asking for more money for education, more money for all the social programs, more money for this, more money for that, and they were the ones who were giving us a rough time. Finally, after I was reelected, they then realized we better get on the ball and do something about this. That is how the radiation exposure compensation law, which is now followed by countries all over the world because of what we did, is now law, compensating people, not very much for the suffering they went through, nothing like we are going to compensate from the private sector, no way near what we are going to compensate here. The silence of my friends on the other side of the aisle, both in private and public talks, is deafening. I heard some of my colleagues, who I respect, come on this floor with a straight face and say this is not the right way to do it, although last year it was. They were talking about this administrative approach is the right way to do it. Why isn't it the right way to do it during a Presidential election year? I ask the people out there watching and listening, why is it they suddenly think this is not the right way to do it when we put up even more money before, giving in on at least 53 different amendments, have moved this into an administrative process in the Department of Labor that many on our side question? Why is it that they are still balking at this in this Presidential election year? I think there is only one conclusion most people are drawing, and I hate to see that. I hate to see that. If they do not like this bill, they should offer a substitute amendment. Let's have it out. Maybe they will win. Maybe these 8,400 companies and 16 insurance companies will get clobbered even worse so they can barely survive, and some are still going to go into bankruptcy. They certainly will if some of these people with their outrageous demands get their way. It is time to stop talking generalities and start voting on specific amendments. I want next to make a few remarks about the process that has been observed to date and why I will be very disappointed if we are not allowed to proceed to the bill tomorrow after the cloture vote. Just think about it; they are filibustering the motion to proceed. They could have easily given in just like that and said, No, let's go to the bill, and we will filibuster the bill. That would be the straight up way of doing it. But to filibuster the motion to proceed means they must be beholden to somebody to pull that kind of a procedural mechanism. That does not happen very often, and it should not be happening here. Frankly, that we are being forced to vote cloture is disturbing to me and should be disturbing to everyone, although I do recognize if cloture is not invoked, it would be pleasing to these few trial attorneys who are milking this system dry at the expense of those who are sick and afflicted and downtrodden. They will not have to see if their customary one-third or 40 percent of representation in the asbestos claims in the new no-fault system can be justified on the floor of the Senate. That is just matter of fact and people need to know it. That is why I am here on the Senate floor. I rise today in response, again, to complaints that I have been hearing from some Members on the other side of the aisle about being rushed to consider a national solution to this asbestos mess. As many of my colleagues know, the asbestos litigation crisis is not new to this body. We have been talking about the problem for the better part of a decade, but now that we find ourselves on the verge of considering a proposed solution, I am puzzled to hear that the process has somehow been unfair, that we are not acting as ``proper legislators'' for bringing this bill to the floor under the current circumstances. I think anybody with brains would find these complaints devoid of any merit whatsoever, especially when viewed against the legislative history of this asbestos bill. While we have tried to build consensus over the past 15 months, thousands of asbestos victims have gone uncompensated or left with only pennies on the dollars they deserve. Veterans and people like those in Libby, MT, are left with no one to sue. More than 70 companies have gone bankrupt and dozens more will soon follow. Since we started working on this legislation, 60,000 jobs have been already lost at a cost of more than $2.2 billion in lost wages alone. Let me repeat these numbers so they can sink in. Sixty thousand jobs have been already lost at a cost of more than $2.2 billion in lost wages alone, and sadly another 400,000 jobs will soon be lost. Yet we still talk. There are compelling calls for action. There are empathetic expressions of compassion for victims. There are meetings and letters, promises of solutions to come and proposals to be made, and yet for all of this ocean of good intentions we are all still stuck. Frankly, much of the current asbestos litigation is all too reminiscent of the mythical Jarndyce case from the Charles Dickens ``Bleak House.'' As my colleagues will recall, this was a case in which most of the estate was swallowed up by lawyers' fees and court costs. One has to ask how and why we got to this point. In September 2002, when Senator Leahy chaired the Judiciary Committee, he held a hearing on the asbestos litigation crisis. I commend Senator Leahy for his efforts. The hearing was balanced. It was instructive, providing valuable evidence of the dire circumstances for asbestos victims, employees, companies, and insurance carriers. The judicial system and the American economy at this national embarrassment was left intact. That was a year and a half ago. When I became chairman of the committee 4 months later, I immediately made it clear that I wanted to build on that record, draft a bipartisan legislative solution and pass it. Almost immediately, concerns were raised, warnings were issued: You are moving too fast, some said. The issue is not ripe, others advised. You better get it right, others still warned. Two months later, on March 5, 2003, I chaired another hearing. Some of the same witnesses from before appeared again and the testimony made it abundantly clear that while the problem had gotten worse, there was bipartisan interest in the idea of creating a national trust fund. We heard solutions from a variety of perspectives--from academia, from business, from the unions, and from trial bar experts. I made clear I would incorporate any constructive proposals offered. I wanted a bill that would work. I wanted it to be a bipartisan bill. As a result of hearing the magnitude of the asbestos problem, we worked toward drafting a bill that would create a national privately financed no-fault compensation fund for asbestos victims. As word spread about our efforts, warning flags were raised. Some in the minority on the other side of the aisle urged us to move slowly, not to rush; more time was needed; more talk was needed. We finished drafting the bill and we shared it with others, both in the Senate and among interested shareholders. There was real interest and we were given several good ideas and suggestions. Unfortunately, for the first time the minority's caution chorus took voice: We're being rushed; we're being jammed. This is the minority's caution chorus of worrisome lions. This is what we have been going through now for 15 solid months: Do not rush us; do not do this; do not do that; we must be cautious. We were rushing them, we were jamming them; according to them; I was acting unfairly. All this drama was over a bill that I had not even introduced. I had listened for hours and hours, worked with my colleagues on both sides of the aisle for days, weeks, and months. They asked that I delay introduction. They asked that I delay introduction so they could have more time to study the issue and my proposal, which I did. We had more meetings, more talk. I incorporated several of their ideas into the bill and asked if they would cosponsor it. Now I am pleased that a few did. I am forever grateful to those on the Democratic side who did. There were two who did--two, after all this work. Fifteen months later, we are down to one. More said that it was not the right time. They were upset with the way I had shared my draft legislation. On May 22, 2003, Senators Nelson, Miller, DeWine, Voinovich, Allen, Chambliss, Hagel, and I introduced S. 1125, the FAIR Act. The minority's caution chorus sang again. These miserable, cowardly lions sang again. They were being rushed. They were being jammed. In truth, I introduced the bill 78 days after my hearing, 20 weeks after the beginning of the session, 6 months after the hearing of 2002. This was clearly no sprint. On June 19, I held the first markup. Again, the minority caution chorus took over again and took voice. The issue was still too complex. The bill was too complicated. We were not doing it right. They were being rushed. They were being jammed. They asked for more time, and they were given it. Unlike ever before, the committee's markup of the legislation was spread over 3 weeks, 3 solid weeks. We spent 4 separate days--not many bills take 4 days to mark up--considering changes, often working late into the night. We invited experts to sit with us as we worked through complicated medical issues. This was no sprint, no rush to judgment. There was no mad dash. Interestingly, when there was engagement from the other side, agreements were reached. In fact, the committee was able to resolve what at the time was supposed to be the biggest impediment to reaching a consensus, an issue so fraught with partisan disagreement that it could never be resolved. In the end, we accommodated scores of concerns raised by the minority and found a common ground on medical criteria that everybody, Democrats and Republicans, agreed to. It was a major victory. This bipartisan accord was achieved and the committee adopted it unanimously. This was one of the most ideologically divided committees in the Senate, some say the toughest committee in the Senate with those who are the most ideologically challenged, I should say, and I cannot disagree with that. The next impossible hurdle was claims values. Again, I was told there was no way a group so divisive, so argumentative, so plainly disagreeable as the Judiciary Committee could reach an agreement on how much to pay victims. Now, despite the dire predictions, a bipartisan agreement was reached again. The committee adopted the Graham-Feinstein amendment on claims values by the whopping bipartisan vote of 14 to 3. Now I just want to mention to my colleagues on the other side that every one of the Democrats voted for that. Three of our Republicans thought it was too much money and they voted against it, and they may not have been wrong. The only problem is that we are way beyond that money today. I might add that all of these negative votes were cast by Republicans who thought some values were too high. As my colleagues know, we are more moderate to conservative over here, and I cannot blame them for raising those issues. On July 10, 2003, despite the constant wailing from the minority's caution chorus again, we reported the bill out of committee by a vote of 10 yeas and 8 nays and 1 abstention. We all knew more work had to be done before the legislation could be brought to the floor. We also knew there would be no bill unless there was a willingness on both sides to pass a solution to move towards the middle. As summer turned to fall, there were sporadic attempts at additional negotiations involving committee staff, as well as among the leadership. Minor matters were resolved, but there was no evidence on the part of the minority's leadership of any real interest to engage in the kind of meaningful effort needed to finalize a bill. Individual members of the minority were very public about their interest in legislating, but those purportedly tasked with the negotiations did not possess the same zeal. We have heard, for my whole 28 years, how much more concerned the other side is about people and their problems. Well, it does not take much to figure out their concern here is more about the trial lawyers and the personal injury lawyers who are involved, because they are sure not working hard, in my eyes, or I think anybody else who looks at it objectively, to find a way of helping those who are truly injured and hurt. Now, while these efforts were making little progress, work was underway on another front beginning in August. Senator Specter began an intriguing, arduous mediation among the major stakeholders. That means the victims, the alleged victims, the trial attorneys, the personal injury lawyers, the insurance companies, the companies that have been sued, and companies that are about to be sued. He took on this job. I give him a lot of credit for it. He convinced Judge Edward Becker, former Chief Judge of the Third Federal Circuit Court of Appeals, to play a lead role as a negotiator, as a mediator, for which Judge Becker is eminently qualified. He and the judge forced the parties to spend dozens and dozens of hours together. We were there, so we do know. We spent hours and hours, days, weeks, and months, arguing the positions and searching for a common ground. Senator Specter and Judge Becker should be commended for their Herculean efforts to keep the parties talking and, despite the objections of the representatives and the personal injury lawyers, there was progress--slow, incremental, but progress. The unions played a significant role. They were there virtually all the time. However, we have never been able to satisfy them, even though their workers are the ones who are going to be hurt the most if this bill doesn't pass. They are the ones who are not going to get compensated because the moneys are being sopped up by personal injury lawyers and people who are not sick because these personal injury lawyers are going to jurisdictions that basically are out of whack, that really will not look at these things in a reasonable way and who basically find for whoever brings the case and find in huge amounts for people who are not even sick in many cases. I compliment Senator Specter and Judge Becker. There has been some slow progress during that period of time. During the fall, Senator Frist and I spent considerable time working with those who would be paying for the fund to ensure its solvency. It was imperative that the bill establish a steady and sufficient flow of moneys without allowing the fund itself to perpetuate the same kind of economic disasters caused by the tort system as a whole and by the tort system with regard to this type of case. By the end of October, these issues had been completed and there was a renewed attempt to begin negotiations with those on the other side of the aisle, but every time an overture was made, the caution chorus was being rolled out: We are being rushed. We are being jammed. Every time it was rolled out by the other side of the aisle. There was always some reservation; Things were moving too fast; There were other more important issues; They hadn't been asked the right way; They were being rushed; They were being jammed. The reasons changed but the result was always the same--no real negotiations. In fact, to this day we do not have a substitute or an offer by those who are complaining on the other side--to this day. We don't even have a monetary amount other than they have thrown out $170 billion, which everybody knows cannot be the number. During my tenure in this body, I worked with my colleagues in the minority on a number of issues, on landmark drug legislation, the Hatch-Waxman Act, which gave life to the generic drug industry and saved consumers and our Government tens of billions of dollars since 1984. I worked with minority Members on children's health insurance, on childcare, on tax reform, job training. I have worked with them on issues involving crime, on legal reform, and a whole raft of other issues. The Members of the minority are excellent legislators and skilled negotiators. They have insightful and creative staffs. I have worked with them when they wanted to pass a bill, and I know what it is like when they want to pass a bill. I have worked with them when they do not, and I know what it is like when they do not. I am telling you this is a time when they just don't seem to want to, because there has been plenty of opportunity to resolve this matter. It is not hard to tell the difference. When there is a genuine interest in legislating, one of two things happens. A member of the minority leadership comes on at the outset and his or her presence and commitment helps to generate sufficient pressure on both sides to move legislation. The second way, the minority offers their own version of the bill enabling both sides to sit down and work through the differences and craft a compromise. Here there was no move by the minority's leadership and there was never, despite repeated and frequent requests, any interest by the minority in introducing their own solution. Instead, they chose to spend their time finding fault with our legislation and complaining about our process. Another concentrated effort to move the bill was made in November, last year, and not surprisingly the caution chorus came out and began singing its song again: We are being rushed; we are being jammed, even though there were a number of Democrats who stood up and said they had to get this done before the end of this year. Where are the real Democrats? That is what I would like to know. The pressure continued, however. Interested stakeholders would not take no for an answer. Hints were made about bringing the bill to the floor, even if it resulted in a filibuster. Suddenly the message changed. Now we were told the minority's leadership wanted to find a resolution, that there was bipartisan interest in passing a solution. It was implied if we would just postpone consideration to early next year, there would be ample time to finish work on this bill. The majority leader agreed and on November 22, 2003, he announced he would not bring up the asbestos bill prior to the end of the session. Instead, he would give the parties additional time to complete their negotiations. But he made clear his intention of bringing the bill to the floor this year. His announcement was well received by the other side. I remember. As this year began, it was clear from the outset that, despite the promises of November, little had changed; there were no real breakthroughs. So, in February, the majority leader announced his intention to bring the bill to the floor the third week of April. But yet again the caution chorus rolled out its usual objections: The issue was too complex; the legislation was too complicated; they were being rushed; they were being jammed. Indeed, we even offered to engage in protracted negotiating sessions, but again the Democrats demurred. In February, my staff sent an e-mail to Democratic staffers proposing a multiday negotiation to seek a resolution of the issue. It contains an offer to meet during all-day sessions, ``during recess weekends, or weekends during session.'' The response from the minority was unambiguous: Don't rush us. Don't rush us. Senator Specter, to his credit, kept pushing forward and, as a result of his efforts, the stakeholders reached agreement on what was supposed to be another impossible hurdle, the administrative structure, which I mentioned earlier. The proposal was not to our liking. It would require a fundamental change in our position, allowing the fund to be run out of the Department of Labor, but because organized labor signaled its strong support for this change and because we wanted to reach consensus on other critical issues remaining on the bill, we agreed and we agreed despite the objections from many on our side of the aisle and in spite of the objections from the White House. The minority, instead of accepting this concession, instead of endorsing this considerable victory for organized labor, made it clear that this significant agreement meant nothing more than a chance to bank an advantage. They offered no alternative. They revealed no new proposal or compromise. In fact, it is reminiscent of the style of negotiation that says: What is mine is mine; what is yours is negotiable. Nonetheless, additional proposals were made but there was no counteroffer, none of the typical give and take that is the hallmark of serious negotiations in this most important legislative body in the world. It was like trying to play tennis with a curtain. There is never any meaningful discussion of what the payers, the ones who have to pay these bills, most desire and, frankly, they deserve: a fair and predictable payment schedule. Whatever we do is going to be tough on the payers here. This bill is plenty tough on the payers. Don't think they are not squealing; they are. It was now obvious even to the most optimistic Member of this Chamber that it would be impossible to bring a consensus bill to the floor, one supported by the leadership of both parties. We are hearing Senator Leahy has at last put together an alternative proposal on this national trust fund. Has it been introduced? Have we even seen it? Of course not. The only choice left was to bring a bill to the floor and hope enough Members of the minority thought the issue was of sufficient importance, as they have repeatedly said, to allow the Senate to consider this bill. To help facilitate discussion, I introduced, with Senator Frist and Senator Miller from the other side of the aisle, S. 2290, a second version of the bill which incorporated many significant changes that have been made since the legislation was first introduced and first reported from the committee. That is the legislation before us today. It contains the bipartisan agreement on medical criteria. It contains the agreement reached by the stakeholders on the revised administrative structure and numerous other changes adopted during the Specter negotiations that have all been to try to get the Democrats to move on this bill. It contains the handful of changes agreed to by both sides since the bill was reported out of committee. It also contains higher claims values passed by an overwhelming bipartisan vote of committee and incorporates yet another monumental change and another fundamental concession to address the complaints by the minority. We have included provisions in the bill to make clear that the risk of insolvency will not be borne by the asbestos victims; it will fall on the defendant companies and their carriers. If there are insufficient moneys, the fund will terminate and parties will return to the tort system--to Federal courts. There is no point in sending it back to the State jurisdictions that created the asbestos crisis in the first place. Here we are today. The time has come to act. The day of decision has arrived. Unfortunately, to no one's surprise, the caution choir is on its feet again, or somewhat on its feet, I guess I should say: They need more time; the issues are too complex; the bill is too long; they weren't consulted the right way; they were being rushed; they are being jammed. I was told by many at the beginning of last year that when I embarked on this legislation the Democrats would simply run out the clock. They will never let us vote on a bill that could deprive them of their huge cash cow. First, Democrats would push into the election year, they said. Then they would filibuster a motion to proceed. That is exactly what has happened so far in their zeal to make sure that their hard money donors get their way at least this year--an election year. It is not too late to change that. Let me just say that the caution chorus is sounding like a broken record that needs to be shut off. It has been 333 days since S. 1125 was introduced. A hundred years ago, it took Christopher Columbus only 222 days to discover the new world and return to Spain--one of the most remarkable discoveries in the history of the world. It took Neil Armstrong only 8 days to travel to the Moon and back. Our forefathers were able to write the U.S. Constitution in only 4 months. But somehow there hasn't been enough time for the minority to help write this bill although they have had a lot of say and have had a lot of concession. We have tried to do everything to bring them to the table and get things done. Here we find ourselves in a filibuster on the motion to proceed. This caution chorus of cowardly lions reminds me of what is going on. Of course, there was one big difference. In those historical examples, the players actually wanted to finish. They actually wanted to discover an America. They actually wanted to go to the Moon. Over these 333 days, we have had numerous congressional recesses and holidays. Just look at this. Over 333 days, and we are now under a filibuster. That comes from the Spanish word ``filibustero,'' meaning pirating or hijacking. It is just one more obstruction. We have had nothing but obstruction since George Bush has become President of the United States--over and over. There have been very few bills passed, and the ones that have passed have had to overcome the obstructionism. My goodness. There are some Democrats who have been willing to overcome obstruction, but on this one, it has not been brought to conclusion. We have had one entire summer, the fall, winter, and we are quickly working our way through spring. How much more time is needed to sit down and get this matter resolved? The time has come for the minority to stand up and be counted. If they are genuinely troubled by our proposal and all the agreements we have reached with them, they have an obligation--indeed a responsibility--to offer their own solution. The challenge is on them. Introduce a bill. Make sure it strikes the same balance demanded of us. Make sure it is fair in the way we have tried to make it fair. Make sure it provides adequate moneys for asbestos victims. Make sure it provides compensation quickly, efficiently, and fairly. Make sure it does not reward the unimpaired, those who aren't sick. Make sure it is not hijacked and turned into a smokers' compensation fund. Make sure it does not bankrupt more companies and throw hundreds of thousands of Americans out of work and out of their health plans, their pensions, or wipe out their lives financially. That is what is going to happen. For the life of me, I can't understand why many in the trade union movement aren't jumping on this bill in every way they possibly can because their employees are the ones who are getting hurt. They will never get the money we have in this bill if we don't pass a bill. Make sure it doesn't stick the Federal Government with a bill at end of the day. Now you on the other side of the aisle have claimed that the asbestos crisis must be fixed. You have all agreed there is a crisis in our country. You have conceded that the tort system is broken, that we have a historic opportunity to act. The end is within reach, and we must grasp it. But here we are. I think the time has come to act, to make good on the promises which have been made on the other side of the aisle, to demonstrate the leadership and responsibility our Nation demands when we are asked to do our job to fix a national crisis. It is time to move past our alleged mistakes and complaints about perceived procedural insensitivities. It is time for the caution choir, which we have been looking at here today, to quit singing ``We are being rushed; We are being jammed.'' It is time for the real interests to take a stand and to do what is right. It is getting late in the day to appoint another committee and schedule more meetings and talk. It really bothers me that they are filibustering the motion to proceed, which has only been used on rare occasions before the last few years, before the obstructions that have been occurring on a regular basis. People in the past were willing to debate these bills and were willing to try to amend them if they didn't like them, willing to be legislators and not obstructionists, willing to do what is right for the American people. We have now been on this bill 15 solid months and we still have not seen, other than demands during negotiations, what our friends on the other side must have to resolve this problem, which in many respects is the most dangerous problem hanging over America today, especially for employees, especially for union members, especially for those who want health care and who want their pensions to be saved, especially for 8,400 companies on the one hand, and maybe more if these voracious personal injury lawyers continue to conjoin people who really have had nothing to do with asbestos but have been conjoined in these actions where they are stuck with humongous defense costs and attorneys' fees themselves, so the moneys that would go to the sick and the needy, those who really need it, go down the drain of legal fees, clogging our courts so that other legitimate cases can't be brought. Again, I will return to that message. Why is it that we are going through this type of chorus charade? Why is it that we haven't had more cooperation? Why is it that we can't get them to come up with what is needed to resolve this morass? Why is it during this election year? All I can do is ask the question. I think anybody observing knows what the answers are. At least that is what has been alleged to me. That is what has been suggested. I hope it is not true. I yield the floor.

Mr. HATCH. I thank my colleague for his kind remarks. I appreciate the hard work the Senator and others have put in on this side. There are some on the other side who have worked hard. Particularly, I express my gratitude to Senator Miller, Senator Nelson, and Senator Feinstein. I understand Senators Nelson and Feinstein are probably going to vote against cloture. I don't know. I cannot speak for them. I hope not. They are two who have tried to work with us on this bill. If that is laid down, I don't know where we will go. I am afraid an awful lot of people will be left high and dry while these trial lawyers, the personal injury lawyers, walk off with $60 billion in fees and costs that could go to people who are sick. I don't begrudge attorneys the fees they earn. We have more than made a case that the system is broken. There are a certain limited number of personal injury lawyers who are taking advantage of the system and doing it in ways that are reprehensible.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on Wednesday, April 21, 2004, at 2 p.m. to conduct a hearing on the nominations of the Honorable Romolo A. (Roy) Bernardi, of New York, to be Deputy Secretary of Housing and Urban Development; Mr. Dennis C. Shea, of Virginia, to be Assistant Secretary for Policy Development and Research, Department of Housing and Urban Development; and Ms. Cathy M. MacFarlane, of Virginia, to be Assistant Secretary for Public Affairs, Department of Housing and Urban Development.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Wednesday, April 21, 2004 at 9:30 a.m. to hold a hearing on Iraq Transition: Civil War on Civil Society (II).

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet on Wednesday, April 21, 2004, at 9:30 a.m. in Room 106 of the Dirksen Senate Office Building to conduct a business meting on S. 344, a bill expressing the policy of the United States regarding the United States' Relationship with Native Hawaiians and to provide a process for the recognition by the United States of Native Hawaiian governing entity, and for other purposes; and S. 1721, a bill to amend the Indian Land Consolidation Act to improve provisions relating to probate of trust and restricted land, and for other purposes, to be followed immediately by a hearing on S. 297, the Federal Acknowledgement Process Reform Act of 2003.

Mr. HATCH. Mr. President, I ask unanimous consent that the Joint Economic Committee be authorized to conduct a hearing in Room 216 of the Hart Senate Office Building, Wednesday, April 21, from 10 a.m. to 1 p.m.

Mr. HATCH. Mr. President, I ask unanimous consent that the Subcommittee on Forests and Public Lands of the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Wednesday, April 21, at 2:30 p.m. in room SD-366. The purpose of the hearings is to receive testimony on implementation of the recreation fee demonstration program by the Forest Service and Bureau of Land Management, and on policies related to the program.

Mr. HATCH

Mr. HATCH. Did the distinguished Senator from Delaware have a desire to speak?

Mr. HATCH. I ask I be given the privilege of speaking thereafter.

Mr. HATCH. Mr. President, I thank my colleague. However, I am not as sure we are going to get this done as he is. I have to say, we have been working on this for 15 months. We have met innumerable times with our friends on the other side. We have met with every party involved here. I have tried to do everything I possibly can to bring everybody together. This is mired in politics. There is no question about it. We are talking about a motion to proceed. How often in the Senate have we had a filibuster against a motion to proceed to a bill, when you can filibuster the bill, too? So you would have two filibusters on this bill, assuming we were to invoke cloture on a motion to proceed. It shows the lengths to which some will go in an election year to play partisan politics. Look, we have done everything in our power to accommodate Democrats. We have made so many changes to accommodate the Democrats on this that I have gotten excoriated by the Wall Street Journal and others who I do not think have looked at these negotiations or understand what is going on. Keep in mind, there are 8,400 companies that would like to resolve this problem, many of which are going to go into bankruptcy. Seventy have already gone into bankruptcy. Those jobs are lost. Those pensions are lost. The money we could have here to help settle this is lost. Those were the main companies that handled asbestos. The remaining companies are those that have some peripheral experience with asbestos but really did not do the wrongs. But under this system, which is out of whack according to the Supreme Court of the United States of America, and any reasonable person who looks at it, we have unjust litigation going on all over this country for people who are not even sick. A high percentage of the cases brought are for people who have never had a sick day in their lives--certainly not from asbestos. It is another scam, in many respects. Not all of them; some of these cases are valid. That is why we want to come up with $114 billion, that we have had to force the companies to come up with, to try to solve these problems. This has not been easy, and it has not been fun for me or anybody else in this process. The fact of the matter is, there is a high percentage of these lawsuits that are unjustified that are costing us an arm and a leg. Let's be honest about it, 60 percent of all the money we are talking about here--assuming we cannot get this bill passed-- will go for attorneys' fees and transaction costs, not to the people who need help. Mesothelioma victims are getting 5 cents on the dollar, if that, about $17,000 for an absolute cancer that has destroyed their lives and has caused them death. I do have some comments to make about the comments my good friend, the distinguished minority leader, made this morning. I would like to make some comments with regard to Senator Daschle's statements this morning. He stated a lung cancer victim with 15 years of exposure would receive only $25,000 in compensation. That is painting a very incomplete picture, which I would like to finish. If we are going to paint the picture, let's paint the whole picture. First, that picture is the bottom range of compensation. Under the claims values in the FAIR Act we have come up with, claimants who were exposed to asbestos and still smoking will receive between $25,000 to $75,000 in compensation. And for the record, Senators Leahy and Kennedy have stated they want $50,000 for claimants falling into this category. But it is between $25,000 and $75,000. Mr. President, I have come here to discuss the FAIR Act. We have a chance to help those who have suffered from asbestos-related injuries for far too long. Many people have spent months getting us to this point. I want to assure we have a complete picture of the bill for the record. We owe at least that much to the victims. By the way, these are people who do not have any markers, do not have any evidence through X-rays or any other reason to show asbestos has caused their cancer. Yet we are willing to give $25,000 to $75,000 to them. If they get mesothelioma, they have a right to go and get the million dollars under the schedule we have agreed to in the Judiciary Committee. It does not stop them from getting fair compensation. But it certainly is a misrepresentation to say they are only getting $25,000. These are heavy-duty smokers. Almost everybody knows their cancers come from smoking, but we bent over backwards to give consideration that possibly there may be some connection to asbestos, even though there is no evidence. Senator Sarbanes, the distinguished Senator from Maryland, stated we, and I quote, ``sprung'' the bill on the Democratic Senators and their staff. Come on. Senator Daschle called attention to the total fund value. I want to state for the record Senator Daschle's staff was informed of the new numbers last October. That was 6 months ago. Since October, there have been repeated and continuing discussions of these numbers over the ensuing months, and we had many months of discussion prior to that. We have been on this for 15 solid months on a daily basis, and we have worked with Democrats on the other side. We have worked with everybody involved, including the personal injury lawyers who do not want to lose this bird in the cage. Now we repeatedly asked the Democrats for a response to the numbers. Repeatedly we have asked. We have received none. We repeatedly asked the Democrats for a legislative proposal they would like to make, a concept of a structure, something, anything. We have received nothing. As Senator Daschle knows, this so-called new bill we allegedly ``sprung'' on him includes the very numbers we released months ago, the changes demanded by the Democrats and the changes demanded by the unions. We have all kinds of changes we have made for these parties in this matter. This is not some little sprung deal. The Democrats have had every right to participate in these processes, and some have. Some have been kept from these processes by their own party members. I would like to respond to a few of the statements made by my colleague from South Dakota, Senator Daschle, earlier this morning regarding S. 2290, the Fairness in Asbestos Injury Resolution Act of 2004. If I recall it correctly--and I was watching as Senator Daschle stated there was no reversion to the tort system should the moneys not be there--and the moneys are there. Virtually everybody who has effectively studied this says this amount of money we have in this bill will take care of the problem. In fact, though, there is a reversion to the tort system should it not. Should the fund become insolvent, then claimants with asbestos injuries who have not received compensation under the fund may pursue their claims in the courts at that time. So that statement there is no reversion is simply wrong. Again, we have worked closely with our colleagues on the other side. That was their idea, and we accepted it. Naturally one of the problems in this matter is some of these personal injury lawyers, who really know better, have been forum shopping to special jurisdictions that are out of whack that literally do not care what the law says and literally do not care about justice or doing what is right. Some say--I hope this is not true--but some say they are bought and paid for by the personal injury lawyers in their respective jurisdictions. There are at least four or five jurisdictions in this country where you can go in and get whopping verdicts for no injuries, like one verdict in one of these counties in one of these preferred jurisdictions by, I think, dishonest personal injury lawyers, or at least those who are exploiting the system, where there was $150 million granted for five plaintiffs, not one of whom had been sick a day from asbestos. That money is not going to those who really are sick, which this bill does. Even the Supreme Court has said this system is broken. I am not against further negotiations. We are happy to do it. That is one reason why this bill is on the floor right now, because we are going to have a vote on this. It might be a cloture vote on a motion to proceed, of all things, but at least we are going to have a vote so people know where some of these folks stand. Some people have used this bill to raise money for their campaigns, saying they are going to be for it, and yet when push comes to shove, they are never for it, it is never good enough, there is never enough money. Yet, as I have said, we have not had a proposal, we have not had a dollar figure, except outrageous figures nobody can meet, off the top of the head. We can talk about 15 months of very heavy-duty slogging here. Now they want more time? I would like to take a couple minutes to talk briefly about some of the improvements in the Fairness in Asbestos Injury Resolution Act. We worked our guts out to get a bill out of committee. It was a very tough thing. I remember staying into the, I think it was the wee hours of the morning or at least pretty close to midnight that night debating this bill. There were some amendments added that I have to admit I didn't like and that would have made it impossible for this bill to pass on the floor. But we have worked very hard. Since then, we have had countless meetings with unions, with personal injury lawyers, with victims, with companies, with insurance companies, trying to bring everybody together. This bill was reported by the Senate Judiciary Committee after a lengthy committee markup spanning four separate meetings. S. 1125, the bill reported out of committee, included, among other unprecedented achievements, a major bipartisan solution with respect to medical criteria where all of the committee members--and this committee is ideologically divided, very tough--agreed on eligibility requirements for determining asbestos-related injuries compensable under the act and over 50 other consensus-building provisions. It and other bipartisan agreements remain in S. 2290, the bill we are discussing today. S. 2290, as many have noted, makes additional significant improvements over the committee bill from a lot of hard work. I praise Senator Leahy, Senator Specter, the majority leader, and others who have worked so hard. Of course, their staffs have worked so hard on a day-in-day-out basis to try to solve these problems. These improvements reflect agreements reached in continuing negotiation among representatives of organized labor and industry that were mediated by our colleague from Pennsylvania, Senator Specter. I praise our mutual friend, chief judge emeritus of the Federal Third Circuit Court of Appeals, Judge Edward Becker, who has played a pivotal significant role here. First, let me briefly highlight some of the key provisions of this important legislation. S. 2290 ends the broken asbestos litigation system and replaces it with a privately funded asbestos victims compensation program for the payment of asbestos claims. The key elements of the asbestos victims compensation program include an office of asbestos disease compensation headed by an administrator for processing and paying claims; a no-fault system based on sound and fair eligibility requirements. That no-fault system will not require attorneys in most instances and will save the attorney's fees. Sixty percent of the moneys here go to the people who are really sick. That no-fault system is a very important step. It includes a nonadversarial, streamlined, and less burdensome claims process with only two levels of review. In most cases, the claimant probably will not need an attorney or if the claimant has an attorney, we provide for attorney's fees under the bill, but on a scaled down basis. There is still $2.5 billion in this bill for attorneys, even under this system. It provides for over $100 billion in funding assured over a period of 27 years, actually $114 billion with a $10 billion contingent fund added on. So you could look at it as $124 billion that we are forcing these companies, including the insurance companies, which have limited liability by the way, we are forcing them to pay into this fund upwards of $124 billion, if it is needed. But $114 billion will be made available, and it does have that $10 billion in contingent funding for defendants. S. 2290 bans future asbestos use to eliminate the dangers caused by asbestos exposure. It provides grants for mesothelioma research and treatment centers, hopefully to find a way to resolve some of the problems. This represents a good-faith effort to improve this fine legislation. That is just some of the changes. No piece of legislation is perfect, but I am certain that with these changes a very good piece of legislation got better. Let's go to the improvements over S. 1125. We had to get a bill out of committee. It was a hard-fought battle. It took us four markups and a major all-day session. Let me list some of the improvements. This is less adversarial. It provides for a less adversarial, more streamlined administrative process, including less levels of review than the original bill. This bill has a more user-friendly application process and expanded claimant assistance program, where you might not even need lawyers to eat up the funds, although you could have a lawyer if you want one. This provides interim authority, interim regulations, upfront funding, and increases borrowing to facilitate the prompt startup of paying these folks who have suffered--the real claimants, not these people who haven't suffered who are getting moneys from these false jurisdictions. This bill increases claims values. Mesothelioma victims are now getting, in many cases, 5 cents on the dollar. This bill resolves that problem, just to mention one thing. This has more secure funding because it guarantees mandatory funding from funding participants. It gives audit authority and civil penalties for false statements and fraud. It has stronger enforcement authority, and it has additional safeguards to ensure priority of payments to the fund. It also increases liquidity and provides more flexibility to address short-term funding problems. It has a more orderly wind-up of the fund and transition back to the tort system in the event of a sunset, with payment in full for all resolved claims. It also provides grants for mesothelioma research and treatment centers that are also required to participate in a mesothelioma disease registry. All of these would be wonderful. This new bill increases compensation going to victims over what they are getting today. The attorneys do real well, but the victims aren't doing quite as well. It revises the funding provisions to help guarantee funding and to protect the solvency of the fund, while ensuring that any risk or shortfall rests on defendants and insurers, not on claimants. It establishes a more streamlined, less adversarial and less burdensome administrative system than provided in our original bill, S. 1125, that will be up and running more quickly. It provides grants for mesothelioma research and treatment to help find a cure for this deadly disease. I emphasize that S. 2290 puts even more money in the hands of victims than provided in S. 1125 as reported by the committee, which was already estimated to put over one and one and a half times more money into the pockets of victims than they would have received under the current tort system where more than half of the resources now go into the pockets of the plaintiffs' and defendants' lawyers. I am pleased to say, with the leadership of our majority leader, Senator Frist, S. 2290 raises award values in certain categories, focusing those diseases that are most clearly caused by exposure to asbestos. I might add that as a thoracic surgeon Senator Frist brings a unique perspective on this legislation. I think it is fair to say that he is the only Member of this body who has performed surgery on mesothelioma patients. The values from the negotiations conducted by Senator Frist led to an increase of $100,000 for severe and disabling asbestosis, among other increases. Values for smokers and ex-smokers with lung cancer under levels 8 and 9 were also notably increased, although most likely their cancers came from their heavy-duty smoking. That involves a lot of union members who probably would get nothing if it weren't for this bill. For the life of me, I don't understand why the union leaders have not been totally for this. I have heard them privately say this is a good bill. I commend Senator Frist for his insight and efforts in this process. Although some Democrats and some affected parties assert that values in S. 2290 are not enough, they generally only focus on the values for exposure-only lung cancers. Most experts believe these claimants have no clearly established link that the lung cancer was caused by asbestos exposure, such as underlying asbestosis, and may have been heavy smokers all their lives. There is no evidence in these cases that their cancer or lung problems have come from asbestos exposure, but we give them the benefit of the doubt in this bill. Some conservatives think that goes way too far. Even though these people have been heavy smokers all their lives and we know that leads to cancer, we have been willing to go this far in the bill. Some of these experts provided testimony to the Judiciary Committee that an exposure-only lung cancer disease category runs an extremely high risk that lung cancer falling within this category are, in fact, not conclusively attributable to asbestos exposure. That is putting it mildly. Providing increased compensation for these smoking-related claimants could frustrate the purpose of the fund and put the fund at risk. In fact, lung cancer claimants with no markers or impairment from asbestos currently receive nothing from today's bankruptcy trusts--zero. This bill gives them the benefit of the doubt. These claims with no markers and no impairment--meaning no indications at all that asbestos was involved--almost always result in defense verdicts in today's tort system. Here we provide the benefit of the doubt to them in the bill. Some have criticized that, but that is how far we have gone to try to get the other side to do something and debate this bill. If they don't like provisions of it, file amendments and bring them up. We are willing to debate them. They may win on some of these amendments. I can live with that. But to just continue to filibuster everything that can help this country immeasurably at this time seems to me to be hitting below the belt. Upon close consultation with organized labor, S. 2290 contains additional changes to ensure that more money is put into the hands of victims more quickly. Specifically, this entailed locating the program at the Department of Labor. The Wall Street Journal doesn't like that idea and neither do some of my fellow Republicans. But that is how far we have gone to accommodate them and try to bring this to closure. This is a major change from the bill as reported by the committee--which assigned the claims processing function to the Court of Claims. I have to admit, I don't particularly like that provision. I thought the Court of Claims would do a better job. I think any court would probably do a better job. On the other hand, these people are expert in some of these things. The Government is not making these payments. Payments have to come from the companies. So it is not something like black lung that goes off the charts year after year. It is no secret that the administration has serious reservations about this change. In fact, I have questions about these provisions myself, but in the spirit of good faith and compromise, we decided to include this new administrative mechanism in order to attempt to put more funds into the hands of the families suffering from asbestos-related illness. We did this in an attempt to accommodate our friends on the other side--attempt after attempt after attempt--and here we are with a filibuster on the motion to proceed. We have acted in good faith. I think a filibuster is in bad faith. Reimbursement of costs for physical examinations are now provided as part of the medical monitoring program, and structured payments are now required to be made in a 40/30/30 split over a 3-year period, unless a stretch out to 4 years is required to protect the solvency of the fund. The Hatch-Frist-Miller FAIR Act also improves the committee bill by providing more secure funding and additional protections in the fund's solvency, while maintaining that the risk of insolvency falls onto the various industries involved. Most of them should not be here. Most of them are companies that hardly ever did anything with asbestos, but because they have either acquired a smaller company, or had some contact with asbestos, although not significant, they are hauled into all these cases, and they are going to have to come up with moneys they should never have had to come up with. The mandatory funding for defendants is guaranteed, and moneys from insurers are infused into the fund in the early years where the most claims are anticipated. The increased enforcement authority of the Attorney General to compel payment and other additional safeguards, such as requiring a priority for payment obligations to the fund in State insurance receivership proceedings, further bolsters the fund's solvency. Also, increased borrowing authority provides more liquidity and will help with the short-term funding problems. Let me talk about some of the safeguards: We have over $100 billion in guaranteed mandatory funding; $114 billion plus $10 billion contingency; a strong enforcement measure for underpayment and nonpayment; borrowing authority of 7 years future revenue ensures liquidity; regular program reviews, including claims and funding analysis with recommendations for improvements; annual reports to Congress on the status of the fund, with recommendations for improvements--Congress can make changes if it has to; and $10 billion in contingent funding; a risk of insolvency placed on companies with a sunset provision. Those are all safeguards we put into the bill, much to the credit of our friends on the other side, who now appear to be filibustering this bill--even the motion to proceed. Of course, they are now asking for even more time for discussion. Look, I have been told by people who know--or at least think they know--some who have speculated that we are never going to get a bill this year because it is an election year, and there is a lot of money involved from the personal injury lawyers. By the way, like the bankruptcy bill, a lot of money is involved by the companies who tend to pour it into people objecting to the bill, hoping they will somehow or other do what is right and support the bill. I hope that is not the case, but the more this drags out and the more we have filibusters on motions to proceed; and on this bill, after all the concessions we have made and the negotiations we have had, the more I come to the conclusion maybe these rumors are true. In fact, I know a lot of people who believe they are true. Because of these new financial safeguards I have discussed, the Hatch-Frist-Miller bill was able to modify the amendment proposed by Senator Biden and adopted in committee, which allowed for a reversion to the tort system in the event the fund becomes insolvent. Many members of the committee--and I thought Senator Biden himself-- recognized that the provisions in his amendment, voted on late with little discussion with the committee, needed further review. We are pleased our new language satisfies the problem the Biden amendment addressed in the first place, but do so in a more flexible and deliberative fashion. Simply stated, the Hatch-Frist-Miller bill replaces these provisions with an alternative program review that will give the administrator more time and more flexibility to address any unanticipated short-term funding problems. Under the new bill, full payment of all resolved claims is required. To create a smoother transition and to avoid recreating the current manifest shortcomings in a handful of State courts, the fund will revert to the Federal court system. We must not lose sight of the fact that it is the aberrational result in the courts of a few States--especially Mississippi, Illinois, and West Virginia-- that has triggered this national crisis. Let me emphasize that under the new language, any risk that the funding is insufficient would still fall on defendants with claimants able to get their day in court. Members and other interested parties need not worry that any risk of insolvency will fall on the claimants. I can give you cases that are 20 years long without any resolution to the people who have been injured. This solves those problems almost instantly. Another significant change I would like to discuss further is the new administrative structure and claims handling procedures provided in the Hatch-Frist-Miller bill. While the committee bill created a more accessible and simpler claims processing system for claimants than found in the tort system, organized labor continued to express concerns that the administrative structure under S. 1125 was too adversarial and cumbersome. The agreement mediated by Senator Specter and Judge Becker to move claims processing from the Court of Federal Claims to an executive office situated in the Department of Labor included numerous refinements made in consultation with labor union representatives. They were brought in in every way, and they are the ones who demanded this. Senator Specter and Judge Becker have negotiated it. In addition to placing the office within the Department of Labor-- against the preference of the Department of Labor, I might add--or an independent executive agency, as requested by industry who lost on this issue, the new language also includes simplifying the claims application process, expanding the claimant assistance program, and requiring the creation of exposure presumptions to reduce the burden of proof for claimants in high-risk employments. We made further refinements addressing concerns raised by Senator Feinstein and others that there may be an undue delay in starting up a new claims system, forcing mesothelioma victims and victims whose claims have been sitting in court for years to wait even longer to receive compensation. Senator Feinstein's amendment could have unintentionally threatened the fund itself by diverting resources away from the fund and to unimpaired claimants. Instead, the Hatch-Frist-Miller bill provides interim regulations for the processing of claims, including exigent claims, interim authority, upfront funding, and increased borrowing authority, which all go toward ensuring the system is up and running as soon as possible after the date of enactment. Good public policy demands expedited termination of the broken tort system and preservation of funds so that payments can go to the most worthy claimants, as defined by the consensus medical criteria. As a final note, proposals for research moneys for mesothelioma were circulated in committee. Mesothelioma victims generally live only a year or so after diagnosis of this horrible disease. More research is needed on mesothelioma to find better treatments and even a cure, and I am pleased this bill addresses this problem. Our bill now provides up to $50 million--and I am willing to consider increasing that amount--in grants to mesothelioma research and treatment centers. In addition, these centers must be associated with the Department of Veterans Affairs medical centers to provide research benefits and care to veterans who have suffered excessively from mesothelioma. These, along with the asbestos ban, are important and vital pieces of legislation that must not be overlooked. Again, I tried to highlight here some of the major changes from S. 1125 as reported, many of which were made to address the concerns raised by various members in committee, especially on the Democratic side. These revisions are aimed at ensuring that the program established under the FAIR Act is fair to victims. In short, the Hatch-Frist-Miller bill represents a reasonable and fair solution to the asbestos litigation crisis and may be the only solution to it. Members from both sides of the aisle recognize that an equitable compensation program is necessary. I believe S. 2290, the Hatch-Frist-Miller bill, meets the test. I urge all of my colleagues to support this bill and at least support debate on this bill and bring up amendments so we can see what further changes the Senate, in working its will, will require. We should certainly see that this bill is fully considered by the Senate. Having said all of that, I am very concerned that this bill is being treated only politically; that there are those who are afraid to vote on this matter; that there are those who do not want to be involved in this matter right now; that there are those who want to stop this matter because of political pressure by special interest groups. We now have 8,400 companies that are being sued, and it may go as high as 15,000. I might add that we have about 16 major insurance companies that are being sued, some of which should not have the liabilities we are imposing upon them. Nevertheless, the more companies that go into bankruptcy, the more jobs are lost, the more pensions are lost, the more this economy will suffer, and the more all of us will be worse off. I might also add that the courts have not proven to be effective here and that the tort system has failed. Even the Supreme Court of the United States says this requires a legislative solution. This is the only legislative solution that is available, and if we want to get something done, we are going to have to work on this bill. Personally, rather than have a filibuster on the motion to proceed, I think we should go to the bill. I personally would be willing to grant more time if we would have a definite date. I cannot speak for the majority leader, naturally, but I would personally be willing to grant more time, as Senator Specter was, to have further negotiations outside the context of debate on the bill where usually those negotiations help bring about a bill. But I would be willing to go another 2 weeks to a month in intensive 9 to 6 negotiations every day, which we have been doing now for 8 months, if we had a definite time to bring up amendments and a definite time for final passage of the bill or a final vote on the bill. Maybe we will vote it down in the end. I doubt it. In fact, I am sure we will not. The fact is, in other words, if we do not have to face another filibuster and if everybody in good faith works to try to bring this about and we have a debate on the floor and people have amendments they want to bring up, they can do it. I cannot speak for the majority leader, but I certainly would be willing to recommend that, again bending over backwards to try to accommodate our colleagues on the other side. If that is not acceptable, then I have to conclude that the statements made by some of the folks outside of the Senate who are knowledgeable about this that politics is more important than solving this problem, that money is more important than solving this problem, that the personal injury lawyers are more important than solving this problem happens to be true. I hope that is not true. I hope we can get our colleagues to work together. I would like to work with them, as we have. We have not rejected or failed to consider any idea that has come up, and we will continue to do so. But if not, then let's go to cloture on this bill and let's let everybody know who wants to stop even a reasonable debate, even a reasonable time to file amendments, even the reasonable position the Senate ought to always take, and that is the Senate should work its will and we should vote on the amendments one way or the other, vote on this bill one way or the other, and let the chips fall where they may. Mr. President, I yield the floor.

Mr. HATCH. I will be happy to.

Mr. HATCH

Mr. HATCH. Will the Senator yield for a unanimous consent request?

Mr. HATCH. I ask unanimous consent that I be recognized immediately following the distinguished Senator from California.

Mr. HATCH. I think it would be less than a half hour.

Mr. HATCH. I am delighted to yield.

Mr. HATCH. Mr. President, I listened to the distinguished Democratic leader on the Judiciary Committee, Senator Leahy. He made a number of statements I feel need to be corrected. I know he sincerely made them. I am not trying to disparage him in any way, but he has made the same mistake I think the minority leader made this morning, that only $25,000 is given to these people who are heavy smokers, who have no sign of asbestosis, no markers, no signs on their X-rays, where we have $25,000 to $75,000 for these people, even though in all likelihood their maladies have come from their smoking. If smoking and asbestos work in concert, together, why don't any of the bankruptcy trusts pay any money for lung cancer claims that do not present any markers or impairment at all? They do not. Here we are giving $25,000 to $75,000 for complaints that get absolutely zero in court. Why are these same claims almost always met with a defense verdict in the tort system? Even the tort system, as out of whack as it is, will not give these people money. Yet we do. You would think it was a crime that it is not more. That is typical of the arguments on the other side. You will never have enough money here to satisfy some on the other side no matter what you do. What we are trying to do is resolve this problem so the country can go forward, so these businesses don't all go belly up, so the jobs are not lost, pensions are not lost, and so people can get money without paying 60 percent of the recoveries to attorneys and for transaction fees. By the time you add the defense attorneys' costs, the plaintiffs' attorneys' contingent fees, and the transaction costs, it is 60 percent of every dime that is raised in these horrendous court decisions that are paying people who are not sick to the exclusion of people who are. This bill solves that problem. Isn't it true this bill pays up to $1 million to lung cancer claims where there is more certainty it was caused by asbestos exposure? The fact is, it is true. That is $1 million some of these--a lot of these people will never get under the current tort system. But a lot of people who have never suffered 1 day of impairment in these jurisdictions I have been talking about will wind up with millions of undeserved dollars because this system is out of whack. I am getting a little sick and tired of hearing my colleagues blast Halliburton. There is only one reason they do that. That is because, even though he has nothing to do with it, even though he has long been gone from it, even though everything he has had to do with it has been finalized and closed, the Vice President used to work for Halliburton. It gets old. I mean it is cheap shots, there is no question about it. Frankly, let me say I have to respond to the dubious argument that Halliburton is gaining a windfall by this fund. Anybody who believes that should call them and ask how they feel about this fund. The truth is they may actually be better off by not having this legislation. Even some personal injury lawyers involved in the settlement with Halliburton believe that is the case, that they are better off not being part of raising the $124 billion. The truth has not stopped some of my colleagues from making exaggerated statements about this bill. I suppose it is no surprise that when they get the chance to take a shot, truthful or not, at their favorite whipping boy, they are not going to pass it up. That is what they do--as if all big businesses are bad and all big businesses screw their employees and all big businesses are out to hurt the economy. Let me state for the record how this bill compares to the Halliburton settlement. The conditional settlement reached with the plaintiffs' lawyers is just over $4 billion. There is a conditional settlement that Halliburton entered into that is a little over $4 billion. Only $2.7 billion of that amount is cash. Of this $2.7 billion, about $2.3 billion may be recovered by Halliburton from insurers. The remaining amount of the settlement, about $1.3 billion, involves issuing shares of stock. If the legislation is adopted, it seems likely the stock value will increase so that any dilution of stock values in the short run will be offset by medium- and long-term capital gains. So the actual cost to Halliburton is not the $4 billion they throw in, which some of my colleagues claim. We understand the firm believes recoveries from insurers in issuing new stock--two elements that those who argue this is a bailout always neglect to mention--will act together to create an actual out-of-pocket liability to the firm of less than $1 billion. How does their fund liability compare? As a tier 1 company in this bill, under the fund they would pay $86.5 million per year. The total nominal value of their liability under the fund would be just short of $2 billion. This is a bailout? It is a lot more than they would have to pay under their settlement. I hesitate to even say this in the Senate because if I were with Halliburton, I would take care of the settlement, the heck with this. But it would take some real effective money away from this trust fund. Halliburton is not the only one. Again, it appears some of my colleagues are not interested in hearing details such as these. They would rather confuse the facts and do anything they can to make sure the personal injury lawyers who support them do not lose out on their more than $60 billion of projected fees-- just from asbestos litigation--if this bill is not passed. No wonder they can afford to run these stupid ads all over America, acting as if they are fighting for little individual people. Give me a break. The fact is, everybody in this body knows there is a tremendous rip-off of a lot of people who have suffered from mesothelioma and other related asbestos diseases who are not going to get anything, or will get relatively nothing, if this bill does not pass. Now, we are faced today with a historic opportunity to right a serious wrong being committed against victims of asbestos exposure, as well as the thousands of companies and individuals who stand to lose out in terms of potential bankruptcies, loss of jobs, loss of pensions, under today's downright irrational system of compensation under our current tort system. For more than 20 years, our compensation of legitimate asbestos victims has been unacceptably diminished and delayed. It has become quite evident to the Judiciary Committee that tens of thousands of true asbestos victims, including their families, are faced with agonizing pain and suffering, with uncertain prospects of any meaningful recovery in the existing tort system. These inequitable results are particularly troubling when viewed against the reality that large dose exposures to asbestos, associated with asbestos-related diseases, ended in the 1970s. That is when they ended. Asbestosis is considered by many as a ``disappearing disease.'' These victims are left with little to nothing because, among other things, precious resources are being diverted toward the defense and payment of a massive influx of asbestos claims brought largely by a group of overzealous personal injury lawyers on behalf of these many unimpaired plaintiffs, people who have never suffered from anything to do with asbestos. Cardozo law school professor, Lester Brickman, found that more than 80 percent of claims made in recent years and 90 percent at present do not involve a medically recognizable injury. You wonder what is going on. That would not happen but for courts that literally are not abiding by the law, where judges are bought by trial lawyers, and where they are totally plaintiffs oriented and the jurors come from areas where it is not their money, so they will put up any amount of money for people who are not even injured. In other words, a great majority of asbestos lawsuits today are brought by those who are not even sick. These claimants show lung conditions similar to the general population, including that of individuals with absolutely no asbestos exposure at all. To put the asbestos litigation problem in perspective, I will share the story of Mary Lou Keener, the daughter of an asbestos victim, who has spoken out in support of this legislation. Mary Lou knows all too well how the current asbestos crises has failed some of our Nation's true patriots, our veterans. Mary Lou Keener's father served in the engine rooms of the USS Mayrant, Lindsey, and Columbus in World War II in the Pacific. Both the Mayrant and Lindsey suffered serious damage from enemy attacks. Mary Lou's father had the dangerous assignment of helping to bring these crippled ships back to port, spending months fighting to keep them afloat, and beginning massive repair work while they were still at sea. He then spent months at the shipyard helping to finish the repairs. What Mary Lou's father did not know was that the countless hours spent in the engine rooms and boilers would cost him his life. The same is true of thousands of veterans like him. These ships, like almost every vessel in our fleet at the time, contained massive amounts of asbestos. Every moment he spent working to return these ships to battle, breathing the contaminated dust and debris, worsened his condition and guaranteed that he would never ever be able to recover. Not surprisingly, he developed mesothelioma, ultimately succumbing to this horrible, painful, and deadly disease on--guess what--Veterans Day, 2001. Mary Lou's father was more fortunate in one way than many veterans: He had a daughter, a truly exceptional woman who is a nurse, a lawyer, and a Navy Vietnam veteran. She is also a member of the Veterans Rights Commission. When she learned of her dad's condition, she rushed to help him and her mother navigate the complicated maze of regulatory and legal systems that he faced. Unwilling to take no for an answer, Mary Lou pushed to have him examined at the National Cancer Institute, part of the National Institutes of Health. It was there that Mary Lou's father received the definitive diagnosis that he suffered from mesothelioma. Mary Lou made sure he received the best treatment available from experts throughout the country. After his death, Mary Lou helped her mother fight through the regulatory requirement to obtain dependent indemnity compensation from the Federal Department of Veterans Affairs for a service-connected death. She helped her mother find an asbestos plaintiffs law firm to file a tort and wrongful death claim. Now, despite Mary Lou's efforts, her father's lawsuit, even with a resourceful and tenacious advocate like his daughter, has been languishing in the courts for over 18 months. As most veterans learn, there are few viable defendants left who are responsible for supplying asbestos to the Navy. Mary Lou's mother received three checks from defendant companies, but they are all bankrupt and the amounts are very tiny. She can only cling to the hope that there may be other viable defendants, but the reality is that far too many veterans will go uncompensated under the current tort system. Perhaps this is why Mary Lou Keener spoke out in support of S. 2290, stating: The courts are clogged with asbestos cases, and even if [my mother] finally has her day in court, the law firm will collect almost half of any jury award. That's why passage of [the FAIR Act] is so important. The Trust Fund solution to this problem envisioned by [the FAIR Act] will bring much needed compensation to veterans suffering from asbestos related diseases and end the vagaries and lengthy delays of the current/tort wrongful death systems. Last year, Mary's mother received a call from her attorney. Unfortunately, it was not about her husband's case. Instead, she was told she should consider contacting her Senators immediately and ask them to vote against the asbestos legislation. Needless to say, she declined that request. She understands that for veterans like her husband, while the status quo might benefit a handful of personal injury lawyers, it completely fails the one group that should be given the ultimate priority; that is, the asbestos victims. Now, let me refer to this chart: What is wrong with asbestos litigation? This is for the Navy veteran I have been talking about with mesothelioma. Under the tort system, he gets nothing. Under the FAIR Act, each of them gets $1 million. I have to say, no amount of money will compensate people for what they have gone through, but that is so much more than any of them are ever going to get without this bill. Now, as I say, unfortunately, the asbestos litigation problem reaches beyond our veterans and into the lives of everyday, hard-working Americans who are victimized by asbestos and the very system designed to vindicate their rights. One matter I find particularly troubling is the case of Huber v. Taylor. That is a class action lawsuit currently pending in the Western District of Pennsylvania. The suit was filed by 2,644 plaintiffs in asbestos personal injury suits against the personal injury lawyers who represented them. The suit charges that the lawyers treated their clients as mere inventory, distributing only a few thousand dollars to each plaintiff for their injuries, while retaining tens of millions of dollars in attorneys' fees. Now, I bring this case to the Chamber's attention because it underscores the severity of the asbestos litigation crisis and why it is imperative we, as a legislative body, must now act to address this problem. Ronald Huber spent 35 years as a steelworker, inhaling asbestos fibers while working on the job. In 1995, he joined a class action against nearly 200 companies that made or distributed asbestos or asbestos-containing products. Although that class action settled for approximately $140 million, Mr. Huber has not seen a single penny from this award. How much did Mr. Huber's lawyers walk away with? They received $56 million. Look at this chart: What is wrong with asbestos litigation? Huber v. Taylor. The trial lawyers got $56 million; asbestos victims basically nothing. Think about it. That is right, the lawyers received $56 million and the asbestos victims received nothing. In response to this severe injustice, Mr. Huber and over 2,000 of his fellow class members filed a lawsuit on February 7, 2002, in the U.S. District Court for the Western District of Pennsylvania against the personal injury lawyers who represented them in the first action. As of today, the court is still hearing arguments on various motions. The complaint charges the defendants with breach of fiduciary duty; failure to disclose the identity and nature of the actions they had joined; false representation to deprive the plaintiffs of funds belonging to the plaintiffs; failure to exercise the degree of competence and diligence exercised by lawyers in similar circumstances; and misrepresentation of material facts. The plaintiffs are seeking compensatory and punitive damages. All of the plaintiffs to this action are described as ``hard-working union members in blue-collar trades.'' All of them were exposed to asbestos during their working years. All, to a large extent, have little knowledge or experience in the legal system. All state they were ``recruited'' by plaintiffs' law firms for inclusion in ``mass actions,'' and all say their lawyers told them nothing about the lawsuits in which they were involved. Their complaint arises from what they call the ``corruption of the personal injury bar.'' The lawsuit states that, as early as the early 1980s, the prosecution of asbestos personal injury claims had evolved into an industry and the lawyers who were prominent in that industry had accumulated a vast amount of wealth. To quote the complaint: The promise of such wealth drew additional plaintiffs' lawyers into the field, and this resulted in more and more aggressive efforts to recruit asbestos personal injury plaintiffs. I think it is a sad state of affairs when asbestos victims have to sue their own lawyers to receive compensation for their injuries. We cannot allow the current, broken system to continue in this manner. It deprives victims of a meaningful remedy and diminishes public confidence in our civil justice system. I think we have to do something now to ensure there are no more Robert Hubers who are left with no recourse other than to sue their own lawyers. We must also act now to ensure that the tireless efforts of everyday Americans such as Mary Lou Kenner are not taken in vain. These are two of just thousands and thousands of people. It is because of these problems that I urge my colleagues to support S. 2290. Under this bill, victims will receive prompt and certain compensation through a privately funded trust administered by the Department of Labor. Moving existing claims to the fund will significantly cut out the exorbitant transaction costs inherent in our tort system--especially given the no-fault nature of the new system being proposed. In today's tort system, victims bear the heavy burden of proving that a specific product caused their illness. They must show culpability through causation and connect the dots that lead to the ultimate defendant. Unfortunately, few victims today are capable of producing sufficient evidence to show their illnesses were caused by a particular company's products. In fact, because of the long latency period associated with these asbestos-related diseases, the quality of evidence will inevitably degrade over time where memories fade and documents get lost. Thus, for the scores of victims who do not have an ironclad case against any one defendant, a no-fault system is an extremely important component when crafting a solution to the asbestos problem. Now, to illustrate my point, I would like to share the story of siblings Paul and Suzanne Verret. After being diagnosed with plural mesothelioma, both brought suit against four defendants, each a potentially responsible party under tort law. But after hearing evidence presented by the defense, a Texas jury ruled, just last month, that the Verrets' conditions were not caused by any of the four defendants who were likely to have been the result of exposure to asbestos from a Johns Manville factory in the neighborhood. Asbestos tailings from the plant have been used for driveways and parking lots in the neighborhood where the Verrets grew up. Johns Manville, however, is now bankrupt and its asbestos trust is paying pennies on the dollar on all claims. As a result of the jury's verdict, the Verrets are unlikely to recover any compensation for their injuries, but under S. 2290 they stand to recover $1 million each in compensation. Now, look at these Texas mesothelioma victims, Paul and Suzanne Verret. Under the current tort system, as shown on the chart on the left, victims hire lawyers and sue defendants. After years of trial processes and delays, victims are unable to prove causation. They use trial lawyers and collect zero. But under this bill, S. 2290, with the trust fund--if enacted--each of these people will collect $1 million in compensation. By the way, unless they are lucky enough to get a lawyer who is going to forum shop for them into a jurisdiction where the judges are basically in the pockets of the plaintiffs' lawyers, the personal injury lawyers, they might get something that way, but there are going to be very few who get that, and most of those people are not going to be ill. They are not going to have suffered and not going to be able to prove their case in other courts of law in the country. It is pathetic. Naturally, there are some great lawyers who do what is right here. I do not mean to find fault with them. I find fault with these phonies who use forum shopping jurisdictions and really what I consider to be corrupt judges and, in many cases, corrupt juries, to obtain humongous verdicts for people who are not even sick, taking the moneys away from those who are sick, which this bill would solve. In the coming days, we will be engaged in a historic debate regarding the asbestos litigation crisis facing this country. The outcome of this debate will have very real consequences on the victims of asbestos and their families. These victims are counting on us, their elected Senators, to do the right thing and address the problems in our tort system that is badly broken by asbestos litigation. I have to say, when you folks out there see these phony ads about how this bill is bad and the tort system is good, those ads are paid for by these attorneys who have already taken $20 billion in fees away from victims, and will take another $40 billion more, for a total of $60 billion, out of their pockets. It is easy to see why they do not want this bill. It is a gravy train they do not want to stop. They certainly don't want it to be stopped by this bill, which is where the gravy train would end for lawyers and recoveries that are worthy will begin for victims. Let me say, although the stakes in this debate are high, the risk of not acting or allowing a broken system to remain broken is even more consequential. We at the very least owe it to people such as Mary Lou Kenner and Ronald Huber to make this bill the pending business of the Senate. We really need to do that. Let me tell you one more story about the impact of the current asbestos system on American business. The reach of the personal injury lawyers--I am talking about the dishonest ones--and their web of abusive litigation practices appears to have no limit. At last count these personal injury lawyers have cast their asbestos net to include some 8,400 defendant companies representing virtually every industrial sector of the U.S. economy. Approximately 70 companies, 35 since the year 2000 alone, have now been driven into bankruptcy as a result of asbestos litigation. Disturbingly, most of these companies that now find themselves named as defendants in asbestos cases had little or nothing to do with the manufacture, sale, or distribution of asbestos or asbestos-containing products. Under the ``deep pocket'' theory of law now commonly subscribed to by many personal injury lawyers, liability is not based on culpability; instead, it is based on the nearest available pot of money. What is more, an estimated 90 percent of the claims now being filed are on behalf of persons with no discernable illness, many of whom were recruited by for-profit, mass- screening operations being sponsored by enterprising trial lawyers. I would like to talk about a company that has facilities in my home State of Utah. Philadelphia-based Crown Cork & Seal is representative of all too many of the businesses that have found themselves targeted by the personal injury lawyers over asbestos. In 1963, Crown Cork & Seal, a consumer products packager in the can and bottle cap business, purchased, for $7 million, the stock of Mundet Cork Company, a New Jersey-based firm that made cork-lined bottle caps and insulation that contained asbestos. Because Crown was only interested in the bottle-cap business, Mundet sold its insulation division approximately 90 days after the purchase of its stock by Crown. Thereafter, Mundet, consisting only of its bottle cap business, was merged into Crown. Crown never operated Mundet's insulation business, nor had it ever intended to operate its insulation business. Crown was only interested in acquiring Mundet's bottle-cap assets; no Mundet insulation managers ever worked for Crown, and no Mundet stockholders ever had any ownership interest in Crown. The trial lawyers have made Crown Cork & Seal pay dearly for the 90 days it owned the insulation division of Mundet. To date, Crown has had to pay out over $400 million in asbestos claims. To give this some context, that is over 57 times what Crown paid for Mundet in 1963. In fiscal year 2003 alone, Crown paid over $200 million in asbestos- related costs, of which only $25 million--or 12.5 percent--went to real victims of asbestos-related diseases, and that is what is going on. It is a rip-off. That is what is going on. That is what our colleagues are arguing for. It is a rip-off. Why? Some say it is because these personal injury lawyers are going to put up $50 million or $100 million for their nominee for President. I hope that is not true, but it is all too evident that that probably is. Here are these victims who should not have been able to sue Crown Cork & Seal to begin with. Crown Cork paid over $200 million in asbestos-related costs last year alone, and the victims got $25 million out of $200-plus million or 12.5 percent. All the rest went to lawyers, claimants who were not ill, and other costs. Look at this Crown Cork & Seal chart. What is wrong with asbestos litigation? Crown Cork & Seal: $25 million out of $200 million total. Of the more than $200 million paid by Crown Cork & Seal in 2003, actually only $25 million went to individuals impaired with asbestos- related illnesses. Where did the $175 million go? It is a rip-off. That is what is happening. This bill will stop that. It is an expensive bill for the companies involved. They are going to have to pay for 27 years and pay through the nose. Many of them are in the same position as Crown Cork. They should never have had to pay a dime to begin with. The story of Crown Cork & Seal is just one of thousands of examples why we cannot put off fixing this problem any longer. Our current system is one that does not serve businesses and their employees whose livelihoods depend on them. Our current system surely has not served the victims of asbestos. I urge my colleagues to join me in supporting the FAIR Act, to vote for cloture so that we can stop this obstructionist filibuster being led by some of my Democratic colleagues. Think about it. They are filibustering a motion to proceed to this bill so we can debate the bill itself, filibustering it so we cannot add amendments to the bill. If they have good amendments, bring them up. We will listen to them and hopefully pass them, if they are good. If they are not, they might get them passed anyway. The point is, let's at least allow the Senate to work its will. Let's not stop even a motion to proceed this bill. I would like to respond to claims that were made earlier today that the Hatch-Frist-Miller bill is not fair to pending plaintiffs. This bill preempts and supersedes those claims pending in the tort system today, including verdicts that are still subject to appeal or judicial review. Preemption of such claims assures an end to a broken tort system that everyone agrees is slow, unwieldy, and fundamentally unfair to asbestos victims. The opponents' solution to their concern that the FAIR Act is unfair for pending plaintiffs is to keep the tort system open for pending claims. These critics are asking Congress to perpetuate the very problem this bill is seeking to rectify; that is, a broken system that is failing victims by misallocating resources away from the truly sick, where such victims receive too little because so much is going to the unimpaired and to attorneys who take most of the money. We all know the statistics. The vast majority of the claims being filed today, as high as 90 percent, are by individuals with little or no current functional impairment. Let me tell you how this translates into real money. Using the values cited by the minority views in the report of the Judiciary Committee on S. 1125 for unimpaired claimants, it is $40,000 to $125,000. Allowing pending claims to continue could direct anywhere from $10.8 billion to $33.8 billion or more to unimpaired claimants. How many of these claims are based on mass screenings? It has been estimated that the abuse of mass screenings has resulted in $28.5 billion having been paid for meritless claims. That is almost $30 billion that has gone to people who don't really have claims. This completely undermines the consensus public policy decision to redirect these funds to those who are truly sick from asbestos exposure and the whole purpose of this asbestos legislation. The bipartisan medical criteria argument forged in the Judiciary Committee recognizes unimpaired claimants should be monitored but should not be paid for illnesses they have not and may never develop. But we will pay for monitoring. Opponents of the bill who seek to perpetuate the tort system would also preserve the exorbitant attorney's fees associated with such claims. As much as 40 to 50 percent of awards go to the personal injury plaintiffs' lawyers fees and costs. Indeed, while we debate the bill, personal injury attorneys likely will file a large number of claims in the tort system, most of which undoubtedly will be for unimpaired claimants which would be allowed to continue if these opponents have their way. The rest, probably another 10 percent, goes to the defendant attorneys who have to defend these companies, many of which should not have any liability at all. There is no justification for allowing personal injury lawyers to continue to siphon significant resources out of the system when these resources could be dedicated to compensating those who are truly sick from asbestos exposure. The intent of the FAIR Act is to fix a system that everyone agrees is badly broken and in desperate need of repair. John Hyatt, the counsel for the AFL-CIO who testified before the Judiciary Committee in 2002, described the tort system as having ``high transaction costs, inequitable allocation of compensation among victims, delays in payment to victims, and a general climate of uncertainty that is damaging business far more than it is compensating victims.'' That is the counsel for the AFL-CIO. I have often heard Democratic colleagues make similar statements perpetuating the tort system, claims that undermine the bill, saying that would be better or more ``fair'' treatment than they would get under the FAIR Act. ``Fair'' has to be in quotes in that manner. In fact, the Hatch-Frist-Miller bill provides relief to current pending claims. Any claimant who has filed a lawsuit in any State would be eligible for prompt compensation from the fund provided they meet the eligibility criteria set forth in the bill. These criteria are quite wrong. We should not treat plaintiffs in court as second class citizens. Cases filed in the tort system take years to process, and there is no guarantee that even with the trial date, a case will proceed. Cases in New York City given trial dates in 2002 have yet to go to trial. Even then, in most jurisdictions, cases that actually have been tried are often appealed, and years pass before the case is formally resolved. In the interim, plaintiffs are without relief, and money is being spent on lawyers, with no relief. There is no reason to leave this type of system in place. Moreover, the mere fact that a case is filed is no guarantee it will proceed. Claimants' cases proceed sometimes based on how many slots the trial has for your lawyer, where the cases were filed, what defendants are left, and other vagaries completely out of a claimant's control. That day will stop with the passage of this bill, which now provides expedited payments to anyone who can demonstrate a hardship, who has been diagnosed--anybody who can demonstrate a hardship or who has been diagnosed with mesothelioma or with another asbestos-related disease who has less than a year to live or can otherwise establish a circumstance requiring accelerated payment. The money is there now, when it is needed, and it can be paid out quickly to help these families. This bill also fixes the judicial system, unclogs the courts, allowing these judges to deal with other matters, not asbestos cases in the wings waiting for court time that is precious and, at this point, unavailable. There is no need or benefit to leave these cases which have been clogging the courts pending in the courts. These cases are the very reason we are seeking to fix a broken system. There is no evidence the courts can or will handle them properly and not prejudice the litigants waiting their turn. Creating a two-track process is likewise unfair to victims and defendants. Despite all the rhetoric from opponents to the bill, when compared to what the current tort system will provide, legitimately ill claimants will fare much better under this FAIR Act. We will have victims who get immediate relief through the fund, while those with litigation pending must wait and hope for a court date and then hope the company responsible is still solvent and can afford the cost. What will we say to them when we have left a system that we agree is broken, and they are sitting in court for years? Great care has been made to ensure that the compensation program would be processing and paying claims soon after the date of enactment. There are no assurances that plaintiffs would have claims resolved in the tort system within this same amount of time. Indeed, experienced staffs say they are likely to continue to sit in court even longer. Furthermore, awards in the tort system are disparate and depend largely on where the claim was filed, what judge is presiding, rather than the severity of the illness. In other words, it is a phony system. Professor Laurence Tribe described the system as resembling a lottery, noting: Some victims receive astronomical awards, while others receive little or nothing. Quite a few severely injured victims die before their cases could can be heard. Plaintiffs point to the larger awards in some cases and cannot be denied, so some have been able to win in this lottery system, or win the lottery. These awards, however, are the exception and reserved for the few claimants who can survive through a long and hard trial, as well as appeals, often taking many years to see any moneys at all. Then they will find that about 60 percent of the moneys are gone anyway. The plaintiffs bar doesn't point to the majority of claims receiving significantly less money for more severe claims or even up to 40 percent taken out for attorneys' fees. As a stark example, a 2001 asbestos verdict awarded Mississippi plaintiffs $25 million each, where none of the plaintiffs claim prior medical expenses or absences from work due to any related illness with the case of a cancer victim who underwent a lung removal operation. This cancer victim grudgingly agreed to join a class action suit against an asbestos company. He never lived to see the outcome of the case, and after 7 months his estate was awarded a mere $3,000. The others didn't even have injuries. Substantial judicial proceeds dating back to the early 20th century supports the constitutionality of Congress' authority to preempt tort claims when it believes it is in the public interest. It is clearly in the public interest, and especially in the interest of asbestos victims, that Congress used the full extent of its powers to preempt the current asbestos litigation system. Finally, Mr. President, allowing personal injury lawyers and the unimpaired to continue to drain resources out of the system and away from those who deserve the resources would not only be unfair to the truly ill, it is likewise unfair to defendants who ask them to pay into a no-fault system, give up some of their insurance company, and still expose them to the litigation lottery. We cannot expect the defendants to bear the costs and risks if it fails the judicial process. This system will continue to take 60 percent of every dollar and waste it on lawyers' experts and administrative costs. The Hatch-Frist-Miller bill will stop the litigation lottery in its tracks and instead replace it with a fair administrative process that treats all participants fairly and consistently. I want to respond to a few statements made by my friend and colleague from South Dakota earlier this morning regarding S. 2290, the Fairness in Asbestos Injury Resolution Act of 2004. Senator Daschle stated there was no reversion to the tort system. In fact, there is reversion to the tort system. It is one of the concessions we made. Should the fund become insolvent, then claimants with asbestos injuries who have not received compensation under the fund may pursue their claims in the courts. The statement that there is no reversion is simply wrong. I want to correct the record. Senator Sarbanes stated that we ``sprung'' the bill on the Democratic Senators and their staffs. Senator Daschle called attention to the total fund value. For the record, Senator Daschle's staff was informed of the new numbers last October. That was 6 months ago. Since October, there have been repeated and continuing discussions of these numbers over the ensuing months. We repeatedly asked the Democrats for a response to the numbers. We have received absolutely none. We repeatedly asked the Democrats for a legislative proposal--some language, an outline, a concept of a structure, something, anything. We received nothing. As Senator Daschle knows, this so-called new bill that we allegedly ``sprung'' on him includes the very numbers we released months ago, the changes demanded by the Democrats, and the changes demanded by the unions. We have had 8 months of serious negotiations. I don't think it is justified for anybody to say they have been kept out of the process, we have not tried to accommodate them about these matters. Mr. President, I have one more comment that I would like to make to senator Daschle's statements this morning. He stated that a lung cancer victim with 15 years of exposure would receive only $25,000 in compensation. He painted an incomplete picture which I would like to finish. First, that figure is the bottom of the range of compensation. Under the claims values in FAIR Act, claimants who were exposed to asbestos and still smoking will receive between $25,000 to $75,000 in compensation. And for the record, Senators Leahy and Kennedy have stated that they want $50,000 for claimants falling into this category. Mr. President, I have come here to discuss the FAIR Act. We have a chance to help those who have suffered from asbestos-related injuries for far too long. Many people have spent many months getting us to this point and I want to ensure that we have a complete picture of the bill for the record. We owe at least that much to those victims. Mr. President, I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on April 20, 2004, at 2:30 p.m., to hold a closed hearing on intelligence matters.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Governmental Affairs' Subcommittee on Financial Management, the Budget, and International Security be authorized to meet on Tuesday, April 20, 2004, at 2:30 p.m., for a hearing entitled, ``Oversight Hearing on Expensing Stock Options: Supporting and Strengthening the Independence of the Financial Accounting Standards Board.''

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Government Affairs Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia, be authorized to meet on Tuesday, April 20, 2004, at 9:30 a.m., for a hearing entitled, ``Pirates of the 21st Century: The Curse of the Black Market.''

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on April 20, 2004, at 9:30 a.m., in open session to receive testimony on U.S. policy and military operations in Iraq and Afghanistan.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on Tuesday, April 20, 2004, at 2:30 p.m., to conduct a hearing on ``Examination of the Current Condition of the Banking and Credit Union Industries.''

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, April 20, 2004, at 9:30 a.m., to hold a hearing on Iraq Transition: Civil War or Civil Society (1).

Mr. HATCH

Mr. HATCH. Mr. President, it is with great pleasure that I rise to submit a resolution designating the 30th day of April 2004 as Dia de los Ninos: Celebrating Young Americans. Nations throughout the world, especially within Latin America, celebrate Dia de los Ninos on the 30th of April, in recognition and celebration of their country's future--their children. Many Americans Hispanic families continue the tradition of honoring their children on this special day by celebrating Dia de los Ninos in their homes. We have no greater resource than our children and the designation of a day to honor them will help affirm their importance to the future of our country. This special recognition of children will also affirm to the people of the United States the significance of family, education, and community. This resolution calls on the American people to join with all children, families, organizations, communities, churches, cities, and states across the Nation to observe the day with appropriate ceremonies and activities. I urge you to join me in supporting America's youth by supporting this resolution designating April 30, 2004 Dia de los Ninos: Celebrating Young Americans.